This isn’t a story of a few rogue cops gone bad, or a crumbling, underfunded criminal justice system overwhelmed by national austerity (though both get blamed daily in courts and the press to cover a wider, more difficult truth). This is a story of a state funded system designed with political ends in mind to convict those accused of crime, because once a person is charged they must be guilty, if only the Crown can prove it. (Solicitor Matthew Graham, 24/1/18)
- Purpose and Motivation
- Background – The Harm Done
- The 146 Case Histories of False Allegations of Sexual Assault
- Biased Sample
- Associated Deaths
- Failures of Disclosure
- False Imprisonment
- Serial False Accusers
- Potential Police Malfeasance
- Guilty Until Proven Innocent
- Reasons for False Allegations
- Exculpatory Evidence
- Prosecutions for False Allegations
- Historical Cases
- Offences against the under 18s?
- Victim Compensation
- Perceptions of Wrongdoing
- The Nature of the Offence
- Quotes from Lawyers
In this post I present a set of 146 case histories of false sexual assault allegations and extract data from these example cases. The matter is topical in the media.
On the BBC Radio 4 “Today” programme on 18/1/18, the DPP, Alison Saunders, was interviewed about the rash of failures of disclosure in recent rape cases. Sarah Montague opened with the simple direct question, “Is it possible that there are people in prison today because of failures of disclosure by the police and CPS?”. Alison Saunders replied, “I don’t think so because of the safeguards which are in place”. One can immediately assert, with confidence approaching mathematical certainty, that the DPP’s reply was false.
It is statistically inevitable that innocent people are imprisoned, irrespective of the problem with disclosure, unless you are silly enough to imagine the courts are infallible. The UK prison population is about 86,000 in round terms. The number of people sent to prison annually happens to be a roughly comparable figure, perhaps slightly larger at around 90,000 (because whilst some prisoners are serving long sentences of several years, roughly half are inside for less than six months). With your best rose-tinted spectacles on, would your faith in British justice allow you to believe that miscarriages of justice occur in as few as one case in a thousand? Even if this wildly optimistic presumption were correct there would still be about 82 innocent men in prison, and perhaps 4 innocent women.
But taking account of the problems with disclosure and police procedures generally, the rate of incorrect convictions is certainly far greater than one in a thousand, especially in sexual assault cases. This will become abundantly clear from this review, not merely because of the number of cases of miscarriage of justice exposed, but because of the generic problems revealed – including many cases where a miscarriage of justice is narrowly averted.
The case histories compiled here demonstrate endemic practices which skew the proper operation of justice, especially in cases of sexual assault. It is inevitable that these practices will have led to far more miscarriages of justice than those which have been proved to date. Considering only men imprisoned for sexual offences, it is virtually inevitable that hundreds have been wrongly incarcerated – and it could easily be above a thousand. Then there are all the other offence categories.
On 27/1/18, John Humphrys on Radio 4’s “Today” programme called for Alison Saunders’ resignation by suggesting she should “consider her position” and that it might be “time to step aside”. On the same day it was announced that all rape and serious sexual assault cases in England and Wales would be reviewed to ensure evidence has been properly disclosed. I sense her own political team rising to sacrifice Saunders. Few will mourn her passing. But make no mistake, this is not a matter of chopping the head off the snake. Saunders is merely one battalion commander in a massive army. Our problem is not one person but an endemic mindset and massive institutionalised injustice which goes far beyond just sexual assault cases.
If you cannot be bothered with my analysis of false allegation cases, jump straight to the “Quotes from Lawyers” section, and hope to God you are never accused.
Actual case histories are an essential component of the overall picture. They drive home the message that, whatever their frequency, when false rape accusations are made they are a very serious crime – though they are not always treated as such by the authorities. The case histories also illustrate the motivations of women for making false rape claims.
Rape allegations are mud that sticks indelibly. Consider a totally innocent man – he need not even have met the accuser. But not only does the accused have his life ruined for perhaps two or three years whilst the case comes up – during which time he may be suspended from work, or actually sacked, prevented from access to children – which may mean he is separated from his own family, and possibly subject to a curfew and made to wear an electronic tag – and not only might he end up bankrupt in paying for his defence – not only will he be subject to abuse and social ostracising by his friends, relatives and neighbours – not only will his name be forever linked by search engines with the rape accusation – but he may find his employers refuse to re-employ him even after he is exonerated, and when he attempts to get a new job, the DBS process may very well reveal his acquittal at a rape trial because the police “think he might have been guilty” – see this, for example.
[The Oxford Law Faculty article The Impact of Being Wrongly Accused of Abuse in Occupations of Trust: Victims’ Voices is strongly recommended reading. For those who can afford academic book prices there is also Wrongful Allegations of Sexual and Child Abuse]
In the course of doing the research for this post I have read many comments left by readers of newspaper reports. Sometimes people call for malicious false accusers of rape to face the same gaol time that the accused would have been awarded if found guilty. One type of comment which recurs is puzzlement at such an opinion. Whilst these commenters may agree that false accusers should be punished (though many do not) they attempt to draw an analogy with, say, a false accusation of murder – observing that the penalty for such a false claim would not carry a life sentence. To my mind this attitude is yet another example of the empathy gap. Such people – generally women – fail to appreciate just how damaging are false accusations of rape. Once accused, the social stain of a rape accusation is never entirely eradicated. If a man accused of murder is, in the end, not even charged, there is usually no lingering stain. People just assume it was a mistake, especially if someone else was convicted. But when the accusation is of rape, for reasons which have nothing to do with logic, people will tend to think that the man just got away with it and the stigma remains. The extreme stress caused by rape accusations is illustrated by those cases in which the accused ultimately kills himself, even though entirely innocent.
Feminists will insist that rape is rape, there are no ‘degrees of rape’. But that is not so. A rape committed with monstrous violence is not the same as a case of disputed consent following an instance of mutually drunken monkey sex. A malicious false rape accusation is worse than the latter form of rape, by far. And yet this is not recognised in law. Whilst rape is a separate category of crime, recognised as potentially extremely heinous, by a possible life sentence, there is no special category of ‘false rape accusation’. Despite this also being a particularly heinous crime, it can be prosecuted only under the general categories ‘wasting police time’ or ‘perverting the course of justice’.
That said, it is not true that false rape accusers are never imprisoned, as some might imagine. The cases reviewed below illustrate that substantial prison sentences are sometimes awarded – though non-custodial sentences are also common. However, the selection of cases reviewed below is a biased sample. Being reliant on news reports, I am aware only of those cases which are reported, and this is more likely in really egregious cases leading to a greater likelihood of the false accuser being prosecuted and imprisoned. This will tend to give an inaccurate impression of the frequency of prosecution and imprisonment for false rape accusations.
The striking thing about virtually all the following case histories is the triviality of the reasons for lying about something with such serious consequences for the accused. This is the empathy gap yet again. What else can account for those who think that an accusation which will blast a man into hell is legitimised by being stood up, or as a stratagem to avoid being dumped, or simply to get a lift home?
In this post I have deliberately excluded accusations against celebrities and politicians. They will come later.
The case histories are listed in inverse chronological order (by year only). The year in question is that of the latest trial, appeal or other hearing, or possibly the falsely accused’s date of release from prison. It is not the date of the alleged assault (which is generally at least a year or two earlier, and often far earlier than that).
Of the 146 cases, 106 are dated between 2013 and the present (January 2018). Don’t read anything into the smaller number of earlier cases. This probably means little other than older cases are less readily retrieved. And I have made no attempted at completeness – far from it. I merely stopped when I’d had enough.
I was most of the way through compiling my own list when I stumbled upon criticathink, which site I plundered for further cases, and this is acknowledged. This site continues to update so you may wish to keep an eye on it. (There is a new case since I froze my list, that of Simon Warr).
All cases relate to the UK.
Only false allegations of sexual assault are included, most are rape cases.
This initial set of 146 UK cases deliberately excludes celebrities and politicians. I will be dealing with those separately, for a specific reason.
The title of each case may include the name of the false accuser or of the accused, and often both. In general, it is obvious from the sex which is which – but there are exceptions (males sometimes make false allegations, and those accused may be female – but there are only a very few of these in the list). In general, the name of the accuser is only known in cases where they have been prosecuted, otherwise the identity of the accuser is not published. The photos correspond to the person named in the title.
This list can tell us nothing about the frequency of false allegations of sexual assault – other than obviously conflicting with any contention that false allegations are “extremely rare”. Such a claim is hardly consistent with the ease of compiling 146 example cases (and there will be several dozen more in the “celebrities and politicians” category). I’ll attempt to say something about the frequency of false allegations in Part 3 – though I’m not looking forward to it, the task is essentially impossible.
The CPS has reported that there were 38 people prosecuted for false allegations of rape in the 17 months from January 2011 to May 2012 (hence around 27 per year). These are the cases which are far more likely to come to public attention via news reports. The same CPS report indicates that in that 17 month period “there were 121 suspects whose cases involved allegedly false rape complaints. Of these, 35 were prosecuted: 25 for perverting the course of justice and ten for wasting police time”. So, even when there is a police recommendation to prosecute a false rape accuser, only 29% are actually prosecuted. (Note that these data predate Alison Saunders as DPP). As regards the totality of cases which collapse due to the complainant being found to be unreliable, most of which will not be put forward to the CPS by the police, the percentage prosecuted will be far smaller still.
The set of 146 case histories is therefore an extremely biased sample – specifically biased towards the more egregious cases which are more likely to result in the false accuser being prosecuted for perverting the course of justice or wasting police time.
I have extracted data from the 146 cases, the details of which are recorded here. Do note the limitations stated under the definition of terms. The numerical data quoted below derive from the Tables in this data file.
The 146 cases involved 16 deaths. 12 of these were the suicide of the wrongly accused, one was the suicide of the falsely accused’s mother, one was the suicide of the alleged false accuser, one was a homicide due to vigilante action, and one was the death in prison of an innocent man. The names of these dead are included here. (I could add a further suicide of an alleged false accuser, Eleanor de Freitas, who accused Alexander Economou, but this case is not included in my list).
The recent collapse of several rape trials has turned a spot-light on police/CPS failures to disclose evidence. From news reports I have been able to identify that disclosure failures were evident in 28 of the 146 cases listed. The cases in question can be identified from the summary Tables here.
Categorisation as a disclosure failure applies when evidence is not disclosed to, or properly presented to, the defence, or only disclosed very late when earlier disclosure would have avoided charges. This categorisation is also used when police have been in possession of definitive exculpatory evidence from early in the investigation, but charges are nevertheless brought and the prosecution finally offer no evidence within days of the trial date.
24 cases of disclosure failure were identified from the 92 cases listed since Alison Saunders took up the position as DPP in November 2013 (26%), compared with 4 cases of disclosure failure in the 54 cases listed before that date (7%). A t-test indicates this increase in disclosure failure rates after Alison Saunders’ became DPP is significant at the 99.8% confidence level. However, this does not prove causal connection of the two things.
[NB: Over all crimes there has been a 70% increase in the number of cases collapsing due to disclosure failure in just two years].
Most men accused are released on bail after being held for questioning. However sometimes bail is refused and such men are retained in custody (on remand). Four of the 146 cases involved men being retained on remand, for periods between one month and 12 months. A woman can get a man locked up immediately simply by making out he is dangerous – e.g., “he came at me with a Samurai sword – he has other weapons at home”. That will get the man arrested by a car load of armed police and held without bail.
Of the 146 cases, 15 involved men initially being convicted and imprisoned. Several served their full term before being exonerated. The number of years they actually spent in prison was,
2, 4, >3, 2, 0.5, 1.5, 2, 17, 2, 3.3, 4, 2×2, (10 wks), 25, 1
A complainant is classed as a serial false accuser if accusations have been made falsely regarding two or more separate incidents involving different alleged perpetrators. Of the 146 cases listed, 25 involved serial false accusers. The total number of people (almost all men, of course, but one or two women) accused by these 25 complainants were (in the order listed),
8, several, 2, 15, 3, several, 5, 2, 3, 2, 2, 3, 3, 5, 2, 2, 4, 2, 2, 2, 8, 3, 7, 2, 2
In addition, there were a further 15 complainants who made allegations against more than one person as part of the same single allegation or incident.
Cases where a police officer or the prosecution services appear to have been beyond negligent and have either been subject to formal complaints, been sued, or appear to have been potentially criminal include cases,
17/22, 16/6, 16/14, 16/25, 16/26, 15/1, 15/7, 14/2, 10/9, 6/1, 5/1
(The case codes refer to the full list here). Case 16/25 involves a female QC gaming the system to her advantage, changing her status from ‘accused’ to ‘victim’, hence guaranteeing anonymity and securing her career.
The most shocking thing about these 146 cases is how they undermine your faith in British justice (if you had any – I used to). The judiciary and the criminal justice process have allowed a situation to develop in which an allegation alone is sufficient to get you convicted and banged up for a very long stretch – in the case of sexual assault. This does not mean you will necessarily be convicted in such cases – but it does mean you are at the mercy of the jury.
In such a circumstance the burden of proof is shifted to the defence because the default position has shifted from “innocent until proven guilty” to being a lottery. Unlike most criminal cases, where most evidence is prosecution evidence, in sexual assault cases there is a need to find exculpatory evidence to put up against the allegation. So, even if the police and prosecution are efficient and do their job, there is inevitably an element of “guilty until proven innocent” about sexual assault cases.
This is why Alison Saunders’ statement that it is not practical, or necessary, to trawl through all the social media, etc., seeking evidence is so appalling. Evidence which emerges from such sources is more likely to be exculpatory than condemnatory – and the defence stands more in need of evidence to offset the prosecution’s head-start, namely the allegation. Saunders reveals her concern only with erecting a prosecution case and not with justice.
There is a rather obvious systemic problem here, namely the close working between the CPS, as prosecutor, and the police. The point is that the police should be neutral – equally concerned about providing all evidence, whether to aid the prosecution or the defence. It seems that the police have become too close to the prosecution. (See the quotes from lawyers, below).
It is not the case that the police are always negligent and fail to put sufficient effort into finding evidence. The fact that so many cases do not lead to the accused being charged is proof of that. However, our 146 cases are a biased sample in that they are all known false allegations. The frequency of police failures to find, or disclose, evidence in these cases is likely to be greater than in the totality of cases. The question which lurks behind the present investigation is: just how many unrevealed false allegations are there, and how many innocent men are in prison as a result?
Reasons for making the false allegation were apparent in 90 of the 146 cases. In four cases two reasons were identified. The number of cases out of 94 corresponding to the various causal categories were as follows,
Regret (19): This was the commonest category. The woman regrets her behaviour sometime after the event and projects the blame onto the man by changing her mind about consent. This is typical of the ‘drunk monkey sex’ type of situation, common amongst students and other young people.
Rejection (14): This category applies to women who decide to punish a man for dumping them (hell hath no fury like a woman scorned).
Revenge, Anger (14): This category applies when the accusation appears to have been a calculated act of aggression for revenge or retaliation when the reason for the anger is other than being dumped.
Infidelity (10): This category refers to women who are married or have a regular boyfriend and seek to excuse themselves for their infidelity by transmogrifying consensual sex with A.N.Other into rape.
Attention (10): Some women seem to enjoy the police attention, and the sense of importance it gives them.
Extortion/blackmail/fraud/compensation (9): In general it is not possible to tell from news reports whether an alleged victim received victim compensation. However, financial gain by some means or another – generally not via victim compensation, e.g., blackmail – was identified in 9 cases. It is likely that victim compensation is a far more significant motivator than can be discerned from these cases.
Political (4): This category relates to cases where false accusers appear to have been motivated by a desire to topple the accused from an influential position, e.g., due to political opposition, or to enhance their own career advancement, protected by anonymity. This category will be more significant in cases involving celebrities and politicians, which are excluded here.
Delusional (4): This is self-explanatory – some women go to extraordinary lengths to fake claims. The characteristic of these cases is they appear obviously bonkers – but are often treated seriously anyway.
Sympathy (3): Some women experiencing a bad patch with their boyfriends, possibly rejection, decide to accuse someone other than the boyfriend as a strategy to gain the boyfriend’s sympathy and re-cement their relationship. In such cases the woman may accuse a man she had never even met.
Jealousy (3): If she can’t have him, no one will! Put him in prison! Or it may be jealousy over financial, rather than amorous, advantage.
Academic (2): These cases refer to students making an excuse for the lateness of a coursework assignment or seeking mitigation against poor exam performance. Yes, it happens.
In addition to the above there was one case of vigilantism (case 16/22) and one case where the motivation was to get a lift home in a police car (15/4). Ruining a man’s life for a £20 cab fare – incredible, isn’t it?
The striking thing about virtually all the case histories is the triviality of the reasons for lying about something with such serious consequences for the accused. This is the empathy gap yet again. What else can account for those who think that an accusation which will blast a man into hell is legitimised by being stood up, or as a stratagem to avoid being dumped, or simply to garner attention or sympathy?
One of the reasons we are less ready than we might be to recognise false allegations by women is that female aggression tends to differ in nature from male aggression. Whereas male aggression tends to be physical, and hence visible, female aggression tends to be relational, and hence harder to identify. (Both these are statistical tendencies, not exclusive statements. Women can be physically aggressive, and men may display relational aggression). Relational aggression consists of destroying a person’s reputation. The classic example of female relational aggression is girl-on-girl bullying in schools, now much aided by social media. Many false allegations of sexual assault can probably be understood as relational aggression.
The most egregious cases are those in which exculpatory evidence was known to the police but they failed to disclosed it – or, alternatively, that exculpatory evidence could have been found but the police did not put in the effort required to find it. Out of the 146 cases there were 28 cases in this category.
These are the cases where “guilty until proven innocent” becomes emphatic, and the accused or his defence team are obliged to set about finding exculpatory evidence pro-actively – the system has failed them. Should the man already be convicted and imprisoned, it falls to his friends or relatives to do the police’s job for them in finding the evidence – and then begin the long process of seeking an appeal or re-trial.
What sort of evidence leads to a falsely accused man avoiding conviction or being exonerated? In 96 of the 146 cases there were indications in the news reports regarding the nature of the key exculpatory evidence. This evidence may result in the avoidance of charges, or the case collapsing due to no prosecution evidence being offered. Alternatively, the man may be found not guilty at trial, or be exonerated on re-trial if initially convicted. The types of evidence displayed by the case histories were categorised as follows,
CCTV: self explanatory;
SM: social media, and including mobile ‘phone evidence or any other electronic device, such as texts, photographs, etc, or diary entries, any of which can provide evidence of an ongoing consensual and harmonious relationship;
W = Witness(es), including alibis;
CTP = conflicts of time or place; this may be any conflicts in the accuser’s story;
R = official records, e.g., medical records or court papers or police files;
F = forensic evidence, including DNA;
Wth = accuser withdraws the allegations; this category does not apply if withdrawal of the accusation occurred only after other evidence was obtained which indicated false allegation (i.e., a desperate attempt to save her bacon after being caught). It often takes a number of police interviews before withdrawal of the allegation occurs.
The number of cases in which the above categories of exculpatory evidence applied was (noting that more than one type was relevant in some cases),
|Evidence Category||Number of Cases|
So, the “social media” category – the very category which Alison Saunders cited as being too bothersome – is the type of exculpatory evidence which most commonly establishes a man’s innocence.
You may recall that in Canada, Bill C-51 has made the submission of such evidence conditional upon judicial approval. Given how the Canadian judiciary appears to have sold out to the feminist narrative, this does not bode well for justice in Canada. Pray God we do not go that way here. If so, one might as well miss out the trial process altogether and proceed directly from allegation to prison.
In what manner did the case against the falsely accused man come to an end?
- In 67 cases (out of 146) the police established it was a false allegation and did not charge the man;
- In 28 cases the man was charged but found not guilty by the jury at trial;
- In 26 cases a trial was scheduled but the prosecution offered no evidence (usually at the last moment), indicative that there was no prosecution case to answer and the case should not really have been brought. Note that this refers to the final position, which may be after appeal or re-trial, or several re-trials. Those cases where a man is initially found guilty but whose re-trial ends in “no prosecution evidence” are egregious: this combination of circumstances suggests the man should never have been charged, still less initially convicted and imprisoned.
- In 12 cases the judicial process was terminated by death (11 of which were suicides of innocent men, plus one homicide of an innocent man);
- In 10 cases there was no man – the allegation was complete fabrication and there was no ‘accused’;
- Finally, in 6 cases an earlier conviction was quashed without re-trial.
Of the 146 cases, 69 resulted in the false accuser being prosecuted and convicted. Of these, 51 were sentenced to immediate custody, 8 were suspended prison sentences, 5 were lesser sentences (usually community service), one was a fixed penalty (£80 fine), in three cases the sentence has not been published, and in one case the person committed suicide before trial.
Three cases involving imprisonment of a false accuser were exceptional. One (case 16/22) involved conviction for homicide (21 years). The other two were staggeringly serious cases (6/4 and 17/6) involving a host of offences and attracted sentences of 9 and 10 years respectively.
Excluding these exceptional cases, prison sentences ranged from 3 months to 5 years with an average of 19 months and a standard deviation of 13 months. Figure 1 shows the histogram of sentence lengths.
As far as I could tell there were no cases of false accusers being prosecuted and found not guilty. This is extremely unusual in criminal trials – unique, I expect. It appears to say something about the height of the bar for such prosecutions.
In the remaining 77 cases (53%) the false accuser was not prosecuted (at least, I have found no evidence that they were prosecuted). This is despite the fact that in many of these cases the accusation was malicious and egregious.
13 of the 146 cases were historical cases.
37 of the 146 cases involve alleged ‘victims’ who were under 18 years of age at the time of the alleged incident(s).
News reports generally do not state if alleged victims were awarded compensation. (This was reported in only 3 cases). The issue of how many complainants receive compensation pay-outs, and how much, and whether this plays a part in motivating false allegations, remains to be investigated.
Judges in cases shown to involve false accusation will sometimes highlight the material damage and emotional trauma to the accused man. However, this is not always the case. What is always the case is that the judge will reprimand the false accuser in the severest terms for undermining confidence in the process and hence potentially causing juries to doubt an alleged victim’s claims in future cases. This is a pernicious perspective for two reasons.
Firstly, this mindset implicitly asserts that the true victim of a false allegation is not the falsely accused man at all, but women. This is the empathy gap yet again.
Secondly, it is a tacit admission of the judges’ lack of confidence in their own judicial process. Sexual assault cases have, in truth, veered away from the standards of ‘innocent until proven guilty’ and ‘beyond reasonable doubt’. The combination of the nature of the law, the operational practices of prosecutors, and the courts themselves, have allowed a system to arise in which a man can be incarcerated for many years based entirely on the unsubstantiated word of the accuser. Judges’ harsh words to proved-false accusers are therefore motivated, in part, because they reflect so badly on the practices which the judges have allowed to arise. They know they are culpable themselves and it would be more convenient if false accusers did not come to light.
While there are problems with the manner in which the police approach collecting and disclosing evidence in all types of criminal cases, the problem is greatly exacerbated in sexual assault cases due to the nature of the offence. The offence is defined by consent, which is a state of mind. But the state of mind of a person during a past event to which there were no independent witnesses is hardly an easy thing to discover.
Should we be asking whether we have created a law which is unworkable?
As things stand, sexual intercourse is not legally advisable for men.
This becomes even more emphatically the case when alcohol enters the picture. Barrister Cathy McCulloch has warned young men of having sexual relations with women who have drunk even just a drop of alcohol. Yet apparently one in 20 women has never had sex sober. And the feminists constantly remind us that the rape laws apply as much to wives as anyone else. What a preposterous situation. “Not tonight, dear, I think you had a glass of wine at dinner”. But this is actually about power. Any man having sex puts himself at the mercy of the woman. This is the true feminist objective.
And apparently it is not just whether there was consent, but now also the minutiae of the act – the precise degree of vigour involved – which can lead to a man being convicted and placed on the sex offenders register.
I am not in favour of SRE in schools. But if they must have SRE, I can think of many things they should include which they will not.
I wish to make the point that the storm now building around sexual assault cases and disclosure issues, with Alison Saunders now taking her turn in the dock, is of far older vintage and is not confined to the present incumbent of the position of DPP. Back in 2006 we could have read this,
“The system for dealing with accusations of sexual abuse is a disgrace. It has manifest failings that are known to lead to wrong verdicts but which remain uncorrected, and which continue to send innocent men to prison.
Chris Saltrese is a solicitor who has handled many appeals for those accused of sexual crimes. It was not his original area of legal expertise, however. “I started as a commercial lawyer,” he explained to me, “an area of law that is considerably more lucrative than this one. I ended up handling cases of alleged sex crimes only because it became obvious to me that there was an injustice of colossal proportions taking place.” Mr Saltrese believes that there are “certainly scores, and very possibly hundreds” of men who have been convicted of sexual crimes who are rotting in prison with no prospect of release, but who are not guilty and should never have been sentenced.”
Or this from celebrity lawyer Nick Freeman in 2012,
“Incompetence by Crown prosecutors is causing the collapse of an estimated 63,000 criminal cases per year in England and Wales and costing you and I a small fortune in the process…..it is the norm for the CPS to often totally disregard correspondence, to fail to deal adequately with disclosure, to fail to comply with court directions, and to turn up at court on the trial date with several trials listed on the same day many, if not all, of which the prosecutor won’t have seen until that morning.”
In the present context, Mr Freeman has called for people who make false rape and sex assault allegations to be stripped of their statutory anonymity and named on a public register. “The time has come for there to be a register where the names of those who make these disgraceful and disgusting allegations are added”, he said, “Sadly, Mr Allan’s case is not a one off. It is one of many – the tip of the iceberg. False allegations are made on a daily basis, and those who make them can hide behind a lifelong veil of anonymity.”
Freeman is not the first lawyer to call for such a false-alleger register. The appeal court judge Lord Lane made a similar suggestion when considering the 3 year sentence received by a false claimant in the 1980s (quoted in Rumney 2006).
In an excellent résumé of the Liam Allan case, Matthew Scott, the Barrister-Blogger, sums it up, “Despite the magnificent performance of Mr Hayes, a case like this ought to shatter any remaining illusions that the English and Welsh criminal justice system is fit for purpose.”
From another lawyer’s blog just 3 days before I wrote this, here is Bath solicitor Matthew Graham, Partner & Head of Criminal Law & Mental Health at Mowbray Woodwards,
“The job of the police is to investigate whether or by whom an offence has been committed. They have a legal duty to investigate all reasonable lines of enquiry, whether they point towards the guilt or innocence of a particular suspect. It sounds simple, but if you are a suspect in a criminal case you need to understand that this isn’t how it works. This isn’t a story of a few rogue cops gone bad, or a crumbling, underfunded criminal justice system overwhelmed by national austerity (though both get blamed daily in courts and the press to cover a wider, more difficult truth). This is a story of a state funded system designed with political ends in mind to convict those accused of crime, because once a person is charged they must be guilty, if only the Crown can prove it. Inconvenient evidence that would undermine a prosecution or assist a suspect doesn’t achieve either of those aims, so it doesn’t have any real importance. As soon as the police think it is their job to catch the criminals, the system goes wrong, because it is they, not a court or a jury or anyone independent, who is deciding on who is a criminal and then setting about proving it…..
This description is not the cynical rant of a defence lawyer embittered by the constant failure of the police, CPS or Judges to apparently care one bit about due process in investigations and disclosure. It is a summary of legal policies, and the everyday experience of practice in the police station and courts.
Pity those, and there are many, who didn’t get the disclosure they deserved. Pity those suspects where the police hold or could hold evidence that helps their case that they don’t know about. An extra witness here. A useful 999 call there. Social services records. School reports. Text messages. Emails and social media content. And ever on. And more fool those who expect a court to help their quest for fair disclosure. Expect to be met with apathy at best, more likely positive resistance. Expect to be told you are simply fishing for a loophole. Expect to have to justify the relevance of the material you have never seen. Expect the court to wholly accept a bland assurance of a prosecutor in court that never comes to fruition. Expect excuse after excuse after excuse and expect no one in authority to care one bit. And when you reach the day of trial without having received what the law says you should, expect the trial to carry on all the same. Because this is what happens in cases every day, all over the country, in magistrates and crown courts.”
The case histories are littered with judges who have lambasted the CPS for gross mishandling of cases, including the use of the word ‘incompetent’. Nor is this new. Here is a random example from 2016.
As a further example from 2017, Judge Philip Shorrock took the unusual step of writing a letter to a newspaper severely criticising the CPS over its handling of rape cases involving alcohol or drugs. In such he-said-she-said cases when “each gives a plausible enough account” and there is no other evidence, there is no basis on which to bring the prosecution because there is no realistic prospect of conviction – provided the required burden and standard of proof is maintained. Staggeringly, Alison Saunders responded by claiming the judge’s remarks “harked back to the ‘victim- blaming’ culture of the past”. This is the pernicious ‘listen and believe’ mantra eating away at the heart of our criminal justice system. She added, “There is no legal requirement for victims’ accounts to be corroborated by a third party and it is ultimately up to a jury to decide guilt or otherwise based on all the evidence presented to them”. This attitude is corrosive of the standards of proof, for it implicitly hopes that a jury will confuse balance-of-probability, or simply personal opinion, with beyond-reasonable-doubt. In a society which has been demonising men for decades, and preying on women’s fears with terms like ‘rape culture’, such a corrosion of standards is a real danger.
Many lawyers say Judge Shorrock was correct and that political pressure to improve conviction rates in rape prosecutions is leading to cases being brought to court which should not be. Lawyer Chris Saltrese, again, said: “The CPS are not interested in anything a defendant has to say. They are interested in prosecutions. Basically their mantra is ‘don’t concentrate on the credibility of the complainant, try to case-build as much as you possibly can and get a case in front of a jury’”.
It is the system which is broken.