- Should the Metropolitan Police now apologise to Lord Bramall?
- What will happen to the main witness, “Nick”, if the police come to regard his evidence as unbelievable?
(This post assumes that most readers will be broadly familiar with the story so far. Allegations have been made by a man known only as “Nick” that he was sexually abused by a “paedophile ring” made up of politicians and senior military men when he was a teenage boy. Nick also claims that he was a witness to two other boys being murdered by members of this ring. Most of these men are now dead. The only ones still living are Lord Bramall, a former Field Marshal and head of the British Army, and Harvey Proctor, a former Conservative MP. It was announced recently that Bramall (who is now in his 90s) would not be prosecuted. Proctor, who is in his 70s, remains under investigation.)
Should the Met apologise to Lord Bramall?
The leaders of organisations generally find it very easy to apologise for other people’s mistakes, and quite easy to apologise for their own organisation’s mistakes, as long as they were made by their predecessors many years earlier.
Thus in recent months the Metropolitan Police has apologised to the family of a man whose burned body was found under a bridge 5 ½ years ago and whose death was not properly investigated; to women who had relationships with undercover police officers more than seven years ago; and for not helping a Nigerian man held as a slave when he contacted the police twelve years ago.
In fairness, the Met has sometimes apologised quite quickly: it issued an immediate and fulsome apology to the Cuba Solidarity Campaign which had accused it of “perpetuating anti-Cuba smears” after an actor wearing a T-shirt bearing the Cuban flag played the part of a terrorist in a training exercise, and to his credit the Commissioner of the Met, Sir Bernard Hogan-Howe, personally apologised within weeks to the family of Ally Calvert, a teenager with a fatal heart condition whom the Commissioner had wrongly accused of contributing to his own death by inhaling laughing gas.
But despite the decision to announce that there is “insufficient evidence” even to justify referring Lord Bramall’s case to the Crown Prosecution Service, the Met have so far refused to offer him any apology.
Assistant Commissioner Patricia Gallan issued a statement explaining why they would not do so:
“The Metropolitan Police accepts absolutely that we should apologise when we get things wrong, and we have not shrunk from doing so. However, if we were to apologise whenever we investigated allegations that did not lead to a charge, we believe this would have a harmful impact on the judgments made by officers and on the confidence of the public. Investigators may be less likely to pursue allegations they knew would be hard to prove, whereas they should be focused on establishing the existence, or otherwise, of relevant evidence.”
With the greatest of respect to the Assistant Commissioner, she must have been having an off day when she wrote that statement. She cannot be so dense that she has not seen the point, and she certainly would not deliberately avoid it, yet her statement misses it entirely. Nobody sensibly suggests the police that should apologise merely for investigating Lord Bramall. The apology is being requested because of the manner of that investigation.
Why not apologise, for example, for the now notorious, carefully considered and repeated words of Supt Kenny McDonald that Nick’s allegations were “credible and true”? The Met has long since publicly acknowledged that he was “mistaken” to have used such language. On this the Met actually admits that it did “get it wrong,” the very circumstances in which, according to Patricia Gallan, an apology should have been issued; yet still it refuses.
Secondly, whether or not the Met directly authorised it, they should apologise for allowing details of co-ordinated raids on Bramall’s, (as well as Harvey Proctor’s and Leon Brittan’s homes) to leak to Exaro News in March of last year. The website also gleefully published pictures of the properties concerned, a particularly disgraceful thing to do as far as Lord Bramall was concerned given the very real possibility that he could become a target for terrorists. We do not know exactly how the leaks came about, but in the case of Proctor, Exaro was able to report them on March 4th, the actual day that they took place, and in the case of Bramall and Brittan 4 days later on March 8th. There are only three realistic possibilities:
(a) The Met deliberately leaked the information;
(b) The Met covertly leaked the information; or
(c) The Met carelessly allowed information to leak to Exaro.
The police have denied (a) and, assuming they are not lying, we can discount (b), but to allow such sensitive information to leak out is something which at the very least demands an apology. None has been forthcoming.
Thirdly, the Met should have apologised for allowing the investigation to continue for well over a year. Even if Lord Bramall only learnt that he was a subject of the investigation when his house was raided, he was still kept in suspense for about 10 months. During this time his wife, who was already ill, died.
“Why should Lord Bramall get special treatment?” sneer those who want to believe in Nick. Of course, nobody should be above the law, but anyone treated as the police have treated Lord Bramall would deserve an apology, and a nonagenarian war hero with a dying wife deserved to be treated with particular care and courtesy. How Patricia Gallan fails to understand that point defeats me.
Nick’s other claims
Nick’s sensational claims are not limited to those against Lord Bramall. He has also made accusations against the recently deceased Lord Brittan. the long dead Sir Edward Heath and the almost forgotten (or perhaps one should say never very well-known) ex-heads of MI5 and MI6. Few complaints of historic abuse these days are complete without at least a walk-on part for Jimmy Savile, and Nick has duly named him, both to the police, and (as a BBC Panorama investigation last year revealed), on an obscure satellite TV station.
So now that everyone else named by Nick is either dead or exonerated, Harvey Proctor provides Nick, the Metropolitan Police and Exaro News with their last chance of a criminal conviction. He remains accused of a double murder as well as numerous acts of sexual depravity including an attempt at Nick’s castration, thwarted only by the timely intervention of Sir Edward Heath.
We know about the near castration incident only because Mr Proctor, having been questioned twice by the police and no doubt exasperated by Exaro’s technique of ceaselessly dribbling out the comparatively plausible parts of Nick’s claims, decided to make the more absurd-sounding allegations public at a dramatic news conference last August.
Exaro’s editor in chief, Mark Watts, considered Mr Proctor’s public act of self-defence “over the top theatrics … a shameful performance.” With staggering hypocrisy, Mr Watts said that Nick had been “left distressed” by Mr Proctor’s denial “as was entirely foreseeable.” Within Mr Watts’s moral compass it is acceptable, indeed laudable, to run a campaign accusing someone of being a serial killer and child rapist on the flimsiest of evidence, yet “shameful” when the object of that campaign publicly denies his guilt.
Well, Nick’s distress may now have been increased even further by the news that Mr Proctor’s solicitors, the Leicester firm of Sakhis, have demanded that the police investigate Nick himself.
How should Nick be treated now?
Nick is no longer regarded as a “credible,” let alone a “truthful,” witness so far as Lord Bramall is concerned. Does that mean what he says about Mr Proctor should be treated in the same way?
It is of course still possible that the police accept that he was honestly mistaken about Lord Bramall – let’s say in his identification – but are treating the rest of his evidence as capable of belief. A witness does not need to be dishonest to be incredible.
But the time is fast approaching when the police will have either to charge Mr Proctor with serious offences, or to announce that against him, as against Bramall, there is “insufficient evidence.” If they take the latter course the police, and perhaps the CPS, will face a fresh dilemma: what should they do about Nick?
Proctor’s solicitors have asked that he be investigated for two possible offences: wasting police time, and perverting the course of justice.
Prosecuting him for either would pose formidable and perhaps insurmountable difficulties.
Wasting Police Time
How much police time has been spent on the investigations?
The investigation into offences by politicians and “VIPs” at Dolphin Square and other locations, has taken up a vast amount of police time. If it turns out to have been an investigation into a crime which never took place, it will have been the biggest waste of police time since Sunderland labourer Jack Humble deceived Yorkshire Ripper hunter George Oldfield with his fake “I’m Jack” tapes.
The inquiry has been going on since 2014, and it has taken up the time of senior officers trained in homicide and child abuse inquiries. Obviously while they were investigating Nick’s claims into offences which may be purely imaginary these officers were not available to investigate murders and offences against children which indisputably have taken place.
Nick alone was interviewed over several days. Approximately 20 officers were involved in the raid on Mr Proctor’s home, a similar number into that of Lord Bramall. Presumably a huge effort has also gone into forensic investigations of mobile phones, computers, DNA and so on.
In December 2015 the Met disclosed that the staffing costs of Operation Midland alone had been approximately £1.8M, although this figure did not include
“… overtime, travel or expenses incurred by the relevant teams as this information is not held in an easily retrievable format.”
£1,800,000 may not sound like a huge amount of money in the context of public expenditure generally. However, it relates only to the staffing costs of the investigation. Perhaps it is unduly cynical to assume that the “overtime, travel and expenses” held in the not-so-easily-retrievable-format (MS-DOS? Amstrad floppy discs?) very likely cost the same again, if not more.
But taking £1.8M as an approximate figure, we can work out, very roughly, the amount of police time – excluding overtime – that has been spent, and possibly wasted, on Operation Midland.
The average salary of a Detective Constable in the Metropolitan Police is £41,657.00. (Of course there will be some officers earning much more than the average and presumably lots of junior Police Constables earning considerably less). Assuming a DC works a basic 40 hour week and takes 4 weeks annual holiday he or she will work a basic 1,920 hours a year.
If my arithmetic is correct, the £1,800,000 staffing costs of Operation Midland would pay for 42 Detective Constables working full time for a year. Put another way: this represents 81,818 hours of police time. Plus overtime.
Operation Midland was wound up in October 2015, when Kenny McDonald was relieved of his command. Despite this, the investigation still continues under the umbrella of “Operation Hydrant,” so presumably hundreds, if not thousands more hours have been devoted to it since October.
If Nick’s complaint was indeed false, it has been responsible, on a pretty conservative estimate, for the wasting of a simply vast amount of police time. 82,000 hours of often highly trained investigators could, obviously, have been very useful to a Metropolitan Police facing unprecedented demands at a time of financial austerity.
So, if the time comes when Nick is no longer believed, could Wasting Police Time be the appropriate charge?
It is an offence under S.5 (2) of the Criminal Law Act 1967:
“Where a person causes any wasteful employment of the police by knowingly making to any person a false report tending to show that an offence has been committed, or to give rise to apprehension for the safety of any persons or property, or tending to show that he has information material to any police inquiry, he shall be liable on summary conviction to imprisonment for not more than six months or to a fine of not more than two hundred pounds or to both.”
But there is a fundamental problem, which almost certainly means that Nick will not face this charge, and in fact makes it slightly odd that Mr Proctor’s solicitors have even suggested it.
Wasting Police Time is a “summary only” charge. This means it can only be heard in the Magistrates’ Court. Summary only charges must be laid within 6 months of the alleged crime – in this case the false complaint. After 6 months the courts have no jurisdiction to try it.
Since we know that Nick complained in 2014, it is almost certainly time-barred, although I suppose if Nick has made additional statements within the last 6 months it would, in theory, be possible to charge him on the basis of those.
Perverting the Course of Justice
This is a much more serious charge than wasting police time. It is triable in the Crown Court, the maximum sentence is an unlimited term of imprisonment, and there are no time limits on laying charges.
It is a common law offence: that is, it is not defined by statute, but its ingredients are well-established. The offence is committed when a person:
(a) acts or embarks upon a course of conduct,
(b) which has a tendency to, and
(c) is intended to pervert,
(d) the course of public justice:
Making a knowingly false allegation of rape, child abuse or murder to the police would certainly constitute the offence. In the 2007 case of Carrington-Jones [EWCA] Crim 2551 the Court of Appeal emphasised that perverting the course of justice should normally be charged where false allegations of rape can be proved:
“Rape is a repulsive crime. It requires substantial punishment. No one doubts that the victims of rape should be treated with every possible consideration by the criminal justice system. On the other hand, just because rape is a repulsive crime, a false allegation can have dreadful consequences, obviously and immediately for an innocent man who has not perpetrated the crime. But also, and this is not to be overlooked, because every occasion of a proved false allegation has an insidious effect in public confidence in the truth of genuine complaints, sometimes allowing doubt to creep in where none should in truth exist. There cannot be very many cases … where the offence of attempting to pervert the course justice, on the basis of a false allegation of rape, certainly one which is set out in detailed formal form statement or pursued to the door of the court, should not be prosecuted for what it is.”
Despite this, prosecutions for perverting the course of justice on the basis of false allegations of rape or other serious crimes are not at all common.
The CPS undertook a 17 month review from January 2011. In that period there were 5,621 prosecutions for rape. Comparable statistics are difficult to find, but according to the CPS in 2012-13 approximately 37%, of defendants charged with rape were acquitted of rape or any other sexual offence. Assuming a similar “success rate” during the 17 month period, it would probably be safe to assume that there were around 2,000 defendants charged and acquitted of rape.
Of course, not all of those acquittals represented false allegations. Some – although I would fancy very few – will have been cases of possibly mistaken identity, where a genuine victim was simply not able to identify her attacker satisfactorily. Some will have been cases where the defendant was in fact guilty as charged but was acquitted because the jury were not sure of his guilt (by the same token there were inevitably cases where innocent defendants were wrongly convicted). Some cases (about 14% in 2012-13), were discontinued by the CPS, which could have been for any number of reasons: a change of heart by a prosecution witness, the death or serious ill-health of a defendant, or the discovery that a prosecution witness was unreliable or dishonest.
In the same 17 month period, just 121 potential defendants were referred to the CPS for charging decisions in cases involving allegedly false sexual allegations. Only 35 of those referred were actually prosecuted: 25 for perverting the course of justice and 10 for wasting police time.
In the absence of a clear confession by the complainant, it is extraordinarily difficult to prove a charge of perverting the course of justice based on a false complaint. Not only must the complaint be proven to be false to the criminal standard, but (and this is the most difficult part) it must be proved that the complaint was made with the intention of perverting the course of justice. If there is even the slightest doubt that the complainant genuinely believed his complaint to be true, he is not guilty of the offence. It is only the out and out liar who is guilty of the offence: a fantasist, or someone who has wrongly come to believe that they were abused, is not.
The CPS survey illustrates just how difficult these prosecutions can be. It includes a number of “case studies”: anonymised cases which were considered for prosecution. It is striking that in the 8 cases selected for inclusion in the report, every single one involved a complainant who had admitted making a false complaint, and even in many of those cases there were often good reasons why a prosecution was still considered inappropriate.
The difficulties were emphasised recently in the prosecution of Ben Fellows, a young actor who accused the former Chancellor of the Exchequer Ken Clarke of putting his hands down his trousers and groping him. It was a bizarre allegation, not least because on the occasion when it was meant to have happened David Hencke – a journalist who, somewhat ironically, now represents the more respectable face of Exaro – was present and was adamant under oath that the incident did not occur. Mr Fellows was nevertheless acquitted of perverting the course of justice, conceivably because the jury thought that Mr Hencke was wrong and Mr Clarke had assaulted him, but far more probably because they thought that it was at least possible that Mr Fellows actually believed that he was a victim of Mr Clarke, even though he was not.
The prosecution of Eleanor DeFreitas for falsely accusing her ex-boyfriend of rape was another rare example of such a prosecution, and another example of why they can be exceptionally difficult to bring to court. Miss DeFreitas had a history of mental health problems and the prosecution ended in the most tragic possible circumstances when she killed herself just days before her trial was due to start. The case rumbles on even after her death with her ex-boyfriend having now sued Miss DeFreitas’s father for libel.
So even if the investigation against Mr Proctor follows the same course as that against Lord Bramall, it is by no means certain that Nick will face any criminal charges at all, and if he did it is certainly not a foregone conclusion that he would be convicted.
One would hope that if, as seems ever more probable, no criminal charges are laid, this whole deeply unpleasant saga, including the conduct of the Metropolitan Police and Exaro News, will be thoroughly investigated by Justice Goddard’s inquiry. She may be the last remaining hope that anything approaching justice will come out of the mess of Operation Midland.