Saturday, 4 November 2017

The trial of Effie Deans


Imagine if thirty years ago someone had been murdered in Cambridge. Suddenly the police arrive and knock on my door and accuse me of being the murderer. They take me into custody, question me and eventually charge that on the night of November 4th 1987 I did wilfully and with malice aforethought murder one Scott Walters.  What would I say in my defence?

The trial of Effie Deans

I might say that I’m fairly sure I was in Cambridge on that particular night, but I don’t remember anything else about it. All that I can remember is that I didn’t murder anybody. At this point no doubt I would get someone to defend me. What would my lawyer ask?

He would no doubt begin asking the police about their evidence. Do they have any DNA linking me to the crime? No. Do they have any objects, possessions or fibres of clothing linking me to the murder? No. Do they have any witnesses? No. Do they have a confession? No. Do they in fact have any evidence at all? No. Is there a case for me to answer? Obviously not. This we should hope is the same for every crime.

If I am to be accused of grievous bodily harm or burglary or even cheating in my exams there has to be evidence even for a case to be investigated. What’s more in order for me to be put on trial this evidence ought to be such that it can potentially convince beyond a reasonable doubt.

But what if I said that Scott Walters put his hand on my knee or groped my breasts while we were both at the college disco or even that we both got drunk and went to bed without my consenting to this? What then?

Likewise I should be able to provide evidence. Is there any DNA evidence? No. Are there any witnesses? No. Although lots of people were there at the college disco, no-one can remember that particular night in 1987. Is there any other sort of evidence? No. All that there is my testimony that Scott Walters did something awful in 1987.

Should the police investigate? What if Scott Walters says he hardly remembers me? We were at college at the same time, but he can’t even remember what I looked like. Alternatively what if he says that he did indeed sleep with me? He can remember it clearly, but it was consensual.

I might disagree with Scott Walters. I might say he was violent and afterwards I had bruises all over my body because of his assault. The police might then ask me do you have any photographs? No. Are there any witnesses to these bruises? No. Did you tell anyone at the time? No. Are there witnesses to your being distressed? No. Did you go to a doctor or a nurse? No. There is only conflicting testimony and memories that differ.

Under these circumstances is there a case? No. During a trial there is a commonly an accuser and an accused. If people could be relied on always to tell the truth there would be no need for trials at all. Law as we know it would never have developed at all. We would simply ask people to tell the truth and they would do it.

But, because people commonly tell lies we need evidence. If someone says I was assaulted last night we can find witnesses, we can find DNA we can find fibres or whatever, but we just can’t do this thirty years later.

It is for this reason that we ought not to even attempt to investigate let alone try such crimes if they occurred at such a remote time that there is no longer any possibility of finding evidence. It may or may not be the case that a crime occurred on November 4th 1987, but we unfortunately have no means of discovering the truth.

If I reported that my house was burgled thirty years ago, but that I have no witnesses to the crime and no evidence of damage or even that anything was taken, then I’m sorry but there is not going to be any sort of investigation. Whether or not there was a crime, there is just no evidence. It was all repaired or replaced long ago. There is therefore no case to answer.

Something very ugly however is happening at the moment. We are attempting to convict people without evidence, purely on the basis of testimony. In no other form of criminal investigation would this be considered an acceptable method of arriving at the truth. The best way, indeed the only way to arrive at justice is to make each case depend solely on the evidence. When we convict when there is a lack of evidence or even insufficient evidence to overcome a reasonable doubt then we are certain to have miscarriages of justice.

Sexual assault is an emotive subject, but it must be investigated and tried just like any other serious crime. There has to be evidence beyond a reasonable doubt in order for us to be certain that a conviction is justified. If a sexual assault occurs of whatever kind, the person assaulted should report it immediately. This will enable the police to collect evidence, gather statements from any witnesses and look for physical evidence that might still be available. But it cannot possibly be enough that I say he assaulted me, while he says he didn’t. I might be lying or seeking revenge, or trying to extort something. It is human to lie. We are all potential liars.

It cannot also be enough to say I was drunk. No doubt Scott Walters was drunk too. Did I obtain consent from him before sexually assaulting him? Maybe he didn’t want to have sex with me and woke up the next morning regretting it. But like many inhibited British people we had drunken sex. This happens every night on numerous occasions in Britain and between thousands of long term couples. Do we all sexually assault each other because we were all incapable of giving consent? If so we are potentially going to have to turn Britain into one rather large prison. Which of us has never had sex while rather drunk? Go ahead, you throw the first stone.

We live in a permissive society where people meet strangers and immediately have sex with them. This very permissiveness depends on us requiring evidence that sexual assaults have occurred beyond a reasonable doubt. Otherwise who would dare sleep with a stranger? If everyone I sleep with can accuse me of sexual assault based on no more than his testimony, then it would be irrational to sleep with anyone. It could send me to jail for years. This is no longer permissive. It rapidly becomes puritanical even tyrannical.

In order to determine whether a sexual assault has occurred we need the same standards of evidence as any other crime. What are these? We need witnesses, DNA evidence, physical evidence, or confession. We need something objective.

People’s lives and reputations are being ruined because of a simple accusation without any further evidence. Other people are being sent to jail simply because someone said they did something and they cannot prove that they didn’t. We would not allow this situation to exist with regard to any other crime, but somehow we have allowed a situation to develop where the mere accusation of any sort of sexual assault is enough to ruin the life of the one accused. This is unjust. This is dangerous.

I’m sorry but if you were sexually assaulted and there was evidence of it at the time, you ought to have gone to the police. Now that there is no evidence apart from your testimony, there is nothing to investigate. A crime worthy of a long prison sentence may have occurred all those years ago, but whatever evidence there was has long since disappeared. There can be no trial, because there is no evidence. There is no case.

We take as evidence that a serious crime has occurred that people immediately report them. My failure to report a burglary thirty years ago suggests that there may not have been a burglary or that I realised that although there definitely had been a burglary I had no evidence beyond my own testimony that it occurred. But if I didn’t have sufficient evidence thirty years ago, how can I expect to have it now. The fact that lots of people are suddenly accusing others of crimes does not lessen the requirement that I supply objective evidence.   

An ugly witch hunt is happening at the moment. People are being encouraged to make accusations based only on their own testimony without any other tangible evidence. They are described as being brave for doing this. This encourages more and more people to be brave. The mob whips itself up into a frenzy looking for new victims. The mob requires no more evidence than testimony. To accuse is the same as to condemn.

Halloween is past. Let us call off the witch hunt. Rather let the police investigate and if there is sufficient evidence try each case in the courts. But an accusation is not proof of guilt. The assumption of innocence and the requirement to convict only when we are without reasonable doubt is the foundation of the rule of law. The freedom to live our lives without fear of arbitrary arrest depends on it.  Without it we have no justice at all and no way of avoiding miscarriages of justice. Let us be clear. The foundation of the law is evidence. Without it we don’t have law. We have mere arbitrariness and the whim of the police, the caprice of a judge. Evidence is the only thing I have to defend myself with. Without it I have no defence.  But evidence cannot simply be that I remember that you did this to me thirty years ago. It cannot even be you did this to me last night, but I have no further evidence than my assertion. If that is going to be enough to send people to jail, then we will all very quickly fear the law rather than feel protected by it.

We look back upon the courts of the eighteenth century which tried my fictional namesake with horror because their laws were brutal and their punishments worse. But at least there was the rule of law when Effie Deans was tried. If I can be tried today and convicted in an atmosphere of hysteria without any evidence except someone else’s testimony I might wonder whether it might not be better to be locked up in the Heart of Midlothian waiting for my appointment in the Grassmarket.   

9 comments:

  1. Surely testimony can be used as evidence. If I saw Jeanie smith being mugged in Dalkeith high street and can give a statement to the police officer giving a description of the mugger or even a photo on my cellphone that should be enough to enable a conviction. You won’t need any DNA evidence from The scratches Jeanie made on her attacker. The environmental police SEPA don’t operate that way. They will not accept video or audio evidence of a pollution incident but will use that as a need to witness it themselves. If the polluting incident is over then they will not take any action. That is like saying to poor Jeanie that because the police didn’t witness the crime they can’t take any action themselves.

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    1. Police normally would seek all evidence available and it would be up to Fiscal what he/she uses. You might need DNA and you would need statement from Jeanie and accused attacker(if he chooses).

      If Jeanie makes no statement then i doubt trial would even take place...

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  2. Testimony can be used as corroborating evidence, and the strength of the additional evidence is decides if there is sufficient evidence for a conviction. Testimony as sole evidence is simply heresay, as Effie says above.

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  3. Simple question, Effie.
    Assuming Effie Deans is not your real name, are you a man or a woman?

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  4. The problem here is that no one has been "convicted" of anything, or even "charged" (in the legal sense) with anything? Much of what is being thrown around is laughable - that Amber Rudd (who must have been an adult) was having sexual intercourse with a researcher, after she had divorced from the late AA Gill.
    The BBC continues to report that Kelvin Hopkins "who has been suspended by his party after being accused of inappropriate sexual behaviour, has not commented on the claims despite repeated attempts to contact him". This in fact is not true - you can find his statement here https://skwawkbox.org/2017/11/03/excl-kelvin-hopkins-formal-statement/ . As you can see he claims to have tweets from the lady in question thanking him for his time in a way that seems very much at odds with him having sexually assaulted her ("a revolting act".
    The problem is that, starting from Weinstein, the abuse of power, mainly by men, has started to unravel. Such as Hopkins and Fallon - assuming what they say is true - have found themselves swept along in the slipstream of this. The problem it seems to me is what the late Stan Cohen described as "moral panic", which he defined as " "the process of arousing social concern over an issue – usually the work of moral entrepreneurs and the mass media" But Cohen wrote about this in 1971. What you are jumping up and down about just now is not new - mods and rockers, drugs, rise in crime (irrespective of what the stats actually say) etc. The difficulty is that the community will respond to this as if it were true.
    Later work by Goode and Ben-Yehuda shows that moral panics tend to follow a pattern
    Concern – There must be the belief that the behaviour of the group or activity deemed deviant is likely to have a negative effect on society
    Hostility – Hostility toward the group in question increases, and they become "folk devils". A clear division forms between "them" and "us"
    Consensus – Though concern does not have to be nationwide, there must be widespread acceptance that the group in question poses a very real threat to society. It is important at this stage that the "moral entrepreneurs" are vocal and the "folk devils" appear weak and disorganized
    Disproportionality – The action taken is disproportionate to the actual threat posed by the accused group;
    Volatility – Moral panics are highly volatile and tend to disappear as quickly as they appeared because public interest wanes or news reports change to another narrative.
    So if they are right, this one will be wrapping chips in a few weeks, as the media find something else to fixate about (though sex is always a good sell, so it might go on for a bit longer, especially if they can find something really salacious), though leaving the victims bruised, bleeding and without career as they move on.
    So? Well so this. The key actor in this is the media. If moral panics are to become something of history then control needs to be exercised in the media. How difficult is this? Well look at how difficult it was for individuals to seek recompense from NI for breaches of their privacy by hacking their mobile phones? Any attempt to limit the freedom of the media will be greeted with cries of "censorship", or worse. Even attempts to put one's private life off limits will be opposed.
    The difficulty in essence is this, if you are to seek support to limit the media, it is the media which is the key carrier of information and argument. Are they really likely to do themselves down?

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  5. Totally agree I am sick of all this nonsense, in the 60s we could handle sex pests, very little seems serious to me except the accusation of rape. Reputations ruined without proof, millions wasted investigating dead men, accusations which, as you say, cannot possibly be proved sometimes decades later. money left to charity by Jimmy Savile going to alleged victims, again impossible to prove, and I loathed him! sometimes I am glad to be getting old!

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  6. Rolf Harris was convicted on the basis of allegations without supporting evidence at places where there is also no evidence he ever visited. He is currently appealing his convictions. 'Progressive' commentators at the Guardian and BBC have no problem with this, since it reinforces their agenda of instilling a belief in female vulnerability and predatory male power. To them this objective now becomes more important than ensuring justice.

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  7. Have you heard the latest on the Ted Heath investigation?

    Apparently, he's still dead.

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