We have known that it was coming for some time.  Pronouncements about "having to do something about the problem" have been given prominence by both press and television in recent months.  Now it is confirmed that,

"Ministers [are] today publishing proposals to boost the number of people convicted of rape."

Legislation will no doubt quickly follow, after a brief period of "consultation". The statistics quoted by the Government "proving" the need for new measures, mislead more than inform.[1]  The whole edifice constructed by the Government is built upon sand.  Sooner or later, it must surely fall.

The problem with proposals of this nature is that any opposition or criticism is always presented as being "pro-criminal" or "soft on crime" even though the issue is really one of ensuring that whilst presenting all available, probative evidence before the jury, a defendant still has a fair trial.

At one moment we are being told to be more careful when weighing expert evidence. Indeed, a recent, disturbing piece of research somewhere suggested that experts tended to try to support the case of the party on behalf of whom they were instructed. The next we hear, psychologists are going to called routinely to help us (the jury) understand the "irrational reasons" why we have taken to not believing a complainant and why we should give his or her inconsistent evidence "the benefit of the doubt".  One presumes that the Defence will be allowed to vigorously cross-examine these experts, or even call their own to refute the generalised, inappropriate or even silly opinions professed.

We are told,

" The proportion of rape allegations which lead to someone being punished has sunk to an all-time low, despite long-running Government efforts to boost results."

Juries are not so stupid as the Government wants to believe.  It is a myth that juries are institutionally biased against rape victims. Juries will continue to acquit defendants so long as there is any doubt in their minds as to the strength of the Crown's case.  If they perceive the law is being twisted to secure a conviction for instance, by way of psychologists seeking to persuade them that if they are minded not to believe the complainant, that judgment on their part is perverse, they will not be cowed.  Juries will continue to do the right thing, no matter how hard the Government tries to load the trial system against the defendant.[2]

Mark Stephen’s article in The Times last week that was commented upon by me here, has provoked responses from the claimant in the libel proceedings, Mike Keith-Smith and a Times reader Kristen Roy, which were published in The Times today.

I republish their correspondence here: -

"Sir,

 

As the successful claimant in Keith-Smith v Williams, I strongly object to Mark Stephens’s assertion that the decision by Judge Alistair MacDuff, QC, marks “a dark day for freedom of speech” (news comment, Mar 22).

 

Since when did the right to free speech imply the right of an anonymous malefactor to engage in a long-term campaign of vile and obscene abuse against an innocent individual? This disgusting conduct is not “the democratisation of knowledge”. A far better analogy would lie with the facility, common in Nazi Germany and other totalitarian dictatorships, for malicious individuals to bear false witness against their neighbours from behind a cloak of secrecy.

 

If I have made a stand that in any way assists in the plight of other victims of internet abuse – and I know that they are legion – then I am very proud to have done so."

 

Mark Keith-Smith

and,

"Sir,

 

The High Court ruling in the case of Keith-Smith v Williams demonstrates the application of common sense to legal treatment of speech over the internet.

 

The internet is a technologically unprecedented medium and certainly presents conceptual difficulties for the law where jurisdictional questions arise. However, there is little justification for creating a new set of libel laws for the World Wide Web or, rather, taking them away altogether. A libellous allegation remains exactly that, whether read from a paper in hand or on a screen before the eyes.

 

Are people really so adept at distinguishing “ranters” on the internet from those making viable claims? Should we be? And, if we are, then why are we deemed unable to make these distinctions when the claim appears in hard copy?

 

The characteristic of the internet which sets it apart from others is quite simply its potential for dissemination at mind-boggling speeds, in mind-boggling volumes. The internet is a legitimate mode of communication and to place it in a legal vacuum undermines the very real place it now occupies in today’s society."

 

Kristen Roy

Let me start by saying that I do not think the opinions they profess are either misguided or wrong.  I just do not agree.  I have a different perspective.

Mr Keith-Smith has a political persona to protect.  The palpably false insults made by his nemesis, an obviously malicious woman, could have been used by unscrupulous opponents who were willing to smear his good name behind the scenes, though I am unconvinced of the likely success of this tactic on the part of such miscreants.

As I have already said in my earlier post on the subject, the danger of litigating against small time "slanderers" is that the legal action publishes the libel to a larger audience that will contain even more people who will believe, irrationally, that the falsehoods are true, because for one reason or another they need to believe they are true.

In some cases (though clearly not in the instant case) a libel action is used as a gagging device to suppress a truth (Liberace, Jeffrey Archer.) This is not lost on the public. Thus very often, only the most popular litigants of uncontroversial occupations or pursuits truly escape unscathed.  So often, even successful libel actions do not have the desired result.

I fear this victory is likely to give succour to those who wish to silence critics on the net.  Bloggers have a limited audience and their shelf life is relatively short.  A blogger or owner of a website who is clearly bitter and twisted about something will lose an audience fast and nothing they say will carry any weight, anyway. We are not discussing mass audience newspapers or television media whose utterances have far more weight (and thereby cause more damage) because they try to verify their facts and have lawyers to ensure that so far as is possible, there is not any overstepping of the mark. Only a handful of blogs have a very large audience and the reason for their popularity is that they are amongst other things, interesting, authoritative in their chosen subject and in the main avoid gratuitous offence.

It is the possibility of gagging actions that most bloggers could not hope to afford to defend, which bothers me.  Pitfalls for the claimants, do not.  If they wish to risk doing a Gillian Taylforth, then so be it.

The Court of Appeal's decision in the Shabina Begum case was disturbing for a number of reasons and happily the House of Lords has reversed it. I suspect that Boris Johnson echoes the thoughts of many of us when expressing his opinions on the matter in his article in The Daily Telegraph, today.

Of course, as a lawyer involved in criminal defence work from time to time, I should be expected to be biased in favour of the English legal system.  I do happen to think that it is sound and works relatively successfully, notwithstanding HM Government’s numerous attempts to sabotage it.  Other legal systems work as well though differently, but in my opinion, none can be described as being better.  Unlike our illustrious Home Secretary, at least I have considerable experience of the English legal system.  I have also more than a nodding acquaintance with other legal systems.  Accordingly, I think I am entitled to say that I am able to make an informed judgment about the relative merit of our own system.  It is true that I am not convinced by the efficacy of an inquisitorial system because I believe that our adversarial tradition is better at eliciting the truth.  I prefer our Common Law over the Roman Law systems of continental Europe but these beliefs on my part would not lead me inexorably to the conclusion that Johnny Foreigner’s system is inferior.

In his lecture to the Commons Home Affairs Select Committee yesterday, Charles Clarke glibly pronounced upon the inferiority of the English legal system as compared to that of the French. In the light of recent events, it is hard to resist the suspicion that Mr Clarke’s sudden conversion to the charms of the French criminal justice system is generated more by a malevolent petulance arising from his inability to convince either Parliament or the Public of the wisdom of New Labour inspired “reforms” supported by his department, in the face of vociferous but principled, learned criticism.  I do not have any confidence that Mr Clarke understands any of the issues involved concerning the subject matter of his current outburst.  I am left with an irresistible impression that he is a man who knows very little and understands even less.  If my assessment is right, that makes him very dangerous.

Politicos are masters at one particular manoeuvre.  When faced with an irresistible argument that they cannot answer, they create an argument they think they can defeat and then attribute that argument to their opponents.

It is depressing to see that this tactic is already gaining momentum amongst those who wish to smother the “English votes on English-only matters” issue.  It was to be expected that the overwhelmingly pro-New Labour media would help to obfuscate the issues but it is even more depressing to see individuals who acknowledge the iniquity of the present situation, accept the argument of those who wish to preserve the current status quo.

We have already suffered Lord Falconer’s attempt to present those wishing the West Lothian Anomaly to be dealt with as pressing for an English Parliament (for which, he correctly pointed out, there is not great support.)[1]  He was unsuccessful not only because he tried to pull his “fast one” whilst being interviewed by John Humphrys, but also because too many bloggers are on his case.

Now we have Peter Riddell in an article in The Times, today:

“The stumbling block to all solutions (that is to say, English votes on English-only matters) is the relative size of England, which has more than four fifths of the UK’s population and of the total number of MPs.  Creating a separate English parliament would risk undermining the Union…”

Well, there they go again…

I should have realised that that was coming when earlier in the article he commented,

“'English votes on English laws' has an appealing ring.  Now that the Scots and Welsh have devolution, it only seems fair that English MPs alone should be able to vote on Bills affecting just England….The more you look at the idea, the more flawed it looks.”

Being extremely slow-witted, I did not see the fallacy of the argument until I read further about “stumbling blocks”.  The argument presupposes that the answer to the West Lothian Anomaly is a parliament for England but of course, that is not necessarily so.  It is for that reason that I could not see the “flaws” in the justice of English votes on English laws.

It is becoming clear that once we have been manoeuvred onto ground of their choosing, we shall then be bombarded with “facts” which mitigate against the creation of the English parliament we so crave.  For instance, we are told that the Scottish Centre for Social Research shows that, while a majority agree that Scottish MPs should not vote on English laws, there is no appetite for an English parliament or for English regional devolution.  The point is that a majority agree that Scottish MPs should not vote.  That is our argument and it is why the issue must be resolved.  That “there is no appetite for an English parliament…” is the red herring.  Once the issue has been raised in the English public’s mind, the Scottish Centre for Social Research might discover a seismic change in opinion, but as I have said, that is not what the current argument is about.

Other, equally fatuous arguments are rolled out, such as “the technical problems of identifying English only laws…” and “…creating a separate English parliament would risk undermining the union…”  Well, I’ll repeat myself for clarity. We are not demanding an English parliament as the answer to the Anomaly.  However, even if we were, “technical problems” and “undermining of the Union” have come about because of Scottish and Welsh devolution not because of calls for the resolution of the Anomaly.

Finally, we have the sop of there being a case for reducing the number of Scottish and Welsh MPs.  The Scots and Welsh are over-represented in the Commons but that is another issue, not directly related to the Anomaly. Even one Scottish or Welsh MP voting for an English only law is one too many.

The pro-Anomaly politicos should be assured of one thing.  No matter how effective they are in stifling the debate or spinning the argument, if the English electorate believe that England is not receiving a fair deal, they will reap the whirlwind.

[1] At the moment.

I have made my views plain already concerning successive Governments seeking to rig the trial process to ensure more convictions.

I had heard of the Government's proposed advertising campaign to warn men against indulging in sexual intercourse with inebriated females because it would be treated as rape if the partner complained later of there not having been any real consent.  My immediate reaction was to think, "yes, very sensible, but what about advice to young females to avoid drinking too much alcohol in the first place?"

I learn now that the Government is minded to amend the Sexual Offences Act 2003 so that an inebriated female is deemed to be incapable of consenting to sexual intercourse.  New Labour's feminist agenda will skew the law heavily against the defendant, if such an amendment is enacted.  It is a matter of fairness, pure and simple.  Whether or not there was consent is an important issue that should be left to the jury to decide.

If the Government thinks that amending the law in this fashion will result in more men being convicted of rape, it is wrong.  Unless the Crown is allowed to rely on some strict formula by which the young lady in question is deemed to have been "drunk" and thereby did not consent,[1] juries, trying to be fair and "do justice" to the case, will continue to make findings of fact that enable them to acquit defendants against whom they feel the prosecution case (in all other respects) had not been proved.[2]

I have yet to read the High Court decision involving Professor Sir Roy Meadows and his successful appeal against the decision of the General Medical Council to strike him off the Register, but in due course, I shall.  All I shall say for now is that the effect of the judgment has, rightly or wrongly, disturbed me.  For the time being, I can do no better than to refer to the article in The Times by Camilla Cavendish, which echoes my concerns.