A v R

A truthful complainant who deliberately makes false retractions which frustrate the prosecution of a serious crime may commit perverting the course of public justice. A victim is not exempt from that offence, although coercive domestic circumstances may greatly reduce culpability on sentence.

Duress is distinct from personal pressure. It requires a threat of death or serious injury, including rape, which cannot reasonably be avoided. Prosecutorial guidance creates neither an immunity nor a defence. A safe conviction does not become an abuse of process because later guidance indicates that a prosecution would now be unlikely.

The appellant pleaded guilty at Mold Crown Court to perverting the course of public justice by falsely retracting truthful allegations that her husband had raped her. The Crown offered no evidence on the alternative indictment alleging that the original rape allegations were false. She received eight months’ imprisonment.

The Court of Appeal had previously quashed the custodial sentence and imposed a community-based sentence: [2010] EWCA Crim 2913. On this appeal against conviction, the appellant relied on alleged duress, later psychiatric evidence and the Crown Prosecution Service’s subsequently revised guidance concerning retractions by victims of rape and domestic abuse. The central issue was whether those matters made her guilty plea or conviction unsafe, or rendered the prosecution an abuse of process.

1. Appeal dismissed. The appellant’s repeated false assertions that her truthful rape allegations were lies went substantially beyond merely withdrawing a complaint. Given the necessary intent, that conduct fell within the common-law offence of perverting the course of public justice. A victim who falsely retracts truthful evidence is not to be treated differently from another witness to a serious offence.

2. The appellant had no realistic defence of duress. The court applied the restrictive requirements identified in R v Hasan [2005] 2 AC 467 and the authorities on duress. Duress requires pressure arising from extreme circumstances, namely a threat of death or serious injury, which includes rape, and which cannot reasonably be evaded. The appellant’s guilt, fear, concern for her children, vulnerability, low self-esteem and domestic-abuse history supplied powerful mitigation but did not evidence a threat of violence at the time of the false retractions. The later psychiatric report did not alter that conclusion.

3. The guilty plea was not equivocal. The contemporaneous accounts given to the police, legal advisers and the writer of the pre-sentence report did not provide a factual basis on which responsible counsel could advise a contested trial based on duress.

4. Prosecutorial guidance does not create a defence or immunity. The decision whether to prosecute belongs to the Crown Prosecution Service, not the court. Provided there is evidence on which a jury could convict, the court may intervene only in the rare circumstances in which the prosecution is an abuse of process. A failure to follow part of a policy does not itself establish abuse, and the prosecution may for good reason depart from its guidance.

5. A prosecution which was not abusive when the appellant was convicted could not become abusive because new or amended guidance was later issued. Nor could the court quash an otherwise safe conviction on a broad ground of unfairness. The court had no extra-statutory jurisdiction to do so.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed. In an earlier appeal against sentence, this court quashed the eight-month custodial sentence and substituted a community-based sentence: [2010] EWCA Crim 2913.

• Mold Crown Court: On 15 October 2010, the appellant pleaded guilty to making and pursuing false retractions of rape allegations. The Crown offered no evidence on the alternative indictment alleging false rape allegations. On 5 November 2010, she was sentenced to eight months’ imprisonment.