Let the British girl walk. Let her go

By Alper Ali Riza The British teenager convicted of knowingly making a false statement to police in Cyprus about being gang raped by a group of Israeli youths will be sentenced on Tuesday, and the hope is that the judge will be lenient and not impose an immediate custodial sentence....

The post Let the British girl walk. Let her go appeared first on Cyprus Mail.

By Alper Ali Riza

The British teenager convicted of knowingly making a false statement to police in Cyprus about being gang raped by a group of Israeli youths will be sentenced on Tuesday, and the hope is that the judge will be lenient and not impose an immediate custodial sentence.

Judges have to take into account the culpability of the offender and the harm caused by the offending, and her case is strong on both counts. At the end of his judgment the judge found that the reason she made a false complaint was because she realised she had been videoed having sex and felt embarrassed and ashamed. Culpable are those who video-recorded her having sex and caused her serious harm that may take years to heal. It is true that the Israeli tourists were arrested and detained for a short while, but they brought that on themselves by a gross violation of this young woman’s privacy.

I would let her off with an absolute discharge; her complaint of rape was only a technical lie. Sex with a woman while secretly video-recording her, knowing she would not consent, is not consensual sex. Her complaint was no fantasy as the particulars of the offence alleged. On the judge’s finding, she felt ashamed when she found out she had been video-recorded having sex, which is strong evidence that any consent she gave was vitiated ab initio – from the beginning.

The essence of the offence of rape is lack of consent. If a woman refuses or is unable to give or withholds consent, it is rape. Also, fraud can vitiate consent if it goes to the identity of the man or the nature of the conduct. So if a man has sex with a woman pretending to be her boyfriend, or a doctor has sex with a patient pretending he is engaged in some sort of therapy, the consent of the victim is vitiated by the fraud.

Fraud is a wide concept that can arise in a variety of ways. One of them is conduct coupled with silence about a material fact. Most women would not consent to having sex if they knew their partner was filming their sexual encounter. So failure to disclose such filming vitiates consent since a woman is just as likely to withhold consent if she knows her private sexual encounter is being video-recorded as she is if she knows her sexual partner is not her boyfriend.

With the advent of the ubiquitous smart phone the problem of secret video and audio recording of women by men while having sex with them is on the rise. In England there are criminal offences that come under the rubric revenge pornography – disclosing private sexual photographs and films – but those offences do not carry deterrent penalties. So, there is scope for extending rape by failure to disclose secret filming of a sexual encounter to a partner.

Most of the other problems raised by this prosecution are of a systemic nature.

To begin with it was perverse that the police used evidence from a smart phone against the poor girl to show she had had consensual sex, yet it did not occur to anyone that it was basic fair play to use the same technology to audio and video her interviews, the retraction of her complaint and the circumstances of her confession.

The right to a fair trial in the ECHR contains a provision that requires states to provide facilities to a defendant for the preparation of her defence; so for the police not to audio and video a suspect when obtaining a confession while the rest of the population videos and records everything incontinently using smart phone technology, was an egregious error of judgement.

Another systemic problem was that the judge who heard the trial within a trial to decide the admissibility of the confession was the same judge that tried the case. The problem is that he ruled in trenchant terms that she was not a credible witness, yet he was the trial judge who just copy pasted his previous findings, which is absurd and drives a coach and horses through the principle of a fair trial by an impartial and unbiased tribunal.

It works in the UK because we have trial by judge and jury – the judge decides on the admissibility of a confession in the absence of the jury and the jury decides the guilt of the accused.

In a split trial where the confession was the crucial evidence, there was no practical need for the same judge to hear the trial within a trial and the full trial. One can see that it is sometimes impractical to have a trial within a trial by a separate judge, but not in this case as the two were heard a month apart.

And why was there no lawyer or interpreter present? They are there to protect not just the suspect but the integrity of the investigation and the police. According to the police she was offered the right to lawyer the moment she became a suspect, although she was probably a suspect the moment the police saw the video recording. It is not clear if the right to consult a lawyer was contained in a document in English or she was advised orally of her right, but at all events the police evidence was she refused. In fairness to her, given that it was past midnight, she should have been provided with the names and emergency numbers of lawyers, or better still the interview should have been adjourned until the next day to enable her to consult a lawyer herself.

With the best will in the world the decision to allow the police to use her confession made her trial unfair: the court had no independent evidence in the form of an audio and video recording of the interview and a lawyer was not present to ensure and confirm the confession was made voluntarily without pressure from persons in authority. The process was fatally flawed. The judge found the police officers credible. They often are, provided always there is independent proof they are telling the truth.

There is a scene in the film “Bridge of Spies” in which Tom Hanks who plays the lawyer Janes Donovan defending the spy Rudolf Abel is trying to persuade the prosecutor that the spy must have a fair trial in the US. He tells the prosecutor “you are a German and I am an Irishman, what do we have in common as Americans? The rules. The constitution. Due process.” I wish I could say the same about Cyprus.

Alper Ali Riza is a queen’s counsel in the UK and a part time judge

The post Let the British girl walk. Let her go appeared first on Cyprus Mail.