European Court of Human Rights

 

 

Communicated on 27 October 2014

 

FOURTH SECTION

Application no. 73521/12
R.A.
against the United Kingdom
lodged on 19 November 2012

STATEMENT OF FACTS

The applicant, Ms R.A., is a British national, who was born in 1982 and lives in Telford. She is represented before the Court by Woodfines Solicitors, a firm of solicitors based in Milton Keynes.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.  The background facts

(a)  The allegation of rape

On 28 November 2009 the applicant dialled 999, the emergency assistance number in the United Kingdom, and reported to the police that she had just been raped by her husband. She said that she had also been raped by him on two earlier occasions. At the time she was clearly in an extremely distressed state. Police officers attended and she was quickly relocated to a women’s refuge with her four children. Her husband was immediately arrested. He denied the offence.

The following day the applicant was examined by a forensic medical examiner and was also video interviewed. She gave a detailed account of the rapes. Her husband was interviewed and maintained his denials. He was charged with six counts of rape and remanded in custody.

On 30 November 2009 the applicant’s husband was brought before the Magistrates Court and remanded in custody. A few days later he made an application for bail to the Crown Court. This was refused.

On 10 December 2009 a preliminary hearing took place. The applicant’s husband was released on conditional bail, with a specific condition that he should not directly or indirectly contact any prosecution witness. This included the applicant.

During the course of the police investigations into her allegations, the applicant was assisted by a Family Crisis Centre and referred to her local Social Services. She was in telephone contact with Victim Support. In connection with possible counselling, she was advised to seek assistance from her medical practice.

(b)  The withdrawal of the rape complaint

Over the Christmas period, in breach of bail conditions, consensual sexual intercourse took place between the applicant and her husband.

On 7 January 2010 the applicant contacted the police to withdraw her complaint against her husband. A further video interview was conducted with her. She made clear that she wished to withdraw her complaint of rape and that she did not want to attend court. She indicated that she wanted to put everything behind her and move forward for her own sake and the sake of her children. She did, however, confirm that her relationship with her husband had ended, and she confirmed that all of her allegations were true. It was explained to her that, even if she wished to withdraw the complaint, the case might still proceed and that, if it did, she might be required to give evidence. In answer to the specific question why she was withdrawing the complaint, the contemporaneous notes record that “[she] states that nobody has put any pressure on her”. She confirmed that she had “engaged with Victim Support and received emotional support. The ... Family Crisis Centre has also been involved”.

On 14 January 2010, following a case conference to assess this development, the applicant was informed that the prosecution would proceed. She was invited to a meeting at the Crown Court on 18 January when a plea and case management hearing was due to take place.

On 18 January 2010 the applicant’s husband pleaded not guilty and the trial was fixed for the week of 4 May.

In the meantime the applicant met the prosecution team at the Crown Court. She admitted to them that she had been in contact with her husband over the Christmas period and had had sexual intercourse with him, consensually, on a number of occasions. She signed a statement outlining the contact which had taken place. She pleaded with the police not to arrest him, notwithstanding that he was in breach of his bail conditions, as this would make the situation worse. She said that everything had been done for her children so they could enjoy their Christmas. Her husband’s solicitor was informed of the breach of bail and told that in the circumstances, instead of being arrested, he would receive a warning.

On 23 January 2010 the applicant telephoned the police and said that she had received a series of abusive text messages from her husband. Later that day, she sent a police officer a text message to the effect that she had had a very low day, having found out that her husband had been seen with another woman. She went on that she had complained about her husband’s texting in order to spite him. There was no excuse for what she had done but it had been a “very tough few days” for her. She had calmed down and had had time to think about it. She was sorry for having done something so stupid. When this text message was followed up by the police, the applicant admitted that she had not received any text messages from her husband and that she had made up the story to get back at him. The police began to have concerns about her reliability as a potential witness at her husband’s trial.

(c)  The retraction of the rape allegation

On 1 February 2010 the applicant’s husband was involved in a road traffic collision. It was believed that his front seat passenger was the applicant. The collision occurred in an area from which he was excluded by his bail conditions, and his contact with the applicant constituted a further breach of his bail conditions. In view of the earlier warning, on 5 February 2010 he was arrested and remanded in custody.

On 7 February 2010, while the applicant’s husband was in custody, the applicant telephoned the police asking to speak to the investigating officer. When the officer telephoned her back, she immediately said:

“That’s it, it’s over, what is going to happen if I now say I made it all up, I have lied about the rapes. I lied because [my husband] would not let me go and work in the place again, I wanted to work there as I liked the money.”

She was referring to work in a massage parlour.

According to the police officer, during this conversation the applicant was aggressive in her manner. The officer explained in clear terms that she needed to think very carefully about what she was saying. She had to be sure that what she was saying was in fact the truth. The applicant said that she was not bothered about what happened to her and did not care if she was charged or dealt with for “whatever offence”. She was told that the Crown Prosecution Service would have to be consulted and that when a decision had been made she would be told.

On 9 February 2010 the applicant’s husband’s application for bail was refused.

On 11 February 2010 the applicant attended the police station voluntarily. She said that the rape allegations were lies which she had made up. The police warned her of the potential seriousness having made false allegations of rape. She was given legal advice and cautioned. A solicitor attended the police station to represent and advise her. The applicant provided a written statement to the police. She maintained that her allegations were false. She explained her lies on the basis that her husband would not let her work in the massage parlour. There were financial pressures and she felt she had to get back to work quickly and earn some easy money to try and sort out the debts.

On 12 February 2010 the applicant’s husband appeared at the Crown Court. In light of the applicant’s retraction, the prosecution had no alternative but to offer no evidence against him. Not guilty verdicts were accordingly entered. He was released from custody.

2.  The police investigation and criminal proceedings

(a)  The investigation

A criminal investigation subsequently commenced into the applicant’s admission that she had made a false allegation of rape against her husband.

On 16 April 2010 she was arrested. A tape-recorded interview in the presence of her solicitor took place. During the interview, the applicant said that she was never raped by her husband. She was asked to explain why she had made the false allegations. The police discussed with her whether her husband had put emotional pressure on her to withdraw the allegation, whether she was concerned about the position of the children and whether her support network was limited. She was asked whether she had received sufficient support from outside agencies. The police told her that if the allegations were true and the retraction was in fact a lie, she could tell them about it. She insisted that the allegations were untrue. She said that she had enjoyed lots of support and denied that she was withdrawing the complaint because of lack of support.

On 23 June 2010 the applicant was charged with perverting the course of justice on the basis of her false allegation against her husband. She was granted bail. A preliminary hearing was fixed for 23 July 2010.

The applicant’s then solicitor advised her that the police remained “unconvinced” that her original complaint had been a false one. He believed that the police had charged her with an offence with some reluctance. In a letter to her, he noted that she appeared to be in full command of her faculties and he advised her that the police were “supposed to work hard to punish those who make false allegations”, but that they might also consider that they were “unfairly treating someone who was in fact a victim”. The applicant was later advised in writing that a custodial penalty would normally follow conviction for perverting the course of justice but that her ongoing relationship with her husband and children would be a significant factor in the sentencing decision.

Shortly before the applicant’s appearance in the Crown Court on 23 July, her solicitors informed the court that they might be in difficulty on that date because she had failed to respond to letters. In explanation, they said that she was “extremely distracted by the turbulence in her life, to a very unusual degree, and she previously failed to keep in contact whilst on police bail, but nevertheless answered bail”. The preliminary hearing was adjourned and relisted on 30 July.

Her solicitor subsequently briefed counsel. The brief to counsel suggested that the officers involved in the case clearly believed that the allegations made by the applicant in November 2009 were true, and that they were guessing at the motive for her subsequent assertion that she had told lies. Counsel was expressly instructed that it did, however, appear to be accepted “at least that there is no improper pressure from [her husband] upon her”.

When counsel met the applicant, she at first she told him that she planned to plead guilty to having made the false allegation of rape. Counsel was sceptical and advised her on the length of the inevitable and immediate custodial sentence that she would receive if she pleaded as she planned. On direct questioning she admitted that she had indeed been raped and that the allegations were true. Counsel advised the applicant that if the allegation of rape was true, it would not be right to plead guilty, even if the applicant was under pressure to withdraw the allegations because she wanted to be with her husband. He advised her that she needed to think about the position and did not need to make any decision on that day. He repeated his advice that she should tell the truth, saying “stick with the truth”. He also advised her that a family lawyer should be instructed to consider a non-molestation order to prevent her husband contacting her and the children.

On 5 August 2010 the applicant contacted the police. She said that she had come to her senses and that she had in fact been raped.

She then consulted family lawyers and they prepared her sworn statement dated 16 August 2010 for use in proposed proceedings for a non-molestation and occupation order at the County Court. In the statement she asserted that she had been subjected to domestic abuse and had been raped on three occasions. As to her reason for previously retracting her allegations, she said that her husband had “persuaded” her to do so on the basis that if she retracted, “any punishment [she] would suffer would be considerably less than that he would be subject to”. She added that her husband was able to control her.

On 31 August 2010 the applicant was arrested and, with her solicitor present, interviewed. She said that she had been told by someone, probably her husband’s sister, that if she said she had lied about the rape she would not go to prison; as a single parent, would receive a suspended sentence. However, when she had spoken to her counsel, he had told her that she would receive a sentence of twelve to eighteen months’ imprisonment. The significance of this had become clear. She had decided to be truthful and to accept that she had lied when she had said that the rapes had not happened. She was asked why she had not turned to Victim Support. She said that she had, and that when she had explained that her husband had changed and was being very good with her, she had been advised to be very careful because he would revert to his old ways. She was asked the direct question why she felt she could not speak to the police and responded that she did not know. She continued:

“The only reason why I said I’d lied and made it all up was because I had pressure put on me and I’d been advised by somebody that if I said I was lying, I wouldn’t be sent to prison because I am a single mum and I’ve got 4 children. That’s the reason why I said I was lying, because that’s what I presumed would happen. I was told I would get a suspended sentence as they wouldn’t put the kids in care.”

She was asked:

“When [your husband’s] sister came up to the house, whose idea, who first started sort of suggesting things to try and help with the situation, because as you admitted, you weren’t sort of coping ...?”

She replied:

“Well I thought about it, and I mentioned it to her on that day, and I said that the only thing that was holding me back is the fact that I am scared that if they arrest me, the kids and that’s when she said ‘don’t worry about the kids’ ...”

She was asked whether anybody had put her under pressure to phone that day and say that she had lied. She responded:

“I don’t know whether it was pressure or not. Put it this way, [my husband’s sister] wasn’t a regular visitor to the house and that visit was almost a bit out of the blue and I haven’t spoken or haven’t seen her since.”

She was asked directly whether her husband had put her under pressure to withdraw her allegations when she first did so. She responded:

“We discussed it and our thinking was that if, because I had asked my solicitor how long do you think [my husband] would get inside and they said and I know [my husband] has told me this since, that his solicitor had said more or less, he’d get about 10 years, and serve half. Then we discussed about me ringing up and saying that I was lying and like he’d said and [his sister] said as well, that it would be a suspended sentence for just like 2 or 3 months. And then me sitting there stupidly thinking right, what’s best for the kids, Daddy missing for 5 years or Mummy missing for 3 months and that’s where them, yeh, ...”.

The interviewing officer interrupted, observing:

“So you say, ‘our thinking’ ...”

The applicant responded:

“Sorry, me and [my husband] would sit down and discuss this and I remember saying to him ‘look, Mummy disappearing for 2 or 3 months is better than Daddy disappearing for 5 or 6 years’. And yeh, he wasn’t happy with the idea, but he didn’t stop me.”

With the applicant’s consent, her solicitor provided the police with a copy of the statement made by her in support of her non-molestation application proceedings which had not yet been started. He suggested to the police that her personal circumstances made her particularly vulnerable.

On 16 September 2010 the applicant was charged with an additional offence of perverting the course of justice by falsely retracting a true allegation of rape. Her solicitors obtained her authorisation to be provided with her medical records with a view to obtaining a psychiatric or psychological report.

On 20 September 2010 the applicant’s husband was arrested following an incident that day in which he forced entry into her home at about 5.30 a.m. She told her solicitors that she had not been assaulted, but that the “whole process put her in fear”. She called the police and her husband was arrested. She agreed to make a witness statement about the incident. Her husband was remanded on bail, with conditions that he should not contact her directly or indirectly.

In due course the applicant’s solicitor obtained her medical records. Apart from a brief mention of post-natal depression around seven to eight years earlier, he could find no reference to depression or any other psychological or psychiatric problems. He did not, therefore, instruct a medical report into the applicant’s thinking during the relevant periods, preferring to wait until the issues had been discussed further with counsel.

(b)  The partial guilty plea

On 14 October 2010 a conference took place with counsel. The applicant decided to plead not guilty in respect of the first indictment which alleged the making of a false allegation of rape but guilty in respect of the second indictment which alleged the making of a false retraction of the allegation. Counsel advised that this meant that there would be a much greater chance that a custodial sentence would be avoided. He advised on the evidence to be put together for the purposes of the Pre-Sentence Report.

On 15 October 2010 at the Crown Court, in accordance with her decision the previous day, the applicant pleaded not guilty to the first indictment and guilty to the second indictment. The prosecution offered no further evidence on the first indictment and a not guilty verdict was entered in respect of that indictment. A Pre-Sentence Report was ordered.

(c)  The sentencing stage

The applicant’s solicitors sought information from the Crown Prosecution Service as to whether there had been any investigation of pressure placed on her to retract the original allegation, and about the state of the investigation into her husband’s actions when he forced entry into her home on 20 September 2010.

The Pre-Sentence Report was completed on 4 November 2010. It gave the applicant’s account of her marriage, which she said had always been “turbulent”. She described her husband as “controlling” and “violent”, and claimed that the relationship was marred by a history of abuse. Although she had felt intimidated by her husband, she had tried to keep up a normal façade for the sake of the children. In her account, she talked of extreme financial difficulties and gaining employment at a massage parlour to alleviate them. She told the writer of the report that the nature of her work had caused immense difficulties between the couple. As a consequence, her husband’s attitude to her had worsened and at every opportunity he had degraded and tormented her in relation to the employment she had undertaken. She had left the employment after two days’ work. Although she had wanted to escape from the marriage, she had felt compelled to stay because of threats by her husband to harm himself if she left, the emotional strain and lack of finances and isolation.

The applicant’s explanation for the retraction of the allegation of rape was that after her husband had been arrested and remanded in custody she had felt immense guilt. She had decided that taking divorce proceedings would be punishment enough for him and so she had withdrawn the complaint. She had been in an emotional state and very confused at the time. Although she had suffered years of abuse by her husband and was frightened of him, she reported that because of her feelings of guilt, low self-esteem and wanting her children to have a family Christmas, she had continued communicating with him. She had felt under immense pressure from her husband to retract her original statement and she had agreed to do so because of fear of repercussions from him. The report recommended a twelve month suspended sentence order.

On 5 November 2010 at the Crown Court the Pre-Sentence Report and counsel’s submissions were considered by the judge. He made allowance for the applicant’s guilty plea and sentenced her to eight months’ imprisonment. She was taken into custody.

3.  The appeal against sentence

The applicant lodged an immediate appeal against sentence. Her appeal was expedited and heard by the Court of Appeal on 23 November 2010. The court granted her appeal. In its judgment, in which the applicant was anonymised, it began by explaining the public interest in the prosecution of crime:

“19. It is worth emphasising that a complaint that an individual has been the victim of crime is not, and never has been, merely a private matter between the complainant and the alleged perpetrator of the crime. Every crime engages the community at large. There is a distinct public interest in the investigation and, if appropriate, the prosecution and conviction of those who have committed crime. Precisely the same considerations apply to every witness to a crime. An unconvicted criminal is free to continue to commit crime and to add to the list of his victims, as well as to escape justice. Therefore, perverting the course of justice is not confined to making and pursuing false allegations or giving false evidence, which is always a very serious offence. It extends to the retraction of truthful allegations or the retraction of truthful evidence. These offences, too, can sometimes be, and should be treated as, offences of great seriousness.”

However, the court recognised that the difference between the culpability of the individual who instigated a false complaint against an innocent man and the complainant who retracted a truthful allegation against a guilty man would often be very marked. It noted:

“20. ... Experience shows that the withdrawal of a truthful complaint of crime committed in a domestic environment usually stems from pressures, sometimes direct, sometimes indirect, sometimes immensely subtle, which are consequent on the nature of the individual relationship and the characters of the people who are involved in it.

21. Where a woman has been raped, and raped more than once by her husband or partner, the father of her children, the man in whom she is entitled to repose her trust, those very actions reflect, and are often meant to reflect, manifestations of dominance, power and control over her. When these features of a relationship between a man and a woman are established, it is an inevitable consequence that the woman who has been so ill-treated becomes extremely vulnerable.”

The court continued:

“22. Of course it is better for a truthful complaint to be pursued, but if the proposal that it should be withdrawn is not accepted, leading to a positive retraction and admission that the original truthful complaint was untrue, and the complainant is then prosecuted to conviction, the sentencing court, when assessing culpability, should recognise and allow for the pressures to which the truthful complainant in such a relationship has been exposed, and should be guided by a broad measure of compassion for a woman who has already been victimised.”

It therefore concluded:

“23. This is an exceptional case. We hope that it will be very exceptional for cases of this kind to be prosecuted to conviction in the Crown Court. The sentence for perverting the course of justice normally is, and will normally continue to be, a custodial sentence. That is a requirement of the administration of justice and, where possible, the reduction of crime. But this was not such a case. We have come to the conclusion that the appropriate sentence in this case is a community sentence with a supervision order for a period of two years.

24. The appellant will now be entitled immediately to be released. We add that we are extremely concerned about the situation that will face her when she returns back to her home. That provides not the slightest basis for keeping her in custody and it would be quite wrong to do so. We understand that she intends to go to live with her sister and that she will take such proceedings as are necessary and appropriate in the family courts in order to ensure that the arrangements for her four children are the best that can possibly be devised. That litigation should be started as soon as practicable. The court should give every expedition that it can to resolving this extremely difficult and convoluted case to the best advantage of the children.”

4.  The reporting of the conviction and subsequent developments

The applicant’s conviction was widely reported. The media and others agreed to refer to the applicant as “Sarah” to protect her anonymity.

On 16 December 2010 The Guardian newspaper published an article about the conviction. The article began as follows:

“The director of public prosecutions, Keir Starmer, has ordered a change in the way government lawyers deal with cases against women who withdraw rape claims, acknowledging ‘failings’ in the handling of a recent victim.

In his first public statement since a woman was freed from jail last month after being convicted of perverting the course of justice for retracting a rape claim, the chief prosecutor in England and Wales has said that from now on, similar cases will require his personal approval.

Writing in the Guardian, Starmer has admitted that prosecutors have failed to ensure justice, and need to improve their handling of retraction cases.

He said: ‘There have been cases recently where ... I do not consider justice was done or was seen to be done. Apologies and legal explanations offer scant comfort to a victim and the public are rightly reluctant to place their trust in public authorities unwilling to accept their failings.

‘We need to work on our approach in retraction cases. From now on, my approval for charging will be needed in these cases and we will monitor them closely. If the victim has decided to withdraw a rape allegation, we must explore the issues behind that, particularly if the victim is under pressure or frightened.’

...”

On 10 February 2011 the Director of Public Prosecutions issued interim guidance to the Crown Prosecution Service in such cases and launched a public consultation to consider the guidance.

On 7 July 2011 the Crown Prosecution Service published revised police guidance in relation to prosecutions concerning rape and domestic violence called “Guidance Perverting the Course of Justice - Charging in cases involving rape and/or domestic violence allegations” (see “Relevant domestic law and practice” below for details). The guidance applies to cases where a complainant of rape or domestic violence makes a false allegation, retracts an allegation or withdraws a retraction.

5.  The appeal against conviction

The applicant subsequently instructed new solicitors and lodged an appeal out of time against conviction.

(a)  The grounds of appeal and the respondent’s submissions in response

In her grounds of appeal, the applicant claimed that her guilty plea had been equivocal and had ignored her defences on law of duress and coercion as well as her human rights. She contended that the original criminal proceedings should have been stayed as an abuse of process given the recently published guidance by the Crown Prosecution Service. She also referred to the comments of the Director of Public Prosecutions that hers was a case where justice was neither done nor seen to be done and to the comments of the Court of Appeal as to the exceptionality of her case when upholding her appeal against sentence.

In its response, the prosecution did not seek to raise any positive argument in support of the safety of the applicant’s conviction. They explained that the acceptance of the guilty plea in respect of the false retraction implied acceptance that the rape allegation had been truthful, and continued:

“21. Taking this into account and applying the criteria now contained in the new policy guidance, and having regard to the particular circumstances raised on the applicant’s behalf (in particular the content of the applicant’s sworn statement dated 16^th August 2010) it is conceded that the applicant would in all likelihood not have been prosecuted for this offence had her case been considered today.”

The response concluded:

“34. The applicant is in a rare category in relation to which the argument advanced on appeal is not simply a change in policy, but relies upon the undisputed fact that the policy in question was changed in large measure as a result of the circumstances of the applicant’s case. The prosecution of the applicant is, it is submitted, to be regarded as an example of a case where justice cannot be said to have been seen to be done.”

(b)  The applicant’s witness statement

In a sworn statement prepared for the purposes of the appeal, the applicant discussed the period between her husband’s release from prison on bail and her first claim that the rape allegations were false, explaining:

“Sometimes he would be so upset that he appeared to be having a nervous breakdown. Thinking of it now it was all a bit over the top, but at the time it made me feel all the more sorry for him. Although he had done what he had done to me, by this time I was feeling responsible for all the upset and worries that he had about missing his children and being frightened of going to prison. The children were upset because they couldn’t see their father and it was basically all my fault.”

Later in the statement she said:

“... I had tried to withdraw the complaint but that the Prosecution wouldn’t drop the case. [My husband’s sister] asked quite calmly what would happen to me if I told the police it was all a pack of lies. I told her I wouldn’t do it because it would mean me going to prison and leaving my children, but Tracey said they wouldn’t put me in prison because I had 4 children ... She was present when I made the telephone call to [the police].”

Referring to events on 11 February 2010, when she had attended the police station and insisted that the rape allegations were false, she said:

“I can only say that when I was in that mental state I didn’t think about what would happen to me but only if the case didn’t proceed [my husband] wouldn’t have to be in prison, my children would have their father back and I would have some help.”

She explained that when her husband was away she had “simply felt lost without him”. She went on:

“All I can say now is that I would have said anything at that time to make it all go away. I know it makes me sound quite calculating but I was really saying whatever I could to produce the result I wanted.”

(c)  The psychology report

The applicant’s solicitors instructed a psychology report. The report, dated 12 January 2012, concluded that the applicant presented with post-traumatic stress disorder (“PTSD”) arising out of abuse perpetrated against her by her former husband. The author of the report had “no doubt” that the applicant was suffering from PTSD at the time of her retraction of her claim of rape.

(d)  The response by trial counsel

On 3 January 2012 the applicant’s counsel at trial provided a response to her grounds of appeal. He expressly disagreed with the contention that the applicant’s plea was equivocal or ignored available defences. He explained that the defence of duress had been discussed with her in conference on 14 October 2010 but that he had advised against it, since the applicant had not made a simple withdrawal statement but had, over a lengthy period of time, repeatedly lied to the police. He noted that, despite the police officers’ apparently sympathetic and understanding approach and the other support and assistance made available, she had maintained her false story over a six-month period notwithstanding several opportunities to backtrack. He therefore did not believe that it could be plausibly suggested that her will had been overborne or crushed, as required to sustain a defence of duress.

(e)  The Court of Appeal’s judgment

The applicant’s appeal against conviction was dismissed on 13 March 2012 in a judgment in which she was anonymised. Summarising briefly the facts of the case, the court observed:

“3. The appellant was therefore convicted of making false retractions of a most serious allegation of sexual crime when she would otherwise have been in a position to assist the Crown to prosecute the perpetrator to conviction. On this basis she deliberately enabled her husband to escape justice for the crime of rape for which she was the victim ...”

The Court referred to the remarks made by the Court of Appeal in the sentencing appeal and to the publicity that the applicant’s conviction had received in the press, in particular the reporting of the comments of the Director of Public Prosecutions. It pointed to the revised guidance and accepted that, had the guidance been in force at the date of the applicant’s conviction, she would in all likelihood not have been prosecuted.

In response to her counsel’s submission that the explanation given by the applicant, at the time of the retraction, for having made false allegations of rape was such nonsense that an investigation by the police would have demonstrated that what she was saying was untrue, the court commented:

“22. ... With respect, that is a little too easy: the entire prosecution case depended on the credibility of the appellant. Notwithstanding the clear warning she had received about the seriousness of her position this was the explanation that she chose to provide for her false allegations against her husband. She was later to repeat and amplify it.”

The court recorded that during the subsequent tape-recorded interview, the police “offered her every opportunity to deny that she had made a false allegation”. Still she persisted with the retraction. Reviewing in detail the circumstances of the false retraction and subsequent explanations, including at the sentencing stage, the court was of the view that the circumstances were inconsistent with the defence of duress. After examining the sworn statement prepared for the purposes of her appeal against conviction, the court again noted that although the applicant was plainly under pressure, the pressures were far removed from constituent elements of the defence of duress.

Turning to consider whether the conviction was unsafe, the court first discussed whether the retraction of a true complaint could constitute the offence of perverting the course of justice. It held that it could, commenting:

“58. ... The conduct alleged and admitted went very much further than a witness withdrawing a complaint or withholding evidence of rape. Rather it involved repeated assertions which led directly to the acquittal of the man who had committed rape on more than one occasion. It was not suggested, and we can see no reason for concluding that in the context of the ingredients of this offence, the victim of a crime is entitled to be treated differently from any other witness to a serious offence who falsely retracts truthful evidence ...”

As to whether the defence of duress had been made out, the court explained that duress was subject to clear limitations; it was not to be confused with “pressure”. It explained that the circumstances in which different individuals were subject to pressures, or perceived that they were under pressure, were virtually infinite. Such pressures might provide powerful mitigation, as the Court of Appeal had recognised when dealing with the applicant’s appeal against sentence. The court emphasised that duress involved pressure which arose in extreme circumstances, involving the threat of death or serious injury which could not reasonably be evaded. It continued:

“64. The contemporaneous evidence available to the appellant’s legal advisers, once she had decided to tell the truth, provided a great deal of mitigation but no viable defence of duress. That was not the case that she was advancing in her instructions to them, or for that matter in her accounts to the police, who were undoubtedly sympathetic to her situation, and did their best to dissuade her from withdrawing the allegation and then to find an explanation for her doing so. She did not suggest to any of them that when she falsely retracted her truthful complaints she was acting under the threat of serious ill treatment or violence at the hands of her husband or anyone else. The police interview on 16th August is one of the crucial features of this case. By now, it must be remembered, the appellant was asserting that her husband had raped her more than once, and had treated her with violence, and that she was confirming the truth of her allegations against him. If she had been threatened by him with violence if she did not withdraw the complaint, as it seems to us, it is unconceivable that she would not have said so at the time. If she was asserting that he forced a retraction by raping her or threatening to rape her, there was no reason why she should not also have explained her retraction of the rapes by reference to any such threats.”

Examination of the applicant’s 2012 psychiatric report did not lead to a different conclusion.

The submission that the applicant’s guilty plea was equivocal was also rejected, since the only basis for this assertion was duress.

Finally, the court addressed the applicant’s submission that a combination of errors was made by the police, her legal advisors, the Crown Prosecution Service and the court, and that the overall effect of the errors was that she was prosecuted when, if they had not been made, the prosecution would not have proceeded. Reviewing first the actions of the police, the court said:

“73. [W]e can find nothing for which the police should be criticised. We have to be realistic. The allegation of rape depended on the appellant’s complaint. Her husband resolutely denied the allegations. The police were presented with a woman who they believed had been raped by her husband, but who was nevertheless determined to assert that the allegations against him were false. They made every proper attempt to dissuade her from retracting her allegations, without success. They sought to find an explanation, examining with her whether she had been forced by her husband to withdraw the allegations. They could not do more to help her avoid the consequences of her actions. They could not pressurise her into re-writing the script she was determined to provide, and indeed it is not beyond the bounds of imagination that they would have been criticised for being over forceful and lacking in sensitivity to the needs of a victim of rape who no longer wished to proceed with the allegations. Moreover once the case against her husband had been wholly undermined by the appellant’s first retraction and assertion that she had lied, the facts which might reasonably undermine her credibility would have been disclosed to her husband’s defence team. There was no alternative. In reality, he was only released from prison when his continuing detention in custody and his continued prosecution would have been unjustified. There was no longer any realistic prospect of success. At the same time, faced with a clear belief that the appellant was lying when she exonerated her husband of rape, the investigating officers were entitled to believe that he had escaped justice. That is not an irrelevant consideration. So they went as far as they properly could in interview in an endeavour to discover whether she had been subjected to threats. Their efforts were, because of the position taken by the appellant, unsuccessful. That does not found any justified criticism.”

As for the applicant’s legal team, it found:

“74. ... In our judgment she was well represented. The files show that both her solicitor and counsel were anxious that she should tell the truth. Her position if convicted of making a false allegation of rape would certainly have been far more perilous than if she were convicted on the basis of the retraction of a true allegation. The fact that she was immediately released from custody on her appeal against sentence amply establishes the value of the advice given by her legal advisors. If she had been convicted of making a false allegation of rape, the custodial sentence would have been longer, and wholly unappealable.

75. Specific criticism is directed at the failure by the legal advisors to seek a psychiatric report of the kind now available ... The question of medical evidence was addressed by the solicitors. They obtained the appellant’s medical records. On examination they could find nothing in them to suggest that there was or could be a psychiatric defence, not least because on the accounts the appellant was giving to the police and on her instructions to them, and her later account for the purposes of the Pre-Sentence Report, for the reasons we have given, no such defence was viable. Even now, as we have explained, the psychiatric evidence, properly examined, would not, in the light of the remaining evidence, provide a sustainable defence ...”

Concerning the actions of the Crown Prosecution Service, the court commented:

“76. ... The general Code [for Crown Prosecutors and the Crown Prosecution Service for prosecuting cases of domestic violence], while asserting the continuing value of the prosecutorial discretion not to prosecute, starts on the basis that a prosecution will normally take place unless the factors in favour of allowing the matter to be dealt with by an out-of-court disposal, such as the defendant’s illness, outweigh the public interest. In particular, however, the more serious the offence, the more likely that the public interest would require a prosecution. The Code also observes that although public interest factors in an individual case may argue against a prosecution, the prosecutors nevertheless should reflect whether these factors should not be put before the court after conviction, as mitigation of sentence.

77. In relation to domestic violence, the entire policy of the CPS acknowledges, as this court has, that many victims of domestic violence find it difficult to give evidence at court, and that they need practical and emotional support for this purpose. Sometimes the victim withdraws support for the prosecution and no longer wishes to give evidence. The policy requires all these matters to be addressed. The focus, however, is the withdrawal of support for the prosecution, not the fabrication of false retractions. That issue has been directly addressed as a result of the present case, but the new policy was directed to fill the gap in the existing CPS Guidance revealed by this case.”

The court considered that the applicant’s submissions on appeal overlooked the seriousness of her offence. If the allegation of rape was true, she had deliberately, falsely and persistently chosen to exonerate the man who had raped her. The court was of the view that the real issue for the Crown Prosecution Service was the form of perverting the course of justice which should be prosecuted, not whether there should have been any prosecution at all. Although counsel for the Crown Prosecution Service accepted that the applicant would not have been prosecuted if the most recent guidance on the approach to be adopted to cases where truthful allegations were retracted by the victim of rape had been in existence, the court was satisfied that there had been no abuse of process and that even if a psychiatric report had been ordered and disclosed to the prosecution, no stay of proceedings would have been ordered. The court continued:

“83. There is, however a much more fundamental issue involved than the correct form of process. It is elementary, but it has become necessary to emphasise, that Guidance issued by the Director of Public Prosecutions does not and, as a matter of law cannot, create any immunity or defence. The guidance and any policy documents publicly reflect the considerations which, in an individual case of the kind under consideration, are considered to be relevant to the exercise of the prosecutorial discretion not to bring an individual case to trial notwithstanding admissible evidence which would otherwise justify a prosecution. If, however, this exercise has been conscientiously undertaken, the sole question for the court is whether the offence has been committed. It is not the function of the court to substitute its own view for that of the Crown about whether there should be a prosecution ...

84. ... In summary, when it is sought to advance an argument for a stay by reference to policy or guidance issued by the Director of Public Prosecutions, by way of emphasis it is worth repeating, first, that the decision whether to prosecute or not must always be made by the Crown Prosecution Service and not the court. The court does not make prosecutorial decisions. Second, provided there is evidence from which the jury may properly convict, it can only be in the rarest circumstances that the prosecution may be required to justify the decision to prosecute. Third, the decision whether or not to prosecute in most cases requires a judgment to be made about a multiplicity of interlocking circumstances. Therefore even if it can be shown that in one respect or another, part or parts of the relevant guidance or policy have not been adhered to, it does not follow that there was an abuse of process. Indeed, it remains open to the prosecution in an individual case, for good reason, to disapply its own policy or guidance.”

Although the applicant argued that the overall effect if all those concerned had behaved differently would have been the discontinuance of the prosecution, the court considered that the unavoidable reality was that the discretion whether to prosecute was exercised, and could only be exercised, by the Crown Prosecution Service on the basis of the information available to it at the time. After conviction it was unrealistic for fresh legal advisors to attempt to reconstruct a different series of facts or events which might have led them to reach a different decision; or on that basis, to require the Crown Prosecution Service to re-examine what the decision might have been if a series of hypothetical but different facts had been in contemplation at the time when the decision to prosecute was taken. The court found that there had been no contravention of prosecutorial policy or guidance in existence at the time of conviction.

In conclusion, it said:

“87. In the end, the final submission comes to the proposition that it is somehow not fair for the appellant to remain convicted ... The problem can be readily understood. The principles relating to abuse of process have not extended to, and it would be surprising if they had extended to, enabling this court to quash a conviction on a broad, somewhat nebulous basis of unfairness where the conviction, following due process, is in every respect safe. If so, it cannot be quashed.

The reality of this case is that the appellant was undoubtedly guilty of a serious crime, from which police officers did all they reasonably could to dissuade her. Compassion for her position, and indeed for any woman in the same or a similar position, should have produced a non-custodial sentence. That is why this court acted speedily to quash the custodial sentence and replace it with a community order which would offer practical assistance to the appellant in the immediate aftermath of her release from prison. The court also expressed itself in clear and direct language, which was immediately considered by the Director of Public Prosecutions, who has now issued fresh guidance about how cases involving false retractions of true allegations by vulnerable defendants will be addressed in the future. All that acknowledged, we cannot dispense with or suspend the statute, or grant ourselves an extra statutory jurisdiction. Accordingly, we are not entitled to interfere with this conviction. The appeal must be dismissed.”

On 22 May 2012 the Court of Appeal refused leave to appeal to the Supreme Court.

B.  Relevant domestic law and practice

1.  The offence of perverting the course of justice

Perverting the course of justice is a common law offence which covers a wide variety of situations. The 1891 judgment in R v. Vreones [1891] 1 QB 360 identified the basic ingredients of the offence:

“The real offence here is the doing of some act which has a tendency and is intended to pervert the administration of public justice.”

2.  The defence of “duress”

The classic definition of duress is set out in Lynch v. DPP for Northern Ireland 1975 AC 653, per Lord Simon of Glaisdale:

“[I]t is convenient to have a working definition of duress - even though it is actually an extremely vague and elusive juristic concept. I take it for present purposes to denote such [well-grounded] fear, produced by threats, of death or grievous bodily harm [or unjustified imprisonment] if a certain act is not done, as overbears the actor’s wish not to perform the act, and is effective, at the time of the act, in constraining him to perform it. I am quite uncertain whether the words which I have put in square brackets should be included in any such definition ...”

3.  The decision to prosecute

Section 10 of the Prosecution of Offences Act 1985 provides that the Director of Public Prosecutions shall issue a Code for Crown Prosecutors giving guidance on general principles to be applied by them in determining, in any case, whether proceedings for an offence should be instituted and deciding what charges should be preferred.

At the relevant time, the Code provided that a prosecution would usually take place unless the prosecutor was sure that there were public interest factors tending against prosecution which outweighed those tending in favour, or unless the prosecutor was satisfied that the public interest could be properly served by offering the offender the opportunity to have the matter dealt with by an out-of-court disposal. The Code set out the factors tending in favour of and against prosecution.

On 7 July 2011 the Crown Prosecution Service published revised police guidance in relation to prosecutions concerning rape and domestic violence called “Guidance Perverting the Course of Justice - Charging in cases involving rape and/or domestic violence allegations”. The guidance applies to cases where a complainant of rape or domestic violence makes a false allegation, retracts an allegation or withdraws a retraction. At paragraph 20, it states:

“It has never been the rule that a prosecution will automatically follow where the evidential stage of the Full Code Test is satisfied. This was recognised by the House of Lords in Purdy (R (on the application of Purdy) v Director of Public Prosecutions [2009] UKHL 45) where Lord Hope stated that: ‘It has long been recognised that a prosecution does not follow automatically whenever an offence is believed to have been committed.’ He went on to endorse the approach adopted by Sir Hartley Shawcross, the Attorney General in 1951, when he stated in the House of Commons that: ‘It has never been the rule ... that criminal offences must automatically be the subject of prosecution.’”

At paragraph 24, it states:

“24. There may be highly exceptional circumstances in which a prosecution may be appropriate following the retraction of a truthful allegation. For example, where an unconvicted offender continues to commit crimes and escape justice, and this puts other members of the public at risk. However, when applying the public interest stage of the Full Code Test, prosecutors should bear in mind the comments of the Lord Chief Justice in A (R v A [2010] EWCA Crim 2913 [the applicant’s appeal against sentence]) that ‘experience shows that the withdrawal of a truthful complaint of crime committed in a domestic environment usually stems from pressures, sometimes direct, sometimes indirect, sometimes immensely subtle, which are consequent on the nature of the individual relationship and the characters of the people who are involved in it’.”

Paragraph 26 of the Guidance sets out the relevant factors in favour of prosecution:

“Applying the public interest factors set out in the Code, prosecutors should bear in mind that a prosecution for perverting the course of justice is more likely to be required where:

- a false complaint was motivated by malice

- a false complaint was sustained over a period of time (particularly where there were opportunities to retract)

- the suspect in the original allegation was charged and remanded in custody

- the suspect in the original allegation was tried, convicted and/or sentenced

- the person who made the original allegation has previous convictions or out-of-court disposals relevant to this offence, or a history of making demonstrably false complaints

- the suspect in the original allegation was in a vulnerable position or had been taken advantage of

- the suspect in the original allegation has sustained significant damage to his or her reputation.”

Paragraph 26 of the Guidance sets out the relevant factors against prosecution:

“Applying the public interest factors set out in the Code, prosecutors should bear in mind that a prosecution is less likely to be required where:

- the original allegation appears not to have been motivated by malice

- the person retracting the allegation has been threatened or pressurised into doing so by the suspect of the original allegation, his or her family, friends or other persons

- there is a history of abuse or domestic violence or intimidation which might offer mitigation such as to make it likely that a nominal penalty will be imposed

- the suspect of the original allegation was not charged, detained or convicted and has not suffered damage to his or her reputation as a result of the original allegation

- the person who made the original allegation appears not fully to have understood the seriousness of making a false allegation bearing in mind his or her age and maturity

- the person who made the original allegation appears not fully to have understood the seriousness of making a false allegation bearing in mind any learning disability or mental health issues.”

COMPLAINT

The applicant complains under Article 8 of the Convention that her prosecution and conviction violated her right to respect for her private and family life.

 

 




 

 

QUESTIONS TO THE PARTIES

1.  Did the prosecution and conviction of the applicant for falsely retracting a claim of rape interfere with her right to respect for private and family life?

 

2.  Did the prosecution and conviction of the applicant for falsely retracting a claim of rape result in a violation of private and family life, contrary to Article 8 of the Convention? In particular, were the decisions to prosecute and to convict proportionate and therefore necessary in a democratic society?