Mark Watts, former editor-in-chief of Exaro News, has written a long and detailed argument explaining why he considers that the conviction of Carl Beech was a miscarriage of justice. He points out that he is “a lone voice” amongst journalists:
“While many journalists join in the official narrative, some who know otherwise in the national media either go along with them in a desperate attempt to protect their cowardly backsides or elect, understandably, to keep their heads down.”
As well as cowardly journalists who “join in the official narrative,” Mr Watts has particular contempt for what he calls “the falsely accused brigade.”
“The falsely-accused brigade and its cheerleaders in the media have exposed their hypocrisy in their celebration of this trial. If they were genuinely interested in fair justice, they would not be ignoring the dubious way in which Beech was found guilty.
In truth, members of the falsely-accused brigade are not remotely interested in justice, but in proclaiming with a pseudo-religious fervour that they or their loved ones or their friends or associates are innocent of accusations of sexual abuse levelled against them.”
Mr Watts is rather vague about exactly who is in the “falsely accused brigade,” although presumably it includes Harvey Proctor, Lord Bramall and Greville Janner’s son Daniel. All three have fervently “proclaimed that they or their loved ones are innocent of accusations sexual abuse levelled against them.” Confusingly, though,Mr Watts concedes that “Beech’s allegations against anyone have no credibility,” in view of which it seems mildly ungracious to sneer at his victims for “proclaiming” their innocence.
Unexpected support for Watts
Another prominent public figure who has proclaimed his innocence of accusations of sexual abuse is Jonathan King. He was convicted in 2001 of being – in his own words – a “vile pervert” (he has made a musical about it which you can watch online, it has some excellent lines and some rather catchy tunes). Since his release from prison Mr King has devoted a good deal of time to proclaiming his own innocence, and to criticising Operation Yewtree and the prosecutions of other well-known figures, such as Dave Lee Travis and Rolf Harris, so if anyone is in the “falsely accused brigade” it is King. He was prosecuted a second time last year, but the case against him fell apart in the most spectacular fashion. He has an application pending with the Criminal Cases Review Commission in respect of his 2001 convictions. Despite this, Mr King has praised Mr Watts’s piece very warmly. It is, in his view, “very well written,” and “makes some very good points with which I agree.”
Well, who is right? Mr Watts and Mr King, or those unnamed journalists who “know otherwise” yet join in “the official narrative,” keeping their heads down “in a desperate attempt to cover their cowardly backsides”?
The Beech debacle has done nothing to quench Mr Watts’s seemingly unshakeable belief that the guiding hand of a malign establishment has only to make a secret announcement of the official line, for journalists – other than himself, an ex-BBC journalist called Anna Brees, and possibly George Galloway – to follow it.
So did Carl Beech have a fair trial or not?
There is no point in summarising the whole of Mr Watts’s argument, by all means read it for yourselves. Nor, because life is too short and the weather is still delightful, am I going to attempt a detailed refutation of all of his arguments.
And in fact there are some reasonable points buried amidst a large number of very bad ones.
I agree with him, for example, that:
“when assessing the truth or otherwise of allegations of sexual abuse in particular … the criminal justice system is often hopeless,”
although I would add the caveat that the criminal justice system still has a much better record than Exaro News.
He is right that “that is a problem both for those who have been sexually abused and for others who have been falsely accused.”
Was an 18 year sentence too long?
I even have some sympathy with the view that Beech’s 18 year sentence (15 of which were for perverting the course of justice) wasvery severe and arguably excessive. Beech’s lies were certainlycarefully planned and carried out, and he persisted in them over several years, causing terrible harm to innocent people (as well as giving false hope to the bereaved). There are no really comparable cases but one called Weiner  1 Cr. App. R. (S.) 6, gives some guidance, although it does not make very happy reading for Beech.The Court of Appeal in that case upheld a 12 year sentence forperverting the course of justice by secretly installing indecent images of children on a school caretaker’s computer, and thenfalsely accusing the poor man of distributing the images. The motive was simply that he did not like him. According to the judgment:
“It was 18 months before he was exonerated after a thorough police operation. The police had been careful not to make public the arrest of T or the reason for it, but the appellant gratuitously and spitefully informed the local press in January 2007 so that T and his wife suffered the distress of inevitable unwelcome publicity. Amongst other things they were spat at in the street, they were forced to move out of their home and they were deserted by many of their friends. When T eventually returned to work at the school he found life unbearable as many of the staff would not speak to him. His health suffered and so did that of his wife. There were still people who believed that he was a paedophile, even though he was in fact a wholly innocent man.”
The judges made the point that:
By comparison, Beech’s activity was almost as well-planned,affected many more people and went on for even longer, all of which might suggest a sentence longer than Weiner’s 12 years. His case, of course, shares the aggravating feature that he alerted the press, not the local press but Mr Watts’s Exaro News. The only real point of mitigation for Beech – but a significant one nonetheless – is that nobody was actually prosecuted or imprisoned on the strength of his lies, but then nor were they in the case of Weiner.
The case of Jemma Beale, might be more helpful to him. She falsely accused four men of rape, leading to the wrongful conviction and imprisonment of one of them: she was sentenced to only 10 yearsimprisonment, which was upheld by the Court of Appeal. If that sentence was right, I am inclined to think that Beech’s was perhaps too long. Some would say, however, that it is more a question of Beale’s being too short.
The Bad Character Evidence
I want to deal in detail only with Mr Watts’s main point, which is that the judge wrongly allowed the jury to hear of Beech’s “despicable” convictions for downloading indecent images and covertly filming a child (a friend of his son) urinating.
This was the ruling which, according to Watts:
“… made it impossible for Beech to have a fair trial on the PCJ and fraud charges. It left the ‘Nick’ trial hopelessly compromised, making the subsequent convictions wholly unsafe.”
He describes the application by the prosecution to admit this evidence as “an extraordinary wheeze.”
It is correct that prosecutors are not automatically permitted to adduce “bad character” evidence of this sort. The permission of the judge is normally required, and in Beech’s case it was given. Mr Watts is mistaken in suggesting that there is anything“extraordinary” about it, and if the word “wheeze” is meant to suggest that it was a clever but slightly tricksy ruse, he is wrong about that too.
His grasp of the law becomes shaky as he tries to explain the position:
“The problem is that prosecutors must not usually tell juries about any previous convictions of defendants otherwise trials would be hopelessly prejudiced. …
But there was a hope for the CPS – in the Criminal Justice Act 2003. It is a handy bit of legislation that is often used in particular to discredit witnesses who allege child sexual abuse because it enables defence lawyers to introduce evidence of any “dishonest” crime to be deployed against them to undermine their credibility. The fact that the “dishonest” crime may have sprung from the childhood abuse is invariably conveniently ignored.
Could the CPS break the usual rules and turn the Criminal Justice Act 2003 on to Beech the defendant and introduce his recent reprehensible past convictions into the trial? Well, it could certainly try.”
Mr Watts has identified the right Act but otherwise this is nonsense.
In the first place there is nothing remotely unusual about the prosecution introducing evidence of a defendant’s bad character. Typically, such evidence consists of previous convictions. So common is it, that the standard questionnaire completed by both parties at the first substantive hearing in the Crown Court requires the prosecution to give an “indication of bad character evidence to be relied upon.” Far from breaking the “usual rules” the CPS was following them.
Mr Watts then implies that the effect of the 2003 Act was to enable defence lawyers “to discredit witnesses who allege child sexual abuse.”That again is simply wrong. The effect of the Act was the opposite; to make it much harder for the defence to ask about a prosecution witness’s “bad character,” including their previous convictions.
The previous rule, derived from the common law which applied until 2003, was that the defence had a wide discretion to cross-examine as to the “credit” of a witness. If a witness had a previous conviction, the defence could ask about it without first obtaining the permission of the judge.
S.99 of the 2003 Act abolished this common law rule and replaced it with a statutory framework that is far more restrictive to the defence. S.100 sets out the rules which now apply:
100 Non-defendant’s bad character
(1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if—
(a) it is important explanatory evidence,
(b) it has substantial probative value in relation to a matter which—
(i) is a matter in issue in the proceedings, and
(ii) is of substantial importance in the context of the case as a whole,
(c) all parties to the proceedings agree to the evidence being admissible.
If you think that the slightly woolly phrase “important explanatory evidence” enables the defence to get in any old conviction that a witness might have, think again. It is defined very restrictively in subsection (2):
(2) For the purposes of subsection (1) (a) evidence is important explanatory evidence if—
(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and
(b) its value for understanding the case as a whole is substantial.
The effect of S.100 has been, as was intended, hugely to restrict the defence in asking questions of this sort. Here is Lord Justice Pitchford explaining it in a 2010 case called Miller  EWCA Crim 1153:
“The purpose of s.100 … is to limit the ambit of cross-examination to that which is substantially probative of the issue of credibility, if credibility is an issue of substantial importance to the case. One of its intended effects is to eliminate kite-flying and innuendo against the character of a witness in favour of concentration upon the real issues in the case.”
The 2019 edition of Archbold’s Criminal Pleading, Evidence and Practice, rightly known as the criminal lawyers “bible,” summarises the law:
“Where the convictions are old and the offences not particularly serious, permission to cross-examine about them is likely to be refused. In R. v. Garnham  EWCA Crim 266, for example, the Court of Appeal endorsed the refusal of the trial judge to permit the cross-examination of a rape complainant about her record for theft and other offences of dishonestly, the most recent of which was five years before. In Brewster and Cromwell, on the other hand, the Court of Appeal took a different view of the witness’s criminal record which included, besides the manslaughter already mentioned, convictions for theft, burglary and possession of heroin with intent to supply, the most recent being only two years before. Where—as often—the witness’s record falls somewhere between these two extremes, the court will have to decide upon which side of the line it falls; and provided the reasoning set out inBrewster and related cases is followed, the conclusion will be difficult to challenge on appeal.”
Presumably Mr Watts was mistaken rather than disingenuous in his description of the Act as
“a handy bit of legislation that is often used in particular to discredit witnesses who allege child sexual abuse because it enables defence lawyers to introduce evidence of any “dishonest” crime to be deployed against them to undermine their credibility,”
but if he had done his research he would not have made such a mistake.
As well as making it harder to introduce evidence of a witness’s bad character, the 2003 Act also made it easier to introduce evidence of that of the defendant.
The law here is set out in S.101 of the Act, subsection (1) of which lists the various circumstances in which a defendant’s bad character can be given in evidence:
S. 101 Defendant’s bad character
In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if—
(a) all parties to the proceedings agree to the evidence being admissible,
(b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it,
(c) it is important explanatory evidence,
(d) it is relevant to an important matter in issue between the defendant and the prosecution,
(e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant,
(f) it is evidence to correct a false impression given by the defendant, or
(g) the defendant has made an attack on another person’s character.
In the jargon that has grown up since 2003, these 7 routes to the admissibility of bad character evidence are usually known as “gateways.” Gateway (d) in particular has had a profound effect on the way criminal trials are run, sweeping away the old presumption that a defendant’s previous convictions, or other “misconduct” could not be referred to in a trial except in very special circumstances. Now, provided that such evidence is “relevant to an important matter in issue” bad character evidence is admissible.
That does not mean it can always be introduced. Unless both parties agree, or the defendant himself admits it in evidence [gateways (a) or (b)], the judge’s permission must still be obtained. Moreover, and very importantly, in the case of gateways (d) and (g) the judge must exclude otherwise relevant bad character evidence if:
“… it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.” [see S.101 (3)]
Although (as he has often reminded us) Mr Watts was present for the whole of the trial, his 7,500 word piece does not explain either the basis upon which the prosecution made its application, or the reasons given by the judge for allowing it. Given the importance Watts ascribes to the evidence – it is central to his argument that the trial was unfair – this is a peculiar and glaring omission.
Fortunately there was another reporter present who took a better note of the argument, the BBC’s Daniel De Simone. Prompted by the lacuna in Mr Watts’s piece, Mr De Simone has explained in detail the reasons why the judge allowed the jury to hear about Beech’s previous conviction. They were:
1. To demonstrate that Beech had an interest in the subject matter of his allegations, namely the sexual abuse of young boys by men, entirely independent of his claim that such abuse actually took place;
2. To demonstrate that he had a propensity to lie in relation to criminal inquiries, since he had lied to the police officers investigating his offending against children;
3. To demonstrate a propensity to deploy technology to hide his offending, which was at issue in relation to his use of an encrypted email account to pose as a fake collaborative witness during Operation Midland;
Reason 1 may not on its own have been entirely convincing, but in a case where the main allegation is that the defendant has lied through his teeth to the police is Mr Watts seriously suggesting that the the fact that he has lied to the police about another investigation is of no relevance at all? We don’t know the answer, because Watts has not said.
Similarly, where Beech was accused of using an encrypted email account to pretend to be a corroborative witness, how could it beirrelevant to reveal that he also used electronic gadgetry to make and then conceal his collection of indecent child images? Again Watts deals with this question by simply ignoring it.
In fact, and unsurprisingly in view of the obvious relevance of the convictions, the argument seems to have centred not on thequestion of relevance but on the judge’s residual duty to exclude the evidence if “it would have such an adverse effect on the fairness of the trial that the court ought not to admit it.”
Yet once the relevance of the evidence is conceded, what was so unfair about admitting it? Certainly making indecent images of children, and secretly filming his son’s friends urinating were the sort of things that might well cause prejudice in jurors, but that alone is not enough to make the trial unfair. The typical situations in which bad character evidence is likely to be considered so unfair that it ought not to be admitted are (according to Archbold):
(1) where the bad character evidence is adduced to support a prosecution case that is particularly weak; and
(2) where the evidence of bad character is disputed and if admitted is likely to give rise to complicated “satellite issues.”
The case against Beech, even without the bad character evidence was strong and there was not the slightest doubt that he had committed the previous offences, indeed he had pleaded guilty to them before the main trial started.
Sauce for the goose is sauce for the gander
And there was, as Mr De Simone also mentions, another issue, which again, for some reason, Mr Watts entirely ignores. Beech’s defence was not that he was mad, or that he had for some reason imagined things that had not happened. It was that his allegations were true. In other words, he was accusing various people of murder, paedophilia, torture and people-trafficking. He was, in short, making an attack on other people’s characters. How could itthen have been fair to allow Beech to accuse others of such criminality, yet prevent the jury learning that the man making the accusation was both a liar who was sexually interested in children? Gateway (g) of S.101 specifically provides for the admission of a defendant’s bad character in this situation. Mr Watts evidentlybelieves that Beech should have been free to accuse others of murder, torture and child rape without the jury learning that he was himself indisputably a liar with a taste for covertly recording and storing indecent child images.
Even under the far more restrictive law in existence prior to 2003, where “the nature and conduct” of a defence involved “imputations on the … the witnesses for the prosecution,” a defendant laid himself open to cross-examination and the admission of evidence about his own bad character. In fact this has been a rule since defendants were first permitted to give evidence in their own defence in 1898.
The search evidence: kite flying and innuendo?
Mr Watts raises other points. He complains that the defence were forbidden from cross-examining Mr Proctor about various items found in the search of his premises by Operation Midland. Since all those items were returned to him by the Metropolitan Police investigating Beech’s rape and murder allegations, it is reasonable to assume that they did not regard them as very significant. One of the intended effects of s.100 of the Criminal Justice Act 2003 (the provision that Watts disapprovingly says is “often used in particular to discredit witnesses”) was, as Pitchford LJ put it:
“… to eliminate kite-flying and innuendo against the character of a witness in favour of concentration upon the real issues in the case.”
The judge was doing his duty.
The missing witnesses
And why, asks Watts, were more officers from the Met not called? Why in particular did neither prosecution nor defence call Supt Kenny “Credible and True” McDonald?
“I do not see, though, why the defence should not have summoned the missing officers.
A few, rather junior Met detectives were called, including one lowly DC who was dragged all the way to Newcastle even though he had also left the job. No round-the-world cruise for him, it seemed.
But no one thought to ask them, especially those who worked on Operation Midland from the outset, just what was the basis of the Met’s staggering “credible and true” assessment.
The answer would have been illuminating, putting a different complexion on the trial.”
As Mr Watts doesn’t see it, perhaps I can explain. A witness – other than an expert witness – is simply not allowed to give opinion evidence, and certainly not on the central issue in the case. That is why police officers are never asked “do you believe that the defendant is truthful / untruthful?”
But what if Beech’s very experienced defence team had been unwise enough to follow Watts’s advice? What if they had called Supt McDonald anyway, and asked him – perhaps when the judge was temporarily distracted – “what was the basis of your ‘credible and true’ assessment?”
I can guess what he would have said: that he now accepts that Beech duped him, just as he duped Watts, Conrad and Hencke and the rest of the credulous Exaro crew, and just as he duped Tom Watson, Zac Goldsmith, the Criminal Injuries Compensation Authority, his counsellor, the police psychologist Elly Hanson, LBC’s James O’Brien, Bristol City Council the #IbelieveNick twitter-mob and goodness knows how many other people; and that whatever he may have thought in 2014, he now, like Watts himself, accepts that “Beech’s allegations against anyone have no credibility.”That might or might not have been “illuminating” and it would have damaged Beech’s defence.
I understand why Mr Watts is reluctant to let go of Beech. He gambled his reputation on him and lost. It must be very painful, though less painful than being accused of rape and murder via the pages of Exaro. Like a compulsive gambler, rather than sensibly walking away from the green baize, Mr Watts is now staking his shirt and suit on persuading the world that Beech is not just a greedy liar with an obsession about sex with small boys but also the “survivor” of some ill-defined establishment conspiracy to deny him a fair trial. It is another gamble that I predict he is going to lose.
source: Did Carl Beech have a fair trial? | BarristerBlogger | Matthew Scott’s Legal Comment Argument and Discussion |