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How the intransigence of the probation system can exacerbate the harm caused to innocent victims of false allegations and wrongful convictions

Updated: 6 days ago


When I was in my teens, we had a friend with what in today's terms can be called overprotective helicopter parents. They were so worried that he would come to some kind of harm that he was not allowed to come out with us when we went to discos, gigs, or parties. They feared that if he saw violent or sexualised images on TV that he would copy what he saw, so they did not have a television set in their home. They were afraid that if he drank alcohol that he would become an alcoholic. They were sacred that if he had sex with a girlfriend that he would make her pregnant and his life would be forever ruined.


Like a dog on a tight leash, he never ceased in his struggle for freedom and the first chance he got he escaped his captors and dived headlong into all of the things that his parents had forbidden. Like some ghastly self-fulfilling prophecy, his parents’ worst fears became reality. And, whilst most of us who grew up experimenting with alcohol and having sexual encounters came through our adolescence and early adulthood relatively unscathed, and all the wiser for the experiences, our friend died of alcohol and drug misuse in his mid-20s.


There is no doubt that his parents loved their son and were well intentioned, but they failed to consider the forms of harm that might be caused with their overprotection of their son. By holding him back from experiencing a normal part of growing up he ultimately seemed less able to navigate the potential hazards of life than his more street-smart counterparts.


I see an analogy with an alleged innocent victim who was convicted of an alleged sexual assault who is currently subjected to a probation regime that might be causing him more harm than good, too. I have studied the context of the allegation against 'John', not his real name, and his claim of innocence is more than plausible. John and his complainant worked together and became very good friends. Crucially, the allegation was made only with the encouragement of, or pressure from according to John, her partner who was angry when she returned home in the morning after she had spent the night with John, and he discovered that she had cheated on him. John told me that his complainant's partner was his de facto complainant.


A legal loophole that treats women and men differently was utilised to convict John of sexual assault. John and the complainant had both been drinking alcohol on the night that they slept together and whilst a voluntarily incapacitated man must take full responsibility for his actions women are deemed to be unable to consent to sex if they are likewise voluntarily incapacitated. This means that men who sleep with drunken women are vulnerable to the possibility of allegations of sexual assault if the women regrets sleeping with the man sometime afterwards or has an ulterior motive to claim that they were sexually assaulted such as a boyfriend or husband finding out about their partner's infidelity.


It is in this way that reforms that were intended to bring more sexual offenders to justice can be weaponised for unscrupulous purposes on unsuspecting men who cannot understand what they have done wrong to deserve accusations and criminal convictions for alleged sexual assaults. Indeed, in the present case, John says that he was convicted despite his complainant telling friends on the evening before the night that they slept together, and crucially before she was intoxicated by alcohol, that she planned to not go home that night and spend the night with John. John also told me that his complainant sent him a text message on her way home the morning after they had spent the night together in which she had had a nice evening and that she was looking forward to seeing him again soon.


None of this seems to have any effect on John's probation officers who work, as instructed, on the basis that the verdict of the Crown Court is correct and that he is, therefore, a dangerous sexual offender who must be closely monitored to prevent him from reoffending. John says that they say that they are aware of the possibility that he is a victim of a miscarriage of justice and that he has lodged an application with the Criminal Cases Review Commission (CCRC) in the hope that his conviction is referred to the Court of Appeal to be overturned. Yet, they say that must work on the basis that he is a sex offender, and the more that he maintains his innocence and challenges his conviction the more difficult it seems is John's relationship with his probation officers, the more conditions are added to his probation licence and the more closely he seems to be monitored. In short, John is a problem for probation, as are all victims of alleged wrongful convictions for the prison, parole and probation systems. As Paddy Joe Hill of the case known as the Birmingham Six once said to me:


'The innocent just do not fit in prison. They are like round pegs trying to be fitted into square holes. The prison system just does not know what to do with them.'


In practical terms, this plays out with John being restricted in ways on probation that he was not when he was in prison. When he was in prison maintaining his innocence, for instance, he was supported by leading false allegations organisations such as Falsely Accused Carers and Teachers (FACT) and False Allegations Support Organisation (FASO). John says that the support and information provided by FACT and FASO was vital in surviving prison, keeping his hopes alive that he would one day overturn his rape conviction. On probation, he is prohibited from engaging with FACT and FASO for fear that he could be associating with people convicted of sexual offences who are on the sex offender register. This fails to appreciate that innocent victims of wrongful rape convictions such as Andy Malkinson, for instance, will remain registered sex offenders unless and until they can overturn their convictions. It overlooks the reality that organisations such as FACT and FASO are precisely the kind of organisations with the necessary expertise and legal contacts to assist innocent victims of sexual offences to overturn their wrongful convictions.


John told me that he has also written a book about his case in which he challenges the justness of the existing law that treats women and men differently in terms of alcohol consumption and consent to sex. However, a condition on his probation licence means that he is not allowed to publish the book unless he overturns his conviction as he is not allowed to question or challenge the nature of his conviction in the public domain. This presents a further barrier preventing John from raising awareness of his alleged wrongful conviction and clearing his name, which his probation officers also seem oblivious to and/or show a total moral indifference towards.


I am in regular contact with John and I know that he is doing all that he can to rebuild his life post-prison and is showing great resilience as he applies for jobs that don't on the face of it appear to be in conflict with his probation conditions - not working alone with women, for instance. His efforts recently looked like they had paid off when a job was offered that he could do working on his own in an office. The offer was withdrawn, however, when he told probation the 'good news' and they instructed him to tell the potential employer that he is a convicted sex offender on probation or they would. This was despite the potential employer not asking about any criminal offending in the application form or in the interview.


Unsurprisingly, John told me that he feels increasingly alone and isolated as his world becomes increasingly smaller, his possible contacts reduced, and his overall quality of life becomes ever more diminished. Fighting back tears, he told me that his mental health is suffering and that his experience of probation is in some ways worse than prison. He said that he has told his probation officers that he suffers from PTSD due to his time in prison and that the way that they are treating him and refusing to accept even the possibility that he is an innocent victim of a false allegation and wrongful conviction is exacerbating his mental ill heath and making it more difficult for him to rebuild his life. This was met with threats that he will be recalled back to prison if he continues to challenge the requirements on his probation licence and the orders of his probation officers.


HM Prison and Probation Service claim that the purpose of probation is to 'empower...people to embrace the opportunity [of probation] to make lasting changes to their lives, which seems like the exact opposite of how John is being treated by his probation officers. Like the overprotective helicopter parents of my childhood friend, whatever the intentions of his probation officers, neither they nor the regime that they work under seems able to see the forms of harm that they, and it, might be causing to John. On the contrary, their intransigence from their 'only doing our job' mentality allows them to swerve any individual or even systemic responsibility for any harms that befall John, which are invariably individualised as problem's caused by John himself due to his questioning or challenging of his treatment by his probation team. Unquestioning obedience and complete compliance is required by John's probation officers and there can be no questioning of the possible failings of the criminal justice system or probation, specifically.


Reflecting on John's situation, I think of the novels of Franz Kafka, which seem to aptly describe how he seems trapped within a frightening and confusing bureaucratic nightmare from which there seems no escape. I think, too, of Randle McMurphy in 'One Flew Over the Cuckoo's Nest' who was lobotomised for his steadfast refusal to comply with the oppressive dictates of the system of power and control that he found himself up against.


The English and Welsh legal system is claimed by the Courts and Tribunals Judiciary website to be 'widely regarded as one of the best and most independent in the world.' Judging by John's experiences, this is an incorrect and misleading rhetoric. It will remain so until the reality of intentional and unintentional errors with the machinery of justice; until false allegations and wrongful convictions are recognised and embraced by all parts of the criminal justice system and innocent victims are not required to endure a system that denies their innocence and the extensive forms of harm that the systemic denial of their innocence can cause them.


By Michael Naughton


Dr Michael Naughton is the Founder and Director of Empowering the Innocent (ETI). He

holds a Readership in Sociology and Law at the University of Bristol. Click here for more about Michael. 


This article was first published in FACT News, 14 (2): pages 38-39. November. Autumn Issue. (Click here for the article).


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