On the misinterpretation of the Sexual Offences (S) Act 2009: HM Adv v Mutebi

Much has been made of the the reform of the law of sexual offences in Scotland. The passing of the Sexual Offences (S) Act 2009 was a historic moment, replacing the common law of sexual offences with a new statutory code. The law was being modernised, replacing outdated and gendered conceptions of rape with a new law that placed the protection of sexual autonomy at its core. And this new focus was to be reflected in a new approach to the concept of consent which aimed at altering the balance of the trial.

If the old law was often criticised for allowing the complainer to be put on trial over whether or not she had consented, the new law sought to address this in two ways. First, it aimed to take the question of consent out of consideration in certain cases (the statutory indicators in s.13): if it was proved that a complainer was incapable because of drugs or alcohol, or that violence had been used and so on, then there could be no consent as a matter of law. Second, if the accused claimed that they had a reasonable belief that the complainer was consenting, then it was necessary for the accused to show whether

whether they took any steps to ascertain whether there was consent ...; and if so, to what those steps were. (s.16)

The point of this was that it was for the accused to show what steps they took, rather than for a complainer to have to show that she did not consent.

Of course the law was not perfect. The drafting of many sections is clumsy, but it seemed that the central purpose was clear enough. The law was duly passed in 2009, not coming into force until nearly a year later, so as to allow police, prosecutors and judiciary to be trained in the implementation of the new law. However, with the publication of the judgement of one of the first cases to reach the Appeal Court there are now grounds for suspecting that the judiciary have failed to grasp the structure of the new law and that this may actually undercut its aims.

The case is HM Adv v Mutebi. I wrote about this rather speculatively at the time of the decision, on the basis of press reports, bu now we can see more clearly how it was argued. The case concerned an appeal against conviction by Mutebi who claimed that woman he had sex with had consented (although she was very drunk) and that when she had regained consciousness during the sexual intercourse and had withdrawn consent, that he had in fact withdrawn and left her flat.

There is already something strange about this in that in a situation where the complainer was clearly so drunk that she could not remember whether she had consented or not to sex with a stranger, who then stole her phone and money when he left her flat, was not treated as falling within the scope of s.13 (the jury apparently having decided that she might have consented and deleting the relevant part of the indictment). The case thus seems to proceed on the basis that it was likely that she would have consented to have sex with a stranger who she met on the street while very drunk, rather than regarding this as something out of the ordinary or improbable.

However, if we leave this aside I am interested here in how the Appeal Court approached the question of the application of the provisions of the 2009 Act. What is bizarre about this is that after setting out the relevant provisions of the Act, the Court then proceeded to argue as though the pre-existing common law was still in force. Thus rather than focusing on the question of her physical state and the steps that Mutebi might have taken to ascertain whether or not she was consenting, the Court discussed the evidence of knowledge or recklessness as mens rea of rape, and whether there was evidence to corroborate this.

It should not need stating, but this is clearly not the new law. The 'mens rea' of the offence is that the accused should penetrate the complainer with his penis "without any reasonable belief that B (the complainer) consents". And the definition of how reasonable belief should be approached is now set out in s.16 (above). This does not remove the need for corroboration, which the court discusses at length, but it should be clear that it reframes the way his should be approached.

It is worrying that the Court should have erred on such a simple matter as the interpretation of the new law; but as I suggested above, this is an even greater concern when it threatens to undermine the whole basis of the new law.

On witnesses and veils

The question of whether or not women wearing veils should be permitted to testify has been rumbling on for some time in Britain. Yesterday we were treated to the views of Ken Clarke, Minister without Portfolio in the Coalition government, and former Justice Secretary and criminal barrister. According to Clarke, a proper trial is impossible if a witness is wearing "a kind of bag". He went on

I think the judge and jury have got to see the face of the witness [to] judge their demeanour and decide for themselves whether they are going to rely on this evidence ... It may be you have to make some special arrangements, it may be they'll have to be some screening from the general public, but I actually think it undermines a trial.

Ken Clarke, in costume

Leaving aside his cultural insensitivity (a kind of bag?), it is worth pausing for a moment on the claim which underlies these views. It is the following: that judges and juries can, if they can see a witnesses face, tell whether or not they are lying. If this is correct, then it would appear that there is some scientific basis for this position, and that the law, backed by science, would be justified in asserting its authority over religious and cultural practices which hindered or obstructed the discovery of truth.

Unfortunately there is little psychological evidence to support these claims. Indeed, studies which have been carried out in this area suggest that professionals (police, immigration officers) are no better at detecting lies than the ordinary person, and that the ordinary person does no better than 50:50. (The suggestion is that poker players may be the best at detecting lies...). There is, of course, a huge amount of folk belief in this area, a lot which can be traced back to ancient superstitions about guilt or unreliability revealing itself through signs: sweating, failure to make contact, nervous tics and so on. These are entertainingly discussed in a famous work by Hugo Munsterberg, one of the pioneers of criminal psychology, called On the Witness Stand (1908). But while claiming the existence of these 'tells', even Munsterberg acknowledged that further psychological research was needed in order to learn properly how to detect them.

In the continuing absence of convincing findings, the claims of lawyers (and politicians) as to the lie detecting powers of judges and juries are no more than folk beliefs. Video or audio evidence is just as likely to produce the same outcomes, and from a scientific perspective there may even be no good reason why we should not rely on written evidence. And whether witnesses given evidence from behind screens or veils, or from a different room should not really have much impact on the ability of the jury to detect whether they are lying or telling the truth.

So what is really going on here. A more plausible way of understanding what is at stake is in terms of confrontation. This is the belief that the trial is at base about bringing the main protagonists together and that the truth will emerge from a series of confrontations: between the accused and their accusers, the lawyer and the witness, between lawyer for the prosecution and defence. This is bolstered by the mythology of the adversarial trial: stories of brilliant barristers breaking down witnesses, of accused persons cracking under sustained cross examination, of the coup de theatre that undermines a key witness. This is the British way of justice, but the audience is less the jury than a broader public who are to be convinced of the reliability of our institutions of justice and those who work in them.

And this is the point: what is really at stake is a clash between the sense of the trial as an event and something which might undermine this. The witness in a veil is seen as undermining this without good reason (though of course there are many excellent reasons for respecting cultural difference). It really has nothing to do with truth, and it would be better for all if this were recognised from the start.