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Australia is showing the way…

Believe me, when you’ve had the CPS making rigid decisions you question the burden of proof and rationale of the UK’s criminal justice system.

Australian flag - intelligence & risk solutions

Now that’s an opening statement. Am I actually suggesting we lower the burden of proof to convict more criminals? Erm, no, I don’t think that would be a wholly good idea. Remember I started in the police not long after ‘Life on Mars’ type cops were roaming our neighbourhoods.

I used to listen to the ‘old lags’ on my team when I was an impressionable young cop. ‘Job’s knackered’ (actually the language was a little more colourful than that). ‘It was better when we had Judge’s rules’, this one was a moan about the rigidity of PACE, the Police and Criminal Evidence Act 1984. This was brought in because of repeated scandals of the police ‘fitting’ criminals up and getting false admissions in interviews.

Yet, surely, the burden of proof has to be more aligned to the serious nature of the offending, and punishment? Right? Or am I off-stage left? It’s only an extension to traffic offences. These are (mostly) strict liability, which means if they say you’ve done it, you have and that’s it.

I mean, for the police to have to reach the same burden of proof for a 12 year old shoplifter who has nicked a mars bar as they do for a murder suspect is ridiculous. Not because I think we should be punishing 12 year olds, but I do think we shouldn’t be sending kids to Crown Court and we shouldn’t waste valuable resource to reach ‘beyond reasonable doubt’ for minor offences. The country can’t afford the level of detail to get convictions on minor offending and, to be frank, the courts punishments are woefully inadequate when compared with the cost of the case to investigate.

So, do we, just stop investigating minor crime? I’m sure if it’s your precious garden gnome that’s gone ‘walkies’ in the middle of the night you want justice. But really, is it worth police time to be spent chasing whoever is the kidnapper of geoffrey the gnome? The same volume of work needs to go into that to get a detected crime as would a violent knife-point robber. ID parades, solictors, court costs, and on and on.

Australia

Two cases from ‘down-under’ have recently spiked my interest to show a way to justice.

The first is that of Ben Roberts-Smith. The most decorated Australian soldier. He was the living embodiment of a real true life hero. Awarded the Australian Victoria Cross for single-handedly overpowering a Taliban machine gun post who was engaging his platoon.

Ben roberts smith - intelligence & risk solutions

Coming out of the Australian SAS Roberts-Smith was afforded corporate opportunities based on his hero status. But it all began to unravel when questions over his involvement in war crimes were produced in three Australian newspapers. Roberts-Smith challenged the papers in civil court and so started a trial that gripped Australia. He was accused of six extra-judicial killings, among many other allegations of domestic violence, and other war crimes. The judge listened to over 40 witnesses including other SAS personnel, Afghani citizens and civillian witnesses.

The judge said four of the six murder allegations – all denied by the soldier – were substantially true.

These included:

  • A handcuffed farmer the soldier had kicked off a cliff – a fall which knocked out the man’s teeth, before he was subsequently shot dead
  • A captured Taliban fighter who was shot at least 10 times in the back, before his prosthetic leg was taken as a trophy and later used by troops as a drinking vessel
  • Two murders which were ordered or agreed to by Mr Roberts-Smith to initiate or “blood” rookie soldiers.

I have written about my time in Afghanistan on another blog. I blew the whistle on extra-judicial killings and it was this experience that led me to build Aranea – our anonymous messaging system, designed to help people bring wrongdoing to light without compromising on their safety.

I will always support the British military, in terms of the troops on the ground. I think they sometimes get put into intolerable positions by politicians who deploy them with inadequate rules of engagement. Some break the rules and for that they should face justice. Without that we are just invaders in another’s country. We’re just killing potentially innocent people, just like Al Qaeda did when they caused the Twin Towers to collapse.

We have to upload the moral high ground or we lose authority to prosecute it.

The court case cost £13 million. A cost that Roberts-Smith will have to face.

Second Case

The second case relates to an allegation of rape that took place inside the Australian Parliament building in Canberra in 2019. The victim reported it and the man, Bruce Lehrman was charged to criminal court. Two failed attempts at a trial resulted in the prosecution offering no evidence.

Australian parliament rape - intelligence & risk solutions

And then Network ten ran an interview with Brittany Higgins, the girl who made the allegation. Lehrman then sued the outlet citing defamation.

The judge in the Civil defamation case found that the rape did indeed take place as alleged by Higgins and Lehrman now will be known as a rapist, regardless of the lower burden of proof to carry that title.

Why does this matter?

The prosecution of rape in the UK is very difficult. Frequently, the cases reported are word versus word with little in terms of independent corroboration of accusations. Even, on occasion, when there is independent evidence (minor injuries that are consistent with use of force for example) juries don’t convict. There are lots of reasons for this, some justifiable in terms of justice and some definitely not. Juries are exceptionally difficult to ‘read’ and can sometimes make ridiculous decisions.

Obviously, there are groups who support more effective justice for survivors of rape. The Australian case matters because it shows another route to justice. Using the lower burden of proof, girls having suffered horrendous attacks can secure a form of justice and even damages against the male. This more balanced court setting is likely to find many, many more men guilty of rape and result in financial damage awards for the female.

The difficult bit is the cost to go to trial. And this, I believe, is where the support groups come in. Raising funds for such an endeavour to support the female is much more effective than an arm around the waist when a not guilty verdict comes through in criminal court.

And of course, it might make ‘some’ men think twice about whether the lady consents in those cases where the argument isn’t over a stranger rape in a park but whether the act took place with consent or not in an already established relationship or a ‘nightclub’ encounter.

This surely is the route for females who have been attacked, as the way to prove it and get justice from a system that when the allegation is prosecuted criminally, is stacked against them.

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Author Bio.

Andy Parr is a career detective and anti-money laundering expert. He served in the UK, Afghanistan and the Cayman Islands. He welcomes critical thought leadership and commentary to expand his own ability and advance the subject matter. Andy now leads HX5 Encrypted to help organisations get to the groundtruth in their organisation. Andy has led on every type of criminality you can think of. From murder to white collar crime and everything inbetween. Contact him to see how HX5 can help you.

Read all of Andy’s Posts here.