FALSLY ACCUSED OF RAPE NOW SHE IS APPEALING

[mrs unhappy]

My husband was falsely accused over rape the girl came around to the house with a bottle of wine stayed for 2 days and then cried rape she is saying that she did not consent to sex even though phone records prove that after the alleged rape she rang him in the evening and asked him to go out for a drink. He classed it as a one night stand and she wanted things to go further he decided that he wanted to make a go of things again with me and she cried rape my husband got a 4yr sentence for a crime he did not commit she is now appealing against his sentence and she thinks 4yrs was not enough not enough when your innocent! The case is now with the attorney general im going out of my mind can anyone help, what should i do this is already like a nightmare and its getting worse. What happens in these situations i have no idea could anyone give me some information on the process

[Ashley]

Hello Mrs Unhappy,

You will find two responses to your dilemma in the discussion you started under
'News and Requests for help'. Both myself and Val Lavender offered some advice and a brief explanation of the processes you are seeking information about.

Having read those first feel free to ask for additional advice, bearing in mind that although it comes from experience, it is nevertheless lay advice.

[mrs unhappy]

Hi Ashley

I have read those but this is something different that i only got news of last night
previously it was what can my husband do to appeal.
Now she has applied to get my husbnds sentence increased his solicitor ony told me this last night that she wants the sentence upholding i wanted to know what happens with regards to this what happens next what is the process as i am sure it would be different than my husband appealing for being wrongly accused.

[Ashley]

Hi again Mrs Unhappy,

I did address this issue in one of the previous posts, don't worry I don't mind helping you at all.

A convicted person has a right of appeal against conviction, which you already know. He/She also has a right of appeal against the length of sentence. If the Court thinks that it is excessive they can intervene and reduce the term. The Crown however also have a right to appeal against the length of sentence, if in their view, it is unduly lenient. If the Court agrees then they can interevene and actually increase the term.

There are sentencing guidelines for most serious offences, if the Crown feel that the Trial Judge has erred in his sentencing policy they can bring it to the attention of the Appeal Court. They, in the light of all the circumstances can increase it or decline to vary it.

Hope this explains things for you.

Best Wishes
Ashley

[diana_holbourn]

If the judge at the original trial gave a short sentence because he thought there were obvious problems with the prosecution's evidence, then hopefully the appeal judges will decide not to lengthen the sentence because of the same problems. I'm not sure if there's a way you can try to ensure that they'll do that. But it's by no means a foregone conclusion that the sentence will be increased.

[Ashley]

Absolutely right Diana, the guidelines are simply that, they don't have to be rigorously adhered too. The Court of Appeal will actually be very slow to interfere with the Trial Judges discretion.

Often it is the case they will say 'yes, the sentence is excessive but not manifestly so', similarly, 'yes it is lenient but not unduly so', and decline to vary the sentence.

It is to be remembered that the Court of Appeal are very reluctant to intervene with a trial process unless there is something manifestly and compellingly awry.

[val lavender]

Hi Mrs Unhappy

I feel for you in this current situation, and I wish that I knew more about the laws governing this kind od problem. I have spoken to a snior member of the CPS that I know and even he is not clear on your rights in such a predicement.

Given the circumstances you describe, given the length od time she spent at the house and the subsequent phone call, are you appealling the conviction?

regards

Val

[Guest_mrs unhappy_*]

Hi Val
Thanks for your reply, My husbands solicititor has said that in the barristers report he has advised not to appeal as their are no grounds he said that you can not appeal over the jury believing her story over yours. Certain witness's did not get called up at the trial and now her appeal is at the high court over his sentence being too leinent. Too leinent he is innocent, my husband is going into depression and he cannot believe this is happening neither can i there must be something that we can do this is so wrong we dont know what to do next as his solicitor is saying dont appeal as the time you have already served might not be taken of the sentence, he is in denial he will not do any courses as he did not do this so will end up serving longer anyway he said in prison they put so much pressure on you to admit and to get you on the course this is a nightmare any ideas.

Thanks

[Saffron]

Originally posted by Guest_mrs unhappy_*@23rd January 2005 - 09:55 AM
Hi Val
Thanks for your reply, My husbands solicititor has said that in the barristers report he has advised not to appeal as their are no grounds he said that you can not appeal over the jury believing her story over yours. Certain witness's did not get called up at the trial and now her appeal is at the high court over his sentence being too leinent. Too leinent he is innocent, my husband is going into depression and he cannot believe this is happening neither can i there must be something that we can do this is so wrong we dont know what to do next as his solicitor is saying dont appeal as the time you have already served might not be taken of the sentence, he is in denial he will not do any courses as he did not do this so will end up serving longer anyway he said in prison they put so much pressure on you to admit and to get you on the course this is a nightmare any ideas.

Thanks

Quoted post

Hello Mrs Unhappy

Your solicitor is quite right, you cannot appeal against the conviction simply because you think the jury got it wrong. There have to be grounds for appeal, such as the trial was unfair, the judge's summing up was biased, or that new evidence comes to light.

In my husband's case, when he was (wrongly) convicted, I automatically assumed we would be able to appeal. But because the trial had been manifestly fair, there were no grounds. Many people think that if you don't appeal you must be guilty, and that everyone has the right of appeal, but that is just ignorance. The injustice of it all still infuriates me now, one year on, but we are powerless.

All we can do now is to try to find some way of discrediting his accuser - we know she uses recreational drugs and has lied to her friends about having a severe heart condition. She has also lied to her friends and colleagues about her work, claiming she works part time as a dresser for a well-known pop band. She is an attention-seeking fantasist, but we have no means of proof. She was the star witness at the trial. If we could find grounds for her veracity to be called into question, surely there would be sufficient grounds for appeal?

Mrs Unhappy, I really feel for you, having experienced the same injustice, loss and powerlessness as you are now. If there is anything I can do to hgelp, please feel free to mail me.

Saffron

[Ashley]

Hi Mrs Unhappy,

Whatever happens, no matter what the pressure, your husband should not admit to something he has not done. If he does, even to ty and secure an easier passage through the prison system, there can never be an appeal.

I spent five years in the same position before the evidence came that cleared me. Never once did the notion of admitting to something I had not done enter my head. Every day was a mountain to climb and I have written at length under different headings about what I went through. I know only too well from bitter experience what it is like to be falsely accused, that alone is bad enough, but I also know what it is like to be wrongly convicted.

Even though I have cleared my name, the effects are long lasting. The euphoria of clearing my name lasted about 12 hours.

I had a lot of people on the outside helping me to do what I did, your husband has you. It will be hard, I can't tell you the lengths my supporters went to secure the evidence that demonstrated conclusively that I was innocent. It is a fight, you have to dig into the very deepest recesses of your stamina........it can be done.

Every day I would say to myself....'TOMORROW WILL BE MINE'......tomorrow did come.

[val lavender]

Hi Mrs Unhappy

it is often the case that the solicitors who got the defense wrong are not the best people to ask about an appeal.

Whilst they do have in-depth knowledge of the case it maybe that they would have to highlight their own shortcomings in terms of an appeal.

Have you considered changing solicitors? There is an organisation of solicitors called HAAP who specialise in such cases, it might be worth giving them a try and get an independant opinion as to whether there are grounds for an appeal. Their number is 01302 365374.

I hope the above suggestion is of some help

Regards

Val

[maria]

hi val can you just give me some advice my son was bull barded into giving a guilty plea even tho he was beleived by the police probabtion sychiatrist etc and we were also told at a later date his barrister put the fear of god into him to take a plea bargain because his wife was pregnant and he had another case to do... he is now still on probabtion and sex offenders list and is still trying to clear his name he doesn't seem to be getting anywhere do you know what we can do? the ex policeman that work for my son is even willing to put this in writing about his barristor this girl who falsley accused him has been made to have 2 medicals one by us and one by her mother because it came back that she had never been touch so her mother insisted that they did another one by a different doctor same thing came back she was still intact no scaring no broken hymen etc even to this day probabtion beleive my son but they have told him that of the record because they are not allowed to air there views do you have any suggesting many thanks maria x

[val lavender]

Hi Maria

I am not absolutely certain , but I dont think that there is anything you can do about it now. As far as I am aware, once you plead guilty to a crime that is it in the eyes of the law.

If you could conclusivley prove that the events she described never took place and that your son only plead guilty because of defective legal advice there might be something you could do, but if you could prove that them the case would probably never have gone to trial in the first place or the defense would not have suggested a guily plea.

I know that the above is not much help, but I cant think of any way that the conviction can be overturned now, short of the accuser admitting that she made the wjole thing up.

regards

Val

[Ashley]

Hi Maria,

Perhaps I can add a little more to Val's reply. It will not be of much comfort, but maybe a chink of light for you.

There is no bar in law to an appeal following a plea of guilty. That is law, the reality is very different. It creates a mountain to climb.

Firstly, the acceptance of Counsel's advice to enter a plea. There are only two ways I know of around this and I doubt if they apply:

1. Either the lay person (your son) was incapable of understanding the advice. That means, mentally incapable, not just distraught by the nature of the circumstances he found himself in.

2. The advice was grossly negligent, and it has to be GROSSLY negligent. For instance: there was an obvious defence in law that Counsel failed to observe.

The other aspect may offer a chink of light.

If it was unfair to try the defendant in the first place then it follows that the conviction, even on a guilty plea, can be quashed. This is not a reference to Human Rights Legislation but an aspect of our own domestic law. It is known as an Abuse of Process. Most commonly it is argued before a trial, but the argument can be heard during and even after. It is an argument used by lawyers to prevent a trial taking place, know as a 'stay of proceedings'. Lawyers often use the argument, even if the trial judge rejects it, it can be raised on appeal. Basically they are laying down a point of appeal before the trial even starts.

The case law and precedent on this aspect of law is massive. Many legal books exist solely dealing with this one issue. It is also rather complex.

There are two legs on which an Abuse of Process can be argued, they are distinctly different, but both go to 'fairness'. In its simplest of terms:

1. Where there has been some misconduct by the prosecuting authorities. It doesn't have to be a corrupt act, but if it led to potential unfairness then it may be an Abuse of Process.

2. The second leg relates to unfairness caused by a delay in complaint. If the defendant can show, on the balance of probabilities, that his defence has been prejudiced by a delayed complaint, it may be possible to make the argument.
Don't get excited, many trials still go ahead on very historic allegations, some 30 years old.

You literally have to read dozens and dozens of decisions before you can even get a flavour for whether it is relevant to your case.

I would add that this is the most basic of defence arguments, any Barrister fresh out of law school will be very alive to it' potential use. It would be unbelievable if the potential, if it existed, was not considered by Counsel.

I know it is not what you want to hear, my prayers do go out to you all the same.

Best wishes,
Ashley.

[maria]

hi all just wanted to say thankyou to val and ashley this is so very confusing for me even still after a yr ... but we will clear shanes name come heaven and high water x