Eleanor de Freitas’ tragic death was just days before she was due to stand trial for perverting the course of justice. The pending inquest will deal with the circumstances surrounding her death and I do not want to interfere with that process. However the case has understandably raised questions about private prosecutions in these types of cases and why the CPS took over and continued this particular case.
Having considered the detail and the issues raised by the family, I am satisfied that the decision making in this case was correct and that it was made in accordance with our policies and guidance. I have separately met with Ms de Freitas’ father, David de Freitas, to explain in more detail our decision and the evidence informing it, much of which is personal and sensitive and therefore inappropriate for the CPS to make public. This statement is aimed at explaining the reasoning behind our decision making and not at exploring the evidence in the case, as the allegations concerned have not been properly tested in court. Notwithstanding the correct decision making, this case has highlighted a number of wider issues which I have also discussed with Miss de Freitas’ family and I have welcomed their input.
Cases of perverting the course of justice or wasting police time in relation to an alleged false rape claim are rare, but where there is sufficient evidence to show that a false claim may have been made, the potential harm to those affected must be very carefully considered and an appropriate decision made. This case was unprecedented and one of the most complex I have seen in that not only did it require careful consideration of Ms de Freitas’ mental health, it was also the subject of a private prosecution without a full police investigation.
Parliament has preserved the right of individuals to bring private prosecutions. This right is limited for some offences by the need for my consent but no such limit applies to cases of perverting the course of justice. When we receive a request to intervene, as we did in this case, we must consider that request and apply the same test, set out in the Code for Crown Prosecutors, as we would to any other prosecution. If, as here, the case does meet our test we have two options. One is to leave the case in the hands of the private prosecutor, the other is to take the case over and conduct it. Our Legal Guidance states that private prosecutions should be taken over and prosecuted where the offence is serious and also where the case is one “that merits the prosecution being conducted by a public prosecuting authority rather than by a private individual”. Given the test was met in this case, had the CPS not taken over proceedings, a private prosecution would have continued. In my view, given the nature of the allegations, that would not have been appropriate.
At this stage it is important to stress that rape is an incredibly serious crime which remains under-reported, partly because victims fear that they will not be believed. Nothing in this unique and tragic case should put anyone else off from making a complaint of rape or sexual assault. The CPS has done a huge amount of work in recent years to ensure that all the very difficult aspects of cases involving allegations of sexual offences where vulnerable parties are involved are considered correctly. Highly skilled rape specialist lawyers deal with all rape and serious sexual offence cases and they are alive to the signs of possible intimidation, humiliation and shame, and self-blaming which can be displayed in behaviours previously thought as potentially undermining to some allegations of rape. As a culmination of almost four years’ work raising awareness of the sensitivities and issues surrounding cases involving allegedly false rape claims, we are also in the process of updating our guidance on prosecuting cases of Perverting the Course of Justice where it is alleged a false claim has been made.
However, the evidence in this case was strong and having considered it in light of all of our knowledge and guidance on prosecuting sexual offences and allegedly false rape claims, it is clear there was sufficient evidence for a realistic prospect of conviction for perverting the course of justice. This was evidence including text messages and CCTV footage that directly contradicted the account Ms de Freitas gave to the police. This was not assumption based on her behaviour or actions which fall into myths and stereotypes about how alleged rape victims should behave. It was on this basis that we concluded that there was a realistic prospect of proving that the rape allegation made by Ms de Freitas was false, and there was also a strong public interest in prosecuting due to the seriousness of the alleged offence which was maintained by the defendant for some time and which led to the arrest of an individual.
I must remind everyone that no case has been proved against Ms de Freitas and so no conclusions can be made or stated as fact. Indeed the test that we must satisfy to bring a case to court – that it has a realistic prospect of conviction - is very different to the higher test of being sure of a person’s guilt beyond reasonable doubt which a jury must decide upon. I am satisfied that prosecutors had taken the necessary steps in assuring themselves that Ms de Freitas’ mental health had been properly considered. This was in the form of a very detailed report by a consultant forensic psychiatrist instructed by Ms de Freitas’ legal team, who also took into account the views of Ms de Freitas’ consultant psychiatrist. That medical assessment was clear. The doctor instructed by Ms de Freitas’ legal representative recommended that she was aware of the implications of making a false allegation, as she was alleged to have done, and was fit to stand trial. We do not take on these kinds of prosecutions lightly, but the medical evidence provided to us could not justify dropping such a serious case. No further representations were made to us as to Ms de Freitas’ health, which would of course have been carefully considered.
There has been speculation that the police did not agree with the prosecution for various reasons. However, the police never undertook an investigation into the alleged perverting the course of justice nor did they consider all the material provided to us by the private prosecution. They were therefore not in a position to form a view on whether there was sufficient evidence to prosecute.
Bringing such a prosecution without the support of the police from the outset is extremely unusual. However police engagement should have been secured by the CPS at a far earlier stage than did in fact happen when a police disclosure officer was provided in March 2014. Although the majority of the material was provided to the defence, Ms de Freitas’ police interview was only provided at a late stage.
If the CPS is invited to consider a private prosecution and the conclusion is reached that either the evidential or the public interest test is not met then we will, of course, take over the case and discontinue it. If, on the other hand, both these tests are met the question remains whether the prosecution should be conducted by the CPS or by the private prosecutor. As a result of this case, I intend to make it clear to prosecutors that, where the allegation in question arises out of an alleged false claim of rape, it would be an exceptional course for it to be left in the hands of the private prosecutor.
I have expressed my very personal and heartfelt sympathies to Ms de Freitas’ family and I hope that I have been able to explain the actions of the CPS to them, although I know that will be little comfort for the terrible and tragic loss of their daughter.
Alison Saunders, Director of Public Prosecutions
