Baroque Testimonies: Elaborate Ornamentation and Efforts to Create Dramatic Effects
1. CS Solicitors are regularly instructed to defend those falsely accused of sexual allegations and we observe in passing that sexual allegations seem to us to give rise to many erroneous convictions.
2. We are fully conversant with the capacity of a police interview to elicit worthless accounts from a suggestible or over-committed witness in which inconsistencies and inaccuracies may be disregarded. We are aware of the way that these wanderings can be presented to the Court as sober fact. Likewise, we are alert to the fact that a jury in these cases may confuse the fleeting opportunity to commit a crime with proof beyond doubt that it was committed.
3. We are similarly aware that the jury will be enjoined by the Court (in line with best practice) to give no particular weight to a failure to mention these crimes at or around the time of their commission; and likewise, to be open to the belief that these crimes may occur without giving rise to symptoms of distress.
4. We add that the medical construction of these - whereby there may be no physical sign of trauma - is allied in damaging fashion to the legal construction of these cases, whereby the judge is enjoined to include directions in his summing up to the effect that these offences (although traumatic) may leave no sign of emotional trauma.
5. Similarly, it is routine for a jury to be directed that factual inconsistencies are not of the essence. Little or no evidence of abuse is held to be compatible with heavyweight and protracted abuse. A defendant is obliged to defend himself against the commission of offences that may reasonably be termed ‘phantom’.
6. The net-effect of these and other constructs is to shift for burden of proof from the prosecution to the defendant in the absence of any real means to do so.
7. It is not possible to prove a negative.
8. We are familiar with other cases where common sense suggests on momentary consideration that the alleged offences did not and could not have happened without early detection. This applies particularly to those cases where the complainants aver that the alleged assaults happened ‘all the time’, or, ‘every day’, or, with preternatural frequency.
9. However, once these cases reach the stage of court proceedings, these same unlikelihood’s fall to be considered by a jury on the basis that they may have happened; and, that the professionals believe that they did; and, that sufficient evidence – capable of making the jury sure – will be presented to make the jury sure. This is circular in cases where the only evidence in support is a complainant’s fanciful allegations.
10. The court process vests fanciful allegations with undue dignity. The end of the hearing - where the judge in his Summing Up gives a selective retelling to the jury of the complainant’s baroque testimony – brings the case back to the point where it started: an unprovable tale of woe, put to the jury the basis that they can, after deliberation, consider it proven. The over-arching direction to the jury that they must be ‘sure’ of their verdict may be counter-productive. It may favour the prosecution. It necessarily suggests to the jury that they can be sure on the basis of evidence put before them.
11. A recent development has further tilted the balance against defendant’s in these cases. It was likely to have been present in this case.
12. Protocols are now in place to prevent the vigorous - or, indeed, proper - cross-examination of child-complainants. The defence are not permitted to assert to a young complainant’s face that he or she was lying. It is felt that this may be damaging to children.
13. In our estimation, these protocols are better understood as an erosion of natural justice. Restrictions of this type were in place for this case.
14. It is this context that the question arises of an appeal. This defendant did and must have braced himself for bad news. The hard truth is, if this conviction was a wrong, it is not necessarily a wrong that is capable of remedy. The sentence was on the harsh end of the scale but not considered manifestly excessive.
Shahida Begum, Solicitor,
CS Solicitors, The Beeches, 29 Vineyard Road, Wellington, TF1 1HB