A wasteland of embarrassment and social upheaval can be neatly avoided by following a single precept in life: Do not lie.

Sam Harris

Lying

I was fortunate enough to have worked my probationary period in a London borough which emphasised the rounded development of its officers, rotating fresh-faced and wide-eyed constables between response teams, community-policing, and most importantly, case-progression. It wasn’t until I exchanged the boots and headgear for a suit in my mandatory stint in a role dealing with secondary investigations (usually after the arrest of a suspect), that I could glean lessons (both the dos and don’ts) from the array of statements I had to read, written by officers either under their own name, or recording the facts as reported by complainants and witnesses. I have a strong contention that an officer’s training is not complete until they have worked in this role, for the experience of losing cases for the sake of missed opportunities in an investigation’s early stages acts, as only experience can, to focus one’s lens to view things in terms of evidence.

A statement, complete with a signed declaration in accordance with s. 9 of the Criminal Justice Act 1967 (CJA), is best understood as a letter to the court. It is a letter which says: If this matter comes to court, I will say what follows when called to do so. And yet, I often find myself having to explain this fact to complainants dismayed at having been called to give evidence despite having written at the end of their statement, “I am not willing to attend court or support a prosecution”. Such words should never appear, alone and as a mere endnote, on a statement, as though they would offer a complainant or witness sufficient justification to avoid court altogether. This is something that should always be explained clearly at the outset, along with the contents and implications of the declaration.[1]

This statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it, anything which I know to be false, or do not believe to be true.

Of all the crimes available for contemplation, it should not be surprising to find that among those taken most seriously by the courts are the crimes against justice itself. Such crimes include perjury, perverting the course of justice, intimidation of witnesses or jurors, and contempt. They are meta-crimes, which undermine the very system by which allegations of all other crimes can be examined, argued out, and the corresponding verdicts decided. A system of justice which acts without sufficient power to protect itself from such acts of subversion commands little respect, and a diminished respect for the institutions of law undermines the rule of law itself.

A now widely-shared article has been published by Buzzfeed, lamenting the plights of “vulnerable women . . . routinely prosecuted—and imprisoned—for false rape claims in the UK”. The authors, Katie J.M. Baker and Jane Bradley, write that their investigation “has found that UK authorities are exceptionally aggressive in pursuing women for lying about rape, prosecuting hundreds over the past decade.” They also note that Yvette Cooper MP described the contents of the investigation as “’very troubling’ and called on the CPS [Crown Prosecution Service] to make sure the guidance is followed so that ‘victims are not deterred from coming forward’ and ‘vulnerable women are not inappropriately prosecuted’.” Having glanced a critical eye over the article and having conducted some wider research, I’m afraid I have drawn rather different conclusions from those of the authors. I wish here to cast some light on the points made within the article and the tone pervading throughout it, and ultimately convince you that the charge that UK authorities are “exceptionally aggressive” in the instance under examination, does not hold up.

The article notes that there exists CPS guidance which stipulates the circumstances under which it would be appropriate to prosecute an individual where there is positive evidence that they have lied and consequently perverted the course of justice. Yet, in ever-evocative language, the authors call these “rules on whom to target and when”. The article continues: “This policy is meant to restrain law enforcement from going after people who did not make clear and malicious accusations, those who are young or mentally ill, or those who have experienced past abuse”, and it seems that the dichotomy in this list may have flown off the keyboard unnoticed. A portion of this amounts to whether an offence is made out, the rest amounts to a matter of mitigation. Furthermore, it is worth considering the latter factors—“those who are young or mentally ill, or those who have experienced past abuse”—and to wonder about what proportion of the UK’s prison population they must also apply to. The fact that such factors have been invoked to determine not sentence—as they would in almost any other offence—but whether a prosecution ought to be brought in the first place, is an indication of how tactful the authorities are on this point. The response given by a CPS spokesperson—that prosecutors treat such cases “extremely carefully”—should not be taken lightly.

The issues of terminology and precision announce themselves most loudly when the authors write that “At least 200 women in the UK have been prosecuted for lying about being raped in the past decade . . . Most of these women were sent to prison, dozens of them with sentences of two or more years.” Given the cherry-picking and overly-charitable reading granted to the convicts within the article (an assertion substantiated with any amount of further reading into the cases), and the article’s clear framing of these convicts as the real victims and the “aggressive” authorities as the real villains, abetted by the falsely accused (the actual victims), whose quotations appear to have been lifted at their most colourful in a clear effort to portray them in a certain light, It surprises me that the authors have not placed heavier emphasis on the plights “at least” two falsely-accused false-accusers. Thus, in writing that these 200 women have been “prosecuted”, I can only assume that the authors actually mean convicted.

While I lay less emphasis on the following point, it does not warrant omission. When the authors note that “Prosecutors went after teenagers, and women who reportedly had mental health issues, had experienced past physical and sexual assault, or were grappling with drug and alcohol addiction”, it is worth remembering that these individuals are convicted liars, and when there exist written factors which may grant some impunity from such a prosecution, it should hardly be surprising that these factors are often invoked in the defendants’ claims before conviction and after. Next, the authors claim, in their well-trodden evocative prose, that “Women were prosecuted even when they reportedly went to police only under pressure, quickly recanted, or never named their attacker at all.” And here I think it appropriate to emphasise the following point: that absent coercion or threats of violence, we are each sufficiently free to make our own claims and be accordingly accountable for them.

The authors then write that the CPS “prosecuted women who police were not sure had lied” and “In one instance detectives declined to charge the woman for making a false complaint [but] Prosecutors went ahead anyway.” In all but a handful of minor offences, usually where a suspect has admitted the facts in interview and a guilty plea is anticipated, police cannot make charging decisions. In the majority of cases, the police are obliged to prepare a file of evidence for the CPS to review and make a decision based upon it. I have written at length on previous occasions about the cultural issue within the police which breeds bias against suspects, and where the suspects in this instance would be the falsely-accused, I am not surprised that such biases may have clouded police judgement in favour of an individual against whom evidence of their mendacity has now amassed. There is no evidence or point of reason which suggests that the CPS are not better-placed to make such decisions with objectivity than the police.

Now I’m afraid it’s time for some numbers. The article later acknowledges that “False rape complaints can ruin lives” before claiming that “such cases are rare”, citing a study from the Ministry of Justice (MoJ) which estimates that “only 3% of rape reports were ‘perceived to be malicious’.” Given the care given to terminology within the paragraph in the study from which this statistic was lifted, let us take this 3% as being representative of false reports among all reports of rape. That is to say, in this 3% of reports there was some positive evidence that the allegation made by the complainant was untrue and “malicious”. The Office for National Statistics records the total number of allegations of rape reported to police for the year ending in March 2017 as 41,186. I have gone back to the year ending March 2008 and have totalled it, along with every year since including 2017, to yield the total number of rape allegations reported to police in the last ten years. This is the same period during which the authors note that 200 women have been “prosecuted for lying about rape”. The total is 216,173. 3% of this figure—the proportion of this total which the MoJ study would expect to be “perceived to be malicious”—equates to 6,485.

This statistic is worth emphasising. At a conservative estimate, 6,485 of the allegations of rape reported to police in the last ten years (for which data are available) are expected to have been false allegations, where the falsity is brought about my mendacity rather than mistake (a crucial point which I shall elucidate shortly). 200 convictions within the same period (or mere “prosecutions” if the authors are to be taken literally) amount to 3% of this figure. That is to say that only 3% of all of the allegations of rape reported to police, where those allegations were “perceived to be malicious” in accordance with a conservative framework, resulted in convictions. It is also of note that in contrast with almost any other offence type, such a report of a false allegation comes inherently with positive evidence, as it is only reported because of the existence of such evidence. I submit that no sober reflection upon these figures can justify the authors’ charge against the UK authorities on this point. Furthermore, it will be worth keeping this figure in mind when we turn to discuss conviction rates for the offence of rape, which are invoked within the article to argue that the practice of prosecuting mendacious individuals affects them adversely.

This is in fact a central point to the authors’ thesis: they argue that the practice of “aggressively” prosecuting liars for serious crimes is not in the public interest because it may dissuade victims from reporting their ordeals to the authorities. The article observes that “Britain’s approach stands in stark contrast to that of the US, Australia, Canada, and other European countries. Women in these countries do not typically face prosecution—let alone prison—for lying about rape, state prosecutors and experts said, because it’s not considered to be in the public interest.” (I will rest on my argument for the public interest in dealing robustly with crimes against justice which I made earlier.) It continues: “Norway’s public prosecutions authority, for example, said its priority is encouraging more victims to come forward and warned that ‘a low threshold for opening a false accusation case could counteract this goal’.” I agree wholeheartedly, as I have written before, that the underreporting of such crimes is a problem. I do not agree, however, that the implementation of measures which undermine justice (such as failing to prosecute individuals who commit such offences), is a suitable remedy. Moreover, the implication that such a “low threshold” exists runs contrary to the figures explained above, and is not supported by any evidence presented by the authors. The threshold for opening an investigation into such an offence is in fact higher than most because it requires positive evidence at its inception, and the threshold for prosecution is, as ensured by the guidance policy, higher than for most other offences.

The authors then cite The Mirror’s article, and note that “Only one reported rape in 14 results in a conviction”. This amounts to a conviction-rate of 7%, which while low (because of problems which do not have easy answers, perhaps best left to be explored on another occasion) is more than double the 3% calculated earlier for incidents of false reports in the strongest framing.

Next, again without taking care to write with precision, the article states that “Even if the authorities strongly suspect an allegation is false, there are many reasons not to charge the accuser with a crime.” False accusers are not charged because of suspicion, however strong. There has to be evidence, not just an absence of evidence that what they are saying is true, but the presence of positive evidence which refutes their allegation and demonstrates the requisite mens rea. Invoking the 2006 Duke University gang rape case—“one of the most infamous false accusations in US history”—the authors note that no action was taken against the false-accuser (note that I have not written “liar”), because prosecutors said she “might have believed ‘the many different stories that she [had] been telling’.”

Here, the authors appear to have overlooked a rather glaring fact distinguishing the false accuser in Duke University case from others. Unless the offence in question is one of strict liability, such as some motoring and licencing offences, the prosecution will always have to prove two things to convict on any criminal matter. They must prove the actus reus (the guilty act) and the mens rea (the guilty mind). As I have written in more detail previously, there are two ways by which someone can tell an untruth: mistake and mendacity. If the person telling the untruth believes it to be the truth, they are not lying; if they don’t they are. This is a simple enough point, but much turns on it. It is even explicit in the s. 9 CJA declaration: “. . . if have wilfully stated in it, anything which I know to be false, or do not believe to be true.” If an individual making a false allegation of rape believes it to be true, as is quite possible, they lack the requisite guilty mind to have committed the offence. I submit that it is rather telling that the authors overlooked this pertinent point.

The authors then quote Lisa Avalos, “an American law professor who studies false rape reports”, who seems to pay equally-short attention to the importance of precision in terminology when discussing such matters, benefiting from the results of equivocations which should not pass without notice. Writing in a 2014 paper, she claims that “In particular, the perverse incentive structure must be changed so that police are rewarded for investigating and prosecuting rape rather than punishing victims for reporting rape”, rather disingenuously failing to correctly call such prosecuted individuals complainants as opposed to “victims”. Avalos claims that the UK “seems to have a ‘unique appetite’ for prosecuting false allegations”, and notes that “she has not found another Western country that ‘encourages’ charges against suspected false rape reporters as a matter of policy”. The policy in question, as made quite clear by the authors and in contrast to Avalos’ assertion here, was actually implemented to discourage charges (or “restrain law enforcement from going after people”). She then reports that she has been unable “to find a case in which an American accused of falsely reporting rape has faced a jury trial”, and this point warrants a brief digression.

In January 2016, Daniel Holtzclaw, a former patrol officer with the Oklahoma City Police Department, was convicted of 18 charges (of 36 on the indictment) relating to rape, sexual battery, stalking and oral sodomy. Following one allegation of oral rape (“oral sodomy” in Oklahoma), made by a woman whom he had pulled over on the night before his initial interview, the sexual offences department launched an investigation. This investigation has been widely and rightly criticised for its failings and the biased disposition of the officers conducting it. Basic forensic protocols were not followed and standard tests to investigate the sources of DNA samples were not conducted. After the initial allegation, detectives contacted other women whom Holtzclaw had pulled over, and revealed the specific details of the initial complaint which might justifiably be argued to have led, or certainly influenced, the arising complainants. In Michelle Malkin’s investigative documentary on the case, Brent Turvey, a law enforcement academic and criminal profiler, frequently refers to the detectives in the case acting as “advocates [for the complainants] instead of investigators”.

Most pertinently, a complainant in this case, Shaneice Barksdale, admitted to having fabricated her allegations completely, telling detectives that she was “just trying to help the case”. In response to this revelation, the detective tells her that if he wasn’t so busy trying to find “real victims”, he would have arrested her. Turvey reacts by quite rightly suggesting that she ought to have been arrested there and then, elucidating another element of the public interest in such prosecutions by explaining that liars such as Barksdale will likely continue to lie when they perceive that they can do so wantonly and without punishment. A prosecution not only protects the individual against whom the present, false allegation has been made, it may also protect a future victim.

Malkin says: “Seven months after Shaneice Barksdale admitted lying to police about Daniel to help the case, she was finally charged with felony false-reporting of a crime, but it was dropped to a misdemeanour. In May 2016, she pleaded guilty, and got off with a short probation and a tiny fine, but she wasn’t the only known liar. Following a cringe-inducing interview with the investigating detectives, she continues: “Despite acknowledging that at least seven people, including one male, had lied in order to join the Holtzclaw-publicity-bandwagon and high-dollar civil lawsuits, police and prosecutors failed to charge anyone else but Barksdale with making false allegations.” Malkin concludes in stark contrast to Avalos or the authors, and quite rightly: “That’s alarming. False narratives aren’t harmless fibs. They can cost innocent people their freedom, even their lives.”

Avalos’ argument seems reliant on evidence that the UK’s conviction rate for reports of rape is adversely-affected by the practice of prosecuting the cases under discussion. As quoted earlier, she points to the United States for comparison, and notes that she knows of no such cases where those accused of such crimes have faced a jury trial. While I have failed to find a reliable source which provides conviction rate statistics for American rape reports online (despite how easy it is to find the FBI’s crime-by-race tables), another factor may be worth noting to explain a potential disparity.

Shon Hopwood calls it the “trial penalty” in conversation with David Rubin, during which he recounts the fascinating and inspiring story of how he went from convicted and incarcerated bank robber to law professor. On this point, he soberly points out the following: “I pleaded guilty to the five bank robberies and one gun charge. My sentence was 12 years, 3 months. If I had gone to trial and been convicted of the five gun charges, I would have received a sentence of 92 years and 3 months. The judge would have had to impose it” The policy of mandatory minimum sentences, in so successfully discouraging citizens from invoking their right to a trial by jury (only 3% of federal cases end up as trials)—“the only right that’s contained in [both] the Constitution and the Bill of Rights”—is perhaps an actual example of policy undermining justice. Holtzclaw, as it happens, is serving a sentence of 263 years.

If there is a disparity between the UK’s approach to this issue and the US’ (and there undoubtedly is), in demonstrating that it is the UK’s authorities who ought to be taking a long, hard look in the mirror, the work of Avalos, Baker and Bradley is all still ahead of them. While I am often critical of the UK’s judiciary on a number of fronts, not least its lacking defence of free expression, I am so from a stance of principle. The principle that the rule of law must be defended against subversion by crimes against justice lies at the core of the responsibilities of any democracy worth its name. The state’s function is to protect the rights of its citizens from infringement by others, and seldom more so than when individuals maliciously seek to use the instruments of the state against other individuals by lying so callously. It is only right that the state prosecute such cases, as to do any less would be to renege on this primary responsibility to its citizens.


 

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[1] I have amended this paragraph from its incorrectly binary assertion, after being pointed in the direction of the Criminal Justice Act 2003 s.116(2)(e) by Trainee Barrister C.J. Lee (@_C_J_Lee_).

There are occasions on which fear of repercussions, either for the complainant or witness or on behalf of another, may grant exemption from appearing in court to provide evidence.