In the last two months, four British rape trails collapsed: the prosecution of Liam Allan failed when some 40,000 texts exchanged with his accuser and others proved she had asked him for sex before and after the alleged rape, fantasised about rough sex and was clear that “It wasn’t against my will or anything.”; Isaac Itiary was discharged after the police released texts, withheld for months, showing that the accusing girl had repeatedly lied about her age leading to Itiary believing he was having sex with a 19-year-old, not a girl under 16, and Samuel Armstrong was found not guilty of two counts of rape and other offences because police withheld vital evidence so that the accuser would get “more leeway to hide certain aspects and mould what comes out.” In the latest case, the Crown Prosecution Service “offered no evidence” in the trial of Samson Makele after an independent defence investigation found photos on his phone showed him cuddling in bed with his accuser at the time of the alleged offence in 2016.
Ostensibly, these failures occurred due to the mishandling of evidence. Many commentators argued that this was due to police incompetence, and some blamed recent funding cuts leading to police ineffectiveness. But the underlying reason is far more serious and damaging to justice.
In his 2016 review of the Metropolitan Police’s handling of investigations concerning alleged sexual offences and persons of public prominence, Sir Richard Henriques made it clear that “The policy of ‘believing victims’ strikes at the very core of the criminal justice process. It has and will generate miscarriages of justice on a considerable scale.” (Henriques, 2016, 1,30). He draws attention to the inherent danger in the College of Policing policy that “At the point when someone makes an allegation of crime, the police should believe the account given,” (Ibid 1.21) and in 2014 Her Majesty’s Inspectorate of Constabulary recommended that “The presumption that the victim should always be believed should be institutionalised.” (Ibid, 1,21) And it has been.
Henriques also refers to the Report of the Independent Review into the Investigation and Prosecution of Rape in London (2014), which reported that up to 12% of rape allegations are false.
Henriques is clear that “A false complaint equates to innocence,”(Ibid, 1.37) and “a cardinal principal of the criminal justice process is that a complaint may be false. ”(Ibid, 1.41) However, the current policy guidance, Henriques argues, has reversed the burden of proof so that it now falls on the defence to prove innocence, and not on the prosecution to prove guilt, leading to a situation where “Nobody is safe from false accusation. ”(Ibid, 1.67) Consequently, he recommended that “…those who make complaints should be referred to as ‘complainants’ and not as ‘victims’, ”(Ibid, 1.20) which sets up an inherent presumption of guilt on the part of the accused, and that “The instruction to ‘believe a victim’s account’ should cease.” (Ibid, 1.35) Clearly, it has not; and this begs the question as to why these thorough and expensive reviews by learned and erudite judges are conducted if their recommendations are to be ignored.
The answer is that policing is a political activity (there’s a clue in the name), not a scientific one, and so there is no onus on the police to disprove a hypothesis, i.e. the accusation itself. They only have to secure sufficient evidence to satisfy the Crown Prosecution Service that a conviction will be successful. And it is the political will of the CPS and its Director, Alison Saunders, that is at the crux of this matter and in need or urgent attention.
Because of the anonymity granted to those bringing complaints of sexual assault, all three false accusers remain unnamed; neither have they been charged with perjury, perverting the course of justice or wasting police time. But we all know the names of the accused, their ages, occupations and back-stories. Henriques examines the issues of reciprocal anonymity for the accused because of the devastating effects such accusations have on the lives and livelihoods of celebrities with Paul Gambaccini, of example, losing his job, being subjected to two years’ intense stress and legal fees of £200,000. (Ibid 1.74) In another example, the public were outraged that details of the search of the much-loved singer Cliff Richard’s house were leaked to the press so that it could be filmed from a helicopter and shown on TV news – even though no charges were ever brought.
Henriques concedes that although this undoubtedly traumatic for the falsely accused, the police often elicit further complaints against a genuine offender once they release their identity, and that this is in the interests of genuine victims; once one has come forward, others are more likely to do so. In 1988, the then British PM, Margaret Thatcher, repealed the requirement of anonymity in rape cases for both complainants and defendants, and Henriques cites the Home Affairs Committee report on police bail which concluded that “suspects should have the same right to anonymity as the complainants in sexual offences, until the time they are charged.” (Ibid,1.15) He goes on to show how this is difficult to manage when complainants themselves may contact, or be contacted by, the press stating “Until anonymity is enforced by statute it is inevitable that many accused will lose their anonymity at an early stage of an investigation and well before charge.” However, he considers it “most unlikely that a Government will protect the anonymity of suspects pre-charge. To do so would enrage the popular press whose circulation would suffer.” Nothing sells like a sex scandal.
A third and perhaps most serious failing of the current framework highlighted by Henriques is the need for better communication with accused in terms of the status of ongoing investigations. Complainants are routinely informed if no further action will be taken, but the accused are not, and some only discover this through the media. Several accused men, most notably Former Welsh Government Chief Whip Carl Sargeant, have committed suicide as a result of allegations that remain unproven. And, even if they survive the ordeal, the wording ‘insufficient evidence’, Henriques argues, infers that there was some evidence, even in cases where there was not, leading him to concludes victims of false accusation “…should be treated the same as ‘victims of crime’ invariably are and should be offered support and liaison compatible with the gravity of the allegations made.” (Ibid, 1.96)
The British PM, Theresa May, responding to a question from Nigel Evans MP, who himself was cleared of a rape charge in 2014, stated “It is important that we look at this again to make sure we are truly providing justice,” and Jerry Hayes, former MP and prosecuting barrister in the Allan case, stated publicly that: “The current system has been broken for a long time and we have been making it absolutely clear to Government that there’s a systematic cultural problem within the police.”
Following the collapse of the trial for alleged rape brought against Oliver Mears in 2015, and as a result of judicial criticism, Sussex Police are now conducting a review into all ongoing rape cases. Earlier this month, the conviction of Danny Kay was overturned after he been in prison for two years before a relative discovered Facebook posts from his accuser indicating sex had been consensual.
Whilst most of the pressure and criticism has been directed at the police, the fact remains that the underlying cause of all these systemic problems was false accusations. Yet the accusers remain at large, anonymous and have not been charged with any offence. Furthermore, as the former Lord Chief Justice, Lord Judge, has warned that the repeated failure by the CPS and the police to effectively investigate cases and handle evidence appropriately could place reasonable doubt in the minds of jurors. He told The Times: “These events may reduce the prospects of conviction even when the allegation is genuine.”
All this, and the recent revocation of the Title IX processes applying to US college campuses, where due process was disregarded and innocent men were wrongfully expelled and shamed, begs the question of why other countries such as Canada seem to be blindly following the UK’s flawed example of a ‘listen and believe’ culture applying during the investigation of accusations of sexual assault. Surely, they can learn from these flaws and do much better for justice, genuine victims and the falsely accused.
After switching from engineering, Richard Elliot spent most of his career in public health, social care and criminal justice. Now semi-retired, he works as a freelance writer with interests in psychology and gender politics.