On 8 November 2016, the Metropolitan Police Service (MPS) published the Independent Review (‘IR’) by Sir Richard Henriques, a distinguished and highly respected retired High Court Judge, into their handling of cases of historic sexual abuse.
The IR focused on Operation Midland (‘OM’) which was set up after a person known as ‘Nick’ made extraordinary allegations against a number of very high profile individuals, such as the late Lord Brittan, Lord Bramall and Harvey Proctor, of sexual abuse and the murder of three children at Dolphin Square. The MPS conducted an extended investigation including searches of addresses which resulted in a storm of publicity. The allegations were false and all the individuals named by Nick were found to be innocent. Sir Bernard Hogan-Howe, the MPS Commissioner, has belatedly apologised to all concerned (albeit not to Lord Brittan during his lifetime). Nick is being investigated for attempting to pervert the course of justice and the conduct of five police officers involved in the OM investigation are being investigated by the IPCC.
Unsurprisingly, the IR found that there were a string of significant failings in the MPS handling of OM and made 25 recommendations.
Complainants or victims
The IR recommended that the word ‘victim’ be removed from the investigation process and those who make a complaint be referred to as ‘complainants’ up to the moment of conviction (Recommendation 1). Sir Richard robustly argued it was grossly inapt to use the term ‘victim’ for those who make false complaints, and that the term gave suspects the impression that their guilt has been assumed which caused them to lose confidence in the neutrality of the investigation.
The culture that complainants must be believed
The single most important proposal concerns the College of Policing’s guidance that officers should believe a complainant’s account when recording a crime. The IR recommends ending this practice after finding it to be a “contributory factor in Operation Midland’s errors” and “the instruction foisted upon investigators to believe a ‘victim’ perverts our system of justice” (Recommendation 2). Instead the IR suggests that officers should investigate the facts objectively from the outset, and inform the public that: “if you have a complaint we will treat it very seriously and investigate it thoroughly without fear or favour” (Recommendation 3).
Sir Richard argues that the requirement to believe complainants reverses the burden of proof and gives a suspect the perception of prejudice against them. The current guidance restricts officers taking the statement from asking questions, which test the complainant’s evidence: “thus, liars and fantasists, and those genuinely mistaken, are given a free run both unquestioned and unchallenged.”
The IR identifies false allegations as an area of significant concern, and recommends that that the MPS must:
- Not disregard false complaints as a remote possibility (Recommendation 4). Public figures are more vulnerable to those who falsely complain to seek financial compensation, as are the deceased, as they cannot reply to allegations.
- Treat those falsely accused, and their families, on a par with ‘victims of crime’ by offering them support commensurate with the seriousness of the allegations (Recommendation 25).
The police and the press
The 5 most significant recommendations about the relationship between the police and the press can be summarised as follows:
- The MPS should avoid pro-actively sharing information about a suspect’s age and location (Recommendation 9).
- There should be pre-charge anonymity for suspects enforced by statute (Recommendation 10) and a clear definition of the exceptional circumstances in which the MPS would identify a suspect (Recommendation 11).
- The explanation: “the case failed to meet the evidential test” should be adopted when no further action is to be taken (Recommendation 20).
- In exceptional cases, the MPS should consider issuing a statement explaining why no further action has been taken (Recommendation 22).
The IR concluded that a policy of pro-active information sharing is incompatible with ensuring suspects’ anonymity before charge. The confirmation of search locations contributed to Lord Bramall, Lady Brittan and Mr Proctor’s loss of anonymity.
The IR calls for pre-charge anonymity for suspects, as media coverage has a profoundly damaging effect upon the lives and reputations of those not subsequently charged. It further explains that whilst publicity can encourage other genuine complainants to come forward, it also inspires false allegations by ‘bandwagoners’ based upon details circulated in the press.
Taking no further action
Recommendations 20 and 22 seek to protect the interests of suspects. Currently, when a decision is made not to proceed with an allegation, the MPS issues a public statement that no further action is being taken “due to insufficiency of evidence.” The IR considers the current wording “problematic” as it implies that there is at least some evidence which substantiates the allegation. The proposed change to “the case failed to meet the evidential test” represents a clearer statement to the public that the evidence did not support a criminal charge and goes further in rehabilitating the suspect’s reputation. The IR also recommends that, in rare cases where a complainant’s allegations against prominent persons are shown to be inconsistent or untruthful, the MPS departs from standard procedure and provides a statement explaining their decision not to pursue the allegations.
Managing expectations during the investigation
The IR urges the MPS to manage the expectations of complainants and suspects about how the investigation will progress. In particular it recommends:
- First responders inform complainants of the latest date by which they will be contacted (Recommendation 7).
- Considering whether an arrest is necessary to facilitate an investigation in non-recent cases (Recommendation 13).
- The introduction of a protocol by which suspects are informed of the investigation’s progress (Recommendation 14).
- At the start of an investigation a time limit is set for its completion, which can be extended in the event of unforeseen circumstances. This should be disclosed to the suspect (Recommendation 15).
- Considering whether suspects should be informed of non-pursued allegations (Recommendation 16).
- Suspects are given an explanation of the rationale behind the decision not to take further action, and the circumstances in which an investigation may be reopened (Recommendation 18).
Recommendation 13 is interesting in the context of the draft reforms to pre-charge bail, expected to come into force in 2017. The proposed 28 day time limit will hopefully incentivise officers to consider whether the objectives of the investigation could be met by a less intrusive means than arrest. Whilst an arrest provides important powers, it has a traumatic effect on the suspect, especially when their status results in media reports at each re-bail ensuring further reputational harm. The IR found the arrests could often have been avoided, owing to a combination of: the offences being non-recent; suspects being of good character and not a danger to the public; and suspects’ willingness to be interviewed voluntarily.
A series of extremely serious errors were made by the MPS in their handling of OM. It is hoped that the MPS will fully integrate the recommendations of the IR into their future practice.