Family court judge calls on CPS to reconsider planned prosecution

Family|June 5th 2014

A family court judge has called on the Crown Prosecution Service (CPS) to reconsider plans to prosecute a man for alleged rape.

In the Matter of LA concerned a baby girl born in October last year. ‘LA’ has spent her short life to date living with her grandmother, referred to as ‘TG’ and her husband ‘DG’. LA’s parents accepted that they were unable to care for their daughter and they were happy for her to remain with the couple, who have been together for 18 years.

However, Rotherham Metropolitan Borough Council subsequently asked the courts to make a number of findings regarding DG. His stepdaughter from a previous relationship, referred to as ‘SR’, had made various allegations about DG. She claimed that he had made inappropriate comments about her and had also indecently assaulted her on a number of occasions, and these claims had led to a police investigation and a decision to charge DG with the alleged offences.

The authority also claimed that the couple had deliberately withheld information from them about an additional police investigation into the alleged rape committed against SR’s mother, knowing that this would have a negative impact on their application to care for LA.

Judge Carr QC held a fact-finding hearing at the family court in Rotherham, South Yorkshire. She noted that the burden of proof would lay with the authority throughout the case. In addition, she quoted the comments made by Lord Hoffman in the 2008 case Re B regarding the nature of findings of fact hearings:

“If the legal rule requires a fact to be proved (a fact in issue) a judge or jury must decide whether or not it happened, there is no room for finding that it might have happened. The law applies a binary system in which the only values are nought and one. The fact either happened or did not. If the tribunal is left in doubt the doubt is resolved by the rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of nought is returned and that is treated as not having happened. If he does discharge it a value of one is returned and the fact is treated as having happened.”

Judge Carr concluded that that there was insufficient evidence to support the allegations. Some were contradicted by the evidence or behaviour of other people present, and others by SR’s own behaviour.

The judge noted that the alleged rape had taken place more than 20 years previously and only came to light during police investigations into SR’s claims of indecent assault. The judge said:

“ I am quite satisfied that DG and TG regarded the historic allegation as malicious arising out of the allegations made by SR. It does seem preposterous that a 20 year gap should exist in circumstances where the alleged victim of the rape, LS, allowed her daughter, SR, and her son, JG ,to reside with DG and TG.”

She continued:

“…given the long relationship between TG and DG, when she has never had any cause to question his behaviour either to her or to any of the children, it is hardly surprising that they regarded the allegation of rape as malicious.”

Judge Carr concluded that Rotherham Metropolitan Borough Council had failed to prove the claims. In addition , she declared:

“Given the way in which the evidence was presented before the Family Court, it is very difficult to see how any Jury, properly directed, could be satisfied beyond reasonable doubt that DG had behaved in the way SR suggests he did. I consider that in respect of the allegations made by SR they have no reasonable prospect of success …I am satisfied so that I am sure that the allegation of rape made by LS has only come about as a result of SR’s allegations and looking at the written evidence, it is very difficult to see how there is any reasonable prospect of a conviction, and indeed in the light of the evidence I have heard I sincerely hope that CPS will revisit their decision when they obtain this judgment.”

Read the full judgement here.

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