Proving a historic sexual offence can be difficult however, sexual offences whether recent or historic are extremely serious and are treated in the same way by the police, Crown Prosecution Service and the courts as an offence which may be reported immediately.
It is not uncommon to hear regularly in the media about offences that are being brought before the courts which may have happened years prior, as there is no time limit for sexual offences being investigated and prosecuted. Here at Eventum Legal we have represented clients accused of sexual offending in excess of 40 years ago, each case bringing its own unique challenges.
It is important, if you have been accused of a historic offence that you do not become complacent by thinking that there is no evidence, and therefore you cannot be charged. Evidence takes many forms, and strong evidence can be gathered to prosecute historic offending. This blog explains what this evidence could be, and the way in which the police conduct investigations into historic sexual allegations.
What is a Historic Sexual Offence?
There is no time limit for investigating sexual offences in England and Wales, therefore a complainant (person making the allegation) can make an allegation at any time. The police will treat this complaint the same way in which they would treat any other sexual offence complaint, and the usual process is to firstly obtain a detailed account of the allegation.
Offences alleged may fall under different laws, this can be due to the changes to legislation over time. The most common laws which govern sexual offences are the Sexual Offences Act 2003, this act contains the law for offences alleged to have occurred after 2004. Any sexual offences prior to 2004 would be prosecuted under the Sexual Offences Act 1956, or the Indecency with a Child Act 1960.
Allegations relating to historic sexual offending can include rape, sexual assault, indecent assault, sexual activity with a child, and more.
How do the Police Investigation Historic Sexual Offending?
Complainant’s Statement
Following an initial report to police being made, the first likely step for the investigating officer is to take a more detailed account from the complainant, usually done by way of an Achieving Best Evidence (ABE) interview. This is an audio and video recorded interview with the complainant which aims to get as much detail as possible. However, it is accepted that memories fade over time, and this can cause issues for the prosecution, where memory and its reliability is questionable.
Corroborative Evidence
Although corroborative evidence isn’t essential for a case to be prosecuted, the police will often make inquiries where identified, to assist in supporting or undermining an allegation. Corroborative evidence in historic cases may include:
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Old messages, letters, diaries
- Photographs
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Medical or counselling records
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School or employment records
- Public records such as DVLA and Registry office documents
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Witnesses who were told at the time, also referred to as disclosure witnesses
Digital and Documentary Evidence
It is rare for the police to seize mobile phones when investigating historic offences, but this does not mean that they won’t. In some circumstances something may have taken place more recently which has prompted disclosure to the police, for example; contact between the parties, which the police need to prove and to do this the suspects phone can be helpful.
Other digital evidence which may assist, although it would not necessarily mean devices need to be seized, is social media accounts and the content of those. Social media can be a powerful source of information, linking people to places, other people, events, employment and can also give an overall picture of a person’s life. This can assist if the police are putting together a timeline of where a suspect may have been at a particular stage of their life.
Suspect Interview
A significant stage in an investigation is the interview of the suspect, this is also a very important stage for the suspect themselves as it is often their first opportunity to put forward an account and, where appropriate, deny the alleged offence. There are many considerations to have when being interview for a historic sexual offence, the way in which the interview is responded to can make or break a case, therefore seeking specialist legal advice before police interview is crucial.
An interview can take place on a voluntary basis or under arrest, either way they are of the same importance and legal representation is necessary.
Is Physical Evidence Required in a Sexual Offence Case?
The short answer to this is no, physical evidence is not required and is unlikely to even be in existence when historic sexual allegations are made. DNA evidence, or the evidence of injury is not an essential requirement for prosecution, and many cases can proceed to court based on one persons word against another and rely heavily on the credibility of witnesses, including the complainant and the accused.
When a historic sexual offence is tried at court, there is a direction the judge would give to a jury regarding delay. This direction informs the jury that just because an allegation hasn’t been reported immediately doesn’t mean it is less likely to be true, as is the case for allegations that are reported immediately. In summary, delay does not affect the way in which a jury must consider and decide on the evidence in a historic case.
How Does the CPS Decide to Charge a Historic Sexual Offence?
The CPS is still required to meet the threshold as it would in any other case, this is by ensuring that both limbs of the Full Code Test are met; the evidential stage, and the public interest stage.
The challenge for the CPS when assessing historic allegations is basing their decisions on the word of people involved, to assist this they look at the credibility of the parties; consistency, details and accuracy given by both. In addition, are there any documents which support what one may be saying for example: did the accused have the car that the complainant says they did in 1987, what records help to prove or disprove this. It is very much like piecing together a jigsaw, and deciding whether, based on the information, there is a realistic prospect of conviction.
Challenges in Historic Sexual Offence Cases
Although historic sexual offences are prosecuted, this does not mean they come without their challenges. As defence lawyers we are consistently seeking ways in which cases can be challenged, and will focus on difficulties the police and CPS may have, identifying the weaker aspects of an allegation.
Considerations to include:
- Memory, and is it reliable. Does the complainant suffer with any memory impairment issues, could they be mixing our client up with someone else, is the memory false?
- Loss of records and the impact on the accused, ensuring a fair and just process.
- Death and unavailability of witnesses. It is not uncommon in historic cases that a key witness may have passed away, or passes away before trial. It is essential that evidence intended to be relied on by the CPS is lawful to use in the absence of the witness who provided it.
- Changes in law over time is a crucial aspect to consider, this can affect the nature, seriousness and sentencing options open to the court if the suspect is to be convicted.
All of the information would be examined as a whole, and it would be pertinent to ensure that a suspect is able to have a fair trial in the absence of any firm evidence.
What Should You Do if You are Accused of a Historic Sexual Offence?
Do not contact the complainant, when being notified that a complaint has been made it may feel natural to want to reach out to ask someone why they are reporting you, it is important you do not do this. Instead, seek legal advice immediately, discuss your situation with a specialist lawyer who will help you to navigate the allegations and pending police investigation.
Being accused of a recent or historic sexual offence is frightening, and you may not know where to start. Due to the confusion that surrounds evidence in these cases it is important you have a clear understanding of the law, and circumstances so that proper informed decisions can be made.
At Eventum Legal we provide clear and realistic advice, so we can work together to put into place a strategy to ensure your defence is advanced and your legal position protected. Speak to us today!