Rassam Ali – falsely accused In due course I will also have something to say about ‘victim’ compensation.
But for now…
On the BBC Radio 4 “Today” programme on 18/1/18, the DPP, Alison Saunders, was interviewed about the rash of failures of disclosure in recent rape cases. Sarah Montague opened with the simple direct question, “Is it possible that there are people in prison today because of failures of disclosure by the police and CPS?”. Alison Saunders replied, “I don’t think so because of the safeguards which are in place”.
One can immediately assert, with confidence approaching mathematical certainty, that the DPP’s reply was false.
Actually it is statistically inevitable that innocent people are imprisoned, irrespective of the problem with disclosure, unless you are silly enough to imagine the courts are virtually infallible. The UK prison population is about 95,000 in round terms (the figure of 85,000 more familiar to some is for England and Wales only). The number of people sent to prison annually happens to be a roughly comparable figure, perhaps slightly larger at a bit above 100,000 (because whilst some prisoners are serving long sentences of several years, roughly half are inside for less than six months). With your best rose-tinted spectacles on, would your faith in British justice allow you to believe that miscarriages of justice occur in as few as one case in a thousand? Even if this optimistic presumption were correct there would still be about 95 innocent men in prison, and perhaps 5 innocent women.
But taking account of the problems with disclosure and police procedures generally, the rate of incorrect convictions is certainly far greater than one in a thousand, especially in sexual assault cases. This becomes abundantly clear when one has read over 100 case histories – and not merely because of the number of miscarriages of justice exposed, but because of the generic problems the case histories reveal. They demonstrate endemic practices which skew the proper operation of justice, especially in cases of sexual assault.
These poor practices go beyond failure by the police or prosecutors to disclose evidence. It is also failure by police to even collect evidence. Time after time in the case histories it becomes painfully clear that the accused – or his friends, relatives or defence team – have to prove his innocence – and have to set about finding the evidence themselves to do so.
And this is not new. I quote at length from a 2006 review in the Telegraph by Alasdair Palmer of an historic sex abuse case, that of falsely accused Anver Sheikh who was convicted in 2002 of offences alleged to have occurred 20 years before that. The title of the article is “If two people accuse you, then you are guilty. They get compensation, you get jail“. Note that this piece pre-dates Yewtree and Savile. It exposes multiple systemic weaknesses in the judicial processes particular to sex offence cases,
“The system for dealing with accusations of sexual abuse is a disgrace. It has manifest failings that are known to lead to wrong verdicts but which remain uncorrected, and which continue to send innocent men to prison.
Chris Saltrese is a solicitor who has handled many appeals for those accused of sexual crimes. It was not his original area of legal expertise, however. “I started as a commercial lawyer,” he explained to me, “an area of law that is considerably more lucrative than this one. I ended up handling cases of alleged sex crimes only because it became obvious to me that there was an injustice of colossal proportions taking place.” Mr Saltrese believes that there are “certainly scores, and very possibly hundreds” of men who have been convicted of sexual crimes who are rotting in prison with no prospect of release, but who are not guilty and should never have been sentenced.
These men have all been convicted on the uncorroborated allegations of people they knew 10, 20, sometimes even 40 years ago, and whom they have not seen since. It seems incredible that, in English law, such unsupported allegations should be enough to get a man sent to prison for a decade or more. But that is the present situation. Thanks to the steady erosion of the rules of evidence governing sexual offences, culminating in decisions by the Law Lords in 1991 and 1995, a defendant can face multiple allegations at the same trial. None of those allegations need have any corroboration; each, considered on its own merits, may be insufficient to suggest sexual abuse took place, but the effect of the Law Lords’ rulings has been that together, multiple allegations are, in law, enough to prove not just that the abuse happened, but that the defendant was the perpetrator.
How could England’s most senior judges come to insist on a rule of evidence so transparently unreliable as that? It is a question to which only they know the answer. Their underlying assumption had to be that allegations of sexual abuse should be accepted as true, even if there is no evidence to support them. The result is that the burden of proof is on the accused to prove he is innocent, not on his accusers to prove his guilt.
People are regularly being convicted of sex crimes because that dangerous principle has been embedded into our law. The situation is made worse because of the way the police collect evidence in “historical abuse cases”. Knowing that multiple allegations can produce a conviction, they attempt to trace all former residents at care homes where abuse is believed to have taken place, and to then ask if they have any recollections of abuse.
Police interviewers do not always take “No” for an answer. They justify multiple visits and interviews of the same individual on the grounds that they need to “build a relationship of trust with the witness”, and that the “trauma of the event will lead many to deny it at first, and only later to be able to admit what happened”. Such interviews are not video recorded or even taped by the police as a matter of course. As a consequence, it is impossible to identify whether or not they have “coached” witnesses.
Police officers can also point out to the people they question that there are financial advantages to making accusations which lead to men being convicted, as victims of sexual abuse are entitled to compensation. Care homes are liable for misconduct by their staff and their insurers will not defend claims for compensation when the alleged perpetrator has been found guilty in the criminal courts. The average compensation pay out is in the region of £20,000, but can go as high as £100,000.
The combination of financial incentives for making allegations, and rules for evidence which do not require those allegations to be corroborated by anything except other, similar allegations, is a recipe for injustice.”
Returning to Alison Saunders’ blasé claim that there are no innocent men in prison, it is abundantly clear that these systemic practices will have led to far more miscarriages of justice than those which have been proved to date. The cases which have come to light are those in which someone – the accused himself, a friend or relative, or his defence team – have succeeded in finding exculpatory evidence, and have also succeeded in securing an appeal or retrial. But proving a negative is intrinsically difficult – and not everyone has the competence or the luck (or the money) to succeed in proving innocence. With more than 12,000 men in prison for sexual offences, the number of innocent men in prison must be at the very least several hundred. I’m now inclined to believe it is probably in the thousands.
To close, I review below the case of Rassam Ali from 2016. There is nothing special about this case – it just happens to be the last one I looked at today. It’s a typical case.
Rassam Ali, 26, the owner of a dessert bar, was sentenced to 3 years in prison for sexual activity with a child (a 14 year old girl). In prison he was beaten by other inmates who thought he was a paedophile. But the police investigation was botched (at the most favourable interpretation) having failed to examine a raft of exculpatory evidence.
A few months before the allegation was made, Mr Ali had told off the girl in question over an incident in his store.
Police admitted in court they had not examined CCTV from the shop on the night of the alleged incident or from council cameras outside. They also failed to speak to neighbouring businesses about whether Mr Ali had shut early that day as was alleged, and did not search Mr Ali’s home for the ‘silky striped underwear’ the girl said he had been wearing. The police also failed to check the complainant’s Facebook history which showed she attempted to add him as a friend despite her not telling police this in her interview.
But of particular concern is how the police dealt with one of the key witnesses in the case, another 14-year-old girl. The complainant had claimed that this friend had also been propositioned by Mr Ali and that she had said on various occasions that he asked if they had boyfriends, whether they would come back to the shop when it was closed and asked both whether they would perform oral sex on him. Despite the girl being both a key witness in the case and a potential victim, when officers originally spoke to her they made no note of the conversation.
In fact this witness had originally said she did not wish to get involved. But the police left a card with the 14-year-old girl telling her to get back in touch with them if she did wish to say anything. Following Mr Ali’s trial and the guilty verdict, the girl came forward to the defence team and said she wanted to tell the truth. She provided them with a video interview in which, lawyers for Mr Ali told the Court of Appeal, undermined the complainant’s account in more than a dozen key areas. This included her saying that Mr Ali was ‘always polite and never said anything to upset anyone’, that he ‘never spoke in sexual terms’ to them and that he had never asked either of them if they had boyfriends, or to come back to the shop after it was closed or for oral sex.
It was ruled that a retrial was justified by the new evidence, but the CPS decided to offer no evidence so Mr Ali’s conviction was quashed. However, by that time he had already served his full term of 18 months in prison.
After being released Mr Ali said, “My defence team did the things the police should have done. I don’t blame the girl, whether she wanted to hurt me or someone has set her up to do it, I don’t know. But I blame the police for taking it on without investigating properly. I tried my best to prove my innocence and there was evidence there. Whether to prove me innocent or guilty, they should have just looked at any of the cameras.”
A spokesman for the CPS said: “The complainant in this case does not wish to go through the trial process for a second time and so we decided not to pursue a retrial.” Well, she wouldn’t, would she?
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