Tuesday, 8 February 2011
THE INFLUENCE DODGY JOURNALISTS CAN HAVE OVER CRIMINAL INVESTIGATIONS
Home Affairs - Minutes of Evidence[Back to Report]
Here you can browse the Minutes of Evidence which were ordered by the House of Commons to be printed 22 October 2002.
TUESDAY 14 MAY 2002
Mr Chris Mullin, in the Chair
Mr David Cameron Bob Russell
Mrs Janet Dean Mr Marsha Singh
Bridget Prentice Angela Watkinson
Mr Gwyn Prosser David Winnick
Examination of Witnesses
MR DAVID ROSE, Special Investigations Reporter, The Observer, MR RICHARD WEBSTER, Author of "The Great Children's Home Panic", and MR BOB WOFFINDEN, Freelance Investigative Journalist, examined.
Select Committee on Home Affairs Minutes of Evidence
Examination of Witnesses (Questions 38-59)
MR DAVID ROSE, MR RICHARD WEBSTER AND MR BOB WOFFINDEN
TUESDAY 14 MAY 2002
38. Good morning, ladies and gentlemen. Welcome to our witnesses. This is the first session of our inquiry into allegations of abuse in children's homes. I should make clear at the outset that, although we are under great pressure to do so, we are not going to examine in any detail individual cases. Of course, they may be cited where they illustrate a wider point, but we do not wish to get dragged into individual cases because that is not our function. The second point I should mention to witnesses, although I suspect they are well aware of this, is that we have to be careful of the rule on sub judice, so that if a case is before either a court of first instance or the Court of Appeal, then it cannot be referred to by name. If it is before the Criminal Cases Review Commission that is fine. If the CCRC has referred it to the Court of Appeal, then again it is covered by sub judice so we have to be a bit careful there. I think, since this is the first session, I will start by quoting the terms of reference. As I say, we have been under a lot of pressure to widen our terms of reference and we propose to stick as closely as possible to them. The questions in which we are interested are: "Do police methods of "trawling" for evidence involve a disproportionate use of resources and produce unreliable evidence for prosecution?" Two: "Is the Crown Prosecution Service drawing a sensible line about which cases should be prosecuted?" Three: "Should there be a limit—in terms of number of years since the alleged offence took place—on prosecution of cases of child abuse?" Four: "Is there a risk that the advertisement of prospective awards for compensation in child abuse cases encourages people to come forward with fabricated allegations?" And five: "Is there a weakness in the current law on `similar fact' evidence?" Those are the issues on which we hope to concentrate. Can I first of all put a general question to each of our witnesses and ask, starting perhaps with Mr Woffinden, how you became interested in this area?
(Mr Woffinden) Well, obviously I have been interested in miscarriages of justice for some years now, so in a sense I came in through that doorway, a lot of people contacting me saying that in these particular cases they had been wrongly imprisoned. So I had this background of interest in miscarriages of justice and it was natural for me to become concerned about these cases.
39. When did you begin to notice that there was a common thread to them?
(Mr Woffinden) Probably from about 1996 onwards it seemed that all these convictions were being obtained by similar means. So then we tried to put together, initially with Richard when I was writing articles, precisely what was happening.
40. Thank you. Mr Rose?
(Mr Rose) I am a relatively new arrival on the scene. I became interested about two years ago when a lawyer—with whom I had worked very closely some years ago investigating the miscarriage of justice which befell the Tottenham Three, the three men falsely convicted on fabricated evidence of murdering PC Blakelock in the riots at Broadwater Farm—contacted me saying he had been instructed in one of these cases and he was more convinced than he had ever been not only that his client in that particular case was innocent but that the case did fit into a general pattern which was causing him, as an experienced barrister, now a QC, grave concern. He actually gave me Richard Webster's book to read and it was as a result of that that I began to investigate a number of cases.
41. Thank you. You were responsible for making the Panorama programme.
(Mr Rose) Yes, the first thing I did was investigate the case of Roy Shuttleworth, now before the Criminal Cases Review Commission, for Panorama. As part of the research for that programme I looked into a number of other cases too and subsequently I continued to work in the area for The Observer.
42. Thank you. Mr Webster?
(Mr Webster) Unlike Bob Woffinden and David Rose, I am not an investigative journalist. I came into this field because I wrote a fairly substantial intellectual biography of Freud and that may seem a strange route in, but that led me into the field of studying recovered memory and false memory and the origins of that in 1896. I will not go into that now. Having finished that, I thought I would spend three or four weeks looking at false allegations or looking at sexual abuse allegations starting with the Cleveland affair because I felt there were things there that I wanted to understand. That was in early 1996 and it so happened that that coincided with the non-publication of the Jillings report into alleged abuse in North Wales. It also coincided with the beginning of an extremely strong campaign run by The Independent newspaper to try to force upon a reluctant Government a tribunal of inquiry based on the non-publication of the Jillings report. At that time, it seemed to me, that what was happening in North Wales (and I was going on trust from The Independent reports) was the genuine article, that there was massive abuse or had been abuse on a massive scale. Questions were raised about that. I did actually meet some former members of staff from Bryn Estyn and I decided the only thing I could reasonably do was go to North Wales and begin to be an investigative journalist, although I was not one. That is what I started to do. I will not go into details about my investigation, but really, it would be true to say, that by having started investigating North Wales before the Tribunal was ever convened, I then decided I must look over the border in Cheshire and Merseyside and ever since then, on and off, I have been investigating these cases simply because, I think, of the sheer horrifying nature of the miscarriages of justice which they have undoubtedly produced.
43. It is not your case, is it, that all or most of those convicted are miscarriages of justice?
(Mr Webster) Absolutely not, although I think having said that there has to be a reservation. I have always argued that one of the great tragedies of what is happening at the moment is that if we allow into the currency of allegations, without question, the number of false allegations—which I believe we are now doing—then we debase the entire currency of allegations. The victims ultimately of that are the people who genuinely have been sexually abused and I think it is very important that we should recognise that. There is no doubt whatsoever in my mind that there has been sexual abuse and physical abuse in children's homes and indeed in every other kind of home and institution where adults and children reside together. That, I think, is something we should recognise and it is very important that we should not obscure that, but the people who are obscuring it, I would say, are the people who are not being critical about false allegations; not being critical about allegations and not examining them rigorously.
44. Mr Woffinden, I thought I saw you nod at the suggestion that most of those convicted are innocent.
(Mr Woffinden) I think the position we find ourselves in is that we certainly believe that some of those who have been convicted are guilty of some of the things they have been convicted of. That is certainly clear. From my own perspective I have to say that most of the cases I have looked at I have become very concerned about. Obviously one has to add the rider that people are only going to get in touch with me in the first place because they believe they are the victims of a miscarriage of justice and that people who have been correctly convicted are not going to bother to get in touch with me.
45. Is this an area where everyone who is convicted, or just about everyone, protests their innocence? Mr Rose?
(Mr Rose) In trying to answer that question, and also the question you were aiming at earlier, to give perhaps some kind of idea of the proportion of people who may be as criminologists say factually guilty, it might be worth looking at a single home where I have looked at a number of cases, namely Greystone Heath which was formerly near Warrington in Cheshire. Roy Shuttleworth was one of the people convicted there. His case is before the CCRC. He was the main subject of the Panorama programme I made. I looked into the evidence given by each and every one of the seven complainants in that case and I have simply no doubt in my mind that each and every one of them was lying. If you look at the people who have also been convicted from that home, two of them pleaded guilty, Alan Langshaw and Dennis Grain. Neither, to directly answer the question you raised, has ever protested their innocence or suggested that they were in any sense a victim of a miscarriage of justice. Of the other two convicted from Greystone Heath, one is a man called Brian Percival who I have absolutely no doubt was innocent and his conviction was quashed by the Court of Appeal; the fifth individual is called Keith Laverack who protested his innocence. From what I know of his case—and I have not looked at it in exhaustive detail—I think there are serious grounds for concern. If we take that sample of five individuals who worked at that home over approximately a 15 or 20 year period, I would say that two were factually guilty and three were innocent.
46. Mr Woffinden?
(Mr Woffinden) We believe we are dealing with a considerable problem here that certainly has not been fully recognised yet. If I could just refer to this piece in the press notice where whoever has written this has said "People convicted of sexually abusing children are more likely to continue protesting their innocence than any other category of prisoner", I know of no evidence to support that.
47. I said that really as an observation and from the vast quantity of letters I receive on this subject because people know I have taken an interest in miscarriages of justice over the years. It seems to me that quite a lot of them have a case to answer but are not facing up to that.
(Mr Webster) I am afraid I cannot give details but I do recall a university academic who I believe came from the University of Southampton who, some years ago, took that proposition, the one which Bob has referred to, and examined it. He came to the conclusion that it may be the case that the reverse was true. I am sorry I cannot provide details with that. There is one other point which I think it is important to raise when we are talking about those who are indeed guilty of some of the crimes which are alleged against them. I am not going to name the person, but David just now talked about some people who had not protested their innocence. He is quite right. However, one of those people I interviewed in prison because I wanted to know more about the background to that case. That was an extremely telling interview because what he told me was that he was indeed guilty of the indecent assaults, or at least some of the indecent assaults, which were on his very long indictment. Indeed, he also said that he was relieved; he felt relieved when he was finally arrested and questioned on these counts because he felt he had, I think he put it, gone off the rails. He also said that what he never anticipated was that, when he went to the police station in the spirit of wanting to help the police establish what had gone on, he would find himself facing a large number of much more serious counts than he had ever engaged in. He said that he had never engaged in the act of buggery with anyone and the terms in which he said that were, to me, convincing. What he was, in effect, saying—he was not complaining about his conviction, he was not complaining about his sentence—was that he had been advised by his barrister to plead guilty because that would lessen his sentence; to plead guilty both to those things he had done and to those things he had not. I have interviewed in prison another prisoner in the company of the solicitor, Chris Saltrese, who will be giving evidence to this committee, who has said almost exactly the same thing. I have absolutely no reason to doubt that. It is also true that Christian Wolmar who, I think it would be fair to say, is at the polar opposite—or was when he wrote his book about this issue on the other side from the three of us who sit here—actually singles out that point and endorses it from his own experience. I think the reality is—and this is a frightening reality—that in this climate it is impossible, I would say, absolutely impossible, for anyone who is genuinely guilty of some offences, if they have been the subject of a police trawling operation, for them not to find themselves facing a very significant number of allegations of which they are not guilty, and very difficult for them to plead not guilty.
48. Mr Webster addressed this point earlier; perhaps I can ask the other two witnesses. We accept, do we not, that an enormous amount of child abuse went on in institutions where, as Mr Webster put it, adults and children live together, in years gone by. Do we accept that or not?
(Mr Woffinden) We certainly accept that, but what I think we are saying is that the amount that did go on has been magnified in recent years by methods such as that which Richard has just mentioned. The general public perception has become, I think, that most of these care homes were being run by bunches of paedophiles throughout the seventies and eighties. That is obviously a completely inaccurate perception.
49. Can you just give us some idea of the number and scale of police investigations into past cases of child abuse. Any ideas?
(Mr Rose) There have been to date over 90 either concluded or on-going investigations involving, I believe, at least 34 of the 43 police forces in England and Wales and others in Scotland and I suppose Northern Ireland if one includes Kincora. If I could pick up on the question you asked Mr Woffinden just now, I think that the media has played an extremely negative role here in inflating the scale of allegation. It becomes a kind of self-reinforcing loop as the impression is constantly created and fed through the media that these homes were all sort of charnel-houses of violence and paedophilia, so more allegations are encouraged so that the compensation culture is fostered and you get a sort of self-justifying self-sustaining spiral effect. If we take one specific example which clearly had an enormously powerful effect, it was the BBC drama Care shown about 18 months ago which was an extraordinary mendacious representation of what it was really like in North Wales children's homes. An element of sexual and physical abuse did take place at those homes, it is virtually certain, but what was portrayed was a version of a real life case which, really without any reliable evidence at all, was then used to create this picture of rings of paedophiles outside the home who were preying on boys from the home who were then passed around. These things never happened and when a television station and a newspaper—regrettably my own, The Observer—on the basis of this extremely unreliable evidence had the temerity to suggest that this had gone on, they were sued and went down for very large sums of damages. Those alleged to have been part of this fictitious paedophile ring walked away with, as I say, a very large libel victory. Just apropos that I think one idea which I would like very much to plant in the minds of the committee is this: in none of these cases, in no example of these 90-odd investigations has a so-called paedophile ring ever come to light. There were no paedophile rings in care homes and similar institutions in this country. There were individual paedophiles and abusers operating in some cases with impunity for some years. There were no rings.
50. And the other two witnesses agree with that last point, do they?
(Mr Webster) Yes, I think it is terribly important that we recognise the extent to which the mythology of the paedophile ring centred on children's homes is precisely that: it is a mythology. That myth started and there was much reference to it at the time in the House of Commons in relation to Kincora. I am afraid I do not have the dates of Kincora but we are talking I think early 1980s in Belfast, of course. I think it should be placed on record that the BBC journalist who has investigated that case most thoroughly, and, I have to say, rather credulously in relation to allegations, has gone out of his way to make it absolutely clear that stories that Kincora was the centre of a paedophile ring have no substance whatsoever and those allegations have never been made by the complainants who were there. I do not want to get sidetracked into Kincora, but going back to the scale of what is going on, I think it is instructive to look at individual police operations. There is one individual police operation which is in South Wales, it is not the South Wales Police Force, it is the other one, Gwent. They are investigating or have been investigating Ty Mawr which had a secure unit so it had some of the most difficult teenagers. They identified seven thousand former residents of Ty Mawr and it was their intention, when they set out on their investigation, to interview all seven thousand. When I spoke to a senior police officer some two years ago they had then clocked up three thousand witnesses whom they had already interviewed. From those interviews they had identified a hundred suspects. Allegations had been made against no fewer than a hundred former members of staff. I think one of the things which is interesting about this Ty Mawr investigation is that during, I think it was in 1990 or 1991, Ty Mawr was the subject of an investigation which was conducted by Gareth Williams QC (as he then was, later to be Lord Williams of Mostyn) and he was satisfied. I believe he conducted a very thorough investigation and a very sensitive one. He was satisfied that there had been no sexual abuse and no serious physical abuse. He did criticise a regime of cuffing and minor physical violence. We could go on and go through other investigations in South Wales which, I have to say, I believe is where one of the most dangerous trawling operations is being conducted by the South Wales Police. Again, this is now going back a year or so. It has been reported that they had investigated at that point 81 different homes and that they had trawled allegations against 581 suspects. Even if we look at just those two tiny corners of what is happening nationally, I think it brings home something of the scale of what is happening. I would also say that it is my own considered view, and I know that this is shared by some lawyers, that it is likely that when we are talking about 581 suspects being identified, the vast majority—and I am thinking of well in excess of 80 per cent, possibly in excess of 90 per cent—of those people will be completely innocent.
51. Just sticking with Mr Webster for a moment, you say in your memorandum that the emergence of trawling dates from a shift in the law in 1991. I think you refer to the Boardman case. Are you aware that the police were adopting a different sort of approach to these sorts of investigation before 1991, and if so how did it differ?
(Mr Webster) I think that the problem so far as the police were concerned—and I do not think it is something which they saw as a problem—was that so far as those seeking convictions in care home cases before 1991 it was rightly, I believe, difficult to obtain those convictions in the court. I say rightly because when we are dealing with long delayed cases, allegations referring back to events which supposedly happened 20 or 30 years ago, that in itself creates the conditions for dangerous trials. It was very difficult and, as I say, rightly difficult for police to get convictions. When the law was changed in the case of DPP v P in the House of Lords in 1991 (I have talked about this in my memo and I will not go into the details now) what the House of Lords did at that point was to remove one of the vital safeguards against wrongful convictions by striking out the demand for there to be striking similarities between allegations before those allegations could be admitted in a single trial. There was huge pressure on the House of Lords throughout the 1990s and, indeed, it goes back much further than that to the very beginning of the 20th century, to lower the threshold of evidence precisely in order to get convictions where convictions had previously been difficult to get. There was an increasing disregard for the problem which that brought with it, namely that if you lower the threshold of evidence the reason that the threshold of admissibility is there is in order to protect innocent people from being wrongly convicted. At a certain point, particularly in the 1990s, it seemed that the House of Lords no longer took account of that in their rulings and it was no other person than Gerard Elias QC, Counsel to the North Wales Tribunal who in his opening statement to the Tribunal actually made specific reference to this House of Lords ruling and said that previously—I think I am remembering his words correctly—the issue of obtaining convictions had been clouded by the matter of corroboration and that by removing the demand, or by simplifying it, it was easier to get convictions as a result of the 1991 House of Lords decision.
52. I just want to deal with this in layman's terms. What did the Lords say? That it was enough to have a number of similar allegations and that you did not need any corroboration apart from the allegation itself? Is that what they said?
(Mr Webster) Yes. I think we have to recall that this happened in two stages. When similar fact evidence was admitted originally—which is normally excluded because of its prejudicial charge—the classic cases involved murder cases where there was no dispute about the facts that were being admitted. There was no dispute in the case of R v Smith in 1915 that three of the women that Smith, the defendant, had recently married, had all died in their baths shortly after they had made financial arrangements in his favour. There was no dispute about that. There was no question, as one of their Lordships said in 1975 in a judgment, of any of the witnesses for the prosecution telling lies. What happened was that in 1946, under pressure to get convictions specifically against homosexuals, or alleged homosexuals, there was a decision taken basically to allow allegations which, of course, might be false, to be admitted on a similar fact basis. At the time, or certainly subsequently, the House of Lords was very much aware of the danger that what this in practice meant, or might mean, is that an innocent man might find himself facing a series of false allegations. One of the ways in which those might have come about was that they might have been concocted. This was something against which the House of Lords wanted there to be safeguards and in the 1975 Boardman judgment which was crucial in the history of all this, they said quite clearly—or one of their Lordships said quite clearly—that if there was any question of contamination of the witnesses having, if you like, gleaned their allegations from some common source which was not the criminal conduct of the defendant, then those should not be admitted as similar fact evidence. Also, it was always felt—and indeed still is felt by most lawyers—that you cannot prove that a man committed one crime by offering evidence that he committed another crime. The exception was made, originally in these murder cases, that if there were striking similarities, such as those in the Brides in the Bath case to which I have already referred, then it could be argued that in a sense logically the two crimes were so closely related, were so strikingly similar, that evidence in relation to one could be logically probative in relation to another crime. What the House of Lords decided in 1991 was that they would do away with the criterion of striking similarity and basically allow evidence in on the basis of mere similarity.
53. Just to clarify that point, is it right that after 1991 the mere volume of accusations was sufficient.
(Mr Woffinden) That is right. The first major case you get after this change in the law in 1991 is the Frank Beck case which is one I have looked at myself. In that case Frank Beck faced a ragbag of allegations of sexual and physical assault against adolescents and children. Frank Beck was the first fully qualified care work ever employed by Leicestershire County Council and he had had a very good reputation prior to these rumours gathering in the area. A lot of allegations were put against him. When the case went to trial he did not have a QC. Some of the allegations were disposed of at trial and he was convicted on others. The judge clearly felt that he was a seriously evil person and sent him down for five life sentences. Frank Beck himself had always said he would be happy to plead guilty to the physical assault charges. This had been in the 1980s. He had led a rather robust regime at this care home, but he was always absolutely emphatic that he had never committed any sexual offences against children or adolescents. What happened then, of course, was that he had just arranged to get a strikingly good legal team. He had taken his case to Anthony Scrivener QC (one of the major QCs at the time) and then he died after a game of badminton in prison. Almost simultaneously his solicitor was also killed in a traffic accident. This actually had a devastating effect on this whole process because it meant that the Frank Beck case could never be properly re-investigated at appeal, so the myths about that case gathered pace, I think.
54. Yes, very briefly Mr Rose.
(Mr Rose) Just to clarify this point, the case of P does not actually say you can corroborate by volume, but the effect of the judgment is that is what it led to. What the judgment says is that you do not have to have striking similarity. So, to take a hypothetical case, you could have a sexual abuser who always used a particular method of grooming his victims, as paedophiles do, and would then carry out a specific type of assault in a way that really did indicate that an individual had, for the sake of argument, a particular kink. There you could see a pattern that would have some logical probative value if aired in court. Once that striking similarity thing is removed and so all you have to say is that this person likes abusing boys in his care—which is what it comes down to—then, of course, the gates are open and the pressure is on the police to go and find as many victims as possible to stand up this allegation. They have an initial allegation, then find as many people as possible who simply have to be boys who were at the home and say they were abused in whatever way, in whatever circumstances, in whatever place by this man. Mike McConville, Professor of Law at Warwick University now on secondment as Chancellor of the University of Hong Kong said in my Panorama film that what you have is a series of individually weak worthless allegations which prop each other up like a wigwam. If you imagine a wigwam, the more poles you have the stronger the wigwam will appear to be. In fact you can take away three, four, five even ten (if you have twenty poles—as there are in some of these cases) and it will still stand up.
(Mr Webster) He also used the even more striking image of two drunks propping themselves up in the street, which I think is even more apt in that it points to the unreliability and weakness of the allegations concerned.
55. Any miscarriage of justice is absolutely deplorable and should be put right, but the impression that I, for one, got today was that the amount of sexual abuse which happens in children's homes has been—I think Mr Rose used the word—magnified. Can I put to you a different view point, namely that the amount of sexual abuse which has been going on has been far more extensive than what has come out up until recently. Indeed, to a very large extent there has been, until a few years ago, a cover up. Far from being magnified one would argue that far too much sexual abuse and violent abuse against children, who have no defence being in such homes, went unreported, no charges were ever made. Do you think there is any substance to such allegations?
(Mr Rose) I think in a sense we are both right. I think it is absolutely true that a large amount of physical abuse and a certain amount of sexual abuse was, in effect, covered up for many, many years. Victims who did complain were often ignored. Although in some cases they were not ignored and their cases were investigated thoroughly contemporaneously and in some cases did lead to successful prosecutions. I do think the extent to which there was an alleged climate of fear has been exaggerated. I think there were people who did complain contemporaneously and were taken seriously, but I would broadly agree that there was abuse that did not get taken seriously.
56. Over a period of years.
(Mr Rose) Over a period of years.
57. And many, many lives were damaged as a result of that. You do not deny that?
(Mr Rose) I do not deny that for one second and I do not think any of us would. However, I think we now have a situation where many more lives are being irreparably damaged, often people who are at the end of their careers or in retirement who have in fact led blameless lives, working selflessly for poor salaries with very difficult youngsters, who suddenly find a knock on the door and at the end of a gruelling and humiliating process a fifteen year prison sentence. I would like to make the point that for somebody of, say, 67, a 15 year prison sentence is probably a death sentence.
58. For anyone who is innocent, who is in prison and is innocent, that is deplorable. We would not like it to happen to us and there is no reason why it should happen to anyone else. But, Mr Woffinden, I got the impression, perhaps wrongly, that when Mr Rose—and indeed very early on in the evidence given, Mr Webster—said there had been widespread sexual abuse of children which went unreported, that children's allegations were not taken up by the authorities in any way whatsoever (I have perhaps put a word or two into your mouth, Mr Rose) do you agree with that, Mr Woffinden?
(Mr Woffinden) I think I have answered this already when I said that obviously most of the people coming to me are coming to me because they believe themselves to be victims of miscarriages of justice.
59. I understand that, but do you accept what Mr Rose and Mr Webster said?
(Mr Woffinden) In a sense I have no information on which to determine that. Obviously I believe the broad suggestion that yes, abuse went on and that it was tolerated or unrecognised for some years and there was certainly more physical abuse than sexual abuse. I would like to put in one other thought here, which is that in a sense there are two windows of opportunity for people if they were abused in care homes to make their feelings known. The first was in the short or medium term after the offence had occurred. The second was after there began to be national concern about what had gone on which, we might say broadly, was from the 1990s onwards. In a lot of the cases we are dealing with at the moment where people are coming forward now with allegations against particular care workers, there is actually no history at all of these people having complained at an earlier stage at either of these windows of opportunity which I have identified. People have tried to claim that they said something about it at the time, but quite often those suggestions have not really been proved in court.
1 Note by witness: Chris Moore, The Kincora Scandal: Political Cover-Up and Intrigue in Northern Ireland, Marino Books, Dublin, 1996, p.7. Back
2 Note by witness: `In relation to allegations of sexual abuse . . . questions of corroboration clouded the issue for much of the period, but at least since the House of Lords decision in DPP v P (1991), the prosecution of those against whom more than one similar offence (or type of offence) is alleged has been made procedurally and evidentially easier.' (Gerald Elias QC, North Wales Tribunal Opening Statement, Press Copy). Back
Select Committee on Home Affairs Minutes of Evidence
Examination of Witnesses (Questions 60-79)
MR DAVID ROSE, MR RICHARD WEBSTER AND MR BOB WOFFINDEN
TUESDAY 14 MAY 2002
60. Nevertheless, broadly, perhaps not in quite the same way, you agree with your two colleagues that there had been a lot of sexual abuse of children which went unreported over many years. I do not want to put words in your mouth.
(Mr Woffinden) There has been some sexual abuse clearly which has not been reported. Some, I would say.
(Mr Webster) I think the problem here is what do we mean by "a lot". In the context of this discussion we have to look at that relatively. I think you are absolutely right to point to a certain atmosphere of denial that there has been in relation to allegations. One particularly interesting and significant case has already been mentioned. That is the case of Alan Langshaw who was eventually convicted as a result of a Cheshire trawling operation. Initially complaints had been made by two young boys. I believe it was in 1985 or 1986. As a result of representations made by the psychologist, David Glasgow who was involved in that case, questions were actually asked in the House. What happened then was that he protested his innocence, wrongly, and he managed to get people within the Catholic care organisation who were his employers to support him, saying that he was the victim of a witch-hunt. I think this is one illustration of where there was somebody who was guilty who managed in that case to escape conviction at that point. I think that one has to follow that case through. One has to recognise the extent of the denial that there was in some cases. But one also has to see what happened as a result of that Alan Langshaw case. I know because I went to interview one of the senior figures in the care organisation concerned. It was quite clear from what he told me that as a result of their wrong and misguided support for Alan Langshaw, those senior social workers who might have demanded balance and rigour in the investigation of allegations were almost entirely discredited. That particular instance, I think, was a very dangerous one because it did open the flood gates to false allegations which were not properly scrutinised because of the precedent there. I think it is important finally to say that we must see this thing in relative terms. I would perhaps agree with the proposition that there has been—I have already said that—a lot of sexual abuse not only in children's homes but in other institutions as well. I think it is absolutely important that we recognise the scale on which this has been reported has been a gross distortion and has depended upon accepting uncritically a large number of fabricated allegations and there has been nothing like the scale of abuse which has been reported in the media.
61. Mr Webster, you mentioned earlier about individual police investigations, but this inquiry has come about because we have received reports from many parts of the country. Does this suggest to you that there may be a collusion between police forces, a liaison as to how the various methods of trawling et cetera are undertaken? Surely they are not spontaneous acts by individual police forces.
(Mr Webster) I do not think it would be fair to use the word "collusion" because that implies some almost nefarious intent, but I think it is undoubtedly the case that when, for example, the Frank Beck inquiry achieved what was seen as a tremendous result in that it resulted in Frank Beck being sentenced to six life sentences, there was considerable interest from other police forces. It so happens that the conviction of Frank Beck was announced right at the end of November 1991 and it was on 1 December 1991 that The Independent on Sunday reported a new scandal which it said would beggar in scale what had previously been found out in relation to Beck, and this was the North Wales scandal. What then happened, to come back to your question, is that the North Wales police immediately went to consult with their colleagues in Leicestershire to get advice on how best to get prosecutions. They discussed with them—I know because I have interviewed Detective Superintendent Peter Ackerley who led the North Wales investigation—how to avoid difficult questions being raised or how best to minimise the question of compensation and the possible motivation of compensation. North Wales then became a kind of authority to which other police forces looked. Merseyside then set up its operation, Operation Care (which is one of the largest) and also Cheshire. They, in turn, consulted North Wales. So what has been happening is that a template of extraordinarily bad and dangerous police practice has been held up as a model of good practice to other police forces and has been eagerly seized by police forces who can see that this can result in high profile investigations which will result in large numbers of convictions.
62. One of your main objections in this whole process is the method of investigation called trawling. Surely trawling is the only effective method of investigation and without trawling how would the police catch the guilty?
(Mr Rose) I personally think that one of the crucial issues here is how trawling is carried out.
63. Can you define what trawling is?
(Mr Rose) Trawling, I would define as the police responding to perhaps one single allegation by one individual that he or she was abused in a particular home and in attempting to investigate that allegation visiting possibly many hundreds of individuals who were at that home at a particular time, and therefore hunting allegations from all those individuals which might corroborate the original allegation against one person who worked at the home or, as has happened many times, rapidly generates further allegations against other staff. In some cases the police have visited every person they can find who was at a particular home over a ten or twenty year period. You will be talking here of perhaps more than two thousand people. In other cases they have employed a technique which they refer to as "dip sampling" where they will visit a proportion of those people. To answer your point and also what Mr Winnick was getting at, for me the crucial issue is not whether you should investigate these allegations but how you should do it. In my view, as in all aspects of the criminal process, you should do so in a way which, on the one hand secures convictions against those who are factually guilty and which, on the other hand, protects people who are factually innocent. The problem with trawling as it is now carried out is that it is an absolutely unregulated process and it is a process which, if you talk to any reputable cognitive psychologist he will tell you, is almost tailor-made to generate false allegations. A cognitive psychologist would say that if you approach somebody and say twenty years ago you were at a particular home, the only proper way to proceed is to say "Have you anything to say? Are there any allegations you wish to make on any aspect of your treatment at that home?" Once you go beyond that, once you say "We are investigating allegations of sexual abuse carried out at that home" you are immediately risking the generation of an entirely false narrative. If you go beyond that, as has happened in many of these inquiries, if you then say "We are investigating claims that Mr X was a paedophile" and if you then go beyond that and say "This is a picture of Mr X, do you recognise him? Mr A, B and C say he was a paedophile. Is there anything you remember about your treatment there?" you are on a very, very dangerous slope indeed. What you have in some of these cases is repeated visits by police officers to individuals who indicate that they are prepared to go along with this process of statement generation before any written record—the final statement that is submitted to the defence and forms the basis of testimony in court—is finally arrived at.
64. Is that a fundamental conviction that you have, that no written statement is taken at that time, or a recording of it?
(Mr Rose) There is no recording at all. There can be any amount of discussion, perhaps numerous visits before the written statement is finally taken. When the written statement is taken in almost every case it will not be written by the complainant, it will be taken by a police officer who will take the complainant through step by step, leading him or her by the hand, as to what he or she wishes to say. In my view, the most fundamental and crucial reform that would, on the one hand make genuine evidence more credible but on the other hand offer a measure—a substantial measure I believe—of protection to the innocent is to tape the interactions between police and complainants. Then it would be on the record and clear whether this process of leading had in fact taken place. If we are going to have taping, I think it is crucial to establish that that tape has got to be switched on at a very early stage. If the police officer knocks on the door or sends the letter and the appointment is made and the potential complainant says "Yes, I do want to tell you about my time at this particular home" then the interview must cease, an appointment must be made for perhaps a visit to a police station or perhaps a more congenial kind of surroundings like a rape suite where rape victims are interviewed when they suffer a more recent offence, and then when the person is in that situation then the tape must be switched on at the beginning and all interactions recorded in their entirety.
(Mr Webster) Can I just add to that two things, one is that I think one of the best descriptions of the dangers of police trawling is actually that which Claire Curtis-Thomas MP gave to David Rose in an interview and I know she is going to give evidence later. I just think that what she said is accurate. She warns about the dangers of whether deliberately or not and then I quote "The police will plant suggestions producing narratives that fit their case rather than the truth. What happens" she says " is a kind of indirect collusion which develops through witnesses' unrecorded contact with members of the same police team." I certainly could not think of a better summary of the dangers posed by police trawling. One point I would like to add to what David has just said about recording of conversations, I agree with what he says because this is one of the terribly difficult problems posed to innocent people who are trying to defend themselves. They cannot document the degree of contamination that has gone on in questioning. I think it should also be said and made quite clear that although it would help enormously to tape record police conversations, we should not naively believe that that would be some absolute hundred per cent safe guard. There would always be a temptation for police to engage in the kind of priming which they certainly have been doing in the past, in other words to have pre-interviews which are not recorded. There is, of course, a safeguard when police record interviews as they have to do now with suspects, every time they switch the tape recorder on again after a break, they ask the suspect "Can you confirm that you have not been asked any questions since this tape recorder was last turned off?" It is, of course, in the suspect's interest to answer that question truthfully, which is why that safeguard can have a degree of credibility. It would not be in the interests of a malicious complainant to answer such a question truthfully. I think one should not nurture the illusion that any safeguard can be a hundred per cent safe. I do endorse what David said in recommending that.
65. So you are saying that the police, when they receive an allegation, do not seek to test the truth of that allegation but actually seek to support that allegation? And secondly, they engage in a practice if not quite coaching but certainly leading. That is what you are basically saying?
(Mr Woffinden) I think that a lot of complainants tell the police what they think the police want to hear and that there is a process by which the complainants divine what the police want to hear. Of course, one of the interesting aspects of what is happening today if we consider contemporary trawling as it is being carried on possibly at this very minute, is that of course potential complainants will not need to be told in any respect the purpose of the visit by the police if they refer to a care home they were in 10 years earlier. They will grasp the idea immediately and so from that point of view care workers are not protected at all.
66. Is there any suggestion at all that the police, in pursuing these allegations, may actually mention the word "compensation" themselves?
(Mr Woffinden) If I could go back to a little piece that I put in my submission, what of course used to happen when dealing with suspects in murder cases, we know now that a great many people confessed to murders they had not committed. We know about the cases of Stefan Kiszko, Stephen Downing and George Long. There are about a dozen that any of us could reel off very easily. What happened in those cases was that people, under the pressure of police interview, told them what they wanted to hear, which was in fact that they had committed the murder, even though they had not. In those cases there is absolutely no incentive whatever for them to confess to something they have not done, other than ending the interview. And yet in most cases the police were able to get from interviewees the information which they wanted. What are we saying about what happened in those days? Are we saying that the police deliberately knew they were sending innocent people to prison for life? I do not think we are, are we? I think what we are saying is that the police were themselves deceived by the nature of the interviewing process. What we are saying is that now, in these situations the police again are deceived by the nature of the interviewing process and probably do not realise themselves the power of what is going on.
(Mr Rose) To answer the compensation point, some of the most powerful evidence comes from solicitors who handle compensation claims on behalf of complainants. Interviewing Peter Garsden of Abney Garsden McDonald which is handling more than seven hundred cases. . .
67. I am specifically asking here about the process of trawling.
(Mr Rose) Yes, he became involved at a very early stage representing complainants whose allegations were later the subject of criminal trials in Cheshire and Merseyside and, indeed, in Greater Manchester. I asked him what his relationship was like with the police when they were carrying out the investigations which led to those trials. He said that relationship was symbiotic. The police conducting Operation Care on Merseyside led by Detective Superintendent John Robbins held regular meetings with the group of civil compensation solicitors who were conducting those investigations. The police in Cheshire involved in Greystone Heath, another care home investigation, did the same thing. It is no coincidence that John Robbins, the police officer who led Operation Care for several years, now works for Abney Garsden McDonald, acting for the very same individuals as a civil complainant representative trying to get damages as he was once taking statements from in the courts of criminal proceedings. I spoke to another solicitor on Merseyside, Keith Robinson. He said to me that of his 110-odd clients as of about 18 months ago, clients of this type, a high proportion had, as he put it, been referred to him by the police. What he meant, as I explored this, was that people had been trawled by the police, in the course of their interviews with the police the subject of compensation had arisen and the police had said "Well, you ought to go and talk to Keith Robinson at Jackson and Canter on Merseyside. He's a very good chap, he's very good at dealing with these cases." So we have here, on the one hand, one solicitor talking about a symbiotic relationship, the other talking about referrals. In court, exactly what went on in these discussions on the one hand between the police and the complainant about compensation and on the other hand between the police and solicitors is, of course, obscured. But it is a fact that a number of witnesses who have given evidence in these trials have lodged claims before cases came to court. It is also a fact that a number of them have lodged claims very shortly after the end of the criminal proceedings. In two trials at least a letter has surfaced from this same John Robbins who led Operation Care to solicitors who were less experienced at dealing with this kind of case. This was some way down the line when a number of cases had gone to court and I think the police had become aware that the compensation lure was becoming an issue for defence lawyers. On at least two separate occasions John Robbins wrote to solicitors saying "Please advise your client not to lodge his civil claim until after the end of a criminal trial". I interviewed Mr Robbins earlier this year in his new capacity as a solicitor's legal clerk. I said, "Mr Robbins, why did you write those letters? What was the purpose of those letters?" He said, "It was to make their evidence look more credible in the criminal court so that they could truthfully say, when cross-examined, that they had not lodged claims for compensation." I replied to him, "But Mr Robbins, you knew perfectly well that these individuals intended to claim for compensation. You knew that because you knew they already had solicitors and were clearly thinking about lodging such a claim. You were party to what, I would say, is a perversion of the course of justice. You were writing a letter which had the conscious effect of allowing juries to be misled in criminal proceedings." He said, "No, no, no. I wasn't trying to mislead a jury. I was just trying to get a conviction. I was just trying to make sure that this evidence of abuse from this complainant would appear credible to a jury." "Yes, but you were making sure the jury didn't know about the compensation claim", and at this point we started to go round in circles. I ran this past the Chief Constable of Dyfed Powys who is now responsible for this whole area on behalf of the Association of Chief Police Officers. He was highly critical of what Mr Robbins had done both as a police officer and the fact that he was now continuing in this civil role. But I think you have there very clear evidence of a worrying degree of what I would describe as the blurring of the civil and criminal processes. Just one final example from Devon where, before the criminal investigation into the Forde Park Home had even begun, the 60 or 70 people who became complainants in the series of criminal trials there had not only instructed solicitors and filed civil claims, they had actually formed a pressure group demanding a police investigation. So what you had here was a situation where a group of people had banded together for the express purpose of campaigning for a police investigation and seeking damages and I asked the solicitor representing them, Penny Ayles of Woollcombe Beer Watts, "Why were your clients so concerned to get a criminal investigation going?" She said, "Because if the alleged abusers had been criminally convicted in court, it would make it far easier to get a settlement of the damages action and my clients would walk away with large sums of money."
(Mr Webster) I think there is just one more thing to be said on your specific question. You asked whether there was evidence that police officers sometimes themselves introduced the idea of compensation and, in effect, used it as a carrot (those were not your words, of course). There is certainly evidence of that nature. There are a very significant number of people who have made statements in these cases who have said they have been visited by police officers who themselves explicitly drew to their attention the possibility that if they made serious allegations, and of course the more serious the allegation the more money you get. If you make an allegation of buggery then that would result in more money. The police officers are well aware of this and so are potential complainants. There is evidence of that. But I think it is also important to say a point that has already been made implicitly, that in a sense there is no need any more for police officers to introduce that information because it is well known nationally that compensation is available in such cases and it is certainly well known among the particular, if you like, sub-culture, where most of these complainants are drawn from. There is a culture of compensation which is particularly strong in prisons, and we must recall that police are not only going and knocking on people's doors, they are also going to prison and soliciting (I think there is no other word for it) allegations from prisoners who are serving sentences. They do not need to tell the people in question that there is compensation available. That is well known. It does not need to be flagged up. So, yes, police do sometimes make that suggestion; there is evidence to that effect. Increasingly because of criticism such as we and others have made of their methods, they are issuing guidelines which are trying hard to get officers not to do that. However, that is, in a sense, really shutting the stable door after the horse has bolted because the message is out there; people know.
68. Finally, does police practice in these investigations vary from force to force? Is there any particular force which gives you particular concern?
(Mr Rose) I would just like to single out one force for praise first, which is the Metropolitan Police. The Metropolitan Police has been extremely wary of conducting trawls at all and it is already experimenting, where possible, with taping interviews. I think there is evidence also that the Metropolitan Police does another thing which many other forces do not do, which is that when an allegation is received instead of simply seeking, as you rightly put it, support in the form of further allegations, it actually tries to find corroborating evidence. So that if somebody says "I was buggered in this location", for the sake of argument a car or a van on a piece of wasteland down this road, the police first of all try to ascertain "Did the individual, the assailant here, did he possess this vehicle at the right time? And if he did possess the vehicle would it fit under the bridge?" So that these details hang together. I am actually citing an example here of a man who was convicted in the north west who was supposed to have carried out an assault in a van on a piece of wasteland under a low bridge. First, he never possessed the vehicle in question; second, if he had it would not have fitted under the bridge. But the jury still convicted. Does any force give me cause for concern? I think a number of forces give me cause for concern. But of those that I am aware of, South Wales, very deep concern as Richard has already said. Operation Goldfinch in South Wales I think is extremely worrying. Devon and Cornwall, where the Chief Constable, Sir John Evans, has repeatedly gone on television and spoken of how his officers are investigating a paedophile ring when, as I have already said, there is no evidence that any ring existed there or anywhere else. Merseyside where Operation Care is also on a vast scale and where, I may say, since the acquittal of David Jones, the football manager, the courts have shown themselves rather less credulous than in other parts of the country. And Cheshire. And one further force actually is Lancashire where there is a very large operation underway at the moment, Operation Nevada. It is being led by a detective who previously conducted a large investigation into allegations of abuse at Stonyhurst school. That was a scandal in itself. Of the ten former teachers or serving teachers at Stonyhurst who were charged only one was convicted and he was a monk who was basically demented because of old age; he was in his very late 80s, he did not know what was going on and received a suspended sentence. One other man, Rory O'Brien, the former headmaster of the junior school, was convicted and his conviction was rapidly quashed by the Court of Appeal. The shocking part about his story is that this detective, Mr Marston, held a meeting at the school. He asked for a meeting with the staff and governors at the school after Mr O'Brien was charged. Mr O'Brien had gathered a great deal of support from parents and other staff who did not believe the allegations against him. The detective asked to have a meeting where he said that he understood that there was concern that Mr O'Brien had been charged, but his audience ought to know that he had forensic evidence. This was a lie. There was no forensic evidence and, indeed, there never is in these cases. By definition offences that are so old will not have forensic evidence. But what he was essentially doing here was addressing a room full of potential defence witnesses and, I would suggest, telling lies with the express intention of perhaps dissuading them from giving evidence in Mr O'Brien's defence. Having gone through the rather expensive, I would say, fiasco of that investigation, he is now in charge of Operation Nevada, so I have very grave concerns about what is happening now in Lancashire.
(Mr Webster) I think it would be wrong to focus too much on singling out particular forces because we are really looking at a very dangerous method of investigation. And John Robbins, who David has already suggested was engaging in something approaching perverting the course of justice, is actually the person who has been seen as the leader of the model kind of practice. All these investigations are dangerous, it is just that some are even more dangerous than others.
69. Mr Rose, could you tell us, in the Merseyside operation how many convictions have there been so far?
(Mr Rose) I am not sure of the exact figures. I know there have been quite a large number of convictions for fairly minor offences, physical assaults.
70. Is it tens?
(Mr Rose) It is over twenty. There have been about ten acquittals too.
71. The figures we have been given by ACPO show that some 50 per cent of those people charged with offences who went to trial in Merseyside pleaded guilty. That does seem to suggest that we need very full and thorough police investigation.
(Mr Rose) I would not dissent from that for one second. It is how we carry them out.
72. Which is what we are looking at. It just seems to me, listening to the evidence this morning, that miscarriages of justice should make one feel very sceptical about everything, and yet you all seem very certain and clear of your ground: no paedophile rings, 80 per cent of people in South Wales are innocent. Do you see any contradiction there?
(Mr Rose) I think perhaps what Richard meant to say was that 80 per cent of those allegedly suspects in South Wales will never be even interviewed let alone charged or prosecuted. The law recognises them as innocent never mind anything else.
73. It just occurred to me, listening to your evidence, you are very clear of your ground in an area which is so difficult.
(Mr Webster) I think it is a very important point which you raise, but I think what David says is also important. We must recognise that the cases which are coming to trial at all—which are coming before the courts—are a tiny proportion of the allegations which are being made. So that even if there were 100 per cent guilty pleas in those cases it would still leave a huge number of what I would say were people protesting their complete innocence of allegations which have been made against them. If we take the particular case of Operation Care in Merseyside, the Merseyside police have often, quite rightly, and I think we should recognise the pressures that police forces are under in this situation, pointed to the number of guilty pleas that have been made, and there is a significant number of guilty pleas. I think they tend sometimes to somewhat overstate that. But I think that the real situation in Merseyside is that in the very early stages, of course, the people who are guilty are the ones that you do find allegations against first. If they are guilty it is quite right that they plead guilty. So I think what has happened in Merseyside is that there is a real core for some of those convictions but what has happened subsequently is that there have been an increasing number of allegations which are false which have been trawled by the police, and those do not show up in those statistics.
74. We are looking at the practices and trying to see what alternatives there are to trawling. We are talking about dreadful things that happened a long time ago. There are unlikely to be witnesses; there is unlikely to be any physical evidence. What is the alternative to doing some sort of trawling operation? What are the police meant to do when someone comes to them with a dreadful allegation of child abuse 20 years ago? What should they do?
(Mr Webster) Can I first of all take up a point, I am sure Bob will not mind my drawing attention to it, but he talked of people coming forward and making allegations and you have just made a similar remark. I think we must understand that that is not what is happening. In the vast majority of these allegations we are not talking about anybody coming forward at all. The only people coming forward in these cases are the police. They are going forward and they are knocking on people's doors. That does not answer the very real question which you pose. If we could create a culture among the police and among the Crown Prosecution Service where the kind of investigation that David was talking about in relation to the Metropolitan Police (and I am very glad he has found a police force to praise, I think it is very important that we should do so), if we could create that kind of culture which is not a prosecution culture, which is not a culture which says that the purpose of our investigation is to get convictions, then most of these allegations would disappear out of the window very shortly after they were made. The first thing I would say is that if we are going to investigate retrospectively then it must be done considering the defence case. I do not know whether it was the Law Commission but some august body not long ago were pointing out that in science the best way to try and prove something is to try and refute it. They were suggesting that should be—and that indeed is now—what police are meant to do. But they do not do it.
75. The problem we are dealing with here is a very difficult sensitive one, of child abuse. Listening to David Rose, as you put it, you were not against police going to other people who had been in the home and talking to them; you were not against that process known as trawling. You were against the way in which they did it because they were mentioning things like "this person was accused of child abuse". Child abuse is an incredibly painful, difficult thing to come to terms with and to remember and to own up to. Is it not unrealistic to expect the police officer to go and see other people who were in the home and just say "Twenty years ago when you were at this home is there anything you want to mention?" Is that not unrealistic, just to go that far and no further?
(Mr Rose) As Bob has already said, it is now so widely known why the police would be investigating these former homes, I do not think it has to be specifically stated. If you, as a former resident of one of these homes, get a knock on the door from a police officer saying they are investigating anything that happened at that home, you have a pretty good idea what they are looking for. I would simply say this, in any criminal process there is a balancing act that has to be carried out between the rights of the victim and the rights of the defendant and a notion of proportionality in terms of both punishment and the extent to which you are prepared to offer what you might term due process protections. What I fear is that at the moment there are effectively no real due process protections for potential suspects in these inquiries. I do believe that it is possible to make them much better, much less liable to produce a wrongful conviction than they are now. One, as I say, is through taping. The other is through an investigation of the context of the allegation. Andrew Parker, who is a Metropolitan Police detective, has done a great deal of work on what he calls statement validity analysis. He is actually working on a PhD on the subject at the moment under a Mr Gisli Gudjonsson who has a very distinguished history in the field of investigating false confessions. I think there are ways the police could—both through the internal content analysis of an eventual statement or taped account, and through the basic leg work of finding out if the allegations in the statement are credible—have a much more reliable process here. I stress, as I have already said, if we can be sure that these investigations are being carried out on a more reliable basis, albeit they may take longer and cost more money, at the end of the day the genuine victim will actually be more reliably vindicated.
76. The picture which has been painted today and which Mr Rose in the interesting programme which many of us saw last night, the Panorama programme, is that police are determined to find the culprits; overenthusiastic, without being too melodramatic, it could be argued almost a conspiracy by the police. What would be the motive?
(Mr Rose) I think, if I may say, that is a mischaracterisation of what I intended at least in the Panorama programme. I regret it if I gave that impression. Police culture in this country and, indeed, in most countries, is by definition results orientated. Police are there to get a result. They tend to be narrowly focused on specific tasks and it really comes down to this: "The guv'nor says, right you're on child abuse. We're going to have a massive investigation which is going to cost the local tax payer millions of pounds to find out if we can establish if there were paedophiles in this care home." That is it; you have been set off as an officer. You are there to get a result. That is the key phrase.
77. That is almost a conspiracy by the government of the day to tell the police to locate such offenders. Is this directed by the Home Office? The Home Secretary? By one of the junior ministers? Or what?
(Mr Rose) No, it is directed initially by an allegation that somebody was abused. But in an adversarial process the police are specifically there to build a case, to construct a case. With the best will in the world, detectives who act in good faith with the best of motives will sometimes, if the process is constructed in a way which gives leeway for wrongful convictions, for false prosecutions to be generated, they will sometimes do that. How you build the law, how you build protections has a very direct impact on how police operate, how they do build cases. If police are told if you are going to go and trawl you have to do this, this and this, and when you have got your statement you have to do this, that and that, the motive for the police officer remains the same. The police officer is doing his or her job. We do not have to ascribe bad faith or bad motive to this, it is just that the way the process is now and the way the law is constructed in the wake of the case of P it inevitably generates dangerous practice.
(Mr Webster) The other point about that is that you asked, quite rightly, and I think it is a very, very important question, what possible motivation could there be for police forces to pursue allegations in this way, if it is indeed the case as we are asserting, that the vast majority are false?
I am not a journalist as I said at the beginning. My special interest is, if you like, as a cultural historian in the role played by irrational fantasies in history. If one looks to history there is absolutely no difficulty in answering your question. Throughout history there have always been people who have reacted to the suggestion that there is an evil conspiracy in their midst, particularly when that suggestion has been made that they are preying on innocent children and that goes back century upon century, right back to the beginning of the Christian era. There have always been people who will drop everything, who will be highly motivated to hunt down such conspiracies. The same thing happened in the Great European Witch-hunt. You are asking again I think exactly the right question, is it the Home Office who are whispering in the police force's ear and putting them up to this? Of course it is not. What is happening, though, and what has happened over the last ten years, is that newspapers and particularly broadsheet newspapers—I am not talking about the News of the World—have declared their belief in evil conspiracies. On the front cover of my little book we have "Demons of the Dark", we have the headline "Paedophiles control children's homes" and we have another one "Dealing with the devil". I am afraid we may not like it, but it is at that level of irrationality that I think we need to seek the motivations for what is happening. The conviction that you are pursuing, an evil conspiracy that you may be able to bring to justice, has always motivated people in the past and the fact that that evil conspiracy may not exist—as we have said there have never been shown to be any paedophile rings centred on children's homes—does not lessen the motivation of those who seek to hunt it down.
78. So what you are saying as I understand it, in effect, and of course we are not dealing with medieval times we are now hopefully in modern times, is that despite all the work which the police have—with the day to day responsibility of dealing with criminality they are never short of work—nevertheless in certain areas of the country they have concentrated virtually all their energies in dealing with what is seen as an evil conspiracy.
(Mr Webster) No, that is certainly not what I would suggest. They have not concentrated all their energies at all. At the same time that the police forces are holding these kind of investigations they are often investigating other crimes and no doubt in many cases doing that quite properly and quite correctly. What I am saying is that it is always a temptation—and one to which many police forces have succumbed—to divert colossal resources into this kind of pursuit of paedophile rings which do not in fact exist. One example of this is Operation Rose, being run by Northumbria police for several years, which collapsed spectacularly. This was about two months ago. Mr Mullin is nodding because it took place in his part of the world. During that operation more than 20 people were successfully defended, 20 innocent people defended at trial and many, many more who were put through hell on earth as a result of false allegations which were made. That operation started with the police publicly asserting belief in the existence of a paedophile ring which simply was not there.
79. Mr Woffinden, no criticism whatsoever, you also I am sure have always acted in good faith like the police have according to Mr Rose, but you have been much involved in another high profile case of alleged miscarriage of justice.
(Mr Woffinden) Just a few days ago, you mean.
3 Note by witness: Catholic Social Services in Liverpool, now known as Nugent Care. Back
Select Committee on Home Affairs Minutes of Evidence
Examination of Witnesses (Questions 80-99)
MR DAVID ROSE, MR RICHARD WEBSTER AND MR BOB WOFFINDEN
TUESDAY 14 MAY 2002
80. Well, your name has cropped up. The Court of Appeal decided to uphold the conviction
Chairman: Why is this relevant?
81. It is relevant to the extent that I am sure Mr Woffinden has been involved in a number of cases of alleged miscarriages of justice. As I said, there is no criticism implied in that question.
(Mr Woffinden) If the committee would like to hold an inquiry into the Hanratty case I would gladly come and give evidence.
David Winnick: I just wanted it on record, that is all.
82. Mr Woffinden, if I could ask you your view on the Crown Prosecution Service. The last time the Director of Public Prosecutions appeared before this Committee he told us that about 80 per cent of cases that are forwarded to them are rejected for a variety of reasons, such as unreliability of evidence, failure of memory, the inability of the defendant to put a good case, even unavailability of witnesses. Of the remaining 20 per cent that they do take on, about 83 per cent secure a guilty verdict, a conviction on a plea of guilty. Do you think that the Crown Prosecution Service is adopting a sensible and consistent approach as to which cases they choose to go forward with?
(Mr Woffinden) Certainly in this area we believe they are not because we believe that most of these cases should not have gone forward in the first place because if they had been investigated more thoroughly then the inconsistencies and discrepancies in the statements of the complainants would have been exposed. What I suggested in my submission, in fact, is that there should be some sort of third criteria for the CPS in determining whether a case should go forward and this should be a firm belief—or some phrase we can talk about—that a crime had actually occurred. In a number of other high profile cases that I can mention, for example in the murder case of Squadron Leader Nicholas Tucker that I have recently written about, he suffered an accident in which his car went into the river and he was subsequently prosecuted for the murder of his wife. In that case five pathologists had given evidence, including two of the country's most renowned pathologists, the late Iain West and Professor Bernard Knight, there was no evidence at all that any murder had occurred, and yet that case was pushed forward. There are other cases that we know about like Sally Clark, the lawyer who was convicted of murdering her children, which is arousing serious concern as are other cases of that same nature. One I cannot talk about at the moment. It seems to me that there are cases which are going forward where we have not actually established whether a crime was committed in the first place. I would put these cases into that category. The problem of course is that once they do go forward then the momentum is with the prosecution, as it were. There appears to be the suggestion of a very awful crime having been committed. This is very great in the cases of mothers who are accused of murdering their children. It seems an horrific crime therefore I think juries are tempted to believe in those accusations. Similarly in these cases. What is interesting about accusations of paedophilia is that they are totally outside the comprehension of almost all of us, I think. If somebody we know is accused of taking a gun and robbing the corner shop, we might say, "Of course he's never going to do that". On the other hand, if someone is accused of interfering with a young child, curiously enough we probably tend to ascribe more credibility to those allegations just because we have nothing of our own experience that we can possibly put beside it to test that allegation.
83. If you feel that the investigative process is so flawed, do you think there is any way that the Crown Prosecution Service can be in a position to know whether the evidence is accurate?
(Mr Woffinden) We have mentioned people who do statement validity analysis and it strikes me that a lot of these cases could be thrown out on that basis. But even before we have to worry about whether we are video taping or audio taping the interviews, what we do have are the actual statements, and in a number of the prime cases that there are concerns about at the moment there are, as I say, discrepancies and inconsistencies with these statements that I think can be exposed. One of the problems in this area is that I think we have now reached the situation in the year 2002 where defence lawyers are beginning to get on top of this problem. We have mentioned the collapse of a number of cases recently. The problem, of course, is that ten years ago they were by no means on top of this problem and assumed, I think for the reasons I have already given, that if people were being prosecuted for allegations of this kind, then they must be guilty. In very many of these earlier cases the defence lawyers were caught without any sort of plan of how to address the allegations and therefore there were convictions in cases where there should not have been.
84. Mr Rose, you wanted to come in.
(Mr Rose) I think the problem is that the tests which the Crown Prosecution Service is asked to apply to any case are, as you know, whether the prosecution is in the public interest, but first and primarily, is there a realistic prospect of conviction?
85. Has a crime been committed?
(Mr Rose) They are not asked that question. They are asked if there is a realistic prospect of conviction. In these cases especially this is, I would say, a grave limit on their effectiveness as a filter which is how they were originally conceived by the Royal Commission on Criminal Procedure. They just do not apply the sort of reality test which these cases actually need. When you then bear in mind that these cases take place in a climate where paedophilia is actually regarded as a crime, as Richard has shown with those headlines, on a par with devil worship during the middle ages, and when one then conceives the cloud of prejudice and hatred that will hang over the courtroom when one of these proceedings is under way, well if the CPS gets the file (and bear in mind, as we are becoming increasingly aware, the amount of time they spend on each file is very limited) with ten statements accusing an individual of buggery, well, open and shut, of course we have a realistic prospect of conviction. On to the next case.
86. We have all seen the film In the Name of the Children which raises serious doubts about the evidence given against Roy Shuttleworth. Do you think that is unusual or are there large numbers of those cases?
(Mr Rose) I am certain there are large numbers of those cases. Roy Shuttleworth is lucky in one respect—if being wrongfully convicted and sentenced to a long term in prison and losing your wife as a consequence can be said to be lucky—in that it is possible to unpick quite easily, in fact, the statements made by each and every one of the complainants against him, some of whom said things which are simply ludicrous (such as the one who told me he squeezed through a three inch gap, jumping out of the window). The problem with so many of these cases is that when there is really no evidence, nothing substantial to get a handle on, then it is very, very difficult to actually knock that absence of evidence down.
87. Why do you think it is so difficult to mount an effective defence case?
(Mr Rose) I think defence lawyers are in a very difficult position and the less specific the allegation the more difficult it becomes. Also, there are a couple of other factors that make it even more difficult. Let us say the defence find a fact which appears to quash what a complainant says, for example the gap that somebody said he squeezed through is only three inches wide, the complainant will say, "Oh, yes, well it was twenty-five years ago. Maybe it wasn't in that room. Or maybe I got out through a door, maybe it didn't actually happen in that building at all. It is such a long time ago." In summarising the case in his closing speech the prosecuting counsel will say "Members of the jury, such a long time has gone by you can't expect this person's memory to be precise and anyway he is trying to blank out so much of it because it was so horrible". The second thing that makes it particularly difficult is that a lot of the witnesses in these cases are, by definition, people of bad character; they are people who were locked up because they had committed offences when they were children and they carried on committing offences. But the problem is that if you then counter this in cross-examination with the fact that an individual has, let us say, 62 offences of dishonesty on their record and perhaps (as in Shuttleworth's case) with an attempt to defraud the Criminal Injuries Compensation Authority in an earlier case, then the answer comes back: It would never have happened if he had not been sexually abused. There is one other notion I would like to plant with this committee and it is this: there is simply no basis at all anywhere in the scientific literature to suggest that a victim of sexual abuse is more likely to be dishonest. The biggest studies in America—and they are mostly American studies—suggest that there is no definable syndrome of behaviours which a survivor of sexual abuse in adulthood will exhibit. They are no more likely to be drug addicts, thieves, credit card fraudsters or, indeed, Criminal Injuries Compensation Authority fraudsters than anybody else. But, unfortunately, that belief is widely held in the courts, widely held by judges who make no attempt to quash this claim and so defendants are in an even more difficult position.
(Mr Woffinden) Can I just add a couple of points to that. Another problem is that a large number of witnesses, as David said, come from this particular background. Of course, it must also be remembered that a large number of potential witnesses are actually dead. This is one of the key problems for anyone trying to defend themselves. How can you defend yourself when all the evidence has evaporated over the years? You cannot refer back to particular situations; you cannot say: "So-and-so would have been there to say that I was not visiting his home that night, it was a Tuesday night and I was watching a football match" or something. All the records have gone; all the witnesses have gone so therefore all that is left are the assertions of these people. As I say, over the years I think defence lawyers have begun to come to terms with this and to work out ways of how to defend their clients. But it is very, very difficult. Phil Fiddler, who is giving evidence I think before you next week, is a rare case. When he worked he had preserved, as I understand it, every document in his home. He had kept every bus ticket. So that when he was accused he had shoe-boxes of material at his disposal with which to be able to counter these allegations. But normally people are not going to have this sort of documentation available.
88. I am going back to the compensation culture in a second, but in response to the last questions, it would seem you would both advocate some limitation on the time, how far we can go back in time before these accusations might be investigated. Would you both agree with that?
(Mr Woffinden) I do not understand why we cannot straight away bring in some sort of time limit for allegations of sexual abuse. As I suggested in my submission, I do not see why it cannot be a period of, say, three years or, in the case of a minor, the age of 24, which is six years after the age of majority. I do not understand why that cannot be brought in more or less immediately because then if people did have historic allegations they wished to bring to the attention of the authorities and they knew this provision was coming in in twelve months' time then they would have the opportunity to bring them forward. It would be a case of speak now or forever hold your peace.
89. Can I just go back to the business of the compensation culture. You have already said that compensation has been a driving factor and that the police very often dangle compensation in front of people as a means of encouraging them to come up with an accusation. Can we just look at the role of the solicitors in this? In your programme, David, you had a solicitor who described his relationship with the police as "symbiotic" which I found—it could have been amusing—curious. Would you like to tell us what you think he meant by that?
(Mr Rose) He was Peter Garsden of Abney Garsden McDonald, a man who, I may say, has become very wealthy—or his firm has become very wealthy—on the proceeds of these cases. It is worth bearing in mind just how much money solicitors can make from these cases. His firm co-ordinates more than 700 actions across the North West on behalf of complainants. The average complainant can get probably between £12,000 and £20,000 as an up-front payment in legal aid. Once the case starts to get a bit further down the track you could easily be talking of doubling or even tripling that. When you consider his firm acts for 350 individuals and co-ordinates a further 350, we are talking about quite big sums of money. The firm I also mentioned in Devon actually talk about the "child abuse wing" on their office which was built as an extension after these cases started coming on stream. So there is a big incentive for solicitors to act in these cases. By "symbiotic" he meant that there was—and continues to be—a two-way process of information sharing. I said to him "Are there occasions where you have referred people who come initially to you to the police?" He told me, yes, there were. In fact I found a man who had originally gone looking for money and had then gone to the police and an appointment had actually been made by Peter Garsden. And it goes the other way. The police refer clients to solicitors and they share information with solicitors. I think, in fairness, that this has begun to close down. I think the Association of Chief Police Officers has, in the last year or two—perhaps partly as a result of that programme—become alive to the dangers of the very unhealthy closeness which has existed in the past. What is clear is that, as a result of that relationship which has existed, there are many people in prison of which I believe a large number are innocent. Also, as Richard has already said, in a sense the fact that the relationship may not be quite as symbiotic now is not all that important because the awareness of the money that is to be made now and the fact that there are solicitors who do now specialise in these cases is widespread. The grapevine buzzes with news of this, especially in prison. If that symbiosis played a large role for some years in the 1990s, possibly it is not even necessary any longer.
90. The relationship is bedded in sufficiently now. You mention prisons. We have had evidence that suggests that solicitors advertise civil actions in prison, even in the prison magazine.
(Mr Rose) That is quite true.
91. Do you have any evidence of that?
(Mr Rose) I have seen an advertisement by Woollcombe Beer Watts which is acting in the 70 or 80 cases in Devon and, I believe, in at least 30 or 40 cases in South Wales. It was an advertisement placed in Inside Time the prison newspaper distributed free to all inmates, published by, I think, the Newbridge Trust. It was a boxed advert. I paraphrase, but the wording was essentially "Have you been sexually abused in care? If so, we are here to help. Contact . . ." and there was a telephone number.
92. I have strong views on these compensation things. Do you think there is anything the Government, the Lord Chancellor's Department or someone should be doing about that type of advertising? Or the Law Society? Whoever?
(Mr Rose) It seems to me that when you have deliberate touting for business of that type which has the potential to impact directly on the criminal process, it is very dangerous. I do think that it is in a very different category from the ordinary advertisement or touting for business that used to be forbidden and which is now accepted. But I think we need to look beyond just advertisements. I think we need to think very carefully about ways of, once again, separating the civil and criminal processes. I think in many of these cases, the criminal process has become contaminated by the civil process. If you speak to any of these civil solicitors they say "But we are doing nothing wrong". Just as I said earlier, that I do not think that police officers in general act in bad faith (I have given a couple of examples earlier where I think the police officers did act in bad faith) they act according to their result based culture. They conform to the way the law and the process allows them to behave. Actually solicitors do the same thing. At the moment, to put it at its bluntest, they can get away with this without contravening any rule. Yes, I think we should draw up rules which prevent this from happening.
93. Just one final point there, apart from the compensation—and obviously solicitors are doing quite nicely out of the legal aid system which is interesting in itself—are there any other factors which might lead a person to allege past abuse which we have not covered?
(Mr Rose) In my memorandum I set out one story, one case, which is sub judice at the moment. A man has been convicted and has an appeal pending. I have interviewed an individual in prison—in the company of a Member of Parliament and a solicitor—who has retracted all his allegations. I have actually met him on two separate occasions when he has given statements setting out in some detail how he came to make a false statement. His story is that he was serving a long sentence for an unrelated offence, he obviously wanted to be considered for parole and there were indications that the offence of which he has been convicted and is serving time for, may have been as a result of some form of animus against homosexuals. What happened was that the police played on this and suggested that if he was not prepared to make allegations against the former care home worker, then it would look very bad so far as the prison psychology department and the parole board were concerned because it would appear he was bottling up this past abuse; he was not disclosing what had happened. They put pressure on him that way, so money never came into it. But there was a vulnerable person at a very crucial stage of a long sentence who was induced, he says, to make a false allegation in that way.
(Mr Webster) I think that my own impression—and this was a conclusion which I reached reluctantly—is that compensation and therefore deliberate fabrication is at the root of the miscarriages of justice which we are talking about here. However, I think it is a very important question to ask if there are other motivations, as you do. I think, in addition to the kind of motivation that David is talking about, we must not forget the power of accusation. We are talking here in most cases about complainants who have had little or no power, who have always been at the receiving end of the police's domination in some cases or control who are suddenly offered the opportunity to turn the tables on the very police officers who they once may have perceived as their enemy, who can move social workers and police forces around entire counties. And the power of accusation is something whose psychological force we should not underestimate. Going with that is the attention, the very great attention which you will be given if you make a serious allegation—and the more serious the allegation the more attention that tends to bring your way—and I do not think we should underestimate the power of that for people who have often been deprived of attention and the kind of affection which we may think it is normal for people to receive. Thirdly, I consider this a very considerable motivation, and that is the idea that they are doing good. Although I would not rule out the factor that there certainly seem to be people who do this purely maliciously for their own gain, there are also people who are led to believe by the police officers who are investigating that the person against whom the police officers are soliciting allegations are guilty: They are "at it", "He is one of them". "We already have evidence that he did this, that or the other". "He is an evil person. We just need one more allegation to put that person in prison. Can you help?" Those words are the kind of exchange which may take place. I do not think that needs to be said explicitly. But very often I think that people do make entirely false allegations because they believe, wrongly in many cases, that they are helping the police to put a guilty paedophile behind bars. What they are in fact doing is putting an innocent man behind bars.
(Mr Woffinden) Just to add to the list of points we are putting together there, obviously a false allegation can be a way out of a completely unrelated criminal charge: "I did it because I was abused when I was a youngster". It is an excuse that actually carries some credibility in the current situation. Of course, other people will use the excuse of having been abused just to make sense of their screwed up, messed up lives. It actually helps to have something like that in their background that they can point to that explains why they have reached the position they are in now. Other people just refer to it as "stroking". People like the attention which comes with having made an allegation.
(Mr Rose) One further point here, an analogy is what happened recently—which illustrates the dangers here—in the Damilola Taylor case. At a fairly late stage of the investigation into the four and then two and then eventually, of course, none accused of murdering Damilola Taylor, the police went to Feltham Young Offenders Institution and trawled. They went around the wings over a number of days and said "Has anybody got anything to say about those accused of murdering Damilola Taylor?" Thirty-two people came forward and said "Yes, they confessed. We were in the tea room, in the TV room, in the shower". If these people were all telling the truth, the accused in that case were most astonishingly garrulous about this pending charge and boasting to all and sundry that they had actually killed Damilola Taylor. Eventually the police had to reject 14 of those individuals because it turned out they had actually not been on the same wing as those accused of the murder. But they had clearly taken them very seriously up until that point because they had taken detailed statements from them. I cannot remember if they called all 18 of those whose evidence was not knocked out in that way, but I think they called most, if not all. Clearly the judge and jury in that case regarded that evidence as highly unreliable, but it shows how false allegations can be generated when people who are, for one reason or another, in a vulnerable position, or a position where they can see some advantage in making false allegations to the police.
94. Mr Rose, you mentioned just now that you did not think that the police act in bad faith. One of the fundamental parts of police training is investigative skills and interviewing skills. They develop a way of telling whether somebody is telling the truth or not. Why do you think it is so very difficult in these cases? Why is it falling down?
(Mr Rose) There is a great deal of emphasis in police training on interviewing suspects, although some surveys of police interviews of suspects have suggested they are not nearly as skilful as they should be. There is far less emphasis on the interviewing of witnesses. There will be trained officers who will perhaps be skilled at taking statements from rape victims. That is one area where I think most people would agree; the police have enormously improved their practice over the last 20 years or so. But when it comes to taking statements from other kinds of witnesses or complainants, actually very little thought is given on how to do it. The problem is that in these cases, as far as there is a model of good practice, it is—as Richard has already mentioned—actually the very worst example, John Robbins of Merseyside Police, who, for a long time was held out to be the national best practice model. He toured the country talking to police training colleges, detectives and other forces who were thinking of doing this sort of inquiry and told how they had done it on Merseyside. What we know about how they did it on Merseyside is that they showed photographs to people; they told people about other people who had made allegations in an effort to generate further ones; they had this symbiotic relationship with solicitors. All of the kinds of bad practice that we have alluded to today happened on Merseyside. For a long time, the man responsible for those was the national best practice model. So may be that is part of the answer.
(Mr Webster) I think there is one more factor, which is that there is a particular quality which sexual abuse investigations have and as one or two people have observed already in asking us questions, people who genuinely have been sexually abused may very well be reluctant to make that allegation. I think that one of the dangers that police forces have slipped into without realising what is happening, is that it happens to be the case that the way in which you might sensitively seek to elicit from somebody who genuinely has been sexually abused an allegation to that effect, happens to be exactly the best way of encouraging somebody who has not been sexually abused to make an allegation to that effect. I think that when that is combined with the doctrine of delayed disclosure for which there is really no empirical evidence, namely that people who have been sexually abused are almost certainly going to delay years and years and years before they actually make that allegation, then you have a very dangerous situation indeed, because the best way of gathering genuine allegations turns out to be the most effective way of gathering large numbers of false allegations at the same time.
95. Can I first of all ask you, Mr Rose, you mentioned you felt there are many in prison who are innocent of the charges, have you been able to put any figure to that?
(Mr Rose) Any figure I could give would be an extrapolation. But based on the cases I have looked at my belief is that of the perhaps 120 former care workers convicted in these cases of sexual abuse and serving prison sentences—of sexual abuse—my guess is that we are into quite high double figures of wrongfully convicted people. My suspicion is over 50, perhaps more than that, but it can only be a guess.
96. The over 50, would that include people who may have committed some offences?
(Mr Rose) No.
97. They would be completely innocent?
(Mr Rose) Yes.
98. Can I turn to you, Mr Webster. All three of you have told us how things could be changed in the way that the police operate to safeguard their procedures more, but you have suggested in your memorandum that the law of similar fact evidence should be changed. In your view, how should the law be reformed?
(Mr Webster) I make that suggestion because I believe that that is the root cause of the problem of trawling, and that is the ease with which it is possible to put totally innocent people in prison for a long period of time. If that is indeed happening, I hope that everyone would accept that that indicates a very serious problem with the law. So far as your specific inquiry is concerned, I have already implicitly offered one answer to it, and that is by pointing towards the decision in DPP v P in 1991 which said we do not any more have to have striking similarities. We can effectively bring as many allegations as we like into court providing there is a certain level of similarity. At the same time, I think it is important to recognise this, what has made the situation with regard to similar fact evidence even more serious is that there was for a long time a presumption—which I think was a wise presumption—on the part of judges that sexual allegations, because of their prejudicial power, should generally be severed if they could not be joined together on a similar fact basis. That presumption is another safeguard which has been eroded so that now even if you do not have any similar fact basis for joining the counts together you can do so. I think that there are two things there that we need to do. We need to restore the recognition of the prejudicial nature of these kind of sexual allegations and with it the recognition that we should not expose juries to the task of having to be told by a judge: "Now you heard evidence that this man buggered that person, I want you to put that out of your mind while you decide on this allegation." Historically judges have been very sensible in realising that that is a psychologically impossible request to make of juries or anyone else. Dangerously the judiciary has gone down the road of dismantling that safeguard. I think we need to re-introduce the criterion of striking similarity because that provides a safeguard against the kind of contamination which is happening in these cases. If you get rid of that demand for striking similarity, then anyone who reads the name or hears the name of somebody who has been accused of one of these offences in a care home investigation can simply make up any allegation which can then be joined on the indictment. The third point which we need to consider very carefully is the decision in 1995 in R v H which was once again an attempt to lower still further the threshold of admissibility. What was actually said—unbelievably to my mind and that of other legal observers—is that if you are going to admit similar fact evidence it was always said that its probative power should exceed its prejudicial effect. In other words, that it should really prove that crimes had been committed and that that proof quality should be greater than its power to arouse prejudice. In 1995 the House of Lords actually said that in deciding whether its probative power exceeded its prejudicial effect the judge should assume that the allegations are true, which is clearly a nonsense. If you are assuming that the allegations are true for the purposes of assessing whether they have probative power, they will always be admitted. I think that was a very, very dangerous innovation. I am not a lawyer, and if I was the only one who had come to that conclusion I would be disturbed, but there are very experienced lawyers—Professor Colin Tapper is one of them whom I believe has submitted written evidence—who share that view. That does not complete the answer to your question, but that gives perhaps some indications.
99. Do you have a comment to make, Mr Woffinden?
(Mr Woffinden) I just wanted to show a cutting from the Sunday Telegraph that follows on from this which says "Tolkein's son is questioned over child sex allegations". As we know, this is not one of the racier tabloids, this is the Sunday Telegraph, one of the most responsible newspapers and it has very good lawyers. So, at the moment there is absolutely nothing wrong with headlines like this, very prominently placed in newspapers. The reason for this is that sub judice laws do not come backwards, as it were, they kick in from the moment someone is charged, but not prior to that. What has happened with trawling operations throughout the country is that while police have gone about gathering allegations about somebody, the press has been entirely free to write about what has been going on. There is nothing at all to prevent them doing that. There are clearly two things wrong with headlines like this. The first is the power of innuendo and the fact that once this is written then everyone begins to believe it. The second, of course, is the part it is going to play in the gathering of possibly potentially false allegations. This is the Sunday Telegraph, but we must bear in mind what has happened throughout the country with the local press when all of these operations have been going on in communities up and down the country and, as I say, journalists have been free to report them.
4 Note by witness: Since the Indictments Act of 1915 it has been possible to join together on the same indictment charges for different offences of a similar character and to hear these charges in a single trial. This can be done even where the different counts are not admissible on a similar fact basis. Judges, however, have always had a discretionary power to direct separate trials for different offences where they are `of the opinion that a person charged may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment.' Throughout most of the twentieth century it was widely held that, because of the highly prejudicial nature of sexual allegations, unless sexual offences could be joined on a similar fact basis they should be severed and heard in different trials. This presumption, which was long considered a vital safeguard for those falsely accused, has now been eroded. A key judgment in this respect was that given in R v Christou (1996). Back
Select Committee on Home Affairs Minutes of Evidence
Examination of Witnesses (Questions 100-120)
MR DAVID ROSE, MR RICHARD WEBSTER AND MR BOB WOFFINDEN
TUESDAY 14 MAY 2002
100. We have heard about the police measures against those who are facing accusations. Do you have any evidence of potential defence witnesses or character witnesses also having it intimated to them that if they persist with their speaking up on behalf of the accused then they themselves may be facing charges? Have you come across that yet?
(Mr Webster) Yes. There are two cases, one of which I can bring to mind, which certainly took place in Yorkshire where the Director of Social Services became aware that a trawling operation was going on in relation a former particular care worker and that a solicitor was seeking to interview potential defence witnesses. A letter was sent out saying that anyone should not immediately talk to this solicitor but should first of all get in contact with social services and get clearance, and so on. There was a clear, not very well veiled, request that no help should be given to this defendant. There are other cases as well where I have come across some evidence that that kind of practice of attempting to discourage defence witnesses has been engaged in by the police. I think it is fair to say I have not myself come across evidence that that is a particularly widespread practice, but I think we need to bear in mind of course that once again it may be superfluous for police forces to take that line because there are very powerful disincentives to coming into court and giving evidence on behalf of people who are accused of grotesque acts of paedophilia.
101. We heard earlier that a senior police officer said he had forensic evidence and he had not. Could I ask the other two gentlemen if you have heard about the situation I described where the police travel across the country to a potential defence character witness and say, "If you speak up for your former colleague you will face similar charges".
(Mr Rose) Not as crudely as that, but what I have come across is this: somebody comes forward as a defence witness and goes on the list as part of the defence disclosure that they are going to give evidence, and then is immediately accused and interviewed and becomes a suspect. In the case I am thinking of, that then hung over that individual for about another two years before eventually the police took no further action. The effect was that when that person gave evidence in court—which bravely he did do—that was hanging over him. It meant that his only legal advice was to be very, very careful what he was going to say. I think it is fair to say that that partially disabled him as a defence witness. He was not just a character witness, he was a witness who was able to say (in fact it was in the Shuttleworth case): "One of these allegations can't be true because it is alleged that a sexual assault took place in the swimming pool area. I had the keys to the swimming pool area. They were very tightly controlled for safety reasons." It is impossible that this child, as he said, could have got into the swimming pool block with his own key, as he claimed, where Shuttleworth met him for sex sessions. I think that certainly had an impact on Shuttleworth's trial.
(Mr Woffinden) Could I answer your point in a slightly different way. We have actually wondered whether the way in which trawling operations are carried out at the moment is actually legal under the Criminal Procedure and Investigations Act 1996 because, as you know, this was the Act which introduced fresh disclosure provisions which meant the police were able to withhold material from the defence. In return, responsibilities were placed on the police to investigate avenues of defence thoroughly because it was understood that the defence lawyers were no longer going to have the opportunity to investigate them as thoroughly if they were not going to have access to all the available information. An onus was placed on them to investigate defence lines thoroughly. What we find in these cases quite often is that if, in the course of a trawling investigation, police go either to former residents or to former staff members and they say, "Was anything going on while you were there?" and they say, "No", then the police walk away, they are not interested. Whereas the defence would be very interested to know, because that enables them to build a comprehensive picture of what is going on. So, in fact, the potential statements of people who are saying "Nothing at all happened while I was there" are vital to this investigation and they are very rarely—if ever—reaching the defence.
(Mr Webster) One other thing is that in North Wales, anyone who made a very positive statement saying that Bryn Estyn was "a wonderful place"—and many people did, I do not want you to think I am just inventing an example—and "I was looked after very well there by care workers" that statement was classified by the North Wales police as a negative statement because it was said to contain no allegation. Just to come back to your point, I think North Wales is a very good example of one of the things that does happen in these care home investigations which effectively removes potential defence witnesses from the court altogether. What happened in North Wales, as people will be aware, was that there were a huge number of allegations which were collected by the largest trawling operation ever mounted in the British Isles at that time (that was begun in 1991). Eventually, by the time the Tribunal was convened, some 650 people had made allegations against no fewer than 365 people, the majority of whom were care workers, but not all. At the end of the first stage of the North Wales investigation, I think I am right in saying, there was a dawn raid in which 16 former members of staff at Bryn Estyn—where there was supposedly a paedophile ring which did not, of course, exist—were arrested. What that meant, to give but one example, is that the deputy head of Bryn Estyn at that point was facing an allegation of buggery (among other allegations) from a complainant who said that he had actually gone up to a care worker—a care worker who was held in very high regard by people at Bryn Estyn—and had said that he had been buggered by the deputy head of Bryn Estyn, Peter Howarth. Of course, the obvious avenue to go down for the defence was to call this care worker and say, "Did this in fact happen?" They were unable to do so in practice because that care worker had been arrested, allegations having been made against him of an equally serious nature, allegations which were entirely false and he was subsequently acquitted by a jury after ten minutes. I think that this gives an example of what is happening in too many of these cases where we are demonising not simply care workers—or individual care workers—but we are demonising entire institutions (Bryn Estyn being a classic case in point) to the extent that we are effectively disqualifying the testimony of the colleagues of the people who end up being convicted.
Chairman: In the final minutes of this session, what I would like to concentrate on is what changes need to be made in the future. I think we have established there is a problem. What we now need to focus on is how to deal with it.
102. I am grateful for that intervention, Chairman, because most of my line of questioning has been covered by other members of the Committee. You seem to be describing a modern version of Salem.
(Mr Webster) I think that is a very reasonable comparison, and I think we should recognise that there are historical continuities. I think the point I would make with regard to that is if we talk about historical witch-hunts then one of the things we have to bear in mind is the extent to which they were driven forward by official findings, by judges and magistrates and by official inquiries. One of the things I think is very important to bear in mind is that yes, of course, we have had a tribunal of inquiry into events in North Wales. As I said, some 365 people were originally accused in North Wales. There were 650 people who made such complaints. It is something we ought to bear in mind that only, I think, 80 of those 365 people who were accused actually gave evidence to the North Wales Tribunal. Some 500 of those who made complaints did not appear before the tribunal. What I am pointing to is a very dangerous judicial situation where a tribunal of inquiry sat and pronounced upon what it claimed had happened without examining the evidence carefully and where the chairman of the tribunal did say that it would be quite unrealistic—and it would have been far too expensive—for the tribunal to consider in detail every single allegation. So I would say that there was no inquiry.
Chairman: We have been talking for just over two hours. We know there is a problem. We want to focus on what the solutions are, which we have touched on, it is quite true, but let us do that please.
103. Taking the firm direction from the Chair, individually and collectively the three of you have, I believe, covered the need to take steps and in the written evidence you have given us, that the police and CPS should test the veracity of the allegations. You have mentioned introducing a time limit on the prosecution of cases, and certainly been very critical of solicitors advertising for compensation cases to come forward. In summary, are there any other measures that you would like to see adopted to minimise the risks of generating unreliable evidence in such cases? Over the last two hours you have explored and answered colleagues' questions on these matters, but the Chairman is anxious that we now have on record the sort of recommendations on the way forward so that we do not have these problems in future.
(Mr Woffinden) We have already mentioned the taping of interviews with potential complainants. We have also mentioned that the CPS might like to consider as a third criteria for prosecution, that they are sure that a crime has been committed. I think at the moment they only have one test which is whether or not they are going to get a conviction. In these kind of cases they almost certainly are because of the nature of the evidence and the power of the accusation. The idea that it is in the public interest hardly serves as a proper test because if it is a case like this they are bound to take it forward. If, on the other hand they have a mass of evidence, some of which suggests there has been something taking place and a lot of which suggests something may not have been taking place, then that provides them with a different situation. We have also suggested that there should be a time limit on bringing complaints. One thing we have not covered, I do not think, is that I believe there should be a time limit on the promise of anonymity because what happens at the moment is that complainants/victims can bring forward complaints with total impunity because they know that nothing is ever going to happen, their name is not going to be revealed, whereas it seems to me there should be a time limit on the promise of anonymity, say three years again, and this could apply to rape victims and any kind of sexual assault case. If a case is three years old then the press is not going to be interested. On the other hand, if there is a reason for continuing interest then it is going to be because of public concern about that case. It strikes me that one should then be able to report what is happening properly, and it may be that there are complainants in these sort of care home cases who have made complaints in a number of cases against a number of care workers and one may wish to bring these together. Obviously the usual defamation laws will continue to apply.
(Mr Rose) I endorse everything Bob says. I just really want to add one thing which is, I have a sense that the tide is beginning to turn in this area, that what was an extremely lonely battle when Richard first got involved in the mid-1990s is now slightly less lonely, that there is, as the convening of this inquiry suggests, a broader appreciation that there may be a number of people who have been wrongfully convicted and important things have to be done to improve practice in this area. What concerns me is that if we do arrive at a situation where the way the police work is reformed and the law is changed so that the effects of the cases of P and H are reversed, that may still leave perhaps more than 50 people in prison wrongfully convicted with no obvious way of having their convictions overturned. I think that if, in the end, Parliament and other institutions which operate in this area do form a view that the process which did operate, particularly in the 1990s, has produced many flawed convictions and was inherently dangerous, some means must be devised to look again at those cases, and I think something beyond the usual reference to the CCRC. The CCRC is not a terribly well-resourced body; it staggers under a huge case load, and especially in cases where people may have come to the end of sentences, it does not go very quickly. I think there are a substantial number of men whose lives have been shattered, to an extent to which most of us find it very difficult to comprehend, and if we do succeed eventually in enacting the kind of reforms that we are talking about today, then they have to have some way of finding redress before they die.
104. I think the biggest single thing we can do is take compensation out of the equation.
(Mr Webster) I was going to raise that point, but I do not want to do so before agreeing absolutely with what David has just said. I think the really serious problem that we face now—we have been talking a lot about the problems with police methods of investigation; we have talked a lot about the deficiencies of the Crown Courts who are finding people guilty—is that these convictions are extraordinarily difficult to overturn in the appeal court. What that means, as David is pointing out, is not simply that individuals have had their lives destroyed, but their families as well and an entire circle of friends. I think we should recognise—I think it is very important that this Committee should recognise—the degree of not simply alienation and disaffection, but total collapse of faith there is—
105. You are going back to the problems again. I would like to focus on solutions.
(Mr Webster) Can I come back to compensation then. I think that we must not underestimate the extent to which the fuel of this machine for creating miscarriages of justice, or the lubricant, is compensation. Bob has already put on the table a proposal that the CPS should not take cases forward unless there is absolutely convincing evidence that a crime has taken place. The problem with the Criminal Injuries Compensation Authority is, of course, that they do pay out in cases where you cannot prove that a crime has taken place. I would question the wisdom altogether of the system where we have compensation. I believe I am right in saying that Professor Sidney Brandon of the Royal College of Psychiatrists, who once had an important role in ChildLine, opposed the introduction of compensation for allegations of abuse because, I believe, he foresaw that it would eventually lead to a situation where those who genuinely have been abused would be disbelieved because we have put too powerful incentives in place to encourage people to make false allegations.
106. You would remove compensation from this category of cases, would you?
(Mr Webster) I think that is something that we have got to consider. People may say that that is an extreme proposal. I would say, on the contrary. I think it is a very moderate proposal. You might say you are asking for the moon. What I would point out is that those who have campaigned to lower the threshold of evidence to get convictions have been asking for the moon for a very long time now, since the beginning of the 20th century and have very nearly succeeded in getting it. I think we need to realise the extreme situation which we have now got into, so that we need to consider seriously what I would characterise as a moderate proposal, namely that the CICA should not pay compensation on crimes whose reality cannot be proved.
107. Mr Rose?
(Mr Rose) On this compensation point, I think a problem bigger than the CICA problem is the question of civil actions, and the rewards are so much bigger, of course. Top whack, say you have been buggered in care, you might get £18,000 or £19,000 from the CICA. You could expect a sum five times as great, or even more, if you take a civil action against the authority or charity which ran the home. One of the features which makes the situation particularly pernicious is the way that these actions are run. They are run as class actions. They are defended usually by insurers. In fact, they are not defended at all. In the civil process there is no picking through of an individual's allegations' merits. The cases are considered in blocks of 30, 40 or, in the case of the North West, 700 at a time. Basically what the whole thing comes down to is an argument between highly paid lawyers as to exactly how this business is going to be settled. The facts just do not enter into it. We have already, in very different fields in this country, seen the growth of personal injury legal actions with, I would suggest, pernicious effects that are way beyond this Committee. But here they are perhaps seen at their most pernicious. If we are going to tackle this issue of compensation, we have to look at the way the class actions are run, the whole notion of class actions. I think perhaps it would be unjust to rule out compensation altogether. The genuine victim of abuse, one could cogently argue, deserves, if he feels that would make things better if you like, a degree of compensation. But, I think, what has to be established is that cases have to be fought on an individual basis, and the civil court has to consider the details of the allegations in each case.
108. Mr Woffinden, do you want to add to that?
(Mr Woffinden) I think I would agree with David, that it seems unjust to rule it out altogether.
109. Chairman, I want to say how compelling and powerful the evidence from all three witnesses has been. Personally I hope it does result in a change in law. I was then going to go on to ask what hope we could put out to the large number of probably innocent people languishing in jails. Mr Rose has given us a pointer in that direction. Do the other witnesses have any views specifically to help those wrongfully convicted and in jail at the moment? Or, at a lesser level, means of altering and reforming the appeals procedure to give them some hope?
(Mr Woffinden) This comes on to a little point of mine which is concerned with miscarriages of justice in general. Obviously we have a problem in this country because we are the only country which has set up a body to deal with things that go wrong in the judicial system. As you will be aware, the Criminal Cases Review Commission refers cases to appeal if there is a real possibility of the appeal court upholding the appeal. I think that is the wrong test; I have always thought that. What the Act should actually say is that there is a real possibility that justice has miscarried. At the moment we are in a rather daft situation where all the time the CCRC is having to second-guess what the appeal court thinks. I think, first of all, that is an absurd situation. Secondly, it is actually protecting the appeal court, which as we know, can reach some astonishing judgements in some cases. I do believe that a lot of cases are dismissed at appeal which should actually be upheld at appeal. If the CCRC had this better test, a real possibility that justice has miscarried, then at least we would know if there were things wrong that we should be looking at within the Court of Appeal. I agree that with the separation of powers it is perhaps not Parliament's function to do that, but certainly the country as a whole should be aware that maybe the appeal court is not quite the body we would like it to be.
110. Just briefly, there is another group of victims whose lives are shattered, and those are the people who are accused and found not guilty. The whole process takes so long that they are very rarely able to pick up their lives where they left off. They lose jobs, often homes, families break down, and they are equally victims in this as well.
(Mr Webster) On the question of appeals, I think one point which does need to be made is that of course we all know that in order to win an appeal, in order to overturn a conviction, you have to introduce new evidence. One of the problems about these cases—I am looking at the moment into a case where allegations go back 30 years, where witnesses are dead, where there is no documentation—is that it is peculiarly difficult to obtain new evidence. That means that we have actually handicapped the very people who most need to be advantaged in the appeal court system. I think that the appeal courts themselves need to recognise that. I would endorse David's suggestion that we need to have some body which can go beyond CCRC in looking at these cases and addressing the miscarriages of justice which have undoubtedly taken place.
111. It has taken years to get the CCRC set up and now you want another body.
(Mr Woffinden) If you had a different test, you see, it would be able to refer these cases that it was concerned about. The point is that at the moment it is not referring these cases, quite legitimately, because it knows the Court of Appeal is going to do nothing about it.
(Mr Webster) I do not want to suggest that it has achieved nothing. I think it is a very important achievement.
112. It has a 69 per cent success rate in cases which have been referred to it.
(Mr Webster) Yes, but the timetable is an extraordinarily difficult one because the waiting period in itself is incredibly slow.
113. I think we should just concentrate on reforming it and improving it, rather than setting up a new body.
(Mr Webster) That may be the solution. I think we have to recognise there is a problem, that is the important thing.
114. Like everyone else who sits on Select Committees, I hope I have an open mind, but you will appreciate that this is the first session of our inquiry and we will no doubt hear a very different version of events. I am sure you will bear that very much in mind.
(Mr Webster) I am sure we will bear it in mind.
115. Thank you very much for that gentlemen, it has really been a most helpful session and you really have succeeded in establishing very graphically the kind of issues we have to deal with in this case. I have one final matter I would like to pursue with Mr Rose, please. Mr Rose, have you seen the transcript of Sir David Phillip's appearance before this Committee on Thursday 7 February, and particularly the first page of the transcript?
(Mr Rose) I have, yes.
116. You will have noticed that I asked him whether he had ever asserted that people whose convictions were quashed in the Birmingham, Guildford and other cases were really all guilty, despite the findings of the courts. He could not recall ever having such conversation. He said he had talked about it in general terms but he could not recall ever having such a conversation. Can you help us with that?
(Mr Rose) Yes, he expressed such a view to me in the early part of 1996. I was invited to present a paper at an Association of Chief Police Officers conference at Warwick University. I stayed the night and attended the formal dinner there. I later joined Sir David—Mr Phillips as he then was—and some of his colleagues in the bar quite late in the evening. It was probably after midnight when I found myself talking to Mr Phillips alone at the bar. He launched what I can only describe as an intemperate tirade against journalists such as myself who had concerned themselves with investigating miscarriages of justice and expressed in very forthright terms his view that the Birmingham Six were all guilty. He added that as a detective with 25 years' experience in the North West he had never known a case where a confession by a suspect had been co-erced or in any other way improperly produced.
117. Did he suggest that any evidence that has not so far come to light in the Birmingham case existed? Of which he was aware and perhaps the outside world was not?
(Mr Rose) He did not produce any rabbit out of the hat of that kind, no. He just expressed that view very strongly.
118. Did you challenge it?
(Mr Rose) Yes, I challenged it very strongly and I said that it seemed to me that the Court of Appeal had rightly come to that conclusion and, indeed, Lord Lane's Court of Appeal should have done so in 1987 when it heard the appeal before. There was a wealth of evidence to suggest the Birmingham Six were innocent and, indeed, that other individuals were probably guilty. The same went for some of the other miscarriages of justice which he also alluded to.
119. Did he mention any other by name?
(Mr Rose) If my memory serves me, he alluded to Judith Ward, the M62 Coach Bomb case. He certainly alluded to the Tottenham Three case in which I personally played quite a substantial role. He expressed the view that Winston Silcott, once alleged to be the ring leader of the murder of PC Blakelock, had also been guilty.
120. Just to be clear, he was not suggesting that, as a result of his involvement in the Devon and Cornwall investigation, he knew things that the outside world did not?
(Mr Rose) If my memory serves me, he referred to his role in the Devon and Cornwall investigation, but in a very general way. It was not: "If you knew what I knew, I can tell you about witness X". It was more that he had formed that view as an officer in that constabulary.
Chairman: Thank you very much. The session is closed.