Should we always prosecute people who make false allegations?

What should happen to people who make false allegations?

The issue has been put into stark focus by the publicity given this week to the case of Geoff Long.

Mr Long had a daughter called Tina from an unsuccessful first marriage. In 2010 she went to Brighton police and claimed that he had systematically abused her over thirty years earlier when she was aged between 8 and 16.

There was apparently no corroboration to her allegation, but it led to Mr Long’s prosecution. The jury believed Tina, and he was convicted. He received a sentence of 5 years imprisonment.

To rub salt into his wounds Tina then gave her story to a magazine, which published it under the headline “34 years on I finally made him face up to his hideous crimes.”

In contrast to many – perhaps most – who have found themselves in his shoes, Mr Long’s conviction did not result in him losing his current wife, Louise. Not only did she stand by her man, she also started to dig out evidence that had either been missed by the police, the CPS or his original defence team.

The abuse had taken place in a room with a pink sink, Tina had said. Louise uncovered that the police had in fact established that the room in question had not even had any plumbing, let alone a pink sink, evidence which for some reason had not featured at the trial.

Geoff & Louise Long on their wedding day in 2002
Happier times: Geoff & Louise Long on their wedding day in 2002

On its own, evidence of that sort would probably never have got the case in front of the Court of Appeal; and even if it had got that far the Court – which very often seems to value the “finality” of a jury’s verdict over its accuracy – would probably have upheld the conviction whilst uttering some soothing platitudes about how it would not have affected the final result anyway (at any rate they would be intended to sooth the general public, they wouldn’t have soothed Mr Long).

But fortunately for Mr Long, using new solicitors (Jordans QS in Doncaster who specialise in miscarriage of justice cases), he was able to mount a successful appeal based upon mistakes in the trial judge’s summing up. Had the judge not made those mistakes then Mr Long would have faced a much longer and more arduous task in establishing his innocence. Quite possibly he would never have managed to do so.

Even so, despite winning his appeal, Mr Long was by no means in the clear. The Crown pursued the matter to a retrial. Indeed, in September 2013 when the retrial took place, Mr Long’s son found himself in the dock beside his father. This was because he had revealed how at a drunken hot tub party Tina had admitting lying in her original allegations. Instead of dropping the case, the CPS accused him of perverting the course of justice by trying to persuade Tina to lie.

The retrial took place in September 2013, but it collapsed half way through after it emerged that the prosecution witnesses had secretly recorded the evidence at the first trial, presumably in order to ensure that they were “singing from the same hymn sheet”.

There was yet further delay, until January of this year, when a second retrial took place. Mr Long and his son were finally acquitted after the Crown accepted that in the light of answers she gave in cross-examination, Tina’s evidence could no longer be relied upon.

It is an appalling story of an innocent man’s life being shredded by false allegations. In the end, although it seems almost absurd to say so, Mr Long was lucky: a combination of the original trial judge’s mistakes, a determined, terrier-like wife to dig out helpful evidence, and the good fortune that his accuser was lulled by a combination of alcohol and hot water to admit lying, all ensured that his nightmare ended, albeit after what must have been 5 agonising years for him and his family. Had any of those elements been missing then it is likely that he would still be serving his sentence today, or at least that he would be on the sex offenders’ register, branded as a predatory paedophile until his death and beyond.

As it is, he has incurred legal bills of something like £100,000, the vast bulk of which he is most unlikely ever to get reimbursed from the state which tried so hard to imprison him for nearly 5 years. (If you want to know why it is that Mr Long is out of pocket, then you should read Penelope Gibbs’s report published yesterday by Transform Justice: she explains how changes by both Labour and Coalition governments have made it almost impossible for acquitted defendants to recover most of their costs).

Nor can he count on receiving a penny of compensation for a wrongful conviction. Amongst Chris Grayling’s many dreadful legacies is a rule that requires the government to pay compensation only if an exonerated defendant can prove beyond reasonable doubt that he did not commit the offence (see Nealon & anr v. Secretary of State for Justice [2015] EWHC 1565 (Admin). Proving a negative beyond reasonable doubt is a tall order.

Victor Nealon: denied compensation for wrongful imprisonment
Victor Nealon: denied compensation for wrongful imprisonment

So, having been gaoled for a crime he did not commit and having spent a five figure sum on legal fees to clear his name and with little prospect of getting any compensation from the government, one could forgive Mr Long for wishing to see his daughter punished for her lies.

It does him great credit that he does not, at least not by any agency other than her own conscience:

I can’t ever see us being able to speak again. I’m not seeking revenge and I don’t want to see someone else go to prison. But I need to close the door on what happened. Tina has her own conscience to deal with. And that must be torture in itself.”

But anyone reading the 1295 comments underneath the Daily Mail story would soon see that Mr Long’s philosophic attitude is not universally shared. (Although those who publish comments in the Mail Online are not – I hope – a representative sample of public opinion).

The most popular comment, with 11,455 “likes” came from “Blue Russian” in Southampton:

This speaks volumes for what I have been saying on this forum for several months. Hell hath no fury but these false accusations should not be allowed to go unpunished.”

Many others expressed a similar view: that Tina should be prosecuted and sent to prison.

It is impossible not to sympathise with that view, and perhaps a prosecution will follow. That said, there may also be very good reasons, including Mr Long’s own wishes, why a prosecution should not take place. This blog is certainly not the place to speculate on what may or may not happen to Tina.

Moving from the specifics of Mr Long’s case to the general, prosecutions for making false allegations are unusual. According to a survey of prosecutions for false rape accusations carried out by the CPS, over a 17 month period leading up to May 2012 there were only 35 prosecutions for making a false accusation of rape. By way of comparison, during the same period there were a total of 5,651 prosecutions for rape. According to Keir Starmer, the then Director of Public Prosecutions who ordered the survey, this showed that false accusations are “relatively rare”. In fact it showed nothing of the sort, merely that prosecutions for making false accusations are relatively rare.

There are many reasons why prosecuting people who have made false allegations may not be possible, or not advisable.

People who make false accusations – I rather like Anna Raccoon’s word “allegators” but it hasn’t quite caught on yet – do so for all sorts of reasons. When they relate to events that supposedly took place years or decades earlier it can be especially difficult to do more than guess at the reasons.

It is of course possible that the accuser believes that abuse took place, when in fact it did not. If you are reporting a rape that happened a few hours ago it is relatively unlikely that you are mistaken (although drink or drugs might increase that risk). On the other hand, if you are reporting abuse that happened decades earlier the chances of mistaken memory increase dramatically. An expression which is often used is “false memory syndrome” although that is a misleading phrase that suggests some sort of pathological condition. In fact we all have highly fallible memories. As Elizabeth Loftus the bête noire of the “recovered memory” movement put it: memory does not work like a video recorder, “it works more like a Wikipedia page: you can go in there and change it, but so can other people.

Elizabeth Loftus: "Memory is like a Wikipedia page"
Elizabeth Loftus: “Memory is like a Wikipedia page”

Psychologists Julie Shaw and Stephen Porter looked into the question of false memory in a recent study:1

The mind seems to be able to construct information from internal and external sources to generate a coherent but false picture of what occurred …. These plausible confabulations are likely constructed from real autobiographical memory fragments but are configured in ways that depict events that did not occur.”

Shaw and Porter took a group of undergraduates studying at a Canadian University and with careful questioning were able in 70% of the participants to induce false memories of childhood involvement in a crime. (They assumed that the memories were false both because they were not revealed in a preliminary questionnaire, and because they had checked with the participants’ parents that the events in question had not occurred). The “memories” included assault, theft and attack by an animal. One might have expected such incorrect memories to be rather vague and hazy. In fact they were not, they were described as “richly detailed.” The authors made the point that it is very difficult to distinguish true from false memories:

false memories may actually be recalled in a way that is surprisingly similar to how memories for real events are retrieved. Consequently, as the results here indicate, true and false memories have many similar features— including being highly detailed and multisensory. These results are also in line with neuroimaging research showing that true and false memories evoke similar brain activation patterns … and that even highly emotional content may not reliably indicate memory accuracy …. Therefore, it may prove difficult in the real world to reliably tell the difference between true and false memories without independent corroboration.”

In other words, not only is it very hard for anyone listening to the false story to distinguish truth from fiction, there would be no reason even for the story tellers themselves to realise that they were not telling the truth.

It should be noted that although in the study false memories were implanted deliberately by the researchers, the tactics they used to do so mimicked the sort of thing that could easily happen accidentally in the “real” world:

The tactics that were scripted into all three interviews included incontrovertible false evidence (“In the questionnaire, your parents/caregivers said. . .”), social pressure (“Most people are able to retrieve lost memories if they try hard enough”), and suggestive retrieval techniques (including the scripted guided imagery). Other tactics that were consistently applied included building rapport with participants (e.g., asking “How has your semester been?” when they entered the lab), using facilitators (e.g., “Good,” nodding, smiling), using pauses and silence to allow participants to respond (longer pauses seemed to often result in participants providing additional details to cut the silence), and using the open-ended prompt “what else?” when probing for additional memory details. We also used the tactic of presumed additional knowledge if participants asked about the accuracy of details. In other words, participants were told that the interviewer had very detailed information about the event from their caregiver but was able only to vaguely confirm details (e.g., “this sounds like what your parents described,” “I can’t give you more details because they have to come from you”). Further, when participants reported that they could not recall the false memory, the interviewer seemed disappointed but sympathetic (while saying the scripted line “That’s ok. Many people can’t recall certain events at first because they haven’t thought about them for such a long time.”) and scribbled down a note on her clipboard.”

If Shaw and Porter are correct, and their findings seem to be in accordance with other research, it means that there are likely to be at least some, and probably a significant number, of false accusations in which the accuser believes his or her false accusation to be true.

In such cases – even assuming the accusation was demonstrably false – it would be wrong to charge the false accuser with perjury or perverting the course of justice because not only would they have had no intention to mislead, they would have done nothing morally wrong. Indeed, to say that you have been abused in your childhood (if you believe that you have been) is generally regarded as commendable.

Well, the Daily Mail commenters would say, even if there are some cases where the accusers actually believe their own nonsense, we should at least prosecute the ones who know that they are lying.

But even this is not so simple. Many of the reasons why not are set out in the CPS report, which I commend for that reason, even if its statistical rigour is open to question.

Proving Falsity

Obviously the first problem is proof. If an uncorroborated allegation of sexual abuse is made and denied there is often no way of conclusively sorting out who is telling the truth.

Merely because a rape prosecution has failed, it does not follow that a perjury or perverting the course of justice prosecution of the complainant will succeed. Any criminal charge needs to be proved “beyond reasonable doubt” and proof to that standard is meant to be difficult. Many sex cases amount to “one person’s word against another” and that may be the very reason that they fail; but it makes no sense every time there is an acquittal to turn the tables and prosecute the complainant on same flimsy basis of one person’s word against another.

Retracting the retraction

Even if a complainant has admitted that she has lied, prosecuting her for having done so is far from straightforward. What happens, for example, if a complainant admits she lied, and then changes her mind and says “actually I was telling the truth, and I was raped”?

Such a case was R v. A [2010] EWCA Crim 2913. A 28 year old woman made a complaint of rape against her husband. Just before his trial she retracted her allegation, and said that she had lied. The rape case was dropped and she was then arrested for perverting the course of justice by making the false allegation against her husband.

However, once the case against her reached court she changed her mind yet again, and said that the allegations of rape had in fact been true after all, and that it was her retraction of them that was false. By now in a state of complete – though very understandable – confusion, the CPS decided to prosecute her on an indictment containing alternative and mutually contradictory counts of perverting the course of justice, either by making the original false allegation of rape, or by retracting a true allegation of rape. In the end she pleaded guilty to retracting the true allegation, whereupon she was sentenced on the basis that she had indeed been raped, even though her husband had been formally acquitted of doing so. She was sentenced to 8 months imprisonment, to considerable public outcry. Faced with an unusually difficult case the Court of Appeal decided to show mercy by quashing the eight month sentence that had been passed in the Crown Court and substituting a two year supervision order.

Giving the judgment, Lord Judge first set out the reasons why perverting the course of justice normally leads to an immediate prison sentence.

But in this case Mrs A had pleaded guilty not to making a false allegation of rape, but to retracting a true allegation, and said she had done so under pressure from her husband, the very man who (according to her plea) had originally raped her.

That justified a very much more lenient sentence:

… the difference between the culpability of the individual who instigates a false complaint against an innocent man and the complainant who retracts a truthful allegation against a guilty man will often be very marked. Experience shows that the withdrawal of a truthful complaint of crime committed in a domestic environment usually stems from pressures, sometimes direct, sometimes indirect, sometimes immensely subtle, which are consequent on the nature of the individual relationship and the characters of the people who are involved in it.

Following R v. A the CPS issued guidelines that make it clear that the retraction of an allegation is never enough, in itself, to justify a prosecution.

A prosecution should never be based solely on evidence of a retraction. In such a case it would only take the suspect to withdraw the retraction and revert to the truth of the original allegation for the prosecution to be left in situation where it would be impossible to say which version of events is true. Therefore, there would always have to be some other evidence to prove falsity for there to be sufficient evidence for a prosecution.”

This makes good sense read in isolation. On the other hand, the CPS regularly brings prosecutions for sexual offences based upon the uncorroborated and disputed evidence of a single complainant. Indeed, CPS guidance for prosecutors in cases involving violence against women and girls (they call it a “toolkit” for some inexplicable reason) is that:

… using the lack of corroboration of a victim’s account to justify a decision to drop proceedings is flawed.”

It is not clear why when the proposed charge is perverting the course of justice no charge should be brought unless the retraction is corroborated, whereas in making a charging decision in an ordinary rape case the fact that the complaint is not corroborated has to be ignored.

The Mentally Ill

Even if an allegation is shown to be clearly untrue, there may still be grounds for not prosecuting its maker.

Perhaps, like Eleanor de Freitas, she has a serious mental illness. 23 year old de Freitas suffered from bipolar disorder. In January 2013 she made a rape allegation against a man, which was not pursued on the grounds of “lack of evidence.” However when the rape case was dropped, the man in question decided to to start a private prosecution against her for perverting the course of justice. The prosecution was then taken over by the CPS. 3 days before her trial she committed suicide. The coroner found that her pending trial was a “significant stressor in her life,” which sounds like a considerable understatement. With the huge advantage of hindsight it seems that the decision to prosecute her may have contributed to her death.

In the 17 month long CPS survey mentioned above, 38% of false sexual allegations involved a complainant who had not herself made the initial complaint to the police. In some cases they may have been lukewarm about complaining at all and

it was a feature of these cases that the suspect later reported that the whole thing had spiralled out of control and he or she had felt unable to stop the investigation.”

Young, vulnerable or suggestible

In a case where a complainant is young, vulnerable or suggestible it may be very unfair to prosecute her, particularly if her complaint originated in fear at being found to have had consensual sexual relations with someone disapproved of by her family.

If a young woman has been sexually and physically abused for years and embroiders a genuine complaint against her abuser with a false sexual allegation is it always right to prosecute her? It may well be, but the decision is not always obvious.

Of course there are occasions when it is entirely right and proper to prosecute those who make false allegations. On the other hand, real life is often far more complicated than it seems at first, and the bludgeon of a criminal prosecution sometimes does more harm than good.

1Psychological Science January 2015

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

47 thoughts on “Should we always prosecute people who make false allegations?”

  1. Somewhere between what happened to that poor woman (De Freitas) and this poor man, there’s a voice screaming to be heard. That voice is common sense and it’s there for those who chose to listen and use it.

  2. Thank you for an interesting and perceptive post.

    I was subject to a number of very serious and unpleasant false allegations in the course of a contact application. They resulted in an investigation by the police and an eight-year loss of contact.

    Many suggested that I should go on the offensive and seek a prosecution. There were various reasons why I did not:

    I was financially, physically and mentally exhausted. I could not have pursued the case to its conclusion.

    Because they occurred as part of family proceedings few people were aware of the allegations and there was no need to ‘clear my name’, though my accusers wrote to as many of my acquaintances as they knew.

    It is almost impossible, as you say, to prove a negative beyond reasonable doubt.

    Any further action taken by me would inevitably have resulted in a barrage of new allegations – the case could have continued indefinitely.

  3. Rabbitaway is right.

    There are two groups at fault. One are the Police, who will not, for self preservation reasons take a “common sense viewpoint”. Round our way, there were two cases ; both school pupils. One claimed he was “forced to eat a fish head” just, coincidentally, after he had been banned from playing football, and the other was supposed to have “bumped a girl into a radiator” in similar circs ; in both cases all hell broke loose.

    Also the business of touting for complaints ; the “similar fact” rules need to be reset so that they are only permitted when there are strong similarities (like the original case, “Brides in the Bath”) , not the modern post late 90s version of “anything will do as long as its about him/her” – which is the reason for the mudslinging prosecutions of the likes of Roache and others *and* why Cliff Richard’s house was investigated with a BBC Helicopter nearby. The aim is to generate more complaints among the dishonest and deluded to prop up a weak case.

    The other thing is compo solicitors, a sub branch of yours. IMO most of these people are laughably dishonest and purely interested in lining their own pockets. I’ve actually been unfortunate enough to have to check some of their “claims”. The standard is pitiful. I think we have to get away from the “Cash Handouts” mentality – these things are rarely tested in court. Complainants can have support, counselling etc., can see their abuser prosecuted. What they shouldn’t get is a big cash payment for giving evidence (especially when there’s no punishment for lying). This would reduce the volume of complainants massively overnight.

    1. Try telling our ignorant government that they can save £billions by stopping paying “compensation”
      As things currently stand, they are paying people to tell a pack of uncorroborated LIES!!!

    1. There are two kinds of “false allegator” ; those who are in need of psychological help, and those who are lying for money. If you look at predecessor cases of this stuff – it has been happening in Residential Care and Education for years before anyone questioned Savile – there is a pattern where a few people (who have often colluded directly or via the Police) construct a court case. Sometimes this case is thrown out. But once a case has been constructed, there are “solicitors” who tout for claimants openly offering risk-free compensation money (without ever going to court) and hundreds of compensation claims are made.

    2. K, it is quite often the therapists who plant the ideas in these peoples heads!!!
      As was proved by the ‘experiment’ that was undertaken and detailed in the post.
      So, anyone who has been proved beyond doubt to have made false allegations, especially if the reason was purely for financial gain, MUST be prosecuted.
      If they aren’t forced to face up to their lies, this makes a mockery of our so called “justice system”, which, with it’s current rate of being hell bent on allowing anyone to come up with a pack of fantasies that allegedly occurred 20 + years ago, and the useless police farce that arrest first, then put in a pretence of an investigation into the false allegations, our jails are going to end up being more like nursing homes for old men!
      And let us then consider the cost of keeping these innocent victims of false allegations in prison ….. at least £40k PER year …. I’m sure that money could be far better spent on things such as the NHS!

  4. Thank you Matthew – an important and timely blog.

    I think the CJS regards sexual abuse as a kind of ‘crimen exceptum’ where the normal rules of offences committed in time and space do not readily apply – hence the sanctity afforded to testimony however inconsistent or disconnected from verifiable facts and memory science.

    Thus when an allegation becomes so demonstrably false as to indicate ‘untruth’ there is a counter reaction of the ‘scheming lies’ of the fallen angel, that can rarely be said to be reflected in proof. (Though cases do occur).

    The most urgent need at present is for the CJS to recognise its own flaws that are manufacturing unsafe prosecutions and convictions on, to borrow a cliche, an ‘industrial scale’. The Long case ought to act as an index warning to the system – but there’s no indication from any quarter – most especially the Court of Appeal that there’s any insecurity about the current safeguards.

    That’s why I think there ought to be an amnesty for false accusers in all but the most heinous examples of proven intentional fraud.

    Only when false accusers have the courage to come forward and admit the falsehoods will the nature and extent of the injustice begin to become apparent, with many innocent people serving long sentences for crimes that did not happen freed.

    Yes – I think it is the case that many false accusers come to believe their own false narrative – they ‘make believe’ either through some delusional belief and therapy or because when others believe them, so too do they believe it, and in this are aided by concepts of ‘recovered memory’ such as ‘blocking out’ etc even though they claim to have ‘always remembered’.

    It’s a kind of magical thinking that transforms whatever comes into your head into ‘memory’ to rationalise and suit a purpose .

    Confidence tricksters do this as a matter of course – it’s lying as an art form – but you don’t need to be an intentional conman to engage.

    However, how long does the illusion last? Maybe forever with constant reinforcement, but in the normal course of things it is likely that the underlying lie, and bad conscience, will come to the fore in time. The stark realisation of having put an innocent man, or woman, into prison must then be faced together with the potential consequences of owning up.

    There has to be some kind of incentive – the loss of face, respect, compensation and actuality of deep shame is bad enough – and it can lead to people taking their own lives.

    If there is the prospect of prosecution on top it is highly unlikely that all but a minuscule minority would own up. As is the case today.
    And of course such momentous lies that fester can serve to ruin the accuser’s own life, unless addressed.

    If a policy of amnesty – in recognition of the faults of the CJS in encouraging and incentivizing false allegations, and promoting the flawed doctrine of ‘crimen exceptum’ – were to be instituted, then it may be that more false accusers would come forward.

    Only then would the full extent of the endemic and progressive flaws in the current justice system begin to become apparent.

    The parlous state the CJS is in is the product of a culture war – it is a political problem demanding a political remedy.

  5. Thank you, Matthew. And thank you too, Margaret for your insights.

    I’m watching all this from far away, in a country which has nothing resembling rule of law, and living here has made me begin to appreciate how precious our system of law is. It’s very hard to explain just how much is affected by the fair administration of justice – I appreciate that sounds obvious, but I certainly didn’t see it until (long) after I left the UK.

    It’s both reassuring that Matthew explains so clearly, and somewhat concerning that he needs to. But we do seem to be drawn to seeing things in terms of problem-solution. Problem – some people are being locked up as a result of false accusations; solution – lock up the false accusers. That’ll stop ’em!

    I fear we got here because of similar reasoning: Problem – it’s difficult to prove sexual offences; solution – lower the standard of evidence required. Is that an unfair description of what has happened?

    I wonder whether we have to accept that the law is useful for dealing only with some (or many) of society’s conflicts some (or most) of the time.

    1. The problem is the methodology used. The Police/CPS do not bother to prove cases any more ; what they do is collect as many slightly related complaints as they can, and just throw them at a jury ; it is basically legalised mud-slinging as a way of conducting prosecutions. It often works. It’s really pot luck whether you get a jury or juror who can fathom out how the case is constructed.

  6. It is always right to prosecute false allegations for whatever reason they are made.

    If, after conviction, prison isn’t the answer because of mental illness or false memory, then mental hopitals are the place to send the lying life destroying bludgers!

    1. If false memory is the problem the allegators have committed no crime. And I’m afraid prosecuting the mentally ill, whether for perverting the course of justice or for sexual offences is something which always requires very careful thought.

      1. Absolutely, there’s a difference between mad and bad, the initial interview should lead any sensible officer to a judgement call based on common sense not what the latest politically driven policy dictates

        1. There’s a basic problem. CYA. (You can see the same thing in the extended CRB check).

          Supposing an allegation is made by someone who is seriously, completely, bonkers, that is clearly impossible nonsense.

          If an officer, completely rationally, writes that off as nonsense, and it is later found that the person being accused was abusing someone, even if it is someone completely unconnected, they will be crucified (possibly literally).

        2. Not when the officer has already been ‘inducted’ so to speak.

          After 25 years of this farce and escalating legal fictions – I don’t think there’s anything other than a political will that would change things until such a catastrophe (aka First World War by analogy) that the entire delusion is overtaken by events.

      2. The trouble is of knowing. Is it false memory? Is it mental illness? What is the reason for a false allegation?

        If it goes through the courts and the defendant found not guilty, what next? There is nothing is there?

        1. This is a very important point because legally what matters is the reliability of testimony – which may include provenance and characteristics of alleged ‘memory’.

          In the UK courts the whole argument has become distorted through the importation of a rebuttal concept, ‘false memory syndrome’ to the alleged ‘recovered memory syndrome’ which was first used in civil litigation in the US in the 1980s to set aside time limits.

          Plaintiffs claimed to have repressed or dissociated all memory of abuse until ‘recovered’ in adulthood through therapy. This was the proposition which was found to be scientifically unproven and the therapeutic process likely to give rise to a suggested or imagined believed-in narrative which was unreliable.

          There are of course two alternate propositions: that the claim was a ruse for consciously fabricated allegations to set aside the time limits for financial gain, or that always remembered
          abuse was claimed to have been ‘repressed’ to overcome the time limit. Whatever the case, the bottom line is, is the evidence reliable?

          In the US limitation laws in criminal proceedings could not be so set aside as a rule, so neither delayed ‘always remembered’ claims nor ‘repressed recovered’ claims featured to any extent.

          In the UK however there is no limitation period for indictable criminal offences. Thus there was no incentive for the the prosecution to claim repression and memory ‘recovery’.

          Delayed claims became prosecuted routinely in a way that would have been impossible in the US courts – note too that there was no similar routine public criminal compensation purse as with the UKs CICA access to which was dependent on a police report in the first instance.

          There were a few cases in the early 90s where ‘recovered memory’ was claimed and the defence successfully rebutted reliability because there was either an explicit claim of ‘recovered memory’ or medical and therapy records were indicative of such.
          But times changed. Therapists, complainants and the prosecution became more savvy about nominalistic terms such as ‘repression’ and instead mooted that ‘progressive’ disclosure was a normal consequence of late disclosure, together with symptoms such as ‘flashbacks’ ‘panic attacks’ and even ‘body memory’ triggers.

          The ambiguous term ‘blocked out’ became accepted as ‘not thinking about’.

          It is of course impossible for the defence to prove ‘false memory’ but this became an implicit burden in order to admit expert evidence as to reliability. With complainants
          claiming to have ‘always remembered’ even where there was clear evidence to contradict the whole matter became left to
          to the ‘common sense’ of the jury for the most part.

          The criminal courts in the UK are in a terrible mess as to the reliability of delayed ‘memory’ claims. It stands to reason that uncorroborated contradictory evidence ought not to satisfy the standard and burden of proof, yet routinely presumptive excuses such as the effects of ‘trauma’ are allowed, indeed invited, to explain disparities and bolster the prosecution case.

          The issue of whether a person believes in a false narrative, is delusional per se, or is even remembering actual events in terms, is secondary to the BSOP and this is the benchmark which ought to be reinstated in rational terms.

  7. It’s not just about the criminal law. A parent (usually a mother and I will assume that in what follows) who makes false allegations about the father in litigation about children to deny the children contact with their father should be assumed to be unfit to look after children.

  8. Perhaps the summing up safeguards that used to exist against convicting on uncorroborated evidence ought to be reintroduced. Perhaps there should be safeguards relating to the possibility of false memory. Certainly the police and CPS should be prohibited from referring complainants as victims.

    1. I sort of agree with you about the corroboration warning, at least in historic cases. although the old corroboration rules were somewhat absurd. I think the real value was that they forced the CPS to consider whether there was corroboration before bringing weak cases.

      1. I agree. It was a gatekeeping mechanism that reflected the burden and standard of proof. Now, even though ‘corroboration’ is history, the police and CPS look to ‘case building’ as a means of bolstering weak cases. It’s a kind of diktat which may amount to manufactured support. There are no fixed goal posts in historical cases. If in doubt make it up might be the maxim that suffices, though this cannot be said to be a universal police or CPS practice – there are huge variations.

        But too often there is insufficient scrutiny of the reliability of complainants and all that may follow from this.

        Would also add that the change from ‘beyond reasonable doubt’ to being ‘sure’ subtly switches the thinking process of jurors from the ‘gatekeeping’ function to an uncritical belief. It prompts different questions and a different thinking process.

        1. I often wonder about “beyond reasonable doubt” and being “sure”. I rather agree with you. I think “beyond reasonable doubt” has a more solemn ring to it, which might engender greater caution in juries.

          On the other hand, I know lots of people who think that “beyond reasonable doubt” implies less “certainty” than merely being “sure”. Nobody really knows what a “reasonable” doubt is, as opposed to an unreasonable one, and you could, at least in theory, have just an “unreasonable” doubt but still not be sure. If, for example, your doubt was irrational and absurd, yet despite that you still had it, you would have to convict under the “BRD” test, but you wouldn’t be sure, so would have to acquit under the “sure” test.

          I guess that in the end it may not make much difference!

          1. Can’t agree about the ‘sure’ test. Seems to me reasonable jurors in BRD would say – ‘can we rely on this evidence’? And they would address doubt as per the B&SOP – namely that they could not be sure without more – hence reasonable doubt. Are you ‘sure’ on the other bypasses this – ‘why would they say it if not true’ ‘ has he proved he/she has lied ”no reason to lie’ etc – which reverses BOP.
            There were dodgy convictions though even in the days of the corroboration warning – and decent judges will still caution juries where indicated.
            Sometimes a bit of a farce – albeit deadly.

          2. I seem to vaguely recall some research that suggested that convictions were more likely where a corroboration warning had been given. Identifying corroboration seemed to persaude some jurors to convict when they would not have done so if left to their own devices. I’ll try to find it.

  9. Another excellent article, but 2 points:
    1. Whether the Court of Appeal should be more concerned with the “accuracy” of a jury’s verdict. This begs the question: in what circumstances should judges override juries, and what would the implications be? See for example this blog post: http://inkspring.co.uk/blog/4590596332.
    2. To be fair to Chris Grayling (admittedly, not something that comes naturally), it is the courts that have determined the test of statutory compensation for miscarriages of justice, in interpreting legislation from 1988, which in turn incorporated an international covenant, from which the notion of the applicant’s having to prove a miscarriage conclusively has derived.

    1. Thanks for your comment Rupert:

      As to your point 2, yes and no, but mainly no.

      1. The Convention sets minimum standards. It doesn’t mean that we couldn’t do better.
      2. The Supreme Court in Adams restricted the meaning of “miscarriage of justice” (which entitles you to compensation) in the original s.133 of the 1995 Act to cases where the defendant was either:
      (1) “Clearly shown to be innocent” or

      (2) (Where there is fresh evidence) “no reasonable jury could properly have convicted the defendant”.

      The amendment to S.133 (passed in 2014, and for which Mr Grayling does bear responsibility) whittles this down further to a miscarriage of justice arising:

      “if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence.”

      There is quite a significant difference between a situation in which no reasonable jury could convict” and proof of innocence “beyond reasonable doubt.”

      Neither the International Covenant, nor the Supreme Court can be blamed for the disgraceful position in which an exonerated defendant now has to prove his innocence to the exacting criminal standard if he is to be allowed any compensation for his wrongful conviction. Mr Grayling can be, though.

  10. The jury is answering the question “are you sure that the defendant is guilty?” they are not answering “is the defendant guilty?”
    It is a subtle difference, but basically means that the jury is never wrong in what they come up with, they say whether they are sure or not, based on the evidence they have heard – and the whole thing is conducted in a cultivated atmosphere of ignorance of anything other than the evidence presented, and the Jury doesn’t get to explain their verdict.
    It can be the case that prosecution says he did it, the defence says he didn’t do it and the jury figures out that someone else did it, she is a victim, it happened but she put the wrong guy in the dock due to a false memory and a sloppy police investigation. Nobody else in the room figures it out, and the jury has no way to ever tell anyone, even the judge or the victim.

  11. Whilst I accept that my father has been freed on the basis that the judge in summary of the first trial voiced his opinion before sending the jury away to reach a verdict, it was this that led to he’s realise. The judge should not have voiced he’s opinion before the jury returned unanimous guilty verdicts within 40 minutes.
    Tina did admit to lying about a telephone conversation that she had had with her mother but she did not admit to lying about the accusations made. This has been a clever play of words to make it appear that she confessed by the daily mail.
    I do not accept the twisted story that has surfaced since in the media coverage.
    Tina has contacted the press complaints commission and they also believe there has been a possible breach of code by the daily mail and my mother Sue also because the reports that the daily mail have made are inaccurate in many respects including claims of new evidence and audio recordings made by them. No new evidence un earthed by Louise has been used in court.The first re-trial did not even begin let alone get half way, it was adjourned as tina informed the police that she wished Stephen and he’s partner to be searched on arrival in court. It was Tina that reported Stephen may be using an audio device and my mother was able to forward a copy of the recording to the police. Unfortunately the audio recording was inaudible and could not be used, but I do believe the police went to great lengths to enhance this tape. However the charges against Stephen were dropped as the Crown failed to produce evidence and he was cleared of all charges.
    The media article that was published in chat magazine was a result of her brother Stephens contact with the publication and yes she did receive £250 for telling the story and going along with it and probably spent it on wine because she suffers from alcohol dependency. But this was all she received for 6 years misery.
    I wish you guys would read the court transcripts before you comment. From what I can gather the sink did come out in the first trial and a witnesses did give evidence it was present in the property, not new evidence as you have implied. Whilst I feel sorry about events concerning my family members I was present at retrial and I can confirm in my opinion that after the case against Stephen had broken down he then wanted to give evidence against Tina, the judge wished to Persue the case against Geoff but a new jury would be required and an adjournment. He expressed that the case had gone on long enough and was horrendous for all concerned. He felt that that it was Louise that was a child minder and it was not in the publics interest to continue.
    My family agreed. The case was dropped.

  12. Are people out of their minds? With such low standards of evidence, opened limitations to report, & no recourse is an open invitation for anyone with an axe to grind to get the state to bully an innocent person.
    I will admit that, at least where I live, the people who take these reports & decide their truth are about a gullible as it gets.
    5 years is a long time to lose. 100,000 in legal expenses. How long is a jail sentence for holding someone hostage for 5 years? What if they steal 100,000 in cash/valuables whatever?

    How could any future juror ever believe the prosecutor, or the presiding judge who put an innocent man in jail in any criminal case again? If half their brain is functional they can’t.

    1. I’m not sure the problem is the axe to grind. The problem is the money.

      There is a (still under appeal I think) case regarding Nottingham Council and Compo Solicitors (its a person, but it’s actually compo solicitors behind it), as to whether a Council can be held responsible for abuse by a foster parent, as the placing agency, or not.

      If the appeal is allowed, then IMO all hell will break loose. It will, effectively, be open season for anyone who was in foster care to make allegations for money against the foster carers. As with all these things, no good evidence is required, no corroboration, no nothing. Not even accuracy is required (if the wrong carer is named it will be put down to distress from the allegations).

      The reason is because Local Authorities have effectively bottomless pockets.

    2. Incidentally, I wonder if the person who is supposed been sexually abused in the station is going to be prosecuted (the two people who just walk past each other, recorded on video). That claim was clearly impossible – Penn and Teller couldn’t have done it – and so her claims must be a lie.

      I suspect not.

      1. The woman in the Mark Pearson case (whose name is all over social media) was not lying; her allegation was so outrageous she must have imagined it. This is called factitious rape.

        Check out the timeline for several examples

        http://www.infotextmanuscripts.org/falserape/a-false-rape-timeline.html

        also my recent articles on false rape; they need to bring more prosecutions for false allegations or we will be flooded with them; see:

        http://writing.wikinut.com/False-Rape-Claims-And-The-Tragedy-Of-The-Commons/2o5u_94s/

        also there needs to be some sort of corroboration, and a stop must be put to these historical cases. Madwomen and chances have nothing to lose, and an innocent man can have his life trashed. Only today a former police officer and a scout master have been convicted of such offences. On what evidence?

        The fact they’re willing to drag coppers into court on such nonsense – he is not the first – is a bad sign. Anyone who knows how incestuous these people are will realise getting a copper in the dock for anything is next to impossible. They may eventually end up devouring themselves.

        And the sexual grievance industry; these rape crisis centres should all be shut down, mostly all they are doing is encouraging demented females to make false allegations. The police should deal with rape, not these airheads.

      2. Souad Faress, you mean? I suspect you are right, and she is still working. On the other hand, her anonymity did not last long, and Googling her name will bring up the story of the false rape allegation rather than anything about her acting career. It is difficult to imagine what she intended to achieve.

        1. Like I said, I believe she was sincere, totally. You will find quite a few such cases on the INTERNATIONAL FALSE RAPE TIMELINE.

          False memories are surprisingly common as is confabulation. We don’t know anything about her medical history but even mere alcohol especially in combination with prescription drugs can lead to bizarre hallucinations.

          I dread to think how many innocent men are behind bars simply because some woman imagined she’d been raped, and that’s before we begin talking about plain old-fashioned liars.

  13. Thank for this article. You make many good points for sure.

    I suppose I have my own particular perspective, being someone who was falsely accused in the US, and quite certainly maliciously so. The gleeful, sadistic grin in the instagram picture my accuser posted after court was plentiful indication of that and consistent with dozens of other aspects that should have made it clear to anyone with a sane set of brain cells that the accuser was out to inflict pain.

    My accuser and abuser was never prosecuted and it seemed like a tough thing to do, considering how prosecutors were politically dissuaded from pursuing false accusers. Years later I still live with a deep seated feeling of sickness for the injustice that was done.

    I am sorry to sound that harsh, but I feel nothing but hatred for people who intentionally inflict that kind of suffering on others. I deeply hope, with my entire being, that my abuser will one day face justice. I pray for this day to come soon and hope I will live to see the day.

    If anything, we are too lenient on false accusers. There is this idiotic, often parroted phrase that we should “believe the victim” … but how the hell are we supposed to know who the victim is if the accused denies the allegation and an innocent person convicted is as much a victim as the accuser alleges themselves to be?

    The social contract and faith in our justice system, albeit it never perfect, constitutes an element of the very fabric of our society. When that breaks down it is a dangerous thing. We have seen many erosions in due process over recent years and those who support such changes hunger for even furthering their destructiveness. I am terrified what could have happened to me if standards of evidence were further lowered. It is nothing short of reckless and abusive that there are people out there being calloused enough to justify such measures with the supposedly low number of false accusations – as if we would stop prosecuting murder, which happens at rates even lower than they would admit to in the case of false allegations!

    A lowering of evidentiary standards and due process not only means more justice for those who are truthful, it also means more victims at the hands of those who are not.

    1. Thank you for that comment Frank. I agree with you, incidentally, about “erosions of due process” in recent years, on this side of the Atlantic too. To mention just a few: much greater admissibility of “similar fact” or “propensity” evidence against defendants, abolition of the requirement to look for corroboration in sexual allegations, restriction of the discretion of the courts to rule that a prosecution is an “abuse of process” when many years have passed since the alleged crime, stricter rules on cross-examination of complainants, erosion of the right to silence in police interviews.

  14. Another point I neglected: I am unsure how prevalent this currently is in Great Britain, but in the US at least there is the rising mantra that women rarely make false allegations of rape and that we therefor should give them the benefit of the doubt. I am scared to think about what changes in investigation such people envision.

    This entire assertion, if truly seen as it is, is a punch in the gut for anyone who believes in equality. What those people essentially say is:

    “I rather believe a man capable of rape than a woman capable of lying.”

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