Prosecuting rape cases and serious sexual assaults: the debate continues
In 2009 John Worboys was convicted of 19 criminal offences against 12 victims, including rape and sexual assault.
He offered women champagne in his Black Taxi, suggesting he had won the lottery or significant sums in casinos. The champagne was spiked with a cocktail of drugs that left his victims incapacitated. He then raped and/or sexually assaulted his victims.
On 21 April 2009 he was sentenced to an “indeterminate sentence” requiring that he serve at least eight years imprisonment.
His victims were informed that “to all intents and purposes” he would serve a life sentence.
85 complainants came forward in total. After the conviction relating to 12 victims, remaining complainants were told that Worboys would not be charged with further offences because of a) the lengthy sentence anticipated, and b) the amount of publicity would mean it was unlikely that he could have a fair trial.
At the start of 2018, after a private Parole Board hearing in November 2017, it was announced that Warboys would shortly be released on parole.
This case poses a number of questions, which we cover below.
A ‘life sentence’ is a sentence that the offender will be subject to for the rest of their life – this does not mean, however, that the offender will necessarily spend the rest of their life in prison. In the majority of cases, the trial judge must set a ‘minimum term’ during sentencing. This is the time that the offender must spend in prison. At the end of that term, they can apply for parole. If the Parole Board decides that they are no longer a risk to the public, they can be released subject to certain conditions. If they break these conditions or are considered to pose a risk to the public again, they will be sent back to prison. As a life sentence applies for the rest of the offender’s life, these conditions will also apply for the remainder of their life and they may be recalled to prison at any time until their death.
The exception to the above is a ‘whole life order’, which is a type of sentence reserved for exceptionally serious crimes. In these cases, the trial judge will not set a minimum term, and the offender will never become eligible for parole. Whole life sentences are less common than people may think – at the end of December 2017, there were 61 whole life prisoners in the UK. It is more common for a serious offender to have a minimum term set which, in practice, is likely to last for most if not all of their remaining life.
In Worboys’ case, he was given a type of sentence called Imprisonment for Public Protection (‘IPP’). This was a sentence designed to protect the public from dangerous offenders whose crimes did not merit a life sentence. Offenders subject to an IPP were set a minimum term of imprisonment, but no fixed period after which they had an automatic right to be released. After they completed their term, they could apply to the parole board for release. They would then be on license for at least 10 years. IPPs were abolished in 2012 following a government review, but the change did not apply retrospectively. This means that the IPP still applies to Worboys, whose minimum term was set at eight years.
In short, no. Excessive media reporting is not a bar to prosecution. It may, however, be held to make a fair trial impossible.
To understand this, it is helpful to consider the different stages in criminal proceedings. A crime is investigated by the police. It is not unusual for certain types of crime to attract a lot of publicity at this stage, even before a suspect is identified. The police then, in serious cases, make a referral to the Crown Prosecution Service (“CPS”), who makes the decision on whether or not to prosecute. This decision is based on a) whether there is sufficient evidence to provide a realistic prospect of conviction and b) whether the prosecution is required in the public interest. The extent of negative publicity is not part of these considerations. In fact, it would be very hard to balance if it were a consideration, as there is a considerable overlap between high public interest cases and cases that generate negative press coverage.
The case then moves onto trial. It is at this stage, well after the decision to prosecute has been made, that the question of excessive adverse media reporting may be addressed as a legal point in court. The defence may make the argument that the publicity surrounding the case has been so prejudicial that the jury cannot put it out of their minds in order to come to a fair and impartial decision, and that the trial ought to be stayed (i.e. halted, potentially indefinitely).
In the 2006 case of R v Abu Hamza, the Supreme Court held that the fact that “adverse publicity may have risked prejudicing a fair trial is no reason for not proceeding with the trial if the judge concludes that, with his assistance, it will be possible to have a fair trial” and “that with proper direction a jury would be able to bring impartial judgment to the case.” This decision has been affirmed in the more recent case of R v Chapman, where the Court of Appeal held that the trial judge had been correct to conclude that the risk of prejudice could be reduced to an absolute minimum by providing appropriate directions to the jury.
Pre-trial publicity is therefore not a bar to prosecution. It does have the potential to make a fair trial impossible, but the trial will usually not be abandoned as the risk of prejudice can be recognised and addressed by the trial judge.
It is now known that the Parole Board made the decision that Worboys can be released with ‘stringent’ license conditions. According to the information the Board sent to one of Worboys’ victims, these conditions include a weekly reporting requirement, and a stipulation that he is “not to approach or communicate, directly or indirectly, the victims of the index offence without prior approval of the Supervising Officer”.
What is currently less clear is why the Parole Board came to that decision. Under Rule 25 of the Parole Board Rules 2016, “information about proceedings under these Rules and the names of persons concerned in the proceedings must not be made public.” This means that, under the current law, the Parole Board have a statutory duty not publish their decision-making process in this or in any case. Following the Worboys decision, this rule has come under considerable criticism. The Chair of the Parole Board has recently published a statement recognising this, and announcing that the Board will “shortly be launching a public consultation about how we share our decision making with the public.”
In light of the above, it is perhaps unsurprising that pressure is being placed on the CPS to explain why it did not bring further criminal proceedings against Worboys. The CPS, after all, are not bound to keep their decision making process confidential. However, as Worboys’ victims are now pursuing a judicial review, their success may well lead to a reconsideration of the Parole Board Rules regarding confidentiality in due course.
If you have any questions about the issues raised in this blog, please contact a member of our criminal litigation team.
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