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If you are facing sexual offence allegations do not hesitate to speak to a specialist sexual offence solicitor in Manchester – early representation from an expert could mean the difference between a conviction and an acquittal. We understand the stress you may be under when facing such charges, however it is crucial you speak to a specialist as soon as possible to ensure your case is handled properly from the early stages, where one small statement could have a detrimental effect.
Our team of highly experienced lawyers are specialists in our field. We handle the most complex sexual offence cases, and often take on high profile cases receiving wide media coverage. Our tenacious solicitors work tirelessly, carefully dissecting evidence to create a robust defence strategy that will ensure you achieve the best possible outcome.
Serious Sexual Offences & Consent
Consent is often central to serious sexual offence investigations. The law provides that a serious sexual offence will not have been committed where a complainant has given consent and the accused had a reasonable belief that the complainant had given their consent or was old enough to give their consent (i.e. aged 16 or over – consent is irrelevant when the complainant is under 13, see more on child sex offences).
Proving or disproving consent can be very difficult. The fundamental principle is that the complainant agreed to the activity by choice and that they had the freedom and capacity to make that choice. Whilst the Sexual Offences Act 2003 provides for scenarios where consent can be presumed or conclusively found to have been lacking, most sexual offence cases fall into territory where subjective accounts, memories and interpretations form the core evidence. This can make achieving a fair and objective outcome a challenging goal for both parties.
Proving a reasonable belief in consent
Where it can be demonstrated that the defendant had a reasonable belief that the complainant consented to the act in question, or that they reasonably believed a child was aged 16 or over, this can be a defence to allegations of criminal behaviour.
Whether a belief in consent is reasonable is determined objectively and according to all the circumstances of the case, including what steps the defendant took to establish that the complainant consented. There is no requirement for the complainant to have communicated their lack of consent to the defendant.
In circumstances where consent is presumed to have been absent, such as where the complainant was asleep or unconscious when the incident is alleged to have taken place, the law assumes that there was also no belief in consent. The added burden to show sufficient evidence to raise an issue about consent or belief in consent can create complex evidential issues for the defence – for instance, where the complainant was intoxicated.
Consent in historic sex offences
Where an allegation is made that rape was committed prior to May 2004, an accused person may be charged under the Sexual Offences Act 1956, which has a different definition of consent. Under that Act, the crime of rape will not be committed if the accused honestly, and subjectively, believed the other party consented. Similarly, where an accusation is made of sexual assault occurring before 2004, a defendant may be charged with indecent assault under the 1956 Act, which is also likely to require an absence of consent in order to establish criminal liability.
A particular difficulty with such historic sex defence cases is the lack of evidence available due to the passage of time. Often it will be the complainant’s word against the defendant’s, with the result that the defendant may find that they have to vigorously lead a defence, despite the presumption of innocence. As specialist sexual offence lawyers in London, we work hard to defend our clients all the way and have often had evidence removed because of the unreliability of the source. A person has a right to a fair trial, which would be compromised if the prosecution’s case was based on recounts of witnesses with faded memories of the events in question or inconsistent statements.
Despite being so central to sexual offence cases, the concept of consent and the rules surrounding it are not well-understood. Gain a better understanding by reading our full explanation.
Defending Allegations of Indecent Assault & Sexual Offences
While criminal justice agencies increasingly hone their techniques for identifying suspects who commit offences online, such as accessing indecent images, and allegations made against those in the public eye or positions of trust continue to draw the attention of the press and public, it can occasionally be overlooked that many individuals alleged of committing a sexual offence have not been previously cautioned or convicted of a sexual crime. As such, it is important to remember that accusations of serious sexual offences do not create impossible situations – there are always options.
What is common to all sexual offence cases is their complexity and fact-specific nature, raising many issues for both the prosecution and defence when it comes to the cogency of legal arguments and evidence. Although individuals are increasingly being targeted by those under pressure to prosecute sexual offences, robust and thought-out representation at all stages, from initial police interview and investigation to criminal proceedings, ensures the rights of those accused are protected.
When defending allegations of indecent assault or other sexual offences, the importance of defence statements and the quality of the production of third party evidence and medical evidence cannot be overstated. They involve a deep engagement of the facts of the case and require forensic investigations into the credibility and reliability of witnesses and the accuracy of the evidence. There are many situations where a case may be terminated early or a defendant discharged because of the force of a properly drafted defence statement. For example, defence statements can highlight:
- the accuracy of allegations, which may be false or exaggerated, either due to false memory or arising out of malice;
- medical evidence, which assists the defendant, admonishing the accused, such as illnesses that affects sexual performance; or
- insufficient evidence as to the identification of the suspect, alleged motive or withholding of consent.
Also, disclosure requests may be made, which result in the production of material held by third parties such as social services, which can often shed a different light on the relationship between the complainant and the defendant. This is especially the case in relation to foster carers.
By raising such issues, defence statements seek to identify points overlooked by the police and prosecution that show that the case is manifestly unfounded and unlikely to result in conviction. Alternatively, an initial charge may be downgraded to a less serious offence.
Witness Statements and Special Measures
Although medical statements, hospital admissions, forensic examinations, independent witness statements and other forms of evidence are often relevant to a sexual offence case, the prosecution’s principal form of evidence is likely to be a witness statement made by the complainant. Such evidence is often decisive to the case against a defendant and demands special attention.
In all sexual offence cases, the complainant is first recorded on video answering questions asked by police. During this interview, police must adhere to the Achieving Best Evidence (ABE) code and not ask questions that are leading or forced-choice or that could otherwise contaminate the interview process and the witness’s account. They are also under a duty to identify evidential inconsistencies or omissions.
Where a case goes to trial, special measures are available in court for those giving evidence who are considered vulnerable or allege sexual misfeasance by the defendant. Such special measures include giving evidence from behind a screen or, sometimes, via video link or in private. Video recorded statements or interviews may also be (and usually are) admissible as evidence-in-chief. Importantly, whether special measures are suitable is decided by the court, which must ask itself whether measures are likely to improve the quality of the evidence given by the witness and in the interests of justice.
Section 28 of the Youth Justice and Criminal Evidence Act
The special measures set out for witnesses in Section 28 of this Act are a prescient example of where provisions made for the complainant may disadvantage the defendant.
Section 28 allows for witnesses in sexual offence cases to present their cross-examination, and any subsequent re-examinations, as video recordings. As the cross-examination must be recorded ahead of the trial, the time defendants have to build a full and proper defence is severely limited. Moreover, if evidence has not been fully disclosed or even is yet to come to light, the material the defence has to rely on is also restricted. These consequences can be significant obstacles to defendants seeking justice.
Read more about Section 28 here, and learn how our forward-thinking defence team can mitigate its effects on your case.
Although the ABE code and special measures have been introduced to support complainants, they can have profound implications for defendants. An element of the right to a fair trial is the requirement that a defendant be given an adequate and proper opportunity to challenge and question a witness, yet special measures may diminish the effectiveness of cross-examination, putting a defendant at a substantial disadvantage. For instance, where a video recorded statement, obtained without following the ABE code, is admissible as evidence-in-chief, it may not be possible for a meaningful cross-examination to take place. It is therefore vital that criminal defence lawyers are aware of these potential issues and minimise, as best they can, the chances of the defendant suffering prejudice.
Unfortunately, the disproportionate protections afforded to witnesses compared to defendants aren’t restricted to those identified above. Those accused of serious sexual offences, such as rape, may wish to be protected from the damaging consequences of false allegations. Yet defendants aren’t offered the same lifelong anonymity provided to complainants of rape and other sexual offences. View our Sexual Offences FAQs.
Contact Our Sexual Offences Defence Lawyers (Yorkshire, London, Birmingham, Manchester)
Our robust defence preparation, attention to detail and professional representation makes us one of the best choices for criminal defence. These key traits are essential to safeguarding the rights of our clients from allegations of criminal activity. We discuss all the available options in order to find and implement the best course of action.
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