A Legal Perspective on False Allegations
Chris Saltrese Solicitors have a page dedicated to the phenomenon of false allegations. It has been produced by legal practitioners and may be helpful to those seeking to understand what false allegations are, and why they are made. Click here to visit their website.
Challenging Miscarriages of Justice
Solicitor Advocate, Mark Newby, provides a comprehensive overview of the obstacles faced in challenging miscarriages of justice and the means by which some wrongful verdicts have been overturned. Click here to read his speech given at the United Against Injustice Conference held in Liverpool, October 2015.
Ten Golden Rules for the Falsely Accused
These rules below are intended as a guide only, and intended to assist persons who have been falsely accused of a sexual offence. The rules and opinions expressed are strictly the writer’s own. The accusing person is referred to as ‘the complainant.’
1. Do treat seriously any sexual allegation made against you, no matter how apparently insignificant, or absurd and no matter if it is not reported to the police.
2. Do immediately record the fact of the complaint, that is, write down the detail, of sexual allegation made against you, as soon as you become aware of it, whether made to you directly, or to a third party. Include: Who, when, where, all the circumstances and details of the allegation(s).
3. Do prepare a timeline and detailed background statement. This is essential, in the event of any future official complaint. Include: Your connection with/relationship to, ‘the ‘complainant’, identify where ‘the complainant’ fits into your family history (if you are related). Detail any fact that may be relevant to the allegation – family rows, therapeutic assistance known to have been sought by ‘the complainant.’ Identify any reason for a motive to make a false allegation. Identify any potential witnesses who may be able to speak of your good character AND ‘the complainant’s’ character, her relationship with you etc. The timeline should identify potentially significant life events and dates of births of family/significant persons.
4. Do immediately see a solicitor who has a proven track record for handling sexual allegations – after the first complaint is made. Don’t take his or her word as to their experience as a guarantee of his/her expertise in the field. Expect to see a company prospectus naming cases that he/she has conducted. Don’t expect to see a 100% acquittal rate either. No matter how skilled your defence team, no-one can guarantee an acquittal. Place on record with the solicitor, the nature of the complaint against you and your denial. Give him/her your case timeline and background statement. This way, if a complaint is made in the future, the case is ready to go from the ‘off’ and you have a solicitor who is primed with knowledge of your case (being in receipt of the information supplied above) and ready to advise.
5. Do instruct a solicitor immediately following arrest. If an arrest takes place, you will hopefully have already identified your solicitor (as discussed above). Falsely accused persons, often naively consider it unnecessary to seek the services of a solicitor, thinking everything will ‘blow over’ or ‘come right in the end’ after the police have listened to what you have to say. Be advised, it is foolish to ‘go it alone’. No matter how intelligent, articulate or worldly-wise you are, it is always advisable to have a solicitor with you.
6. Do discuss your interview strategy with your solicitor – that is whether you are best advised to answer police questions, go ‘no comment’ in your interview or submit a pre-prepared statement. There is no hard and fast rule at this stage. Which course to take, depends upon the circumstances in each case. The writer’s opinion is that in a typical case, where the accused is a person of previous good character, that is a person with no prior criminal convictions, then provided:
(i) there has been appropriate pre-interview disclosure to inform you sufficiently of the complaint and (ii) provided you are medically fit to answer, then it is preferable to have on record a denial from the outset and an open, genuine defence response. The interview will be tape-recorded. It may be played to a jury at a later stage and you/your solicitor are entitled to a copy of it. Be aware of the legal consequences of not answering police questions. Ensure you receive legal advice on this aspect before the interview.
7. Do stay calm in interview. Listen to questions and take care with answers. If, because of the historical nature of the allegations your memory is unclear, then say so in the interview. Do not feel obliged to provide a firm answer to exploratory questions by the police interviewer that seek to probe family history, events and relationships. If you can’t remember, then say so. Frequently, accused persons are arrested with no prior warning, early in the morning, then taken to the police station and left alone in a police cell for a few hours. This course of conduct is entirely lawful. The psychological impact of this on your state of mind is obvious. You will feel alone and vulnerable. By the time of the first police interview several hours later, you will have one thought uppermost in your mind, that is, to get out of the police station. Don’t guess answers.
8. Do inform your solicitor and police of any known health issues or psychological/psychiatric learning difficulties that either you or ‘the complainant’ suffer from. Let the solicitor determine if these issues are relevant or not to the conduct of your defence. It is important that your solicitor has all the information he/she requires about you AND ‘the complainant’ as soon as possible. These issues are of paramount importance. They may be critical to the interview or preparation of your future defence. Equally, your health or other issues may affect how you give evidence, or how the jury should be directed to approach it.
9. Do be actively involved in the preparation of your defence. Don’t sit back and let things happen. Don’t bury your head in the sand. Assist yourself by assisting your solicitor. Limited funding constraints mean that solicitors do not have an infinite amount of time to spend on your case. Obtain a copy of the prosecution case (you are entitled to this) and make line-by-line comments for your solicitor who will in turn send these to counsel. Write objective comment and factual observations rather than repeating how awful you feel or how stupid the accusations are. Consider with your legal team if an expert report is required well in advance of trial.
10. Do discuss and agree the future conduct of your trial. Identify the counsel whom your solicitor wishes to use as soon as possible. Ensure you meet your barrister well before the trial. Increasingly, higher court advocates (solicitors with rights of audience in the Crown Court) are conducting serious cases in the Crown Court. Whosoever is going to represent you at trial, ask for a resume or CV. You are also entitled to receive an Advice on Evidence and to a conference(s). Ensure you understand and agree how the advocate intends to present your defence well before trial, which witnesses will be called, the cross-examination of ‘the complainant’ and how/whether you will be likely to give evidence. A final decision may only be made at trial.
This guide has been prepared for the BFMS by a helpful barrister.
This article was originally published in the Newsletter of the British False Memory Society (Vol
20, No. 1 – October 2012).
CBC News, August 27th 2013
A legal researcher and a criminal solicitor examine the devastating impact of false allegations in the courtroom.
Memory, make-believe and the courts – what’s the mischief? – Inside Time, May 2008
List of Contents
How long ago?
Complex, organised and institutional cases
Solicitors and barristers
Lawsuits against parents
Action against mental health professionals
Retrospective allegations of child sexual abuse may be true, a mixture of truth and falsehood or completely false. Prior to the exposure of highly questionable therapeutic techniques for eliciting abuse allegations in children and adults – methods which are known to be unreliable – suspects for sexual offences had the highest rate of spontaneous confession among any group of suspected offenders – nearly 90 per cent. A similar figure was found for accusations of incest. (Source: Mitchell B. (1983) Confessions and police interrogation of suspects. Crim Law Rev Sept 596-604; Manchester A. Incest and the Law in Family Violence (1978)).
There is therefore no evidence to suggest that denial of offences is indicative of guilt. Recent Home Office Research (HO Findings Paper 164 – “Reconviction rates of serious sex offenders and assessments of their risk”) indeed suggests that deniers pose no greater risk of reconviction than controls. Deniers do however, clearly suffer prejudice in the minds of the Authorities on issues such as parole or risk assessment etc.
Studies of ‘denial’ which appear to show high rates among convicted sex offenders are associated with adult rapes and issues of consent, not the existence of the events or victim harm among admitted paedophiles. (Source: Kennedy, H & Grubin D. Patterns of denial in sex offenders. Psychological Medicine, 22, 191-6).
The particular area of Paedophilia and Rape abound with shibboleths and myths that pass for sloppy scientific thinking. It is often observed (e.g.) that paedophiles are notoriously difficult to cure and treat, and rapists are likely to re-offend. In the same breath, proponents will argue that only a miniscule proportion of either group of offender ever come before the courts, and an even lesser fraction are actually convicted. A moment’s reflection will show that the two premises are totally contradictory. If only a minute fraction of paedophiles and rapists ever present themselves to the Criminal Justice System, the vast majority of offenders are “out there” committing their offences with impunity. Of the numbers known to the authorities the sample would be so infinitesimally small, that one could make no reliable observations about the incidence and trends of either criminal group.
There is undoubtedly a social perception that previous generations swept issues of child sexual abuse, familial patterns of generational abuse, and abuse occurring in institutions (boarding schools, hospitals residential homes etc), under the carpet. Unfortunately the swing of the pendulum has now produced a Criminal Justice system that seems very slow to recognise that “over-reaction” can produce as many evils as those which it set out to remedy.
Because of a significant relaxation to the rules governing Similar Fact evidence in two decisions of the House of Lords in the final decade of the last century, and a more permissive approach to police investigative methods (such as “trawling for evidence”), an innocent person is much more likely to be prosecuted and possibly convicted than was previously the case and it is therefore hardly surprising that denial rates among convicted sex offenders have significantly risen.
In the UK, uncorroborated retrospective allegations of child sexual abuse may be criminally prosecuted at any time. There is no statutory limitation period (unlike in civil cases) and complaints alleging abuse thirty or more years ago may be made for the first time now and brought to trial.
Since the prosecution may rest on a confabulated narrative that is impossible to refute because there is no objective evidence to go by, innocent people may be convicted of non-existent child sexual abuse offences.
The justification given for pursuing this no-limitation policy in English Law rests on two principal arguments. (1) That child sexual abuse is a phenomenon whose consequences can often only be appreciated and faced by the “victim” in later adult life and (2) Knowledge that there will be no respite from liability for their crimes for the rest of their lives deters adult abusers from criminal acts against contemporary victims.
The policy is unique to English Common Law. The other nations of Europe whose systems evolved from the Civil Law (Roman) all invariably have time limits (dependent upon severity and class of case etc) after which no prosecution may be brought. Some cases such as War Crimes, Genocide and other Crimes against Humanity have by international convention, no time limits.
The feature which is unique to retrospective child sexual abuse allegations is often that it is the only class of crime, WHERE PROOF OF ANY CRIME HAVING BEEN COMMITTED DEPENDS EXCLUSIVELY UPON ORAL EVIDENCE.
As has been said “In these crimes, there is no body, no smoking gun, and no blood on the carpet”.
Nevertheless, the European Court of Human Rights has recently defended the right of States to choose to have or not have periods of limitation for the prosecution of crime. (SAWONIUK -v- UK).
There are a number of different types of false allegations. Even where the initial allegation is a conscious lie, it is possible for the accuser to come to believe the allegations, especially when motivated, encouraged or reinforced. Also since a daily dose of media, stories and documentaries come to give the impression that child sexual abuse is endemic and widespread, vulnerable people may feel that they have been given “therapeutic permission” to ascribe all their failings in life, to the incidence of abusive trauma suffered in child-hood. At the end of the day it may be difficult to distinguish between lies and sincerely held false beliefs.
A history of psychological treatment, therapy or counselling may have significance in terms of the reliability of the allegations and their admissibility as evidence. Certain attributes of the accuser may also be relevant in this regard.
Research has demonstrated that both psychotherapeutic techniques and police investigation can unwittingly elicit false testimony that may then be believed and reinforced.
The latter dangers have been highlighted in the House of Commons all-party inquiry in to retrospective child abuse in children’s homes. (HOME OFFICE DOCUMENT ref/HC 836-I, 836-II). The recommendations of this committee received a very lukewarm response from Government (Observations in Response – ref Cm 5799)
How long ago?
Sometimes, false allegations concern abuse held to have occurred decades ago. At other times the abuse is alleged to have continued into adulthood, though there is no corroborative evidence. There is no fixed rule on the length of delay indicative of false allegations even when sincerely made; but sometimes, recent false allegations can be proven to be delusional because of greater specificity concerning time and the availability of an alibi.
Teenage false allegations may also be alleged to have continued up until recently and may erupt quite suddenly.
Complex, organised and institutional cases
Sometimes cases are built up over a period of time on the basis of a suspicion of a large number of abusers who may be members of the same family or linked in some other way.
In particular there has been a massive growth in retrospective allegations of abuse in children’s homes and residential schools. Such cases can quickly overwhelm all those involved in the defence despite the innocence of those charged.
Solicitors and Barristers
We can give information on:
Timeline* methods to challenge allegations
Researching and identifying ‘recovered memory’ and other unreliable evidence
The legal status of ‘recovered memory’ evidence
Retrospective uncorroborated allegations – ‘delayed complaints’
Abuse of process applications
The choice and use of expert witnesses
Legal precedent (UK and Commonwealth)
Grounds for appeal and the Criminal Cases Review Commission
* Timeline is a method of reconstructing a relevant history of one’s life, from records, documents, letters, photos etc and for aiding and marshalling memory so as to deal as far as may be possible with detailed accusations, many years after the event.
Lawsuits against parents
Action against alleged abusers may only be taken in the civil courts within six years of the alleged physical or sexual abuse or six years of the age of majority (i.e. until 24). This is because the acts are assaults and therefore actionable under the law of trespass to the person where the strict limitation period prevails.
Different rules apply under negligence where there is judicial discretion to waive the normal three years within which to sue. Negligence entails a breach of a duty of care so that one parent might conceivably be sued if it is alleged that s/he knew about the abuse and failed to protect the child.
Usually negligence suits involving abuse are against institutions and schools rather than parents or relatives, but exceptions do exist.
A 1998 consultation paper by the Law Commission recommended changes in the current law which will result in lawsuits similar to those in the USA on the basis of recovered memory or alleged delayed discovery of the effects. Many of the recommendations seem likely to be incorporated into changes to the Limitation Act 1980 following the Law Lords ruling in January 2008 in the case of A v Hoare. This case was one of six considered by the Court. (See A v Hoare – Opening the flood gates? in the BFMS Newsletter March 2008, Vol. 16, No. 1, page 21)
The BFMS is concerned by this development as it proposed to the Law Commission that a cause of action should exist in retrospective child abuse cases only where it is possible to objectively determine the existence of the alleged abuse i.e. there must be independent corroboration. In Hoare the House of Lords recognised that their decision might well lead to a great number of claims from victims seeking to disapply the three year limitation period. However, the inhibiting effect of sexual abuse upon a victim’s preparedness to bring proceedings will not automatically lead to a Court exercising a Section 33 discretion (discretionary extension) in his or her favour. It will be just one of the factors to be considered by a judge when exercising discretion and in the absence of cogent evidence or of a complaint made and recorded at the time or of a conviction for the abuse complained of, many cases may well be unable to proceed out of time.
Action against mental health professionals and institutions for false memories/ allegations
Medical negligence connected with false or recovered memory may be subject to claims made by former patients. In the USA since 1994 there have been multi-million dollar settlements by psychiatrists and hospitals diagnosing and treating Multiple Personality Disorder. (See the FMSF Website at www.fmsfonline.org)
Legal aid may be available in some cases. Conditional fee arrangements are possible but would require high legal insurance premiums and may incur extra court costs not covered.
Third party lawsuits against mental health professionals are commonly thought to be impossible in the UK. However, this is a fluid area and given the seriousness of the allegations and the foreseeable harm to the accused the law may yet develop in this area echoing the Hungerford and Jones (1998) ruling in the USA, (Supreme Court of New Hampshire).
BFMS is a small but national charity. We do not give formal legal opinions or advice. Whilst every care is taken with regard to information contained in the Society’s correspondence, newsletter or displayed on this web-site, we cannot accept liability arising from reliance upon the same, howsoever arising.
This means that the Society does not operate a legal help-line as such, nor do we provide legal advice. (We can assist solicitors with assessing the potential that a case shows indications of the presence of false memory.)
The Society will, where possible, be pleased to provide such professionals with extracts from our archive of relevant research.
Essentially, the Society can be most useful where a point has already been identified in a case which falls within the ambit of the Society’s researches i.e. issues of memory, “False Memory”, “Recovered Memory”, reliability of evidence based upon memory and related issues.