Making a Murderer: The Importance of Hearing Both Sides

The Netflix documentary ‘Making a murderer’ has received critical acclaim, sparking widespread condemnation for the imprisonment of Steven Avery and Brendon Dassey. The documentary explores the conviction of both men for the murder of Teresa Halbach, taking the view that Avery and Dassey are framed for the murder by the Manitowoc County police force. It is argued this was done as an act of revenge after Avery successfully sued Manitowoc County for a wrongful conviction of attempted murder and sexual assault.  

I would like to point out that I do not consider Avery or Dassey to be either guilty or not guilty. I consider it ill-advised to make such a determination, even after 10 hour long episodes and subsequent research. As with all trials, not being in the jurors’ seat puts anyone in an impossible place to make a decision. In this article, by presenting arguments for the other side, I aim to illustrate that making up one’s mind over something as serious as a murder charge, based on a documentary series, without equal opportunity for the opposition is highly unwise.

On behalf of the defence 

The 10-part series, with episodes of approximately 1 hour each, totals 548 minutes in running time. The documentary makers are unequivocally presenting the case to the viewer that Avery and Dassey should not have been found guilty. In other words, we hear almost ten hours of the defence. One can’t help but wonder then, what one would have seen had there been a 10-part series of 548 minutes made by the prosecution? The programme demonstrates why fair trials are so important. It shows one side of the case, and from just that side, a finding of not guilty appears so obvious. Yet, clearly, a jury didn’t find it obvious. Perhaps, as unbelievable as it might be, we might have heard things that could have explained the seemingly suspicious behaviour of the Manitowoc County police force. The jury was of the mind that they were sure Avery and Dassey were guilty of the crimes which they were charged. Over 548 minuets, the only time we hear the prosecution’s evidence is where it is shown in its worst light. But what didn’t we see?

The omitted evidence

There are five things the filmmakers omitted altogether from the documentary. The first relates to forensic evidence of Avery's sweat, the second concerns phone calls made from Avery to Halbach, the third relates to her phone, camera and PDA, the fourth focuses on statements made in Avery’s interview with the police, and finally, statements from other witnesses.

There is also something to be said for the blood vial, car crusher, bullets, bones and keys, but this will be discussed later under the heading 'the planted evidence'. 

Avery’s sweat 

Ken Kratz, the prosecutor in the case, was interviewed by the New York Times and states that even if one accepts the blood was planted (Kratz does not), it does not explain why sweat that belonged to Avery was found underneath the hood (bonnet) latch of Halbach’s car. As the Police do not retain samples of sweat, it is highly unlikely this could have been planted. This evidence suggests at some point, Avery had contact with Halbach’s car, and puts doubt into the defence’s theory that the car was planted on his property by Police.

The phone calls

Avery made two calls to Halbach on 31st October. He used the *67 feature to hide his number from the recipient of the call. He did not use *67 to call anyone else on 31^st October. Why he used this to call Halbach remains unanswered.

There are several arguments as to why Avery might have done this. Perhaps it suggests his innocence; why would a man call a woman he knew to be dead? Perhaps it suggests his guilt, as one might question the suspiciousness of attempting to anonymise his phone calls.

Additionally, Avery stated that Halbach had visited his yard to take pictures of cars he sold on Autotrader previously on several different occasions. In court, the prosecutor argued that Avery called Halbach’s manager and specifically requested Halbach to come to his property to photograph the car.

Halbach’s phone, camera and PDA

Halbach’s phone, camera and PDA were discovered in a burn barrel on Avery’s property. Had Avery been framed by the Manitowoc County Police Department, this evidence would have to be placed there by them as well, including other items such as the car, keys, and bones, though more on these items later.

Statements made by Avery at interview

Avery stated at interview he had not recently used the burn barrel where Halbach’s phone, camera and PDA were found, and denied use of the burn pit, where Halbach’s bones were found. On 31^st October, he states he was in his trailer alone for the afternoon and evening. Multiple witnesses state they saw Avery using the barrel and burn pit on the 31^st October.

Witness testimony

Related to the point above, witness testimony that would have been of interest to a viewer was omitted from the documentary. Robert Fabian, a friend of Avery’s brother Earl, stated that he saw Avery acting strangely on the 31^st October, and was having a fire in the burn barrel where Halbach’s phone, camera and PDA were found.

Kayla’s counsellor stated that Kayla had confided in her counsellor, and in 2006 stated that she was scared of Avery, and he had asked her cousin to move a body.

The planted evidence

The documentary suggests the blood vial, the keys to Halbach’s car, bullets, and bones were either planted or tampered with by the Police to frame Avery.

Blood

The hole in the top of a vial containing Avery’s blood was presented by the documentary as the smoking gun. They argued the hole in the top showed that whoever was in possession of the vial had used it to extract blood, which they then used to frame Avery.

However, methods of inserting blood into a vial include using a needle to pierce the top of a seal to insert blood from the top. Videos of this method can be found in various places online. The lab employee confirmed they did not do this to test blood samples. Indeed, they may not test this way, but they may be initially collected this way. 

It is odd why a person familiar with this evidence would not point out that many other blood vials had holes in the top, and this was a common method of collecting this sample, if that is what is normal. Perhaps this was cut from the interview, though if she did say this and the filmmakers left it out, it would be highly misleading.

Additionally, the prosecution had intended to call a nurse, Marlene Kraintz, to confirm that she had put the hole into the vial at the point of collecting the sample. They decided not to call her. Kratz, the prosecutor in the case, stated this was because the defence did not raise the issue ‘significantly enough’ at trial, whereas the documentary chose to rely on it heavily.

The hole does not necessarily disprove the theory that the evidence was planted. The existence of the hole would have made it possible for someone to re-insert a needle into the top and extract blood to plant on the car. Indeed, it could even be easier to do so undetected, due to the hole in the top already existing. However, it would be difficult to find that the hole itself was evidence of tampering if they are commonplace in such samples.

EDTA is a chemical mixed with blood to preserve samples. It is present in preserved blood, but not in blood which has not been preserved, such as in a vial. If the test of the blood samples taken from the car contained EDTA, it might be more reasonable to suggest the blood was planted using the vial already held. The test conducted by the FBI in the Avery trial did not find EDTA.

The defence contested the finding, stating the test was contaminated and rushed. These points are accurate. The defence had knowledge of the blood vial before it was submitted as evidence. In rejecting the defence’s request to verify the FBI’s test, the court ruled ‘if the defendant had felt the testing of the blood was important, the defendant had adequate opportunity in which to arrange for such testing’. Previously the defence made applications to block the prosecution from releasing the blood vial for testing. This may explain the delay, and subsequent rushing of the FBI’s testing.

The documentary appears to stop short of accusing the FBI of being complicit in the conspiracy to frame Avery, but does not shy from inviting the viewer to do so by presenting a snowball of suspicions in the investigation. Suggesting the FBI is colluding with the Manitowoc County Police, without an apparent motive, other than the arguably loose assumption that law enforcement will look after their own (to the point that separate organisations will tamper with evidence), seems quite unlikely.

The seal on the evidence box that contained the blood vial was shown to be broken. Manitowoc County DA confirmed he opened the box after both prosecution and defence were authorised to look at the evidence from Avery’s previous trial, where he was wrongfully convicted.

Keys

A seemingly suspicious piece of evidence is presented in the form of Halbach’s car keys, found on the floor of Avery’s trailer. The photo shows they were discovered in clear, unobstructed view. The keys were found on the 5^th search entry to the property. The defence argues the police could not have missed these keys in the position they were claimed to have been found in the previous 4 searches. That they found them only on the 5^th search could suggest they were planted. Whilst DNA of Avery was found on the key, the defence also argued this was planted.

On the 5^th search, the police were collecting pornography from Avery’s small bedside bookcase. The report states they shook the bookcase whilst searching it. There is a photo showing the back board of the bookcase coming free from the rear of the bookcase.  They discovered the keys on the floor after the bookcase was searched, suggesting the vigorous searching of that specific piece of furniture damaged the rear of it, allowing the keys to fall through an opening created from the backboard coming free, and on to the floor.

A picture of Avery's bookcase showing the backboard coming free from the rear can be found here:
https://static1.squarespace.com/static/5691be1b25981daa98f417c8/t/56a7140889a60afb608eebaa/1453790287548/?format=1000w

According to the documents released, it is accurate to say that 4 searches were carried out until the keys were found. The purpose and duration of those searches were recorded as follows:

1.         Search 1 – 10 minute search to check if Halbach was in the trailer

2.       Search 2 – 2 hour 30 minute general search, collecting 50 items and ended the search due to bad weather

3.     Search 3 – 20 minute specific search, police had list of items they intended to collect, and were not conducting a general search of the property

4.         Search 4 – 7 minute search, specifically collecting the serial number of his computer

5.         Search 5 – 3 hour 43 minute extensive search, searched bookcase and discovered key

This does not mean that the keys could not have been planted. They could have been. It could also be argued the police should have discovered the keys on the second general search of the property, and the fact that they did not, suggests they might have planted them.

Equally, the prosecution may have argued that if the keys were hidden in the bookcase, they would not have been as plainly obvious to officers as the documentary suggests. Also, as their second search was cut short, they may not have had the time to complete a search which was thorough enough to discover the keys, assuming they were hidden in the bookcase. As searches 3 and 4 were to obtain specific pieces of evidence, locating the keys in the bookcase would have been improbable as well.

The discovery of the keys is again an example of the problems with hearing one side of an argument in isolation. Whilst the opposing side may not defeat the argument presented, it may provide another plausible explanation of how they were located. Without hearing this evidence, the viewer is lead to a seemingly unassailable conclusion.

Bullets

The bullets were found under an air compressor, after the police focused on the garage as the possible location for Halbach’s murder from interviewing Dassey (irrespective of this there are many problems with Dassey’s interview). The prosecution state they had not previously located the bullets because, again, limited searches of the garage took place. Much like the searches of the trailer, an initial search to locate Halbach was initially conducted, and then another search which only removed a snowmobile. It left other vehicles and heavy machinery in place as these items were cumbersome and difficult to move. Without reason to do so, they were left in situ.

It is possible the bullets were planted in the garage by the police. However, whether the bullets were planted or not, forensics confirmed the bullets came from Avery’s rifle. Manitowoc Police had never previously been in possession of his of his rifle. DNA testing on one of the bullets matched DNA of Halbach. The control sample of DNA was contaminated by the technician who conducted the testing, however the actual sample of DNA from the bullet was not contaminated. 

As the police did not hold a sample of Halbach’s DNA, it is difficult to imagine how her DNA came to be present on the bullet that was fired from Avery’s gun. Therefore, it seems almost certain that Halbach was shot with Avery’s rifle. If Avery did not shoot Halbach, either the Police shot Halbach with his rifle, or another person shot Halbach with his rifle.

The first theory deepens the conspiracy much further, and with greater severity. It suggests the Police murdered a woman to frame a man who sued their police force. The second theory would be that Police discovered the murder, not conducted by Avery, and moved the bullets shot by an unknown third party. Taking either theory, it does appear highly suspicious the bullets came from Avery’s rifle.

Bones

The bones found in the burn pit on Avery’s property were confirmed as those belonging to Halbach. They were burned considerably. A forensic anthropologist gave evidence that very small fragments of bone, including small fragments of teeth, and parts of almost every bone found in the human body were found at Avery’s burn pit. Bones were also found in a quarry on Avery’s property. The defence argued that the quarry was the initial site of the burning, and the bones were later moved by the police, to the burn pit, in order to frame Avery.

Evidence provided at trial stated that the bones and tyres were burned with them, as steel wire from the tyres was intertwined with the discovered bones. It was reasoned this could only have been produced by burning them together. The bones found in the quarry were larger bones, appearing to be a pelvic bone. It seems unclear as to why smaller bones would be in the burn pit, whereas larger bones were left behind, if the theory that the police moved the bones is to be accepted. All evidence, however, points in the direction that the bones were burned in the burn pit.

Whilst the explanation as to why larger bones were found away from the burn pit is left to speculation, the evidence presented at trial suggests that the bones were burned at the burn pit. Someone moving the larger bones to a site such as the quarry from the burn pit may have done so in order to make it appear less obvious that remains were burnt there. It would logically follow that the larger bones would be moved first, rather than the smallest fragments moved first, only to leave the largest bones behind. As noted, the few larger pelvic bones were found in the quarry, and the much larger collection of tiny fragments were found in the burn pit. This evidence does not, however, preclude the possibility that the bones were moved in the opposite direction, from quarry to burn pit, but it does appear less likely. 

Not questioned at trial

If a defendant refuses to answer questions at trial in England and Wales, the jury is entitled to make an adverse inference from a defendant who does not answer questions in his defence at court, under s.35 Criminal Justice and Public Order Act 1994. The inference the jury may make is that the defendant is guilty of the crimes he is charged with. This is distinct from the more familiar ‘right of silence’ prior to trial, the warning of which many will know: ‘you do not have to say anything, anything you do say…’. This operates in a different way, and should not be conflated with what can be inferred by a defendant who fails to give evidence in his defence at trial.

An exception to this is where the physical or mental condition of the defendant would, in essence, make it unjust to make such inferences. There is a high standard to meet here, and it is very rarely the case as most who fall in to this category would be considered unfit for trial. I think it would be highly unlikely, based purely on the documentary, that Avery would fall into this category.

I am not sure if an equivalent provision exists in the American criminal justice system, though if Avery chose not to answer questions at a trial in England and Wales, the jury could infer he was guilty of murder from him failing to answer questions at trial. It is particularly uncommon to refuse to answer questions at trial, mostly for the risk of what could be inferred if one does not.

Does an imperfect crime suggest innocence?

The defence lawyers for Avery argued if he really did place his vehicle on the property, he would have used his car crusher to dispose of the vehicle. Since Avery did not do so, this suggests he did not place his car there. The defence argue that this suggests the car was planted. There was a period of 4 days where there was opportunity to use the car crusher, since Halbach was last seen on the 31^st October and the car was found on the 5^th November.

First, an opposing argument might be that just because a crime is committed imperfectly does not necessarily mean that the accused did not commit it. Indeed, many who commit very serious crimes behave irrationally, and largely without logical thought. If a person is before a criminal court, defending themselves, is it not likely that at least some are there because they are not criminal masterminds able to evade the authorities? Surely many of whom we see at trial are those who are there because they are unable to avoid prosecution and conceal their crimes effectively.

Second, using a car crusher is both time consuming and nosy. Completing the process could have risked raising suspicion of Chuck, Avery’s brother, who lived 100 yards from the car crusher. Cars typically require draining the fluids, such as oil, petrol, transmission fluid and so on, before they can be crushed. Other parts of the car such as the tyres and engine block are removed as well, which requires the use of loud and cumbersome machines, as well as the car to be lifted. It might be difficult to argue that the car crusher could be operated without detection.

Third, interviews suggest that Avery rarely operated the car crusher, and it was primarily Earl, his brother, who would use the machine. This could suggest Avery was not competent in using the machine and would not have been able to dispose of the vehicle quickly and easily. It could also mean that Avery knew that if he was seen operating the machine, which was out of the ordinary, it could raise suspicions as to why he was using it, and Earl, who normally operated the machine, was not.

Finally, the 4 days in which Avery had an opportunity to dispose of the car in the crusher were limited by Avery being at the family’s cabin on the 5^th, at a car auction on the 4^th, and the night of the 31^st would have been dark and would have possibly raised suspicion using the loud machinery at that time of night. There would have been 3 days where Avery had opportunity to crush the vehicle. Combined with the reasons above, Avery's failure to use a car crusher may not be such a conclusive indication of innocence as one might have originally thought. 

The extent of the conspiracy  

The case theory of the defence is that Dassey, and specifically Avery were framed due to the law suit Avery successfully won against the local authority due to his wrongful conviction. They argue that such was the anger of the police after losing the suit, that faced with the opportunity to frame Avery with the murder of a local photographer, they acted accordingly and planted evidence. The defence did argue this, as shown in the documentary, before the jury. The jury found him guilty regardless.

There were 5 agencies involved in the investigation into Halbach’s murder, notably the FBI and the Department of Justice were among them. Whilst it is not impossible that all of them could have been part of the conspiracy to frame Avery, it would be unlikely. If they are not all part of the conspiracy, it would be exceptionally difficult and risky for the Manitowoc County Police Department to frame Avery, knowing the other organisations would be involved, and presumably have opportunity to discover the dishonesty.

The documentary also suggests that the insurance company dealing with the civil suit had refused to cover the costs, making the individuals named in the suit and the Manitowoc County responsible for the costs. This suggests the motive to frame Avery might be increased further, as the individuals would be financially responsible for a suit that was up to tens of millions of dollars in damages.

However, Dean Strang, the lawyer representing Avery, has since confirmed the insurance company has paid the costs of the law suit. The individuals named in the suit, Thomas Kocourek and Denis Vogel, were retired by the time of Halbach’s murder, and were not involved in the investigation nor did they have to pay the damages. Lenk and Colborn, the investigating officers on the Halbach case, were not facing any criminal or financial consequences from the law suit.

Whilst it is possible Vogel and Kocourek heavily influenced the officers at the Manitowok County Police Department from retirement to frame Avery for Halbach’s murder, it perhaps seems unlikely due to their remoteness by virtue of being retired. It would also be logical to assume the motive to orchestrate such a conspiracy would be muted since they were not facing any personal financial responsibility. It additionally seems unlikely the Police Department were so collegiate and devoted that they would frame Avery on their own behalf, simply because their Police Force was successfully sued.

How do we know all this information?

A wealth of information, including court transcripts of what appears to be most of, if not all, the trial, can be found online.

The transcripts for Steven Avery’s trial can be found here:

http://stevenaverycase.com/steven-avery-trial-transcripts/#sthash.lLyKdCW3.dpbs

A word of caution

All of the points made in this post are not designed to definitively show that Avery is guilty. Rather, the purpose is to demonstrate that hearing the other side of a case can, at the very least, show that the case was not as black and white as once thought. Hearing both sides of a case, even if it seems obvious that a defendant is guilty or innocent, is crucial to a fair trial.

Even with all of the court transcripts and documentation that has now been uploaded to the internet, it is still unwise to make a determination of guilt. There are many things lost when evidence is reduced to just paper. The manner in which evidence is given, the tone of voice, the emotion, body language, the length of pause before a response and many other things are all lost from courtroom to transcript, yet all can alter how a juror views the credibility of that evidence. As a juror is always in the best position to make a judgement in a case, when one hears a criminal trial via means other than that of a criminal trial, it is always best to exercise caution when hearing just one side of the case.

Case in Focus: R v Jogee [2016] UKSC 8 - The new law on Joint Enterprise

On 18 February 2016, in R v Jogee; Ruddock v The Queen [2016] UKSC 8 the Supreme Court ruled that the law on secondary liability, part of the law on joint enterprise, has been wrongly decided since 1985. The decision concerns a murder case, as does the majority of case law decided under secondary liability. In this very short blog post, I aim to explain the position of the law the Supreme Court has reversed, the current position and the potential impact of the decision.

Facts of Jogee

Ameen Jogee and his co-defendant Mohammed Hirsi were friends. On the night of the offence, they had drank alcohol and taken drugs with Naomi Reed at her house. The alcohol and drugs made both both Jogee and Hirsi aggressive. They left the house, but Jogee and Hirsi returned where Reed asked them to leave as her boyfriend Paul Fyfe was coming home. The pair left but again returned, and on the the third visit, Fyfe came home, and an aggressive exchange ensued between Hirsi and Fyfe. Whilst Jogee was outside the house, he shouted encouragement to Hirsi, who stabbed Fyfe with a kitchen knife, killing him. Jogee was found guilty of murder under the doctrine of joint enterprise, where he received a mandatory life sentence.

The old position

The scenario covered by this area of secondary liability is where a person commits an offence (usually murder), and is charged with that offence, but a secondary party is also charged with murder as they had ‘assisted or encouraged’ the act. This is so despite the secondary party not having committed the act which killed the victim.

Using the same example of murder, the old position established in Chang Wing-Siu v The Queen [1985] AC 168 was that if the secondary party ‘assisted or encouraged’ the act, and by doing so foresaw the primary party might possibly intend to cause serious harm or death, then the secondary party would be guilty of murder as well. There is an unusual discrepancy in this approach, as for the murderer himself to be guilty, he had to intend to cause serious harm or death, but for the secondary party, it was only required that he had foreseen a possibility of either serious harm or death committed by the primary party.

The new position

The Supreme Court reversed the decision in Chang Wing-Siu, which means that the law from 18^th February 2016 will require either two things to be guilty in a case of joint liability in the scenario described. The secondary party must intend to cause serious harm or death, or he intended to assist or encourage the primary party to inflict serious harm or death. The Supreme Court sets this out at paragraphs 89 and 90 of the judgement. In short, the decision removes the element that the secondary party can merely foresee the primary party committing serious harm or death.

The full judgement can be found here:
https://www.supremecourt.uk/cases/docs/uksc-2015-0015-judgment.pdf

Consequences for appeals

Whilst for some cases tried after the ruling in Jogee, the ramifications are clear in the sense that some will be found not guilty of murder on the new test, in most cases, it is likely a charge of manslaughter will be found in the alternative. Where a secondary party is involved in violence, but lacks the intention to commit serious harm or death, yet death still results, the secondary party is likely to be found guilty of manslaughter. The change in the law is still significant however, as there is a mandatory life sentence for murder, whereas there is considerable discretion for a sentence for manslaughter, though a life sentence is still available. 

The Supreme Court makes makes clear in paragraph 100 that previous convictions based on the joint enterprise position set out in Chang Wing-Siu are highly unlikely to be overturned since they will be out of time. The procedural rules for bringing an appeal to the Court of Appeal require written notice to be given within 28 days of conviction. The Supreme Court also points out that whilst an appeal can be brought out of time if a defendant can show there was ‘substantial injustice’, ‘substantial injustice’ is not made out simply because a decision has declared the law applied in their case to be mistaken.

Therefore, the decision will most likely just apply to future secondary liability cases, secondary liability cases that have resulted in conviction 28 days prior to the decision in Jogee and an out of time secondary liability case that can successfully establish a ‘substantial injustice’. Even where a successful appeal is brought in the latter of the two scenarios, it is likely that a retrial for murder and/or manslaughter will take place.

Conclusion

The significance of the decision should not be understated, as Jogee corrects a position that many would argue was both strange and unfair. Whilst the impact of the decision for old cases convicted on the basis of Chang Wing-Siu might have difficulty appealing convictions through establishing ‘substantial injustice’, the decision will have the largest effect on future cases; those who would have faced a test which was far easier to fall foul of, and would receive a mandatory life sentence as a result.   

                                                                                                

Law and Disorder - Tim Kevan Review (Joe's Budget Books)

I have written a review of 'Law and Disorder' by Tim kevan on my book club blog 'Joe's Budget Books'. It's a book blog dedicated to selecting very affordable books in order to encourage reading for young people aspiring to have professional careers. 

'Law and Disorder' is a fictionalised account of a pupillage and the fight for tenancy. It's a fun read and will be of interest to those studying law.

If you would like to read my review of the book, you can find it here:

https://joebookclub.wixsite.com/joesbudgetbooks/single-post/2017/04/12/Tim-Kevan---Law-and-Disorder-Review

Case in Focus: Gayle Newland

Gayle Newland, a 25-year-old Chester University student has received an 8-year prison sentence after a conviction of assaulting her partner by sexual penetration. The decision has received considerable media criticism due to the seemingly harsh sentence, as well as if the case should have been encompassed by the criminal law at all. The decision highlights a wider issue for the law in the area of invalidating consent by deception, and in this post, I hope to discuss some of these problems and propose what reform might be appropriate in light of those issues.

Facts

A woman named Gayle Newland and the complainant (anonymised) were friends at university. Newland posed as a man, using the male alter ego ‘Kye’ online. Newland, as Kye, contacted the complainant developing an online relationship, and the complainant believed Kye to be a ‘real’ person. They met, and later had sex on up to 10 occasions, with Kye claiming to have significant burns and disfigurements which meant that the complainant had to wear a blindfold for the time they were together. In reality, this was to conceal the fact Newland was wearing a prosthetic penis, and used bandages to cover her breasts. The complainant took off her blindfold to discover that Newland had deceived the complainant as to her sexual identity.

Relevant law

Newland was charged with assault by penetration, pursuant to s.2 of the Sexual Offences Act 2003, and pleaded not guilty when charged. A person commits this offence if he intentionally sexually penetrates the other person with their body or anything else, without the consent of the other person, and does not reasonably believe that the other person consents.  

Consent is defined in s.74 of the Sexual Offences Act 2003. It states that a person consents if he agrees by choice, and has the freedom and capacity to make that choice. The Court of Appeal has ruled that a deception as to a person’s sex can invalidate consent, though the law relating to when a deception is sufficient to invalidate consent has been developed in a piecemeal fashion, without any standard test. As a result, there appear to be inconsistences in the current state of the law.  

Sentencing

As stated, Newland was sentenced to 8 years imprisonment. This grabbed several headlines, due to what appears to be a rather severe sentence based on her offence. HHJ Dutton has received the brunt of the criticism, as he was the judge that delivered the sentence on the case. Whilst it may be a difficult pill to swallow, particularly as the sentence feels overly harsh, it seems HHJ Dutton has adhered to the relevant sentencing guidelines.

The guidelines which judges are obliged to follow are shown below for the relevant offence.

In HHJ Dutton’s sentencing remarks, he states ‘I am quire sure that the psychological impact of her experience has been severe and will be long lasting’, placing it in the second category. He goes on to comment on the months these events took place across, the abuse of trust, the vulnerability of the victim due to personal circumstances and the significant degree of planning which would place the culpability in the A section. Looking at the table below, it seems that the judge arrived precisely at the starting point of 8 years custody for the offence. As Newland pleaded not guilty, there was no reduction for a guilty plea, and the remaining factors for reducing the sentence were considered but rejected with clear reasons. It would be difficult to argue then, that the sentencing guidelines were not properly followed.

The sentencing remarks of HHJ Dutton in Newland’s case can be found here:

https://www.judiciary.uk/wp-content/uploads/2015/11/r-v-newlandsentencing.pdf

Deception Point

Case law has made clear that certain deceptions invalidate consent, whereas other deceptions do not. The distinction is crucial, as the former attracts criminal liability of the most serious kind. The title ‘deception point’ of this short paper refers to the point at which a deception is considered seriousness enough to invalidate consent. It would be logical to assume that the court views the deceptions that vitiate consent as more serious, hence they attract criminal status. What perhaps is not so clear, is how severity is determined. As alluded to, in R v McNally [2013] EWCA Crim 1051, the Court of Appeal has held that a deception as to sexual identity can vitiate consent. Yet when compared with other decisions on consent and deception, there appears to be confusion.

In R v EB [2006] EWCA Crim 2945, the court held that not disclosing a serious sexually transmitted, such as HIV infection to a sexual partner does not vitiate consent. These decisions appear inconsistent, as whilst a deception as to sexual identity may outrage a partner, a sexually transmitted disease has the potential to cause serious bodily harm to their partner. Subsequently, the law considers an active deception as to sexual identity more serious than a passive deception as to a being infected with a sexually transmitted disease. On balance, as most would reasonably consider serious bodily harm to be more severe than significant psychological harm, one would assume the former to be of more concern, and more deserving of criminal protection.

It should be noted that R v EB [2006] distinguishes between a failure to disclose from an active deception. A defendant may fall foul of the criminal law had he informed his partner he did not have any STI’s, as opposed to him simply not mentioning he had one. The apparent inconsistencies with the law on consent and deception reach wider than sexually transmitted diseases. A more intriguing decision centres around the agreement not to ejaculate inside of his partner. Concealing his intention to ejaculate inside his partner, with the express agreement that the male party would not, but then proceeding to do so was held as invalidating consent in R(F) v DPP [2013] EWHC 949 (Admin) as he considered the woman subservient to his control.

Whilst in in Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin), not wearing a condom when consent was expressly given on the condition one would be worn was held to invalidate consent, failing to disclose an STI does not. The decision in Assange is perhaps difficult to reconcile with R v EB, but could be considered consistent with R(F) v DPP. As in both cases there was an express agreement as to a particular condition.

However, it is unlikely to be the case that a criminal deception would be made out had the express agreement had been as to something that would reasonably be considered as trivial. If Leveson LJ’s statement that wealth was ‘obviously’ not a deception that could attract criminal liability is followed, then an express agreement that sex was consented to on the false basis that one party was very wealthy presumably would not fall foul of s.74. Therefore, the test is not one which solely considers whether an express agreement and an active deception took place, but rather one which objectively assesses the significance of the matter that the complainant was deceived of.

It may be pure speculation, but one might argue it was very reasonable to agree to avoid the inherent risks and consequences being ejaculated into entails, such as the risk of a myriad of STI’s as well as pregnancy. Equally, the same risks are presented where there is a deception as to the use of a condom, as in Assange. These decisions suggest it is the objective reasonableness of what was agreed to in order to procure consent that is the crucial consideration in a case of this kind. 

How should the position be consolidated?

The decision in R v EB appears to be the anomaly, and the most inconsistent with the catalogue of case law on sexual deception. Failing to disclose a positive diagnosis of HIV, what most would reasonably consider to be the most serious sexual transmitted disease due to its consequences and incurability, sits uncomfortably with the decision in McNally. The harm inherent to contracting HIV is significant, as it is incurable, can shorten life span, and requires a lifetime of regimented medication, which itself, has highly undesirable side effects. However, that is not to say that the complainant in Gayle Newland’s case and in McNally did not incur harm. For them, the detriment was psychological; the significance of which should not be disregarded. 

In both Gayle Newland and McNally, the psychological harm from discovering the defendant’s deception had resulted in psychological harm. However, for some at least, realising the same deception as to sexual identity would not be of concern, particularly as sexual mores continue to develop and change. Indeed, harm suffered by a person discovering a deception of sexual identity will also vary greatly, from no harm to as significant as that experienced by the complainants in Newland and McNally. Yet HIV and other serious disease do not discriminate, and whilst the reactions of receiving a diagnosis may still be varied, the physiological effects are still as profound regardless of the host.

A reasonable position may place the ‘active deception’ as the operating difference. In R v EB, it was suggested had the deception been active, the defendant may have incurred criminal liability.  This poses the question that had Gayle Newland’s sexual encounter with the complainant been fleeting, with little to no opportunity for her to deceive the complainant as to her sexual identity, yet still using the same method for sexual penetration, would she still be liable? Solely on the ‘active deception’ test, the answer might be in the negative. However, the problem with the active deception test is two fold.

First, the active deception distinction has the potential to reach absurd results. As is currently the case, a deception as to sexual identity is treated as criminal whereas a failure to disclose a HIV diagnosis is not. A failure to disclose sexual identity, or indeed, a history of sexual identity, may not attract liability, even if the defendant knew it was of crucial importance to the complainant. Matters such as HIV status would presumably be of crucial importance to the majority of the population, so it would reasonable to assume the defendant in the R v EB was wise to this fact. The same, therefore, should be presumed for more general matters, and for less obvious issues, a common sense approach of whether that factor was important to the complainant should be taken.

Second, determining cases on the basis of an active deception fails to give adequate importance to the complainant’s perspective and sexual autonomy to make decisions. It may be reasonable to assume that the decision in R v EB was reached to avoid establishing an impossible burden of disclosing a raft of information prior to sexual intercourse, in order for it to be considered legitimate consent. This unreasonably high standard of expectation would be very difficult to obtain. However, it is still critical that a complainant’s perspective is given the primary consideration, though whilst it is clearly undesirable for an unlimited range of deceptions to be capable of invalidating consent, a reasonable balance should be negotiated between the perspective of the complainant and that which is objectively reasonable.

Reform

Oxford University Professor Jonathan Herring, in his article ‘Mistaken Sex’, argues for a victim-centred approach for sexual deception. He states that where the defendant knows the complainant is mistaken as to an essential factor to consent, there cannot be consent. This approach appears to leave the category as to what could vitiate consent unrestricted. There might be little doubt however, that this too could lead to absurd results. Herring does not even distinguish between an active deception, which might procure the result of a consent being vitiated where the defendant knows of a deception that the complainant has merely presumed, rather than by an act of the defendant.

Leveson LJ’s obiter that a deception as to wealth would ‘obviously not’ vitiate consent suddenly becomes possible with Herring’s test. Indeed, even a deception that someone was born in a different city than they claimed, that they were fertile when in fact they were not, that their hair was naturally blonde when in fact it was brown, or that their breasts were natural when in fact they contained implants could vitiate consent. The list is endless, with all of the aforementioned deceptions potentially attracting criminal liability under Herring’s test.

Indeed, it would be highly likely that many of those opposed to the decision in Newland’s case would see Herring’s approach as an extreme lurch in the opposite direction, even if it does make for a more certain and clearer approach. An additional step might be warranted in the form of an objective test of reasonableness. This could be phrased in terms resembling the following:

(1) Where the defendant knows that the complainant is mistaken as to an essential factor, or factors combined, to which the complainant has based their consent, and;

(2)    the complainant would not have consented but for the deception, and;

(3)  an ordinary person would consider the deception to be one which was reasonable to base  consent for sexual activity on;

(4)    there shall be no consent for the purposes of s.74;

It may be unlikely this suggestion for reform would change any of the current case law decisions. However, it does achieve two things. First, it enshrines a victim centred approach in its initial question, rather than relying primarily on an objective judicial assessment, which is characterised by the current decisions. Second, in order to curtail the unlimited matters that may be considered criminal deceptions, the third item uses an objective assessment of whether the complainant is reasonable in considering their consent invalidated.

Despite the limited difference of the current approach, clarifying the position, even if not with the proposal above, serves a beneficial function in itself. In what is one of the most challenging areas of law, a skeletal formula may be of great advantage to judges and advocates who are tasked with making and hearing the arguments that determine what is serious enough to be criminally deceptive.

The inclusion of ‘factors combined’ in the initial question includes the possibility of multiple deceptions occurring. It leaves the possibility open that there may be several deceptions that in isolation would be considered trivial, yet together achieve a deception so fundamental that an ordinary person would consider it reasonable to assign criminality to. Admittedly, these instances will seldom occur, and it might be difficult to envisage a possibility of many otherwise trivial deceptions amalgamating in to a criminally deceptive whole. Nevertheless, including an instrument at the courts disposal may be a sensible decision.

Conclusion

Whilst there are many who believe Gayle Newland’s sentence was unjustified, both the sentence and legal finding are correct. What appears to be in disarray, however, is consistency, with strange decisions being reached that differ greatly in their perceived severity, but fall on different sides of criminal liability. The law currently shows that the criminal deception point is determined by a combination of an objective seriousness of the deception, and whether the deception was active or not. It is argued that this is an improper position for the law to hold, and that a logical process of determining first the perspective of the complainant and then the objective reasonableness of the deception would be desirable. Whilst this may not change the decisions in McNally or in Gayle Newland’s case, the decision in R v EB, which is considered the most inconsistent, may be altered, providing a more consistent approach for the law.