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Why are the CCRC unwilling to investigate my conviction for a rape that never happened?

Updated: Oct 10, 2022


Sean Bw Parker was sentenced to 8 and a half years for a rape he says never happened.


Introduction


In this article, I outline the context and details of my wrongful conviction and imprisonment for an alleged rape that I maintain did not happen. I highlight my appeal points, which were dismissed by the Court of Appeal and by the Criminal Cases Review Commission (CCRC), which showed extreme deference to the decision of the trial court and an overt lack of interest in getting to the truth of a conviction for rape based only on the word of the accuser.



The case


This article was mostly written from Dartmoor Prison, where I had been since April 2018 after an initial two months at HMP Winchester and following fourteen months on bail. That March, I was sentenced to eight and a half years at Portsmouth Crown Court on two allegations, two arising from the same complainant, and one being an unrelated ‘kiss’ incident from six months prior. I pleaded not guilty and continue to maintain my innocence. I also applied to the Criminal Cases Review Commission (CCRC) and two of my appeal points were investigated as official complaints by the legal ombudsman.


My main claims are that my legal team were so demotivated by the ‘Believe the Victims’ policy that they conspired to persuade me into not speaking at my trial, including citing my stammer as an adverse factor, and that the main allegation was pressurised into being reported by the complainant’s parents and boyfriend.


As a writer and lecturer on cultural theory and speech therapy, shortly before trial I sent a video of my TED talk titled ‘Stammering and Creativity’ to my barrister, ostensibly to introduce myself and for him to know something of what I was about professionally. I was six dates into a UK speaking tour of the same name when I was sentenced. This stammer led my barrister to suggest in private that I not give evidence at my trial, in case the jury saw it as ‘A sign of guilt’. After a legal representative of my firm - whom I understood to be my court solicitor - also advised me and my family not to stand at the same time as my barristers’ suggestion, I finally agreed, though I had been nervously looking forward to giving my side of things. I now see this as fatal, but assumed my defence knew something procedurally that I didn’t.


I do not deny that consensual sex took place between me, then 41, and my then friend, 22, after we had been drinking – wine and Malibu and cokes - together for around ten hours, drink in which she acknowledged she had willingly partaken. A tenant and neighbour (Mr B) in the room below mine reported hearing ‘laughing and moaning’ that night. He developed a mysterious animus against me in the fourteen months between my arrest and the trial, leading my legal team to ask me to allow him not to be cross-examined. He may have been angered by Seafish, the arts café I was running, losing its licence around the time of my arrest, thus his having to move and possibly lose his deposit - or there may have been witness coercion. My barrister instructed me to summons him as a witness at risk of 'a miscarriage of justice’ on the third day of the trial. The legal ombudsman commented: ‘I can understand Mr Parker’s frustration here given the initial general view that Mr B would be able to provide information that would have helped the defence … I have no doubt that Mr Parker was led by the firm’s advice on this point not to call’.


While rejecting my request for an extension of time to appeal, the appeal court Single Judge commented on this witness: ‘Summoning him to court and calling him without knowing what he would say would have been very dangerous, particularly as he was likely to be unhelpful.’ The complaints manager at my original legal firm further noted: ‘Whether or not [the witness] has been persuaded to change his evidence, I do not know.’ Another tenant testified that the complainant had been fine, coherent’ when she went up to bed at 5am. The legal ombudsman commented that ‘if Mr B had taken the stand and told the court what he told the police he had heard, then the matter may have been decided differently and may have received a different verdict’.


I believe that what happened between us that night was used by the complainant’s parents as a scapegoat for pre-existing problems in her families’ lives. I had to leave town shortly after my arrest due to social media intimidation. In the months between then and trial, the circles of the accusers had plenty of time to muddy any decent reputation I might previously have had. My ex-director partner and the Seafish venue itself losing their alcohol licences being reported in the local press just a week before the allegation was also very problematic, particularly in reference to some intensely applied local government pressure.


The complainant returned to bed twice, and left the next morning in a cheerful and helpful mood, sending a jokey text about parking later on. She had been visiting me at the venue every other evening for the prior week to ten days, and we had talked about my spending Christmas day at her place. On the evening after our sleeping together, her parents physically attacked me in my home and her boyfriend (whom I had previously employed/contracted as a cook at our mini-festival Blakefest, barely knew but was at that point applying to join the police) in his own words ‘Pushed and pushed her until she was compliant’ with his reporting of the night as per the charges. He said that the complainant had implored him not to report, as I was a friend. He would evidentially reprimand her after she had been drinking, was morally judgmental in his text messages, and I presume the complainant would want to avoid this kind of treatment. ‘Pushed and pushed her until she was compliant’ with his reporting of the night as per the charges. He said that the complainant had implored him not to report, as I was a friend. He would evidentially reprimand her after she had been drinking, was morally judgmental in his text messages, and I presume the complainant would want to avoid this kind of treatment.


I believe she wanted to avoid his initial castigation for drinking, and the allegation became escalated; the police made sure there was no contact between us and the allegation thus became their truth. The complainant’s boyfriend also testified that he had been ‘Trying to push her down this route which she did before her parents arrived home. By the time I finished she was compliant’. He seemed quite proud of his pressurising the complainant into this compliance in his testimony.


The complainant’s parents were later made to apologise for their subsequent assaults by means of a community resolution, apology and caution, and the complainants’ father was later conspicuous by his absence during the trial. The complainant claimed under oath that she ‘Had not been a stressed person’ before the alleged incident, whereas many mutual friends will testify she complained often and publicly about having various issues relating to this since childhood, regarding claims she had previously made of abuse in her family. This alleged abuse is significant in the possibility of there being a pattern of complaint, or as the Single Judge noted ‘Whether the complainant was over-stating the level of stress she had suffered as a result of these matters.


When I complained eighteen months into my sentence to the investigating police force about the complainant‘s boyfriend (who was the de facto complainant) acknowledging he coerced his girlfriend into supporting his complaint, and the subsequent prejudicial questioning about drink spiking, they responded that they Consider that your complaint is an abuse of the complaints system. This is due to the fact that the matters you raise should or have been already considered by the courts or they should be raised during an appeal against your conviction’. By then essentially representing myself, I wasn’t aware there was an appropriate order of complaint in regard to this process. I was also unsure as to how this constituted an ‘abuse’ of the police complaints system. My barrister commented in his notes on appeal that the boyfriend’s coercion was ‘before the jury’ - but the jury weren’t sitting at a perversion of the course of justice trial.


With regard to ‘victim impact’, the complainant had responded to a violent and aggressive social media post by her father about the incident that evening with the comment 'Haha’. She also ran to be a local councillor two months later. The atmosphere created by the extremely hostile public gallery would have had a palpably influential effect on the jury, sitting directly opposite them – particularly regarding myself as the (inexplicably silent) defendant. I’m convinced that the factual details which clearly supported my position would have been eclipsed by my not speaking in the eyes of the jury. The best weapon in my defence - my own testimony - was mystifyingly stood down on the suggestions of my legal team.


The key question as it was explained to me was: Did I believe that consent had been given? The answer is that after drinking together for around ten hours (the last couple of which were in deeply intimate conversation), being at a similar level of inebriation, going up to my bedroom together, the subsequent laughter/happy sounds and positive, generally non-verbal cues, I believed that consent had indeed been given. This was further shown by my friend/complainant staying the night, agreeing to meet the following day and sending jokey text messages later on. There was absolutely no force, violence or intent to harm whatsoever, with two other room neighbours also reporting hearing nothing – but the jury were unable to hear my testimony on any of this. In my opinion the balance of probabilities in favour of the fact that there was no malicious or reckless intent in my behaviour vastly outweighs the alternative when these points are considered.


A week before the night in question the complainant had complained of she and her father’s businesses having severe financial difficulties, and this was the subject of much of our conversation on the night itself. I am not claiming the allegation was explicitly financially motivated, but when you’ve heard how much compensation is or was paid out on such charges (up to £22,000) it can’t be ‘unheard’. Our friendship, though close, unfortunately wasn’t so solid or long-term to exclude compensation as a motivating factor.


Eight months after conviction I observed an email from the police claiming that the complainant had somehow become ‘Convinced’ that I was her boyfriend that night. Other customers and mutual friends at the venue had commented on their opinion of the complainant being attracted to me or sharing their opinion about there being a mutual attraction. I have no comment on this; despite everything I wish nothing but the best towards my complainant - we were good friends once.


On the Wednesday morning of the trial, there seemed to be a concerted effort by my legal team to dissuade me from speaking in court after my solicitor spoke to Mr B. This decision must have looked in hindsight like either evasion or arrogance on my part by the (nine-woman, three man) jury, neither of which should have been the case. On no occasion was I given more than five minutes to make any ‘strategy decision’ before being called back into court. Not only did I not realise we needed a strategy in the absence of any real evidence, but my barrister knew I was nervous about speaking, was easily persuadable not to do so, and I believe used this as leverage to have me not speak, having previously told me he thought I was a 'loose cannon'. To deny that he had given this advice (and I will swear on any oath that he did) was deeply disappointing to me. He said in a response to my official complaint that other details of the case had become lost 'due to the passing of time’.


The Single Judge wrote that: Your stammer would have had no relevance to the decision apart from the need to mention it in evidence and the lady whom you say spoke to your parents was not in a position to give advice’. My response to that is that the decision may have been mine, but the suggestions, advice and persuasion were those of my legal team – people whose word one needs to trust. My parents and accompanying friend, a law tutor, were also under the impression that the legal representative advising them was my (trained) court representative, Ms P. The legal ombudsman commented: I cannot definitively say what was discussed between Mr Parker and Ms P’. They may have been able to had they interviewed my family and friend as well as the legal firm under complaint. From a position of nervously looking forward to having my say, my barrister’s suggestion about my stammer turned my perspective. Finally, the legal agent’s reassurance of the normality of this - echoed by my friend and parents - sealed my decision not to speak.


SAFARI (Supporting All Falsely Accused with Reference Information) had this to say, in the Sep-Nov 2019 issue of their newsletter:


‘DISCRIMINATION ON THE GROUNDS OF DISABILITY?: One reader has told us that he had been advised not to give evidence at his trial as he stammers, and the jury might have interpreted this disability as a sign of guilt. We were horrified to read that this advice had been given. Our own advice (although we’re not legally qualified) would be that NOT giving evidence at trial could also appear as a ‘sign of guilt’ even if the jury are told not to do this. Instead, we suggest that you DO give evidence, but if you suffer from any kind of disability, including stammering, dyslexia, involuntary physical movements (‘tics’, clonic spasm, tremor, etc) you tell the court that you have a disability and ask that they not interpret it as a sign of anything other than having a disability’.


Even apart from the points listed, it is surely perverse that someone maintaining their innocence in such a he said/she said case should be sentenced to such a length of time, when the only two real pieces of exculpatory evidence (CCTV footage of a contextual kiss by the alleged victim in the earlier allegation, and post-incident text messages in the later) could be seen as in their favour?


With regards to the supporting allegation, for some reason the judge wouldn’t allow my barrister’s question about the couple having taken substances before arriving as contributing towards their behaviour on their night at Seafish, regarding her altered inhibitions and his extreme violence. There were at least two falsehoods in the testimony of the boyfriend of this supporting complainant, including his omission of his assault on me (a punch, not a ‘shove’) and his subsequent semi-destruction of the venue. Regarding this allegation, in his appeal request response my barrister noted that the supporting complainant: 'Was shown on the in-house CCTV kissing the defendant during a long after-hours session of drinking at the bar in question’. A PC Brown noted at the time that it seemed like the later complainant had been ‘Caught in the act’ of some kind of indiscretion. Both complainants answered that they ‘Couldn’t remember’ to various questions in cross-examination (on more than a dozen occasions).


The joindering of the two events together to create a tenuous case in place of actual evidence also seems unjust and arbitrary, let alone not playing the defendant’s police interview video in court at all (just having it read out by the prosecution barrister and investigating officer) - but playing the complainants’ videos in full, and always first. If I had known in advance that my own ABE interview – which apparently couldn’t be found - wouldn’t be played, I would never have agreed not to give evidence. Also, if the charges had been tried in timeline order, I believe the ‘propensity’ argument would have evaporated (with the CCTV footage of the supporting complainant clearly kissing me).


A complaints manager at my legal firm found that he ‘could not exclude’ the fact that their legal representative may have talked to me, my parents or my attendant friend about not giving evidence. I signed my legal team’s hastily written waiver, with less than five minutes before court resumption, only after my barrister and the representative had separately persuaded me not to speak. The legal ombudsman’s position on this was that my parents and I ‘should have realised’ that the firm’s agent giving the advice wasn’t a trained solicitor. I consider the trial judge’s opinion that I had seen Seafish as A useful place to attract women’ was untrue and arbitrary, particularly as I hadn’t even spoken in court to adduce this.


The Justice for Men and Boys party have said that it appears to be ‘A clear miscarriage of justice’, and the sentence given unduly harsh. FACT (Falsely Accused Carers and Teachers) wrote ‘Your case is extraordinary … we wish you well and hope you will be able to appeal your case as it clearly deserves’ and pointed out that in their opinion the lurking doubt necessary for reconsideration in their opinion was present in abundance. Diana Davison of The Lighthouse Project (Canada) described it before trial as a clear case of ‘relabelling’.


My past writing work has been removed from the websites of many of the publications for which I have written, presumably because of the conviction, and I was cancelled at a charity speaking event in Brighton, pre-trial. The fourteen months on bail and first year in prison had a very deleterious effect on my stammer, undoing years of therapeutic work. The Equality Advisory Support Service (EASS) said ‘Being ill-advised by [your] legal representative does not represent an equality or human rights matter’. While the legal ombudsman investigated two of my complaints, the Single Judge’s lack of response to my first appeal point couldn’t help but lead me to the conclusion that encouraged or coerced allegations are now permissable in these kinds of trials.


The trial took place right at the height of the original #MeToo/Harvey Weinstein allegations, with its accompanying blanket media coverage - to illustrate the climate of the time. As victim's commissioner Dame Vera Baird has said: Cases that would have been brought two years ago aren’t being brought now’, which would seem to imply a degree of time-sensitivity for cases like mine, dependent upon Ministry of Justice policy. Most legal organisations I approached referred my case onto other organisations, but some, including the National College of Speech and Language Therapists and Disability Rights UK, didn’t even respond to my letters. Charities are apparently prohibited by law from publishing the work of serving prisoners, regardless of their maintaining innocence status. Other organisations won’t publish before an appeal, which won’t be granted without new evidence. This is a terrible Catch-22 pincer-movement for prisoners maintaining innocence.


It has been noted by my original case solicitor, and nearly everyone who has heard about it, that the one charge wouldn’t have been brought without the other. The fact that they are so disparate in context, nature and perceived seriousness to me makes the whole situation feel all the more bizarre. SAFARI reported that a HMCPSI report of January 2020 said that ‘in more than half of the criminal cases looked at, the CPS’s charging advice did not deal properly with unused material; and in only 16% of cases where police performance was sub-standard did prosecutors identify the failing and feed this back at the charging stage’. The best chance I had of being found not guilty in a time of believe the victims’ - my own version of events - was extinguished by counter-intuitive legal advice. The complaints manager at my original legal firm noted that ‘Had your defence been put differently, the outcome may have been acquittal. I do appreciate you consider your conviction to be unjust, and that you will continue to fight it’. The judge instructed the jury not to find based on emotion, but when no evidence is needed to convict and only one side of the emotion is heard, the verdict is almost bound to be adverse.


To summarise, the appeal court single judge wrote that my stammer should have been ‘No obstacle’ to my speaking in court; the legal ombudsman wrote that my family and I ‘Should have known’ that an advising agent of my legal firm wasn’t legally trained; and the investigating police force considered my own complaint to be an ‘Abuse’ of the complaints system. While my legal team and I were responsible for our failings at trial, the whole process showed that the ‘believe the complainants’ policy was also being exploited by some organisations and other parties. The Westminster Commission on Miscarriages of Justice included parts of my account as evidence in their CCRC report of 2019-20.



Appeal points


In all, I have eight appeal points as follows:

  1. Complainant’s boyfriend, whom I barely knew but was applying to join the police, admitted in court to ‘Pushing and pushing and pushing her until she was compliant’ with his reporting the night as per the charges. My barrister noted: 'It was clear that as a result of his encouragement a complaint had been made to the police’.

  2. It was suggested by my barrister in private that I do not give evidence due to my stammer potentially being seen as A sign of guilt’.

  3. A legal representative, whom I understood to be my court solicitor, openly advised my parents and I that I not stand. A complaints manager for my then legal firm later said he ‘Could not exclude’ that she may have spoken to us.

  4. A key witness and tenant who heard ‘laughing and moaning’ on the night in question wasn’t called due to developing an unexplained ‘animus’ against me during my bail time, and I was persuaded not to call him to give evidence. My barrister noted: The noises he was noted to have heard were not compatible with the relevant part of the complainant’s account’.

  5. Supporting complainant said: ‘I do not recognise the person in that video’ as clearly herself kissing me downstairs in the venue, before the kiss upstairs that led to her boyfriend’s allegation. As I understand it this allegation, which originally resulted in an NFA, also came from the boyfriend.

  6. Complainant commented Haha’ on her father’s social media post that evening, celebrating his earlier assault.

  7. Complainants’ jocular text messages to me after leaving the next day were apparently ignored by the jury. What happened between us only became the main allegation when she got home to be confronted with emotionally pressuring boyfriend and parents.

  8. If there were any ‘Lurking doubt’ that I believed consent had been given, then the persuasion by my legal team not to give evidence would seem to have removed it. The coordinated nature of my being encouraged not to speak was I believe a fatal procedural error, leading to an incorrect (non-existent) representation of myself to the jury.



Application to the Criminal Cases Review Commission (CCRC)


The Criminal Cases Review Commission (CCRC) rejected all these points. They said that it was because they had already been considered by the single judge at the Court of Appeal. However, the specific purpose of the CCRC is to examine cases that appear like they might not have received fair treatment at a first trial. The Westminster Commission report into Miscarriages of Justice found that more attention should be paid to 'lurking doubt' cases, and look beyond having new evidence or there having been legal error.


At trial the index complainant stated she had not been a stressed person before this incident, yet she had spoken to friends of anxiety, depression, eating disorders and childhood familial abuse. The CCRC said this was not relevant to the issue of consent, so was not a point of appeal.


It was claimed by some who attended the trial that the jury seemed to be influenced by the hostile atmosphere created by the public gallery. The CCRC said that since there was no complaint made at the time, this was not a point of appeal.


The judge refused to allow my barrister to question the supporting case complainants about their cocaine use on the night of their allegation. The CCRC said this was not relevant to the issue of consent, so was not a point of appeal.


I argued that the punishment was excessive due to the fact that the index complainant seemed fine on social media, and ran to be a local Liberal Democrat councillor a couple of months after the alleged incident. The CCRC disagreed, saying that the judge was correct in his giving a sentence of 8 ½ years of imprisonment.


I raised the point that the conviction and sentence were excessive for a he said/she said case where two adults went to bed together after drinking the same amount of alcohol, and where there was no evidence of force or violence. The CCRC said that because I had only applied to appeal the conviction and not the sentence, this wasn't a point of appeal.



Conclusion


My family, friends and I are saddened by my wrongful conviction, which will have lasting impacts on my future life, some of which I acknowledge I may not yet be aware of. Prior to these experiences I believed that criminal convictions required evidence beyond a reasonable doubt, which is something that I now know to be a myth. Convictions for serious crimes such as rape can be, and are, given on nothing more than the word of an accuser. This should trouble all men who have ever had a drunken one-night stand who are equally vulnerable to false and unfounded accusations and convictions for rapes that never happened.


I am also frustrated that that wherever I turn to redress my wrongful conviction I have been met with resistance and deference to a flawed pre-trial and trial process. I still find it hard to process why I was charged, let alone convicted. The poor advice by my legal team that I believe contributed significantly to my wrongful conviction has no consequence for them as they move onto the next case, possibly another innocent victim of a false allegation who will also receive the same treatment and end up in prison for an alleged crime that did not occur.


But none of this should matter in a criminal justice system that has the so-called safety net of the CCRC. Indeed, the CCRC was supposed to have been set up with the task of correcting the errors and wrongs of criminal trials that can convict innocent victims and imprisonment them for crimes that they didn’t commit or, like in my case, that did not happen. Despite this, the CCRC seem to be unwilling to investigate my claims of innocence to get to the truth or whether I raped the complainant, or it was, as I am saying, was a consensual act that was transformed into an alleged rape by a boyfriend who pressured his girlfriend to make that accusation and then stick with it.


It is from this perspective that I fully support the Empowering the Innocent (ETI) campaign for the CCRC to be reformed or replaced with a body that can truly assist innocent victims of wrongful convictions to overturn their convictions. Until such time as we have such a body with a focus and commitment on getting to the truth of alleged miscarriages of justice, innocent victims will continue to be wrongly convicted and imprisoned and there will remain no effective remedy to assist them/us/me in their/our/my pursuit of justice.


Sean Bw Parker currently serves as the social media coordinator for FASO (False Allegations Support Organisation).


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