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11 May 2019

Why is telling the court you lied not enough to overturn a conviction?

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By Sangeeta Bedi

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Maia Cohen-Lask Oct 2018 web (1)

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The headlines in early April were incredulous when it was revealed that a grandfather would remain in prison for sexually abusing his granddaughter, despite the granddaughter submitting a signed statement to court explaining that her original allegations against him were untrue. This decision is a manifestation (albeit at the extreme end of the spectrum) of a much broader pattern often seen in allegations of sexual offences, namely that a complainant’s change in position is no guarantee of a change in the course of criminal proceedings.

In this case the defendant was charged with four counts of sexually assaulting his granddaughter when she was aged between three and nine. She first made allegations against him when she was 14, and was 15 when she testified against him at his trial. Less than a month after the grandfather was sentenced to 12 years’ imprisonment, the complainant made a signed statement in the presence of a solicitor withdrawing her allegations. She stated that she had made up the allegations to seek attention and had not appreciated the severity of the consequences of doing so. Armed with this statement, the grandfather lodged an appeal against his conviction. In a judgment released on 3 April (R v SB [2019] EWCA Crim 565), the Court of Appeal dismissed the appeal, stating:

“There is no proper basis for rejecting M’s original evidence… We reject the veracity and reliability of her subsequent retraction statement, put in after sentence was announced. We consider, in all the circumstances, that the convictions are safe.”

The conviction of the grandfather depended entirely on his granddaughter’s account of the sexual assaults she suffered, told first to her mother and a counsellor, then reported in detail to the police. There was no independent forensic evidence. It would therefore have been understandable for the granddaughter to conclude that the overturning of the conviction would be a logical consequence of the retraction statement she made. Such a conclusion would reflect a common misunderstanding about how much a complainant can control the criminal process, not only on appeal, but from the time of the first complaint made to police.

An example of this misunderstanding is that a victim of a crime can choose whether or not to “press charges” against a suspect. In truth, the charging of a suspect is a decision taken by either the police or the CPS. The complainant’s wishes will be just one factor in that decision. The reality for sexual or domestic violence allegations is that a complainant’s unwillingness to proceed is unlikely to be determinative either in relation to charge, or in a decision to withdraw matters from the court. Prosecutors have a number of tools in their armoury including witness summonses, and the ability to apply to cross-examine their own witness as a hostile witness, in the event of a change of heart. Essentially, once an allegation has been made to police, it can be very difficult for a complainant to change their mind and derail proceedings.

However, the complainant in R v SB did not limit her retraction to a stated desire to withdraw proceedings, but went further in making a signed statement that her original allegation was a work of invention. This is highly unusual (and can expose the complainant to a risk of prosecution – in the present case, the complainant was arrested for perjury shortly after submitting her retraction statement). Had her statement been submitted prior to the trial, the prosecution would have had to consider carefully whether there was still a realistic prospect of conviction such that they could continue to prosecute. If their decision was to proceed regardless, the jury would have heard both the original allegation and the retraction. It seems highly unlikely in those circumstances that a jury would have been sure beyond reasonable doubt of guilt. In short, whilst a complainant’s wishes cannot affect the trial process, a further statement which casts doubt on the truth of the original allegation is likely to avoid a conviction.

The fact that, had this statement been submitted prior to trial, a jury is unlikely to have convicted but the appeal against conviction was nonetheless unsuccessful, reveals the different approaches taken to proof of guilt in the Crown Court and the Court of Appeal. In the Crown Court there is a presumption of innocence, the burden of proof lies with the prosecution, and the high standard of proof gives the accused the benefit of any doubt. By contrast, in the Court of Appeal the test is whether the conviction is “unsafe”, not whether the new evidence might have affected the jury’s verdict. More specifically, in cases where there is fresh evidence which emerges after the trial, such as a post-trial retraction statement, the Court of Appeal must undertake a two-stage process:

  1. Decide whether or not the new evidence should be accepted; and
  2.  If it is accepted, assess its impact on the safety of the conviction.

In R v SB, the Court of Appeal determined that the retraction was “demonstrably unreliable” and therefore they did not accept it. They provided ten reasons for so concluding. Had the jury at trial undertaken such an analysis of the veracity of her retraction, it would have been with the burden and standard of proof at the forefront of their deliberations. Not so for the Court of Appeal, who analysed her evidence unconstrained by any presumption of innocence in favour of the appellant. By way of just one example of their approach, they commented that “it is difficult to credit that a fifteen-year-old girl could maintain such an account if it was all a lying account”. It is striking what this analysis reveals about the lack of protections afforded to individuals appealing their convictions, and about the court’s unwillingness to interfere with jury verdicts when a witness has changed their mind about the evidence they wanted to give.

The message sent by the Court of Appeal’s decision in this case is a strong one. It was a case where, had the unequivocal, signed retraction statement been submitted before trial, the outcome would almost certainly have been acquittal. Moreover, the Court of Appeal accepted there was no evidence of familial pressure being applied to the complainant to retract. Despite these factors, the conclusion was that the conviction was safe. If a retraction cannot lead to a successful appeal in these circumstances, it is difficult to imagine what circumstances of post-trial retraction could be sufficient.

Anyone involved in a case of sexual offences (or domestic violence), whether accuser or accused, should take this case as demonstrative of the position more generally in the criminal justice system: once an allegation is formally made, it is difficult to change or influence the course of the criminal proceedings. Even in the highly unusual circumstances of this case – a complainant risking a charge of perjury to state that the allegations made under oath at trial were untrue – a change in direction by the prosecuting authorities and the courts is by no means guaranteed.

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