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Monday Message 31.10.16

Chairman’s Update: 
Francis FitzGibbon QC


Rape Laws:
The fall-out from the Ched Evans case continues. Forty labour MPs have written to Jeremy Wright demanding a review of Section 41 of the Youth Justice & Criminal Evidence Act 1999, to restrict still further the admissibility of evidence of complainants’ previous sexual history. The premise of their demand is unfortunately, plain wrong – that “the verdict and events in this case sets a dangerous precedent that how a victim of rape, usually a woman, has behaved in the past can be taken as evidence of the way she behaved at the time of the alleged rape” – unfortunate because a jury’s verdict just doesn’t create a legal precedent, and the Court of Appeal made no new law in their decision, either – they found that on the highly unusual facts of Evan’s cases there was justification for the exceptional course, taken under Section 41, of permitting cross-examination about apparently non-coincidental similar past actions by the complainant. “Events” don’t set a legal precedent.
No one wants the victims of sexual offences to be deterred from going to the police and to Court, and there can be no doubt that the law and the police, prosecutors and Courts have become much better at dealing with them over the years. The CBA deprecates any action that discourages them from coming forward, but the trial process requires a balance of the rights and interests of complainants as against those of the people complained about. Criminal justice is not a one-way street.
In a separate move, this amendment has been proposed to the Policing & Crime Bill, which would make rape complainants (and many others) anonymous:
Victims and witnesses of serious crime: disclosure:
(1) A police force or police officer may not disclose the identity of a victim or witness of a serious sexual or violent offence to the person accused of the offence, if it is reasonable to assume that such a disclosure would put the victim or witness at risk of further harm.
(2) In determining whether disclosure is reasonable for the purposes of subsection (1), a police force or police officer must take into account the—
(a) previous convictions,
(b) mental health, and
(c) access to new technology or social media, of the person accused of the offence.
(3) This section applies whether or not the person accused of the offence has been charged with the offence.
The Bill could fill a whole Monday Message (and probably will when it becomes law). It contains a multitude of changes to delight us with. While this amendment is still pending, however, I merely pass it on without further comment.
The CBA welcomes the Justice Committee’s report on youths in the criminal justice system. The MPs recognise that young people have special needs that often go unrecognised– not least, the fact that the brains of teenagers and young adults are continuing to develop, with consequential effects on their understanding and behaviour. (This was one the key elements in the intervention by Just For Kids Law in the Jogee appeal: teenagers in gang fights are likely to be less able to read the minds of others in order to foresee what they might intend  – not because they are thick, but because the physical development of their brains often makes such reasoning extremely difficult.) It would be heartening if law and policy makers paid more attention to neuroscientists.
The CBA continues to campaign for better treatment of youths, and has formed a group of lawyers and others to contribute to its improvement.
The Court of Appeal is due to hand down its judgments on 12 post-Jogee appeals today. Too late for this Message, but to be covered next week.
Book Review: Blackstone 2017:
The expert authors, led by Professor Ormerod, are a heavyweight team – like the book, which weighs in at 3.6 backache-inducing kilos. I bought it for the electronic version, which is not available on its own. The decision by the Senior Judiciary to make Blackstone the standard reference work in the Crown Court persuaded me to forsake Archbold for it, after nearly 30 years of happy marriage. I’m sorry to say it’s a disappointment: not because of the content, which is comprehensive and clear. The problem is the limited functionality of the e-book. It was not straightforward to download onto the laptop or the Ipad, and took several emails and a phone call to the (most helpful) OUP helpdesk. Once downloaded, the e-book lacks all but the basic aids and navigation devices. None of the Tables (Cases – 155 pages: Table of Statutes – 55 pages) is subdivided alphabetically, so searching takes longer than it should. References to cases, statutes, SIs and other primary material in the text and in the Tables do not come with hyperlinks, so they have to be looked up somewhere else, which makes the exercise cumbersome and time-consuming. This is a serious failing: if I’m writing an Advice or a Skeleton Argument to a deadline (as usual), I don’t want to waste time faffing with other websites.  You can bookmark and label points of interest, but that’s all you can do. The search function does not list or tabulate the results or tell you where they come in the text. The feel of it is old-fashioned and unfriendly, for an e-book: as if they’ve just reproduced the print version online, and left it at that. I may chalk it up as an expensive fling, and if she’ll have me back, I’ll go home to Archbold.
Forthcoming Events: 
The Criminal Appeal Lawyers’ Association conference, on 12 November, features Professor Ormerod and Lord Toulson – who was a member of the Supreme Court that heard the Jogee appeal. Details here. Should be fascinating.

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