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Miscarriages of Justice in Prosecution of False Rape Claims

About The Author

Ivonna Beches (Writer)

Ivonna is a third year law student at Durham University, currently undertaking a study year abroad at the University of Groningen in the Netherlands. Ivonna aspires to be a barrister, and has a keen interest in immigration law. Outside her studies, Ivonna is a keen writer, and is currently working on a novel.

On the 2nd of December, the charity Women Against Rape (WAR) presented their campaign in the House of Commons, under the title ‘Jail Rapists NOT Rape Victims’. The speakers included women who have been jailed for allegedly lying about their rape allegations, in a bid to shed more light on the way in which these cases are handled by the authorities and more specifically, the Crown Prosecution Service (CPS). Over the past five years, 98 out of 109 allegedly false rape claims were prosecuted under the common law offence of perverting the course of justice, which carries a maximum life jail term. A more appropriate alternative would be the offence of wasting police time as set out in section 5.2 of the Criminal Law Act 1967 which has a maximum sentence of six months or a fine. This approach would be similar to the US legal system which treats the vast majority of false claims as misdemeanours and punishes them through community service or probation.

WAR’s ongoing campaign has recently gained new impetus in the aftermath of the case of Eleanor de Freitas, a 23-year-old former Durham University student who committed suicide in April 2014 after the CPS took over a private prosecution case against her for what was supposedly a false rape claim. The inquest into her death questioned what safeguards are actually in place for rape claimants in general, and whether these safeguards are sufficient.

Is the approach of the CPS too heavy handed when it comes to investigating and prosecuting false rape claims, and does it go so far as to violate the human rights of claimants? By comparing the offences of ‘perverting the course of justice’ and ‘wasting police time’, this article will aim to answer this question.

Perverting the course of justice or wasting police time?

Perverting the course of justice is a common law indictable offence, meaning that it does not have any basis in statute but it nevertheless carries a maximum sentence of life imprisonment and is a very serious offence. The general definition sets out that it is committed when a person commits an act which has a tendency to pervert and is intended to pervert the course of public justice.

As set out in the CPS guidelines, the course of public justice is not limited to legal proceedings but can include the police investigation of a crime. In addition, intention is a fundamental element of the offence, as there must be a conscious effort to pervert the court of justice or do something that would result in a perversion of justice.

The challenging element to allegations falling under the offence of ‘perverting the course of justice’ lies in determining whether the allegation has passed a threshold to warrant the offence. According to the decision in Cotter [2002] (paragraph 30), ‘wherever the offence is described with sufficient particularity as to justify a significant police investigation’ it is more appropriate to charge the defendant under the aforementioned offence rather than the provision of section 5.2 of the Criminal Law Act 1967: wasting police time. This decision was based on the statement in R v Rowell [1978] which set out that the ‘[exposure] of individuals, identified or otherwise, to the risk of arrest, imprisonment pending trial and possibly of wrongful conviction, and punishment’ was too serious a crime to convict under section 5.2 of the Criminal Law Act.

However, when considering the possible errors that can arise within the course of police investigations into rape cases, including a failure to record crimes purely based on a lack of information, this type of punishment seems far too serious and dangerously threatening to individuals who could be actual rape victims. The recent report of the HM Inspectorate of Constabulary focused on the process of cancelation and removal of recorded crimes, and explained what issues can arise from an erroneous use of this process.  

Based on the findings of a study conducted between December 2013 and August 2014, the report states that out of 3,246 no-crime decisions 664 were incorrect; a number which included 200 cases of rape incorrectly deemed as ‘no crimes’. The report explains that mistakes are made when the police refuses to register a crime or reclassifies a registered crime as a no-crime if the decision is made on the basis of a lack of verifiable evidence, rather than compelling evidence suggesting the crime did not take place. In addition, in 22 per cent of the rape cases, there was no evidence that the victims had been notified that their case was taken off the record. Nonetheless, all cases taken off the record become open to prosecution on the basis of involving false claims and carry with them the threat of a heavy sentence, as outlined above. The repercussions that this can and does have on victims of rape are devastating.

The alternative offence, as set out in section 5.2 of the Criminal Law Act 1967, states that a person is responsible for wasting police time by:

[K]nowingly 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.

A person convicted under this offence could be liable for ‘imprisonment for not more than six months or to a fine of not more than two hundred pounds or to both.’

As per the sentencing guidelines of the CPS, an example of conduct appropriate for such a charge would be ‘false reports that a crime has been committed, which initiates a police investigation’. Particularly in cases where the police investigation into a rape allegation did not adduce sufficient evidence to submit the case to court and the alleged rapist was released from custody, it seems excessive to prosecute the person who filed the claim for anything other than wasting police time.  

Eleanor de Freitas’ case exemplifies this as, although the investigation against her alleged rapist lasted for approximately two months, it was halted as soon as it was clear that there was a lack of forensic evidence and both he and Miss de Freitas were told the case was closed. Sometime later however, the CPS officially picked up the private prosecution against Miss de Freitas on the grounds of perversion of justice.

The Director of Public Prosecutions, Alison Saunders, said in a statement that the circumstances surrounding this case are ‘rare, extremely difficult and always complex and sensitive’. Following the review she conducted into the case she went on to clarify that it had been correctly handled on the basis that strong evidence against Miss de Freitas existed, including text messages and CCTV footage which contradicted her initial claim. However, in response to the dissent from police officers who investigated the rape and claimed that Miss de Freitas should never have been prosecuted, Saunders argued that the police ‘never undertook an investigation into the alleged perverting the course of justice nor did they consider all the material provided to [the CPS] by the private prosecution’. What this suggests is that Miss de Freitas and her family were not actually informed about the existence of evidence that invalidated her claim. It is questionable then what the actual purpose or even public service of this prosecution was if the police officers involved do not agree with the CPS on the matter.

Moreover, while it may very well be in the public interest to prevent false allegations generally, as they can have highly detrimental consequences on those who may be falsely accused, the context in which false rape claims happen differs greatly from that of other crimes. Placing public interest ahead of victims and potential victims can be dangerous in rape cases, and it can have a direct effect on the trust victims of rape place in the police force and the justice system.

The wider context of rape - underreporting

The discrepancy between prosecution rates and actual reported cases of rape is extremely problematic. The approximate conviction rate of rape cases every year is 1,070 while the estimated number of victims of rape stands at 95,000. One survey seeking to discern why many rape cases go unreported found that 80 per cent of 1,600 respondents said they did not report their assault to the police. This presents an inherent reluctance or fear that the situation may only be worsened by reporting the crime, a phenomenon that is worryingly prevalent in rape cases.

This overarching fear is not in any way diminished when some claims are dealt with in such a serious and aggressive manner by the CPS. Although a review spanning from January 2011 to May 2012 revealed only 44 individuals had been prosecuted for perverting the course of justice out of 159 charging decisions, there is no mention of how many of these prosecutions involved claims where there simply was not sufficient evidence to charge the original alleged perpetrator rather than concrete evidence suggesting the claim was false.

Conclusion

With so many elements stacked against victims of rape already, both within and outside of the justice system, it seems difficult to argue that it is in the best public interest to prosecute false rape claims as harshly as possible. Given that false rape claims are extremely rare, yet cases where a lack of evidence cannot ensure a conviction tend to be considered within the same category, the focus should be shifted and should consistently remain on actual and potential victims of rape, not possibly falsely accused individuals.

The offence of wasted police time within such a context is more than sufficient to punish potentially dishonest claims with a view to discouraging them from happening. It is worth emphasising that most of the damage a falsely accused person suffers relates to their reputation while an actual rape victim whose claim is wrongly invalidated and who is subsequently prosecuted suffers a far worse fate. Unless and until there are safeguards which can better ensure that police investigations into rape cases are not rife with error, the approach taken to the punishment of false rape claims where the suspect is never taken to court needs to be revised.

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Tagged: Criminal Law, Justice

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