Merritt, R. v

A false allegation of rape made to the police, amounting to perverting the course of justice, will almost inevitably require an immediate custodial sentence. The need for deterrence reflects both the gravity of a false allegation and the serious consequences for the falsely accused person.

The length of custody must nevertheless be no more than necessary. It requires an assessment of the persistence and planning of the allegation, its actual consequences, the offender’s personal circumstances, remorse and guilty plea. A sentence should reflect the particular facts rather than treat all false allegations alike.

The appellant pleaded guilty at Winchester Crown Court to perverting the course of justice after falsely alleging that her estranged husband had raped her. He was arrested, detained for nine hours, interviewed, medically examined and then released on bail while the allegation was investigated. He was neither charged nor tried.

The Recorder imposed ten months’ imprisonment. The appellant appealed against sentence, contending that custody was wrong in principle or, alternatively, that the term was manifestly excessive. The central issues were whether immediate custody was required and, if so, what term was proportionate.

1. Appeal allowed in part. The court upheld the Recorder’s decision to impose immediate custody, but quashed the ten-month sentence and substituted four months’ imprisonment.

2. False allegations of rape are exceptionally serious. They misuse the criminal justice system, may be difficult to refute, and can expose an innocent person to loss of liberty and intrusive investigation. The court adopted the guidance in Goodwin (1989) 11 Cr App R(S) 194 and Kyriakou (1990) 12 Cr App R(S) 603 that custody will almost inevitably follow. On the facts, the Recorder was required to impose a custodial sentence.

3. The term of ten months was, however, longer than necessary. The allegation was wicked and was maintained sufficiently to cause a continuing investigation and three weeks on bail. Yet the husband was not charged, had been detained for nine hours only, and the appellant had not made a witness statement or fabricated supporting evidence. There was some planning, but the allegation arose while the appellant was in substantial personal and mental turmoil.

4. The court also gave weight to her guilty plea, remorse, alcohol dependency, impulsivity, and the evidence that she had developed greater insight while in prison. Having regard to the sentencing authorities, including Gregson (1993) 14 Cr App R(S) 85, and the particular mitigation, four months’ imprisonment was the appropriate sentence.

• Court of Appeal (Criminal Division): Allowed the sentence appeal in part and substituted four months’ imprisonment for ten months: [2005] EWCA Crim 2313.

• Crown Court at Winchester: On 29 July 2005, following a guilty plea to perverting the course of justice, imposed ten months’ imprisonment.