Can you change your mind? – part 2

In the second part of this post, I take my readers back to the case of R v SB [2019] EWCA Crim 565, to consider some wider policy issues. You will recall that this appeal involved a retraction by a minor complainant called M, against her grandfather SB, who had been convicted of indecently assaulting her. The Court of Criminal Appeal refused to accept her retraction, and upheld his conviction.

Where does this leave M? The Court of Criminal Appeal rejected her evidence before it. Might it then be argued that M set out to mislead them? The Court rejected both M’s evidence, and that of her mother, P,  as “thoroughly unreliable”.

It was even more damning of P, who it said had “made up” her version of a conversation with the OIC, DC Milne, about wanting to withdraw the charges.

In practice, however, prosecutions for public justice offences, such as perverting the course of justice (PCJ) or perjury, are rare. PCJ involves an action, which tends to, and is intended to pervert the course of justice.

According to extant CPS Guidance:

The course of justice includes the police investigation of a possible crime (it is not necessary for legal proceedings to have begun). A false allegation which risks the arrest or wrongful conviction of an innocent person is enough. The word pervert can mean “alter” but the behaviour does not have to go that far – any act that interferes with an investigation or causes it to head in the wrong direction may tend to pervert the course of justice. All the prosecution needs to prove is that there is a possibility that what the complainant has done “without more” might lead to a wrongful consequence, such as the arrest of an innocent person (Murray (1982) 75 Cr. App. R. 58).

The vexed issue of retractions in sex offence cases – and of retracted retractions – came to public prominence back in 2010, when a woman known only as “Sarah” was convicted of perverting of the course of justice. She was sentenced to eight months imprisonment, after admitting this very serious offence. Her case led to a stormy public debate about whether domestic abuse victims should be prosecuted in these scenarios. Women Against Rape took up the cudgels on Sarah’s behalf.

Sarah had originally reported her husband for rape, and he was charged with six counts of rape. She then retracted her claims, and the CPS discontinued the case. Sarah then told police that her retraction was made up, and she was charged. Sarah’s explanation for her conduct was:

 I’d been advised by somebody that if I said I was lying, I wouldn’t be sent to prison because I am a single mum and I’ve got 4 children. That’s the reason why I said I was lying, because that’s what I presumed would happen. I was told I would get a suspended sentence as they wouldn’t put the kids in care.

Sarah appealed twice. In 2010, the Court of Criminal Appeal reduced her sentence to community service, with a two-year supervision order.  It explained that PCJ includes retracting truthful allegations or truthful evidence. However, it qualified this in the context of a woman in an abusive relationship:

the sentencing court, when assessing culpability, should recognise and allow for the pressures to which the truthful complainant in such a relationship has been exposed, and should be guided by a broad measure of compassion for a woman who has already been victimised.

It took the view that, in these situations, a non-custodial sentence should follow.

In 2012, the Court refused to quash her conviction, because it was not convinced by her claim to have been the victim of duress when she retracted her claims. She claimed to have been under emotional pressure, but gave no evidence of any threat of violence  made to her with the intention of making her retract her allegations of rape.

The Court emphasised that duress “involves pressure which arises in extreme circumstances, the threat of death or serious injury, which for the avoidance of any misunderstanding, we have no doubt would also include rape, and which cannot reasonably be evaded.” It involves overpowerment of will, which is qualitatively different from learned helplessness or passivity.

Accordingly, it concluded that Sarah’s “feeling concerned for or even fearful of her husband, or a sense of guilt, or concern about what would happen to her children if her husband was in prison for 10 years” was not evidence of duress.

Sarah’s new legal team advanced a post-conviction psychiatric report, stating that she had post-traumatic stress disorder (PTSD). The Court did not accept that this assisted her in making out a defence of duress, or any other psychiatric defence, such as provocation. It commented on “the now seemingly endless debate about the true constituents of the characteristics appropriate to a defendant advancing that defence” (meaning provocation).

The Court also took into account that the police had done their best to dissuade her, when she retracted her original complaint:

We have to be realistic. The allegation of rape depended on the appellant’s complaint. Her husband resolutely denied the allegations. The police were presented with a woman who they believed had been raped by her husband, but who was nevertheless determined to assert that the allegations against him were false. They made every proper attempt to dissuade her from retracting her allegations, without success. They sought to find an explanation, examining with her whether she had been forced by her husband to withdraw the allegations. They could not do more to help her avoid the consequences of her actions. They could not pressurise her into re-writing the script she was determined to provide, and indeed it is not beyond the bounds of imagination that they would have been criticised for being over forceful and lacking in sensitivity to the needs of a victim of rape who no longer wished to proceed with the allegations. Moreover once the case against her husband had been wholly undermined by the appellant’s first retraction and assertion that she had lied, the facts which might reasonably undermine her credibility would have been disclosed to her husband’s defence team. There was no alternative.

The Director of Public Prosecutions, Keir Starmer, weighed in to announce that in future, his personal approval would be required for any further prosecution of this type.

His Deputy, Alison Levitt, represented the Crown in Sarah’s appeal, and indicated that if the new Guidance which was since issued were extant at the time, Sarah would in all likelihood not have been prosecuted.

It is interesting that “Sarah” then sought compensation from the CPS, and was awarded £16, 000. Shen then applied for compensation from the Criminal Injuries Compensation Authority and appealed again, after it reduced her award.

As the new Guidance shows, it is now CPS policy almost never to prosecute retractors (or double retractors). The Guidance provides a broad array of extenuating factors which militate against false accusers being charged. For example:

The vulnerabilities of the suspect under consideration must be properly assessed and taken into account. Mental health issues, learning difficulties, age, maturity and substance misuse issues may have an impact at both stages of the Full Code test. Such vulnerabilities may, for example, have a bearing on the suspect’s ability to form the necessary intention or understanding of the consequences of their actions. They will certainly have an effect on public interest considerations. Such issues, especially mental health issues, may be the reason why a false complaint is made in the first place or why a complaint is retracted and these matters must be taken into account. 

It does go on to outline the considerations which weigh in favour of a prosecution for PCJ. They including the following factors:

  • a false complaint was motivated by malice;
  • a false complaint was sustained over a period of time (particularly where there were opportunities to retract);
  • the suspect has a history of making demonstrably false complaints.
  • the person originally accused was in a vulnerable position or had been taken advantage of; and / or
  • the person originally accused has sustained significant damage to his or her reputation.

Based on the above, it seems most unlikely that in the case of R v SB, the retractor M would be charged. It is likely that her minority and the fact that she could (no doubt) plead family pressure would militate against any action being taken against her.

What about her mother, P, whom the Court of Appeal said had made up part of her evidence? Strictly, perjury is a separate offence. But it is rare to charge a defence witness with perjury, especially where the defendant in question has been convicted and there is no clear evidence of collusion.

So both M and P seem to be in the clear. And that must be a relief to them both.