Submission to Sentencing Council's Consultation on Perverting the Course of Justice Guidelines
22 June 2022
WAR is a multiracial grassroots women’s organisation set up in 1976. It provides practical support to victims of all types of sexual and domestic violence, and it campaigns for changes in the systems of criminal justice, asylum and compensation.
This submission relates only to prosecutions for Perverting the Course of Justice (PCJ) arising from supposed false allegations of rape by women and girls who have suffered these crimes in the recent or distant past.
Background: Our Experience of Perverting the Course of Justice (PCJ)
Since 2009 we have campaigned to end the prosecution of women for alleged false allegations of rape. We have worked with dozens of women who have been accused, arrested, prosecuted, acquitted or convicted and imprisoned. These include several against whom all charges were dropped.
In 2011, alarmed at rising numbers of women being prosecuted for PCJ, we met with Keir Starmer, then Director of Public Prosecutions (DPP), together with the family of a young woman who was in prison for PCJ. We presented an open letter signed by 27 organisations, including rape crisis centres and women’s aid groups, explaining why these prosecutions are not in the public interest and deter women from reporting violence.
Under Starmer, the Crown Prosecution Service (CPS) prosecuted more women and girls for alleged "false allegations" than previously. They were almost all charged with PCJ, instead of “wasting police time” – a much less serious charge, resulting in a fine, community service or a dramatically shorter sentence.
The CPS then published Guidance for Prosecuting PCJ. It also conducted research into numbers of women prosecuted for lying about rape and about domestic violence. This showed that both types of false allegations are miniscule, especially compared to the enormous injustice of refusing to convict rapists. It found that false reports of rape were much less common than for other crimes such as insurance fraud.
The CPS Guidance is not applied with due consideration of: 1) the likelihood of bias in the police investigation which, together with biased CPS practices, affect the reliability of charges of PCJ in relation to rape and domestic abuse; 2) vulnerability among social groups of women and children who in our experience are more likely to be charged and to suffer official discrimination in the criminal justice process. In particular these include younger women and girls, especially if they are or have been ”in care”, women with mental health problems (often resulting from trauma from sexual and/or domestic violence including as children), women of colour, immigrant women, women with disabilities and working class/low income women.
Why women and children who report rape and domestic violence should not be charged with PCJ
The points below are based on our experience of PCJ being used to undermine rape and domestic violence survivors, both adults and children, when they come forward to report the violent crimes they have suffered. We worked with a number of innocent women who were wrongly charged and/or convicted of PCJ. Some were eventually acquitted.
- Prosecuting women for alleged false reports of rape distracts from the scandal that less than 1% of reported rapes lead to a conviction. Rape has been practically decriminalised.
- Prosecutions for PCJ often follow biased and negligent rape investigations. We have witnessed perpetrators believed over victims, evidence lost or not gathered, witnesses not interviewed, forensic evidence not tested.
- Prosecuting women who have reported rape or domestic abuse further skews investigations. Given the proven sexist and in other ways biased record of the police, it is wrong to indulge their biases by prosecuting women and children they have decided to blame.
- Police resources and time should not be diverted into trying to catch women out rather than catching rapists, who are often serial attackers.
- The prosecution of women for PCJ gives the misleading impression that women often lie about rape, which is untrue but endemic and pervasive, especially among police officers.
- Victims have been put under pressure by police to retract their statement of rape. This is then used as evidence of lying. This practice should be dropped. Neither should the absence of evidence of an attack be used to assume the attack did not happen.
The use of PCJ feeds the zealous police and CPS drive to disbelieve and criminalise rape victims.
In 2013, whistleblower PC James Patrick exposed widespread police pressure on women to retract rape reports, targeting the most vulnerable victims. The Independent Police Complaints Commission found that this had been a "standard operating procedure" in one London borough.
The police are responsible for many of the cases that were scandalously mishandled. We have helped to overturn some cases, proving how easy it is for victims to be wrongly treated as liars and criminalised as if they were the perpetrators.
One woman had been raped at age 17 and police arrested her for lying when they claimed to have found no evidence of sperm on her T-shirt where she said her attacker had ejaculated. Our support led to a second investigation by another police force which found the sperm and the man was prosecuted and jailed. In 2015 the woman sued the police for £20,000.
There has been documentation over the years of police bias against women and girls which shows a substantial number of officers still believe that many rape reports are false. Their reasons for such beliefs include outrageous bias against rape victims who they believe are lying because of: delayed reporting, absence of physical injury, regret sex, or have a hidden pretext such as to claim compensation or avoid deportation.
In 2010, we supported Layla Ibrahim, who at just 21, was prosecuted and jailed after reporting an attack while walking home. No man could be said to have suffered wrongful prosecution as she was attacked from behind and concussed after hitting her head on the ground, so she was unable to provide a name or identification. She was convicted because of minor inaccuracies in her statement after being questioned repeatedly over several days. There is evidence to show that she was targeted as part of a police vendetta following a history of police racism – a complaint to the IPCC of racism against her family had been upheld. Other evidence shows that the police did not follow all available leads on the attack but instead were determined to prove she had lied.
Layla Ibrahim was pregnant when she was convicted. Outrageously this did not stop the judge from passing a three-year prison sentence. A number of the women we have worked with who were sent to prison after a PCJ prosecution were mothers – their children were punished alongside them.
It has often been remarked on by those in the criminal justice profession that they are astonished at the enormous resources and zealous vindictiveness of these prosecutions, far outweighing those in any prosecution of a rapist or violent male partner.
In 2010 the police and CPS were spectacularly embarrassed by their prosecution of “Sarah”, who had been jailed for what they called a “false retraction”. Both police and CPS acknowledged she was a victim of persistent marital rape, but they jailed her for retracting her statement against her controlling causing the prosecution to collapse. Despite being freed on appeal after a public outcry, she remains the party with a criminal conviction while her rapist husband has none. We later gave evidence to her successful appeal for Criminal Injuries Compensation.
We are appalled by the disproportionate number of women in prison who have suffered child abuse, domestic abuse and rape. These women have been persecuted first by a violent man and then by a misogynist, racist and in other ways biased criminal justice system.
We urge the Sentencing Council to learn from the handling of alleged false reports of rape in the USA, despite its generally much harsher justice system which in many states still uses the death penalty. The charge of ‘filing a false report’ is a misdemeanour, not a felony, and often results in a fine or a few months in prison. Compare this to the UK’s record of ever longer sentences, including the 10 years given to Jemma Beale, at whose failed appeal we submitted evidence.
Our answers to the specific questions in the Consultation:
- What are the principal factors that make any of the offences included within the draft guidelines more or less serious?
The guidelines should make it clearer that if the accused is a victim of coercive and controlling behaviour, they aren’t culpable and the offence is to be treated as less serious and not prosecuted.
You make an issue of reputational harm being an extremely serious harm to men accused of rape. It’s an issue that mainly affects rich and famous men who on the whole can afford to buy their reputation back, and frequently go on the media claiming their innocence, calling for anonymity for the accused, and take legal action against women who dared to call out their rape. Many of the loudest misogynists were later proved guilty.
On the other hand, the much more serious and long-lasting harm caused to already traumatised rape victims who are prosecuted for PCJ because they were disbelieved or targeted by a deeply biased police and/or CPS is not even mentioned.
This is also relevant to ‘diversity’ which you ask about below.
- What are the additional factors that should influence the sentence?
Whether or not to prosecute and sentencing must take account of evidence that the defendant is mentally unwell, and/or has been the victim of child abuse, domestic abuse and/or rape which can cause errors in memory, and the inability to accurately recount events. The police repeated questioning can confuse victims who are already traumatised, then seize on inconsistencies to trip them up and arrest them.
- What are the types and lengths of sentence that should be passed?
The guidelines should make it possible for judges to consider a non-custodial sentence, particularly if the woman is mentally unwell, young, or a victim of child abuse, domestic abuse and/or rape – many victims have been prosecuted without compassion.
- Are there any issues relating to disparity of sentencing and/or broader matters relating to equality and diversity that the guidelines could and should address?
We have compiled almost 200 prosecutions for PCJ. The guidelines must address discrimination on race and gender. Women are 90% of victims of domestic abuse, and overwhelmingly women and children are victims of rape, while adult men are in both cases overwhelmingly the perpetrators. Women of colour and immigrant women have least access to justice and resources and already suffer harsher prosecutions and sentences.
Overwhelmingly mothers are the primary carers of children. The devastating effects on children whose mother face criminal prosecution and prison must be taken into account. Mothers should not be imprisoned as this punishes the children who may end up in care and in any case will be traumatised by the separation from the person who is usually their first protector. The impact of prison on mothers who continue to care for and worry about their children while behind bars is also immense.
Pregnant women should not be sent to prison. Giving birth in the horrendous conditions of prison shows a total contempt for life, both of the mother and the unborn child. Level Up which campaigns against the imprisonment of pregnant women has reported that “1 in 10 women give birth inside their cell or on the way to hospital, and in the last two years, two babies born inside prison have died. Even if the worst doesn't happen, prison causes toxic stress and trauma to both mother and child. Short sentences can have a long-lasting, lifelong negative impact.”
A majority of women in prison are victims of sexual and/or domestic violence. Judges need to be made aware that any woman or child who suffered such violence should be protected from prison and from long sentences.
- What else should be considered?
Prosecuting and imprisoning women and children who have reported rape or domestic abuse reinforces every sexist bias in the criminal justice system, and emboldens violent men. PCJ and prison should not be used in such cases.