How falling asleep on public transport could land you with a criminal record

(A guest post by a supporter of the Manifesto Club).

We hear a lot about how the ‘British justice system is the best in the world’ but I wonder if most people know how it really works. My family have just been through an awful experience, and are suffering from the fall-out.

About a year ago one of my wife’s relatives took a long-distance bus journey. He was travelling alone. It was a warm summer afternoon and he picked a seat and, naturally enough, began to doze. At the first stop a party of young people got on, and a teenage woman asked him to move his bag and sat down next to him. Intermittently they both dozed off, and it seems that at one point she slumped onto his shoulder and they both carried on sleeping. Unknown to either of them, a young man travelling with his girlfriend a few seats further up the bus began snapping pictures of them on his mobile phone. Shortly before arriving at their destination the young man got to his feet and loudly announced to the other passengers on the bus ‘That man is touching that woman!’ Then he went to the driver, who phoned the police, and at the destination my relative was arrested – handcuffed in full view of the people on the bus – and placed in a police cell before being charged with sexual assault and released some 24 hours later.

A lawyer was chosen. My relative and his wife earn only a modest amount of money (she is a part-time teacher, he is mainly unemployed because of chronic poor health) but their earnings are just enough to ensure that they do not qualify for legal aid. They were offered a stark choice: you can pay about £1500 for a solicitor to represent you at a magistrates’ court, where you are more likely to be found guilty, or you can pay about £7500 and ask for the case to be heard at the Crown Court where you are much less likely to be found guilty. My relative and his wife opted for the magistrates’ court.

The evidence

The witness on the bus had used his phone to produce what turned out to be five blurred and indistinct snaps. Four of them show nothing at all except two people asleep on a bus. One of them was alleged to show my relative’s hand close to the ‘victim’s’ breast. This is not too surprising and it is not illegal to put your hand close to another person’s breast. My relative is a big fat man, and bus seats are small. His arms were folded, and his right hand was wrapped around his own upper left arm. As it happens, he has frozen shoulder, amongst several other chronic ailments, and the action of holding his own upper arm provides him with a little comfort from the pain. It definitely doesn’t prove that he touched the young lady then or at any time. There was not one single independent witness on the bus. At the time, the police interviewed everybody and took statements. The ‘victim’ herself said that she was asleep throughout and had nothing to say. Her friends said that they saw nothing. The only witness who claimed to back up the prosecution story was a Nigerian man, sitting many rows further forward on the bus, who later vanished and returned to Nigeria and was unavailable to give evidence at the trial. (One can imagine the arresting officers putting the bite on a visa over-stayer in order to get a bit of corroborating evidence.)

After the young male witness had been down to the driver, he then spent a bit of time whipping up a near riot on the bus by texting the photographs to the ‘victim’s’ friends and making a scene. It must have been very unpleasant and frightening for my relative, who, as I say, is a middle-aged man, overweight, and in poor health, having just recently undergone a major operation.

When the police took statements later, contrary to the Police and Criminal Evidence Act, they did not impound the young man’s phone. Instead, the choice five photographs were downloaded and the phone returned to him at once. This surprised me when I found out about it later. When my relative and his wife finally came to ask for our help, one of my first questions was ‘How many photographs did the young man actually take? Did he have the chance to delete any pictures?’ Obviously, to have five pictures, one of which might possibly be a bit dodgy, is weak evidence; but to have two hundred pictures, one of which might be a bit dodgy is less than weak. But it is not in the police/prosecution’s interest to collect all the evidence: they only need to collect enough evidence. There was a video tape running on the bus which showed nothing except two people asleep – you could not see my relative’s hands at any time.

In short, then, the evidence consisted only of two things: one blurry photograph, which even the police admitted did not prove that the offence was committed, and the word of the young man and his girlfriend.

The defence were not allowed to see any of the evidence until the initial hearing at which my relative entered his plea.

The legal process

It turns out that touching a person sexually comes under the Sexual Offences Act 2003, and is a form of ‘sexual assault’. These kinds of offences are usually triable ‘both ways’ which means that your case can be disposed of by the magistrates where you do not have a jury, instead you are tried by a panel of three unqualified judges – so called ‘lay magistrates’ – ordinary citizens who have volunteered and then been selected to perform this duty. Alternatively, you can opt to go to the Crown Court where you will be tried in front of one qualified judge, and a jury of twelve citizens.

At the magistrates’ court the accused stands in the dock, and the prosecution lawyer begins their statement. Then your lawyer gets up and makes a defence case. Then the magistrates retire and have a bit of a think; then they come out and pronounce a verdict. Sometimes they will pass a sentence there and then; sometimes, as in my relative’s case, they send a probation officer around to make reports and call everybody back a month or so later to pass sentence.

If the magistrates find you guilty, you have 21 working days to decide if you want to lodge an appeal. If you do this, the appeal is heard at a Crown Court in front of one qualified judge, and two magistrates, but no jury. There is, of course, an additional cost involved.

Lastly, there has recently been much criticism of a government decision to make accused parties pay different costs depending on the outcome of their trials. If you plead guilty, you are made to pay court costs capped at £150. If you plead not guilty, and are subsequently found guilty, you will be charged court costs of £1500. This is reviled because many poor people are thus being pressured to plead guilty, even when there is little evidence, because to plead guilty and pay £150 and (perhaps a fine of £50) is less expensive than pleading not guilty, then being found guilty and made to pay £1500 plus a £50 fine. As a consequence, justice is being corrupted. People are pleading guilty and being denied the ‘best system of justice in the world’ simply because they are poor.

The lawyers

My relative’s solicitor turned out to be disappointing. He was a recently qualified young man and he was convinced in his own mind that the weak evidence would be dismissed by the magistrates. The CPS had hired as their prosecutor a woman who had previously been employed by the CPS and was an expert in sexual offence cases, and in particular, prosecuting sexual offence cases. A heavyweight, experienced professional against a lightweight newbie.

My relative’s lawyer tried repeatedly to cover his rear by suggesting that my relative should plead guilty and get a smaller fine and probably a lesser sentence, and by playing up the current situation, which he described as being ‘very bad for middle-aged Asian men travelling on public transport, because there’s a big problem with middle-aged Asian men touching-up girls on public transport, and there’s a bit of a purge at present trying to clamp down on this problem’. None of us had heard of this, and it is very difficult to prove whether it is true. I travel a lot on public transport – mainly trains – and I am not aware of this being a problem; I do not know if magistrates have been issued with some kind of order suggesting that they should come down particularly hard on cases of Asian men accused of touching girls on buses and trains.

The SOA 2003 is pretty clear on the subject of sexual touching. It says:

3 Sexual assault
(1) A person (A) commits an offence if—
(a) he intentionally touches another person (B),
(b) the touching is sexual,
(c) B does not consent to the touching, and
(d) A does not reasonably believe that B consents.

Clearly, points c and d do not apply to my relative. His defence rested on the following grounds: that he did not touch the woman; that if he did he was asleep at the time and therefore it was not intentional.

The CPS lawyer made her case on two grounds: that, in her view, supported by the witness statements the young man and his girlfriend, the defendant had touched the ‘victim’; and that any touching only had to be ‘the very slightest touch’. My relative’s lawyer tried to make the case that the evidence did not prove that touching had occurred, and that, if it had, it was unintentional as the defendant was asleep at the time; and that it must have been insignificant as it was insufficient to awaken the ‘victim’.

So here we have justice laid out in all its glory. One man, supported by his girlfriend, and five grainy photographs that prove nothing, is able to make an allegation that causes great harm to a person unknown to them, travelling on a bus; an allegation that came as a great surprise both to the accused, and to the supposed victim. Despite the well-worn canards of the British Justice System that a person accused of a criminal offence must be found guilty ‘beyond all reasonable doubt’, and that ‘It is better that ten guilty men go free than one innocent man be found guilty’, it appears that magistrates, at least, are not interested in this. Clearly, in this case there was more than reasonable doubt – reasonable doubt that the alleged offence even happened (no substantiating photographic evidence, no independent evidence, no claim of harm from the alleged victim) – and reasonable doubt that, if it did happen, it was done deliberately (all photographs and the video tape from the bus camera appear to show two people asleep on the bus).

Despite all this, the magistrates decided that my relative was guilty. They accepted without question that the offence had occurred. They accepted the prosecution lawyer’s statement that the touch only had to be minimal – and ignored the crucial bit that it has to be intentional. He was fined, made to pay court costs, placed on the sex offenders register for five years, and sentenced to what is called a ‘community order’. Including the lawyer’s fees and fines, my relative and his wife are about £3000 poorer, his reputation is damaged irretrievably and perpetually, and he has undergone the humiliation of the entire experience from being dragged in handcuffs off a bus, slammed into a police cell for 24 hours, several appearances at court, interviews with probation officers and police officers, regular signing-in at the local police station, restrictions on his freedom to travel – which have already prevented him attending the wedding of his nephew in the USA, restrictions on his ability to work with young people – the list is almost endless.

The final stage of this case is that my relative has now had several meetings with the probation service who are charged with ensuring that he complies with the sentence of the community order. He has been interviewed repeatedly by people who are trying to find out if he has psychological problems such as alcoholism or a tendency to violence. What they have found is a mild-mannered man, married for 25 years to the same person, with two teenage children. He has a large, supportive family around him. He has a deep Christian faith (personally, I don’t give a monkey’s for religious faith, Christian or otherwise, but the probation service seem to think it is important). He doesn’t have issues with alcohol – he is a teetotaller; he doesn’t have any issues with anger management (no more than anybody else).

The probation service staff have already decided that, because of his poor health, and the nature of the offence, that arduous, physical community service is out of the question. The sexual nature of the conviction precludes him from doing charitable work with children or vulnerable adults. They have thrashed around desperately trying to find a ‘course’ to send him on to see if he can be counselled to ‘modify his behaviour’, and, obviously, they have failed. He has always denied the charge and he has no ‘behaviour’ that needs modifying.

When we were waiting for the probation service to get involved, I was very worried for my relative that he was sticking to his plea of innocence despite the guilty verdict. We have all seen dramas of this nature where the government official makes a report to the effect that the guilty party ‘fails to admit his guilt, and cannot be recommended for parole’. I was anxious that he would fall foul of this sort of officious attitude, and that his probation report would be especially critical. In the event this did not happen: from the very beginning the probation service staff have apparently been very sympathetic. It seems that they believe his version of events, and have turned themselves inside out trying to find some way that he can discharge his obligation to the court without being made to attend a host of unsuitable courses and bouts of pointless counselling.

So what to do? There is nothing that can be done now. You have a 21 day window in which to appeal against the verdict of a magistrates’ court. If you do not, the verdict and sentence are irrevocable. I imagine that the fabulously wealthy can always find a way to challenge this kind of thing, but as far as the rest of us are concerned, this is the end of it. Perhaps if the witnesses could be prevailed upon to admit in court that they had lied about the whole thing, perhaps driven by racist views, simply to get an Indian man into trouble, then there might be grounds for an appeal to the High Court. God alone knows what the expense would be. On the whole, I think this scenario is very unlikely.

And for the rest of us: the obvious piece of advice is never to fall asleep on public transport. Glib, trite and fatuous as this may seem, it is a close companion to ‘never get arrested’. Sound advice, I’m sure, perhaps if we add the words ‘in England’ to the end of it.