Written evidence submitted by AN INDIVIDUAL 14 (DIS0015)

1) I am a family member of an individual who was falsely accused of sexual assault and also a member of a 1600-strong support group for individuals who claim to have been falsely accused of sexual assault and their associated families. In the year of my association with this group, I have encountered many stories of injustice in addition to my own and many have their foundations in the failures to properly make use of evidence, including failures of disclosure, even when victims of false accusations have stated that exculpatory evidence exists.

1.1) The following responses to your questions summarise my observations on the current status of the justice system related to information gathering and processing and my observations on the challenges faced by the individuals in our group. By their nature, they will be largely focused upon sexual assault and particularly the issues of false accusations of sexual assault.

2) Executive Summary

2.1) Current policies, rules and procedures are widely abused. Compliance with existing rules would go a long way to meeting the criticisms currently leveled at criminal investigations.

2.2) Political motives, particularly in sexual assault accusations have encouraged misleading disclosures and use of statistics at the highest levels of government and have encouraged an erosion of the proper administration of justice to the point that it borders on abuse.

2.3) Violation of the Police And Criminal Evidence Act (PACE) 1984 act are commonplace, often due to ignorance, even amongst defense lawyers. Adherence to PACE 1984 requires return of electronic media after copying. This would eliminate a majority of the complaints related to social media messages as evidence. It also has the potential to hasten the resolution of cases by enabling the defense team to supplement proper and mandated police investigations of all evidence.

2.4) Failures of disclosure are in part failures to comply with the legal requirement to investigate exculpatory evidence as well as incriminating evidence.

2.5) A general focus on prosecution/investigation targets as a public sign of justice 'productivity', most likely linked to promotion prospects encourages aggressive, confrontational policing at the expense of Peelian Principles and an erosion of public respect for the entire justice system. Reductions in crime should be an important measure of success for police forces.

2.6) There are clear failures and (sometimes intentional?) miscommunications between policymakers, advisors and the executors of policy. Failures to comply with PACE 1984, the 'believe the victim policy', the parade of reports and reviews - Stern, Elish, Henriques and the demand for more inquiries at taxpayers expense with recommendations largely ignored, especially related to the perceived 'perpetrators' and their rights to just and fair treatment under the law.

3.)  Are the current policies, rules and procedures satisfactory to enable appropriate disclosure of evidence and support the defendant's right to a fair trial?

3.0.1) Clearly, NO. Both policies and procedures fail to comply with current laws. It is clear that some policies are based on misinformation and failure of policy-making individuals to disclose or integrate results of critical information-gathering efforts into their policy decisions driving the rules and procedures they recommend.

3.0.2) Failure to comply with legal requirements, rules and procedures

3.0.2.1) There is a legal requirement for police to pursue all lines of evidence - including those which cast doubt on the accusation and support the innocence of the accused. The concern over disclosure reveals that not only do police fail to follow this requirement, they actively suppress such evidence. This is Perversion of the Course of Justice on an institutional scale.

3.0.3) Institutional failures to disclose accurate statistics and human cost

3.0.3.1) At the institutional level, survey information needed to direct policy has been consistently ignored or misrepresented by individuals in a position to influence policy. This is effectively a 'failure to disclose' at the highest levels of the Ministry of Justice, providing a very poor example for those responsible for executing policy.

3.0.3.2) An opinion-piece[i] by then-DPP Keir Starmer was published in the Guardian on March 13th 2013. It was based upon a report to the DPP by Alison Levitt QC[ii] and interpreted as demonstrating that false allegations of sexual violence were "few and far between", noting that in a 14-month period there had been only 35 prosecutions for making false allegations of rape. This 'trailblazing' research was widely publicised with the presumed intent of directing attention away from the issues of false allegations. Eight months prior to Starmer's comments on false accusations, in July of 2012, the Ministry of Justice had published their somewhat more comprehensive report[iii] in which they noted that within eight surveyed police force districts, 3% of rape allegations were considered maliciously false and a further 9% were suspected of being false or mistaken accusations. With ~16,000 rapes in the same year, this would suggest that there would have been 480 malicious false accusations of rape and a further 1440 accusations that were probably false. Over 1900 cases of false accusations of rape per year at a time when Starmer used the number 35 to demonstrate the insignificant incidence of the crime. He presumably would have known about the MoJ report when he made his dubious misrepresentation 8 months later. These numbers do not include accusations of sexual assault other than rape which may well double or triple these numbers. The current DPP Alison Saunders has continued the 'false accusations are insignificant' narrative, incrementing her estimate of the numbers of false accusations over the years from 1% to a current 3% which now represents the lowest estimate from the MoJ report. I would further suggest that adhering to low percentages without translating it to numbers of human beings suffering the consequences of false accusations is a further failure to disclose the enormity of the crime. The most recent crime figures indicate more than triple the numbers of reported rapes in the latest year, suggesting over 1000 malicious false accusations for rape alone. This is higher than the annual incidence of murder in the UK. If you find the comparison extreme, you may take a look at the report from the Oxford University Centre for Criminology[iv] which summarised the consequences of a false accusation of sexual assault on an individual in the statement "their lives were, to put it simply, wrecked. As with murder victims, families of the falsely accused also suffered greatly.

3.0.4) Confiscation of exculpatory evidence

3.0.4.1) A common complaint against police forces is that electronic equipment is not returned once it has been confiscated for purposes of the investigation. Some accused individuals claim that they informed the police of evidence in their favour in messages stored on these devices but that the police disregard such information and fail to disclose it. Some people NEVER get their equipment back. This is a violation of the Police and Criminal Evidence Act 1984 which states "Nothing may be retained for either of the purposes mentioned in subsection (2)(a) above if a photograph or copy would be sufficient for that purpose" (section 22 subsection 4 Retention[v]). Retention is limited to the time needed to make copies and a recommended maximum is 3 months. This includes electronic equipment. Appendix 1 provides 2 of many accounts of falsely accused individuals or family members who have encountered police resistance to complying with this law. Ironically, compliance with PACE could potentially save the police considerable resources by enabling highly motivated individuals to actually document any exculpatory evidence and present it to the police for them to verify on their copies, thus saving the police resources by doing some of the work that they are legally mandated to do.

3.1) How effective are current policies, rules and procedures – particularly in the light of the growth in electronically stored material (such as text or social media messages)?

3.1.1) It isn't clear what 'policies, rules and procedures' are recognised - or what they are supposed to 'effect' - presumably justice which certainly isn't accomplished at the moment. There seem to be policies and laws in CPS policy documents, PACE 1984 law etc., but there seems to be very little compliance. How can they be 'effective if there is no compliance?

3.1.2) Violation of requirement to investigate all evidence - including exculpatory evidence

3.1.2.1) This is a complaint of a huge majority of the 1600+ members of our false accusation support group and is a major reason for a low opinion of police forces among our members. There are a few exceptions but a majority of express frustration that the police fail to believe evidence in support of the accused. Supportive testimony of third parties often simply creates the opinion that the third party, especially if a spouse or domestic partner, is complicit in the crime. Suggestions that electronic media contain messages supporting innocence are often ignored. Alibis are often reported back to accusers who then claim to have 'misremembered' events and are allowed to change their testimony to invalidate the alibi. This has resulted in tendency for defense lawyers to minimise the information provided by the accused to investigators and in some cases to advise 'no comment' interviews or to provide a written statement in place of an interview. In historical cases, times and dates are not even considered essential which makes alibis even more difficult. In the case of convicted and imprisoned paedophile Geoff Long[vi], it took his wife four years to do a better job than the police and prove his innocence by demonstrating a pink sink in a bedroom described by the accuser never existed because there had never been plumbing in the room.

3.1.3) PACE 1984 compliance could facilitate police investigations

3.1.3.1) PACE compliance, particularly with electronic equipment would do a great deal to remove current objections based upon failed disclosure - and quite possibly alleviate police workload by allowing the accused to supplement the police investigation of exculpatory evidence.

3.1.4) Prolonged double jeopardy in cases involving safeguarding

3.1.4.1) One particularly notable failure of disclosure requirements at present is the disastrous impact on ability to work and family. Safeguarding requires protection of vulnerable individuals based upon a 'balance of probabilities' which generally means that anyone subjected to safeguarding concerns has restrictions placed upon their lives within hours of an accusation, usually based upon 'he said/she said' evidence and nothing more. Teachers, carers, student in schools and universities are deprived of their livelihoods. Families with children are torn apart because Social Services require accused individuals to be separated from children. Partners of the accused are victimised if they express support for their partners and the threat to remove children from the home is a common theme. These may be considered essential steps to protect individuals, but when investigations take up to 2 years to reach a decision, during which time disclosures are not made, the prolonged impact on families, especially children is unacceptable and flirting with violation of Human Rights. There needs to be a balanced treatment of exculpatory evidence and opportunities to expedite its exploration, particularly when individuals claim that they can identify exculpatory evidence. It seems insane not to follow this up.

3.1.5) Reluctance to recognise or use 'No-Crime' designation

3.1.5.1) A further issue related to the safeguarding issue mentioned above is the failure to protect victims of false accusations. 'Exoneration' of an individual accused of a sexual assault usually comes in the form of a police decision for 'No Further Action' (NFA) or a prosecution which resulted in a 'not-guilty' verdict. A criminal court verdict is based upon a 'burden of proof' criterion which requires about 90% certainty that the accused is guilty. Safeguarding is based upon a 'preponderance of evidence' criterion which requires 51% certainty that the accused is guilty so an acquittal in criminal court has no bearing on safeguarding rules. An individual who wishes to return to his occupation or return to his family must therefore endure a second 'trial' with safeguarding or social services to return their lives to normalcy, taking more time and the trauma of a second trial if they can endure it (which some cannot). There are 2 possible actions the authorities can take to alleviate this issue. The first is to require police forces with to evaluate the exculpatory evidence and if sufficiently convincing to add a 'No Crime' category to their NFA decisions, based on requirements of 'preponderance of evidence' so that safeguarding or social services can immediately lift their restrictions without an individual having to go through more hearings. This should also be an option for trial juries in addition to a not-guilty finding. It has been used rarely in some juristrictions (MET?). The second action would be to change the apparent policy to avoid prosecution of false accusers and pursue false accusations with the full vigour of the law. Sir Richard Henriques in his report disagreed with the 'myth' that prosecuting false accusers would dissuade rape victims from reporting their assault. He noted that the victims he interviewed accepted and even expected that their accounts should be verified and that prosecution of false accusers would have no impact on their willingness to report their assault.

3.2) To what extent (if at all) have any recent or ongoing changes to the wider policy landscape, including in relation to legal aid, had an impact on disclosure?

3.2.1) There seem to be several ongoing 'policy landscape' issues that impact negatively on the administration of justice, including disclosure.

3.2.2) A focus on the demands of the most vociferous and radical elements of the women's movement encourages the misandrist view that all men are potential candidates for punishment for the crimes committed by a few. Furthermore, it blurs the boundaries between human biological sexual behaviour, the social pressures that attempt to modify it and the degree to which one controls the other, thus obscuring better opportunities to adopt preventive strategies with a goal of reducing crime and its multitude of true victims. This is well recognised by more moderate feminists whose worthy goals have been hi-jacked by a group more intent on a witch hunt. The similarities between the current radical feminist campaign, witch hunts, the Inquisition and McCarthyism are comprehensively discussed in an article by philosopher Douglas Walton[vii] in the Journal Argumentation. It is well worth reading to understand how the system is being manipulated to corrupt justice.

3.2.3) 'Believe the victim policy' negates the need for the investigation of exculpatory evidence. This confusion and misinterpretation[viii] of government recommendations[ix] on this policy has been regularly and strongly criticised by barristers and in government reports yet appears to be maintained as a principle of policing in sexual assault cases. It is a consequence of 3.2.2 above and contributes to the 'witch-hunt perception since the logical conclusion of such ignorance assures that there is no exculpatory evidence to discover.

3.2.4) Prosecution targets may or may not be official, but the 'success rates' as percentages of reported crimes, prosecutions etc. are widely used in criticisms of police performance. There is also a widespread assumption that performance of forces and individuals relative to such targets strongly influences promotion and funding, leading to a conflict of interest between thorough and just policing and identifying opportunities to meet targets with a minimum of effort, obscuring evidence which casts doubt upon the accusation, even obscuring exculpatory evidence and at worst manipulating evidence to help secure prosecution such as in the 2016 heroin smuggling case[x] and Mark Pearson's false accusation of a sexual assault[xi].

4.0) How do the current policies, rules and procedures on disclosure operate in practice and are there any practical barriers to them working effectively?

4.0.1) As noted above, current policies, rules and procedures are routinely violated and comments by many individuals (victims of such abuse) suggest that police and even defense lawyers are unfamiliar with the law. As further noted in 3.2.4 above there is a conflict of interest for investigators between being seen to do the things that assure approval in their job and properly overseeing that justice is done.

4.1) What is the normal practice of Police and the CPS in reviewing and disclosing evidence and what, if any, are the barriers to this working effectively? Are reviews and disclosures carried out at the right level, is training and guidance appropriate, and is there sufficient oversight of decisions?

4.1.0) In a 2015 speech[xii] then Home Secretary Theresa May confirmed the goal of the government to pursue the Peelian principles of Policing by Consent[xiii]. Both of these links are available on government websites. It is perhaps worth reviewing them to form a foundation against which to review current 'normal' practices.

4.1.1) Predatory Policing

4.1.1.0) Modern policing and justice seems to focus on identifying a suitable suspect and assembling evidence to convict them, with little concern about the guilt of the identified individual or the notion that an individual is 'innocent until proven guilty'.

4.1.1.1) Modern 'normal practices' seem to revolve around targets such as prosecution rate with an underlying suspicion that such measures are significant for the career progress of individuals and for departmental budgets. Public outcry (such as a segment of the women's movement criticising the low rate of convictions) also plays into the target issue and provokes dubious changes in policy. Appropriate targets used correctly may be helpful but at least some current targets seem inappropriate and a high risk factor for abuse. Numbers of convictions seems a highly inappropriate target as it encourages a biased and unjust investigative path towards conviction (including failure to disclose exculpatory evidence) rather than the required (but clearly ignored) investigation of all avenues of evidence. More attention should be paid to Peelian principles 1 and 9 which suggest that policing should focus on PREVENTING crime and disorder rather than dealing with crime once it has happened. In this case an appropriate target would be a lowering of reported crimes rather than an increase in the number of crimes punished - as noted in Peelian Principle 9 - "the test of police efficiency is the absence of crime and disorder".

4.2 What improvements (if any) are needed to improve disclosure and ensure that fair trial rights are protected?

4.2.1) A significant first step would be require that investigators themselves operate within the law. In some circumstances there seems to be a genuine ignorance of the law. For example, PACE 1984. There is a clear need for better education of investigators to ensure that they know the law and to encourage them to abide by it. Perhaps investigators would be more motivated to know and apply the law if there real punishments for violating it, rather than the bland acknowledgements of errors and 'lessons learned' from enquiries into complaints of mishandling. The maxim 'ignorance of the law is no excuse' should apply to all and perhaps be more strictly enforced when the individuals concerned are professionals with the fate of other individuals unjustly at risk when investigators violate the laws and policies that govern their work.

Appendix 1

Accounts of police resistance to compliance with PACE 1984 Act.

(An example in which police delayed release of electronic equipment for nine months - and furthermore an example where the accused had informed the police that the equipment contained exculpatory evidence. Note that the last sentence indicates the illegally retained evidence provided the main evidence to prove the allegation false)

"In discovering PACE law I discovered the piece […] that says the police have to return the computing devices (inc. phone) that they had confiscated on arrest, so many months before.

My lawyer seemed barely interested, but I persisted and sent my demand with the quoted law to my case police detectives three times over a nine month period.
Eventually they caved in and gave me my computers back.
I told my friend, and while his lawyers were surprised they demanded the same - and he got his macbook and phone back... and, crucially, his lawyer passed the info on to the other three defendants.

Some two months later we got another tranche of unused evidence, within it was the long lost email trail between one of those other three and the complainant - a two year long correspondence - 
the content totally backed up his story as told to the police and made her story suddenly appear like a ridiculous invention...

I only realised yesterday,
when my friend [name] explained - that the email trail our other codefendant had found had been on that confiscated computer that this 68 year old with a heart condition had said might contain useful evidence...

That email trail was the main "hand grenade" that blew away the foundations of the prosecution case."

(Another example in which police, Crown Prosecution Service and even the defence lawyer apparently weren't aware of PACE 1984. In this case, the phones were not released on disclosure and any new information discovered on them may now lead to a costly appeal - all because the police and CPS broke the law)

The police seized 3 phones of ours almost 3 years ago. We have tried on numerous occasions to get them back but were continuously told that they are evidence and won't be returned.

I only found this group post conviction and then read [name]’s post about PACE 22 (4). I sent an email to the OIC quoting PACE 22 and she rudely replied "You won't get them back. If you got a problem with this speak to your solicitor". Solicitor was absolutely useless and actually agreed with OIC.

I did have a problem and let the commissioner, deputy commisioner, Met's Directorate of Professional Standard and the Independent Office for Police Conduct (IOPC) know about it. Not surprisingly I got a phone call and email very shortly after. The officer dealing with my complaint was instructed by the prosecuting barrister from the CPS to not return my phones.

Long story short, I got an email today saying our property will be returned to us!

This is after being told that I was wrong and there is no point in trying from my own solicitor. This took weeks to deal with and the police was clearly playing for time - we got an appeal lodged which can be adjusted. Throughout all of this, I have heard all sort of excuses and could have easily given up but it s well worth to follow through with things.

Turning point was to let the officer investigating my complaint know that I will take this to the IOPC