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A consultation on CPS Interim Guidance on Perverting the Course of Justice – charging in cases involving rape and/or domestic violence allegations - Summary of Responses

Contents

Introduction

This is a summary of the responses to: ‘A consultation on CPS Interim Guidance on Perverting the Course of Justice – Charging in cases involving rape and/or domestic violence allegations’.

It sets out:

  • the background to the consultation
  • a summary of the responses
  • a summary of the responses to the specific questions
  • our conclusions.

Further copies of the summary of responses can be obtained by contacting:

Perverting the Course of Justice Consultation
CPS Strategy & Policy Directorate
Rose Court
2 Southwark Bridge Road
London SE1 9HS

They may also be obtained by email from: cpsconsultation@cps.gsi.gov.uk

Copies are also available on the CPS website – www.cps.gov.uk

Background

In February 2011, the Crown Prosecution Service (CPS) launched a public consultation on its Interim Guidance on Perverting the Course of Justice – charging in cases involving rape and/or domestic violence allegations. The aim of the consultation was to seek the views of interested parties about the factors the CPS should consider before charging a person involved in rape or domestic violence allegations with an offence of perverting the course of justice.

The CPS has responsibility for reviewing cases involving rape and domestic violence allegations and applying the Code for Crown Prosecutors to decide whether there should be a prosecution for perverting the course of justice. To assist prosecutors making that decision, we prepared new guidance for prosecutors by consulting publicly and internally. The Legal Guidance will be a source of reference to prosecutors and is designed to assist prosecutors making decisions in this type of case. An amended version of the document which was the subject of consultation will become the Legal Guidance on Perverting the Course of Justice - charging in cases involving rape and/or domestic violence allegations. The Legal Guidance is published alongside the summary of responses.

As part of the public consultation, respondents were asked to answer four specific questions and to give any additional comments or views at the end of their response. The consultation period closed on 6 May 2011, although a small number of responses were received after this date but were given full consideration. All replies have been included in the summary of responses. A list of respondents can be found at Annex A. We are very grateful to everyone who took the time to respond to the consultation.

From Interim Guidance to Final Legal Guidance

From 7 July 2011, the final Legal Guidance comes into force, superseding the Interim Guidance that was published in February 2011. As a result of the consultation, we have made a number of changes to strengthen the guidance. The key changes made to the guidance include: referencing CPS policies relating to Violence against Women (VAW); introducing greater clarity about the meaning of perverting the course of justice; and making it clear that false allegations, retractions and ‘double retractions’ are different from one another and raise separate issues. References to the offence of wasting police time have also been included.

The list of reasons why complainants may sometimes retract a true allegation has been expanded. We have also clarified and extended the list of considerations that prosecutors should bear in mind when applying the public interest stage of the Full Code Test in these cases. We have also acknowledged the need to take very great care when dealing with children and young people who have made false allegations or made retractions, and we have referred back to the CPS Legal Guidance on Youth Offenders and the particular considerations that apply when considering the prosecution decision in respect of children and young people. It has also been agreed that the requirement to refer cases to the Director of Public Prosecutions will continue.

We have not been able to make changes to reflect all the points we received. A number of the points were based on a misunderstanding about the purpose of the legal guidance which, although accessible to the public at large on the CPS website, is specifically designed to provide advice to prosecutors. As a result suggestions that it should be written in language suitable for lay persons and include flow charts and illustrative examples, have not been made to the final guidance.

Some respondents also sought for the guidance to clearly set out the circumstances in which victims would be charged in relation to a withdrawal or retraction. Whilst we have gone some way in clarifying the circumstances in which, in reaching a decision to prosecute, the prosecutor must be able to prove that the original allegation was false, it is simply not possible to state categorically all the circumstances in which a prosecution will take place. Similarly it is not possible to identify categorically circumstances in which a prosecution will never take place.

Summary of Responses

In total there were 63 responses received from 42 respondents. Two organisations submitted a joint response which has been classed as one response for the purposes of this summary. Respondents were divided into the following three categories:

  • responses from individuals;
  • responses from organisations; and
  • responses from criminal justice agencies.

Details of the three categories of respondents are illustrated in Table 1 below.

Table 1: Table of respondent type

Summary of Respondents

Category of Respondent Number Percentage of Total
Individual Respondents 9 14
Organisations 34 54
Criminal Justice Agencies 20 32
Total 63 100%

Not every respondent gave specific answers to each individual question in the consultation. Table 2 below shows the total number of responses to each question and the percentage that represents the total number of respondents, irrespective of type.

Table 2: Table of responses to individual questions as a percentage of the total number of respondents

Responses to individual questions as a percentage of all respondents

Question Number of responses received Percentage of total number of respondents
1 55 87
2 51 81
3 52 83
4 47 75
5 47 75

Each individual response has been reviewed by CPS Strategy and Policy Directorate. Not all respondents have followed the specific questions posed in the consultation document but the views of the respondents are reflected in the above tables and the detailed analysis of the responses that follows.

Responses to specific questions

QUESTION 1: Is the description of perverting the course of justice clear?

There were 55 responses to this question, 37 of which agreed that the description of perverting the course of justice was clear. Several provided suggestions on how to enhance certain aspects to make it more comprehensive.

Whilst respondents considered that the document would be sufficient for use by professionals, five stated that the terminology and language may prove too complex for lay persons. One respondent suggested producing a supplementary policy document for public use and another was of the view that separate guidance should be produced for children under the age of 18 years who allege rape.

Two respondents felt that the difference between perverting the course of justice and perjury may not be understood by the public and three others pointed out that an actual definition had been omitted from the guidance. It was suggested that illustrative examples of what an ‘act’ is and how the course of justice can be perverted could be inserted for clarity.

One respondent advised that, to illustrate how retractions can pervert the course of justice, it may be helpful to reference public interest: securing convictions of those who have raped to secure the safety of others. Another felt that the guidance was not clear as to whether the offence would be invoked on this basis. It was also thought to be unclear whether the offence requires the intention to pervert the course of justice by naming a perpetrator or whether an allegation alone would suffice.

Nine respondents expressed the view that false allegation, retraction and withdrawal of a retraction had not been sufficiently differentiated or defined in the description. It was felt that the alignment of these terms in paragraph 3 would appear to suggest that they are similar in terms of perverting the course of justice and should be treated in the same way. These should all be fully explained and case examples inserted to highlight the differences. A number of respondents also wanted the guidance to state, from the outset, that retraction or withdrawal should not give rise to criminalisation where there is no evidence that the original allegation was false. It was noted that false complaints are not always malicious and some felt that only those that are should constitute a false allegation. One respondent also wanted the policy to clearly state that both true and false allegations can be retracted.

Although mentioned later in the guidance, it was felt that the reasons why someone might retract should be outlined in this section, with the suggestion that this be linked to paragraphs 6-7 regarding intention. One respondent expressed concern at the emphasis on false allegation in paragraphs 4-7, believing that this creates an assumption that most people retract because the original allegation was false. Another suggested that these paragraphs be placed at the start of the section.

Respondents wanted the guidance to clearly distinguish false allegations from retraction and withdrawal and three requested that the circumstances in which victims would be charged for a withdrawal or retraction be made clear.

Whilst some respondents questioned why the lesser offence of wasting police time is not invoked in cases of retraction and withdrawal, others expressed concern at the possibility of this charge being used.

One respondent disliked that the offence was set out in a bullet point construct under paragraph 4; the elements are interdependent, to be read as one sentence. Another respondent wanted paragraph 6 to add ‘in all the circumstances (including historical)’ after the words ‘when objectively viewed’.

Three respondents felt that essential context was omitted from this section, namely facts, figures and background information on rape/domestic violence, retractions, withdrawals and false allegations.

Another respondent viewed that the guidance should avoid conflating domestic violence and rape.

It was suggested that all CPS policies relating to violence against women be referenced under paragraph 2. It was also advised that information regarding relevant support agencies for people who retract or withdraw be included.

Four respondents commented that the policy is reliant upon consistency in police investigations and categorisation of cases, particularly false allegation. Three went on to state that it will be necessary for the police and the CPS to agree definitions and protocol for handling and recording cases to allow more accurate assessments to be made as to its occurrence.

Two respondents noted that the way in which the policy is publicised could impact upon victims coming forward due to concerns regarding the implications this could have upon them. Another felt that publication could also feed the public misconception around women making false allegations. They viewed that the intent and context of the document should be made clear.

QUESTION 2: Do the observations on the evidential stage of the Full Code Test clearly set out the issues we should address when deciding whether there is sufficient evidence to justify a prosecution? If not, please suggest how this could be achieved.

There were 51 responses to this question. Of these responses, 18 were generally positive and did not indicate any strong disagreement. A number of respondents commented on points requiring clarification and suggested enhancements.

It was felt that the public may not comprehend this section, the view being that the language could be more accessible and flowcharts included.

11 respondents considered there to be a heavy focus on domestic violence and requested that the guidance apply equally to and mention rape and sexual violence throughout. However, one respondent felt that the concentration was on false allegations of rape or sexual offences.

Many felt that a clear policy statement is required at paragraph 9 that the CPS will only pursue a charge of perverting the course of justice where the original allegation was false and made maliciously. It was felt that victims should not be discouraged from reporting their abuse for fear of the implications should they decide to retract or withdraw. Nine respondents also felt that the penultimate sentence in paragraph 10 should be recast from ‘this is unlikely to be sufficient’ to ‘this is not sufficient’ and one suggested that the first sentence, ‘one person’s word against another’s’, be re-worded to avoid reinforcing the rape myth of women lying.

Four respondents commented that paragraph 12 appeared too negative.

Respondents considered that paragraph 13 could be more comprehensive as to the reasons why a victim might retract, with 11 offering suggestions as to further factors to consider. Examples included: family/community pressures; safety concerns; impact upon children; fear of going to court; barriers for black and ethnic minority women; young people; mental health and disabilities. They recommended that research on this area also be cited and advised that the policy be in line with that of the Ministry of Justice on special measures and what makes a victim vulnerable or intimidated.

Twelve respondents wanted specialist voluntary sector organisations to be mentioned in paragraph 16. It was pointed out that, in some cases, there will not be evidence of a background of domestic violence but that the absence of evidence listed under paragraphs 15 and 16 should not be interpreted as proof that the original allegation was false. Further suggestions on sources of evidence to consider included: friends, family, neighbours and colleagues. Respondents also noted other evidence to have regard to, such as incidents leading up to and following the allegations, any previous allegations made to the police, psychiatric and similar fact evidence.

It was the view of one respondent that the considerations for prosecutors in paragraphs 14-16 should not come into play unless there is evidence that the original allegation was false; this is currently presupposed in the guidance.

Two respondents raised concerns in terms of the level of training undertaken by prosecutors and police, and their appreciation of the reasons why victims might retract or lie about the original allegation. The concern was that their understanding will impact on the course of action taken following a retraction. There needs to be a clear policy throughout the guidance, namely: prosecution of the perpetrator, not persecution of the victim.

It was noted that the guidance should state that retraction and withdrawal are quite common where the original allegation is likely to have been true.

Some felt that paragraph 17 was confused, with one suggesting that the first sentence be deleted. Others wanted it to be consistent with paragraph 10 by stating that, in cases of double retraction, where there is no evidence to establish that the original allegation was false, perverting the course of justice should not be charged. An example of double retraction would be helpful.

Other respondents considered that the guidance was balanced in favour of not prosecuting these cases, for instance, by using the word ‘victim’; by assuming that the allegation is genuine; and omitting detail as to when the evidential test would be met. One respondent advised that the guidance should not caution against assuming that the original allegation was made with the intent of perverting the course of justice - emphasis should instead be placed on the likelihood that a retracted allegation will be true.

One response highlighted a number of other factors for prosecutors to consider. They felt that there is a link between biased and negligent rape investigations and prosecutions for perverting the course of justice; that women who have experienced rape on more than one occasion are more likely to be disbelieved; and that there is prejudice against women who are mentally ill, drug users, immigrants or asylum seekers.

Several further improvements were suggested, notably that the guidance should: incorporate the offence of wasting police time; include an indicative list of circumstances which are not by themselves symptomatic of a false allegation; place paragraphs 13-16 before 10-12; consider prosecuting individuals who attempt to influence a retraction/withdrawal by use of duress; reference rape in the context of all forms of violence against women; advise as to the relevance of certain types of evidence e.g. mobile phone videos; distinguish between evidence relating directly to the allegation and that which is relevant to the circumstances surrounding it e.g. CCTV; mention ‘learn helplessness’ and ‘res gestae’ evidence; and finally, include more information on the needs of diverse victims and any particular difficulties they may face.

QUESTION 3: Does the section on the public interest stage of the Full Code Test clearly set out the factors which we would consider when deciding whether it is in the public interest to prosecute? If not, please suggest how this could be achieved.

There were 52 responses to this question. While 21 respondents agreed that the public interest stage was clearly set out, a number of respondents suggested how further clarity could be achieved, including the use of examples and case law.

Confusion was caused by use of the term ‘suspect’ to describe both the person accused of rape/DV and also the person who made the allegation. A clear distinction is therefore required to remove any ambiguity.

Two respondents felt that the last sentence of paragraph 21 was confusing and expressed concern that a case could be commenced where there are factors tending against a prosecution from the outset.

With regard to paragraph 22, it was thought that more discussion was required on the impact of rape, accounting for the diversity of victims and how this can influence retraction. It was also suggested that the quote here would be more appropriately situated in the previous section on the evidential test.

Three respondents pointed out that most false reports of rape do not have a named offender, as is currently implied in paragraph 23. The wording therefore needs to be amended to reflect that a ‘devastating effect’ upon the accused will not necessarily be the outcome in cases where the offender’s name is not in the public domain. Another thought that the CPS should be sure that the person has been wrongly accused before considering the effect it has had on them.

Several respondents commented on the use of ‘history of demonstrably false complaints’, seeking a definition and further clarification. One respondent felt that previous withdrawals of evidence or failure to attend court to give evidence should not be taken at face value or indicate that any previous allegation was untrue. There was also concern about how the police record complaints as crime or non crime and that a previous unproven complaint could be counted as a false one.

Respondents also sought a clear, objective definition and illustrative examples of ‘significant damage to his or her reputation’. Two considered that this point should be removed on the grounds that it was subjective, elitist and irrelevant.

Two respondents wanted paragraph 25 to clearly state that there is no public interest in prosecuting cases where a retraction was the result of threats, intimidation or pressure by the accused, their family or friends. Another three were of the opinion that it would be hard to justify a prosecution where malice was not present. One respondent sought elaboration on the means by which a prosecutor would determine whether there is a ‘history of domestic violence’, whilst others expressed concern that this is treated as a mitigating factor rather than a firm reason against prosecution.

Another thought it was dangerous to consider Public Interest factors for sentencing.

A number of respondents believed that age, mental health and learning difficulties should be taken into account as factors under paragraph 25. One in particular wanted the guidance to acknowledge diversion to the voluntary sector or social services as being a more effective disposal than charging in certain cases. The fact that a woman may be traumatised, confused or unclear about what happened should also be considered.

Two respondents made comments pertaining to children who make allegations, with one advising that the guidance acknowledge the particularly complex set of circumstances and dynamics which may lead a child to pervert the course of justice. Another recommended that the undue pressure that may be placed on children to retract should also be taken into account.

Several respondents provided a range of further factors to consider under the public interest stage. Three in particular wanted specific mention made of the low conviction rate for crimes of domestic and sexual violence and the deterrent effect prosecutions for perverting the course of justice has upon the reporting of these crimes.

One respondent felt that consideration should be given to media coverage of these cases and the impact upon public perception.

There was a suggestion from one respondent that a flow chart may assist to follow through the deliberately made false allegation, word on word retraction and double retraction.

QUESTION 4: Have we provided sufficient explanation of what we mean by “double retraction” and are the factors to be considered in such cases clearly set out? If not, please suggest how this could be achieved.

There were 47 responses to this question, of which 26 agreed that a sufficient explanation had been given. Five respondents referred to comments made earlier in the consultation.

Three respondents noted that this is a difficult concept for non-legal minds to comprehend and it was suggested that a flow chart may assist understanding.

Many respondents queried whether a prosecution in these circumstances would ever be appropriate.

Six respondents thought that there should be stronger guidance with regards to what the prosecutor should do if they believe the original retraction was false. The view was that it is unlikely to be in the public interest to charge where the original allegation was true. One respondent felt that, in cases of double retraction, the CPS should proceed with a prosecution against the alleged perpetrator of rape.

One respondent wanted the guidance to acknowledge other factors that may lead to an allegation being withdrawn. For example, women may retract when they feel that a police investigation is not being diligently pursued and that they are in greater danger as a result of having made a report.

Another respondent thought that a retraction made following a conviction in an attempt to get the conviction and sentence overturned would merit prosecution. However, prior to conviction, a charge of wasting police time is more appropriate.

One respondent felt that the inclusion of the words ‘rather than the complaint of rape/DV’ after the words ‘original retraction’ would aid clarity.

Two respondents questioned whether the last sentence of paragraph 26 would read more clearly if the term ‘suspect’ was substituted with ‘victim’ or ‘complainant’.

One respondent thought that paragraphs 17 and 26 should be more strongly worded in stating that charging alternative counts should be exceptional rather than simply advising of the need to be ‘cautious’ about doing such.

Another considered the apparent lenient treatment of ‘double retractions’ to represent an easing of the law in this area which could have harmful consequences, encouraging perjury and/or perverting the course of justice.

Finally, two respondents commented that the explanation is framed in terms of domestic violence, though this also happens with respect to sexual violence. Another also noted that all forms of violence against women should be referred to, not just domestic violence.

QUESTION 5: Any other comments about the document?

There were 47 responses to this question.

Six respondents considered this to be a clear, coherent document. However, whilst two of these felt that the guidance would be understood by those with a non-legal background, one other was of the view that the public would not grasp certain terminology. One respondent warned that any simplification should avoid losing the current breadth and clarity of the guidance.

Concern was expressed by some that publication might discourage victims from coming forward, contributing to the under-reporting of these crimes and fuelling the ‘culture of disbelief’. To address this, three respondents wanted there to be a clear statement as to the purpose of the document.

Others highlighted the need to consider media coverage of prosecutions for perverting the course of justice, the effect of which can reinforce public misconceptions around the prevalence of false allegations and re-victimise survivors. Two respondents wanted the guidance to clearly state that false allegations of rape and prosecutions for perverting the course of justice only occur in exceptional circumstances.

Another warned prosecutors of the fundamental bias against women and wanted prosecutors to be aware of the institutional and cultural sexism within which police officers operate.

The need for more detailed description and separation of the terms false allegation, retraction and withdrawal was reiterated, as was the importance of clearly distinguishing false allegations from the latter two. Further explanation on factors influencing retractions and withdrawals was also sought, as well as case examples to illustrate certain scenarios. For example, to indicate circumstances that would and would not give rise to a charge of perverting the course of justice.

A number of respondents again advised on the need for clearer recording rules and uniformity of application by the police and the CPS as to what will constitute a ‘false allegation’. It was also recommended that data be collected in cases of retraction, recording the reasons for this.

Two others also restated the need to fully address rape throughout the document, having viewed there to be a focus on domestic violence.

It was the view of three respondents that the DPP should continue to oversee these cases. Others stressed the importance of experienced and specialised lawyers advising on them and one in particular wanted the requirement for a second opinion under paragraph 27 to be emphasised as being mandatory. Another suggested that a checklist be used to confirm that all relevant issues have been considered by prosecutors.

Respondents flagged the importance of adequate provision of support and information to victims of rape within the criminal justice process, including the availability of special measures and entitlement to media anonymity. It was recommended that prosecutors receive information and background on the case prior to engaging with the victim to assist in meeting their expectations in terms of outcomes. It is therefore necessary that both victims’ and criminal justice outcomes are performance measured.

Four respondents felt that the guidance would be enhanced by including information and examples of how perpetrators of domestic and sexual violence can pervert the course of justice, for example, by harassment and intimidation of the victim.

Whilst it was considered that the offence of wasting police time should be referenced, one respondent cautioned that this offence needs to be approached in an analogous way. Another suggested that CPS work with ACPO to ensure that penalty notices for disorder (PND) are not used inappropriately by police.

Some respondents were doubtful as to how prosecutors will be able to distinguish retraction of a false allegation from a true one. One respondent questioned the position for mentally ill individuals making malicious false allegations.

Other suggested enhancements included: the inclusion of a table or flowchart setting out the differences between the evidential and public interest stage; clarifying whether a conviction for perverting the course of justice in double retraction cases will be admissible as bad character evidence in any future proceedings; making the document available in other languages; emphasising the under-reporting of rape and domestic violence; acknowledging that at least 50% of rapes are carried out by current and former partners; and deleting the words ‘relevant’ and ‘especially’ in paragraph 28.

One respondent was of the view that, in the first sentence of paragraph 26, ‘retraction of the retraction’ should be changed to ‘original retraction’.

Two respondents raised issues pertaining to the treatment of the accused perpetrator in these cases. One felt that there is a degree of discrimination in terms of the response to miscarriages of justice in perverting the course of justice cases compared to those where a man is wrongly convicted. The other noted that the guidance omits any mention of the rights of the accused upon being found innocent, such as entitlement to compensation and the right to have their name removed from the CRB database.

Two respondents were of the view that the entire charge of perverting the course of justice needs to be overhauled and reconsidered.

Crown Prosecution Service

July 2011

Conclusion

The CPS is grateful to all those who responded to the consultation and the time that they have invested in doing so. We have carefully considered all the responses we received, and have taken them into account when considering whether to revise the Interim Legal Guidance. The changes will now be reflected in the final version of the Legal Guidance.

The CPS is committed to ensuring that our prosecuting policy enables our prosecutors to reach the correct charging decisions not only in Iine with current law, but also, where it is just and lawful to do so, taking into account the particular need to consider the elements of risk to and safety of victims and witnesses. This will ensure the CPS has a policy in which victims, witnesses and the public at large can continue to have confidence.

Consultation criteria

The six consultation criteria are as follows:

  • Consult widely throughout the process, allowing a minimum of 12 weeks for written consultation at least once during the development of the policy.
  • Be clear about what your proposals are, who may be affected, what questions are being asked and the time scale for responses.
  • Ensure that your consultation is clear, concise and widely accessible.
  • Give feedback regarding the responses received and how the consultation process influenced the policy.
  • Monitor your department's effectiveness at consultation, including the use of a designated consultation co-ordinator.
  • Ensure your consultation follows better regulation and best practice, including carrying out a Regulatory Impact Assessment if appropriate.

These criteria must be reproduced within all consultation documents.

Annex A

Response to consultation

Individual Respondents

1. Geoff Carr
2. Nigel Hallchurch
3. Jane Hoard
4. Ann Jeffries
5. Amy-Jo Lynch
6. Anthony Mcken
7. Christopher Morris
8. Michelle Murphy
9. Katie Smith

Organisations

10. Astraea Research and Training - Vera Baird QC, Professor Jill Radford
11. AVA (Against Violence & Abuse)
12. Campaign to End Rape
13. Commission for Victims & Witnesses
14. Criminal Law Week
15. Durham University, Professor Clare McGlynn
16. The Early Intervention Project, Portsmouth City Council
17. Eaves
18. False Allegations Support Organisation
19. The Howard League for Penal Reform
20. Imkaan
21. Iranian & Kurdish Women’s Rights Organisation
22. Justice for women
23. Lancashire SAFE Centre
24. The Law Society
25. CWASU, London Metropolitan University
26. Men’s Aid
27. Neighbourhood watch
28. NSPCC
29. PARITY
30. Refuge
31. Respect
32. Respond
33. Rights of Women
34. RoSA (Rape or Sexual Abuse Support Group)
35. Safer Vale Partnership – Domestic Abuse Coordinator Vale of Glamorgan, Bridgend
36. Shadow Equalities Team – Fiona Mactaggart MP
37. Standing Together Against Domestic Violence
38. University of Leicester - Mandy Burton
39. Victim Support England & Wales
40. Welsh Women's Aid
41. Women’s Aid
42. Women Against Rape
43. The Women’s Resource Centre

Criminal Justice Agencies

44. CPS Brighton/South East
45. CPS Dorset
46. CPS Durham
47. CPS Essex
48. CPS Greater Manchester
49. CPS London
50. Newham BCP
51. CPS North East
52. CPS Nottinghamshire/East Midlands
53. CPS Suffolk
54. CPS Sussex/South East
55. CPS Swansea
56. CPS West Mercia
57. CPS West Yorkshire
59. Cambridgeshire Police
60. Norfolk Constabulary
61. West Mercia Police
62. West Yorkshire Police - Operation Topaz: Investigation of Serious Assault
63. West Yorkshire Police – Domestic Violence HQ