Wednesday, May 10, 2006

Some Good News

A number of years ago, when the rise in rape allegations and fall in convictions came to prominence, word went round about the unluckiest man in London.

He'd been accused of rape by five different women from different parts of London, none of whom were known to each other, and acquitted each time. Why on earth this should happen to him, he just couldn't understand.

They nailed him in the end - despite his plea of "Why does this keep happening to me, it is so unfair".


UPDATE - Squander Two vehemently disagrees. I'm not generally in favour of such evidence being used either - but rape is an offence which often comes down to one word against another. I'm not Julie Bindel, but it is a special case crime. If all the five women were friends, that would be different - but the allegations by five separate women seem to be stretching coincidence too far and are IMHO pertinent. There is no doubt that this should very much be the exception rather than the rule.

I'm more concerned by the fact that Richard Benson QC, having unsuccessfully defended Edwards in two previous rape cases, was happy to procure acquittals for himn in the next five.

But today Mr Benson, 54, a QC for five years, rejected suggestions that he should have considered standing down when the pattern of the allegations against Edwards was clear. "I am not Edwards's judge, the jury are," he said, pointing to the "cab rank" principle that a barrister should accept the briefs which come round. "In each case I looked at the evidence together with those who assisted me and I advised him accordingly."

Asked if he had ever considered whether he might have been ethically compromised by his knowledge of Edwards, Mr Benson replied: "I would not have defended him if I had thought that was the case ... I am happy, of course, with the decisions I have taken. Every man charged with an offence is entitled to proper legal representation. If the system was otherwise there would be a risk of serious injustice."


Mr Benson must be as unlucky as Mr Edwards - that the same rapist should by chance have him as his QC in seven consecutive prosecutions - plus of course the one which finally nailed his client.

This isn't the only similar (though not identical) case.

Even as Alison was swearing to tell "the truth, the whole truth and nothing but the truth", she knew it was a lie. What she was about to tell the jury of 10 women and one man was anything but the whole truth.
Her former gynaecologist was standing trial for raping her. But what the jury didn't know was that the apparently caring and upstanding professional man they saw in the dock was being brought to Preston crown court in a prison van every morning from Strangeways jail in Manchester. Also, the man respectfully addressed by counsel as "Dr Darwish" was in reality no longer a doctor. He had been struck off by the General Medical Council and was serving a six-year prison sentence for sexually assaulting nine other patients.

Alison had more reason than most alleged rape victims to want to see justice done. Her family's life had been turned upside down by the discovery that her youngest daughter, then 12, had been fathered by Darwish Darwish and not by Jim, her husband of more than 30 years. Alison told her daughter that she had been conceived as a result of rape and says it was one of the most difficult things she had ever had to do.

But the family was to feel let down badly again, this time by the legal system. Although a DNA test proved that Darwish was Karen's father, the jury acquitted him of rape. It was only after they delivered their verdict that they learned that he had been found guilty two years before of nine other indecent assaults and acquitted of one rape. All the assaults happened under hypnosis, when patients were undergoing "relaxation therapy" suggested by Darwish for sexual problems.

35 comments:

DumbJon said...

Another classic case of Liberal cognitive dissonance as well:

Judge Leonard Gerber , who told Edwards he should serve seven years before parole is considered, said: "In my view, it should be a very long time before they release you."

Long relative to what ? Dog years ?

JuliaM said...

Hmm. If the prosecution in this last case had better evidence than the others, I'd be happy to see this guy go away for a long stretch (a lot more than seven years, for sure...).

If, on the other hand, they didn't (and why bring the other cases up if they did?) then I'm not so sanguine about the result.

It strikes me as very 'un British' to introduce this type of 'evidence' just to sway the jury. Yes, I know - we've all seen cases collapse & the defendant's other convictions then displayed in the papers, but I really feel uncomfortable with this type of case.

Basically, anything that encourages the CPS not to have to try too hard to make a case is not a good idea......

Squander Two said...

It's worse than that: the jury weren't told about his previous convictions, but about his previous acquittals. So we now have a legal system wherein the more often you're found not guilty, the further that goes to show that you must be guilty.

Why on Earth you think this is good news, Laban, is beyond me.

Stephen said...

OK: you're right that the parol evidence rule, sometimes called the similar facts evidence rule, prevents the prosecution from leading an argument along the lines of "well, he's done it before, he probably did it this time too". But there are exceptions to the rule. The main one is that similar fact evidence is allowed if it would be germane to an issue before the jury, and the judge feels that a gross miscarriage may result if it is not heard by them. So if the prosecution can show that they are not saying "bang him up because he's a bad 'un", but are saying "he says he's an innocent guy who is just a victim of a woman who changed her mind. The thing is, this isn't the first time it happened: he claimed that the last five times he was on trial", then that is a fact that the jury might want to know, and puts a different light on his version of events. One is reminded of the adage "to lose one wife is tragic, two or three starts to look like carelessness".

And this is why, despite the fact that he was previously acquitted, the evidence of his previous testimony helped to convict him here: it's precisely because the prosecution wasn't saying "he's a bad 'un because we got him before" that the evidence was allowed.

Stephen said...

In both the Makin case and the R v Smith case, in fact, which established the similar facts rule, evidence was allowed which tended to show that the defendant's explanation was unlikely. In Makin the defendants were accused of the murder of one of their foster children. Evidence of the corpses of twelve other fostered infants being found buried in the gardens of premises occupied by the defendants tended to show that the current death was not accidental. In R v Smith the defendant's wife had drowned in her bath, shortly after marrying the defendant: he stood to gain financially from her death. He claimed it was an accident. The prosecution was allowed to lead evidence that his two previous wives had also drowned in the bath shortly after marriage, leaving him financially better off. This meant the accident explanation was unlikely.

JuliaM said...

"it's precisely because the prosecution wasn't saying "he's a bad 'un because we got him before" that the evidence was allowed. "

So, saying 'He's a bad 'un because we DIDN'T get him before' is better?

Nope, this is still wrong - it's merely a legal way of saying to the jury "Ooh, no smoke without fire, nudge, nudge, wink, wink.."

"One is reminded of the adage "to lose one wife is tragic, two or three starts to look like carelessness"."

One is also reminded of the (equally fallacious) so-called 'Meadow's Law' that led to the wrongful conviction of Angela Canning, Trupti Patel, et al. Want to claim THAT as a wonder of modern British justice...?

JuliaM said...

And before anyone tries to paint me as a hippy-dippy peace at all costs liberal, I'd be only too happy to personally apply a large pair of seceter..secutuer...scissors(!) to the anatomy of the 'gentleman' in this case.......IF the prosecution proved it's case by means other than this. Like,say, real evidence.

Nothing is gained by allowing the CPS to work less hard (if they actually could...) at securing a conviction, and this is a very slippery slope. Like Squander Two, I'm surprised at seeing it held up as a 'good' case on this blog.

Anonymous said...

To be falsely accused of rape once or even perhaps twice sounds possible. To be accused five times and to be onto number six seems to be pushing the laws of probability a little too far. It seems right that the law can bring this into the equation in some way.

JuliaM said...

"To be accused five times and to be onto number six seems to be pushing the laws of probability a little too far"

I agree. No question there. He probably did it. I'm simply questioning the methods by which the courts 'proved' he did it.

I'd rather be tried by EVIDENCE than by the law of probability, or what the prosecutor thought was 'something fishy'....

Anonymous said...

Well, if Edwards was innocent in fact, he's certainly guilty of being a bloody idiot. A normal person, after the second or third time that his hobby of "getting strange women into cars and having sex with them" has dragged him through the courts would prot the connection and modify his behaviour.

Anonymous said...

juliam:

The fact that he has been accused of rape in very similar circumstances a number of tmes by women who are mutual strangers is EVIDENCE.

All the laws of probability tell you is how to incorporate that evidence into your overall degree of belief in his guilt.

Snafu said...

I also struggle with the use of acquittals as evidence of guilt!

Will the Police start rounding up the usual suspects every time there are a number of rapes and accuse all of them each time? On the basis of this trial, they are bound to get convictions if enough accusations are made!

Whatever happened to the presumption of innocence!?!

Anonymous said...

Most rape cases never make it to court, either through lack of evidence or through some falseness of the allegation. For a case to actually go to court in the first place seems to imply the CPS and police really thought there was something in it and this has happened 6 times to the same bloke! Guilty as sin I would say - still thats not really what we are arguing about though is it.

JuliaM said...

"The fact that he has been accused of rape in very similar circumstances a number of tmes by women who are mutual strangers is EVIDENCE."

Please....tell me you aren't a barrister, or otherwise connected with law enforcement!

It's nothing of the sort..... And the situation that Snafu outlines above is EXACTLY what this policy will eventually lead to. It surprises me that more people can't seem to see this.

Stephen said...

Hi Juliam,

I'm thinking that what you mean by EVIDENCE is some kind of "smoking gun" evidence: the fact is that in most cases, evidence is oral evidence, and especially in rape cases, it usually comes down to whose story you believe, the defendant or the victim. (There can be no "hard" evidence when the defendant admits sex, but claims consent: DNA etc doesn't help there.) I know it feels like CPS is pulling a fast one, but this is a long-standing rule of evidence: the Makin case was decided in 1894.

dearieme said...

"I'd rather be tried by EVIDENCE than by the law of probability": but you are tried on probabilities; surely that's what 'beyond reasonable doubt' refers to? Anyway, if we are to stick with jury trials, I think it's logical to trust the jury to be given the guy's record.

JuliaM said...

"in rape cases, it usually comes down to whose story you believe, the defendant or the victim"

Exactly - on previous occasions, the jury believed the defendant. Perhaps, they would have believed the defendant this time, too, if the prosecution hadn't introduced the other cases as 'evidence' and muddied the waters. This merely encourages the CPS not to have to try too hard if there is something in the defendant's past that they can use instead.

There's a saying that 'Hard cases make bad law' for a reason. Look, I'm sure this case was chosen because the defendant was unsympathetic and rape is a case that most people have unthinking, instinctive reactions to.

But consider how it may be used in the future......

Squander Two said...

> I know it feels like CPS is pulling a fast one, but this is a long-standing rule of evidence: the Makin case was decided in 1894.

No, this is a new thing. Previous cases have involved evidence, not accusations. There is a world of difference between previous suspicious corpses turning up and previous unverifiable claims. The defense "But those corpses aren't real" is nonsense; the defense "But those claims are false" is entirely reasonable. To try to paint this is a mere continuation of existing precedent is exceedingly unrealistic.


Yes, Laban, rape is a special case of crimwe, but, as Stephen is pointing out, the CPS have no intention of limiting this precedent to rape cases.

The thing about a law liek this is that it only works if it has the element of surprise. For this case, and for the next two or three, rapists will be assuming that their previous acquittals are immaterial, and their lawyers will be advising them as such. Once people catch on, it ceases to work -- they'll use different defenses in different trials specifically to stop this happening. On the other side of the equation, it would never have occurred to someone to frame an innocent man with sod all evidence before now, but the CPS have just sent a message that that is now very doable. You don't need to fake evidence to frame someone, you just need to arrange for them to be accused multiple times.


> the jury acquitted him of rape. It was only after they delivered their verdict that they learned that he had been found guilty two years before of nine other indecent assaults and acquitted of one rape.

> I think it's logical to trust the jury to be given the guy's record.

The problem isn't the jury; the problem is the police and the CPS. If the court case is considered completely in isolation, then yes, admitting previous convictions might be OK. But it's not isolated. People think that this sort of case means that previous convictions -- and previous acquittals, now -- will be admitted as well as all the other evidence. But they won't: they'll be admitted instead of the other evidence, because the people collecting that evidence are only human. In some cases, that'll lead to innocent men being convicted. In a lot of cases, it'll lead to guilty men not even being arrested because they have no criminal record and there's a guy in the vicinity who does.

We could have a whole new category of crime: raping women who live next-door to known rapists. Easy, convenient, and no danger of arrest, let alone prosecution.

Stephen said...

>No, this is a new thing. Previous cases have involved evidence, not accusations. There is a world of difference between previous suspicious corpses turning up and previous unverifiable claims. The defense "But those corpses aren't real" is nonsense; the defense "But those claims are false" is entirely reasonable. To try to paint this is a mere continuation of existing precedent is exceedingly unrealistic.

It's only unrealistic if you are stuck on an artificial distinction between "hard" evidence and oral evidence. In a court there is no such distinction. And it's not the "unverifiable claims" that are being brought as evidence: it's the fact that the defendant has previously been tried five times for the same offence, with very similar evidence being led against him by five completely separate complainants.

In Makin, it was never proven that the corpses of the children had been killed by the Makins; their defence team would not have argued that they were not real, just that there was no connection with their clients. In R v Smith, the defence was not that the previous wives hadn't drowned; it was that their drowning was an accident, something that was reasonable in an isolated case, but became unreasonable as part of a pattern. In exactly the same way, the defendant's argument in this case was, as you say, entirely reasonable in isolation. It's only when you hear that the same situation has arisen on six previous occasions that you come to realise it's not, in fact, reasonable.

Juliam, the jury probably would have believed him again, this time, if the CPS hadn't drawn its attention to the pattern. That's not "muddying the water"; it's bringing a fact (the pattern) to their attention that very much has bearing on an issue before them (the plausibility of the defendant's denials). It's a subtle distinction, but I feel a valid one.

JuliaM said...

"the jury probably would have believed him again, this time, if the CPS hadn't drawn its attention to the pattern"

Then the CPS & police should concentrate on doing their jobs properly, and securing evidence, or not proceeding to trial.

Sorry if that sounds harsh, but I would prefer a fair trial to ythis kid of case. Good lord, if this was happening in Burkina Faso or Afganistan, the usual suspects would be rending their garments over 'rough justice'...

If the prosecution can't get a conviction on the evidence before them, then it's better that the trial doesn't proceed than that this sort of thing is allowed to happen. Because, as has already been pointed out, it will be used again, and again, and for other purposes.

The next person may not be a despised accused rapist.....

Stephen said...

Then the CPS & police should concentrate on doing their jobs properly, and securing evidence, or not proceeding to trial.

But that's precisely my point: the similar-facts evidence is evidence, and they did do their jobs. Evidence doesn't always come in a little bag! Especially not in rape cases. In this case the crucial bit of evidence was that this has happened many, many times before, and it's crucial because it proves that the defendant's argument (that there was consent) is unlikely beyond a reasonable doubt. That is evidence. This was a sound conviction. Going on about "rough justice" does not constitute an argument. As Laban's addition to the post shows, the courts go to absurd lengths to exclude any hint that a defendant has previous convictions. The departure in this case from that bedrock of our law was carefully considered and in entire accordance with settled case law.

JuliaM said...

"In this case the crucial bit of evidence was that this has happened many, many times before"

"This has happened before"? 'This' being rape?

No - 'this' being accusations of rape. Can you really not see the difference?

I'm sorry that you think this is evidence, that this case was conducted properly & in accordance with law, sorrier than you can know. I really, really, hope you never find yourself hoist by this petard that you are waving so happily.

But this was a bad case, bad for the defendant and bad for society.

I hope it is overturned. Not because I think the defendant is innocent, but because I think he did not get a fair trial.

Anonymous said...

"We could have a whole new category of crime: raping women who live next-door to known rapists"

Not really. DNA evidence.

This guy claimed consent every time. You would have to be remarkably unlucky to have so many different women claiming rape.

Stephen said...

No - 'this' being accusations of rape. Can you really not see the difference?


Neither "rape" nor "accusations of rape": rather, something quite a bit stronger than a mere accusation. Five separate women, strangers to each other, each come forward with stories of encounters with the defendant that are (a) believable enough for CPS to decide to expend the resources of the State on a trial and (b) remarkably similar. This is not a case of blithe, one-line accusations that the prosecution uses to sully the reputation of the defendant in the eyes of the jury. This is evidence of a pattern of behaviour, independently corroborated by a number of witnesses. The fact that their own trials failed to secure convictions does not erase their evidence. In fact, the existence of this exception to the similar facts rule is there precisely because of defendants who exploit the "reasonable in isolation" defence.

I'm sorry that you think this is evidence, that this case was conducted properly & in accordance with law, sorrier than you can know.

I'm sorry that you can't see that this case was conducted properly in accordance with settled case law. Perhaps it's the way it has been reported, as a striking new development. In fact the principle goes back more than a hundred years. The fact that it is newsworthy ought, I suppose, to be reassuring: in reality similar-fact evidence is almost never allowed, due to the harm done to the presumption of innocence. There are very, very few cases where it can be safely done. This, I'm convinced, was one of them.

You said yourself that you feel he is guilty; you base your unease on the feeling that he didn't get a fair trial. It's almost like you want the criminal justice system to fail, to prove its fairness! After he beat the system five times, it's still not fair he finally got caught! I'm happy that for once, at least, the system worked. A fair trial doesn't mean one where "he got off on a technicality", it means one conducted in accordance with the law. And the judge applied well-settled case law.

A good case.

Anonymous said...

Right now, there are people in Britain who've been in hiding for years because they are likely to be lynched for Satanically abusing children. In all such cases, the defendants were accused separately by many different independent individuals, the police felt it was worth investigating, and, in some cases, the CPS felt it was worth investing in a trial. Every case turned out to be mass hysteria. To this day, not one iota of evidence of a single case of Satanic child abuse has been found. Yet the accused are still in hiding, at risk of their lives.

Stephen, you're economically right-wing. How many people, independently of each other, without knowing of each other's existence, have accused you of Nazism?

JuliaM said...

"It's almost like you want the criminal justice system to fail.."

Good grief! I want it to work, fairly, not be prone to this kind of hysteria & innuendo in order to get a conviction at all costs!

"he beat the system five times"

He did not 'beat the system' - the system went to court, the accused & the prosecution had their day in court, and five juries decided in his favour. That is not 'beating the system' - that is the system in action as it should be. You sound like a whiny child - 'it's not fair, we should have won, I want another go'. And if you can't win fairly, you want to change the rules?

Anonymous above - very good point. Still, all those accusations, eh? Must be something in it... Perhaps the CPS will be looking to open these cases too now they've established that it'll work!

Squander Two said...

That anonymous was me, by the way. Was using my phone, and it wouldn't let me log in.

Stephen said...

He did not 'beat the system' - the system went to court, the accused & the prosecution had their day in court, and five juries decided in his favour. That is not 'beating the system' - that is the system in action as it should be. You sound like a whiny child - 'it's not fair, we should have won, I want another go'. And if you can't win fairly, you want to change the rules?

He did beat the system. The pattern shows that he was guilty, and that the previous cases were wrongly decided. As a result, more women were subject to rape.

Name-calling seldom helps your argument. But it does seem to me that it is you who is crying "It's not fair!", as if criminal justice is some form of game, and it would be unsporting to catch out the defendant, just because he didn't know of the existence of the rule.

I don't want to change the rules, you apparently do. You want a 100+ year-old-rule, recently reaffirmed by the House of Lords, overturned because... I'm a bit unclear on this. It's more important to have a system which accords with your sense of fair play than one which works to convict criminals? Would that be it?

Squander, I am aware of the political nature of some prosecutions, and that there are always crimes which CPS feel under particular pressure to obtain a result on, but I don't think that's an argument against this or that particular legal rule.

JuliaM said...

"The pattern shows that he was guilty.."

Oh well, let's forget trials then. Just recruit Stephen...he knows who is guilty and who isn't!

"it does seem to me that it is you who is crying "It's not fair!"

Not just me....

And the point that this case does not match closely the original 100+ case has been made by those others.

Unity said...

As interesting as this discussion is, can't help but feel that a somewhat more important point is being missed.

It's difficult to assess this fully without knowing the full parameter of the original case - although I'm assuming that it was a classic consent case in which physical evidence was absent or offered no illuminating facts, and therefore matters rested entirely on which of the two contending accounts the jury were inclined to believe to be the truth.

In which case, it would seem to me that the primary legal issue here is not so much the admissibility of evidence as to the defendant's past encounters with the law or the principle of being innocent until proven guilty but whether, by admitting this evidence, the court lowered the bar on the standard of proof required to secure a conviction from 'beyond reasonable doubt' to one of a 'balance of probabilities' - which does rather appear to be the case here.

This would depend very much on whether the evidence as to previous cases, including acquittals, served to establish a particular 'signature' or modus operandi, which characterised his previous attacks, given that two were proven - which I would guess would be the purpose here - but also whether that signature was sufficiently distinctive in character to identify an attack as the defendants handiwork.

If there is no particular signature or what is established is so generric that it could be applicable to any number of offenders, then it would seem that this case does lower the bar on the standard of proof to an uncomfortable extent, which calls in question whether the basis of the conviction is sound.

If, on the other hand, there is a discernable signature which can be clearly linked to the individual in question and is sufficiently unique that it would be unreasonable to expect it to appear in other cases, then the conviction is likely to be sound, even the means by which it was obtained was rather unorthodox.

Stephen said...

"The pattern shows that he was guilty.."

Oh well, let's forget trials then. Just recruit Stephen...he knows who is guilty and who isn't!


So now you do say he is innocent?

Anyway, straw man; the pattern I am referring to was developed in the course of the trials, so obviously I do not advocate abolishing trials.

JuliaM said...

"So now you do say he is innocent?"

Please quote the part of any of my posts that allow you to draw that conclusion....

DumbJon said...

I feel a lot better about this case in the abstract than when I think of this precedent being used by CPS.

In a case like this, a classic she said-he said, it all boils down to credibility. The fact have a number of women have independently accused a man of rape is relevant. Hell hath no fury like a woman scorned, but six vindictive ex-girlfriends seems like a lot.

The key phrase, of course, is independent. Consider how the police dealt with accusations of child abuse in care homes, for example placing ads in local papers encouraging people to come forward (and with the prospect of scoring some 'compo' always implicit). As long as this sort of thing goes on, then there's always the possiblity of the government cobbling together a 'Frankenstein's case' from a whole pile of weak cases.

JuliaM said...

"I feel a lot better about this case in the abstract than when I think of this precedent being used by CPS."

Exactly! This is my concern too.

And, I suspect that this is why this case has been used as a 'testing the waters' case - because the accused is unsympathetic, and rape produces unthinking, knee jerk reactions in a lot of people. There will be a lot of people who read this story & think (as Laban obviously did) 'Good! He had it coming!'

But once it's been established to work in this case, we are off to the races, as far as the CPS are concerned....

Stephen said...

There may be something in what you say about CPS: certainly your view is shared by a criminal barrister I met over the weekend (yes, I know that's a tautology, ha ha). And certainly we have little reason to trust CPS will do the right thing. But I still don't think this case is a precedent of any sort; I think it fits in with the case law, and whether you think it was a sympathy-inducing case or not, I don't believe it was wrongly decided. In any event, for it to be convenient precedence, you would need to suppose collusion between the trial judge and the CPS, which I grant is possible, but not likely.

The final reason why I don't think it is precedent, convenient or not, is because the new act gives CPS much greater powers anyway: they can apply to adduce evidence of the accused's "bad character", for example, which was something you could never do by way of the exception to the similar-facts rule. (My barrister acqaintance has already been involved in a case where CPS made such an application: it was denied, but mainly, it seemed, because they did not make it in good time.)