R.A. v. THE UNITED KINGDOM
Inadmissible
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo
1. The applicant, Ms R.A., is a British national, who was born in 1982 and lives in Telford. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 4). She is represented before the Court by Woodfines Solicitors, a firm of solicitors based in Milton Keynes. 2. The facts of the case may be summarised as follows. 3. On 28 November 2009 the applicant reported to the police that she had been raped by her husband. Her husband was immediately arrested. He denied the offence and was subsequently charged with six counts of rape. On 10 December 2009 he was released on conditional bail, with a specific condition that he should not contact any prosecution witness, including the applicant. 4. On 7 January 2010 the applicant contacted the police to withdraw her complaint against her husband. She indicated that she wanted to put everything behind her and move forward for her own sake and the sake of her children. The police explained that the case might still proceed and that, if it did, she might be required to give evidence. 5. On 14 January 2010 the applicant was informed that the prosecution would proceed. On 18 January 2010 the applicant’s husband pleaded not guilty and the trial date was fixed. 6. On 7 February 2010 the applicant told the police that she had lied about having ever being raped by her husband. A police officer explained that she needed to think very carefully about what she was saying and be sure that what she was saying was in fact the truth. The applicant said that she was not bothered about what happened to her and did not care if she was charged or dealt with for “whatever offence”. She was told that the Crown Prosecution Service would have to be consulted and that when a decision had been made she would be informed. 7. On 11 February 2010 the applicant attended the police station voluntarily. She said that the rape allegations were lies. The police warned her of the potential seriousness of having made false allegations of rape. She was given legal advice and cautioned. A solicitor attended the police station to represent and advise her. The applicant provided a written statement to the police and maintained that her allegations were false. 8. On 12 February 2010 the applicant’s husband appeared at the Crown Court. In light of the applicant’s retraction of her complaint, the prosecution had no alternative but to offer no evidence against him. Not guilty verdicts were accordingly entered. He was released from custody. 9. A criminal investigation subsequently commenced into the applicant’s admission that she had made a false allegation of rape against her husband. On 16 April 2010 she was arrested. A tape-recorded interview in the presence of her solicitor took place. The police discussed with her whether her husband had put emotional pressure on her to withdraw the allegation, whether she was concerned about the position of her children and whether her support network was limited. The police told her that if the allegations were true and the retraction was in fact a lie, she could tell them about it. She insisted that the allegations were untrue. 10. On 23 June 2010 the applicant was charged with perverting the course of justice by making a false allegation against her husband. 11. On 5 August 2010 the applicant contacted the police. She said that she had come to her senses and that she had in fact been raped. 12. On 31 August 2010 the applicant was arrested and, with her solicitor present, interviewed. She said that the significance of lying about the rape had become clear when her counsel had told her that she would receive a sentence of twelve to eighteen months’ imprisonment. 13. On 16 September 2010 the applicant was charged with an additional offence of perverting the course of justice by falsely retracting a true allegation of rape. 14. On 15 October 2010 at the Crown Court, the applicant pleaded guilty to the charge of having falsely retracted a true allegation of rape. She pleaded not guilty to the charge of making a false allegation of rape and, the prosecution having offered no further evidence, a not guilty verdict was entered in respect of this charge. 15. On 5 November 2010 the applicant was sentenced to eight months’ imprisonment. She was taken into custody. 16. The applicant lodged an immediate appeal against sentence. Her appeal was granted by the Court of Appeal on 23 November 2010. In its judgment, the court emphasised the public interest in the investigation and, if appropriate, the prosecution and conviction of those who had committed crime. For this reason, perverting the course of justice was not confined to making false allegations or giving false evidence but also extended to the retraction of truthful allegations or the retraction of truthful evidence. However, the court recognised that the difference between the culpability of an individual who had instigated a false complaint against an innocent man and a complainant who had retracted a truthful allegation against a guilty man would often be very marked. It referred to pressures resulting from relationships and, in particular, the vulnerability of women who had been ill-treated by their partners. In such cases, it said, the sentencing court should recognise and allow for the pressures to which the truthful complainant in such a relationship had been exposed and should be guided by a broad measure of compassion for a woman who had already been victimised. It concluded: “23. This is an exceptional case. We hope that it will be very exceptional for cases of this kind to be prosecuted to conviction in the Crown Court. The sentence for perverting the course of justice normally is, and will normally continue to be, a custodial sentence. That is a requirement of the administration of justice and, where possible, the reduction of crime. But this was not such a case. We have come to the conclusion that the appropriate sentence in this case is a community sentence with a supervision order for a period of two years.” 17. The applicant was immediately released. 18. The applicant’s conviction was widely reported. On 16 December 2010 The Guardian newspaper published an article about the conviction. The article explained that the Director of Public Prosecutions (“DPP”) had ordered a change in the way Government lawyers dealt with cases against women who withdrew rape claims, acknowledging “failings” in the handling of the applicant’s case. In future, similar cases would require his personal approval. 19. On 7 July 2011 the Crown Prosecution Service published revised policy guidance in relation to prosecutions concerning rape and domestic violence. The revised guidance applies to cases where a complainant of rape or domestic violence makes a false allegation, retracts an allegation or withdraws a retraction. 20. Meanwhile, the applicant instructed new solicitors and obtained advice on appeal against conviction dated 15 June 2011. Counsel expressed the view that she had a complete defence to the indictment which ought to have been considered and pursued on her behalf in the exceptional circumstances of her case. The advice stated that her guilty plea had been equivocal and should not be a bar to an appeal; and that the guilty plea had ignored the defences of duress and coercion and had ignored “human rights and international law, the experience of the courts, the experience of those experts in the field, the experience of victims and plain common sense”. Counsel suggested that the original prosecution should have been stayed as an abuse of process for, inter alia, the following reasons: “It would have been untenable for the Crown to argue that the [applicant] ... was not a victim of rape and domestic violence... We contend that the [applicant’s] behaviour was arguably both normal and understandable for a victim of such abuse. We would have called the Crown’s own acknowledged expert in this field ... [who] is able to comment on the dynamics and effects of domestic violence. This will show that far from having an intent to pervert the course of justice the [applicant] was behaving normally for a victim of such extreme abuse. The prosecution was in breach of its own policy, the European Convention on Human Rights and International Law.” 21. The grounds of appeal against conviction were as follows: “1. The conviction is unsafe. 2. The appellant’s plea was equivocal and ignored her defences in law of duress, coercion and those human rights and international law arguments outlined in counsel’s advice. 3. The original criminal proceedings should have been stayed as an abuse of process. 4. This is a conviction in a case where the DPP is on public record as saying justice was not done or seen to be done when offering an unreserved apology to the appellant. 5. The Lord Chief Justice, in the appeal against sentence, commented that ‘This is an exceptional case. We hope that it will be very exceptional for cases of this kind to be prosecuted to conviction in the Crown Court’.” 22. In their response to her grounds of appeal, the prosecution did not seek to raise any positive argument in support of the safety of the applicant’s conviction. They explained that the acceptance of the guilty plea in respect of the false retraction implied acceptance that the rape allegation had been truthful, and conceded that the applicant would in all likelihood not have been prosecuted had her case been considered at the time of the response, applying the criteria now contained in the revised guidance (see paragraph 19 above). 23. Leave to appeal conviction out of time was granted. 24. In the applicant’s subsequent written submissions to the Court of Appeal dated January 2012, she referred extensively to the DPP’s comments and the revised guidance (see paragraphs 18-19 above). She made, first, further arguments in respect of her first ground of appeal and the part of her second ground of appeal related to the defences of duress and coercion (see paragraph 21 above). There was reference to development of the abuse of process and human rights arguments “at paragraph 68 below” and, later, to the arguments regarding human rights issues “in paragraph 68 below”. 25. Paragraph 68 simply repeated the second part of her second ground of appeal and her third to fifth grounds of appeal (see paragraph 21 above). Further arguments in respect of these matters followed in subsequent paragraphs. There was a section on recent domestic case-law on prosecuting victims, a section on the revised guidance and a section on the Code for Crown Prosecutors. The latter section contended that the applicant’s prosecution was unfair for a number of reasons, including because “the case was brought in circumstances that breached the applicant’s human rights”. It went on to explain that the applicant met none of the criteria tending in favour of prosecution, while her situation fell under some of the factors tending against prosecution. 26. Finally, there was a section in the written submissions headed “Human Rights”, in which it was submitted that the applicant’s treatment had breached her human rights. The written submissions referred to a number of judgments of this Court concerning domestic violence against women which, it said, clarified that States had positive obligations in this area, including an obligation to protect victims from violent behaviour, by reference to Articles 2, 3 and 8 (citing Kontrová v. Slovakia, no. 7510/04, 31 May 2007; Bevacqua and S. v. Bulgaria, no. 71127/01, 12 June 2008; Opuz v. Turkey, no. 33401/02, ECHR 2009; E.S. and Others v. Slovakia, no. 8227/04, 15 September 2009; A. v. Croatia, no. 55164/08, 14 October 2010; and Hajduová v. Slovakia, no. 2660/03, 30 November 2010). It continued: “It is clear from this line of authority that domestic violence can potentially engage Articles 2, 3, 8 and 14 of the ... Convention ... States have a positive obligation to protect the rights of victims. It is when a State becomes aware of a domestic violence situation that they have the obligation to take steps to protect people.” 27. The submissions explained that the applicant had suffered years of domestic abuse which had been exacerbated by her subsequent dealings with the police. It should have been abundantly clear to the officers that the applicant was under extreme duress when she retracted her rape complaint. However, rather than make proper investigations they had accepted her story and charged her. To treat her as a criminal while releasing the perpetrator indicated “degrading treatment”, as defined in the Court’s Article 3 case-law. 28. In their response of February 2012, the prosecution acknowledged the applicant’s argument that her Convention rights were engaged and that her prosecution amounted to a breach of those rights. Much of the response was devoted to addressing the submissions concerning the defences of duress and marital coercion and the safety of the conviction in light of the revised guidance. In the context of their response to the abuse of process submission, the prosecution accepted that the Convention attached special significance to the protection of vulnerable groups and argued that what it required was that the decision to prosecute be taken following careful analysis of the circumstances and characteristics of the individual and the case against her. The prosecution pointed out that the cases cited did “not reflect the position in this case” and were of “little if any assistance”. They emphasised the important distinction to be made between the role of those who investigated crime and those who prosecuted, noting that in many of the cited cases the impugned failure was a failure to investigate. 29. The applicant’s appeal against conviction was dismissed on 13 March 2012. The Court referred to the remarks made by the Court of Appeal in the sentencing appeal and to the publicity that the applicant’s conviction had received in the press, in particular the reporting of the DPP’s comments (see paragraphs 16 and 18 above). It pointed to the revised guidance (see paragraph 19 above) and accepted that, had the guidance been in force at the date of the applicant’s conviction, she would in all likelihood not have been prosecuted. However, it considered that while the applicant had plainly been under pressure, the pressures were far removed from constituent elements of the defence of duress. It was also satisfied that there had been no abuse of process. Guidance issued by the DPP did not, and as a matter of law could not, create any immunity or defence. It merely publicly reflected the considerations which, in an individual case, were considered to be relevant to the exercise of the prosecutorial discretion not to bring the case to trial notwithstanding admissible evidence which would otherwise justify a prosecution. The court concluded that the final submission came down to the proposition that it was somehow not fair for the applicant to remain convicted. However, the principles relating to abuse of process had not extended to enabling the court to quash a conviction on a broad, somewhat nebulous basis of unfairness where the conviction, following due process, was in every respect safe. 30. The applicant applied for certification of a point of law of general public importance and permission to appeal to the Supreme Court. In her application for leave, she identified two points of law of general public importance, namely: “i. Whether or not an individual subject to an accepted background of rape and/or domestic violence, as in the current case, can raise in law a defence of duress to a criminal charge, which is capable of being left to a jury? ii. Whether or not the prosecution of a victim of rape and domestic violence, as per the circumstances of the current case, amounted to an abuse of process by the Crown and/or was a breach of fundamental human rights?” 31. In respect of ground (ii), the application referred to the DPP’s comments and to the revised prosecution guidance (see paragraphs 18-19 above). It explained that a senior lawyer from the Equality and Human Rights Commission had expressed an interest in the case and continued: “This case clearly raises important issued of equality and human rights and we would welcome any intervention by the Commission into this appeal ... That ... perhaps serves to further demonstrate the public importance of this proposed appeal.” 32. The prosecution lodged submissions dated April 2012. As to whether there had been a breach of fundamental human rights, they noted that, as previously submitted, the applicant could not reasonably argue that her Convention rights had not been protected. They contended that where an individual had conducted herself so as to deliberately and knowingly place herself beyond the State’s protective reach and in jeopardy of a prosecution by denying her status as a victim, she had no arguable complaint when she found herself charged with a criminal offence. They maintained that the applicant’s submissions continued to confuse the role of investigators and prosecutors, and that the Convention required the decision to prosecute to be taken in application of the Code for Crown Prosecutors on a case-by-case basis. As the decision to prosecute had arisen from a correct application of the Code, there had been no failure to protect the applicant’s Convention rights. 33. On 22 May 2012 the Court of Appeal refused to certify a question for the Supreme Court. 34. At the relevant time, the Code for Crown Prosecutors provided that a prosecution would usually take place unless the prosecutor was sure that there were public interest factors tending against prosecution which outweighed those tending in favour. 35. On 7 July 2011 the Crown Prosecution Service published revised policy guidance in relation to prosecutions concerning rape and domestic violence. It stated that when applying the public interest stage of the Code test, prosecutors should bear in mind the comments of the Lord Chief Justice in the applicant’s appeal against sentence. The revised guidance sets out the relevant factors in favour of and against prosecution. 36. The Human Rights Act 1998 (“the Human Rights Act”) incorporates the Convention into United Kingdom law. Under section 7(1) of the Act, a person who claims that a public authority has acted in a way which is incompatible with Convention rights may rely on the Convention rights concerned in any legal proceedings. Section 2 of the Act requires a court determining a question which has arisen in connection with a Convention right to take into account the case-law of this Court. 37. The case of G v. R [2008] UKHL 37 concerned an appeal against conviction by a defendant convicted of raping a girl under the age of thirteen. At the time of the offence the applicant had been fifteen years old and had believed that the girl was the same age. He argued that his prosecution for rape, instead of a less serious offence, and his subsequent conviction were disproportionate in the circumstances of his case and thus violated his right to respect for private life protected by Article 8 of the Convention. The Court of Appeal dismissed the appeal in April 2006, although it accepted that the prosecution of a minor for rape in the circumstances of the applicant’s case might in certain cases give rise to a violation of Article 8. In June 2008 the Supreme Court dismissed the appeal, holding by three judges to two that there had been no violation of Article 8. The majority found that even if the defendant’s Article 8 rights had been engaged, his prosecution and conviction were proportionate in the pursuit of the legitimate aims of the protection of health and morals and of the rights and freedoms of others. 38. The claimant in S.H.X. v Crown Prosecution Service [2014] EWCA Civ 90,