The Metropolitan Police Commissioner has announced that officers investigating alleged sex offences will no longer be expected to presume that the complaints are true. That does not mean they should presume they are untrue – rather, that the officers should remain open-minded while ensuring that complainants get the police’s full support in order to give their accounts without undue stress.
‘Do you believe me?’ is the perfectly reasonable question that clients ask advocates, and which advocates dread. Answer ‘no’, and trust is gone for ever; answer ‘yes’, and you have become partisan and may find yourself seriously embarrassed later. The proper response has to be along the lines of ‘I mean no disrespect, but whether I believe you or not has nothing to do with my ability to represent you and put your case before the court as strongly as possible’. A respectful distance is essential.
What should happen – and it takes a while to learn how to do it – is suspension of one’s everyday inclination either to believe or disbelieve what some one says. The advocate should neither believe nor disbelieve; instead, you assess the account, put it in context with other evidence in the case, and look for its strengths and weaknesses. You may give your opinion on whether the tribunal will accept it, on the applicable standard of proof. Your own view of whether the account is true or not is unlikely to be a reliable guide to how others will receive it. If you form a view either way, you must put it aside. Advocates should never forget the wise words of Megarry J in John v Rees [1970] 1 Ch 345
As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not: of unanswerable charges which, in the event, were completely answered; with inexplicable conduct which was fully explained…
Nothing like The Sun 