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Thursday, July 2, 2020

This is why the Crown Prosecutor prosecuted Caroline Flack’s case

Even the strongest of us would find it difficult not to be pushed to despair in his position (Photo: Rex Features)

I don’t suppose my shock to the suicide of presenter Caroline Flack was any different than anyone else had ever met her. The trembling waste, the pain he must have felt.

But my experience as a criminal lawyer made me feel different from those who criticized the Crown Judicial Service for prosecuting his case, even though Lewis Burton – Flack’s partner and the alleged victim of the assault for which he would had to be tried – he had reportedly not invited them to for.

The CPS’s insistence on continuing the Flack process was, according to his management, what ultimately and tragically broke it.

Reading the protests, all I could think of were all those domestic abuse cases I had seen in court. Unlike Flack were almost all the allegations of assault on women by men (forensic psychologist Kerry Daynes tells us in his book, The Dark Side of The Mind, that a man puts a woman in hospital every three hours). Like Flack, they almost always involved one person’s word against another.

I got used to meeting the client I was defending in court and watching him sit on the chair to smile, “he won’t come”. Well, I would say, the prosecution may require an update to bring it here. They could also send copper around this morning, giving her a police escort to court.

Sometimes this makes the smile slip, sometimes not. ‘It doesn’t matter if they do; won’t say anything. Often my client was right.

I heard a woman say in a courtroom that her partner only dragged her by the hair down the street because she knew she liked it.

I have seen declarations of love written by a complainant to the accused that they accuse; cases in which both sides come to court together, even when this means that the accused has broken his bail condition by not contacting any witnesses – something applied in series in almost all cases, including Flack’s.

The worrying fact is that most prosecutors and police have experienced witnesses who claim they don’t want to be prosecuted for the person accused of harming them. Only those involved in Flack’s case know what evidence was there since that fateful night.

But other than that I can’t criticize a CPS decision to move forward, even if their only witness was pushing them not to.

The CPS guidelines are clear. If there is other evidence that could mean a reasonable prospect of conviction, even without the evidence of the alleged victim, then it should continue.

There is now an outstanding photo of Lewis taken some time after the alleged attack, which appears to be showing a small cut at the top of his head.

It could be a neighbor listening to next door, previous convictions of assaults on the same or another partner, the police report on what they saw on their arrival and – always so difficult to hear in the cold silence of a classroom court – a disturbing 999 phone call capturing both the complainant’s terror and the abuse yelled at them by the defendant.

Nowadays an increasing number of policemen wear webcams, like when they went to Caroline Flack’s house. This means that there will be no footage not only of the scene, but of what the complainant and the accused said and how the moments appeared rather than months later.

There is now an outstanding photo of Lewis taken some time after the alleged attack, which appears to show a small cut on the top of his head. Flack has been accused of “hitting assault” – a violent offense that many of my clients have objected to being charged, especially when their crime did not constitute a “beating” as they see it, but instead a push or a slap.

But by law “assault by beating” or “battery” (they are the same offense) means “intentional or thoughtless application of illegal force to another person”. Strength does not need to be severe and injury does not have to be. It is also irrelevant whether the person caused the injury or not. To be guilty, a defendant must have only been reckless.

However, like others, I left myself wondering what professional support was organized for such a clearly vulnerable woman.

It would not have been organized through the criminal justice system. Since while the police and witness service are rightly charged with supporting any prosecution witnesses due to evidence in a trial, our legal system does not do the same for the defendants.

Our courts – and the press and the public – seem to forget that for someone who is innocent until proven guilty, the need for support may be even greater.

The wait from office to test can now last not only in months, but in years.

This was caused by huge cuts in legal funding that left us with a reduced number of judges, court closings and minimal legal assistance rates for those lawyers charged with representing – and treating – the defendants.

Imagine waiting all this time to be declared innocent while bail conditions limit where you can live, who you can talk to and where you can go.

You may lose your home, your job and your sense of stability.

More: Mental health

Now imagine doing it under the reflection of public opinion. Even the strongest of us would find it difficult not to be driven to despair.

I can also criticize all those who hastened to judge or condemn, who reduced themselves to printing or imagining a living person, in all their complicated shades of gray and layers of joy and despair. Because what the crime bar taught me is that there is always another side to every story – no matter which side of the pier someone is on.

Flack’s case made me think of a process where I once appeared. Three men were charged with minimal evidence with the salutary offensive sound of “Sexual activity in a public toilet”. Prior to the trial, one of the defendants had attempted to convince the magistrates to limit his case report. The man was a retiree, a quiet and respected member of his local community with no previous court experience, who had grown up at a time when it was a crime for one man to love another.

But the UK’s principle of open justice is heavily protected. Everything that is said in a courtroom is a matter of public knowledge. Anyone can turn to a magistrate or the crown court to attend a trial. When the magistrates refused his candidacy, this man returned home, put his house in order, pressed and folded the choir uniform for the next wearer and took his own life. It seemed that death at that moment seemed a preferable result to the humiliation of a trial.

I thought of him when I heard the news about Caroline Flack and I remembered how the pain in court on the following Monday was hanging like fog. When the prosecution’s only witness failed to appear, I wrote something in my notebook that even Flack’s attorney could soon do: “10: 10. The prosecution offers no evidence. Case closed.”

Sarah Langford’s Sunday Times bestseller, In Your Defense: Stories of Life and Law is available in hardcover, paperback, ebook and audiobook formats.

MORE: Love Island returns to 1.9 million viewers as fans fight for Caroline Flack’s death: “It’s difficult to watch”

MORE: How Caroline Flack’s closest celebrity friends paid her homage from Louise Redknapp to Olly Murs

OTHER: The investigation into Caroline Flack’s death has been confirmed to begin this week

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