Not Saussure

January 11, 2007

‘Naming and shaming’ in rape allegations?

Filed under: civil liberties, Law — notsaussure @ 1:35 pm

The Telegraph reports

The Government is “actively” considering whether to amend the law allowing lifelong anonymity to complainants in cases of rape and other sexual offences, the Attorney General said yesterday.

Lord Goldsmith told the Lords that this was being done “in the light of the Court of Appeal judgment in the Blackwell case” and that a decision would be reached “soon.

Lord Campbell-Savours, however, isn’t satisfied:

“I detect a slight shift in that answer. Who and what is to stop the false accuser in the case of Leslie Warren, who has now been released from prison, from making more false allegations against more innocent men?

“The police will have destroyed her DNA as they had no right to retain it if she wasn’t prosecuted, the courts have given her lifetime anonymity under the law, and the press will be prosecuted if they name her unless an MP is prepared to name her in the chamber, which I am not prepared to do in this particular case.

“Is she to be left to carry on making further allegations, in conditions in which men can do very little about it until they get to the courts?”

With respect, Lord-Campbell-Savours is talking through his hat. The problem with the Blackwell case, as the Court of Appeal judgment said, was that

There is evidence that was not adduced at trial that, when considered as a whole, provides a strong case to support the conclusion that [the complainant] was NOT the victim of any assault and that her injuries were self-inflicted.

The Court didn’t address the question of whose failures that meant this evidence wasn’t adduced, but it’s perfectly clear that the evidence was there in the files at the time and that, if various people had been doing their jobs properly, it would have been passed on to the defence — which is what normally happens.

In the case of Leslie Warren, to which he refers, the matter is even clearer. The complaint had a history of making false complaints. This was known to the police at the time. One was a complaint of assault (not sexual in nature) against a former boyfriend which she withdrew

in a letter in which she stated that she had made up the allegation out of vindictiveness.

During the proceedings against the appellant there was no disclosure by the Crown of the information about the making and subsequent withdrawal by Miss Allen of this allegation of assault. It was, in our view, clearly relevant and of great importance

Another, even more damaging to the prosecution, was

the “Northampton incident”. In early 2000, [the complainant] had complained to the police that a black male had forced his way into her flat with a knife and ordered her to take off her clothes. Eventually she said she had used a CS spray to force him to leave. She gave a vivid description of the event and also gave a very specific description of her attacker to the police who, as a result, clearly identified him as a man called Edwards, who was almost certainly known to her. This offence was recorded as one of aggravated burglary. However, Edwards had an alibi which was patently a valid one. Eventually, in the face of this, [the complainant] retracted her allegation. The police were satisfied that it was a false allegation and it was recorded as “no crime”. According to a police officer she eventually admitted that she had lied.

Under Home Office Rules the reference “no crime” denotes that no offence had been committed rather than uncertainty about whether one has been committed, or not. The police incident report stating “no crime” was disclosed to Mr Warren’s defence but without the guidelines explaining the significance of the entry “no crime”. That significance was not appreciated. No disclosure was made to the defence of any admission by [the complainant] that she had fabricated the allegation.

As the Court of Appeal records,

Putting all these matters together, this Court has no doubt that this new evidence, taken as a whole, would have called into question [the complainant’s] credibility which was central to the Crown’s case at trial. Moreover, we also take the view that there was a regrettable nondisclosure by the Crown in the respects which we have identified. Mr Macfarlane, who appears today on behalf of the Crown, concedes that there was a breakdown in communications within the relevant police force for a reason which cannot be discovered. He has, very properly, expressed substantial regret at what has happened to Mr Warren as a result, and the Court joins in that expression of regret.

This certainly isn’t a problem unique to rape cases. The prosecution, in any criminal matter, has a duty to disclose material to the defence that might help the defence case or undermine that of the prosecution, and there’s a constant tension between the Government and criminal defence solicitors and their counsel about to what extent the defence should be able to demand direct access or have the courts order that the CPS carry specific inquiries (often resisted as time-consuming and extremely expensive trawling tactics) and to what extent they should rely on the CPS to conduct adequate inquiries and be able to decide what the defence needs to see and what it doesn’t. Here, for example, is Lord Campbell-Savours’ colleague and fellow Labour peer, Lord Falconer, the Lord Chancellor, addressing the Criminal Law Solicitors’ Association in November 2005;

We need to look closely at how the we manage trials.

For example, we should look at the exchange of material between prosecution and defence. A common cost driver in high cost cases is the large quantity of unused material passed from the prosecution to defence lawyers.

Blanket disclosure is not necessary. Prosecutors who err on the side of caution have a significant impact on trial lengths and legal aid costs.

It’s the CPS,the police and Lord Falconer to whom Lord Campbell-Savours should be directing his complaints; we don’t need changes in the law, we need proper disclosure of evidence that’s already there and which should, if everyone were doing their jobs properly, be available to the defence. That will help solve the problem of wrongful convictions in far more cases than false and malicious allegations of rape.

It’s also perhaps worth pointing out that rape is very difficult crime to prosecute. Quite properly, the standard of proof in cases of rape, as in any criminal matter, is high. The jury have to be sure (the lawyers don’t say ‘beyond reasonable doubt’ anymore) that the facts are as the prosecution allege. If they’re not sure — if, for example, they think ‘he almost certainly did rape her, but I’m not completely sure he’s not telling the truth’ — then they have to acquit.

I’ve just seen a case like this; obviously one doesn’t know what went on in the jury room, but while I certainly think on the balance of probabilities the 35-year-old defendant with a long criminal record for various crimes of violence and dishonesty did rape the 16-year-old complainant (who had a troubled history herself), and while, if I were the father of a 16-year-old girl, I would most definitely not let him anywhere near her to ply her with vodka and lemonade, I couldn’t say for certain she hadn’t consented. I’d be highly surprised if she had, but I couldn’t be sure, and neither, I think, were the jury.

And there’s no way I’d publicise her name after the acquittal, to face public shaming, as the Mail (who else?) put it, not least because I wouldn’t want the Daily Mail to be able to advertise to potential rapists that so-and-so is a reasonably safe target because the fact of this acquittal will be — if the CPS do their job properly — be available to the defence should she make any further complaints, however well-founded. Nor do I want to provide an incentive to complainants who make true complaints to lie in order to bolster their complaint for fear of the consequences if they’re not believed and neither do I want to muddy the waters still further by giving the defence the opportunity to suggest this is what they’re doing even when they’re not. And, of course, I don’t want to provide a disincentive to reporting rape (or any other serious crime) in the first place.

We’ve already got perfectly good laws against perjury and wasting police time. And, like people accused of rape or any other crime, people accused of them are entitled to a fair trial and to have jury (in the case of perjury) made sure that they’re guilty. The fact that a jury in a previous case wasn’t completely sure they were telling the truth isn’t good enough.

[UPDATE] People following the link to the transcript of the Court of Appeal judgment in the case of Leslie Warren may find the page doesn’t exist. This isn’t my mistake; it’s because when I looked at the case earlier today on the Criminal Cases Review Commission’s website I realised they’d left in the complainant’s name throughout the transcript, so I phoned them to tell them. ‘Are you sure? Oh…. Errmm. ‘ Presumably they’ll put the transcript back up once they’ve redacted her name out.

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  1. Oh dear, another tough one. I’m one of those, I’m afraid, who felt that Mike Tyson did not rape that girl years ago – that her presence up in his room was sufficient permission with one of his undoubted character. But as for naming and shaming, that’s another thing. I think if the accused is acquitted, the namer must not be kept under wraps to do it again. That alone would make the accuser think twice in the first place. If they prosecuted then, it would be becasue there was a pretty overwhelming case. Just one opinion.

    Comment by james higham — January 11, 2007 @ 5:34 pm

  2. Do people who come out with this stuff have any idea how rare malicious allegations are?

    There are certainly more than I’d like, but they’re a pebble next to a great mountain of alleged rapists who never see the inside of a courtroom.

    Comment by Flying Rodent — January 11, 2007 @ 8:24 pm

  3. I am with rodent. Why is this an issue? the real issue is unreported rape I think and poor conviction rates.

    not that I have any good liberal ideas on how to improve those two issues.

    Comment by cityunslicker — January 11, 2007 @ 11:06 pm

  4. I’m not sure that there is a solution to ‘poor conviction rates’, for the simple reason that rape is often a very difficult offence to prove, since, if the issue is consent, the jury has to be sure that the defendant isn’t lying; that they think he probably isn’t enough to convict. It’s not a question of ‘who do you think is telling the truth?’; it’s ‘are you sure he isn’t?’.

    Short of changing the standard of criminal proof, which would be a dreadful idea, I don’t think there’s anything you can do.

    Certainly they could get a ‘better’ conviction rate by bringing fewer cases to court; I’ve certainly seen prosecutions where you wonder why the CPS bothered, not because I doubted the complainant’s account particularly but because I couldn’t see how a jury could be sure enough safely to convict. But there’s a compelling argument that, the more serious the crime, the greater the public interest in letting a jury rather than a CPS lawyer decide on how strong is the evidence.

    Comment by notsaussure — January 11, 2007 @ 11:39 pm

  5. I’m horrified reading your update that the complainant’s name had been left on the transscript. That really is worrying.

    I think the law as it stands gives the police the power to charge any woman who makes an blatant false allegation i.e. admitting she mase the allegation up out of spite, with wasting police time.

    There is also anecdotal evidence from most of the charities working with vicitms of sexual assualt (men and women) that suggest just because the perpetrator is found not guilty does not necessarily mean there was not a crime.

    And as you rightly point our the conviction rate for reported rapes is shockingly low. Because, as you say it is very difficult to prove.

    But what kind of message would we be sending women who have been raped if we overturn the law protecting their anonimity? I think we would see reported rapes disappear completely.

    Is that the real motivation behind this. If women stop reporting rape it would certainly make the crime figures look better?

    Comment by puddlejumper — January 12, 2007 @ 1:25 pm

  6. It gave me a bit of a shock that they hadn’t bothered to check the transcript, too. I suppose you can understand how it happened — the CCRC are focused on live cases and the results of an appeal, so when the transcript turns up a few weeks after the event, peoples’ attention won’t necessarily be concentrated on reading it over to see if anything needs taking out before it goes on the website,

    It certainly shouldn’t have happened, though, and if I’d not spotted the mistake and redacted accordingly when I was cutting and pasting passages for my post I’d have been — rightly so — at serious risk of prosecution. I don’t really see why they shouldn’t be, too.

    But anyway… Certainly, I don’t think anyone who’s involved in the criminal law thinks that an acquittal for rape (or anything else) necessarily means the defendant didn’t do it, as opposed to that the prosecution couldn’t prove that he did. That’s very much the case when it’s rape, since it’s so often one person’s word against the other’s. And it can’t be repeated too often that the question the jury’s asked isn’t ‘Do you believe or do you believe her?’; it’s ‘Are you sure that he might not be telling the truth?’

    That’s as it should be in criminal cases, but I wish people wouldn’t interpet an acquittal in a rape case as meaning the jury thought the complainant was lying — it doesn’t necessarily mean that at all. Quite often, I think it means something like ‘While we’re pretty certain it happened the way she says it did, we can’t be sure that he isn’t telling the truth, though we think that’s unlikely’.

    I don’t know about them trying to cut down on reporting of rape to make the crime figures look better; making it more difficult to report rape wouldn’t do anything to the British Crime Survey figures, of course. I think it’s more a combination of understandably aggrieved victims of miscarriages of justice, tabloids wanting a villain(ess) and the government being all too willing to distract attention from the real problems in these cases — that, had the police and the CPS been doing their jobs properly, this information about the complainants’ previous false complaints would — had the instant matters ever come to court — have been available to the jury, who might well have taken a different view of the case had they known about it.

    Comment by notsaussure — January 12, 2007 @ 5:45 pm

  7. I don’t think there is anything wrong with the current law on anonymity. That it produced a bizarre result in this case was not, as Not Saussure clearly explains above, the fault of the law. The miscarriage of justice could have been prevented had proper disclosure taken place.

    Every time something goes wrong, the knee-jerk response from the Government is to change the law. That would be terribly misguided in this case. Not Saussure and other contributors have already made the excellent point about the effect of any such change on future complainants. I just hope good sense prevails, and someone stops this crazy idea before it goes too far.

    Comment by Bel — January 12, 2007 @ 5:46 pm

  8. Rodent is aptly named, asserting “Do people who come out with this stuff have any idea how rare malicious allegations are?”

    Rodent is lying. A substantial number of studies indicate the false accusation rate to be roughly 27% to 60%:

    Also relevant is the point that rape may be simultaneously over-reported and under-reported. In other words, if 20 women are raped, and only 10 report it, and a different 10 make false accusations, then simultaneously 50% of accusations are false while only 50% of rapes are reported.

    Finally, on the issue of anonymity: Modern jurisprudence should reject anonymity entirely as both a relic of the Middle Ages and (in USA) a violation of the Constitution — particularly since, prior to trial, one does not know which (accuser or accused) is the true victim.

    Comment by IndependentObserver — January 15, 2007 @ 5:41 pm

  9. I’m not qualified to comment on the surveys, but I don’t quite see what relevance studies of the way Americans may behave has to do with what happens in Britain. They certainly murder each other far more readily than we do over here, are far readier to believe they’ve been kidnapped by space aliens and that the world is about to come an end, so I wouldn’t be at all surprised they also falsely accuse each other of rape far more readily than do we.

    My experience of rape cases is pretty much limited to what happens when they get to court, and I have to say that, while obviously one doesn’t know for a fact what happened, it’s pretty rare that you come across a case where it looks particularly likely the complaint was false and malicious; far more frequently the aquittal’s because the jury can’t be sure he isn’t telling the truth rather than because they don’t think she is.   That’s as it should be; I wouldn’t want the burden and standard of proof to be altered for any criminal matter, but given the difficulties of bringing a rape case to trial with any hope of success, I think Rodent is correct in his assessment of what happens in the UK.

    I don’t quite see why you say anonymity — or, more accurately, reporting restrictions (the complainant’s details are given in open court where any member of the public may attend) — is ‘a relic of the middle ages’.    It was introduced here because the lack of it deterred a great many women from reporting a serious crime, which cannot be a good state of affairs.   Quite possibly, as I say, it’s all very different in America.   Quite possibly it’s different in China, too, but it’s a proposal to alter the laws of England, Wales and Scotland we’re talking about.


    Comment by notsaussure — January 16, 2007 @ 2:03 pm

  10. IndependentObserver, the word you are looking for is “mistaken”. “Lying” has an entirely different meaning, feel free to retract it at your leisure.

    My statement was based upon the five years I spent working at Edinburgh Sheriff Court, in which the two false allegations I saw were dwarfed by the huge number of credible cases. Anecdotal evidence, of course, but I think I can speak with a fair degree of authority.

    I’ve looked at your links, and I’ll dismiss the newspaper articles straight away – I could show you thousands of stories about convicted sex offenders.

    The studies are a different matter – I’m not qualified to assess their accuracy, and I particularly doubt the relevance of studies conducted by the military to civilian life.

    As for the article about the presumption that rape victims are telling the truth – if that’s true, the US must be conducting some form of lunatic justice experiment. That’s not how it works in the UK.

    Suffice to say, when you’re quoting a figure to an accuracy of between 27% and 60%, I’m not inclined to lend much credence to your supporting evidence.

    Maybe the justice system in America is filled with cretins, but the Scottish police and prosecution service are not. The police are trained to spot liars and assess evidence, and will report any doubts or inconsistencies to the P.F. (D.A.).

    The prosecution service put witnesses through a full precognition process, in which inconsistencies in evidence are investigated. The prosecutor is required to probe witnesses to assess whether they have ulterior motives for making allegations.

    Finally, prosecutors only bring cases to court if they believe that there is sufficient evidence, or it’s in the public interest. I’m aware of many cases in which the prosecutor dropped charges due to insufficient evidence, despite believing the witness.

    The conviction rate for rape in Scotland is a feeble four percent. In comparison to that figure, I’d say that the problem of false allegations is piffling, and the instance of erroneous conviction almost non-existent.

    And on your last point, would you say that concealing the identity of children in sexual abuse cases is a throwback to medieval times? I’d say it was basic decency.

    In Britain, I expect to see criminal justice that’s based firmly in reality, not upon scandals involving celebrities, or rage against the false perception of liberal sympathies in the judiciary.

    Comment by Flying Rodent — January 16, 2007 @ 9:03 pm

  11. I was talking about your 11Jan07 blog on ‘naming and shaming’ to Lord Campbell-Savours today SAT. He was very interested in the piece, recognised its importance and would like to talk to whoever wrote it.

    I’m on +44 [redacted] if you would like a chat.

    Andrew Rosthorn

    Comment by Andrew Rosthorn — January 27, 2007 @ 2:52 pm

  12. What I can add to the piece I’m not sure, but I’ll be more than happy to discuss it further. I’ll try to contact you over the weekend.

    Comment by notsaussure — January 27, 2007 @ 4:37 pm

  13. I believe that I would find being falsely accused of rape at least as traumatic and degrading as being raped, especially if the press picked up on it, but I’ve no desire to see calls for increased scrutiny of rape allegations turned into a crusade against ‘loose women’ or anything like that. A middle way must be found, regardless of how frequent or otherwise it may be; there is far, far too much at stake to take any other approach.

    Comment by rainmanlite — February 7, 2007 @ 9:24 am

  14. […] and the State Bar’s Grievance Committee (279 — 291).    As I’ve pointed out before, when we see false allegations of rape go too far before the charges are thrown out, it’s […]

    Pingback by Duke University lacross case and due process « Not Saussure — April 14, 2007 @ 1:12 pm

  15. […] statements that support the prosecution or, indeed, not getting to see the complainant’s past history of making false allegations.    A good recipe, in other words, for miscarriages of […]

    Pingback by Brown, intercept evidence and disclosure « Not Saussure — June 4, 2007 @ 7:07 pm

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