Why the policy of “believe the complainant” was behind the failure of disclosure in the case of Liam Allan

19 December 2017

It’s easy sometimes to think that arguments about whether the police should believe a complainant (they are not a victim just because they make a complaint) without reservation or whether the police ought to receive a complaint respectfully whilst at the same time maintaining a mind open to the possibility that the complaint might not be all it is cracked up to be, are all rather abstract. If so the case of Liam Allan should do a lot to dispel such feelings. The current centre of attention is on the seemingly appalling failure of the process of disclosure of unused material. This took the form of a disc containing hundreds of text messages from the complainant to Mr Allan which plainly supported his claim that she had consented to sex and had not been raped. The role of the police in failing to make disclosure of evidence that should on a brief viewing have been obviously at odds with the complaint the police had received is also under scrutiny. But there are wider issues here that, if not addressed, will result in further cases like this in which an accused person may not be as lucky (in the end) as Mr Allan ultimately was.

The attitude of the police officer who failed to consider that the material easily passed the statutory test for disclosure was engendered by the very idea now written into the official policy of the College of Policing that means that a complainant in a sex case must be believed. Any police officer who considered that her or his duty was to investigate the case fearlessly and with a view to seeing if the allegation would stand up in court or was likely to fail should have considered the text messages between the complainant and the accused in this case.

After all, its not as if Mr Allan’s lawyers didn’t do what they could to alert the prosecution to the fact that such material existed and if read and considered were completely devastating to the main thrust of the complaint, namely that the complainant had been forced to have sex against her will. And the police didn’t deny that it did. They simply didn’t bother to read the material properly either because they were just lazy or more likely because they didn’t feel compelled to look for any material that might undermine the strength of the case the complainant had presented them with. In other words the officer didn’t act as impartial investigator but, informed by police policy, simply took the complaint at face value and made no proper attempt to check out the phone records.

In the ‘Alice in Wonderland’ world we now live in when it comes to allegations of serious sexual assault “believe the complainant” means not pursuing leads that should have been followed. In this case that would have spared Mr Allan, an undoubtedly innocent man and his family, months of real anguish as he contemplated a very long period of many years in prison as a convicted sex offender, a lifetime on the sex offenders’ register, a career ruined before it began and diminishing prospects of ever finding meaningful work.

There are very few people around today who would argue that we need to return to the days when women weren’t taken seriously if they complained of sexual assault or a time when children weren’t even heard. But it is one thing to re-train police officers to take allegations seriously and another thing altogether to tell them they must accept the allegation as true for fear of adding to the complainant’s trauma. This just means we have swapped one bad policy for another equally bad one. What we want and need police officers to do is to accept the allegation, take it seriously and do their job. They should investigate the complaint to see if there is supporting evidence to make the prospects of a conviction more likely in a genuine case. At the same time they should not be blinkered to the possibility that the allegation may not be true. They should investigate all lines of inquiry even if they tend to undermine the allegation and make an acquittal more likely. No decent police officer should have any interest in convicting an innocent person. They should gain as much professional pride from establishing the innocence of an accused person as in the conviction of the guilty.

At the end of October 2016, Sir Richard Henriques, a retired High Court judge with a wealth of experience in the criminal courts both as a barrister and judge produced a report on Operation Yewtree (that began with allegations against Jimmy Savile and Operation Midland), the inquiry into allegations against a number of prominent people in public life. Apart from recommending that those who make complaints about sexual assault should not be called victims until the commission of a crime has been established in court, Sir Richard was scathing about the current policy of “believe the complainant”. In typically forthright terms Sir Richard stated that “the imposed ‘obligation to believe’ removes” the obligation on an investigator to be impartial [paragraph 1.27] and “has the hallmark of bias” [1.29]. He points out “believe the complainant” means in effect “don’t believe the suspect”, it means that the complaint is not critically examined at any point before the complainant gives evidence in court and it involves a reversal of the burden of proof.

All of this is, of course, anathema to current thinking on the part of the College of Policing, some politicians and senior judges, and it is apparent from reading his report that Sir Richard had significant disagreements with the policy of the College in this area. In the current climate there is a real danger that the Henriques report will be brushed under the carpet with some thinking that Sir Richard’s thinking is out-dated and that he in fact represents part of the problem rather than the solution. But the uncomfortable fact remains that it is precisely the sort of thinking now espoused as official police policy that led to the near disaster in Mr Allan’s case. This was not just an appalling failure of disclosure which is quite bad enough but that failure is compound by continued adherence to a dangerously flawed policy of uncritical belief in the complaint from the point it is first received. If the recommendations made by Sir Richard are not adopted and implemented there is a very real chance that before long we will be discussing the case of another young man who has fallen victim to the same misguided policy of “believe the complainant.”

It isn’t necessary or appropriate to treat complainants as unworthy of belief on the one hand or with uncritical belief on the other. An even handed approach which meant that the police should be alive to the possibility the complaint might not be sustainable in court would have been enough to have triggered the idea that maybe the complainant’s phone records should be carefully examined to see if they either supported the complainant’s case or undermined it. It seems that only a fairly cursory viewing of the material should have caused the police to realise the case against Mr Allan was unsustainable. That way he would have been saved the agony of almost two years on bail awaiting a trial that should never have been required and justice would have been served.

The eighteenth century jurist Sir William Blackstone said in volume IV of his magisterial Commentaries on the Laws of England that “it is better that ten guilty men go free than that one innocent man should be condemned”. I don’t think he was the first person to express that sentiment, although the numbers quoted often vary, and he certainly wasn’t the last. It was a widely accepted sentiment that underscored the English legal system for centuries. It would be to the everlasting detriment and shame of the same system if that sentiment was ever to be regarded as disposable in the rush to bump up the rate of convictions.

Mark George QC is a barrister and Head of Chambers at Garden Court North Chambers.