False Allegations of Rape and/or Domestic Abuse, see: Guidance for Charging Perverting the Course of Justice and Wasting Police Time in Cases involving Allegedly False Allegations of Rape and/or Domestic Abuse
The Decision Making Process
As with all offences, prosecutors must apply the Full Code Test as set out in the Code for Crown Prosecutors. The Full Code Test has two stages: (1) the evidential stage; and (2) the public interest stage. The evidential stage must be considered before the public interest stage. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be. Where there is sufficient evidence to justify a prosecution, prosecutors must go on to consider whether a prosecution is required in the public interest.
A person who deliberately makes a false allegation of a crime in the knowledge that there is a risk that the police will conduct an investigation would have committed one of the relevant offences and is liable to be prosecuted subject to public interest considerations.
The first question will be whether the suspect has in fact made a clear and unambiguous complaint of a crime against an identifiable individual in the first place. This may not be the case in the following situations:
- Where he / she merely expressed a concern or feeling that they might have been the victim of a crime which was then perhaps treated as a complaint by others. This may be the case where the suspect cannot remember all the details, perhaps as a result of taking alcohol or drugs. In such a case this would merely be a truthful reflection of the suspect’s state of mind rather than a positive complaint of a crime.
- Where he / she did not truly understand the nature of the allegation which was reported. This may be the case, for example, where the suspect said that they had not consented but did not actually understand what the word “consent” meant. There should be particular focus on this issue where the suspect is young or has mental health or learning issues.
- Where a third party made the allegation and the suspect was not completely supportive of it perhaps because they were coerced into supporting it.
The second question will be whether there is sufficient evidence to prove that allegation was in fact false. If the evidence is such that the original allegation might reasonably be true then there is not a realistic prospect of conviction and no charge should be brought. The mere fact that the original allegation did not meet the evidential stage of the full Code test does not mean that the prosecution can prove that it was false. That involves an entirely different question. Likewise, where a complainant withdraws their support for a prosecution but nevertheless maintains their allegation is true, this is unlikely in itself to be sufficient to found a case for one of the relevant offences.
Most cases of rape and / or domestic abuse will involve one person’s word against another. Prosecutors should work proactively with the police to make sure any other evidence which may be relevant to the issue has been obtained. Such evidence will include CCTV footage, telephone traffic, text message or other electronic message exchange, cell site evidence, evidence from other witnesses, medical and scientific evidence, 999 calls, employment records and available risk assessments.
It is important that such evidence is scrutinised with care to see whether it really does support the falsity of the allegation made and, if so, to what extent or whether it tends to support its truth. When applying such scrutiny the quality and true value of the evidence must be assessed in the light of what sought to be proved by it. The evidence may, for example, more readily and clearly prove falsity where it is incontrovertible evidence [such as clear CCTV footage] which shows that the parties were not even together at the time the allegation is said to have occurred. It may less readily and clearly do so, for example, in situations where it is necessary to show the suspect consented to a sexual act in order to prove falsity. Care must be taken to apply the appropriate weight to such evidence.
Inconsistencies in the various accounts provided by the suspect whether given in statements / ABE interviews or informally [i.e. during risk assessments or medical examinations] can be considered. It is important, however, to bear in mind that it is common for true victims of sexual and domestic abuse to give inconsistent accounts due to the trauma of the attack or for other reasons. The extent and circumstances of any inconsistencies must be carefully scrutinised. Positive contradiction of the suspect’s allegation is of much more value than inconsistencies.
It will also be necessary to take into account any reaction of the suspect when contradictory evidence is put to them in interview. However, an admission may not necessarily be sufficient to prove falsity and will never, on its own, suffice. There may be many understandable reasons why a true victim may distance themselves from an allegation they once made [see section on retractions below].
Where the suspect has made previous apparently false allegations then prosecutors should ensure all relevant information is obtained about them. The circumstances of each must be scrutinised to ascertain if it really was false. Alternative scenarios should be actively considered. For example, it may be a case where the suspect merely withdrew his / her support for an otherwise true allegation. It may be that the suspect was coerced into withdrawing from the prosecution process. It may be that the allegation of rape / domestic abuse was not acted upon because of unfounded assumptions by others about its reliability. If it was positively retracted then the circumstances of such retraction must be considered in accordance with the guidance below. If the earlier allegation may have been true then it should be ignored. Only if it is demonstrably false can it be taken into account and then, as with any other evidence of the suspect’s bad character, consideration must be given to whether it would in fact be admitted under section 101 of the Criminal Justice Act 2003. Rarely if ever should such evidence be used to justify a prosecution in the absence of any other cogent evidence of falsity.