The news reported on 30th April 2015 of the case of Masood Mansouri who was jailed for 13 years for the rape, sexual assault and kidnap of Ceri Linden last year.
The fact that Ms Linden is named indicates that there is something unusual about this. In fact, the reason why this case was in the news, was the fact that Ms Linden had sadly died prior to the trial.
The attack occurred on the 10th August 2013 when Ms Linden flagged down a car driven by Mr Mansouri that she thought was a taxi. Mr Mansouri agreed to drive her to a bar that she was intending to go to, but during this attacked and raped her.
After this was reported to the police, as is usual in this sort of case, Ms Linden gave an ABE interview. ABE, or ‘Achieving Best Evidence’ is effectively a video recording of police officers asking Ms Linden questions about the incident and her answers. This was played to the jury.
The normal rule is that people have to give evidence live in court, so that the jury can properly assess their evidence and they can be asked questions by the lawyers for the other side. Although there have always been exceptions to this, there were huge changes brought into effect by the Criminal Justice Act 2003.
Here, the Court can allow a video evidence to be played if a witness is dead (s116 Criminal Justice Act 2003). This isn’t an absolute right, and questions of fairness are in play (see here for a bit of an overview).
Can it be fair to have a trial without the main witness for the prosecution being present? The English and Welsh Courts have firmly held that is it, the ECHR is not quite so sure, but gives a tentative yes (the US Supreme Court is pretty sure it isn’t, based on English Common Law).
There are good arguments on both side with respect to this. On the one hand, it is wrong that someone should ‘escape justice’ because their victim is unable or unwilling (with good reason) to come to Court, especially if this is due to the actions of the defendant.
On the other, a statement or video interview is no substitute for giving evidence in Court. And if we believe that oral evidence and cross-examination is the best way of getting to the truth, then there is a higher risk of a miscarriage of justice and an innocent person being convicted. To admit the evidence “because [the] testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty“.
Looking at the sentencing guidelines at page 9. It looks like a 2B offence, but we don’t have enough details to say for sure. This gives a range going up to 9 years, so even allowing for extra for the additional sexual assault and kidnap, this seems a shade on the high side. However, the Judge heard the trial and we don’t really have much details, so we would not expect an appeal to get very far with it.