Recorded crime allegations of sexual offences have trebled over the past twenty years. Although this increase reflects a greater awareness of the prevalence and seriousness of sexual crime, there is also widespread concern about the growth of false allegations and the quality of justice for the wrongly accused.

Rightly, the criminal justice system has become more responsive to complaints of sexual assault. Police forces have dedicated teams of police and social workers receptive to complaints that may date back decades.

There is also a range of statutory special measures for children and vulnerable witnesses giving evidence.

These developments have greatly eased the burden of reporting sexual crimes and giving evidence.

However, while these improvements are to be welcomed, there has been a simultaneous increase in false allegations and a failure of the criminal justice system to effectively sift true from false allegations at an early stage.

	The result is that although sexual offences comprise a minute percentage of all recorded crime, they now constitute one of the largest categories of contested cases on indictment - that is cases tried by jury at Crown Court.

Because the increase in trials has depended largely on uncorroborated oral testimony, the risk of a miscarriage of justice is greater than in any other area of the law.

Because of the way that rape convictions are presented in the media as being disproportionate to claims, this tendency is widely ignored and misunderstood, particularly the fact that the greatest - and most prevalent - risk of wrongful accusation and conviction is in historic cases.

Many of the men (and some women) at risk are people with no criminal record of any kind. They include people of exemplary character, with a long record of public service commitment to disadvantaged and delinquent children and adolescents.

In other situations responsible parents, step-parents, relatives and family friends may find themselves accused by disturbed teenagers or adult children in the family.

Sometimes accusers have a history of mental disturbance or have been influenced in making allegations through counselling, therapy and friends.

The line between truth and lies, fact and fantasy may all too easily be obscured in the accuser's mind once a false allegation takes hold and is encouraged.

There are numerous reasons for making false allegations. Some accusers may be caught up in a web of deceit they feel unable to renege on while others may hold a genuine but mistaken belief in the truth of the claims.

However there is currently a strong incentive to make or persist in false claims through criminal injury compensation entitlement and claims against public and private care homes for disturbed and delinquent children and adolescents.   More recently there has been an increase in contested allegations within adult relationships. These may be acquaintance or date rape charges, or allegations of rape within a marriage or partnership.

Frequently these concern differing interpretations of established events and may, if false, arise from a grudge, revenge or regret.

There are cases, however, where psychological factors play a role in the creation of phantom events, similar to some of those involving children and historic allegations.

Paradoxically, false allegations may, at first glance, seem more convincing than true ones. This misleading impression is a particular worry in the criminal justice system because it may affect the decision to prosecute and the tendency of a jury to convict.

This in turn reinforces the likelihood of future prosecutions resting on unreliable evidence.

Reality or Illusion?

One reason for this distortion is because false allegations are frequently graphically depicted historic descriptions of an alleged secret course of conduct of serious sexual offences committed over many years or against multiple victims.   Genuine cases on the other hand are more likely either to be contemporaneously reported, especially if serious and involving physical harm, or single or restricted instances of lesser offences.

False allegations may be encased in a convincing narrative apparently 'relived' by the complainant in court, whereas a genuine complaint, though possessing greater cogency overall, may appear matter of fact and pedestrian.

However, research and experience shows that emotion and vivid detail is no guide to veracity - as is demonstrated by research among people claiming to have been abducted and abused by aliens and other cases which are demonstrably false.

The upshot of this confusion is that there may be a significant number of genuine cases not prosecuted, while at the same time there is no guarantee that cases going to trial and indeed, resulting in a conviction, are likely to be based on the most reliable evidence.

Multiple allegations and the Criminal Justice Act 2003

Previously on this site we highlighted the injustice that can occur when one uncorroborated allegation is allowed to support another.

This was the result of binding judicial rulings that imported prejudice into court proceedings.  They were heavily criticised by the  Parliamentary Home Affairs committee who recommended statutory abolition.

The Government did act.  But in a way to aggravate the prejudice.  Through the so-called ‘bad character’ sections in the Criminal Justice Act 2003 there is now a presumption of admissibility of other allegations based on a wide range of criteria.   These go beyond the ‘similar fact’ rules and allow previous allegations of, say, domestic violence, by a third, but connected, party to influence the jury.   The changes were the subject of perplexed interpretation by circuit judges and the Court of Appeal.    There are a number of inconsistent rulings but in general, the courts are bound by statute.   It is important that any application for this type of evidence by the prosecution is properly scrutinised prior to trial.

There is still some leeway for exclusion through well-prepared submissions to the court, though ultimately discretion lies with the judge.  

It is doubly unfortunate that this adverse development has occurred at the same time as the legal aid rules have severely restricted public funding for defendants on trial. 

Consultation through the looking glass?

One reason why these inequitable changes occur is because of the way the Government conducts consultation.

exercise where proposals are validated with note having been taken singularly of the views of those who made the proposals.

Nowhere can this be better illustrated than in the Government’s proposals for rape trial reform. 

A raft of confused and prejudicial proposals were put forward in a consultation document Convicting Rapists and Protecting Victims
issued by the Home Office in March 2006. 

The proposals incited particularly trenchant criticism from the Council of Her Majesty’s Circuit Judges.  Here are some of their words:

"There has been a plethora of initiatives, consultations and campaigns, to some of which we refer herein. Whilst we sympathise with the concerns that have been expressed we are of the view that this Consultation is being pursued at a time when the effectiveness of measures already taken cannot be reliably gauged. In short it is premature."

“The Paper appears to proceed on the misleading basis that all complaints of Rape are true and that all those accused are rapists. That is patently a false premise.”

“A person must be presumed to know that alcohol will change his or her inhibitions and behaviour, indeed that might be the very reason that some consume alcohol in the first place. There is a real difference between drunken consent, no matter how the complainant might feel about that later in the cold light of day, and incapacity”

“We are concerned at the apparent suggestion that emotive evidence might be obtained for use at a Trial by the use of video recorded interviews. That does not seem to us to be an appropriate or legitimate consideration.”

“It has to be recognised that the purpose of disclosing evidence to the defence, whether by written statement or by video recording, is to ensure that the defence know the case they have to meet. Simply allowing supplementary questioning of a witness risks the introduction of matters that have not been dealt with in the evidence disclosed.”

Chris Saltrese Solicitors produced a response to the proposals that was, based on experience, critical of the central premise.

“We are dismayed that the consultation pays little or no attention to the complex and multifarious nature of sexual assault and rape cases and does not ask whether the current systems of investigation and rules of evidence may prejudice the innocent while failing to convict the guilty.  That is, that the very systems designed to be ‘victim friendly’ may be undermining the quality of evidence and investigation.

“Therefore we would add the preliminary corollary that

• Victims of false allegations of rape and wrongful convictions are entitled to an equal measure of understanding as genuine victims of rape
• Understanding the nature and causes of false allegations and wrongful convictions of rape will enhance the prosecution and conviction of genuine rapists

"There is a pressing need for a balanced understanding of rape allegations before legislating further simply to secure more convictions”

So what was the response of the Government?  Despite the withering criticism from the judges who preside over rape cases on a day to day basis, the Solicitor General, Vera Baird announced that the most of the proposals would be implemented – a decision justified by the views of the same pressure group coalition behind the consultation.

Blood on the tracks or tangled up in blue?

Changes in the law introduced by the Sexual Offences Act 2003 have vastly extended and complicated the range of indictable sexual offences. 

There is now much public confusion as to what constitutes rape as it has been extended beyond penile vaginal or anal penetration.  Consent laws have also been changed creating uncertainty in human affairs.

Sections aimed at outlawing  ‘grooming’ have resulted in nebulous concepts of intention where no crime is committed or perhaps even contemplated.

These sections are difficult to interpret fairly and there is a residual danger that the police and prosecution may be tempted to tailor the evidence to fit the crime rather than relying on objective inquiry.

Section 14 provides a cogent example of the problem:

It reads:

          “Arranging or facilitating commission of a child sex offence

        (1) A person commits an offence if—
        (a) he intentionally arranges or facilitates something that he intendsto do,         intends another person to do, or believes that another person will do, in         any part of the world, and
        (b) doing it will involve the commission of an offence under any of        sections 9 to 13."

Sections 9 -13 are various child sexual offences to do with engaging in sexual activity, inciting and forcing to watch sexual activity.

With new crackdowns on prostitution announced by the Home Secretary – including making it an offence to knowingly engage with a prostitute who was forced by trafficking – there is every likelihood that injustice and the waste of public money on fanciful offences will accelerate.

Therapeutic influence and memory

Therapeutic and popular culture has promoted the idea that many life problems have a source in sexual abuse in childhood, whether or not there is any conscious recall of sexual transgressions.

This idea may lead to a belief in a hidden personal history of sexual victimisation by a father, stepfather or adult in authority. Suspicions may arise about someone held in affection and be completely opposite to what happened in real life.

A delusional false belief may develop into a make believe narrative, particularly when unwittingly encouraged by counsellors or therapists.   This form of progressive apparent recall may be explained as 'recovered memory' of 'repressed' or 'dissociated' events too painful to entrust to continuous consciousness.   Sometimes hypnotic and quasi-hypnotic techniques are employed by therapists to enhance alleged traumatic recall. But although these may exert a therapeutic cathartic effect on the client, there is no evidence to show that previously unknown traumatic events can be recalled in this way.

On the contrary, memories of traumatic and unpleasant events are firmly imprinted in memory and diverting attention to imagined assaults may be a way of avoiding other problems current in the complainant's life.

During the past twenty five years there has been a massive growth in pseudo- science promoting recovered memory and associated beliefs. This is the case even among some reputable mental health professionals.

Serious scientific research has repeatedly discredited these claims.

However, there are still widespread misapprehensions reflected in the theory and practice of some mental health and criminal justice practitioners.

Identifying unfair and improper means of obtaining evidence is a major concern in contested cases. It may require expert evidence on the reliability of testimony and undue influence.

Enhanced criminal records checks and the Independent Safeguarding Authority

False sexual offence allegations are life-changing events which ripple beyond the criminal justice system.

Family relationships and friendships may be affected. The accused may be asked to leave home by social services if there are children in the family. Families may be divided by allegations. Careers are put on hold or are at risk.

Even when charges are dropped or there is an acquittal, there may be far-reaching repercussions.   There may be requirements for risk assessments in connection with family and work. Adverse effects on employment and training may include the demand for an enhanced criminal record certificate whereby unproven allegations may be included on an official document necessary for working with children or vulnerable adults.

Allegations without charge may also be forwarded to the Independent Safeguarding Authority, the agency charged with vetting and barring people with non-familial access to children and vulnerable adults.

The ISA is empowered to make administrative decisions as to fact and risk on the basis of material referred from any source. This may result in a decision to bar a person from working, paid or unpaid with children and vulnerable adults, though where there is an allegation only there is a right to make representation prior to the final decision. 

ECHC and ISA matters may give rise to important Human Rights issues and natural justice. 

The interpretation of the law with regards to police disclosure for the ECHC has recently been modified by the Supreme Court. 

It is anticipated that the procedure and decisions of the ISA will be challenged in the Courts. 

Chris Saltrese Solicitors has developed a specialist practice in this expanding area of law.  

Young children and competence

Sexual abuse allegations are particularly emotive when young children are involved.

 Statutory reforms have allowed for convictions on the basis of uncorroborated children’s testimony. 

Unfortunately many things can go wrong in investigating sexual abuse concerning young children. 

Though even very young children can be reliable witnesses there are particular concerns in relation to age, delay, suggestibility, the context of the case and child.

Sometimes these cases revolve around custody disputes or children in care for separate reasons. 

Many safeguards against wrongful conviction have been eroded over the years both by statute and judicial decisions. 

Over the last 25 years there have been numerous scandals in the UK and elsewhere where flawed methods and assumptions have manufactured false charges on mass.

Despite advances in knowledge and research to prevent this happening, flawed beliefs and practices remain endemic in the child protection system and have spread to the criminal justice system. 

A recent watershed judgment in the Court of Appeal creates a precedent for the prosecution of cases on tainted evidence in young children’s cases.   
Chris Saltrese Solicitors have written a  critical commentary on the judgment and the evidence of young children.  See Commentary section.