A woman who was jailed after falsely withdrawing allegations that her husband repeatedly raped her and forced her into prostitution has failed in a bid to have her conviction quashed, in a shock judgment by a British court.
Her lawyers called the failed appeal "one of the most important judgments to come out this year on women's – and thus human – rights".
The 29-year-old woman, a mother of four known as Sarah, was jailed for perverting the course of justice in November 2010 by a judge in north Wales after she backed down on allegations that her husband raped her six times.
She then pleaded guilty to perverting the course of justice in retracting the allegations, which a judge had found to be "truthful", and she was therefore convicted and jailed.
Sarah served 18 days of an eight-month jail sentence after successfully appealing against her punishment, with the most senior member of the judiciary in England and Wales saying there should be a "broad measure of compassion for a woman who had already been victimised".
She served a community sentence instead and was under a two-year supervision order.
But her bid to have her conviction quashed was thrown out by an appeals court this week, despite the judges accepting she was suffering post-traumatic stress disorder at the time she retracted her allegations.
She said she was under intense pressure from her husband, known as Ray, and his sister to back down from the allegations.
But the lord chief justice, Lord Judge said there was no "viable defence of duress".
"If she had been threatened by him with violence if she did not withdraw the complaint, as it seems to us, it is inconceivable that she would not have said so at the time [that she retracted her allegation of rape].
"If she was asserting that he forced a retraction by raping her or threatening to rape her, there was no reason why she should not also have explained her retraction of the rapes by reference to any such threats."
Her lawyers had told the hearing her allegations were that her husband had repeatedly raped her and forced her into prostitution, driving her to a brothel and then taking her earnings.
One of her lawyers, David Malone, said he was "shocked" that a "prosecution that should never have been brought" had been upheld.
The legal team were now discussing whether to take the case to the Supreme Court in an attempt to change the law.
"This was not a case in which justice was done or seen to be done," Mr Malone said.
"The law simply cannot tolerate a situation whereby such an injustice is maintained because of perceived constraints in the current legal framework.
"Clearly the law must accommodate justice being done in this case or it should be changed."
(Reported in Sydney Morning Herald 14/3/2012)

Sydney Morning Herald今天的頭版新聞用Shock Justice用得有點誇張，報章片面報導這件案可能使女權份子跳出來大聲疾呼，看了原判辭你會有不同的體會。昨日才上載這88段長的判辭並不難讀，連結在此 A v R 〔2012〕EWCA Crim434。EWCA Crim即是England and Wales Court of Appeal (Criminal Division)(http://www.bailii.org/ew/cases/EWCA/Crim/2012/434.html)。上訴人被丈夫強姦繼而逼她賣淫賺錢，到頭來反而被控妨礙司法公正，表面看是難以接受的結果，但看了判辭詳細的交待，可以看到上訴人不單只不肯上庭指證丈夫，她的講法反覆無常，不論是警方或者她的代表律師，都多番提醒她要講事實真相，她不只一次承認自己誣告丈夫，又堅持要認罪。她可能不是罪有應得，但從法律觀點看，定罪並沒有錯，上訴庭的看法是

As it seems to us, Mr Quinn's submission overlooks the seriousness involved of the offence committed by the appellant. If the allegation of rape was true, the appellant had deliberately and falsely and persistently chosen to exonerate the man who had raped her. The real issue for the Crown Prosecution Service was the form of perverting the course of justice which should be prosecuted, not whether there should have been any prosecution at all. (para 78 A v R)

上訴人在一審定罪後，傳媒廣泛報導事件，導致刑事檢控專員訂出新檢控政策，如果時光可以倒流，控方會行使酌情權(prosecutorial discretion)，不予檢控。上訴庭認為這並非終止聆訊或推翻定罪的理由。

In summary, when it is sought to advance an argument for a stay by reference to policy or guidance issued by the Director of Public Prosecutions, by way of emphasis it is worth repeating, first, that the decision whether to prosecute or not must always be made by the Crown Prosecution Service and not the court. The court does not make prosecutorial decisions. Second, provided there is evidence from which the jury may properly convict, it can only be in the rarest circumstances that the prosecution may be required to justify the decision to prosecute. Third, the decision whether or not to prosecute in most cases requires a judgment to be made about a multiplicity of interlocking circumstances. Therefore even if it can be shown that in one respect or another, part or parts of the relevant guidance or policy have not been adhered to, it does not follow that there was an abuse of process. Indeed, it remains open to the prosecution in an individual case, for good reason, to disapply its own policy or guidance. (para 84 A v R)

上訴庭強調，法官不能越狙代庖，為控方決定犯罪的人應否受到檢控。. It is not the function of the court to substitute its own view for that of the Crown about whether there should be a prosecution.(para 83 A v R)在這方面的理念，某些香港上訴法院的法官可能要學習一下。