Presumption of Innocence Restored?

According to a recent report in the Mail on Sunday, the Police are “to drop their controversial policy of automatically believing anyone who reports a crime”.

The College of Policing have apparently produced new guidance for Police Officers encouraging them to be open-minded and impartial but not automatically assume that ‘victims’ are telling the truth.

In my opinion, such guidance cannot come too soon. I am aware of a number of miscarriages of justice that have arisen since the adoption of this ‘believe all’ policy.

The policy arose after the Jimmy Saville scandal when it was established that police had previously not taken seriously many rape and sex abuse claims and had too much power to decide whether or not allegations should be investigated.

Following review by the HM Inspectorate of Constabulary in 2014, it was reported that there was a national under–recording of crime by nearly 20%. In this context, the Chief Inspector, Tom Winsor recommended that “the police should immediately institutionalise the presumption that the victim is to be believed”.

This recommendation led Police Forces to adopt what the previous Metropolitan Police Commissioner, Sir Bernard Hogan-Howe later described as “requiring officers to assume an allegation of abuse is truthful” ie to investigate an allegation on the basis that the crime had been committed and the alleged perpetrator is guilty.  (Radio 4 interview on the Today programme on 11/2/16.)

Not only was this a fundamental shift in policy away from the long-standing practice of the assumption of innocence until proven guilty, it was a misunderstanding of Mr Winsor’s recommendation. His recommendation was in the context of recording crime in official statistics not of how claims should be investigated. Indeed, it led to Mr Winsor to write to Sir Bernard Hogan-Howe advising him of this error and how “the two should not be conflated”.

Sadly, this misguided policy appears to have been very much in the minds of those officers investigating an allegation of rape made against my client, Joe Lovell (name and some details changed) in July.

My client a man of exemplary character, was engaged by his firm to carry out certain works at an address in London on 8 July.  He duly attended, and met the female occupier Miss R and carried out the necessary works.

From the outset, there was an instant connection between my client and Miss R and the two exchanged contact numbers and made arrangements to meet at her address, the next day, the agreed purpose for which was for sexual activity to take place.

My client contacted Miss R on the 9 July to confirm his attendance, arriving shortly after 7.00pm.

On his arrival, Miss R answered the door to the address, appearing with nothing more than a bath towel draped over her.

Mr Lovell was invited into the address, whereupon Miss R began to initiate intimate behaviour, kissing my client and then inviting him upstairs.

My client then engaged in full consensual intercourse with Miss R, she providing him with a condom by means of contraception.

Following intercourse, my client left the address, indicating he would be in touch with Miss R at a later date.

Between the 14 – 18 July, Mr Lovell was out of the country to visit family and friends.

On or about the 16 July, my client was contacted by Miss R, and accused of committing a burglary at her address. Upon his disclosure that he was out of the country and had been for several days, Miss R then suggested that whilst he may not have personally participated in the burglary, but had otherwise orchestrated this to take place.

My client rejected any notion of any involvement in any burglary which may have taken place and went so far as to invite Miss R to provide his details to the Police, if she was convinced as to his alleged involvement.

My client received no Police contact with regards to the alleged burglary.

Miss R went on to report the alleged burglary on the 16 July, making no reference to any other alleged offence to have taken place.

On the 23 July, Miss R was advised by the police that due to there being insufficient evidence to identify any suspect, the burglary investigation was to be closed.

Surprisingly, on being advised that no further action was to be taken, Miss R then chose to allege to the police that she had been raped by my client on the 9 July and wished to pursue a formal complaint.

On the 24 July, Miss R spoke to officers, reaffirming her allegation of rape  and subsequently attended her local Police Station where she provided a full account of her allegation, by means of a video recorded interview.

On the 28 July, officers attended my client’s place of employment, whereupon he was arrested on suspicion of rape, in the presence of his colleagues and taken into Police custody.  The justification to arrest being based on reasonable suspicion and in order to carry out “a prompt and effective investigation into the allegation”.

He was detained for just over 5 hours before being released on Police bail.

On the 8 December, an evidential review was carried out  by the Police which concluded that there was insufficient evidence on which to proceed, the case not reaching the evidential threshold.

My client was devastated by his arrest and detention, his period on Police bail whilst awaiting confirmation as to his fate and of even greater significance, the fact that he now had a Police record; his name, fingerprints and DNA now being stored on the Police National Computer.

He knew that the allegation of rape was that of a liar and fantasist.

Mr Lovell lodged a complaint. Following investigation, a Senior Detective Inspector in the Sex Offences, Exploitation and Child Abuse Command dismissed the complaint finding that the arrest was both lawful and proportionate based on the account of the victim.  He went on; “the underlying principle of rape investigation, as set out by the Her Majesty’s Inspectorate of Constabularies is that “the police should immediately institutionalise the presumption that the victim is to be believed.  If evidence later comes to light which shows that no crime occurred, then the record should be corrected”.

In this case, the Police most certainly had a duty to record the alleged crime.  Thereafter, their job was to “test the accuracy of the allegations and the evidence with an open mind, supporting the complainant through the process”.  (Sir Bernard Howe; article in the Guardian 10/2/16 – “Suspected sex offenders have rights the police must respect”).

So was my client’s arrest “lawful and proportionate”?  The case is ongoing.  I accept this was a difficult case, the central issue being that of “consent” with two differing accounts provided.

But consider the following undisputable facts:-

  1. The failure of Miss R to make any reference to such an extremely serious offence in the immediate aftermath of the 9 July.
  1. The failure of Miss R to allege that she had been raped when reporting the burglary on the 16 July.
  1. The remarkable timing of the allegation of rape, occurring only after notification had been given to Miss R that no further action would be taken in respect of the alleged burglary.
  1. The disclosure to the Police by Miss R that she had voluntarily provided my client with a condom.

The Metropolitan Police openly accept that upon notification of the alleged rape, they applied the “Believe all” policy that they had insisted after misinterpreting the recommendation of Her Majesty’s Inspectorate of Constabularies (as explained above). I believe that this materially affected their subsequent investigation and decision to arrest my client.  Had they instead approached the case with an open mind, perhaps they would have realised either that there was no merit in the allegation or alternatively that rather than arrest, they could and should have sought to proceed by way of voluntary interview thus avoiding my client’s distressing and humiliating arrest in front of friends and work colleagues and leaving him stigmatised with a Police record.

The presumption of innocence is fundamental to the health of the Criminal Justice System in a modern liberal society. “It is better that 10 guilty persons escape, than that 1 innocent suffer” wrote William Blackstone in Commentaries on the Laws of England in 1765 and this principle is enshrined not only in English common law but in Article 6 of the European Convention on Human Rights and underpins much of the US constitution.

Clearly no one wants to return to the ‘bad old days’ when police officers – invariably male–turned a blind eye to accusation of child abuse, and treated many rape victims with disbelief and hostility, but we cannot go from one extreme to the other. Every case could and should be investigated by the Police with an entirely open mind. My client is not, I suspect, the only person to have fallen victim to the Metropolitan Police’s misguided and blinkered policy.

Author: iaingould

Actions against the police solicitor (lawyer) and blogger.