Nigel Evans MP | TheApiarist (with kind permission)

Nigel Evans is not guilty of the offences he was charged with. I’m pleased for him. I also feel deeply sorry for him: this last year must have been hell, and having been tried and acquitted, he not only faces a big legal bill: he has lost an important job that must have meant a lot to him, and he must have felt his personal life has been paraded in front of the entire public, and cast in a misleadingly negative light. Nothing will ever be the same for him, as he said shortly after his acquittal. Being cleared comes at a terrible price.

Here’s an account of the trial from two Guardian journalists who say the prosecution case “fell apart”, and recount how at least three of the men who gave evidence did not regard themselves as having been victims of sexual offences. And here are two accounts of the evidence given in cross-examination of the complainant who said he’d been raped.

The Crown Prosecution Service is far from perfect, and it makes mistakes. It can be perfectly reasonable to accuse it of wrongly prosecuting someone; I’ve done it myself, accusing them of an unlawful prosecution in fact. But the fact that he’s been cleared does not mean the CPS was wrong to charge Nigel Evans in this case.

Yet from some politicians and journalists – a group which often makes a significant contribution to the pain of those cleared in court – we’ve seen overreactions to his acquittal that have been ill-considered, and even dangerous. The former minister Crispin Blunt raised the old chestnut of anonymity for rape defendants, which is a bad idea in any case. And can you imagine the outrage of newspapers if an MP were charged with rape, and his identity kept a secret? For the most part, though, the overreactions have consisted of accusations that the CPS was obviously wrong to prosecute, from people who were not in court and have not had access to the CPS file.

Dan Hodges at the Telegraph wrote that

when it came to the Nigel Evans case, the police and Crown Prosecution Service decided to take [the] basic principles of justice, rip them up, and scatter them to the winds.

His piece led Mark Reckless MP to suggest the CPS should be put under political control:

And Daniel Hannan MEP joined in the criticism of the CPS:

One criticism that’s been made is that the CPS should never have charged Nigel Evans because some of the men involved did not regard themselves as victims. That is I think a reasonable criticism of the charge based on an attempted kiss, which I too find it difficult to see as having been in the public interest to prosecute. To see an attempted kiss as a criminal matter, when its “victim” does not, seems to me to be going too far.

But not all these charges were about alleged kisses. As I understand it, at least two of them were about allegations that he’d put his hand down men’s trousers. That isn’t quite so trivial, especially once you think about how the same sort of thing should be dealt with by the CPS if alleged to have happened to a woman. Is it right to assume that the law should give less protection to men, including those in their early twenties?

Nor are the feelings of the alleged victims themselves necessarily decisive. It is not part of the the offence of sexual assault that the victim should feel the law has been broken.

It’s also important not to fall into the assumption that none of these men felt they’d been the victim of an offence. As I understand it, Nigel Evans was accused of assaulting seven men in all; I’ve not yet read a claim that more than four of them were reluctant to give evidence. So painting with too broad a brush about them can be misleading. There seem to have been at least two actual accusers.

One of them accused Nigel Evans of rape. His evidence seems to have been undermined in the witness box where he admitted he had not been completely truthful to the police. So perhaps it’s not surprising the jury acquitted on this charge; Nigel Evans always said they’d had consensual sex. But the fact that his evidence changed in the witness box does not mean the CPS could or should have foreseen that. The strength or weakness of evidence is tried in court in a way that it cannot be by any other method. That’s what a trial is for.

Two themes can be perceived in some of the criticism of the CPS, that I think are dangerous and important to counter. The first is the assumption that wherever a defendant is acquitted, some public servant must have done wrong: a charge should only be made where it leads to a conviction –

Proponents of this view may feel they’re standing up for the presumption of innocence. Actually the reverse is the case: it’s the equation of charge with guilt, which rests on the assumption that guilt can and should be effectively determined by the CPS before a case comes to court, that undermines the presumption. Real belief in the presumption of innocence involves accepting that prosecution evidence is capable of being shaken, and that even apparently solid allegations may not be made out at a trial.

The second theme is that the CPS is being too zealous in pursuing rape and sexual assault cases these days, something many people feel about historic allegations in the wake of revelations about Jimmy Savile. Remembering what didn’t happen to Jimmy Savile and what has happened since should make it obvious how easy it is for armchair critics to attack the CPS (like social workers) for acting, or not acting, or once again for acting – according to the transient Zeitgeist. Journalists and MPs should both beware of this.

But this wasn’t a historic case anyway. It involved an accusation of rape alleged to have happened just over a year ago. It’s widely accepted that relatively few rapes result in a conviction, and the main cause of this seems not to be the behaviour of juries, but the “attrition” of cases which fall at various stages before trial, because they’re unreported, or uninvestigated, or unprosecuted – and not always for good reasons. Not long ago two women obtained compensation for the failures of the police in investigating their complaints of rape, and concerns have recently been expressed that too strict an approach to charging by the CPS may be deterring the police from referring rape cases to them.

If we want to reduce unjustified attrition at the CPS stage, we must accept this means the CPS will charge rape more readily – less reluctantly, in other words – than they have done in the past; and that they won’t only prosecute the very strongest cases. Once you see the Nigel Evans case against that background, you begin to realise that political and media pressure on the CPS to “back off” or “ease up” on rape may be dangerous to women.

Nor is it right to pressurise the CPS to react to recent experiences of acquittals by playing jury percentages, and dropping cases on a probabilistic basis. That would be to adopt the “bookmaker’s approach” to prosecution decisions, rejected by the High Court in the FB case in 2009.

I’ve been impressed by Alison Saunders’s calm defence of the CPS over this case. I note that she quite rightly says she intends to review it, and that the CPS should learn lessons from it. If you’re interested, incidentally, here’s a speech she gave in 2012, before she became DPP, on the prosecution of rape and serious sexual offences. I think on this issue she is far above the level of many of her critics.

Bob Stewart MP has said 

the evidence clearly wasn’t enough for a prosecution

which is a classic case of wisdom after the event from someone who I doubt knows any more about the evidence than I do. But I’m more interested in his unhappiness about Nigel Evans’s outstanding legal bill. He said:

it’s wrong – we’ve got to sort that.

On this, I agree with him. The more I think of it, the more I feel it’s wrong for someone cleared at a trial to face a big legal bill. There might be a few exceptions (for instance if someone brings themselves under suspicion by in effect wasting police and court time) and I think it’s right for the state to limit its liability to acquitted defendants by reimbursing only the amount it would have paid had the acquitted defendant been legally aided. That is I think essentially the new system that’s been brought in since January this year (too late I think to apply in Nigel Evans’s case).

But Nigel Evans’s inability to reclaim any legal costs is a result of a change brought in by this government, for which Bob Stewart voted.

Photo: courtesy of TheApiarist