It is understandable that those charged with a serious sexual offence such as sexual assault, historical allegations or rape, will want to ensure that they have the best defence possible – whether resulting in being found not guilty, an acquittal or in obtaining the least possible sentence by highlighting the appropriate mitigating circumstances. This usually involves instructing a solicitor who is vastly experienced and has a track record of successfully advancing and executing a solid defence strategy.
Yet, sometimes, people can be wrongly convicted. There are many and various reasons why a miscarriage of justice may occur, such as the complainant making a false allegation or a misinterpretation of evidence. Unfortunately, it is also sometimes the case that solicitors are instructed that aren’t capable of protecting their client’s best interests. Here we present an example of a not uncommon situation to demonstrate how a sexual offences case should not be defended.
You can read more about some of the issues associated with sexual offences and our approach to criminal defence here.
K was convicted on 19 counts of sexual offences against a family member who was aged under 13 at the time of the alleged incidents. K maintained his innocence, and although many people will think that it is very rare for someone to admit one’s guilt, especially in a matter such as this, it is the case that people are wrongly identified and convicted (be it for sexual offences or offences in general). He instructed us to consider an appeal.
K’s Defence Statement
One of the fundamental cornerstones to a defence is a properly drafted defence statement, the meaning of which some solicitors do not appear to understand, as in K’s case.
A defence statement not only sets out what the person’s defence is, but also gives reasons (when possible) for the lack of opportunity for the offence to have been committed or reasons why it could not have been committed. Further, it gives the defence an opportunity to ask for the disclosure of certain documentation and items (sometimes subject of the leave/permission of the Court) which may help prove the defendant’s case.
Having been charged with 19 sexual offences, K instructed solicitors on a privately paid basis. In a case such as K’s, one would expect a defence statement of some substance, perhaps going into 10s of pages, setting out the background (in this case to the family history), where people were at certain times, who went on holiday with whom, who was at the addresses where the assaults allegedly took place.
Our client’s defence statement, as prepared by his previous solicitors, ran into a page and a half (which included the title of the case, the name of the Court and the case number) and contained very notable omissions. It is singularly the worst defence statement that we have ever seen.
No necessary applications for adducing potentially relevant evidence were made. For example, no one made an application to introduce evidence about the complainant’s past sexual history, called a section 41 application, which one can only do with the permission of the court. Nor did K’s previous solicitors make relevant applications for disclosure by third parties, such as the complainant’s school.
K’s wife had found condoms in the complainant’s bag whilst she was still under the legal age to indulge in sexual intercourse, which were explained away at trial as having been given to her during the course of a biology lesson at school. This apparently was not the case, yet no information was obtained from the school in relation to how condoms were distributed by them.
The Prosecution produced some medical evidence from a doctor who examined the complainant at the time that she made her initial complaint to the police. Yet despite the evidence of the medical expert not being accepted by K, neither his solicitors nor counsel advised him that he could obtain a medical expert’s opinion of his own (not necessarily in relation to the complainant herself, but in relation to generic sexual abuse).
The result was that the only medical evidence led at trial was produced by the Crown, with no medical evidence being produced in support of K’s defence – despite K’s suffering from an erectile dysfunction since before the complainant was born. Further, a peculiarity with K’s penis identified by the complainant wasn’t challenged, despite being relatively common (affecting at least 1 in 3 uncircumcised caucasian males) and easily found out about by way of an internet search.
Neither was a psychiatric report in relation to the complainant sought, nor any past medical records dealing with any psychiatric or psychological assessments of her obtained, be it by way of requests in the defence statement, or at all.
The complainant had a history that included self harm, and regularly associated with other young children who also self harmed, had taken drugs, been sexually abused themselves and, in relation to one young person, had committed suicide. There was also a suggestion that the police had told K’s previous defence solicitors that the complainant had been sexually abused by one of her former boyfriends, yet the solicitors failed to obtain any information in this regard. No information in relation to the possible effects that these matters had upon the mindset of the complainant were therefore brought before the jury, despite their importance.
Unfortunately, the inadequacies of K’s initial representation continued to trial, both in relation to the evidence K’s solicitors decided to lead and how his case was conducted by trial counsel.
Where a wife or partner is supportive of a defendant in a sexual allegations case, we think it is important that they give their evidence. Yet despite having given a statement to the police, K’s wife did not give her evidence at trial, having been advised that it was unwise.
K’s wife had a lot of information to put before the jury. She had information in relation to how the household was ran, and therefore had counter-evidence in relation to timings of events that occurred in her own household. She also had evidence countering that obtained by the Crown as to a caravan holiday where some abuse allegedly took place. But having not being called to give evidence, her absence led the Trial Judge to believe that she had died – when in fact she was sat in the public gallery listening to the trial.
K’s trial counsel had a previous case that ran over into the week when K’s case was due to begin. Rather than seeking a postponement of the hearing, the papers were passed to alternative counsel, who knew nothing of K’s case and did not even arrange a conference with K prior to his first day in court. The damage such a lack of preparation can have was demonstrated in a transcript of the evidence given during the trial, showing that the cross-examination was no more than a Punch and Judy Show.
Although this may appear facetious, it is important in any case, especially sexual offence cases and indeed historic sexual offence cases, that the ‘scene is set’ by trial counsel. Simply saying, “You’re making it up, aren’t you?”, is not going to be sufficient to assist the jury to come to a decision of not guilty.
We are now charged with seeking sufficient evidence to persuade the Court that permission to appeal the conviction should be granted and that there should be a re-trial. However, while obtaining leave to appeal is difficult, obtaining a re-trial is more difficult still – yet, in the meantime, K is a convicted paedophile serving a 17 year prison sentence.
Although the cornerstone of the law in England and Wales is to the effect that a person is innocent until proven guilty, it is still necessary for the defendant to ‘prove’ their defence wherever they can. This includes providing sufficient information to persuade the jury that they cannot be sure of the defendant’s guilt, and reminding them that simply because they think there is a possibility that the defendant could have done it, does not, or at least should not, amount to a guilty verdict.
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