Monthly Archives: February 2018

Policing: for or against us?

The well advertised collapse of many recent sexual offence cases resulting from disclosure failures has led to a review of all current cases, focussing on disclosure.  You may have been encouraged by this development. Two further legal developments in the area of sexual or domestic offences have emerged today which may dampen your optimism. They relate to the recognition of the right of victims of sexual offences to sue should the police fail to respond adequately to their allegations, together with new sentencing guidelines for domestic abuse offences. Taking the matter of victims suing the police first…

In 2012, two women who made allegations of rape by a taxi driver, sued the Met over their poor response when the activities of Worboys became known. In 2014 the two women were awarded damages. The police launched an appeal but in 2015 the Court of Appeal upheld the ruling. The police continued to challenge that decision. The Home Office argued that victims should not be allowed to use the Human Rights Act to sue the police in a Supreme Court test case in 2017. Today (22/2/18) the Supreme Court ruling became known: they rule against the HO and police and in favour of the right of victims to sue the police.

Scotland Yard suggested the judgement would mean resources are moved away from investigating crimes such as fraud and put into sexual violence cases. I think this is inevitable, especially when coupled with the new pressure on disclosure.

Today’s Supreme Court judgement means that police could have to pay compensation if they cannot be shown to have effectively investigated alleged crimes. The legal avenue will not be open to all victims, as the human rights law applies only to victims of ‘torture, inhuman or degrading treatment’. This means a suit can only be raised in cases of serious or sexual violence. This will oblige the police to put their resources preferentially into investigating thoroughly those issues which could lead to them being prosecuted if their performance falls short of expectations.

But it is by no means clear that, under this ruling, a man falsely accused of a sexual offence could sue the police for failing to properly gather exculpatory evidence or failures to disclose. I guess that would depend upon whether they could claim ‘inhuman or degrading treatment’. My suspicion is that this is unlikely. Lord Bramall and Lord Brittan’s widow planned to sue the Met and were subsequently given compensation payments. Harvey Proctor is suing the Met (outcome unknown to me at present). However these individual cases do not establish a principle, and the general applicability of the human rights law to the falsely accused is unclear.

Forces around the UK will now be examining their budgets and resources, potentially moving manpower from lower level crime to offences where they could be held liable for damages. But will this mean putting disproportionate effort into constructing a prosecution case for fear of being sued by the alleged victim? Or will it be balanced by a more rigorous approach also to exculpatory evidence, against the potential for being sued by the wrongfully accused? Whichever applies, it is clear that police will be pushed towards expending an increased proportion of their effort on sex cases at the expense of other crime.

These developments come at the same time that new sentencing guidelines have been announced for domestic abuse by the Sentencing Council for England and Wales. Perpetrators of domestic abuse will now be more likely to be sent to prison – even if they inflict emotional or psychological rather than physical harm – under the new guidelines. Moreover, sentencing will be harsher under the new guidelines. For the first time, more severe penalties will be meted out for domestic abuse than for an identical incident outside the domestic context. The guidelines state, “The domestic context… makes the offending more serious because it represents a violation of the trust and security that normally exists between people in an intimate or family relationship.”

For the first time, sentencing guidelines also explicitly recognise domestic abuse perpetrated through technology – including email, text, social networking and tracking devices. (I note that this is at odds with Alison Saunders’ attempt to minimise the importance of this same technology in the context of exculpatory evidence).

As always, the wording will be gender neutral but the application will probably not be. Whatever the underlying reality, domestic abuse will continue to be detected and punished primarily as crimes against women committed by men. Violence outside the home is primarily male-on-male. The new guidelines instruct that identical incidents in the domestic context should be regarded as more serious than those outside the home. Ergo, the de facto position is that the guidelines will drive a legal skew in punishment, with a crime against a woman regarded as more serious than an identical crime against a man. Some animals are more equal than others.

It is worth noting, however, that not all respected commenters have reacted adversely to the new guidelines. Mankind Initiative have issued a press released supportive of the changes. The guidelines do indeed include potentially helpful provisions. For example, the following are recognised as aggravating  factors,

  • Using contact arrangements with a child to instigate an offence;
  • A history of disobedience to court orders (such as, but not limited to, Domestic Violence Protection Orders, non-molestation orders, restraining orders)

Both of these are framed in terms sympathetic to maternal complainants, however both could be interpreted in the context of frustrating court orders for child contact arrangements.

We thus have three simultaneous developments, all of which increase the focus on policing intimate relations between the sexes: the right of alleged sex abuse victims to sue, the ongoing review of disclosure in sex cases, and the new domestic abuse guidelines. The police will be obliged to expend an increasing proportion of their time investigating our intimate relations at the expense of traditional areas of policing.

I suppose this is the end result of the ‘personal being political’. It is an indictment of our times and surely a sign of societal decay.