I have been falsely accused of a sexual offence, what should I do?
Contact a specialist criminal solicitor for initial advice even if it has not been reported to the police. Do not attempt to negotiate with the accuser or provide any expressions of sympathy that may be misconstrued at a later date. Keep a record of any communication with the accuser including letters and phone calls. Contact a relevant support group for advice on understanding family or career related accusations.
What happens if it is reported to the police?
Many accusations, particularly in families, are not reported to the police though as there is no time limit on a prosecution for most sexual offences, it is always possible that a past false allegation may be revived, as is of course the case with genuine complaints. However, if the accuser or a third party, such as social services, reports an accusation then the police have a duty to investigate. You may also find yourself caught up in an investigation of an institution involving multiple accusers and accused where there is a great deal of uncertainty as to who might be implicated. In most cases you will be interviewed by the police eventually, either by arrangement or following arrest (which may also include a search warrant in relation to your home). You would be entitled to free legal representation at the police station for the interview from a local legal aid solicitor and should be given a list of your statutory rights under the Police and Criminal Evidence Act 1984 while held.
Am I entitled to contact a solicitor on arrest?
No. You will be entitled to do so once you are taken to the police station. If you have been forewarned of allegations, you should contact a solicitor so that you are prepared to deal with the process prior to interview with legal representation. However, in many historic sexual offence cases, the police may contact you and make arrangements for interview on a voluntary basis so that you can do this through a solicitor.
Can I choose my solicitor when interviewed by the police?
Yes, subject to availability and for it to be free the solicitor must hold a criminal defence contract with the Legal Aid Agency and be local. If the police contact you in advance then it is possible for your solicitor of choice to make suitable arrangements for interview, but you may have to pay if out of area. If you are arrested then you have the right to contact your local solicitor of choice, choose one from the list of solicitors provided by the police, or accept a duty solicitor. It is advisable to be represented by a solicitor with criminal defence expertise and not one who may have acted for you in other matters unless s/he has the relevant expertise though your family solicitor may be able to recommend a reputable firm. When arrangements are made in advance you may decide to choose a specialist solicitor privately funded.
Why do I need a solicitor to represent me if I'm innocent?
Some people cope well with the pressure of interrogation on their own. However, it is a stressful and daunting situation to be in and most people find it helpful to be able to rely on a legal representative. This is particularly important if you are being interviewed about alleged sexual offences. You will be allowed private consultation with your legal representative prior to and, when necessary, during the interview and after. S/he should also be able to negotiate more details about the case from the police than you would normally be given. It may also precipitate early closure in an investigation that is unlikely to lead to prosecution.
What happens after the interview with the police?
You may be released without charge on bail subject to further inquiries. The police may then submit the case to the Crown Prosecution Service and re-interview you at a later stage and/or charge you or else notify you that no further action will be taken. Alternatively you may be charged with offences by the police. The case will then be submitted by the police to the Crown Prosecution Service who will decide whether to prosecute. You should be given bail unless there are specific reasons not to.
Can an allegation be prosecuted on one person's word?
Yes. There is no requirement for independent evidence of the crime having been committed or that the accused is responsible. There is no time limit on the criminal prosecution of most sexual offences. However, the CPS have a duty to decide whether, on the evidence available, a conviction is more likely than not and whether it is in the public interest to prosecute. Decision making tends to be uneven throughout the country though it used to be the case that a sizeable proportion of sexual offence allegations were not prosecuted because of the fragility of evidence. This does not mean however that unreliable cases will necessarily be dropped, since false allegations may appear superficially more convincing in some circumstances than true ones, particularly where there are multiple complainants. Since 2012 more cases are being prosecuted as a matter of public policy.
Will I have to pay for a solicitor to represent me if I am charged?
Criminal legal aid is now means-tested and capped in the Crown Court for trials and only available to people on benefits or very low incomes in the Magistrates Court. Means-tested payments are substantial and must be paid on time pre-trial for 6 months. If acquitted you may recover the payments made. If found guilty, you may be liable for the full cost of representation which may be recovered through household assets.
What are the benefits of private representation?
Criminal legal aid rates have now been severely reduced and do not cover the type of work which is frequently necessary to defend sexual offence allegations to optimum effect. Private funding of a specialist solicitor and counsel allows for authoritative case preparation, client control and dependable advocacy. In Chris Saltrese Solicitors’ experience this work is vital in ensuring a fair trial and may allow for a pre-trial acquittal in justified cases.
Can I recover my legal costs if acquitted when privately funded?
Personal expenses can be recovered but if the case was transferred to the Crown Court after 1st October 2012, you will be no longer able to recover privately funded legal costs if acquitted. If household income exceed the legal aid cap, it may be possible to recover a proportion of legal costs at legal aid rates on acquittal.
Can I change solicitors if I am charged?
Yes. Your rights of representation at the police station are distinct from the legal representation order. However, if you wish to change solicitors after this you should do so at the earliest opportunity. Duplicated public funding and delay through changing at a late stage (after the case has been transferred to the Crown Court) is discouraged and would be allowed only under exceptional circumstances with leave of the judge. If you decide to fund your case privately you may have more flexibility.
Can I opt for legal aid representation and pay privately for additional work?
No. A representation order precludes the mixing of public and private funding.
Can I fund private representation through insurance?
Not as an individual. Domestic insurance policies may cover some civil legal costs, but do not extend to criminal defence. If the charges are in connection with your work, there may be union or professional insurance covering costs under some circumstances but representation would normally be by contracted firms and not of your choice.
Can I retain anonymity during the case?
The general rule is that complainants in sexual offences have the right to lifetime anonymity but not the defendant unless s/he is a child in which case anonymity would normally extend to their majority. However, if the publication of the defendant’s name would identify the accuser or other children in the family then anonymity may be granted by application to the court. Where it is simply a matter of the complainant being potentially identified (where the accused is say, a father), then there may be an order that the relationship between the defendant and complainant is not published, but that the defendant’s name is given.
Social services have said I have got to leave home because there are other children there. Do I have to comply?
The police or magistrates court may place restrictions on your bail conditions which can include certain residence requirements. If there are children at home, these may, in conjunction with social services, require you to live outside the family home for the duration of the proceedings. You may also have restrictions on seeing your children unsupervised. While these conditions may seem onerous and unfair, it is usually better to comply rather than engage in combat with social services for the duration of the criminal proceedings. In particular it is generally preferable to having the children put in foster care. Social services and the police may wish to interview children in the family even if the allegations are completely unrelated. As parents you do have the right to refuse this. However, outright refusal may be viewed as dangerous ‘oppositional’ behaviour and the social services may then threaten care proceedings. Negotiated questions through a GP in the presence of the mother may be seen as acceptable without causing undue distress to the children. If the charges are dropped or you are acquitted, then the bail conditions will no longer apply. If social services are still intervening purely on account of the allegations, you may need further legal advice. A family law solicitor dealing with child care matters will be best placed to advise on any intervention by social services in relation to your children. You and your family may well find support groups for people falsely accused particularly helpful in coping at this stressful time.
Who can I call as defence witnesses - can a child give evidence for me?
You may call any witness providing they are able to give evidence that is relevant to your defence. This may be because it impinges on the credibility of the prosecution case, or because the witness can attest to your good character. Child witnesses for the defence, though they would normally only be called for material purposes, are entitled to the same range of ‘special measures’ as prosecution child witnesses. This means they can give evidence via video link. Other defence witnesses may be entitled to special measures – against, for instance, intimidation, if that is a relevant inhibiting factor. Make sure that your solicitor and barrister have good advance notice of potential witnesses and what evidence they might provide. Your solicitor should take statements from them well before the trial. Evidence that was available at trial, but not used, is not normally admissible on appeal.
If I am acquitted can I get any form of redress?
It is normally not possible to take legal action against the police and prosecution or a complainant when acquitted. In rare instances where there is overwhelming evidence, false accusers may be prosecuted.
Are the police entitled to give out information about the allegations to third parties if there is no charge?
Yes, in some circumstances. This may include some social services inquiries where there are children in the home. However, if your work, paid or voluntary, brings you in contact with children or vulnerable adults, you will be required to obtain an Enhanced Disclosure and Barring Service Certificate. This allows the police to give information about allegations if it is deemed that it might be relevant. You will have to give permission for this check. You may be allowed to make representations on what is included. You do have a right to see what information is held on file about you by the police once an investigation is closed and you may correct any factual inaccuracies about yourself. The right of challenge to disclosed discretionary information is covered by the DBS disputes procedure with the right of review by the Home Office Independent Monitor In addition information may be passed by the police to the DBS in respect of professional registers. This may be done without your express permission if you hold a position covered by the DBS and this may be used in relation to a decision to bar and may involve the disciplinary hearings and tribunals system which adopt a formal quasi-judicial procedure. You do have rights under the Data Protection Act 1998 re confidentiality, accuracy and retention of data, but these are subject to qualification. Should any of these issues arise, you may wish to seek legal advice, or, if relevant, advice from your union.
I have been wrongly convicted. Can I appeal?
There is no right of appeal against conviction, only the right to seek leave (permission) to appeal. Normally this is through your trial barrister if he considers you have grounds. You are entitled to written advice on this under a representation order. You may wish to seek alternative legal advice, if you feel dissatisfied with your representation (though this in itself is not usually sufficient as a ground of appeal). Legal aid for this latter purpose may be restricted and means-tested. The Court of Appeal may only overturn a conviction if it considers it to be unsafe, so that a ground, such as a legal error at trial, might be valid but insufficient to overturn a conviction. You cannot appeal on the basis that you are innocent and that the jury got it wrong.
If I am told there are no grounds of appeal, can I get further advice?
You may ask for a further review with a fresh solicitor if you can point to particular concerns or have new evidence. Application for leave to appeal can be made out of time (beyond 28 days after conviction) or an extension can be applied for so long as sound reasons are given for the delay.
Can the Criminal Cases Review Commission help?
You may make an application to the CCRC to inquire into your conviction (or sentence) if either you have exhausted your options through the Court of Appeal (which means that either your appeal has failed or it was abandoned) or there are exceptional circumstances to justify an investigation by the Commission. The Commission has an investigatory, not a judicial, function. However, it has the power to refer a case directly to the Court of Appeal and consequently inevitably exercises this power with considerable caution. The Commission has considerable investigatory powers in connection with undisclosed evidence and police investigations and may order reports from experts. However the Commission has to be persuaded that an investigation is warranted before it will act beyond a cursory review or inquiry. Provisional decisions by the CCRC may be challenged through additional evidence. There is no limit to the number of applications you may make to the CCRC, but obviously they will be considered only if new issues or evidence is raised.
Can I get funding for legal assistance on appeal?
If you have a legal representation order for trial this should cover initial advice on appeal and subsequent actions subject to leave being granted. If leave to appeal is turned down by the single judge and you wish to argue the case before the full court, you will either have to find private funding, get pro bono assistance or rely on self-representation. If leave is granted by the full court you will normally be granted legal aid for representation. If you wish to have another solicitor examine your case after conviction, means-tested legal aid may be available for an initial review and, if warranted, may be extended to cover necessary work. Means-tested legal aid is also available for help with CCRC applications.