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Serious sexual offences involving Medical professionals: Catherine Silverton shares 18 years’ of trial experience.

After 18 years of addressing juries in cases involving serious sexual allegations, I am pretty sure that the point at which many trials are won for the defence is when they, the jurors, are asked to consider whether they themselves would make an important life decision based on the word of the Complainant.

Sexual allegations can be distinguished from criminal allegations of other types by virtue of often being prosecuted purely on the basis of one person’s word. There are invariably no witnesses to the interaction between the Complainant and Defendant during which the alleged offence is said to have been committed. There is very rarely any physical or scientific evidence capable of proving or refuting the allegation. No circumstantial evidence. No technological evidence. Sexual allegations are increasingly made weeks, months or even years after the alleged event, by which time delay has frayed memories on all sides which leaves nothing but word against word.

Preparing these cases relies on a multi pronged approach to the credibility of both the Complainant and the Defendant.

Undermining the Complainant’s credibility (as gently and sympathetically as possible) is a fundamental aspect of defending any sexual allegation at every stage from avoiding charge to acquittal in the Crown court and exoneration in a disciplinary context.

Interview

The police interview is usually the first opportunity for the Defendant to build his/her credibility. It is also an area fraught with tactical decisions and one of the most significant areas where there could be a conflict of strategies between preparation for criminal trial and disciplinary hearing.

From a Crown Court perspective the safest option in many circumstances, even when a defendant of good character has a full innocent explanation, is to make no comment and/or issue a prepared statement. In relation to non-recent allegations, particularly, giving an early detailed account, even if 100% honest, could introduce genuinely mistaken recollections with the potential, if they come to light at a later stage, of harming an otherwise highly credible defendant. There are, of course, implications of making no comment and suffering an adverse inference (s34) direction in a criminal trial, however, anyone interviewed by the police has a right to silence and, in the Crown Court, no inference can be drawn from exercising that right. The inference that could be drawn is from failure to mention something later relied on and that could reasonably have been expected to mention at the time. Often a carefully prepared statement followed by making no comment to all further questions is the safest way to approach these interviews. If nothing that is subsequently to be relied on is left out no adverse inference direction can be given.

A detailed interview where every question is answered can go a long way in terms of building the Defendant’s credibility but it is worth noting that educated professional clients, more often than uneducated ones, can fall into the trap in the stress of an interview situation of trying to answer every question even if they genuinely do not know or cannot remember. Giving any account about anything, however peripheral, that later transpires to be wrong, can be very damaging in the eyes of a jury.

Fast forward to disciplinary hearing, though, and a no comment or partial comment interview undermines the arguments as to a Defendant’s insight, in terms of their cooperation in the investigation and proceedings. Any interview tactics have to be determined on a case by case basis and, from experience, the most important advice can be as simple as hammering it home to a client that if they cannot recall something it is perfectly acceptable to say so.

Proof and defence statement

A detailed proof of evidence and early access to all documentation offering contemporaneous support for the Defendant’s account is vital. Any consultation, notes on an internal system, prescriptions, referral letters or emails to colleagues have the potential to provide powerful support for a Defendant’s recollection and the sooner a defence can be planned around that type of contemporaneous corroboration the better. It is important to distinguish between material to be deployed at trial and that disclosed in the preparation stages. Unnecessary detail in a defence statement can have the potential to carry far more risks than it offers benefit.

In relation to the defence statement it is important to have in mind it’s objectives. It is not a second proof. Rather, it is a strategic document with certain aims. First, it must comply with the Criminal Procedure and Investigations Act and CPR rule 22.4. Secondly, it must be served on time. Thirdly, it is a useful tool to get on record anything not said in police interview and on which the Defendant intends to rely including, if relevant, any explanation for not having given that information earlier. In order to comply with the CPIA it does not need to set out every detail of your instructions and to do so is often exposing the Defendant unnecessarily. All instructions can be open to change and memories to refinement. Any detail given which transpires to be incorrect has the potential to impair the Defendant’s credibility so, where there is no benefit to providing unnecessary detail, my default preference is to avoid it. There is nothing preventing an addendum being served at a later date if something that was not in issue becomes relevant. Finally, a significant purpose of the defence statement is to trigger further disclosure. It is with that purpose in mind that detail may be relevant and need to be outlined.

Disclosure

The first disclosure of unused material is made when the Crown serve their case. Until a schedule of unused material (MG6c) has been provided and any material that is relevant disclosed, the Crown have not complied with Stage 1.

In addition to material gathered in the course of the investigation the Crown are under a duty to consider third party material (eg the Complainant’s medical notes, social services notes, counselling notes, psychiatric records or education records). It is not safe to assume that this material will be considered without the defence specifically requesting it and outlining the reason for it’s relevance. It is also not safe to assume you don’t need to spell out in very basic terms the type of material you are looking for, eg ‘previous complaints made to police, proved or otherwise, sexual or otherwise, or any other independent evidence of C being unreliable, attention seeking, oversensitive, having difficulty communicating, having memory issues, imagining things that are not correct or seeking sympathy’. Even the most obviously undermining material can be, and has been, overlooked, usually not by any impropriety or incompetence but by administrative pressures on the prosecution side. The safest approach is to make early, repeated and evidentially based requests for disclosure and, if there is reason to believe the Crown are not meeting their disclosure obligations, flag it up, in writing, to the court.

Disclosure or defence investigation?

As a general strategic rule, in any circumstances where material can be obtained by way of defence investigation rather than requesting disclosure from the Prosecution, that would be my preferred approach. Anything requested from the Crown by way of disclosure requires them to review that material. There is an inherent danger in this. Take, for example, CCTV from a GP surgery at which the Defendant had been working as a locum (therefore a neutral premises). Something as subjective as demeanour of the Complainant after a consultation during which they allege a sexual assault has taken place can have an impact on his/her credibility. This is evidence that could be very valuable but also carries an unquantifiable risk.

Say, for example, the Defendant recalls that the Complainant was in good spirits and behaving normally when she left the consultation. There is CCTV from the main door available. If, indeed, she appears on it smiling, chatting on the telephone or doing anything inconsistent with her allegation when she leaves, it could be valuable. If, on the other hand, she has what could be regarded as a glum facial expression, she walks out with her head in her hands or behaves in a way consistent with her evidence, it could be damaging. You don’t know until you have seen it. Asking the CPS for disclosure means they are under a duty to review it and therefore alerted to evidence that could potentially be served in support of their case. Obtaining the evidence directly, where possible, removes the risk. Whatever the instructions and however reliable a Defendant seems, they are not objective so there is an inherent danger in relying on instructions that requesting a certain piece of material will not be damaging. There is no disclosure duty on incumbent upon the defence so if you obtain material that gives a negative optic to the defence case no harm is done.

Social media

There is a potentially huge and often untapped resource of material with the potential to undermine a Complainant’s credibility on social media. Privacy settings are available to all social media users so any material that is not protected by them can properly be regarded as being in the public domain in the same way as anything else on the internet. There is a growing body of caselaw on the admissibility of hearsay evidence from Facebook which is a separate (long) topic. Putting that aside, any material properly obtained relating to a Complainant can be put to them in cross examination providing it can be properly adduced. My own practice is to ask for a social media trawl to be undertaken by an employee of my instructing solicitor who is not involved in the trial (therefore could give evidence if required) or an enquiry agent. This should be done as soon as possible and repeated at regular intervals with screenshots being taken in case posts are deleted. The person taking the screenshots can then prepare a short statement adducing them. How to deploy any undermining material will always depend on the strength of the Prosecution’s case and the extent to which the material undermines it.

In a case where there is material directly undermining the allegation and a sensible prosecutor there may be good reason to draw it to the attention of the Prosecution in advance of trial in the hope of avoiding a trial at all. If, however, for example, the Complainant says that, immediately after the alleged offence they were profoundly affected to the point of becoming a recluse, yet their Facebook or Instagram shows reliably dated photographs of them out on the town with friends (#livingmybestlife) it may be a safer approach to save that evidence for trial and put them to the Complainant in front of the jury after adducing the evidence of their reaction to the alleged assault. Because of the prohibition on discussing jury deliberations it is impossible to conduct research on the types of factors that affect a juror’s perception of reliability or credibility but my own observations both from defending and prosecuting are that seeing any witness presented with and try to provide an answer for something about which they have clearly lied is far more powerful than any forensic analysis of agreed facts.

There is also a not insignificant proportion of Complainants in the types of cases involving medical professionals who have genuinely misinterpreted proper clinical examinations and for whom communication is the issue.  In those types of cases social media communication and conversations can be invaluable, often in combination with previous medical notes, in illustrating to a jury how a situation could easily arise where they misunderstand. This obviously requires a much more subtle and sympathetic approach in it’s execution.

The most significant decisions, perhaps with sexual allegations more than any other type of alleged offence, are often the tactical and strategic ones made during the trial. They can only be executed to best effect with careful and thorough preparation, balancing risk with potential benefit of every question asked and every piece of evidence disclosed.

Catherine Silverton

Park Square Barristers

3rd April 2020

Catherine Silverton is consistently recognised in both Chambers & Partners & The Legal 500 as a “very thorough and knowledgeable practitioner” who’s “understanding of cases is often light years ahead of the opposition”.

She sits as a Class 2 Recorder in the Crown Court where she is able to hear cases involving Rape and other Serious Sexual Offences.

Complemented by her background in general crime where she specialises in cases involving medical evidence, Catherine has experience in a multitude of regulatory and disciplinary areas with a particular interest in cases involving serious sexual offences involving medical and healthcare professionals.

Catherine is part of our Healthcare Regulatory Team

Contact Catherine’s Regulatory & Public Law Clerk

Madeleine Gray on 0113 202 8603