The myth of ‘1 per cent’ false allegations is fuelling dangerous convictions
- May 8, 2019
- Chris Saltrese
- 1 Comment
Scarcely had the decision to ask sexual assault complainants to give consent to mobile phone and online data access been announced before a barrage of alarmist objections were raised by rape victim advocates.
In vain did legal commentators explain that the measures were just, fair and reasonable in line with legal investigative obligations. There would be no compulsory ‘seizure’ or disclosure of irrelevant, if embarrassing, personal material, much less could it be used to trash the character of a complainant at trial.
As a result of the misleading claims and media furore, victim groups have now been invited by the Director of Public Prosecutions and the police to discuss the formulation of the consent form. It will be a test of new DPP’s mettle to see if he holds firm to the decision.
But one factor that lends force to the objections is the claim that false allegations of rape and sexual assault are rare.
While this assertion is the corollary to the now defunct ‘believe the victim’ default position of the police, there is no convincing evidence that false allegations are uncommon, any more than that they are not.
However one piece of alleged evidence often cited to support the ‘rare’ contention is research carried out by the Crown Prosecution Service in 2013.
Under the stewardship of the then DPP Keir Starmer, crown prosecutors referred all cases they had decided were false allegations to the DPP which over a period of 15 months totalled 159. Of these 35 resulted in a prosecution either for perverting the course of justice or wasting police time.
The subsequently knighted Mr Starmer heralded the research as ‘trailblazing’ in that it revealed that false allegations were ‘very rare’ when compared to the over 5000 prosecutions for sexual offences during the same period. Furthermore there were mitigating factors in many cases, whereby the accusers could either not be held culpable or were in fact sexual assault victims under some description or other.
Pitted against the number of prosecutions cited the rate of false allegations appeared to be around one per cent.
However this research, interesting as it was, did not tell us anything about the prevalence of false allegations. It told us only about cases where there was demonstrable evidence proving falsehood.
It is hard to prove a negative which is one reason why there is a presumption of innocence in our criminal law and the prosecution bears the burden of proof of guilt to the criminal standard of what used to be termed ‘beyond reasonable doubt’ but is now re-cast as ‘being sure’.
But Keir Starmer’s message from this research was effectively, full steam ahead and throw caution to the wind. There was no evidence, he concluded, that false allegations were ‘rife’ as apparently had been the interesting rumour on the backbenches of the CPS at the time.
Yet a more considered analysis of the research might suggest otherwise. The cases fully exposed as ‘false’ indicated a further possibility of many other similar cases being less than truthful, but for the fortuitous existence of definitive disproof. Certainly the conviction rate at the time – 73 % of cases prosecuted – would indicate that there was far greater level of scepticism within juries hearing the evidence than Sir Keir was minded to admit.
What is more, the rate of conviction plummeted to 58 % by 2016 to 17 – a dramatic drop of 14 % within two years. Was this the paradoxical result of the DPP’s directive? And if so, why wasn’t the research into false allegations re-visited to assess not just the demonstrable cases, but the strength of evidence at trial and outcomes?
Another point that was not addressed is the problem of historical cases. Where allegations relate to contemporaneous events and incidents, there is a much greater likelihood of being able to prove or disprove the case – this of course taking into account matters such as CCTV, witness accounts, and the eponymous evidence on mobile phones and social media.
Where a prosecution relies on a narrative account of alleged events years or decades earlier, no such evidence would survive. This is not necessarily to discount the importance of electronic data in such cases – there may be important evidence of collusion and contamination concerning multiple complainants or witnesses in such cases. But all too often historical claims are simply a matter of belief in offences alleged to have happened long long ago. In the courtroom an emotional narrative by a distressed complainant may be more convincing to a jury than a simple denial by an elderly defendant, however well his/her character is vouched for, if that’s all the evidence that can be mustered in defence.
Yet belief in an emotive account may also be the critical factor in contemporaneous cases which often turn on consent in adult relationships or encounters rather than the actual incidence of sexual events as is generally the case in the historical cases; these usually relating to childhood to add a further complication potentially prejudicing the defendant in terms of sympathy of the jury.
The disclosure scandal coming to the fore in 2017, most prominently in the case of student Liam Allen, demonstrated how readily a complainant might dupe the police and prosecution to the extent of not even recognizing the relevance of contradictory data in their possession.
It was the uproar surrounding these cases – leading to a review where scores of cases were dropped by the CPS – that prompted the need for urgent reform of investigation and disclosure.
And that is why the consent form measure is a timely, if overdue, step in the right direction to restore justice and fairness in line with the law in these cases.
But it is only a first step. There needs to be a further review of the fairness of historical cases and the quality of evidence in the knowledge that, as the old corroboration direction used to warn juries ‘experience shows that people do lie about sexual allegations, and it is dangerous to convict on uncorroborated evidence.’
In this context too, the ‘1 per cent’ myth needs to be authoritatively refuted by the CPS, police and the judiciary. This is in line with the findings and recommendations of retired High Court judge Sir Richard Henriques in excoriating the police presumptions of guilt entailed by the culture of belief in his truly ground-breaking review of practices in the ill-starred Operation Midland, centred on a bogus ‘VIP paedophile ring’.
For not only does this create the misleading impression that almost any sexual allegation is sufficient for prosecution, but it conveys the dangerous message to the media, the public, and crucially, juries that the guilt of a defendant may be presumed from the outset, with the burden of disproof resting with the defence.
We should be grateful that so many juries, despite the false rhetoric, do acquit. But what we don’t know is how many innocents have been unfairly prosecuted, and even worse, wrongly convicted as a consequence.