The acquittal of William Roache at Preston Crown Court of all charges of rape and sexual assault has led to a number of differing views being aired as to whether the prosecution should have ever been brought. Headlines in various papers, leader articles and TV and radio news and comment programmes questioned whether the prosecution was a witch hunt. On the steps of the court having thanked his legal team, family, friends and many, many others Mr Roache in a very measured way commented that there were no winners in cases like these. This led to Christine Hamilton, who seems to have elevated herself to a legal spokesperson in matters like these to comment “…save the lawyers…” Quite why she gets trotted out every so often I really don’t know. In the same way I saw Carol Decker of T’Pau questioning whether the whole system of prosecution of cases of this type needs a fundamental overhaul on Sky News the following day.
Prosecuting or defending cases of this type is not an easy job, and one that is so very easy to criticise after the event. Remember the furore after the prosecution of various sex offenders and how shocking the conduct of the defence was? How unfair and deeply flawed the system is that made the victims of the Oxfordshire child grooming ring relive their ordeal time and time again at the hands of the defence barristers.
Mr Roache has had his life put on hold for over a year, his personal and public life put under forensic examination both in the court and in the pages of the papers. Every salacious detail of the alleged crimes reported in detail, each prosecution allegation discussed and every defence witness commented upon. Following the acquittal the same media questioned the sense in pursuing the allegations, wondered how such a seemingly flimsy case was ever put before a court, how Bill Roache has been put through the wringer and how his life may never be the same again. More fundamentally why those in the public eye are pursued with such vehemence and apparent disregard for their public status, after all haven’t all those who met him always said he was a very nice man and not capable of such things, should that not have been enough?
I do wonder how the headlines and the commentary would have differed had the twelve jury members made a different decision. Of course we already know, there would have been criticism of a system that makes a victim relive the ordeal questions would have been asked as to how he could have got away with it for so long and nobody done anything, there would have been people who had never met him proclaiming that there was in their opinion something a bit odd about him, how he used his public status to do shocking things and get away with it. Not one person would have suggested that the CPS were wrong to pursue the prosecution, that it was a witch hunt. For certain the former MP Denis MacShane would not have suggested that his case was simply a result of the CPS being keen on celebrity prosecutions.
The media reporting in this case has focused on the fact that under scrutiny by the defence cross-examination the evidence simply did not hold up. One witness conceding that she had no recollection of the incident she originally complained of leading to the trial judge directing the jury to acquit. Another witness describing that she had been warned by an actor who was not in the show at the time to be wary of Mr Roache. It is perhaps understandable that after the verdicts have been reached and fuelled by the media people ask why was the money wasted in prosecuting these cases.
As I have commented before in my previous posts in this series, what we see and hear reported during the course of any trial is but a snapshot, a sound bite of what happened in court. We cannot and perhaps should not have the whole case paraded before us. We are not party to all the evidence presented to the jury. We are not able to see the various witnesses give their evidence and what they say, and often more importantly how they say it. We have not seen how the defendant or the witnesses reacted to the way a point was made, an allegation put which is so very important in cases like this. It is easy to make a judgment as to the strength of the case when the case has concluded.
What can be said for certain is that the police who investigated the allegations and the CPS who took the decision to prosecute would have examined the evidence very carefully before making a decision to put the charges to Mr Roache. The evidence would have been subject to scrutiny before it was ever put before the jury. If the witness evidence did not stand up under examination by the CPS then it is unlikely to have got to court. I haven’t seen the statements made by the lady who under cross examination stated she had no recollection of the event she was complaining about, but I can say with some degree of certainty that that fact didn’t appear in her witness statement.
Any decision to prosecute is subject to either the Threshold Test or the Full Code Test. The threshold test is used where the suspect presents a real bail risk and not all the evidence is available at the time when they must be released from custody. It is used in cases where there is insufficent evidence to pass the full code test but there is a belief that the evidence needed to pass the full code test is likely to become available within a reasonable time, the serious nature of the case needs an immediate charging decision and there are substantial grounds to object to bail. In applying the threshold test the prosecutor must have a reasonable suspicion that the suspect committed the offence and that the evidence they do have is relevant, able to be put before a court and could be used in the case.
If they are satisfied of those grounds they must then be satisfied that there will be further evidence within a reasonable period that would establish a realistic prospect of conviction. If satisfied then the public interest test of the full code is applied.
Bill Roache was charged after a review of evidence under the full code test is a two tier process, an examination of the evidence followed by a decision as to whether a prosecution is in the public interest.
There must in any given case be sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge, considering what the defence case might be and how the defence case might affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.
So how does a prosecutor decide that there is a realistic prospect of conviction? That decision is based on the prosecutor’s objective assessment of the evidence, including the impact of any defence, and any other information that the suspect has put forward or on which he or she might rely. If in the view of the prosecutor an objective, impartial and reasonable jury or bench of magistrates or judge hearing that case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged.
This important because when the jury consider the evidence they apply a different standard of proof. They must only convict if they are sure that the defendant is guilty.
When considering the evidence the prosecutor must ask can this evidence be properly use in court, is it reliable evidence and is it credible.
In the case of Bill Roache then prosecution must have believed that the evidence was al these things; that the witnesses were able to give evidence that was reliable, that they and the jury would believe. For that reason it is unlikely that the evidence the prosecution relied on contained any of the facts or omissions that the defence highlighted and led to the acquittal.
Having satisfied itself that there was sufficient evidence to justify a prosecution, the prosecutor would then have gone on to consider whether a prosecution is required in the public interest.
A prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour. In some cases the prosecutor may be satisfied that the public interest can be properly served by offering the offender the opportunity to have the matter dealt with by a caution or some other form of out of court disposal, and of course only if the suspect made an admission would such a disposal be offered.
The prosecution would have considered;
How serious is the offence committed? As a rule of thumb the more serious the offence, the more likely it is that a prosecution is required. When deciding the level of seriousness of the offence committed the prosecutor would have considered Bill Roaches culpability and the harm to the victims.
Culpability looks at how the defendant was involved, whether the alleged offences were planned, whether they have previous criminal convictions, or offences have been committed whilst on bail, whether the offending was or is likely to be continued, repeated or escalated.
The circumstances of the victim are very important. The more vulnerable the victim is or in the case of Bill Roache was, the more likely it is that a prosecution is required. This includes where a position of trust or authority exists between the suspect and victim, so in this case the fact that Bill Roache was said to have used his celebrity to allow him to commit the alleged offences.
In deciding whether a prosecution is required in the public interest, prosecutors should take into account the views expressed by the victim about the impact that the offence has had. In appropriate cases, this may also include the views of the victim’s family.
The Prosecutor would have also considered if a prosecution was likely to have an adverse effect on the victim’s physical or mental health. If there is evidence that prosecution is likely to have an adverse impact on the victim’s health it may make a prosecution less likely, taking into account the victims views.
The age of the suspect is also an important factor, particularly if they are under 18. The best interests and welfare of the child or young person must be considered including whether a prosecution is likely to have an adverse impact on his or her future prospects that is disproportionate to the seriousness of the offending. A very young suspect may not be prosecuted.
However, there may be circumstances which mean that notwithstanding the fact that the suspect is under 18, a prosecution is in the public interest. These include where the offence committed is serious, where the suspect’s past record suggests that there are no suitable alternatives to prosecution, or where the absence of an admission means that out-of-court disposals which might have addressed the offending behaviour are not available.
The greater the impact of the offending on the community, the more likely it is that a prosecution is required. In considering this question, prosecutors should have regard to how community is an inclusive term and is not restricted to communities defined by location.
Finally the prosecutor will also consider whether a prosecution is proportionate to the offending and in considering this, cost is always an issue. CPS guidelines in relation to historic sex crimes suggest that these cases should be prosecuted in as many cases as possible.
With this in mind the CPS, clearly believed that their evidence passed the necessary test and that in all the circumstances a prosecution was a right and proper course of action. Presented with all the evidence and not prosecuting is likely to have raised even more criticism. Nazir Afzal, chief Crown Prosecutor for CPS North West said “We have a duty to those who make complaints of serious offences to listen to the allegations, and assess the evidence against the same evidential standards we use for all criminal cases, no matter who makes the complaint, or who the suspect is.”
So were the CPS right to prosecute Bill Roache? Perhaps a better question to ask at the end of it all was not why was he prosecuted, or should he have been prosecuted, but why should he not have been prosecuted presented with all the evidence it had. If the evidence passed the necessary tests, if there is a need to see those who commit offences of this type punished, if there is a belief that justice applies to all regardless of position, power and status and if an acquittal is just as important when someone is innocent as a conviction is when they are guilty then there is no reasonable or sensible argument that could be advanced against a prosecution.
Perhaps he was right that there was no winners in a case like this, but perhaps there were. The belief that those who make allegations of this type will be taken seriously means that others who have suffered abuse can come forward; and those that are facing accusations can rest assured that the system will convict the guilty and acquit the innocent.
Finally, because I cannot miss an opportunity to highlight the issue of legal aid in discussing a case like this, please read this http://t.co/tEHFNn5f2j