Vincent Tabak is now behind bars for murder, rather than for manslaughter. That is important. It does not bring back his victim, Joanna Yeates, and it will not end her family’s suffering. Indeed the vile Tabak put them through hell by forcing the family to endure the trial. That must have been an appalling ordeal for them.

I might add that I have had the misfortune to meet and deal with the odd sociopath in my time, and Tabak‘s manipulations, self pity and denials strike me as marking him out as a classic of the type.

But it was important that he be found guilty of murder. Whilst his conviction for murder will not ease the loss of her family, boyfriend and friends, it was important because his guilty plea for mere manslaughter would have made their suffering worse. A grave injustice would have been done. I can faithfully promise from direct experience that I would rather not reveal that the sense of injustice after a trial when the full facts do not come out, and a malefactor is not exposed, is rather horrible.

Tabak was convicted of murder, rather than manslaughter by a 10:2 majority verdict. The Crown just got home. But immediately in the aftermath of the trial it was revealed that important evidence had not been put before the jury. Specifically, that he was involved in the serial use of prostitutes and, much more importantly in my view, that he had been watching pornography in which women were throttled by men. I have seen different reports about when: according to some it was only after the murder; according to The Sunday Times today, it was both before and after.

I was disturbed to hear that the jury had not been told. I confess I am not an expert in criminal procedure, but I have a sort of working knowledge. Here is why they were not told, as understand it.

In criminal proceedings there are strict rules about what might be called the “probative value” of evidence. This is for good reason. For example, if a man is charged with theft then the fact that he has a long history of convictions for theft or other offences of dishonesty will be withheld from the jury unless he protests that he is a decent citizen with no stain on his character. The reason being that the mere fact that someone has been a bad person in the past does not mean that he guilty. Each person is entitled to be tried on the facts and evidence, not on his reputation.

There is a particular exception where there is compelling “similar fact” evidence. In this situation, if a man or (or woman) has previously been convicted of a series of crimes which bear a remarkable and distinctive signature, that may be admitted as evidence. Here the probative value outweighs the risk of injustice. To take a dramatic but realistic example, if a man is accused of murder in which the victim has been mutilated in a particular and distinctive way the fact that he has already been convicted of crimes using the same method will be allowed. Since Tabak had not been convicted of a previous offence, that did not apply.

With these two points in mind, I will venture that I can tell you exactly why the Judge (Mr Justice Field) excluded the evidence of Tabak’s activities in prostitutes and porn from the jury. This is why: he wanted Tabak convicted of murder, and he did not want an appeal. He took a long, hard, cool look at the evidence and the risks that Tabak’s lawyers would be able to claim that he had not been given a fair trial if that evidence was admitted. Like a poker player in a high steaks game, he made “the call”. The “call” being that the jury would convict anyway. I suspect he would have made a different call if there had been less evidence.

He just got away with it.

My point is that no “call” should have to have been made. I think there are too many lawyers’ games going on here. I would prefer to trust the jury. If I had been on that jury I would have found the fact that he used prostitutes informative, but in no way conclusive. I would have found the interest in sadistic porn of that nature extremely informative, whether it was before or after the event.

We have too many rules of evidence. Lawyers will argue that the fact that a man has 20 convictions for theft does not mean that he has committed this crime. I agree, but is a factor the jury should know and weigh in the balance.

Juries should be allowed to know the whole picture. Either we trust the juries or we don’t.

But they got it right in this case.

Gildas the Monk

Mr Ecks November 4, 2011 at 18:49

Way off with this tripe Gildas–and even more sickening that quite a few
seem to agree with you.
A history of going with prostitutes has no
relevance whatsoever unless he was violent with them against their will.
Because he goes with prostitutes he is a bad man? Puritan bullshit. Paying a
willing woman for sex is a lot more honest and moral than millions of
travesties that are called “relationships” in this world.

He looked at “sadistic” pornography? He and tens of millions of others, the
vast majority of whom have never and will never harm a fly. Totally irrelevant
to the case.Much beloved of bluebottles as a fit-up tool tho’. Odd desire
=killer. If he had a history of actually trying to harm women that might be
relevant. No such history was put before the court. What about these escort
girls–did he try to strangle any of them?.Did he ask any of them to let him
put them in a car boot?. It is not clear that the porn he watched was of
strangulation or not, beyond the garbage pedalled by the tabloids.Rather odd
then that he throws his life away for one insane act.

The fact is that the police are a bunch of liars whose interest is in
fitting up anybody they can get their hands on who can’t get out from under.
Barry George (a harmless nitwit) convicted on the basis of police bullshit,
Michael Stone , a bad guy no doubt, but not proven a murderer–no forensic, no
witnesses: the only evidence a “confession” attested to by criminal garbage.
Stone’s worthless convction puts all of us in danger. In the present case the
police tried to fit up the oddball neighbour but couldn’t make it work. It is
no longer possible to believe anything the police say and every case such as
this should have all court details published right after trial so people can
see what the evidence was firsthand, not via tabloids and crowing coppers.

All cases need to be tried on the basis of facts and evidence not crap
about what sort of person the alleged perp allegedly is.

honestbroker
November 3, 2011 at 07:54

I agree with the conclusion but not the reasoning.

I think the judge excluded the evidence because studies do not clearly show
a cause and effect.

For instance, there was a study some while ago that purported to show a
link between listening to country and western music and committing suicide.

There probably is a link, but not the one suggested. People already in a
depressed state (and therefore more likely to commit suicide) are more likely
to gravitate towards country and western music. But saying that is quite
different from saying that the music caused them to become suicidal.

I think we have a similar cause and effect with violent films and acts of
gratuitous violence. People predisposed to violence will gravitate towards
violent films. The fact that Tabak had such predispositions led him to watch
these films — but not to murder Jo.

We can state, certainly, that Jack the Ripper never watched a violent film
in his life, for example …

M Barnes November 2, 2011 at 14:39

Such an interesting post – Thank you, your Monkness!
If the Judge went
through the thought process you posit one has to admire his nerve and (pardon
the pun), judgement.
Juries or no Juries? I’d point out that no system is
perfect. Small panels of Judges,or an individual Judge are open to corruption,
poor/prejudiced decision-making just as juries are. On balance I like Juries –
12 being more self-regulating than one in this instance. There will be
mistakes: the guilty will go free, the innocent will be convicted. I would
want such mistakes to be continually interrogated and the margin for error
reduced. I too have experienced – second hand – the awful feeling of justice
not being done. I am heartily relieved that in this case it was.
Just one
still niggling question…. if Tabak got to claim or present himself as a shy
inexperienced man when it came to women, did that not clear the way for the
porn evidence to be permitted? It’s a moot point now I suppose.

zaphod November 2, 2011 at 18:48

There is definitely no contradiction in a man being shy and inexperienced
with women, and also having a stash of porn.

uk Fred November 2, 2011 at 23:03

I would have to agree with Zaphod. Use of porn tends to inhibit forming
real relationships where there is the view of another party to take into
consideration. Together with his use of prostitutes, there is a certain
amount of evidence that a psychologist or psychiatrist might well be able to
present to a court to show that he was likely to be incapable of influencing
someone to enter a sexual relationship with him unless it was paid for in
cash.

M Barnes
November 3, 2011 at 22:14

Yeah – I can see that argument. Fairy Nuff.

mark November 1,
2011 at 20:21

Just to make the point, I think I would be influenced by knowing of
previous convictions, even if I tried not to be.

JuliaM November
2, 2011 at 05:35

It would depend on what they were for – a man on trial for murder who had
a history of shoplifting? Irrelevant. A history of GBH? Very relevant.

Mudplugger November 1, 2011 at 20:07

On balance, if the ‘fact’ of his using prostitutes and the ‘fact’ of his
pornography use is confirmed, then there is no reason why those facts should
not be provided to the jury as part of the total profile of the accused.
Without those’facts’ they are making a decision lacking possession of facts
known to others in the case, which must surely be wrong.
If we have a jury
system, then we should provide every scintilla of evidential fact to that jury
to inform their deliberations fully, allowing the jury to apply their adult
evaluation to all the facts provided.

Michael November 1, 2011 at 19:25

Hi Gildas,

Your post echoes exactly my train of thought on the whole thing.

Dunstan November 1, 2011 at 16:21

It’s interesting that the term “miscarriage of justice” invariably applies
to someone innocent being found guilty. Someone not being convicted of a crime
of which they are guilty is just as much a miscarriage of justice IMHO.

Gallovidian November 1, 2011 at 16:04

Agree, have long thought that the jury should have the information.

Woman on a
Raft November 1, 2011 at 14:50

I’m not nearly as paranoid as the judges are about revealing previous
convictions – specifically convictions – before a jury has made a decision.

A conviction is supposed to be a thing which if not gospel is at least of
itself a verified fact. There are defendants who happen to be famous and can’t
expect a jury not to know who they are, including if they have previous
convictions. We’ve seen judges getting all fetishy over this and demanding
that trials are conducted under different names, blocking data on diary
systems and all sorts.

There has even been screaming abdabs over whether this should cause a trial
to be abandoned. Why? It didn’t prevent Sion Jenkins from being tried
repeatedly, or Marianne Williams. An MP on trial can’t expect much in the way
of concealment, they are all over the public eye.

As an example, I found this old story where the BMA was said to have very
nearly scuppered the Shipman trial by inadvertently releasing details of his
previous nick to members.

http://news.bbc.co.uk/1/hi/health/628158.stm

“The outrage and horror that the public would necessarily have felt cannot
possibly be exaggerated” said Mr Justice Forbes, referring them to the
Attorney General for a wigging on contempt.

No, the public would have been mightily cross that the jury weren’t told a
relevant fact about his previous drugs bust because that is highly relevant in
a doctor accused of stockpiling the stuff and offing his patients with it.

The Crown should have been entitled to use it as admissible evidence of
character.

Cascadian November 2, 2011 at 02:46

Anyone who can discuss the legal system yet squeeze in the term
“screaming abdabs” has my attention.

I haven’t heard that term in decades.

2Mac November 1, 2011 at 14:30

Oh! I confess. I am guilty of occasionally watching lesbian porn. Is it
likely I may in fact become a lesbian. I have been a heterosexual male until
now.

I have also fixed hundreds of computers and the evidence of pornography was
on all but a handful of men’s computers.

I cannot believe that Pornography, that is watched by a global audience of
billions, is likely to be statistically relevant in your likely hood of
murder.

eg. How many people are stabbed after a person uses a kitchen knife,
kitchen knives are used in many crimes and people who kill in the home often
use them but everyone has them harmlessly in the house.
Should we ban
cutting veg in case some mad bastard stabs his neighbour?

GildasTheMonk
November 1, 2011 at 14:17

I am surprised and interested to hear how many support the rather
restrictive approach to evidence my learned friends employ!

Spiral
Architect November 2, 2011 at 01:18

A libertarian would seek to maintain the current position – it is vital
that the freedom of the individual not to be oppressed by the state is not
eroded.

Even murderers have rights……….whilst most of them should cease after
conviction, it is imperative that the state should never erode the basic
principles of criminal justice i.e. innocent ’til proven guilty – guilt to
be established beyond reasonable doubt.

Anything less leaves us all in peril.

Mick Turatian
November 1, 2011 at 13:08

“In an ideal world, we could trust a typical jury to correctly weigh this
evidence a against other evidence, but I don’t think we can. This is obvious
from the number of people buying lottery tickets every week.”

You’re straying into utility theory here: if the tiny chance of winning £££
millions is more attractive to me than the marginal £1 it costs to buy the
ticket, then it is perfectly rational to buy a lottery ticket.

GildasTheMonk
November 1, 2011 at 12:14

Interesting responses! Thanks one and all

Single Acts of
Tyranny November 1, 2011 at 11:12

Setting aside the computer images thing for a moment, why would the use of
hookers make one more likely to be a murderer?

The fact you raise the issue suggests to me that it was right that the jury
were not told of this, since it is prejudicial but not material to the
case.

Anoraknophobia
November 1, 2011 at 10:43

Shamelessly lifted from the Jack of Kent’s excellent blog on this topic (credit to ‘A Brit Abroad’):

I think there is a statistical argument here as to whether something is
relevant or not.

For example, If 1% of male computer owners have violent sexual imagery on
their computer but only 1 in 10,000 (0.01%) male computer owners kill or rape
women then the presence of violent sexual images on their computer adds very
little to the evidence of guilt.
We can say this, even if 99% of male
computer owners guilty of murder or rape have such material on their
computer.

The question of weight placed on that evidence by the jury is important
here. If most jurors don’t have violent sexual imagery on their computer, the
jury is likely to be sickened and look on the defendant in a bad light. Even
if this “bad light” only makes the jury 10% more likely to convict, it is
still massively-over stressing actual information gained from this
evidence.

In an ideal world, we could trust a typical jury to correctly weigh this
evidence a against other evidence, but I don’t think we can. This is obvious
from the number of people buying lottery tickets every week.

On the other hand, we might be able to infer something useful from the
absence of such imagery on the defendant’s computer… if experts could prove it
hadn’t been tampered with.

Spiral Architect
November 1, 2011 at 10:05

Good post – which raised an interesting issue.

However, I think in this instance the decision to exclude the evidence of
Tabak having watched violent, strangulation porn was a correct one.

The ‘similar fact’ is not quite ‘similar’ enough……I would estimate there
would have to be evidence of a more precise character.

In this instance – I am surprised that Tabak did not plead not guilty and
attempt to claim a consensual ‘Michael Hutchence’-type sexual encounter that
‘went wrong’.

Thankfully, Tabak was not experienced enough to think sufficiently swiftly
and keep schtum, and his confession in jail is probably what did for him.

On the whole – I do not think that the primary rules of evidence need to be
changed. What I would alter though is the fact that criminals can make all
sorts of claims in mitigation that are not challenged – I would insist that
all such ‘dog ate my homework’ claims such as ‘depressive illness’, ‘traumatic
accidents’, etc. etc. are examined vigorouly, under oath.

David
Duff November 1, 2011 at 09:46

I echo Mark’s gratitude above.

talwin November 1, 2011 at 09:22

Gildas, I’m a fan of yours but I don’t really get this. Everything you say
here makes sense and a legitimate argument. But I would have thought it would
have more reasonance had it followed a trial – particularly a high profile one
– where the jury had failed to convict.

From this case one could easily have argued that even though some
‘evidence’ had been kept from the jury, justice and the ‘system’ had
triumphed.

A jury can be a nervous beast easily, and sometimes willingly, swayed by a
silver-tongued barrister. I say willingly because naturally it will be
frightened of wrongly convicting an accused person and may, almost
sub-consciously, be looking for a get-out. And I have to say my own prediction
while following this case was that the jury would say, ‘We don’t have to worry
about making a mistake here, this bastard’s going down anyway for a long time
for manslaughter” and NOT convict for murder.

I just feel this particular case only provides support for the staus quo
regarding evidence to the jury .

Châtelaine November 1, 2011 at 09:08

For me, as a Dutch person living in France, the jury system seems medieval,
though it may have been an improvement at the time of installation: “let the
people decide”. We have it neither here nor in the Netherlands. In my opinion
a judge, or rather a college of judges, has much better chances of weighing
the evidence: they have studied and have experience … As for “quality”
control, in the USA jurors are scrutinised by both the prosecution & the
defense, a process which may take days if not weeks before a jury is
acceptable to both parties. If you’ve been following the recent Casey Anthony
case, you will know that that is neither a guarantee for a reliable
judgement.

C H Ingoldby
November 1, 2011 at 20:53

Better a medieval system that depends on a random selection of the people
than the ‘professional’ judges of Holland who prosecute elected politicians
such as Geert Wilders for daring to speak against the political
orthodoxy.

The jury system is not perfect but it is a much better guarantee of
liberties and justice than State appointed judges.

SadButMadLad
November 1, 2011 at 21:32

Judges are bit nobbled in being able to make their decisions due to
excessive interference by politicians, who thinking they are doing the
right thing, have set out sentencing guidelines.

Woman
on a Raft November 1, 2011 at
22:57

Maybe Gildas can write a separate post with his views on this because
I’d argue its exactly the opposite; we are in an age of judicial
activism and since 2000 with the coming in to force of the HRA and the
move towards European law and its methods, judges are the ones who weild
power over politicians, except in small areas such as the Extradtion Act
(where somebody else’s judges hold it). I’d point at the growth in
judicial reviews of ministerial decisions as evidence.

JuliaM November 2, 2011 at 05:32

I second WoaR – the reason the politicians are so keen on minimum
sentencing and reams and reams of guidelines is precisely because the
justice system is rotten to the core, unrepresentative and shielded
from the public on whose behalf it is supposed to dispense
justice.

Châtelaine
November 2, 2011 at 00:03

You want to discuss Geert Wilders with me?
Brace yourself

mark November 1,
2011 at 08:45

Thank you for this informative post

Woman on a
Raft November 1, 2011 at 08:12

A 10-2 result in a case where the victim has 42 wounds, is strangled and
the body discarded isn’t a cast-iron case for trusting a jury.

Luckily for the jury, we aren’t allowed to know the two who can’t tell the
difference between a man on the phone to the emergency services babbling
“Quick, Quick, I think she’s dead, I didn’t mean it, I don’t know what
happened” and someone who did their best to conceal a crime having enjoyed
committing it and done so expressly for that purpose.

Those two jurors have either led very sheltered lives or they are moral
imbeciles. Or they could just be nasty bastards, who knows? Whichever, I think
you touchingly over-estimate the effect of additional evidence on people as
dense as that.

The protection of the black box called a jury for deciding guilt is
something the judges continue to hold sacred; perhaps they are right since all
the alternatives are worse.

Look inside the box, though, and you don’t find very impressive cogs; the
eligibility for jurors is minimal. For example, last week I looked at a couple
of illegal immigrants who turned Queen’s Evidence in return for testimony
about how they contracted fake marriages to Eastern Europeans through a bent
vicar. They are now on the electoral register. (Verified). Five years from
now, unless someone takes the trouble to put them on the prohibited list, they
will be able to sit on trials of people….who are illegal immigrants who have
taken part in various frauds.

I’m all in favour of your general principle but I need to have more faith
in the jury itself. At the moment I’m relying on judges to operate a creaky
machine by controlling the data going in. It’s a fix, and probably a necessary
one under the circumstances. Primarily I want some quality control on jurors,
on the mechanism itself.

JuliaM November
1, 2011 at 12:36

“Five years from now, unless someone takes the trouble to put them on
the prohibited list…”

Call me Gypsy Rose Lee, but I’m predicting that won’t happen.

citizen99
November 5, 2011 at 17:55

“Those two jurors have either led very sheltered lives or they are
moral imbeciles. Or they could just be nasty bastards, who knows?
Whichever, I think you touchingly over-estimate the effect of additional
evidence on people as dense as that.”

I did jury service (not as serious a case as this one), and it was
evident that there were some people who are just too soft-minded to bring
themselves to convict.

Niels November 1, 2011 at 07:56

I don’t think it’s sensible to try to convict someone on the basis of a
character sketch. Leave that sort of nonsense to the Sun and the Mail…

zaphod November 1, 2011 at 07:11

I’m not convinced that watching “sadistic porn” (definition needed) should
amount to any kind of evidence.

Would a penchant for watching Top Gear be evidence in a case of dangerous
driving?

How about the many people who like “Action Movies”, would this show a
prediliction for violence?

One of the most popular themes for entertainment, is murder. I don’t know
why, but does this make the many viewers suspect?

And all the war movies?

Incidentally, SM porn is very popular with women. And that doesn’t mean
anything, either.

Personally, I suspect that the new greater availability of porn will
eventually reduce actual sex crime. Unless the New Puritan Movement succeeds
in recriminalising the possession of porn.