Barrister Robert Colover has found himself the focus of media ire for his description of a 13 year old girl during a sentencing hearing in which he prosecuted. The NSPCC joined in the condemnation describing his language as representing “a wider pattern about how child sexual abuse cases are taken and treated in our courts”. The Director of Public Prosecutions Keir Starmer QC described the language as “grossly inappropriate”, and Mr Colover agreed to resign from the CPS rape panel. Meanwhile the case is being used in some quarters as an example of when men are “put at risk” by teenage girls. Language is the tool of a barrister and it is important that it is used precisely and accurately.
In assessing whether the language used by counsel and judge was ‘grossly inappropriate’ one needs to analyse what actually happened in the case. Fortunately, the transcript of the sentencing hearing (the defendant was called Neil Wilson) is available, as are the judge’s sentencing remarks when he corrected the sentence some days later. From that we know that the CPS did not provide Mr Colover with papers relating to the other matters the defendant was being sentenced for (indecent images), but he did have the benefit of the officer in the case available at court. The 13 year old complainant did not support the prosecution of the defendant, although she did provide the police initially with a video-recorded interview (referred to as an “ABE”). She had met the defendant before, when ‘bunking off’ school and had described in the ABE interview in ‘graphic detail’ what she and the defendant did. She told him that she was nearly 16.
MR COLOVER: She certainly appears on the face of it to behave as somebody who is very much more sexually experienced; that we can confirm, both from what he says and what she says.
She left on the first afternoon that they met. There was apparently contact through telephones, texts and other matters. Ultimately, on 20th March she went to his home address and that relates to the count that you have.
They agreed to meet, and he texted back.
JUDGE PETERS: I am sorry to keep interrupting but when you say “agreed to meet”, this is very much a 50-50 consensual meeting?
MR COLOVER: Yes, your Honour. Very much so, and she is undoubtedly it is fair to say very sexually experienced, and one hesitates to use the word, but it is a word that has been used in other cases, I think the officer would agree that she may well be what is described as predatory in respect of her activities.
Mr Colover confirmed to the court that the girl did not want to be a complainant and the events only came to the authorities’ attention because she spoke to a friend who spoke to someone else and there was then an investigation. He detailed the facts of the sexual activity to which the defendant had pleaded guilty using the facts as recounted to the police by the defendant.
Were Mr Colover’s comments “grossly inappropriate” as the DPP suggested? The complainant was apparently acting in a way which most people find shocking in a 13 year old. At first blush her behaviour appears, to use a very old fashioned word, ‘forward’. However, it is that very behaviour which makes her all the more vulnerable. A 41 year old man, who has been told that this child is not yet 16, bears the responsibility of acting like the adult he is (something which the Court of Appeal appear to have referred to when increasing Neil Wilson’s sentence following a reference by the Attorney General). Describing the complainant as ‘predatory’ and then accepting without challenge the defendant’s version of events was leaving the Crown’s case unfinished. It was telling only half the story. She may have been acting in an extremely worrying manner, but she is still a child. The defendant did provide details of the sexual activity to the police, but the Crown did not need to accept his account in full; it is perfectly permissible to challenge facts which simply are not credible It is not clear what basis of plea there was and who was representing the Crown when it was accepted, but it would be strange if a CPS lawyer had not been consulted and had not agreed it. This was a difficult and sensitive case which had a fair degree of complexity to it. In the cold light of day, Mr Colover could have done better, but I suspect he thinks that too. Did he deserve to be the focus of such ire? Did all those commenting bother to read the transcript of what was actually said and see the complexities? As usual, the headlines ignore the messy complexities of these difficult and troubling cases, where vulnerable and troubled children are the focus of an investigation.
His Honour Judge Peters QC imposed a 12 month suspended prison sentence for all the offences, together with a two year supervision requirement to attend and complete a Sex Offender Treatment Programme. This has now been increased by the Court of Appeal to a two year immediate prison sentence, following a referral to the Court by the Attorney-General. The Lord Chief Justice apparently commented that ‘to reduce punishment on the basis that a person who needed protection was encouraging the commission of an offence is simply wrong’. The judgment has not yet been formally published. We look forward to commenting when it is.