Legal advice for a sexual offence - have you been advised by a specialist?
I am contacted on a daily basis from people who have previously been advised by a duty solicitor at a police station. Let me say at the outset that some duty solicitors are very experienced and provide excellent advice whilst at the station. Unfortunately some are not that good! In any event, the duty solicitor is there only to advise you whilst at the station for an interview. They do not provide ongoing advice (because there is no legal aid available for the ongoing advice).
If you were advised by a duty solicitor you were probably also told to contact them when you hear anything further from the police. In other words, the duty solicitor is saying to wait until you get charged! In my view this is inadequate advice. You need to contact a specialist solicitor now, not wait until you get charged! There are steps that can be taken early on to try and avoid you being charged. This article will examine some of the reasons why you should seek expert advice before you get charged.
I was recently contacted by a new client who had been advised by a duty solicitor at the police station. After his interview he was told by the duty solicitor to just wait for a police decision and to contact him if he got charged.
Below is the actual section from the advice letter he received:
"What happens next?
The police will continue their investigation which may lead to you being re-interviewed or the police submitting their file to the Crown Prosecution Service for consideration of whether you should be charged with an offence or not. You will then be contacted with the decision. At that point please contact me.
In sure course I will close my file and keep it in storage for a minimum of six years but no later than 31st October 2029. The file will then be destroyed. You are entitled to have the bulk of the papers yourself. If that is your wish, please let me know"
So, is the advice in this letter good advice? In my opinion, no, it is not!
If you received the above letter and then came to me for advice, I would certainly not be telling you to just wait. Let me explain. I have listed below each point that I would want to discuss with you in more detail.
The police investigation
The police will, of course, continue their investigation after your interview. But this needs more explanation to you as my client. For example, who will be contacted by the police? What statements will be obtained? Will other agencies become involved, such as social services or child services? Will the police notify your employer (yes if you are in a notifiable job)? What will the complainant (the person making the complaint against you) likely say when the police notify her of your response in interview? How many statements will the complainant give, and will her story change?
The investigation stage can take several months, especially if there are devices to be analysed. Most cases involving indecent images or sexual communications will require a full analysis of any devices seized by the police. In other types of offences, such as a sexual assault, the police may still seize devices to check for corroborative evidence of the assault, such as text messages.
The police may carry out a ‘triage’ of your devices at the police station to get an initial assessment of the contents. A check should be made as to the accuracy of such a triage. Any devices sent away for a full analysis will take several months for the report to be produced - which I will want to see in due course. Be aware that the analyst will produce a full report and also a summarised version. Only the summarised version (known as the SFR1 report) will be provided to you with the initial evidence (if at all). However, it is vital to check the full report (known as the SFR2 report). I have recently written a separate article solely relating to the inaccuracies with SFR1 reports. This article should be available on my website. I will also be pleased to email you a copy if you get in touch with me: email@example.com.
The police will also likely hold several interviews with the complainant, leading to a video interview in due course. When the police feed back to the complainant what you have said in your interview, what is she likely to say? In my experience the person making the complaint will become even more forceful in their assertion that you did commit the offence. Complainants will often embellish their stories. More and more detail is added. Sometimes even new allegations emerge, of new offences. It is important that I, acting on your behalf, gain access to all the statements taken by the police, not just a final ‘approved’ version that is sent to the CPS when deciding whether to charge you. And guess who approves the final statement? Yes, the complainant and the police - not you!
The police may request a further interview with you. This may happen if, for example, the complainant makes new allegations that have not previously been put to you. However, the police may decide that any further allegations are simply an extension of the original allegation (that was put to you in your first interview) and therefore no additional interview is needed. This means that the CPS may be considering ‘evidence’ (new assertions from the complainant) that you do not even know about and have had no opportunity to respond. This, in turn, means there is a greater chance you are charged.
It may benefit your case if we request a further interview. The police may have decided it does not assist their case to hold a further interview. However, it may directly benefit you if we do arrange an additional interview.
Why would we want to request a further interview? Well, in many cases I deal with my client had previously been advised by the duty solicitor to answer ‘no comment’ to all questions. This may have been the wrong advice. You may recall from your first police interview that you were given a warning by the police: “You do not have to say anything but it may harm your defence if you fail to mention something when questioned that you later rely on in evidence….”. The danger is that if you later raise a defence that was not previously explained by you to the police or CPS the court may draw an adverse inference - meaning the judge will point out to the jury that you have only just put this defence forward, and they may want to consider whether this is made up! This makes you look guilty!
Even where a ‘no comment’ interview was the best option for you at your first interview, as we learn more about the allegations and discuss defence options with you, it may become important to then explain your defence to the police. An interview is one way to do this. Another way is for us to provide your defence position in writing to the police. We can also explain your position by making representations direct to the CPS before the CPS makes a charging decision.
Following your first interview it is at that stage that your solicitor should be spending considerable time with you to closely examine the allegations and your version of events. At this stage I would also obtain from a client all their background information - about their life, career, health, wellbeing, character, family, etc. This is important as it helps me consider all defence options for if a client is charged. However, this information is important for when we make representations to the CPS prior to a charging decision - to try and avoid a client being charged.
A large amount of time may also be spent in obtaining background information about the complainant. In my experience, people who make false allegations are complex individuals, often with mental health issues. Numerous research papers have been written detailing reasons why people make false allegations. However, such people often give away pieces of information that, if obtained by your defence solicitor, can totally discredit the complainant. If found early enough we can use this information to stop a prosecution - meaning you are never charged.
I could probably write a book detailing all the cases I have been involved with where we have uncovered lies told by the complainants which have led to prosecutions failing. Today, many people’s lives revolve around social media, texts, group chats, etc. I have dealt with cases where we have found background information about a complainant (especially on social media) that completely discredits them. Often the information we uncovered was not known by the police and CPS. After all, a complainant willing to make false allegations is hardly likely to tell the police why they are lying or what other lies they have told in the past.
Submitting their file
Once the police have completed their investigation they will submit their file to the CPS for a review and for a charging decision to be made. The CPS have specially trained ‘reviewing lawyers’ to consider cases involving sexual allegations. The reviewing lawyer will consider the ‘evidence’ at that stage and decide whether you should be charged and, if so, with what charges.
It is important that your solicitor makes representations on your behalf to the CPS reviewing lawyer to try and persuade the CPS not to charge you. Remember that the file being considered by the CPS is sent from the police and, as such, it is likely to be pro-prosecution. There will likely be considerable information in the police file from the complainant - gathered over several police interviews - setting out the crimes that the complainant (and the police) say you have committed. But there will be very little in there, if anything, putting your side of the story.
In fact, if you gave a ‘no comment’ interview the CPS reviewing lawyer may even consider you can’t be bothered to even raise a defence.
By making detailed representations to the CPS reviewing lawyer prior to a charging decision being made we are able to put your defence case forward, raise concerns about the complainant, provide extra lines for enquiry (eg mental health or social media concerns about the complainant), avoid an adverse inference being drawn (if you go to court) and try to show to the CPS that your case does not pass the CPS threshold for prosecution.
If you have a defence argument, why not raise it prior to the charging decision? By doing so you have a better chance of avoiding a prosecution, avoiding court and avoiding your name hitting the press / internet - because you are not charged. After all, what’s the first thing you will do if you are charged? Yes, exactly, raise a defence. Why only raise your defence at court and risk the adverse inference? If you have to tell the CPS your defence at court, why not tell them a few weeks earlier and try to avoid being charged?
Whether it is in your interests to make representations prior to a charging decision should be considered carefully after obtaining all the background information on both you and also the complainant. If your solicitor is not bothering to do this work, then any representations made may not be adequate. Of course your solicitor may not even be making representations full stop!
Whether you should be charged
This clearly indicates that the CPS will need to make a decision as to whether you are charged or not. In my opinion there is little to lose by arguing against a prosecution. The pre-prosecution stage may take 3-6 months. During this time the police are actively gathering information (‘evidence’) to try and prove you guilty. Why not spend the same time yourself, with your solicitors, gathering your evidence - but showing why you are not guilty.
In my opinion it is important not to waste time. Use any time constructively. What is uncovered by you and / or your solicitors during this investigation stage may be very important in persuading the CPS not to prosecute you. Even if the CPS still decides to prosecute you, all the work spent in gathering information early on can then be considered and used as part of your defence. Contrary to what the duty solicitor may have told you, please don’t just sit around for 3-6 months, making yourself ill with worry, just waiting to be charged!
You will then be contacted
I receive telephone calls from people every day saying hey have been charged and have to attend court within the next week or so, and asking for my help. When I ask how long their cases have been going on for I am usually told at least 6 months, often much longer. When I ask what has been done by the duty solicitor or that person’s law firm during this time I am then told that absolutely nothing has been done. These people were simply told to wait for a decision from the police. Appalling.
In due course I will close my file
What’s amazing is that this duty solicitor, even before a case has started, is already talking about closing the file! The is an old adage that states: “in life you get what you pay for”. Enough said.
With a risk of stating the obvious, it is better to avoid a prosecution than be prosecuted. If prosecuted it is better to convince the CPS to drop the case than have it reach a trial. If you reach a trial it is better to be found not guilty than be convicted and face prison.
All sexual offence allegations also raise other concerns that you may not be aware of. If convicted you face being placed on the Sex Offender Register, meaning you have to register with the police as a sex offender. The court can also make a Sexual Harm Prevention Order which severely limits your freedom in day to day life (whether you are sent to prison or not).
Believe it or not, the court (at the request of the police and / or the CPS can even make a Sexual Risk Order - before you are even charged or convicted - again severely limiting your freedom before. Talk about treating you as guilty before you are even tried!
There is no legal aid available for any legal work completed on your behalf before you are charged. This is why duty solicitors / legal aid firms don’t do any work until you are charged. However, I hope this article illustrates why it is important to act early, take expert advice, work on your defence and look for reasons to convince the CPS to drop the case against you. And, if you are still charged, you’re already ahead of the game because we have been working on your defence strategy for several weeks or months already.
Yes it will cost some money to have me advise you and represent you, but what price do you put on your reputation and your freedom? In most cases I deal with I can agree a fixed fee, so any client will have the peace of mind in knowing from the outset what the exact cost will be for all our advice and support.
So do you think it is wise to take advice early or just wait until your hear from the police?
If you would like to discuss your case please do not hesitate to contact me. My initial discussion with you is free of charge. It would assist if you could email me or text me with a summary of your case / your concerns. I will then contact you to arrange a time to discuss your case. As a specialist sexual defence firm I represent clients all over England and Wales.
I can be contacted by:
Mobile / Text / WhatsApp: 07808 553555
Office: 0151 705 8488
Thank you for taking the time to read this article. I wish you well with your case.