It is not every day a senior member of the judiciary is charged with a criminal offence, let alone one consisting of exposing himself in public. It is rarer still that a prosecution leaves us with no conviction but with victims on all sides. The recent case of Sir Stephen Richards, the Court of Appeal Judge, achieved this ignominious distinction and now ought to represent a zenith in public dissatisfaction with the criminal justice system. However you slice it, something went wrong.

It is unusual for a prosecution leaves to us with no conviction but with victims on all sides. The recent case of Sir Stephen Richards, the Court of Appeal Judge, achieved this ignominious distinction and now ought to represent a zenith in public dissatisfaction with the criminal justice system. Sir Stephen elected for a Magistrate’s Court trial. He was acquitted. We think that from everyone’s point of view the prosecution was wrong and has produced a series of innocent victims. The most obvious victim in this case is Sir Stephen Richards. A relatively young, widely respected Lord Justice of Appeal tipped to become a future law lord and perhaps even Master of the Rolls, he suddenly found himself catapulted into criminal proceedings, accused of being little better than a dirty old man in a Mac. He was acquitted on the basis that the prosecution had not discharged the burden of proof. To an outsider this always seemed the most likely verdict. To those who knew him a certainly.

There was always an Alice in Wonderland quality to this prosecution. The reason given for the dismissal of the charges sub silentio brands the British Transport Police (BTP) as incompetent and, by the same token, creates doubt that the Crown Prosecution (CPS) considered the sufficiency of the evidence. Bluntly put, the authorities commenced a prosecution of a senior member of the judiciary without adequate corroboration of the identification. Only time will tell what damage it has done to Sir Stephen's reputation and career. The fact that two women have since come forward with fresh allegations suggests it will be considerable.

The next victim is the poor lady who was subjected to indecent exposure on the Raynes Park to Waterloo train, not once but twice. Whilst she preserves the anonymity denied Sir Stephen, which may be simultaneously both a blessing and a curse, she can hardly feel vindicated at the hands of the system. It follows from Sir Stephen's acquittal that the flasher remains at large and free to stalk other commuter trains. It seems improbable that that person will ever now be found and brought to justice - a thought hardly likely to comfort the complainant.

The third victim is the public. They will have three main concerns. First, that the acquittal means the true culprit has not been brought to justice. This means that the original ‘investigation’ and prosecution were a shambles because the CPS prosecuted the wrong man. Second, that the trial has tarnished the reputation of an innocent man. We think that does matter to the British public. Third that in light of recent allegations, the Criminal Justice System has singularly failed to achieve ‘certainty’ either for Sir Stephen or the Public. With ‘new’ allegations hanging in the air, inevitably there’s fresh tirade of speculation.  No-one likes that.

Sir Stephen was tried by a male district judge and two lay magistrates, who happened to both be female. This was exceptional. As salaried, professional justices, District Judges sit alone in the Magistrates Court; conversely, lay justices, not professional judges or even lawyers, sit in panels of three. They do not sit with District Judges. As previous reported by The Times, apparently, District Judge Workman made this unusual decision after "consultation" with the President of the Queens Bench Division, Sir Igor Judge, who sits in the Court of Appeal potentially alongside Sir Stephen. We do not know when that decision was made or why Sir Igor Judge was consulted, but it was extraordinary that it should have happened. This is because there appears to be no statutory basis for it.
 

We are not suggesting that there was any impropriety in the proceedings but as the Court of Appeal has stressed, there can be the appearance of bias without any actual bias.  Any "consultation" between an adjudicating magistrate and a Court of Appeal judge - a colleague of the defendant - in the run-up to the trial is unfortunate -   It may well be the case that the judiciary considered that by involving lay magistrates they thought that were protecting both the integrity of the judiciary and avoiding any suggestions of bias. But any change to the way such cases are run, can inadvertently create the opposite effect in the public's mind.

The appearance of impropriety is also not improved by the fact that District Judge Workman was awarded a CBE on July 16, just two days after the decision. District Judge Workman has worked tirelessly for the improvement of the administration of justice over the years, and his CBE is objectively justified. The decision to honour him would also have come much earlier than the date it was announced to the public. But that's not the point. The fact that his ruling was rigorous, logical and well-reasoned does not dispel the potential perception that the judiciary has merely taken care of one of its own. Many people will have assumed from the outset that there was as much chance of Sir Stephen being convicted as Elvis being found alive, a point of view that represents a kind of reverse prejudice but which is, sadly, very difficult to demolish. It is probable that the ‘system’ bent over backwards to not only evince but actually create an environment where Sir Stephen had a scrupulously fair trial.

The problem is that public confidence in the justice system will have been dented by the inadequacy of the prosecution, every aspect of which was, upon scrutiny, desperately unsatisfactory. The BTP's failure to obtain CCTV footage of the incident, for one thing, is nothing short of inexplicable. The police claim that sometimes such footage cannot be obtained for "operational reasons" is, in a city that has been through the 7/7 terrorist bombings, fatuous. These concerns increase when the CCTV surrounding the most recent failed terrorist attacks in London was apparently swiftly recovered. So why wasn't the CCTV footage relating to the complainant’s allegations against Sir Stephen obtained within 31 days of the complaint? Legally, the footage had to be preserved for at least that period. So why couldn't the Police get hold of it? Who then decided that a prosecution of a sitting Court of Appeal judge was justified when there was no corroborative identification evidence?

Sir Stephen, understandably relieved that his ordeal was at an end, declared: "I have put my trust in the legal process; I am delighted it has enabled me to clear my name."

He was speaking in a personal capacity and under extreme conditions. He and his family were put through hell. He deserves some latitude. For otherwise, it would be surprising for an Appeal Court judge to express such public confidence. The Defendant was acquitted at the conclusion of a process that demonstrated the worst ineptitudes of the ‘criminal justice system’. The Prosecution had failed to obtain the key piece of ‘corroborative’ evidence for the trial. The absence of that material was cited by the court as the pivotal reason for finding that the Prosecution had not proven its case. That was the basis for the acquittal. Equally, Sir Stephen ought to have been painfully aware that it was capable of being the vital evidence to exonerate him and set whispering tongues at rest.  Thus as a Senior member of the judiciary, if Sir Stephen perceives his acquittal by a Criminal Court as in and of itself  "clearing his name" we believe that he and we entertain profound ideological differences about the function of the Criminal Courts. The true tragedy here is that the criminal justice system spectacularly failed. It had a victim, but it prosecuted the wrong man and it did it so badly. At some stage it potentially possessed the materials to find the right man. Inexplicably, that evidence wasn’t obtained. Quite who is to blame for that, we might never know. If there’s a “closing ranks” argument to be made, we’re not convinced it should be aimed at the judiciary. We think there are better targets: for surely the investigating and prosecutorial authorities have some considerable explaining to do?

Hopefully in future the same authorities will be more scrupulous in their gathering of material and analysis of identification evidence in criminal cases. But we’re doubtful that much will change or at any rate soon. This is because no-one has stepping forward to shoulder responsibility. Quite the opposite. The Public have been confronted with ‘explanations’ from the authorities citing “operational” difficulties in obtaining the CCTV evidence. One can't help but feel that a similar thing could happen again.  We don't imagine that the run of the mill defendant will find the Magistrates' Court consulting the President of the Queens Bench Division about the composition of their panel.

The spectacle of Sir Stephen exhibiting his underpants in a court room was an unfortunate one, but the real trouble is that this case has stripped justice itself to its underwear. We are all the losers.

 

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