Book Review: Sexual Offences- a Practitioners Guide (Richardson/Clark)

Book Review: 

Richardson and Clark: Sexual Offences – A Practitioners Guide  (Publ. Bloomsbury )

Many LCCSA practitioners will have benefited from the recent CPD talk “everything you wanted to know about sex but were afraid to ask”.

Richardson and Clarks book sets out not only to provide the basic information you need to know, but how to put it into practice.

LCCSA member Nigel Richardson heads the criminal department at HJA and sits as a deputy District Judge.

Peter Clark is a barrister at 187 Fleet St. who specialises in sex cases. There is no doubting their combined experience, but knowledge doesn’t always translate into a good book. 

Thankfully, this time, the authors have accomplished exactly what is set out in the sub-title: a “practitioners guide”.

This book comes at the right time. The government have confirmed their intention to enact as policy what has been a much-trailed and anticipated policy announcement relating to compulsory training for advocates undertaking sex cases. 

This development is to be welcomed, as poorly conducted cases lead to trauma for victims and witnesses, miscarriages of justice, and bring the profession into disrepute. 

The foundation of any training is knowledge of the law, procedure and practice, and this text serves as a useful refresher, a summary of current legislation and case-law, and a guide on every aspect of both litigation and case preparation.

This guide covers every aspect up to and including sentence and the new guidelines, SOPOs and the sex offenders register.

I haven’t read the book from cover to cover-it’s not that kind of book- but the guide Set out clearly, well indexed,And extensively referenced.

Any practitioners guide has to be user friendly, and I was able to put this to the test as I was reviewing this book whilst defending in a sex case at Woolwich Crown Court. 

The evidence against a Co-Defendant by the key witness departed substantially from anticipated evidence and left a question mark on whether there was a case to answer on a Sex Assault Count. The issue became whether the touching was “sexual”,  and this book had the relevant provisions in a distinct chapter (chapter 2) together with discussion and comment. It passed the test, going beyond the basic definition which Archbold provided, and led to the foundation of a submission of no case to answer.

 

Part A of the book divides the law into concepts (consent, sexual, penetration, intoxication) which are relevant to the numerous offences, each offence is then considered individually in parts B and C.

What distinguishes this from other text books and makes it truly a “practitioner” guide is the inclusion of additional topics such as how to deal with PII, medical evidence and toxicology, DNA, previous inconsistent statements and so on. 

There is also guidance for “historic” sex offences, examples of which seem to be in the news so frequently at the moment. There seems to be little prospect of using abuse of process to stay sex cases for delay, following a case the book cites from 2013 (R v RD ) where proceedings were started after a delay of 63 years. Given the difficulties for witnesses recalling facts and dates after the passage of many years (think of Rolf Harris who tried to run alibi for one charge but didn’t remember that he had ever been filmed for a TV programme in that very location at the relevant time) the  authors are understandably troubled by the prospect that a chance of acquittal may depend on whether or not a Defendant has “hoarded” a diary or documentary evidence.

The DPP has recently  issued new guidance and protocols for prosecuting historic sex cases: they are not referenced in this book and should be examined in addition by anyone advising on historic abuse. What this guide does have however is chapters dealing with offences under previous legislation such as the 1956 sex Offences Act, which need to be revisited in historic allegations.

Another subject (contributed by LCCSA member Samira Noor-Khan) as a distinct topic is police station attendances Advocates will know that often cases are won or lost in the police station, and arguably in sex cases more than others the decision whether to answer questions or make no comment has potentially huge ramifications for cases that inevitably end up before a jury. 

In the days of the “old” caution (before adverse inferences) when every adviser in almost every case advised “No Comment” raising “Consent” as an issue was considered an honourable exception. But then, as now, each case is fact specific and suspects deserve proper advice from experienced lawyers. I recently saw a firm of solicitors seeking an agent to attend a police station late at night to advise a 15 year old accused of rape. The fee offered was ¬£100. I hope they found someone who knew what they were doing. Whoever attended, it would have done no harm to have this practitioners guide for reference, (along with Ed Cape’s indispensable guide to police stations)

Like all books, this guide is stronger in some areas than others. The section on “false statements” (and s41 YJ&CEA generally) is excellent and user friendly.

A section on “bail” by contrast is not informative, and there is for example no advice or commentary on excessive bail periods, so prevalent in sex-case investigations (and currently quote topical, with promised legislation following high-profile investigations such as Paul Gambicinni) 

I would also have liked to see a section about advocacy, particularly as a framework for the forthcoming compulsory training referred to above).

But these are minor niggles in what is generally a useful asset to the lawyers armoury:- in short a concise, practical guide to the labyrinthine legislation and the over-riding topics. 

One omission that members who attended Prof Ormerods presentation at the LCCSA conference in Alicante may spot is the case of Thompson (2014) about sexual touching (the appellant with aspergers touching a minor in circumstances where he may not have realised it to be “sexual”)

There is also no mention of the recently reported case of R v Kamki [2013] EWCA Crim 2335 which deals with lack of consent in intoxication cases, and publication was too early for an important case dealing with consent and mental capacity (Avanzi 2014). These cases and others demonstrate the area of sex-crime is ever-evolving, and only this month we learned of proposals trumpeted by the MOJ  specifically to deal with “revenge-porn” , which many of us were foolish to think was already illegal. No doubt, in due course we will need a second edition of this guide.

Until then, there should be a copy in the library of every criminal firm, and if there is not, you will have to buy your own or risk being caught out next time you are advising or representing in this area.