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.

16 thoughts on “Policing: for or against us?

  1. Groan

    I note the damning report of the Select Committee; on Ms Saunders and the CPS. I note that it doesn’t go to the heart of the problem the need to increase the “conviction rate” by always believing the complainant in sex cases. Though not saying feminism Tana Adkin was pretty clear on the problem.

    “Tana Adkin QC, a member of the Criminal Bar Association’s executive committee, said part of the problem was that the police and prosecutors were now more focused on believing the complainant than on obtaining justice.

    She told the Telegraph: “We believe there may well be people in custody who should not be there.

    “If you assume the figures in the review are accurate then out of 3,637 cases that were examined in six weeks, 47 had disclosure issues and of those 14 people were in custody when the cases were dropped.

    “If you extrapolate that figure over time then you have to say in all likelihood there will be people who should never have been convicted because evidence existed that would have cleared them.”

    “There has been a complainant centered approach rather than a justice centered approach”
    Tana Adkin QC

    Ms Adkin also dismissed the suggestion that the problem was down to the large amounts of digital evidence that had to be examined.

    She said: “We do not accept there is a problem with looking at large amounts of data. The technology is there. What is lacking is the right attitude and perspective. Officers are looking at this from one point of view.

    “There has been a desire to protect the complainant, to preserve their privacy rather than looking at the data for what it is. There has been a complainant centered approach rather than a justice centered approach.”

  2. mike

    If a parent was beating a child in public, most people would intervene either by trying to stop the abuse or by calling the authorities. Mothers who limit fathers’ access to their children, who engage in maternal gate-keeping, or who interfere with father-child relationships should be treated the same way, but of course, are not.

  3. AJ

    As always a well researched and interesting post. I have not had time to really think through the implications although I am sure in practice it will lead to even greater disparities in the way men and women are treated in these situations.

    I think I have spotted a small error, surely the use of a contact order to instigate an offence or history of disobedience of court orders are aggravating factors not mitigating ones. The section in the report is titled mitigating and aggravating factors but they are then listed seperately.

  4. Groan

    I suppose the crucial issue will in fact be the resources of any of the men wanting to challenge the police as a result of the ” failing to properly gather exculpatory evidence or failures to disclose”. The women in the Worboys instance had considerable support from the public purse and pressure groups in mounting their cases. I can’t see the same support for any of the men so they would have to have friends with deep pockets. I contributed to Mark Pearson’s fund which demonstrates both the cost and difficulty raising the funds.

    1. William Collins Post author

      Agreed – I have contributed to Mark’s fund twice – but it is frustrating that so few do. As you say, women have access to lobby groups with lots of cash. The men’s movement, such as it is, has always been penniless. The root causes of this are (a) the empathy gap, and, (b) men’s lack of in-group preference.

      1. mike

        “There are many persons ready to do what is right because in their hearts they know it is right. But they hesitate, waiting for the other fellow to make the make the first move – and he, in turn, waits for you”. -Marian Anderson

  5. CitymanMichael

    The police are being pummelled now from both sides – threat of litigation if they fail a rape victim & threat of litigation if they fail someone who is falsely accused of rape.
    The logical answer is that the police will now HAVE to start prosecuting false accusers.
    They have visited this problem upon themselves, they should have been doing the right thing from the start.
    Whether that happens, of course, is yet to be seen, but the police will either have to put their efforts into preventing false accusations or divert resourses from other areas – wait & see.

    1. William Collins Post author

      I’m rather more of the view that the police are in an impossible position – being asked to police intimate relations. Impossible, that is, without full-on Maoism, which is where we are headed.

      1. mike

        Na..! The police know VERY well what the score is. They are complicit! It helps to incarcerate as many men as possible. Keeps them in a job and those promotions coming. Makes no difference that they are putting innocent men in jail while letting the true criminal, the false accuser, back out on the street to do it all over again.

        And we men continue to allow this…

        1. Aj

          There are many police some good some bad. I am sure there are some who cynically go along with the misandry current but also those who do not. I have read anonymous comments and articles by police who investigate rape and sexual assault claims that acknowledge that the majority are false but if they were to say this publicly it would be career suicide and they and their department would be subject to sustained criticism. Naturally they keep quiet in public.

  6. Nick Earnshaw

    interesting how things turn around. this reminds of a woman I knew about 30 years ago who stabbed her husband. the police advised her she would probably get a custodial sentence because the incident occurred in a public place. they explained that if it had been on private property she probably would have got a suspended sentence. they said this was because the judiciary took a dim view of people performing acts of violence in a public place where it could distress others. as predicted she got a (short) prison sentence.


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