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21 Jan 2016

David Corker’s article on DJ Neil Fox judgment published in The Times

‘Dr Fox’ in the magistrates court; winning the legal battle, losing the publicity war

On 14th December 2015 the trial of the famous radio DJ Neil Fox concluded, with verdicts of acquittal regarding each of the ten charges of sexual assault alleged against him. The majority of these were historic allegations, in that the complainants alleged the misconduct had occurred during 1988-2003, whilst Mr Fox was a national celebrity at the peak of his popularity.

Mr Fox took the brave and unusual decision to elect for summary trial in the magistrates court. Most defendants in his situation would have exercised their right to be tried in the Crown Court before a jury. Bearing in mind that the trial in the Westminster Magistrates’ Court heard from 50 witnesses and raised complex issues of law, it was also unusual that the CPS did not exercise its right to object to his election and contend that because of these features, the Crown Court was the only proper trial venue. The CPS’ lack of objection to Mr Fox’s preference is a sign of how far it has moved in favour of the cheaper and speedier option of trial by magistrates.

Whatever reasons lay behind Mr Fox’s preference for a summary trial, it was vindicated by the outcome he achieved. A review of the written judgment indicates that the legal issues were carefully analysed, for example how the court should deal with the issues of delay and cross admissibility. It is debatable whether a jury would have evaluated them with the same scrupulous care.

Should this case serve as encouragement to advise a client to follow Mr Fox’s example? First of all it should be recognised that this was an exceptional trial. It is apparent that those responsible for the administration of justice at the magistrates’ court level anticipated that Mr Fox’s fame, and therefore the inevitable media coverage of his trial, created an opportunity to showcase their streamlined form of criminal dispute resolution. It is not by chance that this trial which lasted 10 days was presided over by the Chief Magistrate, who must have set aside his myriad of other duties during this period, and that this tribunal would decide to write a 45 page judgment setting out its reasons for acquitting, which it would then publicise on the HM Judiciary’s website. Whilst famous or notorious defendants, especially those accused of Saville-like sexual abuse decades ago, often have reason to fear that pre-trial publicity of their prosecution will endanger the fairness of their trial, it seems that in this case this publicity worked to Mr Fox’s advantage.

One should therefore be cautious about making generalisations based upon this case. The jurisprudential analysis of the issues of law and fact in the judgment is atypical in most summary trial judgments. On legal issues benches tend to simply defer to their clerk. On factual ones, owing to a lack of time and resources and because the emphasis is on speedy (“summary”) justice, it is rare for a magistrate to give reasons or to explain their findings of fact.

Having saluted the quality of justice Mr Fox obtained there is nonetheless one very unsatisfactory aspect, which it must be noted he would not have been burdened with had he chosen trial by jury. Mr Fox’s acquittal is the subject of a long judgement, whereas a jury’s verdict is inscrutable and conveys finality about the issue which was tried. Unfortunately the result of the long term judgment is to tarnish, if not undermine, his reputation. Despite his acquittal on all counts Mr Fox does not leave the court with his reputation restored, and is not enabled to assert that his accusers were mistaken or worse.

The problem with this judgment is that it appears to want to satisfy all sides. That is illustrated by the Chief Magistrate’s approach to the key issue of who is lying. For example in relation to each of the women complainants, he held that each was a credible and honest witness, and so “we believed each of the complainants”.

However when evaluating the forensic impact of the various lines of defence, the cross-examination of these witnesses was to the effect that each was a liar and/or a fantasist, whereas the judgment concludes in terms such as, “it does not shake our belief that [she] came to court to tell us the truth.”

Also, in relation to particular alleged acts of misconduct, the judgment hold that Mr Fox’s behaviour was reprehensible. For example “Mr Fox does not remember grabbing C’s breasts. We are sure he did…it is never acceptable to grab a woman’s breasts in the workplace.”

With findings like these one would expect a guilty verdict: that the accused acted as the relevant complainant claimed. But then the judgment veers away from the obvious next step of convicting Mr Fox. It holds that, despite belief in the complainants’ veracity “the allegation has caused us anxious consideration” and “because of the passage of time we cannot be sure of the context”, a lurking reasonable doubt that they might all be wrong is clearly identified.  So acquittals must follow.

However in a final word of reassurance to the complainants or perhaps, consistent with the judgment’s approach it would be correct to still regard them as victims, the acquittals should not be regarded as the court “go[ing] back on our original assessment that we believed the witnesses”.

So did the judgment resolve the dispute between the CPS acting on behalf of the complainants and Mr Fox? Legally yes, but otherwise it is far from clear. Would this judgment for instance be evidence that would assist or harm a complainant who decides to sue Mr Fox for assault in the civil courts? Probably neither with a civil judge treating it as a model of ambiguity.

Mr Fox has emerged from this triumphant. Yet the ambiguity of this judgment, combined with the publicity surrounding this case, results in little more than a legal win.

This article is published in The Times and Global Legal Chronicle.

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