This is a guest post by Milly, who blogs at Beneath The Wig. You can find her on Twitter as @_millymoo. Here she explains the legal limitations to the Court of Appeal’s powers in “Sarah’s case” and details the changes made to the law as a result of the prosecution.
The desperately sad Sarah’s case was in the Court of Appeal today.
Sarah was raped by her husband, and taken by him to massage parlours to provide sexual services for other men, actions which her husband then emotionally abused her about*. Sarah eventually found the courage to make a complaint to the police about her husband, and rape proceedings commenced. He spent sometime on remand, before being released on conditional bail. While on conditional bail, the relationship between Sarah and her husband resumed.
Sarah subsequently withdrew her complaint of rape, and proceedings were then taken against her for making a false complaint. After taking legal advice, Sarah admitted that the retraction was false, and that she had been telling the truth in her original complaint.
On 15th October 2010, the Crown Prosecution Service (CPS) offered no evidence to a charge of perverting the course of justice relating to her making a false complaint of rape. Sarah pleaded guilty however, to a charge of perverting the course of justice by making a false retraction.
Of course, there is a lot of background to the retraction and the retraction of the retraction, which is helpfully set out in today’s judgment, which can be found here.
At the beginning of November 2010, Sarah was sentenced to 8 months imprisonment. On 23rd November 2010, the Court of Appeal reduced that sentence to a non-custodial one. In direct response to this case, Keir Starmer, the Director of Public Prosecutions, changed the CPS guidelines for prosecuting false retractions, putting them in the band of cases that need approval of the DPP to proceed, and acknowledged that Sarah’s case fell into the category where he did not consider justice was done or was seen to be done.
However, the conviction for perverting the course of justice remained. Today’s hearing was the appeal against conviction, which failed.
An appeal against conviction can only succeed if the court is persuaded a conviction is unsafe – a deliberately broad test, but nonetheless, a test which has to be passed. Although Alison Levitt QC, on behalf of the CPS, accepted that under the very guidelines Sarah’s case brought about she would not have been prosecuted, unfortunately she had been, and the Court of Appeal were bound by the fact that not only had she been prosecuted, she pleaded guilty, and therefore there was a conviction that must pass the ‘unsafe’ test for the appeal to succeed.
As may be expected, Sarah’s case was put forward on the basis at the original trial, Sarah ought to have been advised to plead not guilty, on the basis she made the retraction due to duress. Using the remarks of the Court of Appeal made in the appeal against sentence, it was put forward on Sarah’s behalf that she was clearly vulnerable having been subjected to substantial sustained abuse, and that new reports demonstrated she was at all material times suffering from post traumatic stress disorder.
Duress in a legal context bears little relation to the meaning of duress in everyday language – it is not ‘pressure’ as we think of the word in its everyday meaning, but in a legal context, it means pressure of magnitude in extreme circumstances, such as an imminent threat of death or serious injury, which cannot be easily evaded. The court found, while having real sympathy with the pressures that were no doubt placed upon Sarah, that those pressures did not amount to a legal defence of duress, and that no reasonable counsel would advise her that such a defence was available to her at the time of the initial trial.
It was also put forward on Sarah’s behalf that the decision to prosecute her was in itself flawed, and therefore the resulting conviction was. The court went step by step through the process, starting with the police, moving on to Sarah’s legal representatives, and finally, the CPS. In respect of all, the court could find no flaw in the decision making process.
Finally, it was put forward that the conviction was simply unfair. The court rejected that submission, on the basis that when due process had been followed and a conviction determined safe, they had no scope to quash a conviction on such a basis. Overall, they came to the conclusion that there was no basis at all for them to interfere in the conviction, and therefore had no basis to allow the appeal.
Sarah has without doubt or question paid a regrettably high price after making a decision in a very vulnerable state. Her legacy, which undoubtedly she wishes she hadn’t been in a position to create, is that she has also brought about changes that we should all be grateful for.
*All the hearings in Sarah’s case have proceeded on the basis her complaints are true, however, it has to be noted that Sarah’s husband has not been prosecuted for the offences and does deny them.