Any extensive police investigation is freighted with suggestive details that color the detectives’ judgments about the suspects and defendants.

Lawrence Wright

Remembering Satan

As we look forward to the next cycle and enjoy what is left of this year’s festivities I have found myself sparing more than one thought for an individual for whom a certain collapse could not have come sooner. The prosecution case against Liam Allan, a student who had been accused of six rapes and six counts of sexual assault, crumbled spectacularly at his trial’s outset following his barrister’s examination of the complainant’s mobile phone data. The evidence, which had been secured and apparently examined by the Metropolitan Police consisted of tens of thousands of text messages, some of which had been exchanged between the complainant and defendant, and the pertinent few demonstrated that the former had been “pestering” Mr Allen for sex during the relevant periods at which the offences were alleged to have taken place. This evidence drastically undermined the credibility of the complainant, who had claimed that she “didn’t enjoy sex” and upon whom the prosecution case largely relied. Following the revelation of the data’s existence, prosecutor Jerry Hayes offered no evidence and Judge Peter Gower stopped the trial at Croydon Crown Court, acquitting Mr Allan, and thereafter ordering an inquiry at the “very highest level” of the Crown Prosecution Service (CPS) and a review of the Metropolitan Police’s disclosure of evidence.

Mr Hayes, speaking to the BBC following the courtroom drama, said that a “massive, massive miscarriage of justice” had been avoided. Given that Mr Allen had been charged with the dozen offences whilst the undermining evidence sat undisclosed and had spent two years of his life on bail, however, I consider it safe to claim that a massive miscarriage of justice had already taken place. The prosecutor categorised the failure as amounting to a matter of competence, or more precisely, a lack thereof. He said: “there’s no question of lying or misleading; it’s just sheer incompetence, I’m afraid”, before adding that “the CPS and the police and all of us in the criminal justice system are under tremendous pressure because we’re running out of money. This is a system which is not just creaking; it is about to croak. And if we have any more treasury cutbacks, there will be more cases like this.”

Prosecutor Jerry Hayes is former Conservative MP for Harlow, Jerry Hayes. And as such, sincerely intending the man no disrespect, I shall extend to him the courtesy of noting his high office on two counts by acknowledging his ability, both in the courtroom and in parliament, to be eloquent and persuasive in pressing the facts of a circumstance to his own—I am sure noble—ends. But Mr Hayes’ conclusion in his ascription of blame in this case does not seem to me to be entirely consistent with the premise which he had set out. He had provided his recollection of the conversation which had taken place between the investigating officer and himself, following the request from his opposite number for the mobile phone examination data. “I spoke to the officer in the case who’s responsible for disclosure”, he said, “and I said, ‘Look, have you got it?’ — ‘Yes I have, but It’s clearly not disclosable.’  — ‘Why’s it not disclosable?’ — He says, ‘Well, you know, it’s very personal matters’. I said, and these are the two tests, ‘Is there anything on that disc which could undermine the prosecution case or assist the defence?’ He says, ‘no’. But I wasn’t happy about that . . .”

My argument here is that we cannot solely ascribe blame in this case, nor others like it, to “sheer incompetence”. There are more factors at play here than competence, and consequently, there are some problems which will not be solved by simply allowing more money to flow into the relevant budgets. Having considered my position above, I believe that it might serve me well to declare my interest at this point. As a serving detective constable, formerly of the Metropolitan Police, and currently grinding at the coalface within public protection at one of the nation’s other metropolitan forces, investigating a wide spectrum of allegations of criminality under the broad umbrella of domestic abuse, I would like little more in my professional life than to see my department and others funded and resourced in accordance with the exponentially-increasing demand for its services. Modern investigations, largely due to the technology now available to the police and the parties involved in any allegation, yield more viable lines of enquiry than ever before. As such, what were previously deemed as simple cases have become more complicated, and the requirements of time and resources to effectively investigate those cases have naturally increased accordingly. That being said, I believe that the factor which we should be addressing when considering cases such as those of Mr Allen is a far more fundamental one which drives right to the core of what police work is all about. To argue that the failure in question turns on a matter of competence is to claim that such failures would not occur if the police did their job better. My case here is to argue that the police need to be reminded not just of how to do their job, but of what their job actually is.

I have over the years developed a rather (dare I say it?) impressive track record for obtaining accounts from suspects who have embarked, either purely of their own volition or following advice from an attending solicitor, upon a “no comment” interview. I keep in my back pocket a now well-rehearsed monologue in which I inform my interviewee that my job is, contrary to what they may believe or what their previous experience in such rooms dictates, not that of the prosecution, but that of an impartial and independent investigator. I declare to them that I neither work for the complainant nor the officer(s) who effected their arrest. I inform them of the stipulation within the Criminal Procedure and Investigations Act, which dictates that “I, as the investigating officer, should follow all reasonable lines of enquiry, whether they lead towards you, or away from you as a suspect”, and I draw their attention to the word “reasonable”, suggesting that as the suspect in the case, they might have the best idea as to the location of the evidence in the case which helps them, be it a witness, a camera, or a text message, and that they could meet me halfway by simply pointing me in the right direction. I tell them that if they declare something during the interview which yields a line of enquiry for such evidence, so long as it is a reasonable one, I will conduct that enquiry and search for that evidence. I remind them of the caution’s crux and lay out what statutory defences they have available for what may become their indictment, and then I invite them not to squander their opportunity to declare one before their credibility is diminished by an adverse inference from their silence.

I do not consider myself to be a particularly capable actor, and as such, I grant credit for my successes in persuading suspects to abandon their silences with me to my authentic delivery for another reason: sincerity. I genuinely believe in the contents of my declarations, and mean it when I tell my suspects that I will search for the evidence which helps them. As I wrote in a previous essay on a similar subject, “That a detective should seek to find evidence that a complainant’s allegation is false, should not give such automatic rise to a sense of discomfort as it does. When talking about evidence, it is a truism that no matter how hard you look, or for how long, you will never find that which isn’t there. And a far stronger case for the prosecution (positive evidence and other things being equal), is one where such steps have been taken honestly by the investigating officer, and [where] despite their best efforts, no evidence to disprove the complainant’s account, or prove the suspect’s innocence, has been found.”

Before proceeding I feel it worthwhile to offer a note on our general discourse on topics such as our present one. These discussions and many others (for reasons that are fascinating but do not warrant the significant digression which they would demand here) tend to carry a polarising effect. We find ourselves fallaciously inferring dichotomies where none exist. For example, spend any time perusing the comments under the Daily Mail article concerning the case of Mr Allen, and you will find calls to have the complainant named, prosecuted and imprisoned. This speaks of a false yet perceived dichotomy between a conviction-producing complainant’s account and prosecution case, and perjury. The pertinent text messages in Mr Allen’s case, found by Barrister Julia Smart on the night following the trial’s adjournment, consisted of the complainant discussing “fantasies of violent and extreme sex, including being choked during intercourse” and one concerning sex with Mr Allen, in which she said: “It wasn’t against my will or anything.” These text messages alone constitute damming and indeed fatal blows to the prosecution case, but it does not follow that they would alone constitute sufficient evidence for a prosecution against the complainant for perjury. Occasionally, cases arise where evidence not only fails to corroborate a complainant’s account, but it actually disproves it, but such cases are understandably very rare. I have wondered whether our perception of this false dichotomy has been abetted in some way by the term “false allegation”. The term is literally the accurate one in identifying or describing an untrue allegation, though I believe that as its use has proliferated, it has amassed other connotations of mendacity in its gravitational wake.

Another false dichotomy arises in framing the cause of the erection of the case against Mr Allen (not the collapse, as this was a good thing) as being either a “cockup or conspiracy”, as it was in CrimBarrister’s excellent piece on this case and its preceeding warnings and implications. But before we turn to discuss what I submit to be the pertinent factors, it is worth advocating a remedy to our problems with polarisation in our discourse. I have found Douglas Murray’s style of political argumentation to be thoroughly refreshing in this climate due to its charity. In The Strange Death of Europe, and granted, on a very different subject, he writes: “Had Chancellor Merkel, her contemporaries and her predecessors thought this all through before transforming their continent, they could have consulted Aristotle among other great philosophers of Europe. From him they would have learnt why these questions [on migration] seemed so complex. They were trying to weigh up the balance not between good and evil but between competing virtues: on this occasion ‘justice’ and ‘mercy’. When such virtues appear to be in contravention, Aristotle suggests, it is because one of them is being misunderstood.” Murray expanded on this concept in conversation with David Rubin, saying that “if you have the discussion on those terms, between competing virtues, not being good vs. evil, right vs. wrong, Churchill vs. Hitler, me good vs. you Nazi, then you might be able to get somewhere in this discussion.”

I submit that it would accordingly serve us well not to limit the scope of our understanding by assuming that the police must be either incompetent or evil. This too, is a matter instead of competing virtues: in this case, ‘justice’ and ‘compassion’. And here too, Aristotle was right in that one of these virtues—the latter—has been misunderstood. Let us recall that according to Mr Hayes, the investigating officer, in response to the prosecutor’s crucial question concerning whether the phone data contained anything which could undermine the prosecution or assist the defence, said “no”. This answer carries an implication that the officer knew what the contents of that download were, otherwise they could neither have answered yes nor no; they would have had to say: I don’t know. By this fact alone, we may dismiss the possibility that the pertinent variable is one of competence. No matter how defective a detective is, they know whether they have reviewed an item of evidence and they know whether that evidence undermines the prosecution’s case. But we needn’t invoke wickedness or corruption to explain this; instead, we can understand this as a manifestation of a misunderstanding of compassion.

The Mail notes that Ms Smart, Mr Allen’s defence counsel, “says non-disclosure is a constant battle for defence barristers – especially in rape and sexual assault cases where the drive to remedy past failings and push up woeful conviction rates has, in her view, created a ‘sales target’ culture where ‘believing the victim [complainant!]’ now trumps objective and thorough investigation.” Here, Ms Smart has made a charitable and yet shrewd observation. The police have a clumsy habit of acting like a pendulum, swinging from one error to its equally erroneous opposite. Furthermore, “She argues that the police and the CPS are, in her experience, failing in their responsibility to investigate every claim objectively and disclose vital evidence which could assist the defence while ‘cherry picking’ from material they hold to strengthen the prosecution case.” Incidentally, as a further nail in the coffin of the “sheer incompetence” hypothesis, it is worth pondering very briefly if this explanation is at all consistent with the demonstrable fact that these failures in disclosure only ever go one way. I doubt very much that prosecutors are in a habit of finding themselves shocked to learn that the investigating officer has withheld evidence which would be utterly damning to a defendant or their defence. And yet, we needn’t ascribe nefarious motives to the police to understand that these calamities can occur because of politics. The loudest voices in this debate call for the police to believe allegations of rape and sexual assault so as to encourage more victims to come forward. Judges are condemned amid cries of “victim-blaming” for offering sober advice to potential victims who might choose to protect themselves and diminish the chances of becoming actual victims. Crime managers employ terms such as “positive outcomes” which connotatively presuppose that a charge following an investigation is the right outcome. Official crime reports and investigation logs refer to suspects as “offenders” before conviction, charge or even interview.

It is a travesty that Mr Allen (and he is far from alone on the list of individuals in his predicament) was charged at all. When the CPS were first approached with the case summary, and certainly once the initial file was prepared, the police were obliged to notify the prosecution of any evidence which undermined its case or assisted the defence. Had the officer in the case executed their impartial duty and informed the CPS of the existence of the pertinent material, I cannot imagine that the case would have been brought before the courts at all. As the police have become more “victim-centred” in their approach, the other virtue has been compromised time and again in good (but misplaced) faith. Justice must not be compromised, and any notion of compassion must be conceived so as not to be in a zero-sum game with it. Believing victims as an end in itself serves neither justice nor compassion, but what is more is that it profoundly undermines both. The police must be impartial and balanced, but to assist them in remembering what their role is and achieving this, we must loosen the thin fingers of our vogue politics’ stranglehold on their independence.