Don’t be misled, or worse deterred. Harriet Harman and Vera Baird are again relying on poor quality studies and unreliable “statistics” to push an unverified narrative which does a huge disservice to those they claim to wish to protect. [THREAD]
Look at the studies cited for yourself. The first, Vera Baird’s “Seeing Is Believing” is here: northumbria-pcc.gov.uk/v2/wp-content/… The methodology is curious to put it politely.
The study recruited 13 (apparently non-legally qualified) volunteers to observe 30 rape trials at one Crown Court Centre and answer questions about the trials they were observing. For context, there are several thousand rape trials a year & 77 Crown Courts in England and Wales.
Judge for yourself whether the qualitative data provided supports the conclusions of the report. What is notable is a disingenuous absence of context. Eg Many applications under s.41 are made late because the underlying information is only disclosed by the prosecution late.
It is noted that some volunteers were not present for the full trial. It is unclear how many, if any, were present at any pre-trial hearings where issues around s.41 applications were raised.
But even if the views of these 13 unqualified, self-selecting, partially-sighted volunteers are right and speak to serious failings, it cannot be said to represent the practice of the other 76 Crown Courts. This is a basic sampling error.
As for the Limeculture Report cited, @barristerblog pointed out the manifest flaws in methodology and interpretation here: barristerblogger.com/2017/09/25/75-…
It is noted that Ms Baird and Harman attempt to discredit the (far wider-ranging) study by the Attorney General, which concluded that 92% of sex cases do not involve use of sexual behaviour evidence, by alleging statistical flaws. Something about planks and eyes appears relevant.
As I’ve said more times than I care to - I am not reflexively defending the status quo. There are certainly ways we can improve the treatment of complainants in criminal proceedings, without infringing on the rights of the accused. And Section 41 itself *may* not be working.
My anecdotal experience from practice is that section 41 works as it should, striking the difficult balance between complainant and defendant rights. But if well-researched evidence shows otherwise, I will happily defer. I am not an ideologue. I don’t think many barristers are.
But what we have with Baird and Harman is a narrative and a crusade, which they will further with whatever cod data comes to hand to secure their desired change (defined by Harman as banning *all* sexual history evidence, the dangers of which are here: thesecretbarrister.com/2017/07/05/har…)
The Criminal Bar Association offered to meet and discuss the matter with the (non-criminally-trained) Harman last year. She ignored their offer. This is not a reasoned, evidence-based debate. It is a rush to slay a dragon the existence of which is not even established.
Ultimately this is grounded in a political misunderstanding of section 41, what it means and how it is designed to operate, which I dealt with here:
thesecretbarrister.com/2016/10/24/an-…
thesecretbarrister.com/2016/10/24/an-…
Again - I am not asserting that there are no problems. There might be; either in the drafting of section 41 (although I doubt that), or in its practical enforcement by courts, or in aspects such as late applications caused by late prosecution disclosure.
But nothing that Vera Baird or Harriet Harman has produced or cited provides a meaning evidential basis for calling for serious changes to the law which would have an enormous impact upon the fairness of criminal trials and the ability of the wrongly accused to defend themselves.
Vera’s favoured studies are plainly inadequate. If she feels the Attorney General’s is also insufficient, may I suggest a further, independent wide-scale review carried out with proper sample sizes and agreed methodology. Let’s start there and see where we go. [ENDS]
