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Thursday, 10 April 2014

Causing Offence and Criminal Offences

England's public prosecutor (the Crown Prosecution Service) is currently having a hard time getting any convictions in a string of high-profile cases in which elderly celebrities and not-so-elderly politicians have been indicted for sexual offences. This is a dangerous situation. The temptation will be to fit someone up and get them convicted just to prove that bringing the failed cases was also justified.

Ms Alison Saunders, the new Director of Public Prosecutions, has indicated that she intends to keep going with the fat file of cases she inherited from her predecessor, Keir Starmer. In the case of Dave Lee Travis, the CPS responded to his acquittal on twelve out of fourteen charges by insisting that the two on which the Jury could not agree should be re-tried. In addition, they have found a new case to pin on him. I think many people would have felt that if you have just failed in twelve out of fourteen cases against one person  and got no success on the two others, the decent and sensible thing is to call it a day. Otherwise, it looks like a case of Vexatious Prosecution.

The core problem is that Juries are unwilling to convict in these cases and, in my view, they are unwilling  for three reasons.

First, the alleged offences occurred many years ago - thirty or forty in some cases - and I think it is unclear to everyone except the CPS why it is important to punish someone now for something they might have done that long ago.

Second, there is no Forensic evidence and these cases are entirely about one person's word against another's. Even witnesses coached by the Prosecution have ended up in the witness box confessing that they don't actually remember important details. That is understandable when things happened so long ago, but it is not reassuring when you are being asked to send someone to Jail now.

Third, there is a difference in many people's minds between causing offence and committing a criminal offence. This is a distinction which a politically-correct CPS and its allies in the Anti-Sex League want to blur.

A criminal offence is something which justifies the full Majesty of the Law being brought to bear against someone. They are questioned, arrested, charged, made to wait about a great deal, forced to spend very large sums of money on lawyers, obliged to sit through Court hearings which are often about humiliating them, and eventually - if the Prosecutors get their way - sent to prison. It's not a very nice ordeal and it ought to be reserved for people who in all probability have done some pretty nasty things.

But what we see is people being prosecuted for things which, if they happened,  have caused offence, possibly some distress, but no long-term trauma or damage. The behaviour alleged is often immature, uncouth, aggressive, predatory, tasteless and toe-curlingly inept  - but it ain't the stuff of Criminal Offences that should put you behind bars.

There are cultures where you can indeed have nasty things done to you if you wink at someone, ogle someone, make a pass at someone. Here we think that you must at least touch them for an offence to be committed. But maybe that is still too weak to justify the Police on your doorstep. Maybe that is the kind of thing which should lead to a summons to a mediator's office and, if the facts are not disputed, an apology. But it shouldn't lead to an appearance in front of a bewigged Judge where on-the-make Barristers and police officers seem really to be addressing themselves to the insatiable appetite of the Press for what are called (in a well-established Tradition) Lurid Details.

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