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Law regarding consent is not confused, wrong or unfair - Sandra Paul writes for The Law Society Gazette
Sandra Paul
This page sets out a number of frequently asked questions in relation to allegations of sexual offences.
What should I do if I am accused of a sexual offence?
Even if you have not yet been contacted by the police you should speak to a criminal defence lawyer. On no account should you try to contact the person making the allegation. If you have any records of communication with your accuser (emails, text messages, call records, letters), make sure to preserve them.
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What if I have been falsely accused?
False allegations of sexual offences can be made for a number of reasons. Do not try to contact the complainant – directly or indirectly - under any circumstances. Your first step should be to contact a criminal defence lawyer and obtain specialist advice. You should then allow your lawyer to take any further action deemed necessary and you should not conduct your own enquiries.
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What if I am contacted by the police?
In many cases the police, who are obliged to investigate allegations of sexual offences, will seek to arrest suspects without advance notice. In such a situation, you have the right to be represented at the police station. Under no circumstances should you agree to be interviewed by the police without first obtaining legal advice.
In some cases the police may ask you to attend an interview voluntarily (without arrest). Again, your first step should be to contact a criminal defence lawyer who can liaise with the police and ensure the process is conducted fairly and properly.
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Why do I need a solicitor if I haven’t done anything wrong?
It is a very common misconception that being represented by a solicitor in a police interview means that you have something to hide. The reality is that sexual offences are legally complex and without proper legal advice you will be significantly disadvantaged. Crucially, if you are legally represented you are entitled to “disclosure” before any interview. This means that the police will provide some advance notice about the allegation(s) and what they want to question you about. If you do not have a lawyer, there is no requirement for the police to provide disclosure and you will go into the interview entirely unprepared.
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What about consent?
Consent is one of the most important concepts in sexual offences. Simply put, consent is an agreement by a person who has the freedom and capacity to agree. However the issues of consent become more complex when you consider that, even if person A alleges that they were involved in a non-consensual sexual act with person B, it has to be proved that B did not reasonably believe A was consenting.
The question of intoxication – and its effect on consent – is a regular feature of sexual offence allegations. Because of the complexity of the issue, you should consult a lawyer as soon as possible.
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The police have taken my computer/mobile phone. When will I get it back?
The seizure of electronic equipment is standard procedure in many police investigations. Once items have been taken, they may be submitted to a forensic laboratory for “interrogation”. This process can take many months to complete (unless the case is given a high priority, and most are not). This can cause serious inconvenience to those under investigation and steps can be taken by solicitors to obtain copies of any data seized.
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Isn’t it just someone’s word against mine?
The nature of sexual offences mean that most allegations are of conduct that took place in private, and it is rare to have third party witnesses. The police do not require additional witnesses and a prosecution can be based on the word of just one person.
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How long will the process take?
There is no straightforward answer because much depends on the nature of the allegations themselves and how the police decide to deal with it. Generally speaking, sexual offences take longer to investigate than many other criminal matters. If historic allegations are involved then an investigation may take many months. If charges follow then the matter is dealt with in court and will take considerably longer to come to an end.
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What happens if I am charged?
You will be required to appear at court. Depending on the seriousness of the allegations, the case may take place at either the Magistrates Court or the Crown Court. Cases move more quickly in the Magistrates Court but in the event of a not guilty plea, proceedings will last a number of months. In the Crown Court, where trials are heard in front of a jury, it can take up to a year (and sometimes longer) for a case to come to trial.
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Will my name be published in the media?
While in many sexual offence cases the complainant is entitled to anonymity, if you are prosecuted there is little that can be done to prevent publication of your identity (unless it might lead to the identification of, for example, a child). Prior to charge, however, we have a strong track record in defending and protecting individuals’ rights to privacy and anonymity. Allegations of sexual misconduct carry a particular stigma and we recognise how important it is to minimise public exposure.
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Why am I on Police Bail?
Following arrest, suspects are often released from the Police Station on Police Bail. The Police often release suspects on Police Bail when they wish to impose Police Bail Conditions on a suspect. Police Bail Conditions may prohibit a suspect from doing a certain thing, or require a suspect to live in a certain place. If Police Bail conditions are breached, the suspect may be arrested for breaching Police Bail Conditions.
The initial time limit for Police Bail is 28 days. Following this period, the Police may be granted an extension of bail up for a further three months (if a Senior Police Officer authorises the extension). After the three month period, the Police are required to make an application to the Magistrates’ Court to extend the Police Bail period.
Anyone seeking to challenge their bail conditions should seek the advice of a Solicitor.
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What does "Released under Investigation" mean?
Following the reforms to the Police Bail regime, in most cases, the Police often allow a suspect to be “Released under investigation.” This means that the Police will continue to investigate the allegations against a suspect, but the suspect is not on Police Bail and no bail conditions apply.
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Further information
For more information and if you have a concern regarding a sexual offence allegation, please contact our team in confidence.
We also have a cross-disciplinary team advising on sexual misconduct allegations in the workplace, including members of our employment, regulatory and media & reputation teams. Our unrivalled experience in dealing with some of the highest profile and most sensitive cases involving sexual allegations in the workplace enables us to provide expert advice and support when clients need it most.
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