Nigel Evans MP: justice has been done

by Carl Gardner on April 11, 2014

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

{ 15 comments… read them below or add one }

1 David M April 13, 2014 at 18:15

I think you dismiss the issue of the “non-complainants” here too lightly. I am not a lawyer so I am completely happy to accept that the legal position is as you suggest. That the fact they didn’t see themselves as victims doesn’t necessarily stop charges being brought. How that decision affects public confidence in the justice system I think is a different matter.

I am not as enamoured with Alison Saunders defence of actions of the CPS as you are. I have re-listened to the interview she gave on the Today programme and I think some of her reasoning is very worrying. In justifying bringing charges where the individuals didn’t raise complaints, she referred to a report by Barnardos and used victims of domestic violence as examples. She didn’t elaborate on what report from Barnardos she was referring to but given their area of work I think it’s reasonable to conclude it relates probably to children from challenging backgrounds. For victims of domestic violence there may well be an on-going coercive relationship. In both these cases common sense tells you that state may need to take action even if the complainent would rather they didn’t . But did any of the witnesses in this case fall into those categories or similar? I have not seen any evidence they did or were under any coercion. On the contrary they appear to have been pretty eloquent and adamant that they weren’t victims. So to use those examples as justification as to why charges were brought in this instance seems disingenuous at best.

It leaves me with the uncomfortable feeling that the police realised that the evidence for the cases where they did have a complaint wasn’t strong enough to sustain a prosecution and so the other incidents were included to try and bolster it. Even when the people concerned said they weren’t the victim of a crime they persisted nonetheless and the CPS (shamefully) seems to have gone along with that. As a strategy, throwing enough mud at the wall until you can get some of it to stick is a good one for a tabloid newspaper, I’m not sure it’s worthy of two key parts of our justice system or will increase confidence in the system.

And I wouldn’t hold out much hope for that “review”, she sounded pretty defient and certain that the right decisions had been taken before it had even been undertaken. Makes me wonder what sort of review it will be.

2 Carl Gardner April 13, 2014 at 18:46

I’m not sure I am dismissing the issue of the “non-complainants”, David. But I notice you’ve not mentioned the actual complainants, of which there were at least two – perhaps three, and maybe even four from what I’ve read so far.

If someone were to argue that Nigel Evans should not have been prosecuted on some or most of the sexual assault and indecent assault charges laid against him, on the basis that there was no “complainant”, but were also to accept that it was reasonable to prosecute the rape allegation – well, I wouldn’t agree, but I could could see how that stance could be reconciled with a serious approach to investigating and prosecuting rape. It would not be an approach that ignored actual complainants.

But I don’t think I’ve read or heard such an argument yet. The actual complainants seem to be left out of account entirely, by those who say Nigel Evans should never have been prosecuted at all.

On the review it’s not that I “hold out hope” about it. I’ve no reason to think wrong decisions were made here. I’d also say that, if Alison Saunders did not express confidence in the decisions the CPS took (what you call defiance), that would be used as a stick to beat her with, as the BBC interview I linked to proves. I mentioned the review simply because it shows how much more balanced and reasonable she is about this case than many of her critics.

3 spikeymikey April 13, 2014 at 19:52

First many thanks for your article. I too am not a lawyer and this is the first piece that I have read that makes sense of the CPS approach. I also accept that if some were willing to complain then this might be grounds for trial. However this still leaves open the decision to prosecute the other cases when it appears that the ‘victims’ did not want them prosecuted/ or see an offence and then to join all these together as evidence of an alleged pattern.

If the CPS defends its position then it would seem to follow under the terms of the legislation that it might be possible to bring charges on a huge scale by visiting any night club or party. Of course I am not suggesting that this will happen, rather that this creates the basis for arbitrary actions if someone in authority decides to use this possibility or comes under pressure to do so.

4 Carl Gardner April 13, 2014 at 20:23

If sexual assault is happening on a huge scale in nightclubs, then yes – it might be possible to bring charges on a huge scale. I don’t think a great approach to sexual crime it to say we shouldn’t prosecute it much because “it happens”. And any pressure the CPS is coming under from politicians at the moment is pressure not to prosecute.

As for joining them all together, well, the only real alternative to that would have been to try Nigel Evans twice. I’m sure that wouldn’t have been fair.

As I said above, if someone wants to argue that the “non complainant” counts should have been dropped, I don’t agree but I can see how that stance can be reconciled with a serious approach to doing something about rape.

But most of the CPS’s critics on this seem to be saying that even the rape case, where there certainly was a complainant, should not have gone to court.

5 David M April 13, 2014 at 20:35

Carl,

You make a fair point. I concentrated on the non-complainants as I think this is the most egregious part of the saga. But to be completely clear, if someone makes a complaint of sexual assault or rape then it goes without saying that they deserve to have that properly investigated and, if the charge can be substantiated, taken to court.

You also said:

“If someone were to argue that Nigel Evans should not have been prosecuted on some or most of the sexual assault and indecent assault charges laid against him, on the basis that there was no “complainant”, but were also to accept that it was reasonable to prosecute the rape allegation – well, I wouldn’t agree, but I could could see how that stance could be reconciled with a serious approach to investigating and prosecuting rape. It would not be an approach that ignored actual complainants.

But I don’t think I’ve read or heard such an argument yet.”

Wait no longer as that really is my position – I think the CPS did themselves no favours with the approach they took. If they’d concentrated on the charges where there was a complainant I think they would be in a much better position now. With the obvious proviso that there would be a realistic prospect of conviction without the rape allegation being bundled with all the other charges. I’m not in a position to say whether that would be the case or not. But I think that question needs to be asked.

6 James Medhurst April 13, 2014 at 23:09

Excellent analysis. Thanks Carl.

I do feel sorry for Nigel Evans, who must have had a horrible time over the last year, but anybody who thinks that these cases can be managed without either the complainant or the accused suffering greatly is living in cloud cuckoo land. The best we can do is to reach a just outcome and that has been achieved in this particular case.

Essentially, the position of MPs seems to be this: There should be cuts to the cost of justice so that defendants are left out of pocket if they are prosecuted unsuccessfully. However, MPs should be made exempt from the obvious negative consequences of such a policy.

Will some of these MPs now change their stance on legal aid cuts?

7 Simon Carne April 14, 2014 at 22:09

An excellent analysis. I was taken aback when the DPP (the current one, not the DPP at the time of the decision to prosecute Nigel Evans) told the BBC that juries have to apply “a much higher test” than the CPS. That doesn’t seem right at all – http://www.simoncarne.com/dpp-cps-prosecution-test-nigel-evans/.

8 Carl Gardner April 15, 2014 at 00:11

Thanks, Simon.

It’s seems reasonable to me, although I’m not sure the image of “height” is quite right. The real point I think is that they’re very different tests (which I note is the way it’s put in the Code for Crown Prosecutors – see para. 4.5):

The finding that there is a realistic prospect of conviction 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. It means that an objective, impartial and reasonable jury or bench of magistrates or judge hearing a 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 is a different test from the one that the criminal courts themselves must apply. A court may only convict if it is sure that the defendant is guilty.

Still, I think this sort of discussion forces us to think in terms of height (or something similar) and in those terms, I think it’s entirely fair to say the jury’s test is a higher one.

I’m not sure how much CPS lawyers think about this. I used to prosecute for a couple of years – not for the CPS – and used to think about it a lot, and talk about it a lot with my colleagues.

On your blog, you say

Logically, I suggest, the test that the CPS sets for itself breaks down as follows: Does the evidence, as it currently appears to the CPS, indicate that the defendant is guilty of the charge beyond all reasonable doubt and:

    If it does so indicate, is there a reasonable prospect that the reliability of that evidence won’t be damaged enough at trial to jeopardise the conviction?
    If it does not so indciate, is there a reasonable prospect that the trial will play out in a way which strengthens the evidence sufficiently to compensate for its pre-trial weakness?

That certainly doesn’t reflect how I used to do it, and I don’t think that approach would comply with the Code.

The main problem is the premise before the “and”. I never asked myself whether the evidence made me sure of the defendant’s guilt, and I don’t think it’d be right for the CPS to ask itself that either. The CPS is not a finder of fact, and does not determine guilt. I think it should (and does) confine itself to asking whether a court would probably convict. That’s in a sense made more difficult by the fact that it’s not supposed to be a pure exercise of social prediction – the “bookmaker’s approach”. It’s supposed to be “objective”, though the “merits approach” seems to me a slightly misleading phrase, too (since it’s the court’s task to decide on the merits).

I also think it’s wrong for a prosecutor to think along the lines of your second bullet point. What you know about the defence is relevant, but I think it’d be wrong to take any case to court if the prosecutor thought, on the evidence on front of him or her, that a conviction was not likely.

It’s also worth mentioning that where a barrister’s instructed to prosecute, he or she will (or at least certainly should) make it clear to the CPS if in his or her view the Code test is not met.

But I think there’s a simpler way of considering this. If the test for prosecution were “higher” than the test a jury must apply, then it’d follow that criminal defendants do not have the benefit of the highest evidential standard in our law. That can’t be right.

I also think there’s a danger in this idea, too, which as I mentioned in my blogpost I think comes paradoxically from an understandable wish to protect the presumption of innocence. If people are encouraged to think that a case only comes to court if the prosecution is sure (or even more than sure) of the defendant’s guilt, then it will be more difficult to criticise tabloids, or blokes in the pub, when they say “there’s no smoke without fire” and “he got off, but they were sure he’d done it”.

It can be tempting to assimilate the decision to prosecute with the determination of guilt, but it’s actually dangerous, I think. The presumption of innocence is better protected (I think) if it’s understood that there’s a real gap between the concept of charge and conviction, and that no one gets to determine anyone’s guilt, until a court does.

9 Simon Carne April 15, 2014 at 10:30

Carl: Your response is almost as long as my blog. I don’t want this to spiral out of control, but I think some responses are called for broken down into several analytical steps.

STEP 1: Forget, for a moment, about chances and tests. Let us focus on the evidence and the logic.

There is the evidence which is adduced at trial and the evidence known to the CPS pre-trial. The two are not necessarily the same. If the evidence adduced at trial is sufficient to secure a conviction then, as a matter of pure logic, the evidence that the CPS had pre-trial must EITHER have been sufficient also and not (fatally) damaged during the trial OR not have been sufficient but it was (sufficiently) strengthened during the trial.

STEP 2: Now wind the clock back to the time before trial. No one can know exactly how the evidence adduced at trial will turn out, but one can say (again, as a matter of pure logic) that, if the trial evidence turns out to be sufficient to secure a conviction, then the pre-trial must EITHER have been sufficient and not (fatally) damaged during the trial OR not have been sufficient, but it was (sufficiently) strengthened during the trial.

I suggest the foregoing analysis is independent of the tests that the CPS actually apply.

STEP 3: Now, if we insert the CPS’s own test that there must be a reasonable prospect of a conviction, that test must imply that there is a reasonable prospect that the evidence is EITHER … OR … (as above). This does not require to prosecutors to determine what they, themselves, think of the evidence. It requires them to make an objective assessment of what a jury will think of the evidence. I think para 4.5 of the CPS Code (which you pointed me to) supports that.

STEP 4: Moving on, I then assert, as a matter of pure opinion, that in cases where rape is alleged and the defence is one of consent, it would be worrying if the CPS prosecuted in cases where the pre-trial evidence was insufficient and (whether or not the CPOS realised it) needed strengthening during the trial process. The CPS may wish to challenge that opinion; so might you. But I don’t think you have done so, as yet.

In the absence of such a challenge, we are left with the conclusion that, in rape-vs-consent cases, it is worrying if the CPS prosecute when the evidence is anything other than sufficient, pre-trial, to secure a conviction and not fatally damaged during the trial. If the CPS are not ensuring that the pre-trial evidence meets that hurdle, I think we should be told so that there can be a proper debate (and a further debate about who meets the defendant’s costs in cases where a prosecution went ahead on evidence that was not believed to be sufficient).

Note: I am not suggesting that prosecutors should approach all cases in the same way as rape-vs-consent cases. There may be widely differing considerations for other cases.

STEP 5: You argue in your comment above that “If the test for prosecution were “higher” than the test a jury must apply, then it’d follow that criminal defendants do not have the benefit of the highest evidential standard in our law.”

I think there is a flaw in the logic there: the conclusion does not follow in the manner you suggest.

When the jury retires to consider its verdict, it has the benefit of evidence adduced at trial. It must apply the highest possible test available to it at that time. But that does not alter the fact that the CPS can only make their decision to prosecute based on the pre-trial evidence. If we rule out (in certain cases) going to trial in the hope that the prosecution case will get stronger, the prosecutor needs to have evidence that is at least strong enough to secure a conviction in order to allow for the possibility that it will be weakened during the trial.

10 Kemi April 15, 2014 at 11:57

This is the best commentary I’ve read on this case all week.

People rarely know what the letter of the law states but our lawmakers unfortunately appear to be just as ignorant.

11 James Medhurst April 15, 2014 at 14:19

Simon

I think your analysis that the CPS cannot bring a cases unless there is sufficient evidence to convict before cross-examination is quite bizarre. This analysis might work for a trial with lots of documents, where it is possible to get a clear idea of what is happening without hearing witnesses. But it cannot possibly apply to offences like rape.

In a rape trial, there will be a complainant saying one thing and an accused saying another thing. It is almost impossible to know who is telling the truth before these claims have been tested in court. If your test was applied, no rape case could ever be prosecuted. Nor could any case for any fact-sensitive offence based on oral evidence.

The test to be applied is whether there is a reasonable prospect that the complainant is telling the truth and the accused is lying, bearing in mind that neither evidence has yet to be seriously tested in court.

Alternatively, we could save a lot of money just by abolishing juries, barristers and courtrooms and getting the judges to decide criminal cases on the papers. This would solve all the problems of austerity.

12 Simon Carne April 15, 2014 at 15:44

James: I think your final paragraph reveals that you have misunderstood me entirely and your third paragraph reveals that you have misunderstood (or maybe just mistated) the prosecutor’s test.

As to my position: of course, the case needs to be tested in court. And the prosecution case may fail if, for example, the person alleging rape fails to give compelling evidence. But the police will have interviewed both sides and they will know that the defence is one of consent that needs to be overturned. If there is to be a reasonable prospect of conviction there has to be enough reason to believe – at that pre-trial stage – that the evidence is sufficient to persuade the jury of guilt beyond all reasonable doubt.

Turning now to your description of the test: there may well be (as you say) “a reasonable prospect that the complainant is telling the truth and the accused is lying”. But proving it beyond all reasonable doubt is a much higher hurdle than it merely being true. The prosecution needs to prove it and needs to have a reasonable prospect of being able to prove it.

That does not, I contend, allow the DPP to say that the CPS applies a much lower test than the jury.

13 Jim April 17, 2014 at 20:11

It seems to me that the criminal justice system in this case worked exactly as designed and exactly as parliament has intended it to work:

1) The police receive information that a very serious sexual offence has been committed and that the same alleged perpetrator has also committed series of less serious but similar offences. They investigate and and assemble evidence for the Crown to consider.

2) The CPS considers the evidence and almost certainly sends the file back for more work to clarify areas they are unsure or unclear on.

3) Further enquiries guided by a lawyer’s views are undertaken.

4) The CPS consider the alleged offender and his case in the round and decide against the full code test that the matter should go before a jury, who are the ultimate judges of guilt (not the Crown). It is also extremely likely that in such a high-profile case the CPS will have sent the file out to leading counsel for a view as well.

5) The considered view is that the evidence is likely (but not certain) to result in a conviction and that it is in the public interest so to do. It would be hard to argue that prosecuting rape is not in the public interest.

6) The prosecution case is served on the defence who are entitled to investigate and challenge that to the full.

7) The sides present their cases in the unique environment of the court. The jury weigh the evidence having had the privilege of seeing the evidence truly tested for the first time. They decide they cannot convict – witnesses who have not been as truthful to the police as they should have been cannot withstand the scrutiny a trial brings – and the defendant is acquitted.

Isn’t that exactly how the system is supposed to work?

Where I agree entirely that the system is wrong is in an acquitted person footing their own bill. Funny how perhaps the biggest victim so far of a terrible Tory policy, is, well, a Tory MP.

And finally, the blame, if there is any here, must surely be laid at the door of a witness or witnesses who have, at some stage in the process, not been entirely truthful.

14 Simon Carne April 17, 2014 at 20:26

Jim, I think your succinct analysis starts to break down at Step 1, where you say that the police had received information that that “the same alleged perpetrator has also committed series of less serious but similar offences”.

The zeal with which the CPS prosecuted these additional cases in which several of the the supposed victims said that they thought no offence against them had occurred – including one charge of sexual assault which the judge struck down because, on the prosecution’s own case, no contact was ever made – is worrying.

It may be that, at the prosecution stage, the evidence supporting the mpst serious charge (that of rape) was strong enough to justify the case going ahead. I’m not sure we know enough to judge that. But the weaknesses in several of the other cases is enough to raise doubts about whether this matter was handled “exactly as parliament intended it to work”.

15 Lars Patterson October 23, 2019 at 12:02

This case puzzles me:

1. The definition of rape is that a man inserts his penis in another man or woman without the other persons consent. In this case, consent was clearly not given. The judge made a serious mistake in law when he instructed the jury to acquit Mr Evans.

2. The fact that victims changed their statements in court is to me a strong indication that they were coerced.

I have started work on a documentary on male rape where this case will be examined. The facts show that Mr Evans, a man in a position to influence the career of his victims forced himself on young men. Mr Evans has been given ample media cover to state his case. It is now time for the victims of his actions to be given a voice.

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