I had been following the case of the January 6th rioters/protesters in the US who had been arrested but held on remand for, in some cases, over seven months in conditions that would not be accepted for convicted criminals. In this case the presumption of innocence seems to have been suspended for purely political reasons. It was with these thoughts in mind that I saw that a conviction for rape had been quashed in the High Court, in the UK, after the discovery of new evidence that was not put before the Jury at the original Trial in 2013. The reason for my interest was that the issue of consent was at the centre of the prosecution’s case which meant that the Jury had to make it’s decision on whose evidence it found more believable. The accuser presented an edited number of posts which supported her claim that there was little contact between her and the accused after sex. The accused, Danny Kay, asked the prosecution to assist in recovering the deleted messages but this wasn’t done and he was sentenced to four and a half years in prison. It was his sister-in-law who discovered the backup files which were the basis for his successful appeal. The Appeal Judge, Mr Justice James Goss said: “We have come to the conclusion that, in a case of one word against another, the full Facebook message exchange provides very cogent evidence both in relation to the truthfulness and reliability of (the woman) … and the reliability of (Mr Kay’s) account and his truthfulness.” (BBC 22/12/20) Mr Kay was released from prison after serving two years of his sentence. Before we get to the question of presumption of innocence I would like to comment on the police and prosecution’s lack of competence in this case. Mr Kay had warned them that the evidence on which they based their case was misleading and edited but with all the technical expertise at their disposal it was the defendants sister-in-law who found the evidence that was so compelling to the Court of Appeal. Mr Kay’s lawyer said, “Danny’s case is slightly unusual because all reasonable lines of inquiry don’t necessarily seem to have been followed,” (BBC 5/1/18). You don’t say!
Derbyshire Police said it has referred its investigation to an independent regional review team to “ensure lessons are learned” and “would welcome the opportunity to discuss the situation with Mr Kay.”
The concept of presumed innocence goes far back into history and has many sources. In it’s widest sense François Quintard-Morénas can see elements of the doctrine as far back as the ancient Babylonian Code of Hammurabi ; the ancient Greeks and Roman Law but he claims that it was the 14th. Century French jurist, Johannes Monachus, who first coined the phrase, “innocent until proved guilty.” This concept has made it into the Universal Declaration of Human Rights, as follows.
The Universal Declaration of Human Rights, article 11, states: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.”
Having served prison time and with his reputation permanently damaged Mr. Kay sought compensation for the unsound verdict. As his lawyer pointed out, “the government had not properly considered how the woman’s manipulation of the messages undermined her credibility and the context of the discussions.” (BBC 01/08/21) As an aside I would have said that his conviction was also partly due to the prosecution not doing it’s job. This was turned down and the reasoning is interesting and I have copied the rationale from the BBC report as follows.
Lady Justice Macur said the retrieved messages “did not explicitly or implicitly discuss the act of sexual intercourse or the issue of consent, nor establish that the nature of the ongoing interaction was inconsistent with an offence of rape”. While noting Mr Kay “has suffered greatly because of his conviction and imprisonment”, she said his case did not meet the requirements for an award to be made. “For compensation to be payable, the newly discovered fact admitted into the appeal proceedings must positively disprove the commission of the offence beyond reasonable doubt, and not merely undermine the safety of the conviction,” she said. BBC 1/08/21
What Lady Justice Macur is saying is that the original case was found to be unsafe because evidence undermining the credibility of the accuser was withheld. In this case the question of whether consent was given was the central issue and it was decided on the basis of who the Jury believed. However, to receive compensation a new and higher bar has to be met. Not only has Mr Kay to prove that the prosecution did not prove it’s case but Mr Kay has to prove his innocence.
If we believe that an accused is innocent until proved guilty we must believe that Mr Kay is innocent. It is for the prosecution to prove his guilt not for him to prove his innocence. The finding of Lady Justice Macur might lead others to say that he only got off on a technicality, the ‘no smoke without fire’ argument. The reality in this case was that the person making the accusation, knowingly doctored evidence and lacked credibility yet, it is Mr Kays name that is in the news. It is Mr Kay who served prison time on the basis of the accusers tainted evidence and the incompetence of the authorities. It is Mr Kay who has to prove his innocence, even though validated by the Court of Appeal, to obtain compensation.
There are principals in law and civilisation that are self evidentially right and fair yet they are constantly under threat, never more so than now. They are being eroded everyday and Mr Kay’s experience is a case in point. He is innocent of the crime of rape but still guilty in Lady Justice Macur’s court room and his good name has suffered by her decision. His accuser doesn’t have these problems as she is protected by law from being identified. I can understand the reasons for this but shouldn’t presumption of innocence mean that he should have the same protection? We could also take the case of Zachary Benn who was held on remand in prison for six months on the charges of rape, sexual assault, blackmail, robbery, and possession of a bladed article. A desperate character indeed but the prosecution offered no evidence when it went for trial. The Recorder observed that it was unsatisfactory for the authorities to enter a plea of nolle prosequi on the date of the trial whilst the defendant was held in prison for six months. According to the Manchester Evening News “the complainant had admitted to telling untruths and further enquiries by the police and fire service had uncovered more untruths.” Even though the claimant held to her story, the police couldn’t support a prosecution. Note the language in the context of this essay. The claimant told “untruths”, otherwise know as lies and,” …it was deemed there was not a realistic chance of a conviction.” rather than, Mr Benn had been falsely accused and he is innocent under the legal concept of presumption of innocence.
The two examples given above relate to accusations of rape where there is no neutral witness or, forensic evidence to support a charge either way. It is not intended to be an assault on the #Me To movement or to be a deterrent to men or women bringing such cases to law. What I am trying to demonstrate is that there is a fundamental principle of law that you expect to be the guiding principle in any case where someone makes an accusation against you or someone you care for.
Mr Kay expressed his shock at the proceedings which led to his imprisonment, “It was devastating for a system that you trust to let you down like that … I had complete faith in it, I trusted that the truth would come out in the trial and it didn’t.” (BBC 05/01/18)
You might take the view that mistakes happen that these cases are rare and it is better for the community to call out the many and suffer a small number of casualties than the other way around. The problem is that these are everyone’s protection and in these days of partisanship you too might find yourself condemned in the court of public opinion and subsequent conviction in a court of law. The Crown Prosecution Service conducted a review of rape cases current in 2018 and found that in 47 cases the prosecution had withheld or, disclosed late, exculpatory evidence which could aid the defence. Perhaps not so few casualties after all. Meanwhile, in the ‘Land of the Free’ at the Senate hearing to approve President Biden’s nomination for the position of Assistant Secretary of Education for Civil Rights, Ms Lhamon was asked whether she had tweeted that enforcing presumption of innocence and due process on college campus’s would result in more sexual abuse? She replied, “I think what I said in the tweet, so, the regulation permits students to rape and sexually harass with impunity.” (Newsmax 4/08/21) Ms Lhamon co authored the ‘Dear Colleague Letter’ which forced over 500 colleges to reduce defendant student rights when accused of discriminatory harassment purportedly forbidden under Title IX. This resulted in over 700 civil actions brought by students who were refused basic constitutional and Human Rights by the college equivalents of the the 17th. century Star Chamber.
As mentioned in my opening paragraph, the erosion of rights are not limited to sexual crimes but to those involved in the January 6th. riots and many other cases. Once basic rights are seen as expendable in one case then infection soon spreads to the extent that the President of the US can issue an executive order that he knows is unconstitutional. Doesn’t the end justify the means? Yes there is always collateral damage but you can’t make an omelette without breaking eggs, can you? Even if you don’t see the inherent unfairness and injustice of this position the expansion of this attack on basic human rights will eventually engulf you and yours.
“It does not feel real to me and I don’t have closure. My life will not be the same again. … When I leave here I will not get my life back.” MEN 21/6/21
The above statement could have been made by any number of victims of crime but it was made by Mr Benn, who had spent six months in prison, falsely accused of rape.
Sources
Rape conviction quashed over new Facebook evidence – BBC News 22/12/20
Danny Kay: Rape conviction man ‘let down’ by system – BBC News 5/01/18
Danny Kay: Man cleared of rape loses High Court compensation bid – BBC News 1/08/21
Kavanaugh, Ford and the History of Being ‘Presumed Innocent’ | Time 5/10/18