Masood Mansouri jailed for rape even though victim had died

Masood Mansouri jailed for rape even though victim had died

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Photo from the BBC

Introduction

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.

 

Hearsay

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“.

 

Sentence

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.

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Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

16 COMMENTS

  1. There are limited circumstances where an ABE interview would be appropriate and the ECtHR (please stop calling it ECHR) has ruled that way but the Masood Mansouri case wasn’t one of them. The use of ABE in this particular case was manifestly unjust because:

    1) The complainant was clearly mentally unstable. She had a long history of psychiatric problems, which started to manifest at the age of five when she would pull her hair out and suffer from stress-induced asthma attacks. In July 2009, whilst 15, she claimed she was the victim of a sexual assault by an 18-year-old who was convicted. Three months later, she was admitted to hospital after taking an overdose of tablets and has a long history of overdoses and suicide attempts and was diagnosed with PTSD. In fact, in the six months before the alleged attack she was treated in hospital after unsuccessful suicide attempts. Apparently she was unable to cope with her child.

    Given the complainant’s serious mental health problems, there are serious questions about her mental competence to give evidence. Without a forensic psychiatric assessment it is ridiculous to suggest she was competent to give evidence; on the face of it, she’s plainly not. Moreover, the defence were denied the opportunity to present evidence that she was misdiagnosed with PTSD and suffering from other psychological disorders that would render her testimony unreliable.

    2) The circumstantial evidence doesn’t support kidnap and rape. The complainant suggests that on Sunday, 10 August 2014 whilst partying with friend from Chester Uni, she got into Mansouri’s Beamer 3-series initially believing it to be a Taxi and asked him to go to drive her and her two friends to Bar 69 in Boughton, but that he instead drove her to his house in Saltney without her consent. She sent three texts to her friend, the first at 12.28am saying she had been kidnapped, and the other two said she was ‘not joking’ and ‘Literally scared’, but by her own admission she went into his house without any resistance albeit under verbal protest. Where they had sex (she says non-consensual).

    Whereas, whilst Mansouri accepts that she flagged him down and asked to go to Bar 69 but he suggests that he told her he didn’t know where it was and said he would drop her in the city centre, and that she asked to go somewhere more private and kissed him. They ended up going back to his house in Saltney. Where he offered her a drink before they had consensual sex at her initiation.

    On her own account she was clearly aware that he wasn’t a taxi cab driver shortly after getting into his car and it is accepted that he never suggested otherwise, therefore it is reasonable to ask why did she not get out the car or call the police if she thought she was being kidnapped? She could have done so easily.

    Moreover, if as she suggests, she didn’t want sex why did she go into his house willingly and accept a drink off him? And why didn’t she resist his sex advances? By her own admission no threats were made. Given her mental state can she honestly say whether she was unwilling and if so did she communicate that?

    All these questions needed to be put to the complainant and followed up under cross examination. Furthermore, given that her version doesn’t really sit that well with kidnap and rape, the defence really ought to have been able to put his version to her.

    • Are you saying if a women doesn’t put up a fight “why didn’t she resist his sexual advances” that she hasn’t been raped?

      If a woman gets into a car in particular a “beamer 3 series” that she hasn’t mistaken it for a mini cab, she actually is agreeing to sex, and therefore she can’t have been raped?

      If she has a history of mental illness and stress induced asthma that she can’t have been raped?

      Apparently, “she was unable to cope with her child” well there you go, the defence rests, she can’t have been raped because she found motherhood a challenge.

      If she consented to sex, as the convicted rapist suggests (well he would say that wouldn’t he) and the evidence was put to the court why didn’t they believe him in a area where it is notororiously diffcult to even get it to court let alone secure a conviction?

      Are you putting the victim, a vulnerable adult if these accounts are correct, on trial rather than the rapist and are you victim blaming? Is it any wonder rape victims are reluctant to come forward. I know more about the victim’s entire life then I do about the rapist save for that he drives a BMW and pretends to be a mini cab driver.

      • @ Liberte, Egalite, Sororite

        Mr Mansouri was convicted “solely or decisively” upon the untested evidence of the complainant. Whilst the ECtHR has ruled that this doesn’t automatically result in a breach of Article 6 § 1 or 6 § 3 (d) of the ECHR, there must be a good reason for absence of the witness and sufficient counterbalances to the evidence of the absent witness. The question of whether this absent witness evidence should have been admitted in the circumstances is a matter of due process, not whether or not Mansouri actually kidnapped and raped the complainant.

        Also, whilst I have not suggested that the complainant’s mental health problems necessarily render her unreliable witness or incapable of being raped, I’m not going to shy away from saying the blatantly obvious: her repeated attempts to take her own life over the six-months prior to the alleged kidnap and rape and life long mental health issues are more than sufficient for the defence to question her mental competence. In fact, had she not intentionally taken her own life, the defence would undoubtedly have requested a forensic psychiatric assessment. It is only right that the court should question the reliability of any witness who intentionally kills herself only days after recording her evidence. I would have argued that her suicide was a manipulative attempt to pervert justice and post mortem attention seeking, and that she shouldn’t benefit from intentionally making herself unavailable to give evidence.

        Moreover, the circumstantial evidence just doesn’t support kidnap and rape. She got in the car voluntarily and would have had ample opportunity to alert the police or get out of his car if she thought she was being kidnapped. She was’t forced to go into his house and she offered no physical resistance whatsoever. When she abruptly left, she didn’t call the police, her friends or her family, but instead called a taxi. This isn’t to say that she wasn’t kidnapped and raped but there are plenty of difficult questions that needed to be put to her under cross examination, and whatever the truth of that night, Mansouri version is logically plausible and therefore also ought to have been put to the complainant.

  2. How times change. In 1982 I acted for a man accused of rape – a “he said, she said” case par excellence – and before the trial the young woman concerned was unfortunately killed in a car accident. No suggestion that it was anything but an accident; a car-driver was drunk and crushed her and her bicycle against a wall, and both were killed on the spot.

    I applied for bail because there was no longer a case, or at any rate no witness to intimidate, The judge suggested that he be arraigned at once, he was, the prosecution offered no evidence.

    I have to say that I think that was right. The defence has a right to cross-examine the prosecution witnesses. The extent of cross-examination is restricted, and so it should be, but the right is still there, and if it cannot be exercised the trial should not proceed.

    From time to time rape complainants do not show. What happens then?

  3. Why is this only argued in rape cases. Murder victims do not and cannot stand up and give evidence…need I say more.

    • and to qualify that further cos I can you hear you. There have been successful murder prosecutions where no body has been found.

  4. And many murders are probably undetected and unprosecuted if detected because the body can’t speak.

    The point is that in a case like this the complainant has given evidence in chief but cannot be cross-examined, and it is just not right.

    • I think I agree with Andrew on this one.

      It’s not the case that the hearsay cases are only rape – none of the ones that were in the ECtHR (that came up with the ‘sole and decisive’ rule) were rape or sexual assault cases I think.

      • The only sexual violence `sole and decisive’ rule case heard by the ECtHR that I’m aware of is Al-Khawaja and Tahery v. the United Kingdom. Imad Al-Khawaja was charged and convicted of two counts of indecent assault against different complainants. One complainant later committed suicide, and he argued that he was convicted on the one charge of indecent assault solely on her untested written statement. The chamber found the UK in breach but the Grand Chamber reversed that on appeal. The key issue was that the defence cross-examined the other witness on similar evidence, which served as a reasonable counterbalance to the disadvantage of not being able to test the absent witness’ written evidence.

  5. My goodness!!! Totally unbelievable! For one, a lot of what Stefi has blogged is actually factually wrong and for another, reading through Stefi’s blog would lead me most certainly to believe that she is the one with serious mental health problems!!! My daughter absolutely DID NOT display any serious mental health problems until her first sexual assault when she was fifteen! She had believed the car was a taxi . . . there are just so many big inaccuracies in Stefi’s blog, more than I have mentioned, and to say that her suicide was manipulation is sick, twisted and totally insane

  6. She didn’t just claim to be a victim of a sex attack at 15 Stefi, she WAS a victim of a sex attack, case proven and successful conviction! The defendant pleaded guilty in that case!

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