ISSUE 5 2008 - Sweet & Maxwell

Crim. L.R. Rape 395
to stay with K ahead of any consideration. There was also a telling similarity in
the accounts which they had given. In the circumstances of the present case, the
convictions relating to L could not safely be upheld and so too would be quashed.
Per curiam: Rape is a repulsive crime. It requires substantial punishment. No one
doubts that the victims of rape should be treated with every possible consideration
by the criminal justice system. On the other hand, just because rape is a repulsive
crime, a false allegation can have dreadful consequences, obviously and immediately
for an innocent man who has not perpetrated the crime; but also, and this is not
to be overlooked, because every occasion of a proved false allegation has an
insidious effect on public confidence in the truth of genuine complaints, sometimes
allowing doubt to creep in where none should, in truth, exist. There cannot be
very many cases, although the present case may be one of them, where the offence
of attempting to pervert the course of justice, on the basis of a false allegation of
rape, certainly one which is set out in detailed formal statement or pursued to the
door of the court, should not be prosecuted for what it is. It is only in the rarest
of cases that a police caution sufficiently addresses either the criminality of a false
allegation of serious crime or (and this is no less important) the possibility of the
need for appropriate treatment which will address the problems which have led the
complainant to fabricate the allegation she has made.
[Reported by Vanessa Higgins, Barrister]
Jonathan Cooper for the defendant.
Warwick Tatford for the Crown.
Commentary. The case is a stark and troubling reminder of the potentially appalling
impact of false allegations of serious sexual offences. A series of detailed allegations
that convinced police officers were shown by the CCRC to have been fabricated,
leading to C’s convictions being quashed.
There can be no doubting the importance of evidence of prior false allegations,
particularly, as Sir Igor Judge P. observed, where the allegation has been made
formally and in detail or has been pursued to the door of the court. As C. Fishman,
Jones on Evidence: Civil and Criminal, 7th edn (1992), p.803 has noted:
‘‘Afalserapeaccusationrevealsaflawincharacter of a particular, and particularly
dangerous, kind. Its relevance, in a case where the key question is whether the
complainant is lying about rape this time, is palpable.’’
Evidence of prior false allegations is especially important where the case effectively
rests on the credibility of the complainant and defendant. As Epstein argues:
‘‘A witness’s willingness to falsely accuse someone, thereby engaging the legal
system, is confirmatory of a disregard for that system’s requirement of truthful
testimony and a willingness to abuse that same system.’’ J. Epstein, ‘‘True Lies:
The Constitutional and Evidentiary Bases for Admitting Prior False Accusation
Evidence in Sexual Assault Prosecutions’’ (2006) 24 Quinnipiac Law Review 609
at 656.
The principles underlying the admissibility of evidence of prior false allegations under
the Youth Justice and Criminal Evidence Act 1999 are clear, having been laid down
in TandH[2001] EWCA Crim 1877; [2002] 1 W.L.R. 632. The defendant sought
leave to cross-examine the victim in order to establish that the victim had made
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