'Members of the public must be made aware of the dangers posed by a judicial system that is unfairly set up to ensure a strong chance of conviction, especially as campaigns calling for more changes gain strength.'
You would be mistaken if you thought I was talking about the existence of life on Mars, or whether a UFO crashed in New Mexico, but I am talking about the worrying trend affecting our criminal justice system.
The lack of evidence and balance required to secure a conviction for rape.
This leads me to ask, where is the presumption of innocence and are we sleep walking into weaponizing rape allegations?
Receiving a conviction for rape is, at the very least, life changing. At its worst, it can lead to thoughts of suicide, with too many men completing suicide every year in prison or while on bail.
There is an assumption made by the public that there can be no conviction or trial without evidence, and it is repeatedly reported by the mainstream media that the burden of proof is so high that there are now public calls for it to be lowered.
Couple the public attitude to rape allegations with the policy of the police to “believe” the “victim” and you have a recipe for disaster.
Take the wording of “victim” within the First responder - Rape and Serious sexual assault Policy (for the Metropolitan police). When has it been established that the complainant is in fact a “victim”? Under a section called “Victim care” what concerns a growing number of commentators is the 4th bullet point:
"l Believe the account without judging the victim."
There are more examples of concerning words within the guidance within the document, but I urge readers to make up their own minds.
What does this mean for alleged rape trials?
It is my view that because the police have been trained to treat each complainant as a victim it has created a level of bias that will be difficult to overcome. It taints the process by getting the police to ignore balance and to fall into confirmation bias, seeking out evidence that confirms their belief.
Recently, there have been many cases where the police and CPS even fail to disclose evidence that could exonerate the accused or at least cast doubt on the account of the complainant. The cases we may hear about are only published if it meets the agenda of the reporting paper, and to the lay observer the lack of reports such as this one from the Guardian newspaper, which is 4 years old, would give a false sense that issues such as these are rare or now non-existent. Worse still, if reporting the failings does not meet the agenda of the papers, you won't hear about the failings at all. An example would be this case from a solicitors web page.
The Complainant is no longer asked questions about their actions, and with no statute of limitations in place, an accusation can take place an unlimited number of years after the alleged assault. Why is this important? Because the complainant is given huge grace for inconsistencies within their evidence, which is often put down to the trauma of the event, and looked upon with sympathy. It would be too strong to say that coaching the witness exists, but clever interview techniques can “adjust” a complainant's recollection.
So what about the accused?
If you are in the frame for rape, there are some universal truths I urge everyone to consider. The truth matters not. What can be proven and evidenced is what matters. Uniquely with rape cases, the burden of proof is on the accused.
The lines of questioning you can expect are along the lines of: Prove where you were? What were you doing? When did you do it? What were you thinking? Why would she make this up about you?
You may believe that if you can answer the above questions that you will be clean and clear, but you should be prepared for the next phase, as the police will be working on the assumption that:
"The MPS will accept reports made by any victim in the first instance as being truthful. An offence will only be considered as unsubstantiated after a full and thorough investigation."
Therefore. let's say you were accused of a rape on the Monday, 5th of May 2021, and you can prove that you were out of the country on that date, but you arrived back in the UK days or even months later - the CPS could charge you with a sweeping offence over the year of 2021.
The charge would be: In the year of 2021, you committed rape/sexual assault on named individual.
How can this be defended you may rightly ask? It can’t.
The police should be looking for evidence that corroborates the account of the accused, which would provide balance within the system - but with the CPS being able to widen the scope to almost degree in order to secure a conviction, the police just won't do it, and how much resource would be spent if they did?
Now, there will be people reading this that will say that there is no smoke without fire, why would someone falsely accuse another person? They should be 100% correct, but in this modern world we are supposed to have laws and systems that rise above mob mentality. No one should be convicted of the possibility of smoke, instead the burden should always be to prove a fire exists. When the legal system makes it almost impossible to defend claims, when the prosecutors and police fail to disclose evidence to the defence, and when the system is rigged so far as to almost eradicate questioning the complainant, we have a system that is dangerously susceptible to abuse.
In 2012, a Ministry of Justice study estimated that 3% of 299 rape reports analysed were perceived to be malicious (see the report on “Understanding the progression of serious cases through the Criminal Justice System” here).
The CCRC (Criminal Case Review Commission) is supposed to investigate claims that a conviction is problematic, but as any serving prisoner will tell you, getting the CCRC to hear their case is a mountain to climb, and an almost impossible one. So, despite the government's own estimates of malicious and unsafe prosecutions, the number of people behind the door for crimes they didn't commit will be much much higher.
Imagine a world where you could accuse someone of stealing your TV set. You were not asked tom prove that you owned a TV, what size your TV was, how long ago you bought it, and nobody will check to see if your house was even broken into. Imagine you could get compensation for being the victim of the theft and that the police believed you just because you said it happened.
If you were a manipulative, hurt and callous individual, there would be no reason for you to think twice about making a false statement.
The law is supposed to be blind. As a defendant, you should be granted a chance to defend yourself in a fair and balanced process. A real victim of assault should be treated with respect, but equally understand that safeguards against malicious claims exist and that the defendant is entitled to ask questions.
A short list of rights that have been stripped or being stripped from defendants and how it is reported.
Right to cross examine the complainant: Pre-recorded evidence for rape victims rolled out to more North-West courts - GOV.UK
Right to material beneficial to the defence: https://www.theguardian.com/law/2021/oct/31/courts-are-close-to-collapse-over-police-disclosure-failures
Right to funding for effective defence: Legal aid needs urgent reform to secure fairness of the justice system - Committees - UK Parliament
Right to proportionate and fair sentencing: 5 Things you need to know about joint enterprise - Liberty
Members of the public must be made aware of the dangers posed by a judicial system that is unfairly set up to ensure a strong chance of conviction, especially as campaigns calling for more changes gain strength.
Sadly, the moment someone becomes entangled in the system, it is too late. Like a Venus fly trap, the belief of something sweet (Fair) ends up in the trapped flies' downfall (Prison).
My opinions are my own. I strongly advise people read and form their own opinion on the matters
Evidence, What Evidence?
By S.D.
S.D. is an affiliate of the PPMI (Progressing Prisoners Maintaining Innocence) organisation.
Glossary of terms
MPS - Metropolitan Police Service
CPS - Crown Prosecution Service
CCRC - Criminal Case Review Commission
References