I make plain at the outset that I will forever, until the untimely end of my days and beyond, harbour a residual affection for anyone, of any political persuasion, who tells Diane Abbott to fuck off. At any time of day, in any given context, this is surely always the right thing to do.

But today, Jess Phillips MP has made a boo boo from which I sincerely hope she will distance herself.

She was apparently responding to various media outings by Metropolitan Commissioner Sir Bernard Hogan-Howe, who, dodging the shrapnel from the implosion of Operation Midland, has formally announced a volte-face in the way police officers will approach allegations of sexual abuse. No longer, it seems, will we have beaming police officers hosting press conferences where they tell the world’s media that a complainant is “credible and true”. No more will they appeal for prospective complainants to come forward with the cry: You Will Be Believed. No, it appears that the police might give a vague nod towards such old nostalgia hits as the presumption of innocence, and the importance of comprehensive investigations.

Writing in the Guardian, St Bernard said:

We must be clear about the principle of impartiality at the heart of criminal justice. Dame Elish Angiolini, who has reviewed our approach to rape investigations, made a proposal that should be at the core of this debate. She detailed how our policy has moved over the years. In 2002, the Met said officers should “accept allegations made by the victim in the first instance as being truthful”. A report in 2005 called for a “culture of belief, support and respect”. In 2014, Her Majesty’s Inspector of Constabulary said: “The presumption that a victim should always be believed should be institutionalised.” A complaint of sexual abuse must now be recorded immediately as a crime.

Dame Elish questioned whether it is appropriate, or possible, to instruct an officer to believe. Instead, she said: “It is more appropriate for criminal justice practitioners to remain utterly professional at all times and to demonstrate respect, impartiality, empathy and to maintain an open mind … in the first instance, officers should proceed on the basis that the allegation is truthful.”

Now I confess ignorance of the aforementioned 2014 report – I had no idea that the state had formally codified this inversion of the presumption of innocence, although few defence practitioners will be surprised. Nevertheless, this is genuinely shocking. A presumption that a complainant is telling the truth is a presumption that the accused is lying. It is a fundamental reversal of the foundation of British justice.

Nevertheless, in response to Hogan-Howe’s article, Ms Phillips, seemingly determined to prove the maxim of Mr Justice Coulsen, tweeted:



Right. A brief primer, if we may: The police’s job is not to believe.

The police are not Journey.

Stop Believin'. Seriously.
Stop Believin’. Seriously.

The police are charged as the investigative arm of the state where criminal offences are alleged to have occurred. Their various functions, duties and responsibilities are codified in bodies of statute, statutory instrument, codes of practice and case law. Those functions are many and varied, but include, critically for this purpose, as per the Code of Practice pursuant to section 23(1) of the Criminal Procedure and Investigations Act 1996, the duty to establish whether a crime has even been committed. If the investigation leads them to conclude that a crime has or may have been committed, the police have the duty to investigate all lines of enquiry, including those that point away from the suspect’s guilt.

It doesn’t end there. Once a suspect is charged, the police and the Crown Prosecution Service remain under a continuing duty of disclosure – which means they are required by law to provide to a defendant any material gathered during the course of the investigation which might assist the defence or undermine the prosecution. This vital function in ensuring that justice is done – that the innocent are acquitted and the guilty convicted – is not just compromised but wantonly pissed all over if the police adopt the starting point that they must accept unquestioningly everything a complainant says.

And this attitude is all the more grievous for the fact that it has been reserved, it seems, for the very cases in which the credibility of the complainant is most likely to be the issue at trial for the jury to decide. How on earth can the accused be sure that he has been provided with all the relevant information with which to defend himself – such as (as the courts often encounter in sex cases) previous false allegations by a complainant, or witnesses who may contradict the prosecution case – when the police are encouraged to build up a case to enshrine the complainant’s version of events?

It hurts that I have to make what feel like incredibly simple, facile points, but plainly I do: The starting point for all investigations – sexual and otherwise – has to be neutrality. If a complaint is made, the police must investigate it, and investigate it thoroughly. They should treat complainants with courtesy and respect, but with the same open mind and critical analysis as they should a suspect. This is not “victim blaming” or “calling all victims liars” or any other formulation to which Ms Phillips might wish to pin her badge. It is the police discharging their vital public duties properly and in accordance with the administration of justice.

If they don’t, innocent people end up in prison. Institutionalising “belief” leads to catastrophic miscarriages of justice. The kind where people spend decades, if not lifetimes, festering in a cell for something they did not do.

Netflix’s Making A Murderer stands as a pop culture exemplar of police officers forming a settled view of someone’s guilt, and moulding an investigation in the image of that One True Faith.

If she hasn’t seen it, I’ll happily pay for Jess Phillips’ subscription.

thesecretbarrister Bad Law, Contemplations, Lawsplaining, Politics , , , ,

6 Replies

  1. The thing is, when grandma makes a complaint that she’s been robbed for her pension, police believe.

    If someone calls 999 re a bar fight, police believe.

    I was prosecuting a harassment case & the DC said, “she brought it on herself”.

    He was somewhat surprised when in my best Ricky Gervais, I said, “sexist”.

    She had changed her number. She had shut down her FB account. And b/c D couldn’t get in touch, he started doing fly-bys of her home.

    Was that the “she brought it on herself” bit?

    I understand police are not supposed to act as judge & jury.

    The premise that police act “neutrally” in the sense that they’re not supposed to “believe” women re sexual offence allegations is unreal, unless you’re prepared not to “believe” reports of any other crime.

  2. neu·tral·i·ty
    the state of not supporting or helping either side in a conflict, disagreement, etc.;
    absence of decided views, expression, or strong feeling…
    – Oxford Dictionary

    The police are instructed by the CPS, ergo the following from the CPS’ website states:
    Code For Crown Prosecutors: “Prosecutors must be fair, independent and objective. They must not let any personal views about the ethnic or national origin, gender, disability, age, religion or belief, political views, sexual orientation, or gender identity of the suspect, victim or any witness influence their decisions. Neither must prosecutors be affected by improper or undue pressure from any source. Prosecutors must always act in the interests of justice and not solely for the purpose of obtaining a conviction.”

    Sounds great on paper, as it were.

    This from the same CPS:
    The CPS considers it a myth that “victims cry rape when they regret having sex or want revenge”. Further they state: Prosecutors who deal with rape cases are taught about them (the myths) as part of their specialist training. We will not allow these myths and stereotypes to influence our decisions and we will robustly challenge such attitudes in the courtroom.

    Well, guv, not sure about your interpretation of neutrality but I’d say the CPS and the police have a very strong opinion about what is rape and how to handle it -and as is passed on to the police, the woman is to always be believed.

    “A presumption that a complainant is telling the truth is a presumption that the accused is lying. It is a fundamental reversal of the foundation of British justice.”

    So, guv, which is it – you want the facts as in: Who, what, when, where, and how, or do you prefer our police to be licensed by the CPS to stand as lapdogs seeking the next bone thrown to them when they please their master?

    As Sargent Friday of Dragnet use to say, “Just the facts, ma’am, just the facts.” But, Sargent Friday was fictional, like innocent until proven guilty.

  3. Man: Hello, I’d like to report a mugging.
    Officer: A mugging, eh? Where did it take place?
    Man: I was walking by 21st and Dundritch Street and a man pulled out a gun and said, “Give me all your money.”
    Officer: And did you?
    Man: Yes, I co-operated.
    Officer: So you willingly gave the man your money without fighting back, calling for help or trying to escape?
    Man: Well, yes, but I was terrified. I thought he was going to kill me!
    Officer: Mmm. But you did co-operate with him. And I’ve been informed that you’re quite a philanthropist, too.
    Man: I give to charity, yes.
    Officer: So you like to give money away. You make a habit of giving money away.
    Man: What does that have to do with this situation?
    Officer: You knowingly walked down Dundritch Street in your suit when everyone knows you like to give away money, and then you didn’t fight back. It sounds like you gave money to someone, but now you’re having after-donation regret. Tell me, do you really want to ruin his life because of your mistake?
    Man: This is ridiculous!
    Officer: This is a rape analogy. This is what women face every single day when they try to bring their rapists to justice.

    “Neutrality” means something quite different when women or children complain of sexual crimes against them. If neutrality meant what it means to the police when investigating any other crime, then I would be happy with neutrality. But we know that it doesn’t.

  4. You are spot on with this. I did the Detective course in 2006, (thankfully now retired and left the UK) we were explicitly told without equivocation that when it came to complaints of rape that the victim had to be believed. Being an old school peeler I was brought up with notion that you investigated all matters with compassion and neutrality, you followed the evidence wherever it went and ultimately let the courts decide on the evidence. I remember thinking at the time that there was an agenda behind this and it seriously troubled me along with all the other things New Labour imposed left me with the opinion that the Police had become very politicized.

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