Disclosure of Evidence in Criminal Cases – time to restore fairness in the criminal justice system
Much of the recent focus has been on the injustices arising from failures in the prosecution’s disclosure process, and whilst the process was far from perfect, this was not the central issue in Oritsé Williams’ case. Two separate concerns arose which have yet to attract the same level of public support and political scrutiny: the prosecution of weak cases and the lack of anonymity for defendants accused of sexual offences.
As with the vast majority of rape investigations, it was apparent from the outset that the issue in this case was consent. In such cases, the credibility of the complainant’s account is often the basis upon which the prosecution case stands or falls. The obvious inconsistencies between the complainant’s account and the objective evidence available to the police should have led them to question the strength of their case at an early stage. We made forceful submissions that this case did not pass the evidential threshold and that there was no realistic prospect of Mr Williams being convicted.
The #MeToo movement and its associated groundswell of support for victims of sexual violence and abuse have done much to highlight past failures to listen to complainants and provide them with appropriate support. However, we are now in danger of moving to a position where investigators are unquestioningly believing complainants and putting the cart of victimhood before the horse of investigation. Ultimately, it does victims an injustice and rocks confidence in our legal system if cases which have no realistic prospect of success are blindly pursued.
In taking the decision to proceed to prosecute Oritsé Williams, it is difficult to imagine that the profile of the defendant was not a significant factor. In direct contradiction to the prosecution’s case, and perhaps an element of the public perception, that Oritsé Williams was an entitled, rich celebrity taking advantage of a naïve and vulnerable fan, it was clear to us from the outset of this investigation that the ‘celebrity’ aspect had an adverse effect on the ability of the defendant to receive a fair trial or to properly prepare his defence.
At the first hearing, the District Judge refused an application by the defendants for their home addresses not to be revealed in open court, despite legitimate concerns for the defendants’ safety. This was dismissed out of hand, despite a febrile atmosphere in court and a significant police presence to ensure order was maintained inside and outside court. This decision looks particularly dangerous in hindsight, given that shortly after the verdicts a property associated with Oritsé Williams was damaged in a fire, suspected to be arson.
As the case continued, the significant press interest deterred key witnesses of fact from agreeing to provide statements regarding the events of the evening. The jury therefore did not hear from all of those present that evening, and did not hear evidence which would have supported the defendants’ accounts of the evening and directly contradicted those of the complainant and her friends. The police and the prosecution were aware of the available evidence. Fortunately, the jury still felt able to acquit even without the defence being afforded the opportunity to present its case in the strongest possible light.
And despite being a well-known and high profile individual, character witnesses were also difficult to identify, as supportive as many people were privately, many had received advice not to associate themselves publicly with the case until after the verdict.
This is certainly no time for celebration. There is no victory - he has simply avoided the total devastation which would have ensued from a lengthy prison sentence. He has to rebuild his reputation, relationships and career while being significantly worse-off financially and emotionally. Not only will the stigma of the rape accusation linger long after his acquittal but also the highly sensitive personal details presented in court will remain available online for evermore.
It seems unarguable in the face of these facts that all defendants in cases of this nature should be afforded anonymity. The irony is that perpetrators of some of the most heinous sexual offences, those against their own children and family members, are already entitled to this anonymity both before and after the verdicts, as to reveal their identities would lead to the identification of the victims. It is surely then not much to ask that a defendant in a similar situation to Oritsé Williams is entitled to anonymity until their guilt has been proven?
A system which allows a court to authorise the publication of the defendant’s name once it has been established that publicity is a necessary and legitimate form of investigation, is not beyond the wit of our Criminal Justice System. It will take not detract from our system of “open justice” being no more than is already afforded to complainants in such cases. If steps can be taken to change the law in this regard, then at least we can be satisfied that some good has come from this sorry state of affairs.
This blog was co-written with Laura Kruczynska.
For further information on the issues raised in this blog post, please contact a member of our Criminal Litigation team in confidence.
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