Sexual offences – has one excess bred another?

In the light of the recent discredited allegations of a paedophile ring at Westminster we must consider whether the pendulum has swung so far in favour of accusers that taxpayer’s money is being wasted in the erroneous pursuit of convictions of the innocent. Many allegations were simply untruthful fantasies of troubled people. The proclamation by police officers that allegations of a VIP paedophile ring were credible might be considered a mistake.  Harvey Proctor denounced the description of claims against him as ‘credible and true’ by Detective Superintendent Kenny McDonald.  Sir Leon Brittan, after years of service to the UK, was denied the peace of being cleared before his death of an allegation that it would appear was debunked even before he was interviewed.  Tom Watson MP, at a select committee expressed regret for repeating the words of an alleged sex abuse survivor who  described  Leon Britain as  ‘as close to evil as any human being can get””.  DS Kenny McDonald has been removed from the probe and the police have suffered the embarrassment of having to accept that they could no longer stand by the allegation of a VIP paedophile ring as it became clear the evidence did not support that conclusion.  Demands that Sir Bernard Hogan-Howe apologise to Lord Bramall for the manner in which the investigation against him was conducted are still gathering storm.  A more balanced outlook when considering allegations of this nature would have avoided all of this.  Of course, absence of evidence is not evidence of innocence but accusation is not guilt either.  It is closing our eyes to reality to proceed on the basis that no allegation is likely to be untruthful.

It is unkind to criticise the police.  They are in an unenviable position.  They have a legal duty to consider every complaint. There are also policy considerations. In  Hill v Chief Constable of West Yorkshire 1988 2 WLR 1049 HL determined that no duty of care was owed in the detection of crime. There was immunity from actions for negligence in failure to detect crime. Latter authorities have, it might be argued, watered down the protection apparently afforded by Hill. The case of DSD v Chief Constable of Police for the Metropolis [2014] EWHC 436 (QB) 2014 ALL ER (D) 76 (Mar) imposes a positive duty upon constabularies to conduct investigation into complaints into a timely and efficient manner.  If they do not act upon allegations, however weak, they are criticised by Government and their every move is scrutinised by lobby groups who will not themselves lightly accept that some allegations can be without basis.  However, the police have a duty to walk the tight rope with fairness to both sides.  It is possible to argue that these allegations could have been investigated more sensitively than they were.  They have a duty to investigate matters that might point to innocence as well as guilt.

Harvey Proctor is correct when speaking of how the police expressed their views of his accuser. It is not for the police to decide whether allegations made by ‘Nick’ are ‘credible and true’.  The police are evidence gatherers not adjudicators.  In fact, the specific wording of the oath taken by officers at the time of their attestation reads ‘I, … of, … do solemnly and sincerely declare and affirm that I will well and truly serve the Queen in the office of constable, with fairness, integrity, diligence and impartiality’ – S29 Police Act 1997.  Further Code 3.5 of S23 Criminal Procedure and Investigations Act 1996 sets down that an ‘investigator should pursue all reasonable lines of inquiry, whether these points towards or away from the suspect’.  In fairness, there is no evidence the police failed to do that here and because of their diligence they were able to identify that ‘Nick’ was not reliable.  Ill considered comments from one officer, however senior, do not evidence an overall policy or failure of the investigative process generally.  However, it is clear that Parliament wished, and a fair society would demand, that the police keep an open mind while considering allegations.  A fair and impartial investigator is one who considers all avenues including the possibility that an allegation could be without merit.

The other complaint raised by Harvey Proctor is that he was named despite being assured he would not be.  That is a complaint echoed by Lord Bramall who, despite lifelong service to the UK, has suffered the ignominy of having to defend the false allegations of “Nick”.  These are allegations that are uniquely destructive to reputations. The position is not much not much improved even if the investigation concludes the allegation is false.  The nature of accusations of this kind demands greater sensitivity from officers than to release the name of every suspect arrested to the press.  A cynical person might be forgiven for thinking that some officers have adopted the fly paper approach to policing where a name is released in the hope that other accusers will come forward to bolster the first allegation rather than to scrutinise the allegation they have received for credibility.  The DSD case does not go so far as to demand that the police launch a full scale prosecution arising from every allegation and it is widely being used as an excuse to fail to apply the evidential test properly.

Blame does not lie wholly with the police.  One would think that ‘Nick’ could have been interviewed himself for offences.  However much can be learnt from this incident, the police would not have acted if they had not received an allegation.  Also, for the most part, the Government should leave policing to the police.  The police may have legitimate grounds for refusing to investigate an allegation or committing resources elsewhere and they should not have to act in fear of Government scrutiny.  The Crown Prosecution Service can take a more focused approach to the evidential test and bear in mind that it is a serious decision and use of power to put a citizen of the UK on trial.  Neither the police not CPS are the puppet of the Government in the UK and it is no excuse to say they are carrying out Government wishes.  It might appear that a much higher evidential test is applied when CPS consider whether to prosecute an accuser for perverting than a suspect for a sexual offence.

Sir Cliff Richard has demonstrably suffered both emotionally and in terms of reputation by being identified publicly as the subject of an allegation of sexual misconduct.  His distress was compounded by the police alerting the press to their intention to search his property in Berkshire in circumstances where there seems to have been no policing purpose to do so.  He has always maintained his innocence and has now been told he will not face charge.  Although it has been reported that he intends to sue both the BBC and Yorkshire Police force for the live broadcast of the search of his home and may well succeed, we should be alive to the fact that he is financially in a position to seek civil redress.  This course of action is not open to the citizen of average means.

In fairness to Parliament, the Home Office Affairs Committee has sought to address the issue of publicly naming suspects..  Its report published in March 2015 recommends anonymity for suspects until charge and a time clock upon police bail.  Anxiety was expressed by the Committee at the police apparent use of the ‘flypaper’ practice of arresting a person, leaking the details, then rebailing them at length in the hope that other people will come forward.  We must face the fact that a falsehood does not become a truth because it is repeated by a large number of accusers.  It is submitted that these recommendations should be adopted.

Lesley Manley

Jo Morris

www.churchcourtchambers.co.uk

0207 936 3637

 

 

 

 

 

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