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Guidance Perverting the Course of Justice - Charging in cases involving rape and/or domestic violence allegations

Introduction

1. This guidance applies to cases where a complainant of rape or domestic violence:

  • makes a false allegation,
  • retracts an allegation, or
  • withdraws a retraction.

For the purposes of this guidance any reference to rape should be read to include other sexual offences.

2. It should be read with the:

Perverting the course of justice

The Offence

3. Perverting the course of justice is a serious offence. It can only be tried on indictment and carries a maximum sentence of life imprisonment. The offence is committed where a person:

  • does an act (a positive act or series of acts is required; mere inaction is insufficient)
  • which has a tendency to pervert and
  • which is intended to pervert
  • the course of public justice.

4. The course of justice includes the police investigation of a possible crime (it is not necessary for legal proceedings to have begun). A false allegation which risks the arrest or wrongful conviction of an innocent person is enough. The word pervert can mean 'alter' but the behaviour does not have to go that far - any act that interferes with an investigation or causes it to head in the wrong direction may tend to pervert the course of justice. All the prosecution needs to prove is that there is a possibility that what the suspect has done "without more" might lead to a wrongful consequence, such as the arrest of an innocent person (Murray (1982) 75 Cr. App. R. 58).

5. Intention is not the same as motive. (However, the motive of the suspect is likely to be important if the public interest stage is reached.) The prosecution must prove an intention either to pervert the course of justice or to do something which, if achieved, would pervert the course of justice. All that is necessary is proof of knowledge of all the circumstances, and the intentional doing of an act which has a tendency, when objectively viewed, to pervert the course of justice.

6. Where the prosecution case is that a false allegation has been made, all that is required is that the person making the false allegation intended that it should be taken seriously by the police. It is not necessary to prove that she/he intended that anyone should actually be arrested (Cotter [2002] 2 Cr. App. R. 762).

7. In some circumstances, where for example a false allegation has not resulted in the arrest of an individual, prosecutors may consider charging an offence of wasting police time rather than perverting the course of justice.

8. The offence of perverting the course of justice in the context of rape and domestic violence covers the following situations:

  • Where someone makes a false allegation of rape or domestic violence. (See paragraph 10 and paragraphs 26-28 below.)
  • Where a complainant of rape or domestic violence retracts an allegation, whether false or true, an offence of perverting the course of justice may be committed. However, there may be credible reasons why a complainant of rape or domestic violence may retract a truthful allegation and prosecutors will need to ensure that the reasons for the retraction are fully explored and understood. (See paragraphs 12-16 and paragraph 24 below.)
  • Where a complainant of rape or domestic violence withdraws an earlier retraction (referred to in this guidance as a "double retraction"). (See paragraphs 17-19 and paragraph 29.)

The decision-making process

9. As with all offences, prosecutors must apply the Full Code Test as set out in the Code for Crown Prosecutors. The Full Code Test has two stages: (1) the evidential stage; and (2) the public interest stage. The evidential stage must be considered before the public interest stage. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be. Where there is sufficient evidence to justify a prosecution, prosecutors must go on to consider whether a prosecution is required in the public interest.

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Observations on the evidential stage of the Full Code Test

10. A person who deliberately makes a false allegation in the knowledge that there is a risk that the police will conduct an investigation may be guilty of perverting the course of justice. But, in reaching a decision to prosecute, the prosecutor must be able to prove that the allegation was in fact false. If there is any question as to whether the original allegation might in fact have been true, then there is not a realistic prospect of conviction, and no charge of perverting the course of justice should be brought.

11. Many rape or domestic violence cases will consist of one person's word against another's. Where this is the case, if the complainant no longer supports the prosecution, it should not be assumed that the original allegation was made with the intention of perverting the course of justice. It follows that when the complainant no longer wishes to support the prosecution but maintains that the allegation is in fact true, this is unlikely to be sufficient in itself to found a case for perverting the course of justice.

12. The prosecutor should be aware that complainants may sometimes retract a true allegation. For example they may be subjected to pressure, fear of violence, or intimidation, which may itself constitute a criminal offence. Other factors which may also be relevant include: a desire to give an existing relationship another chance; the impact upon children; embarrassment; a fear of going to court; family/community pressure which may stem from the immediate and extended family, the wider community and from cultural traditions; insecure immigration status; and mental health issues/learning disabilities. These examples are not exhaustive.

13. It is known that in such cases, a complainant who has been told that his/her refusal to give the prosecution his/her continued support will not necessarily mean that the case is not pursued, may say that she/he fabricated the original allegation. This on the face of it amounts to an admission to perverting the course of justice, but in such cases there is a risk that the complainant may have admitted to an offence she/he has not committed in an effort simply to bring the prosecution to an end.

14. When prosecutors are considering the case of complainants who have retracted allegations of rape or domestic violence, they should always ask themselves the following questions.

15. First, whether there is evidence which tends to suggest that the original allegation was or may have been true. Such evidence might include:

  • medical evidence,
  • the tape of any 999 call,
  • any CCTV footage,
  • any other evidence (e.g. witnesses, DNA).

16. Second, whether there is a background of domestic violence which may have influenced the complainant's decision to retract. Useful sources of information may include any voluntary specialist support services, Independent Domestic Violence Advisor (IDVA) or Independent Sexual Violence Advisor (ISVA) involved in the case. Prosecutors might also consider the complainant's GP records, the Multi-agency Risk Assessment Conference (MARAC) notes, the Domestic Abuse, Stalking and Harassment, and Honour-based and Forced Marriage (DASH) risk assessment, or whether there have been previous call-outs of the police to the address.

The evidential stage in relation to "double retractions"

17. Particular care must be taken in so called "double retraction" cases (see also paragraph 29 below). These sometimes (although it is stressed not exclusively) arise in situations where there is a background of sexual or domestic violence. In such cases:

  • the complainant makes an allegation,
  • she/he later retracts it saying it was false,
  • she/he then says that her/his original allegation was true, and it is the later retraction which is false (sometimes saying that she/he was pressurised into withdrawing the original allegation).

18. In such situations there may be little by way of evidence to indicate which version of events is true.

19. Prosecutors should avoid charging two alternative counts of perverting the course of justice in a case. It is not proper for the prosecution to charge two mutually inconsistent counts and then invite the jury to choose which one it prefers (Tsang Ping-Nam v R (1982) 74 Cr. App. R. 139).

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The public interest stage

20. It has never been the rule that a prosecution will automatically follow where the evidential stage of the Full Code Test is satisfied. This was recognised by the House of Lords in Purdy (R (on the application of Purdy) v Director of Public Prosecutions [2009] UKHL 45) where Lord Hope stated that: "It has long been recognised that a prosecution does not follow automatically whenever an offence is believed to have been committed." He went on to endorse the approach adopted by Sir Hartley Shawcross, the Attorney General in 1951, when he stated in the House of Commons that: "It has never been the rule ... that criminal offences must automatically be the subject of prosecution."

21. Accordingly, where there is sufficient evidence to justify a prosecution, prosecutors must go on to consider whether a prosecution is required in the public interest.

22. In cases of perverting the course of justice, prosecutors must apply the public interest factors set out in the Code for Crown Prosecutors, having regard to this guidance. A prosecution will usually take place unless the prosecutor is sure that there are public interest factors tending against prosecution which outweigh those tending in favour.

23. Assessing the public interest is not simply a matter of adding up the number of factors on each side and seeing which side has the greater number. Each case must be considered on its own facts and on its own merits. Prosecutors must decide the importance of each public interest factor in the circumstances of each case and go on to make an overall assessment. It is quite possible that one factor alone may outweigh a number of other factors which tend in the opposite direction. Although there may be public interest factors tending against prosecution in a particular case, prosecutors should consider whether nonetheless a prosecution should go ahead and those factors put to the court for consideration when sentence is passed.

24. There may be highly exceptional circumstances in which a prosecution may be appropriate following the retraction of a truthful allegation. For example, where an unconvicted offender continues to commit crimes and escape justice, and this puts other members of the public at risk. However, when applying the public interest stage of the Full Code Test, prosecutors should bear in mind the comments of the Lord Chief Justice in A (R v A [2010] EWCA Crim 2913) that "experience shows that the withdrawal of a truthful complaint of crime committed in a domestic environment usually stems from pressures, sometimes direct, sometimes indirect, sometimes immensely subtle, which are consequent on the nature of the individual relationship and the characters of the people who are involved in it."

25. On the other hand, prosecutors should bear in mind that a false allegation of rape or domestic violence can have a devastating effect upon the person who has been wrongly accused.

26. Applying the public interest factors set out in the Code, prosecutors should bear in mind that a prosecution for perverting the course of justice is more likely to be required where:

  • a false complaint was motivated by malice
  • a false complaint was sustained over a period of time (particularly where there were opportunities to retract)
  • the suspect in the original allegation was charged and remanded in custody
  • the suspect in the original allegation was tried, convicted and/or sentenced
  • the person who made the original allegation has previous convictions or out-of-court disposals relevant to this offence, or a history of making demonstrably false complaints
  • the suspect in the original allegation was in a vulnerable position or had been taken advantage of
  • the suspect in the original allegation has sustained significant damage to his or her reputation.

27. Applying the public interest factors set out in the Code, prosecutors should bear in mind that a prosecution is less likely to be required where:

  • the original allegation appears not to have been motivated by malice
  • the person retracting the allegation has been threatened or pressurised into doing so by the suspect of the original allegation, his or her family, friends or other persons
  • there is a history of abuse or domestic violence or intimidation which might offer mitigation such as to make it likely that a nominal penalty will be imposed
  • the suspect of the original allegation was not charged, detained or convicted and has not suffered damage to his or her reputation as a result of the original allegation
  • the person who made the original allegation appears not fully to have understood the seriousness of making a false allegation bearing in mind his or her age and maturity
  • the person who made the original allegation appears not fully to have understood the seriousness of making a false allegation bearing in mind any learning disability or mental health issues.

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Youths

28. Very great care is required in cases involving a person under the age of 18 who makes a false allegation or makes a retraction. Prosecutors must consider the interests of the youth when deciding whether it is in the public interest to prosecute, along with the principal aim of the youth justice system which is to prevent offending by children and young people. This is particularly so where an alternative to prosecution might be an appropriate way of dealing with the case.

The public interest stage in relation to "double retractions"

29. If all the circumstances lead the prosecutor to believe that it was the original retraction rather than the allegation of rape and/or domestic violence which was false, then she/he will need to give very careful consideration to whether a prosecution for the retraction of the original retraction is likely to be in the public interest. Any decision to prosecute in such circumstances is likely to be highly exceptional. This is because as a matter of logic, if the original allegation was or may have been true, then it follows that the suspect may have been a victim of rape or domestic violence.

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Handling Arrangements

30. Cases involving an allegation of rape or domestic violence in which consideration is given to prosecuting the complainant for perverting the course of justice or for an alternative offence such as wasting police time should be handled by a prosecutor with the appropriate levels of skill and experience in light of the complex and sensitive issues that are likely to fall to be considered.

31. Whilst there is no central referral requirement with regards to such cases, the Principal Legal Advisor is happy to be consulted on any difficult issues arising.

32. In line with the Core Quality Standards, prosecutors should record and explain as fully as possible the evidential considerations and public interest factors they have taken into account when making their decisions.

33. To ensure consistency of approach, charging decisions in all cases should be approved by a Chief Crown Prosecutor or Deputy Chief Crown Prosecutor.

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