Securing other evidence to avoid ‘he said, she said’ prosecutions

Sir Bernard Hogan-Howe, the outgoing Commissioner of the Metropolitan Police, has issued an apology for the catalogue of errors in the recent Westminster VIP paedophile ring enquiry, an investigation which seems to have placed an inordinate amount of credence on one witness, “Nick”, who made detailed but uncorroborated allegations of historical sexual abuse, and even murder. Sir Bernard said that Operation Midland “should have tested the credibility of the complainant more rigorously”, and “It is a matter of professional and personal dismay that the suspects in the investigation were pursued for so long when it could  have been concluded much earlier”.

Sir Bernard went on to issue apologies to the former politicians for publically identifying them as suspects, for the intrusion caused by searching their homes, and for the overall impact of the investigation. Of course, these men happened to be high profile individuals with helpful, sometimes powerful, voices within the Press who often challenged the police investigation.

We don’t yet know precisely why “Nick” was eventually deemed unreliable by police. We don’t know whether any objective evidence that categorically proved “Nick” was mistaken and/or lying has been uncovered.  We do know that “Nick” is now under investigation for perverting the course of justice. Perhaps ironically, throughout that investigation “Nick’s” true identity remains protected.

But quite apart from that familiar argument over pre-charge anonymity, this profound apology from London’s most senior police officer is in stark contrast to what happens in the vast majority of unsuccessful charges. Currently, we know a staggering 40% of Crown Court work is sexual allegations.  These are, increasingly often, one person’s word against the other. Only about half of such cases lead to conviction. Of the 50% who are not convicted of anything - is it because the ‘complainant’s credibility should have been tested more rigorously’? If so, should there not be hundreds of profound apologies issued each month?

The Oxford abduction that never was.

Two months ago on 29 September 2016, the national news was dominated by a report that a 14 year old girl had, on her way to a school in Oxford, been dragged from a busy road into a car and later raped by two men. However, since then no prosecution has been brought, and, on 11 November 2016, police declared in fact this abduction ‘did not take place’. They concluded this from ‘reviewing CCTV footage, dash cam footage and eye-witness accounts’.  As is common, this police explanation raises more questions than it answers.  However, we should at least be relieved that there was some objective investigation into the truth of the basic allegation.

In general terms of course, there will always be some allegations that are unsubstantiated or uncorroborated by either objective material or any supporting witnesses. Should all such prosecutions be disallowed due to this?  Of course not.  There is, and remains, particular difficulties with historic prosecutions.  Any such ‘objective material’ is far less likely to still exist. There might be no witnesses who can remember anything of relevance. The police and Crown Prosecution Service have a very difficult job, and should not be honour-bound to apologise whenever their case ultimately fails.  However, for any allegation made anything like promptly, there will often be a wealth of objective material which both sides (not just the police) must now be considering as a mandatory checklist.

No-one should tolerate the one-eyed investigation.

This firm recently defended a taxi driver accused of sexually touching a passenger’s leg as she decamped from his vehicle outside her home.  It was also alleged that he loitered around outside her house for about five minutes trying to talk his way inside. He denied the offence, without a lawyer present in police interview, claiming he was merely helping her to remove her property from his back seat, and any physical contact was incidental to that. He said he never got out of his vehicle, but promptly drove away for his next fare. There was no CCTV inside his vehicle or in the area, and no possibility of forensic evidence. He was prosecuted for sexual assault, lost his job, and had to appear in court twice before the prosecution case was dropped.

What was of note was the lack of any recourse of GPS tracking evidence by the investigating officers. With reference to the taxi company’s App, e-mails and GPS records, it would have quite simple to pin down the movements and see whether the taxi promptly drove away or whether in fact it ‘loitered’ outside the address for five minutes, which was plainly in issue from Day 1. Yet, at the time of police interview, it did not occur to anyone to check this point out. As a direct result our client (a family man of good character) was prosecuted on a “He said, she said” basis which robbed him of his private hire licence for at least 5 months – for which there is, and will be, no compensation. Had the police investigation objectively checked the precise location and movement timings of his vehicle pre-charge, he might well have been spared this prosecution altogether.

We must all think like a modern-day Lieutenant Columbo

These days, with simply everybody leaving an electronic footprint the size of Essex (yes, especially you), it ought to be compulsory for both investigators and defence representatives to have a checklist of third party material which may be relevant to support or verify their case. As defence lawyers, we often see people deny offences in questioning whilst unrepresented, but they fail to specify, or oblige the police to retain, obtain and check material which might support what they are saying or flatly contradict something the accuser is saying. Even with a lawyer present, it is amazing how often this defence ‘counter-investigation’ is not done at all, prior to charge. Relevant material is simply not secured. The “no comment” culture and also the scandalously low legal aid fees contribute to this problem. There is sometimes a pre-disposition to simply place reliance on the burden of proof and answer ‘no comment’ without any thought to gathering defence material or even advising just alerting the client to its existence and relevance. This can be highly irresponsible because potentially helpful memories may fade, CCTV may be recorded over, and call records/e-mails may be deleted as time passes.

To ensure a fair trial, ‘rigorously testing the credibility of criminal complainants’ is not just a police job. It is everyone’s job. So if you are a defence lawyer and your client insists he is telling the truth, perhaps he needs to start seeing the ‘Big Brother’ State as his new best friend, and so do you.

Good defence solicitors should routinely analyse these checklists for people accused of an offence during police investigation, building up material which may assist and support the defence account and/or show that any mitigation is genuine and credible.

Click here to find out how Brett Wilson LLP criminal defence solicitors can help you if you are the subject of a criminal investigation or prosecution.