Defamation and the law concerning false rape allegations

[Legal]

Is it possible to take civil action against a person who makes a false allegation to the police?

Let's say that you were falsely accused of rape, the case against you was dropped by the police due to insufficient evidence and you had a wealth of evidence to show that the person had lied. For example CCTV evidence, text messages etc. Can you use defamation laws in order to get an apology to clear your name?

It depends. If the person made false allegations against you to the police but did not make false allegations to your friends and family then the answer is no. Statements made to the police are immune from defamation. Even if there is is poof of malice and a wealth of evidence to show your accuser was lying it is not possible to take civil action in order to clear your name, for example the court ordering the accuser to apologize.

One example is Westcott vs Westcott 2007 where the court of appeal struck out such a case on the grounds that reports to the police are immune from defamation claims. That case can be viewed here http://www.bailii.org/cgi-bin/markup...method=boolean

If a person makes false allegations to your friends and family via text message or email for example or verbally or on facebook or other publications then yes you can make a claim, provided you have enough evidence.

What if the person has no money? Is it worth making a defamation claim

Even if the person has no money it may be worth persuing a defamation claim as the court can make an order for the person to issue an appology and thus clear your name. However, as mentioned above the person needs to have made false allegations to 3rd parties, if they just made allegations to the police then they are immune from a defamation claim.

An alternative to a defamation claim is a Private Prosecution

If a person makes false allegations to the police against you and you have a wealth of evidence to prove that they were lying then the police should pursue this and make further investigations. However all too often the police will tell you to take civil action. The problem is, you can't, since statements made to the police are immune from civil claims, even if it is proven to be malicious. The solution would be a private prosecution. Instead of the Crown Prosecution Service prosecuting the person it would be you and your legal team. Anyone in the UK can bring about criminal proceedings against another person, it does not have to be via the CPS. For example the RSPCA prosecute people directly. However you need to prepare your case properly and need to use lawyers who are experienced in this field.

In the case of a false rape allegation you would prosecute the person for perverting the course of justice, which would typically result in a 12 month custodial sentence.

If you have plenty of evidence and your case is properly prepared by specialist lawyers then it will have a good chance of succeeding. However it may cost £150,000+ should it go to trial. The bad news is that you have to risk this money up front. The good news is that you will be able to claim back your prosecution costs, even if the person is aquitted. However this is on condition that you followed all the proper procedures. If your claim was done in order to get "revenge" and "to put the other person in the dock" in order to make them stressed then you will not be refunded any costs. The other person may even sue you for malicious prosecution. Note: The CPS have a right to take over a private prosecution at any time and discontinue it on the grounds that either there is not enough evidence or that it is not in the public interest. For example if you decided to prosecute the Prime Minister for war crimes in Iraq then it's likely that your case would be quickly taken over by the CPS and discontinued.

If you decided to cut corners and to "do it yourself" instead of employing expensive solicitors, then it's also likely to fail, since you will be unfamiliar with the procedures, be ill prepared and will not be taken so seriously by the court. Even if you have a wealth of evidence. Cases of perverting the course of justice are often difficult to prove, and you will need plenty of evidence and an experienced legal team. Although it is possible, you should not think about prosecuting someone without using experienced lawyers or you will fail.

Summary

If you have been falsely accused but the person only made allegations to the police and to no one else then you can not use defamation laws. If you have a lot of evidence to show that the person lied then report it to the police and put pressure on them to investigate. Failing that try a Private Prosecution, although be prepared to pay £150,000 for it to actually work. If you do it properly you can get all your costs back but only once it's over.

If the person made false allegations to your friends and family then you can use defamation laws to get an apology and clear your name. This can happen out of court and will be the more attractive option for the other party than pay tens of thousands in compensation. Unfortunately there is no legal aid for cases of defamation, but out of court settlements are common, depending on the strength of evidence.

[lonley place]

Hi & Welcome
Your article is interesting but...why are you here ??

[Casehardened]

Hi Legal,

Thank you for this very useful post as the question of 'how can I get the complainant prosecuted for making a false accusation' frequently comes up.

May I ask if the information that private prosecution costs can be reclaimed is still current in light of the recent changes to the legal aid system (i.e. private defence costs can no longer be recovered)

[Legal]

Costs

Hi Legal,

Thank you for this very useful post as the question of 'how can I get the complainant prosecuted for making a false accusation' frequently comes up.

May I ask if the information that private prosecution costs can be reclaimed is still current in light of the recent changes to the legal aid system (i.e. private defence costs can no longer be recovered)

It isn't affected by the legal aid changes. As long as you follow the correct procedures and act reasonably then you are entiled to get costs of a Private Proscution back if: The person pleads guilty; is found guilty; is aquitted; the CPS take over and decide to continue the case themselves; and even if the CPS take over and discontinue the case as long as you have done everything in the legally correct manner, have been reasonable and it's clearly non-vexatious then you will get your costs back. For example if the person was clinically insane or had an IQ of 70 or less the CPS may decide to take over and discontinue (however since this is not your fault) then you will get your costs back. However you can't get the home office to pay the costs up front. You have to pay all the lawyers fee's and then only at the very end you can make an application.

With regards to a private prosecution, other ways of reducing costs would be:

1. Create the basic case with your evidence and hand it over to the CPS asking them to continue with it. The cost would probably be £20,000 for lawyers to get their head around the particular situation, gather statements and other evidence to put the basic framework together. I don't think you would get your costs back though since it won't have started to go through the courts. If the CPS take on your case then it is no longer a private prosecution. However you will have zero costs from that point onwards and they may even ask the police to work with them to continue gathering evidence which is a lot easier than getting court orders to summons witnesses or get mobile phones downloaded as would be the case in a private prosecution. However, since it won't be a private prosecution you won't have any control of what barrister they use, what witnesses they talk to and general communication may be poor. But this could be a good way of kick starting things and bypassing the police if you have some good evidence.

2. Alternatively you can do a super thorough job of creating a case via your lawyers, to the point where you have everything you need for a conviction and can proceed to court. Then once your case starts going through the courts (when you get a date for first hearing) you request that the CPS take over the prosecution with a view to continuing it. With good preparation they should see that you have a strong case and have no problem continuing with it. This might cost £60,000 (maybe less than 50% of what a trial might cost), it depends how much you ask the lawyers to do and how many witnesses there are to take statements from etc. The more work that is done the more likely they are to continue. I'm sure you could get away with spending less money if you gave your lawyers a clear budget and planned to get the case taken over at an early stage. In this scenario you would get all your legal costs back even if the CPS decided to discontinue (as long as you did everything properly and legally).

The Home Office would have to have a pretty good reason not to give you back your private prosecution costs back. The burden lies on them to show you have done something wrong and improper, so things are definately in the favour for the prosecutor in that respect. If experienced lawyers are used then there should be nothing to worry about.

[Legal]

Hi & Welcome
Your article is interesting but...why are you here ??

Without going into detail, I have been in one of these nasty situations myself and happy to share this information. It seems there is general confusion over what can and can't be be done with regards to clearing one's name and what legal options are available.

[Casehardened]

Thank you for the clarification...... as this is a fairly hot topic (nearly everyone goes through a stage of wanting revenge) and as you have obviously either researched the subject thoroughly or are in the legal profession, I have taken the liberty of copying the thread to the 'Useful Information' section of the forum.

It won't disappear down the page and we can then direct any queries there. At some stage I will delete the superfluous posts from that thread.

[lonley place]

Hi
Thank you for clarifying your reason LP

[Jimbo]

I have read and understand

I read all this and my case is similar, my wife has made a false allegation to police and investiagtion is ongoing, the police are taking forever and have me on bail, they have destroyed my life, made me homeless and I am fighting for my daughter... so they have just extended my bail again, but there is no truth or evidence, they claim the are busy and CPS have a 5 month backlog etc.. She has made a statement at Family Court as we have 3 cases there,, my thought is, can I start to take her to court for defamation as she has made the statement and signed it, her statement actually is in my defence because I belive it would win a case, she say "she felt", there is no real allegation in her statement, just a stratement at the start saying I raped her, but afterwards when you read her statement you are left saying where...If I can pursue her in civil court then I could force the police to end or rethink their slow enquiry, also I am only after her being instructed to stop saying, this even though it is only an allegation really is going against me in my Family court applications for my daughter. I could sit back and wait for the police but I will be destroyed by March, Your thoughts.

[Rights Fighter]

I read all this and my case is similar, my wife has made a false allegation to police and investiagtion is ongoing, the police are taking forever and have me on bail, they have destroyed my life, made me homeless and I am fighting for my daughter... so they have just extended my bail again, but there is no truth or evidence,

they claim the are busy and CPS have a 5 month backlog etc.. She has made a statement at Family Court as we have 3 cases there,, my thought is, can I start to take her to court for defamation as she has made the statement and signed it, her statement actually is in my defence because I belive it would win a case, she say "she felt",

there is no real allegation in her statement, just a stratement at the start saying I raped her, but afterwards when you read her statement you are left saying where...

If I can pursue her in civil court then I could force the police to end or rethink their slow enquiry, also I am only after her being instructed to stop saying, this even though it is only an allegation really is going against me in my Family court applications for my daughter. I could sit back and wait for the police but I will be destroyed by March, Your thoughts.

CPS and police are very busy with these cases especially in the last few years where the issue of compensation has been trumpeted from the hilltops and mountains.

Pursuing her through the civil courts won't force the police to do anything. They cannot be forced to be quicker because of the sheer scale of allegations (true and false) being made every day.

And of course, it could well result in the ex adding to her allegations to support her case.

Sorry to say, all you can do is sit it out and wait until a decision is made. Even then, the standard of proof is much lower in the family court.

Plus suing for defamation will cost a fortune and there will be no legal aid for that.

I understand your frustration but as I said, all you can do at this point, is to sit it out.