The Complainant

Do you really know the complainant?

By the time you are arrested and interviewed by the police you will know the name of the person making the allegation against you. You may, or may not, know that person. Even if you do know the complainant, do you really know the full background of that person?
The success of the defence case could rest on discrediting the complainant.

As specialist sexual offence defence solicitors we will investigate every aspect of the complainant’s background to the extent that we are legally entitled to do so.

As part of our background check on the complainant we will obtain details of any previous convictions and previous allegations reported to the police. Third party disclosure may also be important, such as obtaining employment records including disciplinary records. Depending on the alleged offence and the age of the complainant, it may also be necessary to investigate social services records, school records and other agencies holding information on the complainant.

Medical records are particularly important where a mental disorder is alleged, as the precise nature of the illness or incapacity could impact on whether the evidence of the complainant is really credible.

Third party disclosure will not be disclosed as of right by the prosecution – the Crown Prosecution Service is only interested in prosecuting you and achieving a conviction, not to help you defend your case. For this reason, any defence solicitor must be vigilant and aggressive in pursuing all background information about the complainant from the prosecution and third party agencies.

You may be surprised by the information we can uncover.

Detailed analysis of the complainant’s story

Defence solicitors were not, of course, there when the incident was alleged to have taken place. As background information, many solicitors will simply rely on the prosecution case papers as the ‘facts’ of the case. The police will have obtained detailed witness statements from the complainant. However, it is not enough to just read the prosecution case papers.

Every single statement made by the complainant should be checked by the defence. At PCD Solicitors we undertake a forensic examination of all statements. This means that we examine, in minute detail, every word stated by the complainant. We then cross-reference ‘facts’ stated by the complainant with other information we have uncovered. By doing so we are able to find any inconsistencies in the complainant’s story. The account given by the complainant to different people may have changed over time.

The complainant’s family relationships should be investigated, especially if these might give a motivation to lie. Social media can also highlight a number of potential inconsistencies with the complainant’s story – not just from what the complainant may have written over time but also from family, friends and colleagues. At PCD Solicitors we not only have our own in house social media analyst to undertake investigations at a law cost, but we have access to private investigators if more traditional investigation work is required.

Where the complainant’s witness statement has been recorded onto video, we are able to obtain an expert analysis and report on the ‘body language’ of the complainant. The spoken word is only one aspect of language. The way a complainant uses their body may conflict with their spoken words. For example, a person who has eye contact with the person they are speaking to, but then avoids eye contact at certain parts of a conversation, may not be telling the truth. The demeanour of the complainant during any police video recorded interview must be assessed by a team that understands the importance of non verbal communication.

We have psychologists on hand to assess the behaviour of the complainant as seen on any video recording.

The accuracy of the complainants story can also be cross-referenced with an analysis of the circumstances at the time of the allegation as recalled by the accused. In order to properly prepare a defence it is important that we, as your solicitors, spend as much time as possible with you and get to know as much as possible about the surrounding circumstances at the time allegation. This will involve the checking of dates and times when you would have, or could have, been alone with the complainant. Your diary, work schedule, computer record, etc, may indicate whether you were near the location of the alleged offence at the time when the offence was alleged to have occurred. The work we can undertake analysing the complainant’s social media, etc, can also be used to investigate your own social media with a view to strengthening your defence.

The physical layout of places involved should be checked and site visits may be necessary. Room layouts, buildings, roads, etc, may not correspond with the description given by the complainant. We are not only able to undertake site visits on your behalf, but we can obtain plans of buildings, obtain photographs and video for use in court as part of your defence.

Telephone, email and text evidence may have been misinterpreted by the prosecution.

Character of the defendant

Often a person charged with a sexual offence has no previous relevant convictions. It is important that your good name and reputation is used to your advantage. The fact that your reputation is at risk can be used as a shield to defend you.

Character reference letters can also help your defence and we can assist with obtaining them. You may not know what to say to potential referees but we can make contact for you, explaining that you have been wrongly accused and how they may be able to assist. It can also benefit your defence if we have live character witnesses at any future trial. These are people who can testify in court to your good character and this will create a strong impression to the jury, and thus make the prosecution allegations seem more and more illogical.

If you have previous convictions for unrelated offences do not worry. They are unlikely to pose any problem for a specialist defence team.

If you do have previous convictions for similar offences, the prosecution will likely want this information made known to the jury. The prosecution will try to achieve this by making an application to the court to ask for permission to introduce details of your previous convictions to the jury. This is known as a bad character application. This is dealt with at an earlier hearing in front of a judge (no jury). From a defence point of view it is vital that any such application is opposed.

As specialists in defending sexual offence cases, we are obsessed with detail. Nothing can be left to chance. A thorough understanding of the background of the complainant, and the accused, nearly always proves to be a significant advantage.

Anonymity of the defendant

Considerable protection is given to alleged victims of sexual offences to withhold their identity from the public. Restrictions are put in place by the court to stop the media reporting the name of the complainant. Unfortunately, the same level of protection is not provided to those accused of committing such crimes and the media will usually report full details of the defendant.

Although there is no general right to anonymity for an accused person, the police should not disclose details of those arrested unless ‘exceptional circumstances’ apply. ‘Exceptional circumstances’ is where the police decide it is in the public interest to identify the accused. As solicitors we are able to exert pressure upon the police not to identify the accused.

The police are more likely to find ‘exceptional circumstances’ in historic cases where the police regularly disclose the name of the person arrested, claiming it is in the public interest to do so. In effect, the police hope that by naming the accused person other complainants will come forward.

During a trial, the court has a discretionary power to restrict what information can be reported by the media. Although this can include withholding the identity of the defendant, it often fails to invoke this power – leaving the media to report details of the person accused.

At PCD Solicitors we will take all available steps to mitigate the problem. By making strong representations to the police we can assist in trying to ensure the police do not release details of the arrested person to the media. During a trial, we are also able to advance legal arguments to try and convince the judge not to identify the defendant. It follows, of course, that the seniority and experience of your legal team will affect your chance of success.