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Should we always prosecute people who make false allegations?

Should we always prosecute people who make false allegations?


Mail on Sunday, November 1 2015

Mail on Sunday, November 1 2015

What should happen to people who make false allegations? The issue has been put into stark focus by the publicity given this week to the case of Geoff Long.

Mr Long had a daughter called Tina from an unsuccessful first marriage. In 2010 she went to Brighton police and claimed that he had systematically abused her over thirty years earlier when she was aged between eight and 16.

There was apparently no corroboration to her allegation, but it led to Mr Long’s prosecution. The jury believed Tina, and he was convicted. He received a sentence of five years’ imprisonment.

To rub salt into his wounds Tina then gave her story to a magazine, which published it under the headline ‘34 years on I finally made him face up to his hideous crimes’.

In contrast to many – perhaps most – who have found themselves in his shoes, Mr Long’s conviction did not result in him losing his current wife, Louise. Not only did she stand by her man, she also started to dig out evidence that had either been missed by the police, the CPS or his original defence team.

The abuse had taken place in a room with a pink sink, Tina had said. Louise uncovered that the police had in fact established that the room in question had not even had any plumbing, let alone a pink sink, evidence which for some reason had not featured at the trial.

On its own, evidence of that sort would probably never have got the case in front of the Court of Appeal; and even if it had got that far the Court – which very often seems to value the ‘finality’ of a jury’s verdict over its accuracy – would probably have upheld the conviction whilst uttering some soothing platitudes about how it would not have affected the final result anyway (at any rate they would be intended to sooth the general public, they wouldn’t have soothed Mr Long).

But fortunately for Mr Long, using new solicitors (Jordans QS in Doncaster who specialise in miscarriage of justice cases), he was able to mount a successful appeal based upon mistakes in the trial judge’s summing up. Had the judge not made those mistakes then Mr Long would have faced a much longer and more arduous task in establishing his innocence. Quite possibly he would never have managed to do so.

Even so, despite winning his appeal, Mr Long was by no means in the clear. The Crown pursued the matter to a retrial. Indeed, in September 2013 when the retrial took place, Mr Long’s son found himself in the dock beside his father. This was because he had revealed how at a drunken hot tub party Tina had admitting lying in her original allegations. Instead of dropping the case, the CPS accused him of perverting the course of justice by trying to persuade Tina to lie.

The retrial took place in September 2013, but it collapsed half way through after it emerged that the prosecution witnesses had secretly recorded the evidence at the first trial, presumably in order to ensure that they were ‘singing from the same hymn sheet’.

There was yet further delay, until January of this year, when a second retrial took place. Long and his son were finally acquitted after the Crown accepted that in the light of answers she gave in cross-examination, Tina’s evidence could no longer be relied upon.

It is an appalling story of an innocent man’s life being shredded by false allegations. In the end, although it seems almost absurd to say so, Mr Long was lucky: a combination of the original trial judge’s mistakes, a determined, terrier-like wife to dig out helpful evidence, and the good fortune that his accuser was lulled by a combination of alcohol and hot water to admit lying, all ensured that his nightmare ended, albeit after what must have been five agonising years for him and his family. Had any of those elements been missing then it is likely that he would still be serving his sentence today, or at least that he would be on the sex offenders’ register, branded as a predatory paedophile until his death and beyond.

As it is, he has incurred legal bills of something like £100,000, the vast bulk of which he is most unlikely ever to get reimbursed from the state which tried so hard to imprison him for nearly 5 years. (If you want to know why it is that Mr Long is out of pocket, then you should read Penelope Gibbs’s report published by Transform Justice: she explains how changes by both Labour and Coalition governments have made it almost impossible for acquitted defendants to recover most of their costs).

Nor can he count on receiving a penny of compensation for a wrongful conviction. Amongst Chris Grayling’s many dreadful legacies is a rule that requires the government to pay compensation only if an exonerated defendant can prove beyond reasonable doubt that he did not commit the offence (see Vicotr Nealon’s story covered widely on www.thejusticegap.com). Proving a negative beyond reasonable doubt is a tall order.

Victor Nealon: denied compensation for wrongful imprisonment

Victor Nealon: denied compensation for wrongful imprisonment

So, having been gaoled for a crime he did not commit and having spent a five figure sum on legal fees to clear his name and with little prospect of getting any compensation from the government, one could forgive Mr Long for wishing to see his daughter punished for her lies.

It does him great credit that he does not, at least not by any agency other than her own conscience:

I can’t ever see us being able to speak again. I’m not seeking revenge and I don’t want to see someone else go to prison. But I need to close the door on what happened. Tina has her own conscience to deal with. And that must be torture in itself.’

But anyone reading the 1295 comments underneath the Daily Mail story would soon see that Mr Long’s philosophic attitude is not universally shared. (Although those who publish comments in the Mail Online are not – I hope – a representative sample of public opinion).

The most popular comment, with 11,455 ‘likes’ came from “Blue Russian” in Southampton:

‘This speaks volumes for what I have been saying on this forum for several months. Hell hath no fury but these false accusations should not be allowed to go unpunished.’

Many others expressed a similar view: that Tina should be prosecuted and sent to prison.

It is impossible not to sympathise with that view, and perhaps a prosecution will follow. That said, there may also be very good reasons, including Mr Long’s own wishes, why a prosecution should not take place. This blog is certainly not the place to speculate on what may or may not happen to Tina.

Moving from the specifics of Mr Long’s case to the general, prosecutions for making false allegations are unusual. According to a survey of prosecutions for false rape accusations carried out by the CPS, over a 17 month period leading up to May 2012 there were only 35 prosecutions for making a false accusation of rape. By way of comparison, during the same period there were a total of 5,651 prosecutions for rape. According to Keir Starmer, the then Director of Public Prosecutions who ordered the survey, this showed that false accusations are ‘relatively rare’.

In fact it showed nothing of the sort, merely that prosecutions for making false accusations are relatively rare.

There are many reasons why prosecuting people who have made false allegations may not be possible, or not advisable.

People who make false accusations – I rather like Anna Raccoon’s word ‘allegators’ but it hasn’t quite caught on yet – do so for all sorts of reasons. When they relate to events that supposedly took place years or decades earlier it can be especially difficult to do more than guess at the reasons.

It is of course possible that the accuser believes that abuse took place, when in fact it did not. If you are reporting a rape that happened a few hours ago it is relatively unlikely that you are mistaken (although drink or drugs might increase that risk). On the other hand, if you are reporting abuse that happened decades earlier the chances of mistaken memory increase dramatically. An expression which is often used is ‘false memory syndrome’ although that is a misleading phrase that suggests some sort of pathological condition. In fact we all have highly fallible memories. As Elizabeth Loftus, the bête noire of the ‘recovered memory’, movement put it: memory does not work like a video recorder, ‘it works more like a Wikipedia page: you can go in there and change it, but so can other people’.

Elizabeth Loftus: "Memory is like a Wikipedia page"

Elizabeth Loftus: Memory is like a Wikipedia page

Psychologists Julie Shaw and Stephen Porter looked into the question of false memory in a recent study:

The mind seems to be able to construct information from internal and external sources to generate a coherent but false picture of what occurred …. These plausible confabulations are likely constructed from real autobiographical memory fragments but are configured in ways that depict events that did not occur.’

Shaw and Porter took a group of undergraduates studying at a Canadian University and with careful questioning were able in 70% of the participants to induce false memories of childhood involvement in a crime. (They assumed that the memories were false both because they were not revealed in a preliminary questionnaire, and because they had checked with the participants’ parents that the events in question had not occurred). The “memories” included assault, theft and attack by an animal. One might have expected such incorrect memories to be rather vague and hazy. In fact they were not, they were described as “richly detailed.” The authors made the point that it is very difficult to distinguish true from false memories:

‘False memories may actually be recalled in a way that is surprisingly similar to how memories for real events are retrieved. Consequently, as the results here indicate, true and false memories have many similar features— including being highly detailed and multisensory. These results are also in line with neuroimaging research showing that true and false memories evoke similar brain activation patterns … and that even highly emotional content may not reliably indicate memory accuracy …. Therefore, it may prove difficult in the real world to reliably tell the difference between true and false memories without independent corroboration.’

In other words, not only is it very hard for anyone listening to the false story to distinguish truth from fiction, there would be no reason even for the story tellers themselves to realise that they were not telling the truth.

It should be noted that although in the study false memories were implanted deliberately by the researchers, the tactics they used to do so mimicked the sort of thing that could easily happen accidentally in the “real” world:

‘The tactics that were scripted into all three interviews included incontrovertible false evidence (“In the questionnaire, your parents/caregivers said. . .”), social pressure (“Most people are able to retrieve lost memories if they try hard enough”), and suggestive retrieval techniques (including the scripted guided imagery). Other tactics that were consistently applied included building rapport with participants (e.g., asking “How has your semester been?” when they entered the lab), using facilitators (e.g., “Good,” nodding, smiling), using pauses and silence to allow participants to respond (longer pauses seemed to often result in participants providing additional details to cut the silence), and using the open-ended prompt “what else?” when probing for additional memory details. We also used the tactic of presumed additional knowledge if participants asked about the accuracy of details. In other words, participants were told that the interviewer had very detailed information about the event from their caregiver but was able only to vaguely confirm details (e.g., “this sounds like what your parents described,” “I can’t give you more details because they have to come from you”). Further, when participants reported that they could not recall the false memory, the interviewer seemed disappointed but sympathetic (while saying the scripted line “That’s ok. Many people can’t recall certain events at first because they haven’t thought about them for such a long time.”) and scribbled down a note on her clipboard.’

If Shaw and Porter are correct, and their findings seem to be in accordance with other research, it means that there are likely to be at least some, and probably a significant number, of false accusations in which the accuser believes his or her false accusation to be true.

In such cases – even assuming the accusation was demonstrably false – it would be wrong to charge the false accuser with perjury or perverting the course of justice because not only would they have had no intention to mislead, they would have done nothing morally wrong. Indeed, to say that you have been abused in your childhood (if you believe that you have been) is generally regarded as commendable.

Well, the Daily Mail commenters would say, even if there are some cases where the accusers actually believe their own nonsense, we should at least prosecute the ones who know that they are lying.

But even this is not so simple. Many of the reasons why not are set out in the CPS report, which I commend for that reason, even if its statistical rigour is open to question.

Proving falsity
Obviously the first problem is proof. If an uncorroborated allegation of sexual abuse is made and denied there is often no way of conclusively sorting out who is telling the truth.

Merely because a rape prosecution has failed, it does not follow that a perjury or perverting the course of justice prosecution of the complainant will succeed. Any criminal charge needs to be proved ‘beyond reasonable doubt’ and proof to that standard is meant to be difficult. Many sex cases amount to ‘one person’s word against another’ and that may be the very reason that they fail; but it makes no sense every time there is an acquittal to turn the tables and prosecute the complainant on same flimsy basis of one person’s word against another.

Retracting the retraction
Even if a complainant has admitted that she has lied, prosecuting her for having done so is far from straightforward. What happens, for example, if a complainant admits she lied, and then changes her mind and says “actually I was telling the truth, and I was raped”?

Such a case was R v. A [2010] EWCA Crim 2913. A 28 year old woman made a complaint of rape against her husband. Just before his trial she retracted her allegation, and said that she had lied. The rape case was dropped and she was then arrested for perverting the course of justice by making the false allegation against her husband.

However, once the case against her reached court she changed her mind yet again, and said that the allegations of rape had in fact been true after all, and that it was her retraction of them that was false. By now in a state of complete – though very understandable – confusion, the CPS decided to prosecute her on an indictment containing alternative and mutually contradictory counts of perverting the course of justice, either by making the original false allegation of rape, or by retracting a true allegation of rape. In the end she pleaded guilty to retracting the true allegation, whereupon she was sentenced on the basis that she had indeed been raped, even though her husband had been formally acquitted of doing so. She was sentenced to 8 months imprisonment, to considerable public outcry. Faced with an unusually difficult case the Court of Appeal decided to show mercy by quashing the eight month sentence that had been passed in the Crown Court and substituting a two year supervision order.

Giving the judgment, Lord Judge first set out the reasons why perverting the course of justice normally leads to an immediate prison sentence.

But in this case Mrs A had pleaded guilty not to making a false allegation of rape, but to retracting a true allegation, and said she had done so under pressure from her husband, the very man who (according to her plea) had originally raped her.

That justified a very much more lenient sentence:

‘The difference between the culpability of the individual who instigates a false complaint against an innocent man and the complainant who retracts a truthful allegation against a guilty man will often be very marked. 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.’

Following R v. A the CPS issued guidelines that make it clear that the retraction of an allegation is never enough, in itself, to justify a prosecution.

‘A prosecution should never be based solely on evidence of a retraction. In such a case it would only take the suspect to withdraw the retraction and revert to the truth of the original allegation for the prosecution to be left in situation where it would be impossible to say which version of events is true. Therefore, there would always have to be some other evidence to prove falsity for there to be sufficient evidence for a prosecution.’

This makes good sense read in isolation. On the other hand, the CPS regularly brings prosecutions for sexual offences based upon the uncorroborated and disputed evidence of a single complainant. Indeed, CPS guidance for prosecutors in cases involving violence against women and girls (they call it a ‘toolkit’ for some inexplicable reason) is that ‘using the lack of corroboration of a victim’s account to justify a decision to drop proceedings is flawed’.

It is not clear why when the proposed charge is perverting the course of justice no charge should be brought unless the retraction is corroborated, whereas in making a charging decision in an ordinary rape case the fact that the complaint is not corroborated has to be ignored.

The mentally ill
Even if an allegation is shown to be clearly untrue, there may still be grounds for not prosecuting its maker.

Perhaps, like Eleanor de Freitas, she has a serious mental illness. 23 year old de Freitas suffered from bipolar disorder. In January 2013 she made a rape allegation against a man, which was not pursued on the grounds of “lack of evidence.” However when the rape case was dropped, the man in question decided to to start a private prosecution against her for perverting the course of justice. The prosecution was then taken over by the CPS. 3 days before her trial she committed suicide. The coroner found that her pending trial was a “significant stressor in her life,” which sounds like a considerable understatement. With the huge advantage of hindsight it seems that the decision to prosecute her may have contributed to her death.

In the 17 month long CPS survey mentioned above, 38% of false sexual allegations involved a complainant who had not herself made the initial complaint to the police. In some cases they may have been lukewarm about complaining at all and ‘it was a feature of these cases that the suspect later reported that the whole thing had spiralled out of control and he or she had felt unable to stop the investigation’.

Young, vulnerable or suggestible
In a case where a complainant is young, vulnerable or suggestible it may be very unfair to prosecute her, particularly if her complaint originated in fear at being found to have had consensual sexual relations with someone disapproved of by her family.

If a young woman has been sexually and physically abused for years and embroiders a genuine complaint against her abuser with a false sexual allegation is it always right to prosecute her? It may well be, but the decision is not always obvious.

Of course there are occasions when it is entirely right and proper to prosecute those who make false allegations. On the other hand, real life is often far more complicated than it seems at first, and the bludgeon of a criminal prosecution sometimes does more harm than good.