Appendix to Lord Lester’s Grounds of Appeal: Opinion of David Perry QC and Rosemary Davidson
A. Introduction
1.In an undated Report, the House of Lords Commissioner for Standards (‘the Commissioner’) found that Lord Lester of Herne Hill (‘LL’) had breached Article 8(b) of the Code of Conduct for Members of the House of Lords (‘the Code of Conduct’). This Opinion considers the Report and, in particular, whether the investigation conducted by the Commissioner, and her analysis of the evidence, was fair and in accordance with the principles of natural justice.93
B. Summary overview
2.In November 2017, the Complainant made an allegation of impropriety against LL in relation to conduct which is alleged to have taken place between [REDACTED] and [REDACTED]. This complaint was submitted to the Commissioner and subsequently investigated. At the end of the investigation, the Commissioner found that the allegations had been substantiated and submitted her report to the Sub-Committee on Lords’ Conduct (‘the Sub-Committee’). Having considered the report, the Sub-Committee imposed the most severe sanction available: expulsion from the House of Lords.94
3.LL is appealing to the House of Lords Committee for Privileges and Conduct. The hearing is scheduled to take place on 1 November 2018. One of the issues for consideration by the Committee is the fairness of the investigation process.
4.For the reasons set out in more detail below, this Opinion concludes that the process was unfair for the following reasons:
(a)In circumstances where: (i) the allegations were serious, amounting to criminal conduct; and (ii) the passage of time since the events in question placed LL at a disadvantage in meeting the allegations, the requirements of natural justice imposed an obligation on the Commissioner to adopt a fair process which involved testing the evidence against LL with care to provide a properly reasoned basis for concluding that the complaint was substantiated.
(b)Given the wide scope of the conduct capable of falling within Article 8(b) of the Code of Conduct, and the number of separate allegations included in the Complainant’s statement, fairness required the Commissioner to identify at the outset what the separate allegations were, and which of them, if proved, amounted to a breach of the Code. The absence of such a ‘charge sheet’95 led the Commissioner to treat the allegations as an indivisible whole; to take into account irrelevant considerations; and not to take into account relevant considerations, which was unfair.
(c)The Commissioner proceeded on the basis that: (a) absent a plausible reason why the Complainant would lie she ought to be believed; and (b) that the Complainant’s written statement alone comprised prima facie evidence of an offence. This approach is analogous to the policy of ‘belief’ that both the criminal courts, and Sir Richard Henriques in his recent review of an investigation into historic offences (Operation Midland)96, have rejected as unfair, on the basis that it amounts to a reversal of the burden of proof.
(d)In determining whether the balance of probabilities test was met, the Commissioner did not take LL’s good character and lack of propensity into account when determining the likelihood that he had engaged in the conduct alleged in the complaint . Nor did she give reasons why she did not consider this to be a relevant consideration. This was unfair in circumstances where LL had specifically made representations that this was a material factor that should be taken into account in his favour.
(e)The Commissioner’s evaluation of the evidence fell short of the rigorous testing that was required given the serious nature of the allegations made against LL. In particular, the Commissioner interviewed LL before she interviewed the Complainant; she did not interview the majority of the Complainant’s witnesses in person; she did not put the detail of the allegations to any of the witnesses, including the Complainant or LL; she accepted statements from the Complainant’s witnesses that addressed the allegations against LL at a level of generality, without asking detailed questions about what precisely they had been told by the Complainant; and she did not put key points of LL’s case to the Complainant or her witnesses for their comments.
(f)The Commissioner proceeded on the basis that, if she found on the balance of probabilities that “something of concern” happened between LL on the Complainant, then she was obliged to accept the whole of the Complainant’s account as truthful. This was contrary to the long-accepted approach, adopted by the courts, that a witness’s credibility is not indivisible. This approach to the credibility of the Complainant was particularly unfair in circumstances where: (i) the allegations were perceived by the Sub-Committee to give rise to different levels of culpability; and (ii) the extent to which there was supporting or contradicting evidence varied as between the allegations.
(g)In reaching her determination of the issues, the Commissioner took into consideration a number of irrelevant considerations, and failed to take into account, or afford sufficient weight, to a number of relevant considerations.
5.When considering standards of fairness, it is of course right to acknowledge that proceedings before the Commissioner are Parliamentary disciplinary proceedings in respect of which the full formalities and protections which characterise legal proceedings are inappropriate. Despite this flexibility, there are cases where the gravity of the allegations requires that the evidence be subject to a more intensive degree of scrutiny than may otherwise be appropriate. This is one such case. The serious and criminal nature of the allegations, coupled with the potential prejudice to LL inherent in the fact that the allegations arose from events which took place [REDACTED—over a decade] ago, required a procedure equal to their gravity. In the result, it cannot be said that the procedure adopted by the Commissioner conformed to what the ordinary principles of natural justice demanded, and thus the process when viewed as a whole was unfair.
C. Relevant factual background
The Commissioner’s investigation
6.On 17 November 2017, the Commissioner received a complaint alleging the following behaviour in [REDACTED—over a decade] ago: (a) LL had sexually harassed the complainant; (b) LL had offered the complainant a corrupt inducement to become his mistress; and (c) LL had threatened the complainant with negative consequences if she did not accept his offer.97
7.As the conduct was alleged to have taken place more than four ago, it was necessary for the Commissioner to seek the agreement of the Sub-Committee to proceed with the investigation.98 The Sub-Committee gave its consent on 6 February 2018.99
8.On 13 March 2018, LL wrote to the Sub-Committee raising, among other matters, concerns in relation to the fairness of the procedure that the Commissioner proposed to adopt.100
9.The Chairman of the Sub-Committee replied on 21 March 2018 and stated:
“We agree with the Commissioner that, we having agreed… to her investigating this complaint despite the conduct complained of having occurred [REDACTED—over a decade] ago…, we have no role in her investigation until its completion. This position is unaffected by paragraph 21 of the Code and in any event there is no reason to doubt that the Commissioner will act fully in accordance with the principles of natural justice and fairness.” 101
The evidence before the Commissioner
10.In support of her allegation, the Complainant submitted a statement102 that contained the following account:
(a)On [REDACTED], LL introduced [REDACTED—parliamentary business] to the House of Lords. The Complainant had first met LL some six months earlier, [REDACTED], at a meeting at the House of Lords. At a subsequent meeting LL invited the Complainant to participate in the preparation [REDACTED—parliamentary business]. The Complainant subsequently attended several meetings in the House of Lords and surrounding buildings; she also attended a number of Parliamentary debates.
(b)In late October or early November [REDACTED—over a decade ago],103 the Complainant attended a meeting followed by an evening meal at the House of Lords. A number of people were present at this event, including the Complainant and LL. By the end of the meal, the Complainant had missed her train home and she accepted LL’s offer to stay overnight at his home.
(c)LL drove the Complainant back to his home and during the journey touched her leg on a number of occasions. The Complainant asked him to desist but he continued to touch her leg.
(d)At LL’s home, his wife made tea for the Complainant and offered to bring her a cup of tea in the morning. LL showed the Complainant to her room, and told her that he would be sleeping nearby which made the Complainant uncomfortable. She placed a chair underneath the door handle of the bedroom and called a friend (T) and told her what had happened.
(e)The following morning, LL’s wife brought the Complainant a cup of tea in her room. By the time that the Complainant came downstairs, LL’s wife had left. LL placed his arms around the Complainant’s waist. He followed her around the kitchen while she asked him to stop. After LL stopped, the Complainant told him that she wanted to leave, and he said he would take her to the railway station. Prior to leaving, he showed her a garden shed where he kept his paintings and drawings.
(f)At the railway station, LL told the Complainant that he had strong feelings for her, and she told him that she was only interested in a professional relationship. When the Complainant returned home, she called T again and told her what had happened.
(g)Shortly afterwards, the Complainant attended a meeting at the House of Lords and, in the course of a conversation with LL, he asked her to become his mistress. He told her that, if she agreed, he would make her a Baroness, but if she refused he would ensure that she never got a seat in the House of Lords and that there would be other “repercussions”. The Complainant later reported the conversation to T, and to two other persons: N (a Senior Crown Prosecutor) and M (a District Judge).
(h)Following this conversation, the Complainant was no longer invited to take part in meetings to do with [REDACTED—parliamentary business]. Prior to this she had “been attending meetings consistently and sharing interviews with the media and presenting events often with [LL]”. A civil servant (A) later rang the Complainant to ask why she was no longer attending meetings, and she told him what had happened.
(i)On [REDACTED—over a decade ago], the Complainant and LL appeared together [REDACTED—a media event]. The Complainant was accompanied by T. When LL saw them, he said “I see you have brought a chaperone with you”. To which T replied “why? Does she need a chaperone?”
(j)Prior to the above incidents, the Complainant had invited LL to the launch of her recently published book. He told her that he would not now attend because she had been “a bad girl”, although he did in fact attend the event.
(k)In [REDACTED], LL emailed the Complainant criticising her for campaigning to criminalise [REDACTED]. As a result of this, she felt LL was bullying her.
(l)The Complainant provided an explanation as to why she did not report the allegation sooner than 2017.104
11.LL responded in a written statement dated 26 March 2018.105 He denied the allegations in the following terms:
(a)He first met the Complainant in September or October [REDACTED—over a decade ago] at a meeting in his Chambers. The Complainant was not involved in the drafting and preparation of the [REDACTED—parliamentary business], but was involved in its promotion.
(b)In late Autumn [REDACTED—over a decade ago], the Complainant attended an event and missed her train home. LL and his wife agreed that the Complainant could stay with them for the night. By this time, LL and the Complainant had been working together for a few weeks, not a few months as claimed by the Complainant.
(c)LL did not touch the Complainant inappropriately during the journey to his home or make any other sexual advance. LL vaguely remembered the Complainant’s stay and cannot think of anything he said or did that could cause her to be upset. The allegations with respect to abuse of power are untrue. Neither LL or his wife saw any signs that the Complainant was traumatised by her visit to their house.
(d)LL had no conversation of the type that the Complainant alleges occurred at the House of Lords, and he denied discussing matters of a sexual nature, or making sexually inappropriate comments. He denied offering the Complainant a peerage, or threatening her if she did not enter into sexual relations with him. He had no power to make offers or threats with respect to peerages and “the allegation that [he] did so is ridiculous and untrue”.
(e)LL did not exclude the Complainant from subsequent meetings relating to [REDACTED—the parliamentary business], and did not threaten not to attend her book launch. In fact, during the occasion of the book launch, the Complainant presented him with a copy of the book with an affectionate inscription that was “impossible to reconcile with the allegation that I had been guilty of harassing behaviour or an abuse of power”.
(f)Three days later, the Complainant attended the [REDACTED—parliamentary business] at LL’s invitation, and in the course of [REDACTED—parliamentary business] he referred to [REDACTED] and the Complainant’s “[REDACTED - quote]”.
(g)LL had no recollection of appearing on [REDACTED—the media event], or making the comments attributed to him.
(h)In December [REDACTED], LL received a copy of the Complainant’s second book with an affectionate inscription and a handwritten note in similarly affectionate terms.
12.The Commissioner conducted interviews with both the Complainant and LL. She received statements and/or interviewed or spoke to a number of other witnesses, including: T, A, N and M (the Complainant’s witnesses) and Lady Lester; B (a barrister); S (a judge) and P (a member of a campaigning organisation) (LL’s witnesses). S confirmed that the date of the dinner attended by the Complainant and LL, and after which the Complainant had missed her train, was [REDACTED—over a decade ago but around two or three months later than originally thought].106 The Complainant accepted that this date was “more likely to be accurate”.107
The Commissioner’s conclusions
13.The essential reasoning of the Commissioner, together with her conclusions, are set out in her Report. The key aspects of the Commissioner’s observations and findings were as follows:
(a)The civil standard of proof was applicable and, the more serious the allegation, the stronger the evidence must be. The allegations in the case were such that they required strong evidence to support a finding adverse to LL.108
(b)The Complainant’s statement provided prima facie evidence that LL had breached the Code of Conduct. In circumstances where LL denied the allegations, “this then, is not a case of possible misunderstanding, misinterpretation or an inadvertent clash of expectations of what constitutes proper behaviour. Either the complainant or [LL] is not telling the truth”.109
(c)As the Commissioner could not think of any plausible reason why the Complainant would make detailed but untrue allegations about LL, and then take no further action for many years, she was more likely than not to have been telling the truth when she spoke to her witnesses and made her complaint.110
(d)This was not a case where it was necessary “to examine in great detail” the allegations made by the Complainant, as there was no suggestion that the Complaint arose from a misunderstanding. The Commissioner concluded that “if I find, on the balance of probabilities, that something of concern took place between Lord Lester and the complainant that led the complainant to share her concerns with others at the relevant time, I am bound to accept her version of events, as no alternative is given other than that the events did not happen”.111
(e)The Complainant did speak to the witnesses T, N, M and A shortly after the incidents alleged in her complaint, and that the most likely explanation for what she said to them was that she was describing events that she had experienced.112
(f)The differences and discrepancies between the statements of the Complainant’s witnesses did not show that they could not be relied upon; there was no evidence that these individuals had conspired with one another and the Complainant to cause harm to LL “and no reason has been suggested why they might do such a terrible thing”.113
(g)There was nothing inconsistent in LL’s wife having perceived the Complainant to be friendly and not distressed while in the house given the Complainant’s account that she had not found it appropriate to complain about LL’s earlier behaviour.114
(h)The fact that the Complainant had later written in affectionate terms to LL did not undermine her account as she “clearly has an informal style of email sign off, even with professional contacts”.115
(i)Nothing turned on the dates of the incidents in question, and the Complainant’s inaccurate recollection as to the timing of events was “not significant in undermining her account”.116
D. The rules of natural justice in proceedings before the Commissioner
14.Paragraph 21 of the Code of Conduct provides:
“In investigating and adjudicating allegations of non-compliance with this Code, the Commissioners, Sub-Committee on Lords’ Conduct and the Committee for Privileges and Conduct shall act in accordance with the principles of natural justice and fairness.”
15.The Code of Conduct is accompanied by the Guide to the Code of Conduct (‘the Guide’) which includes provisions governing the Commissioner’s investigation process.117
16.In order to understand the requirements of the Code of Conduct, it is first necessary to identify the ordinary requirements of natural justice and fairness, and then to consider their application to the proceedings in LL’s case.
The common law
17.It is well established that the requirements of natural justice are given substance by their context (R v Home Secretary ex parte Doody [1994] 1 AC 531118). Thus, where proceedings concern a serious allegation of wrongdoing, the requirements of fairness are stricter than in other contexts. In International Transport Roth GmbH v Home Secretary [2003] QC 728, Jonathan Parker LJ stated:119
“there must be something in the nature of a sliding scale, at the bottom of which are civil wrongs of a relatively trivial nature, and at the top of which are serious crimes meriting substantial punishment. Broadly speaking, the more serious the allegation or charge, the more astute should the courts be to ensure that the trial process is a fair one.”
18.The essential requirements of natural justice in criminal and civil procedures were described in the following terms by Lord Dyson in Al Rawi and Ors v Security Service and Ors [2012] 1 AC 531:120
“There are certain features of a common law trial which are fundamental to our system of justice (both criminal and civil)…
… trials are conducted on the basis of the principle of natural justice. There are a number of strands to this. A party has a right to know the case against him and the evidence on which it is based. He is entitled to have the opportunity to respond to any such evidence and to any submissions made by the other side. The other side may not advance contentions or adduce evidence of which he is kept in ignorance…
Another aspect of the principle of natural justice is that the parties should be given an opportunity to call their own witnesses and to cross-examine the opposing witnesses. As was said by the High Court of Australia in Lee v The Queen (1998) 195 CLR 594, at para 32: “Confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial.”
19.An additional requirement of fairness is that the decision-maker must acquaint herself with all relevant facts, and include in her consideration all relevant matters, while excluding irrelevant matters. In Secretary of State for Education and Science Appellant v Tameside Metropolitan Borough Council Respondents [1977] AC 1014, Lord Denning stated121 that:
“To my mind, if a statute gives a minister power to take drastic action if he is ‘satisfied’ that a local authority has acted or is proposing to act improperly or unreasonably, then the minister should obey all the elementary rules of fairness before he finds that the local authority is guilty or before he takes drastic action overruling them. He should give the party affected notice of the charge of impropriety or unreasonableness and a fair opportunity of dealing with it… In addition... the minister must direct himself properly in law. He must call his own attention to the matters he is bound to consider. He must exclude from his consideration matters which are irrelevant to that which he has to consider and the decision to which he comes must be one which is reasonable in this sense: that it is, or can be, supported with good reasons or at any rate is a decision which a reasonable person might reasonably reach.”
Article 6 of the European Convention on Human Rights
20.Article 6(1) of the European Convention on Human Rights provides:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
21.In disciplinary proceedings, where an individual’s right to practise their profession is at stake, Article 6(1) is engaged, and so too are some of the procedural protections guaranteed in criminal cases under Article 6(3) (Albert and Le Compte v Belgium (1983) 5 EHRR 533122). In Albert, the Strasbourg Court found123 that the Article 6(3) procedural protections applicable to disciplinary proceedings were:
(a)the right of the subject of the proceedings to notice of the allegation against him;
(b)the right to adequate time for the preparation of his defence; and
(c)the right to examine, or have examined, witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.
22.Albert has been applied in English domestic law. For example, in R (G) v Governors of School X [2012] 1 AC 167, the House of Lords upheld the approach of the Court of Appeal to the effect that an individual may enjoy article 6 procedural rights if a decision in disciplinary proceedings will have a substantial influence or effect on his civil right to practice his profession.124
23.The European Court of Human Rights has also held that Article 6(1) applies in the context of Parliamentary disciplinary procedures: Demicoli v Malta (1992) 14 EHRR 47. As early as 2000, the Committee for Standards in Public Life made reference to Demicoli and observed that a previous Committee had rightly proceeded on the basis that, notwithstanding the exception for proceedings in Parliament in section 6(3)(b) of the Human Rights Act 1998, the minimum standards of fairness in Article 6 should apply to a charge of serious misconduct against a Member of the Commons.125
Application of the principles of fairness to LL’s case
24.There were two significant features of LL’s case that inform the content of the requirements of natural justice.
25.First, the complaint against LL included serious allegations of a criminal nature.126 While it could not sensibly be suggested that the full formality of a criminal trial was required for their determination, the gravity of the allegations inevitably provides the context for the necessary standards of fairness. This is particularly so, where the consequences for LL of upholding the complaint include the revocation of his right to practice; exclusion from the House of Lords; and irreparable damage to his reputation.
26.Second, the allegations are historical, dating back [REDACTED—over a decade ago]. It is widely recognised that the investigation of historical sexual complaints requires particular attention to the issues of due process and fairness. As Mr. Tom Linden QC noted in his advice to the House of Commons Independence Complaints and Grievance Policy Programme Team:127
“the key issue in relation to the so called historic cases is the fairness, in terms of the ability [of the] responder to respond effectively, of any investigation where the allegation relates to events which took place a long time ago.”
27.The difficulties of ensuring a fair process have been recognised in the context of criminal prosecutions. In R v PS [2013] EWCA Crim 992 Fulford LJ identified128 the problems that may arise in cases where a complaint is made in respect of non-recent sexual misconduct:
(a)Delay in making an allegation can place a defendant at a material disadvantage in challenging allegations arising out of events that occurred many years ago, and this is particularly so in cases where the defence amounts to a simple denial.
(b)The longer the delay, the more difficult meeting the allegation often becomes because of fading memories and the unavailability of evidence. A difficulty compounded by the fact that it may be unclear what evidence has been lost.
(c)When considering the central question of whether a case is proved, it is necessary to bear in mind, in particular, the prejudice that may be occasioned by delay.
(d)In appropriate cases, a jury should be directed to have regard to these above considerations and provided with a summary of the main elements of identifiable prejudice.
28.Given the serious nature of the allegations in LL’s case, and the fact that the allegations are historical in nature, it appears that, as a starting point, the following basic elements of natural justice should have applied to the proceedings before the Commissioner:
(a)LL had a right to notice of the case against him;
(b)He had a right to adduce his own evidence, and effectively to challenge the evidence adverse to him, or to have it tested on his behalf by the Commissioner;
(c)The Commissioner (in common with other decision-making bodies under the Code of Conduct) was required to focus on the issues; take account of relevant considerations; and disregard irrelevant considerations.
(d)The Commissioner was required correctly to apply the relevant legal standards, and in particular the burden and standard of proof.
29.The approach of the Commissioner, and the extent to which she adopted a procedure in conformity with these principles, is addressed in the sections that follow.
E. Notice of the charges against LL
30.The Commissioner investigated LL for an alleged breach of paragraph 8(b) of the Code of Conduct.129 Paragraph 8(b) provides:
“Members of the House should always act on their personal honour”.
31.Paragraph 7 of the Guide to the Code of Conduct states that:
“The term “personal honour” has been explained by the Committee for Privileges as follows: “The term ‘personal honour’ has been used within the House for centuries to describe the guiding principles that govern the conduct of members; its meaning has never been defined, and has not needed definition, because it is inherent in the culture and conventions of the House. These change over time, and thus any definition of ‘personal honour’, while it might achieve temporary ‘legal certainty’, would quickly become out-moded … the term ‘personal honour’ is ultimately an expression of the sense of the House as a whole as to the standards of conduct expected of individual members … members cannot rely simply on their own personal sense of what is honourable. They are required to act in accordance with the standards expected by the House as a whole. ‘Personal honour’ is thus … a matter for individual members, subject to the sense and culture of the House as a whole.”
32.The conduct said to constitute the breach was the conduct described in the Complainant’s statement. This conduct comprised a number of separate allegations falling broadly into two categories: (a) sexual harassment (inappropriate sexual comments; sexual touching in LL’s car; and sexual touching at LL’s home); and (b) abuse of power (threats/inducements in connection a request that the Complainant become LL’s mistress; subsequent exclusion from meetings; and the threats not to attend the book launch and to replace the Complainant in her role in connection with [REDACTED—parliamentary business] with another individual, S).
33.The Commissioner and the Sub-Committee appear to have viewed different aspects of the allegations as particularly serious. In finding that there were exceptional circumstances justifying the investigation, the Commissioner focused on the sexual misconduct allegations and the importance of investigating them in light of the “publicity given to endemic sexual misconduct and abuse of power in many fields of work”.130 However, in imposing a penalty, the Sub-Committee found that the abuse of power allegations:
“constitute the gravamen of this complaint and have driven the sub-committee to conclude that the respondent’s misconduct does indeed amount to a grave abuse of power in the performance of his Parliamentary duties. The other findings… would not of themselves have led the sub-committee to the sanction it recommends”.131
34.Given the breadth of the conduct capable of falling within Article 8(b) of the Code of Conduct, and the number of separate allegations included in the Complainant’s statement, it was incumbent on the Commissioner to identify at the outset of her investigation which of the allegations in the Complainant’s statement required to be proved in order to constitute a breach of the Code of Conduct.132
35.The absence of a simply formulated ‘charge sheet’, or other summary of the accusation setting out what the separate allegations were, and which of them required to be proved in order to reach a conclusion that there had been a breach of the Code, led the Commissioner into a number of errors. In particular:
(a)She treated the Complainant’s evidence as a single indivisible allegation that should be accepted or rejected as a whole, rather than treating each allegation separately;
(b)She focussed on irrelevant matters, such as the manner in which the Complainant signed off her emails to others; and whether publicly available material on the internet was adverse either to LL or the Complainant.
(c)She failed to take into account, or give sufficient weight to, relevant considerations, such as: (i) the lack of supporting evidence for the exclusion allegation; (ii) LL’s good character; and (iii) the prejudicial effects of the Complainant’s delay in making the complaint.
36.Each of these matters is considered below.
F. The Commissioner’s approach to the burden and standard of proof
37.The obligation on the Commissioner to direct herself properly as to the law (Tameside133), included a requirement correctly to apply the burden and standard of proof.
The burden of proof
38.So far as the burden of proof is concerned, one factor that led the Commissioner to find that the Complainant was credible was the fact that she could think of no plausible reason why the Complainant would lie,134 and LL had not put forward any reason why she (or her witnesses) would do so.135
39.By proceeding on the basis that the Complainant should be believed, absent a credible reason why she should lie, the Commissioner adopted an approach rejected by Sir Richard Henriques in his Review of Operation Midland136:
“In cases of sexual allegations, and in particular non-recent cases, there are mostly only two versions of the facts; the complainant’s and the suspect’s. When a complainant gives a straightforward account of sexual misconduct, with no variation or inconsistency, the present policy requires an officer to believe it ‘unless there is credible evidence to the contrary. That is a simple reversal of the burden of proof.” 137
40.A similar observation was made by the Court of Appeal in R v GJB [2011] EWCA Crim 867. In that case the trial judge’s summing-up had referred to the fact that the Defendant could not explain why the Complainant could remember the appearance of the Defendant’s bedroom. Stanley Burnton LJ noted that “this comment, at a crucial point in the summing up, effectively reversed the onus of proof”.138
41.In the context of criminal allegations, it has long been recognised that there may be many reasons why complainants in sexual offence cases (and other cases) may not be telling the truth, or the whole truth. In R v Henry (1969) 53 CrAppR 150, Lord Salmon LJ observed139:
“human experience in the courts has shown that [Complainants], for all sorts of reasons and sometimes for no reason at all, tell a false story which is very easy to fabricate, but extremely difficult to refute.”
42.More recently, in his Report on Operation Midland, Sir Richard Henriques made the following recommendation:
“Investigators should be informed that false complaints are made from time to time and should not be regarded as a remote possibility. They may be malicious, mistaken, designed to support others, financially motivated or inexplicable”. When considering non-recent allegations against prominent people they should consider all relevant background information.” (emphasis added)140
43.In making this recommendation, Sir Richard observed that prominent people were “more vulnerable to false complaints than others” 141 and referred to the findings of a focus group (organised by a sexual assault referral centre) that complainants were sometimes “troubled people [who] often have something that happened in life, even if its not what they’ve reported. It could be a flashback or something that happened years ago.” 142
44.The danger of using the absence of a known motive to lie as a positive feature of a complainant’s evidence has been recognised in other common law jurisdictions. For example, in the Australian case of Palmer v The Queen (1998) 193 CLR a majority of the Australian High Court held143 that:
“a complainant’s account gains no legitimate credibility from the absence of evidence of motive. If credibility which the jury would otherwise attribute to the complainant’s account is strengthened by an accused’s inability to furnish evidence of a motive for a complainant to lie, the standard of proof is to that extent diminished … The correct view is that absence of proof of motive is entirely neutral.”
45.While the English courts have not gone so far, they have held that questions as to whether a Defendant can explain why a Complainant would lie must be accompanied by a careful direction as to how evidence of this nature should be approached. In R v B [2003] 1 WLR 2809 the Court of Appeal held144 that a summing up which included directions that: (a) such a question did not shift the burden of proof, and (b) there were many reasons why complainants lie,145 was sufficient to meet the requirements of fairness.
46.On analysis, the difficulty with the Commissioner’s approach is that she placed significant, and arguably determinative, weight on the absence of an explanation as to why the Complainant would lie without directing herself that: (a) this factor alone placed no burden on LL to prove anything, and (b) there may be a number of reasons why even an apparently credible Complainant is not in fact telling the truth. In summary, there is a real risk that the Commissioner reversed the burden of proof and, as a result, failed to subject the complaint to proper scrutiny.
The standard of proof
47.The Commissioner rejected LL’s submission (based on Re H (Minors) [1996] AC 563) that “the inherent probability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, an event occurred”. In dealing with this point, the Commissioner’s only response was that “the appropriate standard is on the balance of probabilities”.146
48.With respect, the Commissioner’s response did not adequately address the point advanced by LL. It is well-established (and obvious) that the inherent improbability of an event can be a relevant factor when applying balance of probabilities test. In Home Secretary v Rehman [2003] 1 AC 153, Lord Hoffman referred to Re H Minors and made the following observations (at paragraph 55):
“I turn next to the Commission’s views on the standard of proof. By way of preliminary I feel bound to say that I think that a “high civil balance of probabilities” is an unfortunate mixed metaphor. The civil standard of proof always means more likely than not. The only higher degree of probability required by the law is the criminal standard. But, as Lord Nicholls of Birkenhead explained in Re H (Sexual Abuse: Standard of Proof) (Minor) [1996] AC 563, 586, some things are inherently more likely than others. It would need more cogent evidence to satisfy one that the creature seen walking in Regent’s Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that it was an Alsatian. In this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has been fraudulent or behaved in some other reprehensible manner. But the question is always whether the tribunal thinks it more probable than not.”
49.While the Commissioner noted that LL was a person with an impeccable reputation, “celebrated nationally, and internationally for [his] work on behalf of vulnerable people, and … with a history of valuable public service”,147 she appears not to have taken this into account when applying the balance of probabilities standard. Instead she found that:
“…we are all capable of acting out of character for reasons that may never be clear, even to ourselves, and this does not preclude a history of excellent behaviour.” 148
50.While, in as far as it goes, this observation may be true, it fails to address the essential point: LL was entitled to have the inherent improbability of the allegation taken into consideration when deciding whether or not the standard of proof was met. The Commissioner repeated the same error when dealing with a representation made by LL in the following terms:
“it is, to put it at its lowest, extremely improbable to claim that he would have acted as alleged – a happily married man aged [REDACTED] – in his home where his wife was, seeking to persuade the Complainant to be his mistress, with no evidence at all of any similar behavior before or since (and plenty of evidence to the contrary)” 149
51.The Commissioner’s response150 (to the effect that the alleged sexual touching was said to have taken place in LL’s car and again after his wife left in the morning) addressed only part of the point being made. On analysis, the Commissioner should either have: (a) taken the inherent improbability of the allegation into account in her assessment of whether the standard of proof was met; or (b) given reasons as to why she did not think this was appropriate on the facts of this case. Her failure to do either was unfair.
G. The Commissioner’s approach to the evaluation of the evidence
52.As noted, the complaint against LL included serious allegations of a criminal nature, and the historical nature of the allegations placed LL at a disadvantage in seeking to refute them. In those circumstances, ordinary notions of fairness required the evidence adverse to LL to be rigorously tested, either: (a) through cross-examination; or (b) if not by way of cross-examination, by careful scrutiny of the evidence capable of providing a commensurate level of procedural protection to LL’s interests. While the Guide to the Code of Conduct states that “nor do members accused of misconduct have any entitlement to cross-examine complainants”,151 the wording of the Guide does not exclude the possibility that cross-examination may be appropriate in some cases.
53.In this regard, it is to be noted that cross-examination, that is the testing of testimony by questioning (either by an advocate or by an officer performing a judicial function), is considered to be an essential component of the process for establishing where the truth lies in allegations of a criminal nature. It has long been recognised as an essential feature of a criminal trial: R v Davies [2008] 1 AC 1128,152 and there have been numerous cases in the context of disciplinary proceedings where the Courts have held that that cross-examination is necessary to ensure fairness. In R (Bonhoeffer) v General Medical Council [2011] EWHC 1585 (Admin), Stadlen J observed:153
“It is axiomatic that the ability to cross-examine in such circumstances is capable of being a very significant advantage. It enables the accuser to be probed on matters going to credit and his motives to be explored. It is no less axiomatic that in resolving direct conflicts of evidence as to whether misconduct occurred the impression made on the tribunal of fact by the protagonists on either side and by their demeanour when giving oral testimony is often capable of assuming great and sometimes critical importance”.
54.He held154 that:
“… in the absence of a problem in the witness giving evidence in person or by video link, or some other exceptional circumstance, fairness requires that in disciplinary proceedings a person facing serious charges, especially if they amount to criminal offences which if proved are likely to have grave adverse effects on his or her reputation and career, should in principle be entitled by cross-examination to test the evidence of his accuser(s) where that evidence is the sole or decisive evidence relied on against him”.155
55.These considerations are all the more acute in a case involving a non-recent allegation of sexual misconduct where (as the Commissioner found156) the credibility of the Complainant and the Respondent were critical to the determination of the complaint.
56.In this context, it is also to be noted that the Joint Committee on Parliamentary Privileges (1999) (chaired by Lord Nicholls) expressed the view that any unfairness during the Commissioner’s investigation could be cured by providing the right to examine witnesses on appeal:
“… when deciding an appeal on a disputed issue of fact central to a complaint, the tribunal will need to ensure the necessary safeguards are available to the member. The tribunal should afford the member the opportunity to question witnesses and call relevant witnesses of his own, if he did not have this opportunity during the commissioner’s investigation. If the tribunal decides to adopt an adversarial type of procedure, with one of the law officers or another lawyer leading the questioning of the member, fairness will normally require that the member also should have the opportunity to be legally represented…”157
57.The giving of oral evidence, and the ability to cross-examine, were considered by Lord Bingham to be “the main tests needed to determine whether a witness is lying or not”. Lord Bingham (writing extra-judicially) identified the following tests for determining credibility and reliability, although he noted that their relative importance could vary widely from case to case:158
(a)The consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred;
(b)The internal consistency of the witness’s evidence;
(c)Consistency with what the witness has said or deposed on other occasions;
(d)The credit of the witness in relation to matters not germane to the litigation;
(e)The demeanour of the witness.159
58.On analysis, the approach adopted by the Commissioner to the evidence fell short of the rigorous testing that was necessary to ensure fairness. The procedure she adopted was as follows:
(a)The Commissioner was provided with the statement of the Complainant, which had apparently been prepared by the Complainant’s solicitor.160
(b)The statement was provided to LL and he was asked to provide a written response.161
(c)LL provided a written response,162 accompanied by evidence163 and the names of 12 witnesses.164
(d)LL’s statement was sent to the Complainant and she sent a further written response.165
(e)That response was sent to LL who provided a further statement in response.166
(f)The Commissioner interviewed LL first. The purpose of this interview was described as being to “discuss aspects of his statement and to give him the opportunity to tell me anything else that he thought was relevant”.167
(g)The Commissioner subsequently interviewed the Complainant. The purpose of this interview was described as being “to discuss points by made [LL], and to see if she had any further evidence”.168 She later corresponded with the Complainant by email and by telephone.
(h)The Commissioner then sent questions to the complainant’s witnesses (T, A, N and M) by email and received written responses.169 She also spoke to T by telephone.170
(i)She interviewed four (out of 12) of LL’s witnesses in person,171 and two (P and S) by telephone.172
(j)She interviewed further witnesses for the Complainant (H and J) by telephone.173
59.The Guide to the Code of Conduct provides that the Commissioner should initially obtain and disclose written accounts from both the Complainant, and the Member complained against,174 and that further information from witnesses is “usually requested in writing in the first instance”.175 However, the Guide also vests the Commissioner with a discretion to “interview witnesses, either informally or by means of formal oral evidence”.176 Given the seriousness of the allegations against LL, and the importance of the witness evidence to the determination of those allegations, this was a case where formal oral evidence would have been appropriate. Such evidence would have enabled the Commissioner to: (a) question each witness as to the detail of their evidence; and (b) carefully assess their reliability and credibility.
60.Further, given the serious nature of the allegations, fairness required that they be carefully and thoroughly tested. The fairest and most effective way to achieve this would have been to permit cross-examination of the witnesses adverse to LL. In the absence of cross-examination, it was incumbent on the Commissioner rigorously to test the evidence before reaching any adverse finding.
61.Even allowing for the fact that the proceedings before the Commissioner do not have the character of a formal legal process, the procedure provided no effective challenge to the evidence. In particular:
(a)Her starting point was to conclude that the statement of the Complainant provided a prima facie case against LL.177 This was even before she had interviewed the Complainant, or spoken to her witnesses. This starting point was unfair and in conflict with the burden of proof. Further investigation was required to reach a conclusion that the complaint established a case that required an answer.
(b)The starting point led the Commissioner to interview LL before she interviewed the Complainant, or corresponded with her witnesses. In other words, the Commissioner accepted the evidence in the complaint at face value without taking any investigative steps herself, and required LL to provide an answer to the allegations.
(c)The answers that LL gave formed the basis upon which the Commissioner challenged the Complainant and her witnesses. This suggests that the Commissioner was testing LL’s response to see whether it would disprove, or was capable of disproving, the written case that she had already concluded made out a prima facie case.
(d)In her interviews with both LL and the Complainant, the Commissioner did not take steps to test their evidence in any detailed way. She did not, for example, ask questions of either of them about the core allegations of sexual touching or abuse of power. It is now well established that best practice when interviewing complainants in relation to allegations of a sexual nature is: (a) to initiate a free-narrative account; and then (b) to question the complainant on their account which can, in appropriate cases, include questions as to inconsistencies or other matters that might undermine their credibility.178 Similarly, detailed questioning of the Respondent to a complaint may help the interviewer reach conclusions as to his consistency, demeanor and other matters that may assist in assessing credibility. It is striking that the Commissioner did not question LL at all about the detail of the allegations against him.179
(e)Further, the Commissioner did not question the Complainant’s witnesses about the detail of the complaint made to them. For example: (i) A stated that he “recall[ed] [the Complainant] telling me about the alleged events”;180 (ii) N stated that the Complainant told her that LL “had been ‘coming on to her’ including at his home with his wife present”;181 and (iii) J stated that the Complainant “spoke to me about the incident”. There is no further detail as to what ‘the alleged events’, ‘the incident’ or ‘coming on to her’ entailed, other than (by inference) that it related to sexual harassment.182
62.On analysis, it seems that there were a number of points that fairness required to be put to the Complainant and/or her witnesses but which were not asked (either in person or in writing). By way of example:
(a)The Complainant should have been asked about the chronology of events: once the Commissioner found that that (contrary to the initial account given by the Complainant) the events in question took place over nine days,183 fairness then required that it be put to the Complainant that this left very little time in which she could have been excluded from meetings relating to [REDACTED—parliamentary business] as she claimed. The Commissioner’s initial view (stated in interview of the Complainant) was that there was “several weeks where you weren’t involved [in the meetings]” was erroneous,184 and yet the Complainant was not questioned to establish the impact that this had on her credibility.185
(b)LL’s case that the Complainant and her witnesses were either mistaken or untruthful in their accounts should have been put to them. The Commissioner did not do this. Instead, she concluded that “they had already asserted the truthfulness of their evidence and [LL’s] response did not contain any factual material to which a response should be sought”.186 This was unfair, particularly in circumstances where the accounts of three of these witnesses had been received in writing and the Commissioner had not sought to question them in person, or to take steps to test their credibility.
(c)An important point in relation to the Complainant’s credibility was the delay in [REDACTED—over a decade] years in making her formal complaint. The Commissioner sought an explanation for this in writing, but given the central importance of this issue, it is a point where questioning in person would have enabled the Commissioner to assess the Complainant’s demeanour, a material factor relevant to the issue of her credibility (and reliability).
(d)The Claimant’s witness (N) stated that the Complainant told him that LL had invited her to [REDACTED—activity relating to parliamentary business].187 LL denied this, and gave an explanation as to why that claim was implausible.188 The Commissioner did not return to N to confirm whether he was sure that this is what he had been told by the Complainant; nor did she put this point to the Complainant. Her explanation for this was: “I would not expect her to have a precise recollection of what was said during what must have been an uncontroversial conversation between herself and N [REDACTED] years ago”.189 By assuming what the Complainant would say in answer to the question, the Commissioner deprived herself of the opportunity to test this aspect of the case.
63.The points set out above provide examples of those aspects of the Commissioner’s approach to the evidence which were superficial and fell short of the type of testing required when dealing with allegations of serious misconduct. Overall, the approach taken by the Commissioner to the evidence was insufficiently rigorous and resulted in unfairness to LL.
H. No separate consideration of each allegation
64.The Commissioner’s approach to the evidence of the Complainant was as follows:
“This is not a case where I have to examine in great detail each of the allegations made by the Complainant, as there is no suggestion that the complaint arises from any misunderstanding between the complainant and [LL] or any misinterpretation of remarks made by [LL]…
I conclude from this that if I find, on the balance of probabilities, that something of concern took place between [LL] and the complainant that led the complainant to share her concerns with others at the relevant time, I am bound to accept her account of events, as no alternative is given, other than that the events did not happen.” 190
65.On analysis, it is apparent that this approach was erroneous. The criminal courts have often recognised that a witness’s credibility is not indivisible. In R v G [1998] Crim LR 48 Buxton LJ stated:191
“A person’s credibility is not a seamless robe, any more than is their reliability. The jury had to consider (as they were rightly directed) each count separately, and might take a different view of the reliability of the evidence on different counts.”
66.In R v Fanning [2016] 1 WLR 4175, the Court of Appeal held that it was generally permissible for a jury to be sure of the credibility or reliability of a complainant or witness in relation to one count in the indictment, and not to be sure of these matters on another count. In Hamill’s Application for Judicial Review [2017] NIQB 118, Stephens LJ summarised the position192 as follows:
“In relation to the assessment of a witness’s credibility and reliability there is not an overall globalised approach as those qualities are divisible between different issues. Credibility and reliability is not a “seamless robe” see R v G … so that a jury might take a different view as to the credibility or the reliability of a witnesses’ evidence in relation to different issues… In R v Cairns and others [2002] EWCA Crim 2838; [2003] 1 W.L.R. 796 the Court of Appeal held that “it is open to the prosecutor to form the view that part of a witness’s evidence is capable of belief, even though the prosecutor does not rely on another part of his evidence, …”
67.As noted above, the Commissioner did not specify which allegations in the Complaint, if proved, were capable of establishing a breach of the Code of Conduct. While she was clearly correct to assess that, if she accepted the Complainant’s evidence in full, a breach would be made out, there was no obligation to accept the Complainant’s evidence in full. As the decided cases above make clear, it is permissible for a tribunal of fact to conclude that a Complainant has been truthful in relation to one issue, and untruthful in relation to others; not least because it is not uncommon for complainants to exaggerate or embellish allegations of impropriety.
68.The approach taken by the Commissioner to the indivisibility of the evidence was particularly unfair in circumstances where:
(a)The allegations were perceived by the Sub-Committee to give rise to different levels of culpability,193 and
(b)The extent to which there was supporting or contradicting evidence varied as between the allegations.
69.By way of illustration, the Sub-Committee viewed the allegation that the Complainant was excluded from meetings related to [REDACTED—parliamentary business] as being a particularly serious abuse of power.194 The Complainant’s initial account suggested that the exclusion took place over several weeks.195 However, by the conclusion of the evidence the Commissioner had determined that the relevant period was nine days,196 and the Complainant’s position was that “I have no idea how many meetings took place relating to [REDACTED—parliamentary business], so I will have no idea how many I missed as I was no longer invited to them. It was only after [A] made the point to me that my absence was noted by him that I realised I was not included.” 197 In those circumstances, A’s evidence was crucial to whether this allegation was proved. However, A’s statement simply records “I recall [the Complainant] telling me about the alleged events. I do not recall the specifics of those conversations”. He also states that the Complainant had telephoned him in [REDACTED] 2017 and told him what (she says) had happened in [REDACTED—over a decade ago], and that “I did remember her informing me at the time”. It is unclear from this account which parts of the Complainant’s account A remembered prior to the conversation with the Complainant in 2017 and, importantly, whether he recalled her being excluded from meetings. Had the Commissioner treated this issue as a separate allegation that needed to be resolved on the balance of probabilities, she would (or at least should) have questioned A more closely in relation to this issue.
70.Subject to overall considerations of fairness, it was open to the Commissioner rationally to conclude that some parts of the Complainant’s evidence were proved to the necessary standard, and others were not. In those circumstances, fairness required that each allegation be considered separately and, if the standard of proof was not met in respect of one of more of the allegations in the Complaint, then LL was entitled to the benefit of that finding. Such an approach would have assisted in determining the ultimate outcome of the case as a finding that one aspect of the complaint was unreliable would (or might) have impacted another. Separate consideration of the allegations was particularly important in a case where a partial finding in favour of LL was capable of having a material impact on penalty.
I. Irrelevant considerations taken into account by the Commissioner
71.The Commissioner asked herself two irrelevant questions when determining whether the Complaint against LL was well founded which, in the case of one of the questions, caused her to take into consideration irrelevant evidence.
The complainant’s practice in signing off emails
72.An important aspect of LL’s case was that the Complainant’s allegations were implausible because, after the events were said to have occurred, she continued to write to him in affectionate terms. LL provided the Commissioner with evidence of an email in which the Complaint had signed off “lots of love xx” and two books which she had inscribed with fond messages.198
73.As part of her investigation, the Commissioner asked the Complainant to provide her with examples of emails to other individuals to whom she had written in affectionate terms.199 This was an irrelevant line of inquiry: as a matter of logic, such evidence could only be relevant if the emails in question were written to persons to whom the Complainant had made well-founded allegations of a similar nature to those she had made against LL. Otherwise, the fact that she wrote to other persons in affectionate terms was not an answer to the issue raised by LL: namely that it was not consistent with her allegations of serious sexual harassment and abuse of power that she should have continued to write to him in terms of friendship and affection.
74.While the Commissioner also found that she accepted the Complainant’s explanation in relation to this issue,200 there is a real risk that her conclusion in this regard was coloured by the irrelevant material as to the Complainant’s general writing style. This is particularly so given that the conclusion highlighted in bold in the report was that “the Complainant clearly has an informal style of email sign-off, even with professional contacts”.201
The Internet searches to ascertain credibility
75.The Commissioner began her investigation into credibility with an internet search “to see if there was anything known about either [the Complainant or LL] that would tend to suggest that one of them was more likely to be telling the truth than the other”.202 In so doing, the Commissioner conducted a self-informing process outside the terms of the complaint or the response and, although the public information that she found was not detrimental to either party, real questions of fairness could have arisen as a result of her search for extraneous information. This serves to emphasise the risks of not clearly identifying the substance of the charges (and the issues) at the outset, and the importance of the need for an intense focus on the relevant materials.
J. Relevant considerations not taken into account or afforded sufficient weight
76.In addition to taking into account irrelevant information, there is reason to conclude that the Commissioner also failed to take into account – or afford sufficient weight to – relevant considerations.
The lack of supporting evidence with respect to the exclusion allegation
77.The Statements of T, M, N and A varied in their detail, and supported in part only certain aspects of the allegations. Importantly, none of the witnesses expressly confirmed the allegation that the Complainant had been excluded from meetings subsequent to the alleged harassment. The Commissioner did not take this into account at all. In light of this evidence, her conclusion that “the [exclusion] allegation was communicated to A at the time of the events complained of”203 was neither evidence-based nor rational.
78.Further, the Commissioner concluded that (contrary to the Complainant’s initial account) only nine days passed between the evening that the Complainant stayed at LL’s house and the Complainant’s book launch (that is, after the conclusion of the [REDACTED—work relating to the parliamentary business]).204 If the evidence had been tested rigorously, the Commissioner should have taken this into consideration, along with the Complainant’s revised evidence that she had “no idea” how many meetings took place relating to [REDACTED—parliamentary business].205 Instead, the Commissioner concluded that “as nothing turns on the dates of the incidents, the complainant’s inaccurate recollection of the timing of the events is not significant in undermining her account”.206 This suggests that the Commissioner misunderstood the significance of this issue and failed to consider the possible impact of what was a potentially important point capable of undermining the Complainant’s account.
Approach to LL’s character
79.LL made detailed representations to the Commissioner as to his good character.207 In R v GJB (supra), Stanley Burnton LJ made the following relevant observations:208
“The good character of the defendant is relevant in relation to credibility and to propensity, and he is entitled to the full direction on both. However, in an historic sex abuse case such as the present, there are two aspects of propensity to be considered. The first is that applicable even where the allegation is of a recent offence: a person of good character is less likely to have committed the alleged offence. The second results from the passage of time since the alleged offence: the fact that the defendant has not committed any offence, let alone one involving sexual abuse, since the date of the alleged offence goes to the likelihood or otherwise of his having committed the offence or offences. Such a direction is particularly apt where delay since the date of the alleged offences renders it more difficult for the defendant to defend himself, as is so often the case.
Mr Barlow (who did not appear at the trial) submitted that the judge should have given what he referred to as the third limb of the good character direction, to the effect that the jury may think that the fact that so long has passed since these alleged offences (in the present case, some 18 years) without the defendant committing any offence renders it less likely that he did commit the offences of which he was accused. As we have indicated, in reality this third limb is no more than an adaptation of the normal propensity direction, that is to say one that is adapted to the facts of the case. In historic sexual abuse cases, where the defence is a straightforward denial, the defendant may have little more than his good character to rely on. The prejudice that may be caused by the delay between the alleged offence and the charge or the trial renders the so-called third limb particularly relevant.
…
We think that this direction was not sufficiently tailored to the facts of this case, and that the so-called third limb of the direction should clearly have been given”. (emphasis added)
80.This decision is reflected in the specimen direction given to juries in criminal trials:
“Good character is evidence which counts in the defendant’s favour in two ways:
(1) his good character supports his credibility and so is something which the jury should take into account when deciding whether they believe his evidence; and
(2) it may mean that he is less likely than otherwise might be the case to have committed the offence/s with which he is charged.
In cases where allegations are “historic” the jury should also be directed to take account of the fact that the defendant has not committed any offences in the intervening period.”
81.In other disciplinary contexts, it is clear that a failure to take into account character evidence in this way amounts to a “significant legal error”: Donkin v The Law Society [2007] EWHC 414 (Admin),209 cf. Bryant v Law Society [2007] EWHC 3043 (Admin).210
82.Fairness required that LL’s good character was a matter to be taken into account in his favour in the following ways: (a) as a factor enhancing his credibility; (b) as demonstrative of his lack of propensity to commit offences of this nature; and (c) given the historical nature of the allegation, as a factor making it less likely that LL engaged in the conduct alleged. The Commissioner’s conclusion that “we are all capable of acting out of character for reasons that may never be clear, even to ourselves” did not properly or fairly engage with this issue.211
The prejudicial effect of delay
83.Finally, the Commissioner should have taken into consideration the prejudicial effect that the delay in the making of the Complaint had had on LL’s ability effectively to respond to the allegations (see R v PS, cited above). This is particularly so given the emphasis that was placed on LL’s lack of an explanation as to why the Complainant would have been untruthful.
K. Conclusions
84.For the reasons set out above, the procedure adopted by the Commissioner, and her approach to the evidence and the issues, was unfair in a number of material respects. In particular:
(a)There was a failure clearly to particularise the conduct which, if proved, would constitute a breach of the Code.
(b)The Commissioner adopted a policy of belief that led to a reversal of the burden of proof.
(c)The Commissioner took an approach to the evidence in which the Complainant’s evidence was treated as indivisible.
(d)The Commissioner adopted an insufficiently rigorous approach to each allegation.
(e)The evidence of the witnesses was not considered in detail or effectively challenged.
(f)Matters favourable to LL (such as his good character, and the inherent improbability of the allegations) were left out of account or given insufficient weight.
(g)In reaching her determination of the issues, the Commissioner took into consideration a number of irrelevant considerations, such as the manner in which the Complainant signed off her emails.
85.In summary, it cannot be said that the Commissioner’s investigation of the complaint against LL complied with the requirements of natural justice and the errors resulted in a procedure that was insufficiently rigorous and unfair.
93 For the purpose of this Opinion, Messers Peters & Peters, solicitors acting on behalf of Lord Lester QC, provided the following documents: (a) the Sub-Committee on Lords’ Conduct, Report and evidence; (b) Lord Lester’s Draft Appeal Notice; (c) The Code of Conduct for Members of the House of Lords; (d) the Guide to the Code of Conduct.
94 Pursuant to section 1 of the House of Lords (Expulsion and Suspension) Act 2015.
95 The expression ‘charge sheet’ is not intended to convey the need for a formal pleading of the Complainant’s case. It would ordinarily be sufficient to provide a description of the relevant conduct, not in legal language, particularising the essential parts of the complaint capable of giving rise to a sanction, whether singly or cumulatively.
96 An Independent Review of the Metropolitan Police Service’s handling of non-recent sexual offence investigations alleged against persons of public prominence, Sir Richard Henriques, 31 October 2016 (‘Henriques Report’).
97 Report from the Commissioner for Standards, paragraph 7.
98 Paragraph 119 of the Guide to the Code of Conduct provides that “In exceptional circumstances the Commissioner may investigate conduct which occurred more than four years before a complaint is made, provided that the Sub-Committee on Lords’ Conduct agrees that it is satisfied that there is a strong public interest in the matter being investigated.”
99 Report from the Commissioner for Standards, paragraph 45.
100 Report from the Commissioner for Standards, paragraph 52.
101 Report from the Commissioner for Standards, Appendix L, p.95. [reference is to a document that has not been published]
102 Report from the Commissioner for Standards, Appendix 1, pp.58-70. [reference is to a document that has not been published]
103 It now appears to be the case that events occurred in [REDACTED—around two or three months later than the dates in 10(b) above]: see below at paragraph 12.
104 The Complainant stated that she did not complain at the time as she feared it might prejudice [REDACTED—parliamentary business], and she feared that if she was disbelieved it could damage her work with [REDACTED]. She was given the confidence to come forward as a result of the House of Commons’ response to the recent publicity surrounding allegations of misconduct against a number of high profile individuals.
105 Report from the Commissioner for Standards, Appendix M, pp.95-102. [reference is to a document that has not been published]
106 Report from the Commissioner for Standards, Appendix AA, p.pp.157-158. [reference is to a document that has not been published]
107 Report from the Commissioner for Standards, Appendix AJ, pp.168. [reference is to a document that has not been published]
108 Report from the Commissioner for Standards, paragraphs 153-155.
109 Report from the Commissioner for Standards, paragraph 157.
110 Report from the Commissioner for Standards, paragraph 18.
111 Report from the Commissioner for Standards, paragraphs 171-172.
112 Report from the Commissioner for Standards, paragraphs 174 and 180.
113 Report from the Commissioner for Standards, paragraphs 170-171.
114 Report from the Commissioner for Standards, paragraph 187.
115 Report from the Commissioner for Standards, paragraph 197.
116 Report from the Commissioner for Standards, paragraph 200.
117 Paragraphs 131-138.
118 Per Lord Mustill, at p.560.
119 At paragraph 148.
120 At paragraphs 10 and 12-13.
121 At p.1025.
122 Paragraphs 28-30.
123 At paragraph 38.
124 Per Lord Dyson at paragraph 69, and per Lord Hope at paragraph 90.
125 Sixth Report of the Committee for Standards in Public Life, Reinforcing Standards, Appendix III, paragraph 2 (January 2000).
126 Including: (a) sexual assault contrary to section 3(1) of the Sexual Offences Act 2003; (b) harassment contrary to section 1 of the Protection from Harassment Act 1997; (c) misconduct in public office contrary to common law.
127 At paragraph 15.
128 At paragraph 35.
129 Report from the Commissioner for Standards, paragraph 8.
130 Report from the Commissioner for Standards, paragraphs 41-42. However, it is to be noted that the Commissioner later stated that she considered the allegations related to LL’s sexual remarks and unwanted touching were “at the less serious end of the scale”, but that the abuse of power allegations “attack… the very integrity of the House” (paragraph 155).
131 Report from the Sub-Committee on Lords’ Conduct, paragraph 13.
132 It is not clear that some of the allegations take alone would have constituted a breach of the Code. For example, if the Commissioner was satisfied that LL had touched the Complainant’s knee but not of the other allegations, whether or not this amounted to a breach of the Code may have depended on the reasons why she thought the conduct had occurred (for example, whether there was a misunderstanding). Similarly, if the only allegation that was proved was that LL excluded the Complainant from meetings (in other words, the sexual harassment and threats that formed the background to the exclusion allegation were not proved, and the Commissioner found only that, for some reason, LL had excluded the Complainant from meetings) it is arguable that this alone was incapable of resulting in a breach of the Code.
133 Supra, paragraph 19.
134 Report from the Commissioner for Standards, paragraph 18.
135 Report from the Commissioner for Standards, paragraph 170.
136 Henriques Report, supra.
137 Paragraph 1.27.
138 Paragraph 12.
139 At p.153.
140 Henriques Report, Recommendation 4.
141 Henriques Report, paragraph 139.
142 Henriques Report, paragraph 138.
143 At paragraph 9.
144 At paragraphs 20 and 44.
145 “This type of case, that is to say allegations by young women of events they say happened when they were children, is the type of case where juries have to be particularly careful when considering the evidence of a complainant, because instances in other cases have shown that complainants can, of course, make up stories: children, of course, can misinterpret events happening to them and, of course, children can fantasise about what is happening, or has happened, to them. But a real danger in this type of case is this: it is possible—I am not saying it happens every time, or even that it happens frequently, but it is possible, and the possibility has to be something to bear in mind—for people whose lives have become unhappy, for whatever reason, to cast about in their past to look for reasons why their lives have become unhappy and they can then misinterpret to themselves what has happened to them as children, and that risk is something that you have to bear in mind when you are considering the evidence.”
146 Report from the Commissioner for Standards, paragraph 236.
147 Report from the Commissioner for Standards, paragraph 157.
148 Report from the Commissioner for Standards, paragraph 230. The reference to “a history of excellent behaviour” suggests that the Commissioner accepted that LL was of impeccable character. If this was not the case, then it was unfair for the Commissioner not to have interviewed all of LL’s character witnesses.
149 Report from the Commissioner for Standards, paragraph 238.
150 Report from the Commissioner for Standards, paragraph 239.
151 Guide to the Code of Conduct, paragraph 127.
152 Paragraph 5.
153 At paragraph 45.
154 At paragraph 85.
155 See also the cases cited by Stadlen J at paragraphs 75-88.
156 Report from the Commissioner for Standards, paragraph 158.
157 Joint Committee on Parliamentary Privilege, First Report, Parliamentary Privilege (30 March 1999), paragraph 291.
158 Tom Bingham, The Business of Judging (OUP, 2011), p.6.
159 It is to be noted that Lord Bingham also observed (at pp.7-10) that “the current tendency is (I think) on the whole to distrust the demeanour of a witness as a reliable pointer to his honesty…” although he also notes that “there are I feel sure, occasions on which a witness leaves a judge with a profound conviction that he is, or is not, telling the truth… a firm judgment of this kind formed by one whose judgment is supposed to be his stock in trade is, I think, not lightly to be overridden…”
160 Report from the Commissioner for Standards, paragraph 39.
161 Report from the Commissioner for Standards, paragraph 46.
162 Report from the Commissioner for Standards, paragraph 54.
163 Report from the Commissioner for Standards, paragraph 57.
164 Report from the Commissioner for Standards, paragraph 60.
165 Report from the Commissioner for Standards, paragraph 61.
166 Report from the Commissioner for Standards, paragraph 61.
167 Report from the Commissioner for Standards, paragraph 62.
168 Report from the Commissioner for Standards, paragraph 63.
169 Report from the Commissioner for Standards, paragraph 64.
170 Report from the Commissioner for Standards, Annex AH.
171 Report from the Commissioner for Standards, paragraph 71.
172 Report from the Commissioner for Standards, Annexes T and AA.
173 Report from the Commissioner for Standards, paragraphs 85-88.
174 Guide to the Code of Conduct, paragraph 131.
175 Guide to the Code of Conduct, paragraph 133.
176 Guide to the Code of Conduct, paragraph 133.
177 Report from the Commissioner for Standards, paragraph 45.
178 Achieving Best Evidence in Criminal Proceedings, Guidance on interviewing victims and witnesses, and guidance on using special measures, Ministry of Justice (March 2011). As the Henriques Report found (at paragraph 1.28) “The obligation to believe at the outset can and does obstruct the asking of relevant and probing questions designed to elicit the truth. The asking of such questions can be achieved in a sympathetic, kindly and professional manner”.
179 Report from the Commissioner for Standards, Annex O. [reference is to a document that has not been published]
180 Report from the Commissioner for Standards, Annex C. [reference is to a document that has not been published]
181 Report from the Commissioner for Standards, Annex D. [reference is to a document that has not been published]
182 Report from the Commissioner for Standards, Annex Y. [reference is to a document that has not been published]
183 Report from the Commissioner for Standards, paragraph 89.
184 Report from the Commissioner for Standards, Annex S, p.135. [reference is to a document that has not been published]
185 It cannot be said that the Commissioner’s request that the Complainant comment on how long elapsed between the stay at LL’s house and the [REDACTED—media event] and, if it was only a few days, why her initial statement gives a different impression, was sufficient for these purposes (Report from the Commissioner for Standards, Annex AJ, p.168).
186 Report from the Commissioner for Standards, paragraph 101.
187 Report from the Commissioner for Standards, paragraph 133.
188 Report from the Commissioner for Standards, paragraph 134.
189 Report from the Commissioner for Standards, paragraph 135.
190 Report from the Commissioner for Standards, paragraphs 171-172.
191 At paragraph 13(viii).
192 At paragraph 45.
193 Report from the Sub-Committee on Lords’ Conduct, paragraph 13.
194 Report from the Sub-Committee on Lords’ Conduct, paragraph 13.
195 Report from the Commissioner for Standards, Annex A, p.65. [reference is to a document that has not been published]
196 Report from the Commissioner for Standards, paragraph 89.
197 Report from the Commissioner for Standards, Annex AJ. [reference is to a document that has not been published]
198 Report from the Commissioner for Standards, paragraphs 111-116.
199 Report from the Commissioner for Standards, paragraph 118.
200 Report from the Commissioner for Standards, paragraph 194.
201 Report from the Commissioner for Standards, paragraph 197. In the same paragraph, the Commissioner also considered the manner in which LL signed off his emails. Logically, this was of no relevance to whether the manner in which the Complainant wrote to LL was consistent with her having made serious allegations of impropriety against him. While this was not a matter that the Commissioner found to be adverse to LL, the fact it formed part of her consideration at all suggests that her understanding of the relevant issues was flawed.
202 Report from the Commissioner for Standards, paragraph 158.
203 Report from the Commissioner for Standards, paragraph 202.
204 Report from the Commissioner for Standards, paragraph 89.
205 Report from the Commissioner for Standards, Annex AJ. [reference is to a document that has not been published]
206 Report from the Commissioner for Standards, paragraph 200.
207 Report from the Commissioner for Standards, Annex Z, p.152. [reference is to a document that has not been published]
208 At paragraphs 18-19 and 24.
209 At paragraph 25, per Maurice Kay LJ.
210 Paragraph 162, per Richards LJ.
211 Report from the Commissioner for Standards, paragraph 230.