Sabine's claim that she was raped - credit public domain

Rape is most certainly a serious crime. And so is a mistrial or the jugging of the innocent a most serious crime. The little problem we have being that by the societal insistence upon the first we’ve managed to stray into committing that second crime. As even the Crown Prosecution Service is now admitting:

Prosecutors and police have found 47 cases where people were charged with rape or sexual attacks that have been stopped because of problems with evidence not being shared with the defence.

The review followed media revelations about disclosure, which is the duty of the prosecution to share potential evidence with the defence, even if it undermines their case.

The Criminal Bar Association said a wider inquiry was needed after the findings. It follows years of warnings that errors in disclosure could lead to the innocent being jailed and the guilty going free.

Well, yes, there might be some guilty going free as a result of this but that’s not the way the balance is going to be tilted. Refusal to share evidence is going to be slanted against the innocent – or at least those we shouldn’t be finding guilty – they being disadvantaged.

More than 3,600 cases were looked at in England and Wales after high profile rape trials collapsed due to lack of disclosure by prosecutors and police.

They’re getting this wrong in more than 1% of cases. Much too high a failure rate.

Almost 50 court cases, including 14 where the defendant was in custody, were dropped in six weeks because of issues with disclosure, the CPS has revealed.

And that’s just over that 6 weeks.

Our problem here being which is the greater crime? That someone who has suffered a crime not be able to see their attacker jugged? Or that someone innocent does get jugged? The basic and underlying rule of our judicial system is that the second is worse. That’s why we have the varied laws and restrictions that we do. This has bumped into, smashed into perhaps, that societal insistence that rape really must be taken more seriously, more should go down for it.

The task now is to insist that sure, we are taking rape seriously, we are prosecuting where there’s a reasonable chance that the case can be made and proven. But it’s far more important that we don’t dodge those rules to protect the innocent while we do so. Yea, whatever the harpies shriek at us. Heinz Kiosk is wrong, we ain’t all guilty.

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2 COMMENTS

  1. I’m thinking that this is just an aspect of a larger problem. Those who rule are so driven to interfere in people’s lives, much of it in response to pressure from special interest groups, that they’re getting out of hand. Police policing social media. So called “hate crimes” which often consist of passing an opinion not in accordance with the preferred zeitgeist. The amount of offences which it’s now possible to commit without knowing you’ve committed them & to which there’s no defence. The way it’s moving from; what is not illegal is permissible towards; only that specifically allowed may be done. The abandonment of the double-jeopardy principal in law. Many other things that others might care to name.

  2. The issue here is that in most of these rape trials sexual intercourse is not disputed but consent is, and it is her word against his in the absence of forensic evidence or independent witness. Juries then have no evidence upon which to base an objective decision, and so are most likely to return not guilty verdicts.

    The Prosecution case then is built on mostly circumstantial evidence, implication, poor character and in some cases past claims to ‘establish a pattern’ – which in itself is contrary to the British justice system; the accused is on trial for the matter before the Court not what they may have done previously.

    This was the main strategy used in the trials of various OAP celebs accused of decades old crimes of ‘inappropriate touching’, when the Prosecution could present no independent witnesses and/or the ones they had and the alleged victims had dodgy and inconsistent stories, and why most of those trials failed to convict.

    To skew things in their favour, the Prosecution must filter (withhold) the circumstantial evidence to ensure a pejorative impression is given of the character and behaviour of the accused and avoid any detail which might indicate the accuser was in any way complicit, or acting from shame or being vindictive.

    It seems the problem goes beyond the behaviour of the Prosecution, but what is being allowed in Court, not just by judges but also by the Defence who do not challenge this.