Appeal fails for woman who retracted rape allegations

[TheSteveMilliband]

Guardian article here
This seems really shocking though I guess may be other factors involved that aren't reported. It seems to completely ignore the dynamic of an abusive relationship . Would be really interested in comments of people who know much more about the legal process than me.

[PastGrace]

I saw this the other day - I feel so sorry for her because I'm sure she must have been very scared and in a horrible position. I'm not very comfortable talking about the legal process because, as you pointed out, I'm sure there are aspects that haven't been reported (and it may well still be ongoing if she appeals), but personally when I read it I thought it sounded very much like it was a ham-fisted way of trying to encourage women to follow through with prosecutions - I'm not sure this is the right way to go about it though.

[TheSteveMilliband]

I didn't think of it like that, but perhaps you're right about trying to get women to follow through. Encouragement might be more effective though and can imagine this will just discourage women from pressing charges. Seems very unjust that her partner gets off with no sentence (given comments that the abuse was not in doubt) and she is left with a criminal record.
Wonder if she will appeal - I hope so.

[hellodave]

Its horrible! But its part of a continuing process. The Impact on her must be horrific and perhaps highlights the differences between the law system and human factors.

My understanding (please someone correct me if im wrong) is that the court of appeal is there to decide if the conviction itself is safe/unsafe not to decide if the law is wrong. the court system is very heirachical. so if the law says doing (a) is illegal and some someone is found guilty of (a) then (b) must happen. then the way i understand it is that the court of a appeal can only decide if (a) did in fact happen and that the previous judge didnt make some miscarriage of justice that didnt fit the given description. For (a) to be changed i think it needs to go to the next level.

so if the offence is simply that she withdrew herself in way that she stated that something didnt happen when in fact it did and in the circumstances it was found that that completed the offence of perverting the course of justice then she would be gulity of the offence....however wrong it is.

If i stole food to feed my starving children then it would still be theft but there may be a defence in that i would believe that the owner of the food would consent if they knew my children were starving. defences similar to that exist because over time people have challenged the courts and won, but they have had to go through the process.

its a horrible thing and assuming that the circumstances are as reported then hats off to her and fingers crossed the case will help to further the assistance to domestic violence victims!

[TheSteveMilliband]

hellodave - I thought it may be down to the legal technicalities / framework rather than an old school judge, though did they have to press charges in the first place? I suppose it also doesn't seem right that the judge didn't count the years of abuse as "admissible evidence of duress", and took a very black and white view of threats of physical violence should she pursue the case. Perhaps he couldn't, but in a DV relationship it's not always overt threats of "I'll hurt you if you do that", more years of intimidation. Hope this results in changes to prevent it happening again, and that as you say she goes through the process and has the strength to do so. Thanks both of you for throwing a bit more light on it all

[hellodave]

steve fully agree with what you say Re DV.

yes charges would have to have been pressed in the first place.

Re duress as a defence. it would have to be considered (on the evidence presented) that the level of threat substantiated the action by the defendant(in this case victim) its always difficult to separate what evidence the court actually have, as we dont actually know, and what is reported in the papers. the judge may well know that an individual is a horrible piece of work but if all the evidence presented shows them to be thoroughly lovely then the judge/jury dont have a lot of choice.

the difficulty comes when the police gather the evidence in DV cases that last over many years it would require the police to be consistently capable of gathering any evidence that may be applicable in any possible number of scenarios years ahead of time based on offences/defences that do or dont actually exist yet. it is possible but it does take the police time to learn best practices, and then more importantly get it right!!!

[niceguy2]

The key statement which jumped out at me is: "Sarah's conviction was upheld, said the court on Tuesday, because there was no admissible evidence of duress,"

So basically whilst everyone probably knows exactly what the score is, courts have to follow the evidence presented and there is none. Therefore their hands are tied.

To me this is a clear case of where the police/CPS should have used some discretion and common sense. Where is the greater good in jailing this woman?

[teejwood]

agree with you all here this story is so distressing and in this case, the law/CPS is an ass.
he forced her to work as a prostitute, ffs - how downtrodden and beaten down do you have to be to accept that, meaning that surely your threshold for duress would be considerably lower than someone who hadn't had to put up with such abuse??
i really hope she has the courage to fight this and am horrified this abusive, controlling man has custody of their children.

[blackoutthesun]

can't believe it

it was only yesterday i'm made a comment about the uk not jailing rape victims.

[hellodave]

Because nice guy they probably couldnt..i dont know the case at all. but there is every possibility that who ever charged or investigated felt very similar to how most people would feel reading the news article.

I also suspect that due to the fact that this is a DV case and therefore contains someone very vulnerable the police, CPS and courts would have very strict legally binding guidelines that would have to be followed, completely removing any power of discretion.

for example for most offences there is no specific power of arrest, there is a general power which means that on each an every occasion the officer has to justify why That arrest was necessary. However by local guidelines rather than law, officers are required to justify why the didnt arrest in DV cases where a power to do so existed. The reason for this is to remove the ability of discretion, officers getting it wrong and someone being seriously assaulted or worse. if you turn up, dont arrest (or take other positive action) and then offender goes onto murder etc victim when you had been directed to do so then not only are you morally responsible for that persons death then you are likely to be legally as well. i suspect most people would not chose to use their discretion in that scenario and follow set protocols.

there are, unfortunately, many violent relationships (where both parties are violent and abusive towards each other) and there fewer but still far too many where one is completely subjugated by the other. i may be wrong but often feel that the current law is built around preventing the violence from the former kind and woefully inadequate at dealing with the issues around the later. it appears relatively straight forward to write a law and direction about how to deal with two violent and abusive individuals. but where you have circumstances that arise out of individual relationships i.e a person is put under duress in a specific manner and they react in a further specific manner it must be nearly impossible to write a law that acts as a catch all for all the possible circumstances. Those issues can only be changed by case law...such as the one that's going through above.


perhaps victims, which in most cases are women, should have more of a voice in writting these laws in the first place. a law has to be hard to change to stop corruption which is why it needs to be a case of get it right first time. its horrible and disgusting that a victim has to be dragged through the process to make these changes. is there another way though?

[niceguy2]

Hi Dave. Thanks for the informative post. I can see what you are getting at. If they rocked up and not charged the guy and he later beat her to a pulp/murdered her then you can argue the police are negligent.

However in this case she was the victim not the perpetrator, so charging her makes no sense.

I guess her mistake was to admit to the police that her retraction was false. Maybe that tied their hands as you suggest. i'm not sure.

But justice certainly hasn't been done here.

[TheSteveMilliband]

bit.ly/10MrRq9
Glad to see some examination is going on as to how/why this happened

[TheSteveMilliband]

...try again www.cps.gov.uk/publications/research/perverting_course_of_justice_march_2013.pdf

[TheSteveMilliband]

www.cps.gov.uk/publications/research/perverting_course_of_justice_march_2013.pdf

[TheSteveMilliband]

www.cps.gov.uk/publications/research/perverting_course_of_justice_march_2013.pdf

[NiceTabard]

This is a zombie thread.