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17 Nov 21

Reaction to the case of Sophie Moss

 

Dr Jonathan Rogers (CLRNN Co-Director)

 

Readers may be aware of the recent case of Mr Sam Pybus, who admitted killing occasional sex partner Sophie Moss by choking her during a sexual encounter. It was conceded by the prosecution that Mr Pybus, intoxicated at the time, did not intend to cause death or seriously bodily harm, and so his plea of guilty to manslaughter was accepted. So far as accepting the plea is concerned, in the context of our current law of homicide that is not so surprising. It is what happened next which is controversial.

 

Judges need to have a clear picture of the facts when sentencing, and especially so when the accused has pleaded guilty (i.e. where the defendant pleads guilty the judge has not heard the evidence which he or she would have heard at a contested trial). The parties are encouraged to agree facts as far as they can, but if important facts (for sentencing purposes) are not agreed the judge can hear witnesses, including the defendant, and the burden of proof will be on the prosecution to prove their version, assuming that the facts related to what happened during the offence.

 

Here, it was important for the judge to know whether Ms Moss was consenting to the choking, as a sexual partner might conceivably do, at least if anxious to please his or her partner and where there was no expectation that it would be life endangering. It would probably make the difference of several years to the sentence. But – here lies the controversy - the Crown Prosecution Service also conceded that the choking was consensual; and so Mr Pybus was sentenced on that basis. He did not even have to testify to this effect in which case he would have been cross-examined in court as to why Ms Moss would have been willing to take such a risk, whether she knew the dangers or later tried to change her mind (though presumably the police had asked him such questions in a certain critical manner).

 

Thus Mr Pybus received a sentence very much reduced indeed; one of just four years and eight months. There was an outcry and, in the usual way of things these days, this prompted the Attorney-General to refer the sentence to the Court of Appeal for being unduly lenient. But on the facts with which he was presented, the trial judge had made no demonstrable error and, predictably, the reference was unsuccessful.

 

I share the frustration of many others at the outcome, but where lies the proper cause of our frustration? I do not think that in this case it is truly the concessions made by the CPS. Rather, the recent statutory reforms should have gone further. They still can, I should add.

 

Some commentators were seemingly under the impression that the reform brought about by virtue of section 71 of the Domestic Abuse Act 2021, as campaigned for by We Cannot Consent To This, had solved the problem of so-called consensual injuries caused for sexual gratification (typically, for the gratification of men at the expense of women). But as we explained in an earlier blog post, this reform was never likely to have the effect that its proponents desired. Section 71 did not change the substantive law (though it did at least arguably clarify it, and also prevent the courts from moving in any other direction by consolidating the law into statute). More importantly for present purposes, section 71 did nothing at all to address the situation where D in fact pleads guilty and simply wants to rely on his version of events for sentencing purposes.

 

So, in Mr Pybus’ case, the usual principles had to apply at the sentencing hearing. Had the point of consent been tested, the prosecution would have had to disprove (beyond doubt) that the choking was not consensual, even while admitting that the sexual encounter was otherwise consensual. This is rather difficult in the absence of the complainant or other witnesses. Mr Pybus would only have to give his own version of events and it would be difficult to show beyond doubt that he was lying, and even if the judge still harboured his doubts he should give Mr Pybus the benefit of those doubts.

 

Faced with such difficulties, it is not so surprising that the Crown Prosecution Service simply agreed to Mr Pybus’ version of events, even if they still had some doubts about it, though I imagine that this defeatism added insult to injury as far as the family of Ms Moss were concerned.

 

This scenario was anticipated and discussed in our previous blog post (under question 4). We suggested the following reform:

 

“Where a person (A) has died from injuries inflicted by another person (B) for the sake of sexual gratification by that other person (B), there shall be a presumption of fact that that person (A) had not consented to receiving those injuries, unless the contrary is proven”

 

We wrote:

 

“if the man, convicted of manslaughter, sought to persuade the judge that it had only been a consensual sex game, the family of the deceased relatives might be assured to know that the judge will be required to consider the evidence from a starting point that the claim is untrue”

 

We added:

 

“it does not put the defendant in an unfair position. Since the presumption would be rebuttable, he may still seek to persuade the jury or judge that this was one of the unusual cases where the deceased victim had in fact agreed to the activity.

 

This need not be impossible for him. Forensic evidence might offer assistance, if his account is true. He might have offered a consistent account to the police soon after the incident. He might be able to call previous partners to BDSM activity to attest to his care to ensure consent…It is supposed to be suitably demanding, but not wholly unrealistic for he who tells the truth”

 

In the light of the dissatisfaction surrounding the case of Sophie Moss, we again urge this reform. Had it been in place at the time of the alleged conduct in this recent case, the Crown Prosecution Service would, unless itself entirely convinced of the truth of the assertion, then have been much more likely not  to have simply agreed to Mr Pybus’ version of events.  Instead, they could have waited for Mr Pybus to offer his version to the judge at the sentencing hearing and then relied on its cross-examination of Mr Pybus to make the difference. This would be a much more viable course of action than it would have been at present, because all it would need to do in the event of the above reform would be to elicit answers (or non-answers) from Mr Pybus which might not be persuasive to the judge, who would now be required to believe Mr Pybus (on balance) rather than merely give him the benefit of the doubt. Given that the burden of persuasion would be on Mr Pybus, the Crown Prosecution Service would, I think, have been under irresistible pressure to put his claims to the test.

 

We cannot say that it would necessarily have made a difference to the final outcome in the case of Mr Pybus. We are after all saying only that the law should reflect the general improbability that fatal activities, indulged in typically for the gratification of the person who took no personal risk, were truly consensual. We still conceive of some situations where consent may have been present. But even if Mr Pybus’ case were one of the latter, there would still have been less dissatisfaction with that outcome, if Mr Pybus had had to undergo cross-examination; and if the judge, though starting from the presumption that the fatal choking would not have been consented to (in a free and informed manner) nonetheless found that he believed Mr Pybus.

 

The problem is precisely that Mr Pybus went through no such process. This can still be changed for the future, and we look forward to engaging further with those who wish to discuss our proposal.