Absurd injustice

Author
Discussion

Martin4x4

Original Poster:

6,506 posts

131 months

Friday 22nd August 2014
quotequote all
Perhaps some of the resident lawyers could explain/justify this decision, which appears to be an absurd injustice for the victim.

Rape trial collapses as accused James Grant fakes letter from alleged victim


anonymous-user

53 months

Friday 22nd August 2014
quotequote all
Which decision?

The abandonment of the first trial? The sentencing? The decision not to go through with a second trial?












Red Devil

13,055 posts

207 months

Friday 22nd August 2014
quotequote all
Why is it an injustice? Unfortunately the victim has chosen to withdraw her complaint.
Under those circumstances what do you expect the CPS to do?

TooMany2cvs

29,008 posts

125 months

Friday 22nd August 2014
quotequote all
Red Devil said:
Unfortunately the victim has chosen to withdraw her complaint.
THIS is the important bit.

The CPS can't prosecute without the alleged victim on the stand to say "Yes, he raped me". Innocent until PROVEN guilty, and beyond reasonable doubt, remember?

Martin4x4

Original Poster:

6,506 posts

131 months

Friday 22nd August 2014
quotequote all
La Liga said:
Which decision?

The abandonment of the first trial? The sentencing? The decision not to go through with a second trial?
The whole thing is a farce, but specifically why abandoned the trial in the first place, it just opens the flood gates to flood gates to defendends sending fake letters and get off with a light sentence.

paranoid airbag

2,679 posts

158 months

Saturday 23rd August 2014
quotequote all
TooMany2cvs said:
Red Devil said:
Unfortunately the victim has chosen to withdraw her complaint.
THIS is the important bit.

The CPS can't prosecute without the alleged victim on the stand to say "Yes, he raped me". Innocent until PROVEN guilty, and beyond reasonable doubt, remember?
Entirely true.

Nevertheless it illustrates a fairly absurd failing in law, a reverse trial by ordeal. What's the point in such an elaborate legal system that can't deal with this sort of thing?

anonymous-user

53 months

Saturday 23rd August 2014
quotequote all
Martin4x4 said:
The whole thing is a farce, but specifically why abandoned the trial in the first place
We've not seen the letter or the details details or why it was abandoned. If you were being tried and a significant new piece of evidence emerged in which you and your defence counsel had not seen, you'd want the same.

Martin4x4 said:
it just opens the flood gates to flood gates to defendends sending fake letters and get off with a light sentence.
I'm not sure how keen people will be to obtain 3 x PCOJ convictions and ride their luck that the complainant doesn't want to go to trail with the original offence, somehow.

You realise what he's been sentenced for has nothing to do with the rape allegation, right? And that it wasn't in replacement of it?

He could have found himself with these convictions and subsequent custodial sentence, and a rape conviction and further time in prison had the complainant followed through with her complaint for the second trial.

I do agree the 18 months strikes me as a little too short (not necessarily from a sentencing guideline point of view, but from a moral one).

paranoid airbag said:
TooMany2cvs said:
Red Devil said:
Unfortunately the victim has chosen to withdraw her complaint.
THIS is the important bit.

The CPS can't prosecute without the alleged victim on the stand to say "Yes, he raped me". Innocent until PROVEN guilty, and beyond reasonable doubt, remember?
Entirely true.
Not entirely. If the evidence were there they could prosecute in the absence of a complainant. This occurs in domestic matters on some occasions.

paranoid airbag said:
Nevertheless it illustrates a fairly absurd failing in law, a reverse trial by ordeal. What's the point in such an elaborate legal system that can't deal with this sort of thing?
How do you mean?

Chrisgr31

13,440 posts

254 months

Saturday 23rd August 2014
quotequote all
Well the issue here is plain and simple to see in my opinion. By having a fake letter written the alleged rapist has got off that charge albeit found himself guilty of other charges.

In the ideal world the punishment he should have faced for PCOJ should have been the same he would have faced had he been found guilty of rape, as that would make committing PCOJ to avoid a rape trail a waste of time. However thats not an option the judge had.

The rules will never be written to cover all eventualities unfortunately but maybe the punishments for PCOJ need to be altered.


turbobloke

103,741 posts

259 months

Saturday 23rd August 2014
quotequote all
Chrisgr31 said:
Well the issue here is plain and simple to see in my opinion. By having a fake letter written the alleged rapist has got off that charge albeit found himself guilty of other charges.

In the ideal world the punishment he should have faced for PCOJ should have been the same he would have faced had he been found guilty of rape, as that would make committing PCOJ to avoid a rape trail a waste of time. However thats not an option the judge had.

The rules will never be written to cover all eventualities unfortunately but maybe the punishments for PCOJ need to be altered.
If the point is to match sentencing somehow, it would be very difficult to do since in the Chris Huhne PCOJ case he would have ended up with a £60 fine and 3 points, which would have been absurd since the trial was about a different offence. This issue seemed to vex a lot of people in the Chris Huhne thread.

anonymous-user

53 months

Saturday 23rd August 2014
quotequote all
The sentence here for the PCOJ offence seems light.

As to the aborted trial, I infer that what probably happened was: the bogus letter was produced, it then became apparent that it was bogus, and the jury knew of this. That knowledge could have prejudiced them against the defendant, and taken their eyes off the ball in relation to the rape charge evidence, so the trial had to be abandoned. The complainant did not wish to go through a further trial.

The outcome is unsatisfactory, but it is hard to see what other course could have been taken. Sadly, no system of justice can ever achieve perfect justice, and any system is susceptible to being gamed. It is perhaps unlikely that the defendant planned all along for the letter to be exposed as a fake and so to achieve this outcome. He probably just sought dishonestly to bolster his defence (whether he was guilty or not - stupid people sometimes try to embellish the facts even when the facts are in their favour).

CYMR0

3,940 posts

199 months

Saturday 23rd August 2014
quotequote all
Chrisgr31 said:
In the ideal world the punishment he should have faced for PCOJ should have been the same he would have faced had he been found guilty of rape
The maximum sentence for PCOJ is life for that very reason.

I also think that, in the absence of mitigating factors (like there was compelling evidence of actual innocence that had been excluded from the original trial) the sentence is staggeringly light.

I am not one of the 'hang 'em high' brigade but given the apparently wilful disregard of the process, actual victimisation of someone who had apparently been victimised previously and the substantial personal gain involved as a result of the offence, 18 months is far too short.

anonymous-user

53 months

Saturday 23rd August 2014
quotequote all
I agree.

tenpenceshort

32,880 posts

216 months

Saturday 23rd August 2014
quotequote all
Without knowing more than the article tells us, it's difficult to know how unjust the result is.

18 months might seem light, however it should be borne in mind the offence is purely trying to influence a witness/complainant and, without a fresh trial on the original charges, we shouldn't infer he was guilty of those.

Having been on the end of a complainant who "couldn't face" a retrial when I had just seen her run ragged by her own counsel at the first one, in the face of her lies, I am perhaps more open minded than some as to what the explanation may or may not mean; whilst it may be genuine, it can also be a catch-all to mask other reasons.

Of course, the complainant can be compelled to attend, however in a case where they are the main witness and other evidence is noticeable by its absence, it seems an exercise in futility if they are intent on avoiding giving damning evidence.

I can't really see what more the CPS could do if their accuser was no longer willing to partake.

photosnob

1,339 posts

117 months

Saturday 23rd August 2014
quotequote all
There is more to this than is being told I reckon. Seems to me that the judge is sending a message with that sentence. Whilst the lad is a plonker for sending the letter, if the judge thought he was guilty or it was as simple as it seems then I'm pretty sure his sentence would have been a fair bit harsher.

agtlaw

6,680 posts

205 months

Saturday 23rd August 2014
quotequote all
tenpenceshort said:
Of course, the complainant can be compelled to attend, however in a case where they are the main witness and other evidence is noticeable by its absence, it seems an exercise in futility if they are intent on avoiding giving damning evidence.

I can't really see what more the CPS could do if their accuser was no longer willing to partake.
Fall back position is to rely (or at least try to) on the hearsay provisions - to introduce into evidence V's statement(s). Also, medical evidence, verbal statements to police officers, etc.

A point often missed or simply misunderstood (see Red Devil's post, for example) is that the complainant is a witness in the trial, rather than the prosecuting authority. The complainant does not determine if there is a retrial.

Zeeky

2,779 posts

211 months

Saturday 23rd August 2014
quotequote all
CYMR0 said:
Chrisgr31 said:
In the ideal world the punishment he should have faced for PCOJ should have been the same he would have faced had he been found guilty of rape
The maximum sentence for PCOJ is life for that very reason.
As the law requires the sentence not to be seen as punishment for the original offence that has certainly not been the case for a long time, if ever.

18 months (assuming guilty plea) doesn't appear to be, relatively, lenient.

http://www.cps.gov.uk/legal/s_to_u/sentencing_manu...


SamHH

5,050 posts

215 months

Sunday 24th August 2014
quotequote all
agtlaw said:
A point often missed or simply misunderstood (see Red Devil's post, for example) is that the complainant is a witness in the trial, rather than the prosecuting authority. The complainant does not determine if there is a retrial.
When people talk about "pressing charges", does this just mean that the complainant has indicated that, if called on to testify in court, they will make the same allegations as they have made to the police? In other words, they've indicated that the prosecution is worth pursuing?

Or is there a formal requirement that a complainant must press charges in order for a prosecution to be done?

anonymous-user

53 months

Sunday 24th August 2014
quotequote all
If the victim always had to "press charges", then no murder could be prosecuted. The police decide whether to charge, and the CPS decide whether to prosecute. In some rare cases, the Attorney General has to make the decision. Of course, in practice these decisions may be heavily dependent on the willingness of the victim of the offence to provide evidence.

TooMany2cvs

29,008 posts

125 months

Sunday 24th August 2014
quotequote all
When it's a he-said-she-said case, there is no case without she saying.

Did sex actually happen?
Was it consensual?
Only two people present at the time...

SamHH

5,050 posts

215 months

Sunday 24th August 2014
quotequote all
Breadvan72 said:
If the victim always had to "press charges", then no murder could be prosecuted. The police decide whether to charge, and the CPS decide whether to prosecute. In some rare cases, the Attorney General has to make the decision. Of course, in practice these decisions may be heavily dependent on the willingness of the victim of the offence to provide evidence.
Thanks