19 October 2013

R v Speed: Tactical Reasoning

This brief analysis considers R v Speed. Lord Justice Rix recognises the defence is tactical but ultimately dismisses the claim that the trial judge erred when directing the jury about evidence.


Court of Appeal (Criminal Division)

[2013] EWCA Crim 1650

7 October 2013

R = Prosecution (P)
and
Robert James Speed = Appellant/Defendant (D)

Sir Bernard Rix LJ, Field J, and Sir Geoffrey Grigson

1. The Appeal

D appealed against a conviction under the Sexual Offences Act 2003 s 66(1). D thrice flashed two children. The evidence against D was the children's statements. D made some comments about the children's parents' motives for encouraging their children to accuse D, but the appeal's crux lies elsewhere. It is the process by which D was convicted that D appeals against.

In paragraph 17 Rix LJ summarises the problem addressed by D's appeal: children's evidence may have less weight than a consistently-honest adult's but D is not in that category; notwithstanding legal safeguards, D is a proven liar whose word is worth less in the jury's eyes than an honest adult's. The weight afforded to D's assertions is therefore closer to the weight attached to an ordinary child's.

To reduce D's assertion's weight in this manner involves evidence that D has a bad character. To introduce such evidence, P must usually pass a gateway through which bad character evidence becomes legitimate. (The Criminal Justice Act 2003 (CJA) s 101(1) governs this procedure and lists seven gateways through which the evidence must squeeze.) In Speed, though, D tactically pushed his own bad character through gateway (b) to show that none of his previous convictions were for sexual offences. D hoped to suggest to the jury he was not that sort of criminal.

This is tactical for two reasons:
  1. After questioning the children's (parents') motives for accusing him, D's bad character would have been admissible through gateway (g) because it was 'an attack on another person's character' (CJA s 101(1)(g)). While subject to judicial discretion (CJA s 101(3)), D assumed his bad character would be admitted as evidence and worked that fact to his advantage.
  2. D's defence is built around his presenting a specific public image: D aims throughout to appear as the reasonable, changed man who is willing to agree with all that is right in P's case, but unwilling to admit final guilt. D hoped that to admit his past wrongs would prove to the jury that his current story cohered with his thirteen-year-freedom from conviction and criminal activity. This reason is expanded below.
There is a secret, conspiracy-esque, third reason:
  1. Bad character evidence involves judicial directions. The trial judge must direct the jury about how to use the evidence, and its limits. If it is possible to make bad character relevant to a contentious case, it may be in D's favour to force the judge to direct the jury because it is another element the judge might get wrong; and so another element that can form the basis of an appeal and keep D out of prison.

Rix LJ dismissed the appeal because the trial judge, Winstanley J, directed the jury with aplomb and integrity. Rix LJ said, 'it is not possible to criticise [Winstanley J's] carefully crafted direction as being unfair' (at [23]). If a direction to a jury about how to apply D's bad character is fair, an argument against the jury's decision in that respect is spurious. If D cannot rely on a misdirection, the jury's conclusion is proper and D's conviction is sound.

2. Tactical Compromise

This section expands the second tactical reason, above. Subtle arguments are powerful. D's counsel skilfully presents a case that accommodates the opposition--P's--arguments. This shows that D is reasonable because D will compromise. While D never says so, it is evident that his argument is constructed to imply as much.

Rix LJ acknowledges this. He splits the first instance case into ten parts. In paragraph 21, he notes that part (vi) is 'one of the few passages (…) [D] (…) criticised (…)'. A possible reason why D criticises so little may be simple: to accept most of P's argument is subtly to remind the jury--who hears D's constant openness at trial--that D's argument has already considered everything P has to say--and only rejected some of its conclusions. If D shows most of P's argument has been considered and accepted, D implies that his own argument is the result of rational consideration.

Moreover, openly to accept a few of the opposition's premises demonstrates an unbiased attitude: if one is unbiased--even when one's personal liberty is at stake--listeners may sympathise and are more likely to be persuaded. Unfortunately for D in Speed, neither the jury nor the judiciary were persuaded.

3. A Minor Issue with Rix LJ's Reasoning

Rix LJ says,
It follows that in our judgment there was no misdirection. But even if there had been, it would have been of a minor kind and does not in our judgment affect the safety of the conviction.
This statement, due to its first sentence, has little bearing on the case's outcome. Nevertheless, it is worth noting that it is reminiscent of the schoolyard defence: 'I didn't call her that, Miss, and anyway I was at home, so there'; Rix LJ's statement perhaps does not go to that extent--it certainly is not so puerile--but it is the same kind of covering-all-bases argument that can cripple some reasoning.

4. Conclusion

Rix LJ's judgment is good. He shows the judiciary will not be tricked by tactical accommodations and compromises. This sort of courage shows why the British judiciary is exemplary.

Sharp advocacy requires skill with argumentation. That skill manifest in tactical-admissions may help win cases. But it is naive to think the judiciary will be manipulated into thinking it has erred. Compromise may help with persuasion, but it is not enough, alone, to win a legal argument because any alleged errors will be scrutinised. At that point, there must be some other good substance to one's argument.


Created: 18 October 2013. Version 1.0.





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