Whose decision is it anyway?

Roger Pearson finds a successful private prosecution of rape originally thwarted by the CPS

WRITS

The successful private prosecution brought by two Kent prostitutes against a man they accused of rape, indecent assault, false imprisonment and actual bodily harm has called into question the Crown Prosecution Service's use of its discretion not to prosecute.

The Crown Prosecution Service claimed it dropped the case against Christopher Davies, of Margate, after advice from counsel that there was insufficient evidence to gain a conviction.

However, following the private prosecution, Davies was convicted by a Crown Court jury at Maidstone and jailed for 14 years for the sex attacks carried out at his Margate home in two separate incidents nine months apart. The women could have faced a substantial legal costs bill if the case had proved unsuccessful,

According to Danny Simpson, the solicitor who represented the women and head of the criminal department of Sheffield-based John Howell & Co, the result "brings into question the whole issue of how the CPS assess the likelihood of a conviction". What worries him is that CPS members assessing whether to prosecute could allow personal prejudices and perceptions to influence them.

Simpson says the only factor against the two women in this case was that they had worked as prostitutes and because of this the CPS decided they were less likely to be believed.

"I don't see any grounds for that," he says. "The jury had no hesitation in convicting him. The issue whether someone is likely to be believed is subjective. Jury watching is the least accurate game in the world.

"Is it right for lawyers in the CPS to substitute their judgment for that of a jury? The danger in allowing CPS lawyers to make these subjective decisions is that their own personal prejudices and cultural backgrounds, in this case their attitude towards prostitutes, can come into play."

Apart from the worries raised over the CPS decision-making process, the practical difficulties faced by Sheffield-based Simpson in running a case for two women in Kent, were substantial. He pointed out that, for a start: "It was not just a question of popping round to the local police station to ask to see documents such as witness statements."

Although the police are under no obligation to co-operate with solicitors on this sort of work, Kent police were angry that the CPS had dropped the prosecution and were extremely helpful.

The approach to Simpson came as a result of work he had done with the group Women Against Rape when working as head of the criminal department at London-based Bindmans.

But he makes it clear that the two women, who had worked for massage agencies and who claimed they were raped at knife-point, were not financially backed by the group.

"If the prosecution had failed we would have reviewed the situation relating to our costs, but the defence would undoubtedly have sought costs. They could have faced a bill of up to £20,000," he says.

For Simpson, admitted 11 years ago, the case marked a change of direction to some of his other cases. He has established a reputation in representing victims of miscarriages of justice and represented Mark Braithwaite, one of the Tottenham Three freed by the Court of Appeal. The Kent case, however, highlights that there are two sides to the miscarriage of justice coin and that victims of crime, along with those wrongly accused and convicted of offences, equally need their interests protected.

"I like to consider my role as being able to assist people to obtain justice they have otherwise been denied," Simpson says. "The Kent case spotlights the fact this applies to victims of crime as well as those wrongly accused of crime."