Select Committee on Home Affairs Fourth Report
LIST OF WITNESSES
Tuesday 26 February 2002
Mr David Calvert-Smith, QC, Director of Public Prosecutions, Mr Richard Foster, Chief Executive, and Mr Steve Przybylski, Head of Resources and Performance Division, Crown Prosecution Service
Tuesday 30 April 2002
Sir Frederick Crawford, Chairman, Ms Jacky Courtney, Chief Executive, Dr James MacKeith, Commission Member, and Mr David Jessel, Commission Member, Criminal Cases Review Commission
Tuesday 14 May 2002
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
Tuesday 21 May 2002
Mr Phil Craig, Mr Phil Fiddler, Mr Rory O'Brien, Chairman, Falsely Accused Carers and Teachers (FACT), and Dr Christopher Reeves
Mr Chris Saltrese, Solicitor, Ms Linzi McDonald, Solicitor, Kingsley Napley, and Mr Neil O'May, Solicitor, Bindman & Partners
Tuesday 11 June 2002
Mr Howard Webber, Chief Executive, Criminal Injuries Compensation Authority (CICA)
Ev 49 and 76
Mr Peter Garsden, Solicitor, Abney Garsden McDonald, and Founder Member, Association of Child Abuse Lawyers, and Ms Frances Swaine, Solicitor, Leigh Day & Co, and Executive Committee Member, Association of Personal Injury
Tuesday 18 June 2002
Mr Terence Grange, Chief Constable, Dyfed-Powys Police, Mr Gareth Tinnuche, Detective Chief Inspector, South Wales Police, Mr Mick Holland, Head of Administration of Justice, Cheshire Constabulary, Mr Mike Langdon, Chief Superintendent, Merseyside Police, and Mr Nigel Duggan, Liaison Consultant, Operation Goldfinch
Thursday 20 June 2002
Mrs Claire Curtis-Thomas, MP, Chairman of the All Party Group for Abuse Investigations
Tuesday 25 June 2002
Mr Phil Frampton, National Chair, Care Leavers Association, Mr Matthew Byrne, Project Co-ordinator, Fire in Ice, Teresa Reynolds, Head of Policy, Victim Support, and Kathryn Stone, Director, Voice UK
Thursday 11 July 2002
Mr Andrew Parker, Detective Inspector, Metropolitan Police, Professor Gisli Gudjonsson, Professor of Forensic Psychology, Institute of Psychiatry, King's College London, Dr Janet Boakes, Consultant Psychiatrist, and Dr William Thompson, Forensic Criminologist, Lecturer in Human Sexualities, Reading University
Home Affairs - Fourth Report
Here you can browse the report together with the Proceedings of the Committee. The published report was ordered by the House of Commons to be printed 22 October 2002.
Terms of Reference
A definition of trawling
The dangers of trawling for evidence
The experience of the accused: case examples
The conduct of police investigations
Approaching potential complainants and other witnesses
Interviewing potential complainants and other witnesses
Following up other lines of inquiry
The Senior Investigating Officers' Handbook
Victim support services
PROSECUTION AND TRIAL
The role of the Crown Prosecution Service
The difficulties faced by the defendant
Options for reform
A time limit on prosecutions of offences relating to child abuse
Safeguards against abuse of process
Reform of similar fact evidence, joinder and severance
Extension of anonymity to the accused
THE 'COMPENSATION FACTOR'
The risks of inducing false allegations
The working relationship between personal injury solicitors and the police
Civil compensation and the Criminal Injuries Compensation Scheme
Other options for reform
MISCARRIAGES OF JUSTICE
The Criminal Cases Review Commission
SUMMARY OF KEY CONCLUSIONS AND RECOMMENDATIONS
PROCEEDINGS OF THE COMMITTEE RELATING TO THE REPORT
LISTS OF WITNESSES
MINUTES OF EVIDENCE - VOLUME I (HC 836-I)
Tuesday 26 February 2002
Tuesday 30 April 2002
Tuesday 14 May 2002
Tuesday 21 May 2002
Tuesday 11 June 2002
Tuesday 18 June 2002
Thursday 20 June 2002
Tuesday 25 June 2002
Thursday 11 July 2002
LIST OF SUPPLEMENTARY NOTES SUBMITTED BY WITNESSES (FOLLOWING ORAL EVIDENCE SESSIONS)
LIST OF MEMORANDA
LIST OF UNPRINTED MEMORANDA
11. Police methods of 'trawling' for evidence lie at the root of the concern, expressed to us, that trawling produces unreliable evidence.
A definition of 'trawling'
12. 'Trawling' is not a technical term, rather it is a convenient label used to describe the police practice of making unsolicited approaches to former residents from many of the institutions under investigation. In any investigation, including those into past institutional abuse, the police will contact persons named by the complainant in his or her statement of complaint. Trawling, as we understand it, refers to the process when the police go one step further and contact potential witnesses who have not been named or even mentioned. In a trawl, the police will contact all, or a proportion of, those who were resident at the institution under investigation during the period when the abuse was alleged to have occurred.
13. The term 'trawling' appears to have become associated with criticism of these investigations. As such, it is not favoured by the police; Chief Superintendent Mike Langdon explained to us that they preferred the word 'dip sampling'. For the sake of convenience, we have used 'trawling'—as we have defined it—rather than 'dip sampling'.
The dangers of trawling for evidence
14. The concerns about trawling were shared by a number of those who gave evidence to this inquiry. David Rose, Special Investigations Reporter for The Observer, told us that:
"The problem with trawling as it is now carried out is that it is an absolutely unregulated process and it is a process which...is almost tailor-made to generate false allegations".
15. We sought views on the scale of the problem. David Rose guessed that 50 or more of the 120 or so former care workers convicted of sexual abuse had been wrongfully convicted. Chris Saltrese, a criminal defence solicitor specialising in these cases, estimated that over 100 had been wrongly convicted. Richard Webster, who singled out South Wales as the home to "one of the most dangerous trawling operations", said that in excess of 80 or 90 per cent of the 581 or so suspects trawled by South Wales Police were "completely innocent". Claire Curtis-Thomas MP, Chair of the All Party Group on Abuse Investigations, told us that she had 20 cases in which, she believed, there was "an overt indication that there have been significant abuses of the criminal justice system". Although she did not speculate about the statistics, she said that she was convinced that miscarriages of justice had occurred in these investigations.
The experience of the accused: case examples
16. The consequences of a false allegation—for both the accused and their families—can be devastating. In the worst case scenario the accused is convicted and sentenced to a lengthy term in prison. However, we have received numerous letters which reflect the damage that can also be caused to those who never face prosecution and those acquitted at trial. We have also taken oral evidence from four individuals who were accused of abuse. Two had been acquitted (one by a jury, the other on the judge's direction), the charges against the third had been dropped at the eleventh hour and in the fourth case, the conviction was quashed following a speedy appeal.
17. We are aware, from the experiences recounted to us, that the accused may have the suspicion hanging over him for many months, without even knowing the details of the allegation(s) against him. He may be suspended from his employment for a lengthy period, sometimes years, whilst the investigation is carried out. During the investigation, his case may be subject to local, or even national, publicity. The stain on his character may be permanent and he may be prevented from returning to his employment, even after an acquittal.
18. We set out five case examples, drawn from the large number of letters we have received, which are fairly typical of the problems faced by many. References to names and places have been removed to avoid identification of the individual cases. This is partly to avoid straying into sub judice territory. However, we also wish to avoid making any judgments on the guilt or innocence of any individual who claims to have been falsely accused. As we have not investigated any individual case, we are not in a position to determine the facts. These cases are cited simply as examples of what is said to be happening around the country in investigations of this kind.
Former staff member (female) accused by former resident (female) of physical abuse in the early 1980s. She was informed that an allegation had been made when her employment duties were restricted in early 2001. She was interviewed in the early autumn of that year and no further action was taken.
"The whole experience was horrendous. My professional reputation is tarnished and my private life has been turned upside down. The police left me in limbo from March to September without even knowing what I was supposed to have done. After the police decided not to proceed with any charges against me they were also unable to provide any paperwork for my employers as to the nature of their investigations so what did they have to go on in the first place apart from one child making one unsubstantiated claim that I had punched her three times [in the early 1980s]."
Former staff member (male) prosecuted on 83 counts of abuse, including sexual abuse, of children at the home where he previously worked. At trial, the judge directed the jury to acquit him on 77 counts and permanently stayed the remaining six counts on the grounds that he could not receive a fair trial.
"The vast majority of complaints made against me were dated some years after the inquiry began. The witnesses' description of me and their accusations were remarkably similar in language, suggesting that the "trawling method" was supplemented by leading questions during interviews with former residents.
The documentation from which my defence team proved my innocence was available to Operation [X] for at least two possibly three years. Even so, Operation [X] had obviously not studied the documents. There were apparent contradictions in witnesses' statements. One complainant described in depth an incident involving another member of staff, accusing him of sexual abuse. By checking dates, it was evident that he had lied in his statement, a matter the investigating officers from Operation [X] were aware of when they interviewed me."
Former staff member (male) was convicted, following a trial, of abuse, committed against nine (then) children in the mid 1980s. He was sentenced to 10 years' imprisonment. His brother told us:
"The complainant who made the original comment that led to the trawling operation withdrew it, saying that it was a joke intended to get him (my brother) into trouble. The charges related to events that allegedly took place twelve years previously...
The case was conducted against the background of a concerted press campaign against child abuse, which the jury could not fail to be aware of. Most, if not all, of the nine complainants had criminal records...
My brother had a promising career ahead of him as a teacher and was also a trustee of a prominent children's charity...All that is now lost.
My brother maintained his innocence throughout both the trial and the subsequent period in prison. As a direct result of his denial of guilt, he has served a longer period in prison that might otherwise have been the case. Attendance of rehabilitation courses for sex offenders, which require an acknowledgement of guilt, would have been favourably regarded in consideration for parole earlier in his period of imprisonment."
Former care worker (male) was charged with 57 counts of child abuse offences, alleged to have been committed at the school in which he worked during the 1970s. He was tried on 27 of those counts. During the trial, the Judge directed the jury to return not guilty verdicts on 21 counts and the jury found him not guilty on the remaining counts. A defence witness at the trial told us:
"I worked at [the school], the focus of Operation [X], in the 1970's, which was the time being investigated. It was a caring and supportive environment with staff of high personal and professional integrity. The Secure Unit, whose staff were the subjects of this investigation, housed some of the most disturbed and damaged people in the country. Some of whom, despite everybody's best endeavours, have ended up as permanent residents in Her Majesty's prisons. The stories of a few of these residents, none of whom made accusations against [the defendant] on their first visit to the police, and one of whom admitted in a court of law that he had been lying for the compensation, were believed above high quality professionals and hundreds of staff, ex-residents and friends of the school who provided positive statements to the police about their treatment, and about [the defendant]...
[The defendant] has been the subject of a vindictive and destructive campaign on the basis of a single accusation, for which he had to wait fifteen months to be formally accused. The subject of a 'trawling' investigation where none of his accusers mentioned his name on the first visit from the police, and where statements from the accusers reveal that his name was given to them by the police themselves. He has suffered the indignity of three days of interrogation in a police cell, his house being searched and his property removed, three years of suspension from work and his 12 years old daughter being interviewed by the child protection squad. He had to endure a five week trial, his friends and family hearing these false allegations which culminated in the judge stating that he had heard no evidence of anything untoward happening at all. Some members of the jury waited behind to shake his hand after the trial and said how sorry they were that he had been put through this...
He has still not been offered his job back and is now under investigation from [the local authority] for accusations that have proven to be unfounded in a court of law".
The Crown Prosecution Service commented that as the author of the letter to us was a defence witness, she was not allowed to sit in court prior to giving evidence and her account, therefore, must be second-hand. They also said:
"one of the prosecution witnesses agreed to a suggestion made repeatedly by the defence barrister that he had made up the allegations in the hope of obtaining compensation...The witness concerned said to the police, after leaving the witness stand, that after a day and a half of being cross-examined he was willing to say anything to get away. He went on to confirm that the allegations he had made were the truth."
A husband and wife worked at the same children's institution in the late 1960s/early 1970s. In 2001, the husband was convicted of a number of offences relating to abuse during his time at the institution. The wife told us of her husband's ordeal:
"Some time in 1998 [the police] instigated Operation [X], investigating the possibility of abuse in Local Authority establishments. In September 1999 my husband was arrested and charged with a number of offences alleged to have been committed between 1963 and 1974. It became apparent that the police were looking for evidence of a paedophile ring and stripped our home of videos, CDs, personal documents, telephone books, address books, photographs, computer and even went over to Germany to confiscate our daughter's computer previously owned by my husband.
During his arrest my husband of sixty-seven years of age was treated like a dangerous criminal...
By the time of his trial at [the local] Crown Court in December 2001 some of the complaints were dropped and additional ones added. After a trial of six weeks he was sentenced to 11 years in prison. No evidence of any kind, other than the testimony of the complainants was offered...
Over four thousand children went through the establishment, approximately 400 past residents were sought by the police and invited to make complaints with the result that, to my knowledge, three other former members of staff were also the subject of allegations but because there was insufficient 'volume' they were not charged but advised if further allegations were forthcoming they would be re-interviewed. Not only has this caused fear and distress to the three concerned, it was also instrumental in ensuring that they were not called as defence witnesses who could themselves be discredited. Not only that, but we were also hampered by Court Orders made by the Judge and fetters placed upon us denying us access to potential defence witnesses or having contact to the Registers of the Home.
To our knowledge no complainant had made any allegations prior to the trawling investigation, it was only after the second or third visit by the police that allegations were made, in fact many stated that they had no complaints whatsoever of their treatment whilst at [the establishment]".
19. Although Terence Grange, the Chief Constable of Dyfed-Powys Police who leads on child protection matters, accepted the possibility that some miscarriages of justice may have occurred, he also said that:
"The majority [of complaints] are not fabricated and are not exaggerated in my view. The vast majority are people alleging that they were physically attacked, as I understand it. What we describe as physical abuse these days might have been described as reasonable...in the 1970s and they are not prosecuted".
20. The police appeared confident that a false allegation would be identified during an investigation or at trial. Indeed, this has already happened in a small number of cases and at least three individuals have been prosecuted for perverting the course of justice, on the basis of deliberate fabrication.
21. We also heard evidence from victim support organisations. They supported the view that most, if not all, allegations of past child abuse are genuine. Matthew Byrne, Project Co-ordinator of Fire in Ice, argued that any 'lies' would be uncovered through cross-examination at trial. Phil Frampton, National Chair of the Care Leavers Association, said that, whilst there may be examples of wrongful convictions, "there are thousands more out there who should be in prison".
22. We recognise that, whilst on the one hand it is difficult to establish the number of false allegations, on the other, it is hard to gauge the true scale of child abuse. This is partly because incidents of abuse often go unreported and partly due to varying definitions of abuse. In Forgotten Children, Christian Wolmar reviews some of the statistical research on institutional abuse. Referring to a survey by the NSPCC, he states:
"In 1992, the NSPCC undertook a survey of abuse in residential care and schools, commenting that 'no systematic study into institutional abuse has been conducted in the United Kingdom'. The NSPCC contacted all their projects to ask for reports of institutional abuse which had been referred to them and it uncovered 84 children (53 boys and 31 girls) who had been abused in 43 different institutional settings—69 of these cases involved sexual abuse.
...no conclusions can be drawn about the prevalence nationally of the phenomenon as the sample was self-selecting and any extrapolation would be tendentious. However, the NSPCC's evidence suggests a widespread problem which attracted scant attention".
The conduct of police investigations
23. Some of the witnesses to this inquiry have objected to the fact that trawling is carried out at all. Neil O'May, a partner solicitor of Bindman & Partners, suggested that it should be prohibited. He, along with two other experienced defence solicitors who gave evidence, said that he could not conceive of any circumstances in which trawling of this kind would be a legitimate method of investigation.
24. We recognise that in the absence of medical or forensic evidence, the police will inevitably be reliant on the testimony of the complainant and other witnesses testimony. We were told that the decision to conduct a trawl would be taken on the basis of the volume of allegations which had already accumulated, rather than as an immediate response to the first allegation. When asked whether trawling was at all necessary in these investigations, Chief Constable Terence Grange said:
"What you have...is one or more people making an allegation that they were abused physically or sexually at a given time in a given care home. The witnesses for or against that proposition are the people who were in the home at that time, and you have to, because you are required to do so—it is our duty as police officers—explore with those witnesses what they know, and the fact is that as those explorations have taken place, some have made further allegations against the individual concerned and some have made allegations against others. I am not sure there is another way that you could successfully, properly, with due regard for everybody involved, investigate what is being alleged".
25. The NSPCC, an organisation with direct involvement in some of these investigations, told us:
"Child protection investigations involving abuse in children's homes may involve multiple abusers and correspondingly high numbers of victims...When a child or young person...gives clear evidence of abuse perpetrated by a residential care professional, it is reasonable to seek corroboration from other potential witnesses who were resident within a defined time period around events that are already known".
26. Although we hold some reservations about the conduct of police trawls, we do not accept that trawling should be prohibited. The police have a statutory duty to investigate allegations of child abuse, regardless of whether they relate to contemporary or past events. In general, the longer the delay between the alleged offence and the allegation being made, the more difficult the investigation. We believe that senior officers should retain their discretion to determine the nature and scale of an investigation, particularly in complex investigations into past institutional abuse. In every case, however, there should be clear justification for the decision to launch a trawl.
27. We have found that most of the concerns about trawling relate to the way that is conducted, rather than trawling itself. In particular, we have heard criticisms of the practices, which are said to be used by the police, when:
(a) approaching potential complainants and other witnesses
(b) interviewing potential complainants and other witnesses, and
(c) following up other lines of inquiry (i.e., to test the credibility of the complainant's testimony).
Approaching potential complainants and other witnesses
28. One of the common methods used to elicit information in a police investigation is to send a standard letter of inquiry, to a sample of former residents, which seeks to elicit information. Linzi McDonald, a partner solicitor at Kingsley Napley, suggested that the drafting of these letters provided a "flawed basis" for the investigation. She told us that, in the David Jones case, the standard letter used stated "quite clearly" the subject of the police investigation. This, she said:
"really set up the problem because people know...what is being investigated and what evidence the police are looking for. Certainly in my case we had evidence to suggest that at least two if not all of our complainants were doing this for financial compensation".
29. When we put this point to an expert panel of psychologists, a psychiatrist and a criminologist, they said that such letters would not be likely to generate false allegations. Dr William Thompson, a forensic criminologist, said that he had seen several of these letters. In his view they were "of the most general kind...[giving] a general invitation". He was concerned, however, that in the context of wider publicity about an investigation, it would always be possible that someone seeking to "jump on the bandwagon" could respond to "an innocuous ordinary letter" knowing "exactly the kind of questions or issues that are going to be raised because of the...publicity".
30. From the examples which we have seen, we are inclined to agree that these letters go no further than a general invitation to provide information. In our view, it would be very difficult for the police to elicit relevant information if they were unable to give any information about the nature of the investigation. We agree, however, that a problem can be created when there is wider publicity about an investigation, at the time that such letters are sent. We will return to the issue of publicity in the next section of this report.
31. In one force at least, it appears that former residents have been invited to respond to the standard inquiry letter by completing a 'tick box' format questionnaire. The questionnaire contains such questions as "Do you consider that you were ever a victim of abuse whilst at either school(s)?" followed by, "If YES...was it (a) sexual abuse, (b) serious physical abuse". When we asked our panel of experts to assess the risk of generating false allegations through this kind of approach, we were told that:
"while it may open the door to a false allegation, it is not an incitement per se to making a false allegation".
32. We have some concerns about the use of such questionnaires as a means of conducting a blanket survey of former residents, to elicit their initial response. Although this may be a convenient method for the police to sift out the less serious allegations, it presents an open and specific invitation to the recipient to make an allegation. In the context of a general trawl—and wider publicity—we believe it could place greater temptation in the path of those who might seek to "jump on the bandwagon".
33. Moreover, we are not persuaded that it is either necessary or appropriate for the police to go beyond the terms of a general invitation to provide information to their inquiry. In our view, a questionnaire of this kind, which is simply sent through the post, is not the most sensitive way of approaching potential victims of past abuse. We are concerned that the police handbook for senior investigating officers only outlines the various methods of contacting potential witnesses, without giving clear guidelines on how best to approach to the witness to elicit the relevant information.
34. For these reasons, we take the view that any initial approach by the police to former residents, should—so far as possible—go no further than a general invitation to provide information to the investigation team. We invite the Association of Chief Police Officers to revise the internal police handbook for senior investigating officers, in order to set out clearly the terms of an initial approach to potential witnesses.
Interviewing potential complainants and other witnesses
35. More serious concerns have been raised in relation to the conduct of police interviews with potential witnesses. Claire Curtis-Thomas MP has said:
"The police will plant suggestions producing narratives that fit their case rather than the truth. What happens...is a kind of indirect collusion which develops through witnesses' unrecorded contact with members of the same police team".
36. A former resident of a children's home, who was interviewed by South Wales Police on three occasions, described his experience to us. He said:
"during those interviews I was amazed that the police openly named suspects who were known to me and they confirmed that these suspects had been named by other former residents. Even though I made the police aware of my medical condition (I am epileptic) they continued to pressurise me into making a complaint, which I did not do. I found the whole experience very distressing and I felt that I was being bullied by the police into making a complaint.
I was horrified when I was asked during the interview,
'Did Mr B touch you up?, did he touch your penis? other people have complained that he did'.
At this moment I was appalled and explained that nothing of that nature went on at the school".
37. Other witnesses have given further examples of occasions when the police have named suspects or asked leading questions during interview. In addition, we have heard of instances in which the police have shown photographs to potential witnesses and/or discussed compensation. We have been told that the police often make repeat visits to witnesses before the final statement of their testimony is drawn up. We have also heard that in some cases the police will put the suspect's rebuttal of the allegations to the complainants, thereby undermining any future cross-examination of the complainant at trial.
38. When we took evidence from four senior police officers, we put these points to them. We were told that, in South Wales, investigating officers were given clear guidelines about the dangers of leading questions and generating false allegations. The officer from South Wales Police strongly refuted the suggestion that the police led witnesses when interviewing them. He also denied that officers had discussed compensation, as alleged by the former resident (above). The other officers denied that photographs of suspects were shown to witnesses, although we were informed that some forces used group photographs in order to identify other residents or staff who were at the institution.
39. Although we accept the evidence of these officers, we note that senior officers are not "sitting on shoulders every day". In other words, they cannot watch every move of their junior officers. Past experience has shown that what happens on the ground does not always conform with established procedure or recommended practice. This was highlighted, for example, by a study into police interviews of suspects and other witnesses, which was conducted by John Baldwin in 1992. The report of the Royal Commission on Criminal Justice, provides a summary of his findings:
"[Baldwin] thought that some officers approached the interview expecting a confession and that it was often difficult for them to keep an open mind. They entered the interview room with their minds made up and treated the suspect's explanation with unjustified scepticism. The interview often descended into a repetitive series of questions. In several cases one word admissions were obtained in response to leading questions.
Baldwin also observed what he regarded as unduly aggressive treatment of suspects by police at interviews. Although this happened in a relatively small number of cases, Baldwin felt unease about the outcome, particularly where juveniles and young persons were involved. In another group of cases suspects were offered unfair inducements to confess particularly as regards the sentence that they were likely to receive if they agreed to have offences taken into consideration".
40. We accept that police practice varies both between forces and over time. During this inquiry, we were given the impression that practices were gradually improving in this area. Although we have heard many examples of bad practice, we have also been given examples of good practice. Professor Gisli Gudjonsson, a psychologist at Kings College London, cited the Independent Longcare Inquiry as one example. He said that, during this inquiry, the police arranged for potential victims of abuse to be assessed by clinical psychologists—including himself—to identify their vulnerabilities before they were interviewed. He explained that this approach enabled him to provide the police with advice about how to interview each witness, in the light of their vulnerabilities. The interviews were then conducted and recorded on video tape. The Metropolitan Police has also been praised for good practice. Detective Inspector Andrew Parker said that within his unit in the Metropolitan Police, first disclosures by witnesses and the substantive interview of the witness were recorded on audio tape, wherever possible.
41. In many of these cases, there is a shortage of medical or other objective evidence to either prove or disprove the charge. As a result, the courts rely heavily on the testimony of complainants and other witnesses. So the quality of police interview practice is extremely important, as it will determine the quality of the principal evidence, which is relied on by the prosecution and presented to the jury.
42. There is limited opportunity for either the Crown Prosecution Service, or defence lawyers, to scrutinise the quality of the police interviews of complainants and other witnesses. In the majority of cases, police interviews of adult witnesses are not recorded either on audio or video tape. Most are only recorded in a summary note, taken by the interviewing (or other) police officer. The formal witness statement will also, in most cases, be drafted in the hand of a police officer—not the witness. This will usually be written as a narrative, rather than an interview and any 'leading' or suggestion by the interviewing officer may not be apparent on the face of the statement. In the absence of an impartial and accurate record of the interview, a proper evaluation of the reliability and credibility of the accounts given to the police becomes much more difficult.
43. The Youth Justice and Criminal Evidence Act 1999 provides that a video recording of an interview of a witness may stand as their evidence-in-chief at trial, in place of direct oral evidence in court. Whilst this is a welcome step forward, we note that it makes no general requirement to video record police interviews of witnesses and applies only to certain categories of witness. Moreover, given that the purpose of the provision is to allow for evidence-in-chief to be video-recorded, it may lead only to an increase in the video-recording of later interviews, rather than early interviews and first disclosures.
44. We note that, in addition to the new special provisions for vulnerable witnesses, the Government is currently piloting the use of visually recorded interviews with suspects, which may replace the present system of audio recording.
45. On that basis, we believe there is a strong argument, in cases of this kind, for introducing a general requirement to record police interviews of complainants and other significant witnesses on video or audio tape. Where a video-recording is impracticable, we recommend that the interview be recorded on audio tape, as a mandatory requirement.
46. Whilst we are conscious that this will have significant resource implications, we believe that the costs will be justified by stronger prosecutions and greater protection for innocent defendants. We also recognise that it would be virtually impossible for the police to tape or video-record every interaction with complainants and other witnesses. We believe, however, that the opportunities for abusing the system could be minimised if certain safeguards were introduced.
47. We recommend, therefore, that the Home Office issues a code of practice for the audio and visual recording of police interviews with complainants and other significant witnesses in cases of historical child abuse.
48. Another area which could be improved is the process of reviewing or evaluating the product of police interviews. We heard evidence from Detective Inspector Andrew Parker on the use of Statement Validity Analysis (SVA)—a topic which forms the basis of his PhD research. He explained that Statement Validity Analysis is a "structured approach of evaluating testimony evidence", which provides a framework for the interview preparation, followed by a phased interview process and a case review. Although it does not "prove or disprove an allegation", he said that it "highlights the inconsistencies in the evidence" and thereby "provides pointers for investigative or prosecution decision making". He went on to say that:
"[the] process of evaluation should occur earlier on in an investigation and as part of the investigation. I think the value of SVA is that it provides a structure to that evaluation and instead of relying on subjective indicators of credibility, which we all use, it is an objective basis on which to give direction to inquiries".
49. We were told that it may be possible to develop the basic Statement Validity Analysis as a screening tool, which the police could use "as a means of screening an allegation or statement to see whether it needs a more detailed specialised review" by a forensic psychologist. However, the case review—which is the final and crucial stage of Statement Validity Analysis—can only be conducted if the interviews have been recorded either on video or audio tape. We believe that SVA has the potential to improve significantly the quality of the testimonial evidence in these cases and should be developed further.
50. We recommend that resources are channelled into researching and piloting the use of "statement validity analysis" as a tool for evaluating the credibility of witness testimony in complex historical child abuse cases.
Following up other lines of inquiry
51. The police are required, during any investigation, to investigate "all reasonable lines of inquiry, whether they point towards or away from the suspect". However, some concerns have been raised over the standard of investigation into lines of inquiry which might exonerate, rather than incriminate, the accused.
52. We discerned some concern that the police operated within a "prosecution culture", which is orientated wholly towards getting a "result". Chief Constable Terence Grange responded to this by saying that the police would never "construct" this kind of inquiry "in order to boost [their] detection rate". However, we also heard that, once the police had launched an investigation, they tended to approach it with a "belief that there is a crime before they have evidence of it". Although the police did not confirm this view, Detective Chief Inspector Gareth Tinnuche said that they could not "start from anywhere other than the tendency to believe [the complainant]".
53. It has also been suggested to us that the police do not always take a statement from those former residents who give a negative response to their inquiries, i.e., those who state that no abuse took place at the children's home. Bob Woffinden said that "the potential statements of [these] people...are vital to this investigation and they are rarely—if ever—reaching the defence". The police gave a different view. Detective Chief Inspector Tinnuche told us that statements were taken from those who gave a negative response "just to confirm that they were at that particular home for that relevant period of the time that they were there, [and] concluding by saying that they were happy or satisfied with the treatment at the home". He also said that such statements would be disclosed to the defence team.
54. Whether or not the police are this assiduous in every case, it is clear that negative response statements were taken during the investigation into allegations against Phil Craig. Furthermore, they proved to be very significant in his case, as the volume of 'negative response' statements eventually led to a decision by the Crown Prosecution Service to discontinue the prosecution proceedings.
55. Finally, and perhaps more seriously, we have been informed that, in some cases, the police have attempted to discourage defence witnesses from giving evidence. This allegation was strongly refuted by the police, however.
56. The police face a difficult task in these investigations. Clearly, when a crime or crimes have been committed, police forces should strive to detect them and collect evidence for potential prosecution. However, forces need to recognise that in cases of historical child abuse allegations it is necessary, first of all, to clarify that an offence or offences have actually taken place. Thus, in these cases above all, we believe that it is imperative for investigating officers to retain an open mind throughout these investigations. We would expect that, in all cases, the police adhere both to the spirit and letter of the statutory Code of Practice, which requires that all reasonable lines of inquiry are followed. We also encourage the Association of Chief Police Officers to promote a culture in which officers do not see the disproving of an allegation as a failure.
The Senior Investigating Officers' Handbook
57. When we took evidence from four senior police officers, they all accepted our proposition that the police were on a learning curve, in what is a relatively new area of investigation. To facilitate the learning process, in March 2002 the Association of Chief Police Officers circulated to every force a handbook, containing 'good practice' guidance, for senior officers engaged in these investigations. The handbook, which is titled 'SIO Handbook: The Investigation of Historic Institutional Child Abuse', was developed by investigators on the basis of their experience. Chief Constable Terence Grange told us that the handbook would be kept under review and re-circulated as and when it was amended.
58. We welcome the introduction of the internal police manual for senior police officers, entitled the 'SIO Handbook on Investigations into Historic Institutional Child Abuse'. We believe this will serve as a valuable compendium of best practice. We note however, with some concern, that compliance with the handbook on abuse investigations is only suggested, not required; the introduction states very clearly that it must not be seen as prescriptive. We believe, however, that if trawling is to continue, it must be subject to at least a minimum of core safeguards, which are not optional.
59. We would, therefore, encourage the Association of Chief Police Officers to distil the core recommended practices and procedures into a prescriptive list, to be included in the handbook.
Victim support services
60. A number of victim support organisations have made the point that trawling provides an opportunity for victims to speak up if they feel ready to do so. However, these organisations expressed a general concern over the level of support available to victims during and after a 'trawl'. The Government guidance on complex child abuse investigations recommends that "An unequivocal victim support strategy and protocol should be established at the outset" of the investigation to avoid any subsequent strain on counselling services.
61. We endorse the view that, where a trawl is conducted, complainants should be offered appropriate victim support services, such as counselling, from an early stage of their involvement in the investigation.
8 David Rose, Special Investigations Reporter for The Observer, gave us a definition, Q. 63. Back
9 In answer to a Parliamentary Question which asked for a definition of 'trawling', a junior Home Office Minister, said that "it is not for...the Home Secretary to provide a definition of a term he considers unhelpful and pejorative and is not normally used by the police". Commons Hansard, 21 March 2002, cols. 483-484 w (John Denham MP). Back
10 He told us that, "There is actually a structure to the dip sampling. It is not a random shooting in a bowl." Q. 613. Back
11 David Rose, Q. 63. Back
12 Q. 95. Back
13 Vol. II, Ev 105. Back
14 Q. 50. See also David Rose, Q. 72. Back
15 Q. 801. Back
16 Q. 822. Back
17 Phil Fiddler. Back
18 Dr Christopher Reeves. Back
19 Phil Craig. Back
20 Rory O'Brien, also the Chair of F.A.C.T. (Falsely Accused Carers and Teachers). Back
21 For example, Phil Craig was suspended for three months before he was interviewed by the police, QQ. 138-139. Back
22 For example, Rory O' Brien said, in evidence to us, "My name was in every single paper and, indeed, in the national papers and on the national news. I was arrested ten days later.", Q. 122. Back
23 For example, Phil Fiddler, Q. 137, Dr Christopher Reeves, Q. 155. Back
24 Q. 692. Back
25 Q. 693. This was supported by Mick Holland, Q. 694, and Chief Superintendent Mike Langdon, Q. 695. Back
26 Detective Chief Inspector Gareth Tinnuche, Q. 695, Mr. Mick Holland, Q. 696. Back
27 See for example, Vol. II, Ev 42 (Devon County Council), Ev 22 (Barnsley Metropolitan Borough Council), Ev 29 (Cheshire County Council). Back
28 Chief Constable Terence Grange, QQ. 711-712. Back
29 Kathryn Stone (Voice UK), Matthew Byrne (Fire in Ice) and Phil Frampton (Care Leavers Association) all said that, in their experience, they had never come across an individual who had fabricated allegations of abuse, nor were they aware of any cases in which the complainant had been genuinely mistaken, QQ. 860; 896-898 and 903. Back
30 Q. 903. Back
31 Q. 930. This was supported by Peter Garsden, Q. 356. Back
32 Forgotten Children: The Secret Abuse Scandal in Children's Homes, Christian Wolmar (2000), pp. 39-40. See also, 'Institutional Abuse of Children-From Research to Policy: A Review', NSPCC (December 1991) pp. 11-12. Back
33 Q. 240. Back
34 Chris Saltrese (sole practitioner, Southport) and Linzi McDonald (partner, Kingsley Napley). Back
35 Q. 208. Back
36 Detective Chief Inspector Gareth Tinnuche, QQ. 610-611, Mick Holland and Chief Constable Terence Grange, Q. 613. Back
37 Q. 607. Back
38 Over the past eight years, the NSPCC has created a network of Specialist Investigation Services across England and Wales specifically to address this complex area of work. See Vol. II, Ev 77 (NSPCC). Back
39 Vol. II, Ev 77. Back
40 See for example, David Rose, Q. 62. Back
41 The Association of Chief Police Officers provided us with three examples of such letters, Vol. II, Ev 9-10, Appendix B. Back
42 Q. 197. Back
43 Detective Inspector Andrew Parker and Dr William Thompson, Q. 988. Back
44 Q. 988. Back
45 See section 2 (Prosecution and Trial), paras. 98-9. Back
46 A copy of which was sent to us by the former owner of a boarding school, which was subject to investigation. Back
47 Dr William Thompson, Q. 990. Back
48 Dr William Thompson explained to us that the police are "obviously trying to put people in boxes to begin with to aid the investigation process, [and] maybe reduce the cost of the investigation", Q. 990. Back
49 The individual who sent us the questionnaire-a former owner of a boarding school under investigation-expressed his concern over the damaging impact that it could have on its recipients. Back
50 For example, David Rose, QQ. 63; 94, Bob Woffinden, Q. 66, Chris Saltrese, Linzi McDonald and Neil O'May, Q. 204, Claire Curtis-Thomas MP, Q. 828. Back
51 Cited by Richard Webster at Q. 64. Back
52 Vol. II, Ev 74. In further correspondence to us, this witness indicated that the children were the main abusers-both of staff and other children-at these schools. His specific allegations, about the conduct of police interviews, were put to Detective Chief Inspector Gareth Tinnuche of South Wales Police. His response can be found at QQ. 651-658. Back
53 We have not published the majority of this evidence, as the evidence relates to individual cases. Back
54 David Rose, Q. 94, Phil Fiddler, Q. 172, Phil Craig, Q. 188, Chris Saltrese, Q. 204, Claire Curtis-Thomas MP, Q. 816. Back
55 We address the issue of compensation in more detail in section 4 (The 'compensation factor'). Back
56 David Rose, QQ. 63-4, Claire Curtis-Thomas MP, Q. 828. Back
57 Dr William Thompson, Q. 1009. Back
58 Detective Chief Inspector Gareth Tinnuche, Q. 654. Back
59 Ibid, Q. 628. Back
60 Ibid, QQ. 654; 656. Back
61 Mick Holland, Q. 616, Chief Superintendent Mike Langdon, QQ. 618-622, Chief Constable Terence Grange, Q. 622. Back
62 Mick Holland, QQ. 616-617. Back
63 Detective Chief Inspector Tinnuche, Q. 656. Back
64 We are grateful to Claire Curtis-Thomas MP, for drawing this study to our attention, Q. 817. Back
65 The Royal Commission on Criminal Justice: Report, (Cm. 2263, July 1993), p. 12, paras. 18-19. Back
66 Chief Constable Terence Grange accepted that whilst the best forces would have followed the recommended practice set out in the internal police handbook on abuse investigations-even before it was issued-the worst forces may only just be catching up, Q. 744. Back
67 Q. 1010. Back
68 David Rose, Q. 68. Back
69 Q. 1032. Back
70 David Calvert-Smith, Vol. II, Ev 36-7. Back
71 Detective Inspector Andrew Parker pointed out that there was no legal requirement to do so, Q. 1032. Back
72 Youth Justice and Criminal Evidence Act 1999, s. 27, which came into force on 27th July 2002; Youth Justice and Criminal Evidence Act 1999 (Commencement No. 7) Order 2002, S.I. 2002, No. 1739. Back
73 The provision will only apply in particular cases, by direction of the court. Youth Justice and Criminal Evidence Act 1999, ss. 19, 27. This contrasts with the position for interviews of suspects, which are required to be audio tape-recorded under the Police and Criminal Evidence Act 1984, s. 60 and Code E. Back
74 Youth Justice and Criminal Evidence Act 1999, s. 16. The categories include child witnesses under the age of 17. The provisions also apply to certain other vulnerable categories of witness, if the court considers that the quality of their evidence is likely to be diminished by reason of their vulnerability (which must fall within section 16(2)). Back
75 Achieving Best Evidence in Criminal Proceedings: Guidance for Vulnerable or Intimidated Witnesses, including Children (2001, Home Office [and other departments]), Vol. II, para. 5.59 states "The fact that a witness may give evidence in this way does not necessarily mean that he or she will have taken part in a video-recorded interview early in the investigation of an alleged offence. The decision to record evidence in chief may be taken at a later stage, for example as a consequence of a PDH in the Crown Court." Back
76 The pilots, which will last for 12 months from May 2002, are being conducted in Kent (Tonbridge, Gravesend and Chatham), Hampshire (Basingstoke, Southampton and Portsmouth), West Mercia (Redditch, Worcester and Telford) and by the Metropolitan Police (Edmonton, Bromley and Colindale). Back
77 Several witnesses supported the suggestion that all interviews with witnesses should be either audio or video-recorded. These included the Director of Public Prosecutions, David Calvert-Smith QC, Vol. II, Ev 36-37 and Q. 7, David Rose and Richard Webster, Q. 64, Bob Woffinden, Q. 103 and Claire Curtis-Thomas MP, Q. 829. Other witnesses indicated that they were not against it, including Peter Garsden, QQ. 555-556,Chief Constable Terence Grange, Q. 777 and Matthew Byrne, Q. 947. Back
78 Sir David Calvert-Smith QC, Vol. II, Ev. 37. Back
79 Vol. II, Ev 82-9. Back
80 QQ. 1023; 1025. Back
81 QQ. 1027; 1029. Back
82 Q. 1025. Back
83 Detective Inspector Andrew Parker, Q. 1026. Back
84 Professor Gisli Gudjonsson, Q. 1026. Back
85 Criminal Investigations and Procedure Act 1996, Code of Practice under Part II, para. 3.4. Back
86 Richard Webster, Q. 74. Back
87 David Rose, Q. 76. Back
88 Q. 631. Chief Superintendent Mike Langdon said that the statistics showed that the police were not conducting a "witch hunt", Q. 644. Back
89 Neil O'May, Q. 204. Similar comments were made by Rory O'Brien, Q. 163, Phil Craig, Q. 166. Back
90 Q. 670. Back
91 Bob Woffinden, Q. 101. Back
92 Q. 101. Back
93 Q. 627. See also Terence Grange, Q. 609. Back
94 Phil Craig, Q. 141. Back
95 Richard Webster, Q. 100. Back
96 Detective Chief Inspector Gareth Tinnuche, Mick Holland, QQ. 629; 630. Back
97 QQ. 682-683. Back
98 We were told that the guidance has been in existence 'informally' since about January 2001. Chief Constable Terence Grange, Q. 742. Back
99 The guidance has not been published, however we were provided with a copy from ACPO for the purposes of our inquiry. Back
100 Chief Constable Terence Grange, Q. 743. Back
101 Q. 687. Back
102 Theresa Reynolds (Victim Support), Q. 881, Matthew Byrne (Fire in Ice), Q. 880 and Vol. II, Ev 48-9. Back
103 QQ. 879-881. Back
104 Complex Child Abuse Investigations: Inter-agency Issues, Guidance, (Home Office, Department of Health, May 2002), p. 19. Back
PROSECUTION AND TRIAL
62. Many abuse investigations have culminated in criminal charges against a significant number of suspects. At this juncture, the Crown Prosecution Service will review the charges and, if appropriate, carry forward the prosecution and it is to this that we now turn.
The role of the Crown Prosecution Service
63. Between 1997 and 2000 the Crown Prosecution Service rejected a staggering 79 per cent of the institutional child abuse cases referred by the police. The figure is even more astounding when compared to the general discontinuance rate, which is 13 per cent of all cases referred to the CPS. This graphically illustrates the view that police trawls are not generating evidence of sufficient quality in these cases to satisfy the burden of proof, which in criminal cases is 'beyond reasonable doubt'. We were also told that, of the 21 per cent of institutional child abuse cases which proceeded to trial, "convictions were achieved in 83 per cent" of cases, "the vast number...by pleas of guilty".
64. Despite the high rate of rejection, it has also been suggested that the Crown Prosecution Service does not conduct a sufficiently independent or robust review of the evidence before deciding to proceed with the prosecution in these cases. We were told that investigations into historical abuse were "very much police run operations", which were simply "rubber stamp[ed]" by the CPS. Consequently, it is said that the CPS fails to pick up on discrepancies, inconsistencies or other weaknesses in the case before trial.
65. These deficiencies have been attributed partly to the over-stretched resources of the CPS and partly to the "cultural problem" that is said to exist within both the police and the CPS. Neil O'May, a partner solicitor of Bindman & Partners, said that the prevailing culture was to believe the complainant, "get it into court and see what happens". However, the figures on the rate of discontinuance in these cases does not appear to bear this out.
66. We recognise that the CPS is in an extremely difficult position. As Chris Saltrese, a criminal defence solicitor, said, it is not the job of the CPS to investigate what the police are doing. Its role is to decide whether the prosecution should proceed. The standard of the prosecution case is therefore largely dependent upon the quality of the criminal investigation behind it. In some cases, the CPS is still not involved in the early stages of a care home investigation. However, in the absence of audio or visual recording of police interviews, the CPS is unable—even with sufficient resources—to conduct a proper evaluation of the credibility of the testimonial evidence. Until proper recording is introduced, there may—in some cases—be very little, realistically, that the CPS can do to either detect or remedy a flawed investigation.
67. It was suggested to us that the current two-stage test, which is applied by the CPS to determine whether a prosecution should proceed, was not sufficiently robust in cases of historical abuse in children's homes. In particular, it was suggested that in multi-complainant cases, the volume of complaints alone would usually ensure that there was enough evidence to secure a reasonable prospect of conviction, regardless of the strength of each individual complaint. It was proposed that an additional 'third' test be introduced, requiring that there is firm evidence, or a firm belief, that a crime had been committed for the prosecution to proceed.
68. The existing tests, set out in the Code for Crown Prosecutors, require first, that there is enough evidence for a realistic prospect of conviction for each defendant on every charge (the 'evidential test') and, secondly, that the prosecution is in the public interest (the 'public interest test'). In response to the suggestion that an additional (third) test be introduced, to Sir David Calvert-Smith QC, the Director of Public Prosecutions, said:
"This [additional test] seems to me to be superfluous; our concern must be to consider whether or not there is sufficient evidence for a realistic prospect of conviction. The question of whether or not a crime has been committed must be an integral part of the intellectual process applied by the prosecutor reviewing the evidence in accordance with the Code test. If there is a reasonable doubt that the offence occurred, ipso facto there must be reasonable doubt that the defendant is guilty...[To require] that there should be a 'firm belief that a crime had actually occurred'...seems to me to set the test too high and too subjectively...For the CPS to adopt such a test would tend to usurp the role of the magistrates or the jury".
69. In January 2002, the Crown Prosecution Service Inspectorate reviewed a random sample of child abuse cases. It found that the CPS had made proper decisions in accordance with the evidential test in 169 of the 173 relevant cases examined (97.7 per cent) and in all but one of the 172 applications of the public interest test (99.4 per cent). Although there were some regional variations in the quality of decision-making, the overall figures did not differ significantly from the figures for all cases, which were 98.5 per cent and 99.8 per cent respectively.
70. In our view, the Crown Prosecution Service is presently faced with a difficult task when reviewing past cases of institutional child abuse. However, the sheer volume of such cases which are rejected by the CPS, seems to indicate that it is applying a sufficiently robust review to sift out weak cases. We are not persuaded that there should be a new test for Crown Prosecutors (in addition to the evidential and public interest tests) to require firm evidence, or a firm belief, that a crime has been committed for the prosecution to proceed. We, therefore, decline to recommend any changes to the Code for Crown Prosecutors.
71. A number of people have drawn our attention to the issue of disclosure in criminal proceedings, whereby the evidence—supporting both the prosecution and the defence—is disclosed to the other party for trial. We were told, for instance, that the Attorney General's Guidelines were not being adhered to and that it was often very difficult to obtain disclosure of third party material, such as social service records. Chris Saltrese, a criminal defence solicitor, also criticised the scheme of the Criminal Procedure and Investigations Act 1996, which puts the police in charge of disclosure. In his view, this was akin to "putting a fox in charge of chicken coop".
72. The matters raised with us are a reflection of a wider problem with disclosure, which affects criminal cases generally. Significant weaknesses in the operation of the current disclosure rules have already been highlighted elsewhere, including a study commissioned by the Home Office, a thematic review by the CPS Inspectorate and Lord Justice Auld's review of the Criminal Courts. In passing, we note that failure to disclose evidence inconvenient to the prosecution case was a factor in many—if not most—proven miscarriages of justice and we express the hope that the recommendations made by these various studies are acted upon without delay. We look forward to hearing from the Home Office on this point.
73. Disclosure of third party material appears to be particularly problematic in child abuse cases, as much of the relevant material will be held by local authority social services, rather than the police. We have heard that there are moves to draw up a national protocol to both clarify and agree standard procedures for disclosing such material. When the protocol is in place, it should help to reduce some of the confusion and inconsistency caused by the ad hoc growth of regional protocols. We are concerned, however, that the proposal appears to have made slow progress, as many of these investigations have either concluded or are already well under way.
74. We welcome the proposal for a national protocol for the disclosure of third party material and hope to see its speedy delivery. In the longer term, we support Lord Justice Auld's recommendation for a new statutory scheme for third party disclosure, "to operate alongside and more consistently with the general provisions for disclosure of unused material". We again look forward to hearing what plans there are to implement Lord Justice Auld's recommendations on disclosure.
The difficulties faced by the defendant
75. In contested cases, the defence team will usually face an onerous task. The passage of time since the offence was said to have taken place creates enormous evidential problems. Neil O'May said that serious allegations of sexual assault are often set out in a very short statement, giving few details. In most trials, the principal evidence is testimonial, with little—if any—medical or other objective evidence to go on. Memories have generally faded, potential witnesses may be dead or untraceable, crucial social services' or care home records may have been lost or destroyed and the care home itself may have closed or been demolished.
Former staff member (male) was convicted, following a trial, of abuse, including sexual abuse, committed in the late 1970s. He was sentenced to 14 years' imprisonment.
"The historical nature of the original allegations posed immense difficulties for my defence team:
a. All records from the Children's Centre (closed some ten years earlier) had been destroyed
b. Vital files concerning the individual complainants had been misplaced or destroyed by the Social Services Department, despite regulations that they should be retained until the subject's death.
c. My defence team were unable to contact other ex-residents who may have [been] helpful to my defence, as the authorities would not supply their details. In fact, one ex-resident who was a contemporary of the complainants, turned up at the trial having read of the case in the press. This [person] offered to speak on my behalf to contradict the suggestion that this was in any way a repressive regime. She also stated that she could not believe that such behaviour could possibly have occurred without others being aware and complaining."
76. In addition to these evidential problems, the defendant is said to face enormous prejudice at trial. First, the very nature of the offence is likely to evoke prejudices against the accused, even before the allegation is put to the court. Bob Woffinden told us that child abuse—particularly sexual abuse—was "so totally outside the comprehension of almost all of us" that juries were more likely to believe in the accusations than would be the case for other crimes.
77. Secondly, it was explained to us that developments in the law of 'similar fact' evidence (see paragraph 94) have made it easier for the prosecution to admit similar allegations as corroborative evidence at trial, even though that evidence has no immediate connection with the charged offence. The Director of Public Prosecutions explained that "until 1991 it tended to be argued that there had to be a striking similarity for the evidence to be admitted". However, following the House of Lords' ruling in DPP. v. P., the test was relaxed in this type of case.
78. Given the dangers of trawling, this increases the likelihood that the defendant will be tried on multiple abuse charges, brought by several complainants. In these circumstances, there is also the danger that the jury will instinctively assume that the defendant is guilty on the basis that there is "no smoke without fire"—regardless of whether the defence show serious weaknesses in the prosecution evidence. Neil O'May argued that the burden of proof, in these cases, was effectively shifted onto the defendant to prove his innocence, rather than the prosecution, to prove his guilt.
79. Although there are safeguards to protect the defendant from any injustice in these circumstances, we were told that they were not sufficient. Where there has been a significant delay before the allegation was made, the defendant may apply for a stay on the ground that the prosecution is an abuse of process (i.e., unfair). However, abuse of process arguments are said to be hard to win and the burden is on the defendant to make the case. If the trial judge refuses to grant a stay, he may grant the alternative remedy of giving a direction to the jury as to the effect of the delay on the defence. This is, in all respects, a "lesser remedy", given that the evidence is likely to evoke prejudices amongst members of the jury that outweigh their concerns over delay.
80. In multi-complainant cases, the defendant may also apply for the indictment to be severed, so that each allegation can be tried separately. We are informed, however, that the law of severance has developed along similar lines to the law of similar fact evidence. Just as it has become easier for the prosecution to admit similar allegations as evidence in one trial, we understand that it has become more difficult for the defendant successfully to apply to sever the allegations into separate trials. Neil O'May said to us that:
"What has happened over the last ten years is the pressure is to put everybody together on a huge indictment...and put that in front of the jury".
Options for reform
81. We have explored a number of suggested options for reform, with a view to ensuring that the conduct of abuse trials is both fair and just. In considering these options, we are conscious that the Government has already proposed radically to overhaul the criminal justice system, with the aim of "rebalanc[ing] the system in favour of victims, witnesses and communities". Whilst we accept the need for general reform, we are concerned about the potential impact of some these proposals on child abuse cases.
82. For example, we have particular concerns about the proposed reforms to the rules of evidence, which are likely to replace the 'similar fact' rule—and other rules of evidence—with a more general test for admissibility of evidence. This may lead to almost routine admission, in child abuse cases, of similar allegations or similar circumstances as evidence of corroboration. In historical cases, where the ability to disprove such allegations is greatly reduced, this may lead to further miscarriages of justice.
83. Whilst we accept that the criminal justice system needs to be more sensitive to the needs of victims and witnesses, we are concerned that the proposed removal of safeguards for the defendant, set out in Justice for All, may further prejudice the defendant in historical child abuse trials. We are particularly concerned about the proposed relaxation of the rules of evidence, which may allow for greater admission of 'similar fact' evidence. In our view, given the sensitive and difficult nature of investigating allegations of historical child abuse, there is a strong case for establishing special or additional safeguards for the exclusion of prejudicial evidence and/or severance of multiple abuse charges.
A time limit on prosecutions of offences relating to child abuse
84. At the very start of this inquiry, we posed the difficult question of whether there should be a statutory time limitation on the prosecution of offences relating to child abuse.
85. In large-scale police operations into past abuse, there is arguably ample opportunity for individuals to bring forward false or exaggerated allegations. Furthermore, in most cases, the longer the delay since the alleged abuse, the more difficult it will be to defend the allegations. The principal advantage of imposing such a limit is that it would ensure that defendants did not face prosecution on the basis of fabricated or exaggerated allegations, in circumstances where their ability to disprove them was undermined. A limitation period would, therefore, allow the complainant a period of time, within which to report the allegation, whilst also protecting the defendant from stale allegations.
86. We received various suggestions on the length of the limitation period, ranging from three years from the date of the offence to ten years or longer. Most people suggested that, if the victim was a minor, time should not run until the victim had reached the age of majority or 21 years.
87. The principal disadvantage of imposing a time limit is that it would bar prosecutions after a certain number of years, regardless of the strength of the evidence corroborating the complaint. The Metropolitan Police gave the example of cases where there was photographic or video evidence supporting the complainant's statement. In these circumstances the time bar would be unjust and may put further children at risk.
88. During this inquiry, we found that more people were opposed to the proposal than were supportive. Those against the idea have argued that psychological and other factors often explained and justified delayed disclosure of childhood abuse. The Metropolitan Police have indicated that significant numbers of complainants are aged between 30 to 40 years when they report experiences of childhood abuse. We also note that the report on the independent review of sex offences—Setting the Boundaries—concluded that "In principle...time limits were not justified for any sexual offences" and recommended that no time limit be applied to the proposed new offence of adult sexual abuse of a child.
89. We are inclined to agree that the prosecution of offences relating to child abuse should not be time-barred. In our view, prosecution decisions should continue to be based on the merits of the case, having regard to public interest factors, such as delay. Whilst a limitation provision may protect innocent defendants from fabricated allegations that are difficult to refute, it may also prevent guilty defendants from being brought to justice. For these reasons, we decline to recommend the introduction of a statutory limitation period.
Safeguards against abuse of process
90. An alternative option is to strengthen the existing safeguard whereby the defendant can apply to stay the prosecution on the grounds that it is an abuse of process. It has been suggested that the prosecution should be required to apply for the court's permission to prosecute, if a set number of years had passed since the offence was alleged to have occurred. The onus would then be on the prosecution to prove that the proceedings were not an abuse of process, rather on the defendant to show that they were. The advantage of this option is that it would introduce a time limit, which was not an absolute bar to proceedings, but beyond which the prosecution could only proceed with the court's permission.
91. In our view, this would achieve a fairer balance than currently exists between the need to safeguard the defendant against stale allegations and the interests of the complainant and the community to see that offenders are brought to justice. We believe that ten years is an appropriate time period, although the time should not run until the complainant has reached age 21.
92. We recommend that the prosecution of offences relating to child abuse, which is alleged to have occurred over ten years since the date of the offence, should only proceed with the court's permission. We suggest that the time period does not begin to run until the complainant has reached age 21.
Reform of similar fact evidence, joinder and severance
93. We have also considered whether the law of similar fact evidence and joinder/severance of indictments should be reformed, with a view to minimising the use of multi-count and multi-complainant indictments in trials relating to past sexual abuse of children.
94. The similar fact rule allows the prosecution to admit, as evidence to prove the charged offence, similar charges or allegations against the defendant, even though that evidence has no immediate connection with the charged offence. At present, the test of admissibility is whether the probative force of the similar fact evidence exceeds its prejudicial effect. The rules relating to joinder and severance allow for multiple charged offences to be tried either together, on a joined indictment, or separately, by severing the counts on the indictment.
95. During this inquiry, several people have indicated that multiple allegations should be tried separately. Others have advocated a narrower test for the admission of similar fact evidence, based on a "striking similarity" between the similar fact evidence and the evidence relating to the offence. The law of severance could also be reformed by the introduction of a presumption that the charges should be tried separately if the other allegations were inadmissible on a similar fact basis.
96. In our view, sexual offences tend to engender greater prejudice than non-sexual offences, particularly when the victim is a child. For this reason, we believe that there is a strong case for seeking to minimise the use of multi-count and multi-complainant trials, unless justified by special circumstances. We believe that a "striking similarity" between the allegations would constitute special circumstances.
97. We, therefore, recommend that the law of similar fact evidence is reformed to require a "striking similarity" in historical child abuse cases. We suggest that the law of severance is also reformed, to introduce a presumption in favour of severance in cases where the similar allegations are inadmissible on a similar fact basis.
Extension of anonymity to the accused
98. Given the prejudicial nature of allegations of sexual offences, publicity can do enormous damage to persons who are falsely accused. Defendants who are never charged, or are acquitted of the charges, may find that they continue to live with the suspicion of having committed a sexual crime. At present, anonymity is only afforded to the victims of sexual crimes. The protection for victims begins on the day that the allegation is made and lasts throughout the complainant's lifetime, although the restrictions may be lifted or relaxed by court order. It has been suggested, however, that the provisions should be extended to those accused of the same crimes.
99. We suggest that the statutory reporting restrictions, which preserve the anonymity of victims of sexual offences, are extended to persons accused of historical child abuse. We believe that the restrictions should operate to protect the accused until the date of conviction, with provision to lift the restrictions by court order. Although there is a case for extending this recommendation to all sexual offences, for which the victim is granted anonymity, this goes beyond our remit for this inquiry.
105 Sir David Calvert-Smith QC, Q. 1, Vol. II, Ev 34. Back
106 Ibid, Q. 10, Vol. II, Ev 34. Back
107 Sir David Calvert-Smith QC states that it is "usually because there is insufficient evidence to give a realistic prospect of conviction". Vol. II, Ev 34. Back
108 Sir David Calvert-Smith QC, Q. 1, Vol. II, Ev 34. Back
109 Chris Saltrese, QQ. 203 and 220. Back
110 Bob Woffinden, Q. 82, Dr Bill Thompson, Q. 995. Back
111 Neil O'May, QQ. 201-202, 216. Back
112 Q. 202. Back
113 Chris Saltrese, Q. 222. Back
114 Sir David Calvert-Smith QC said that regular bilateral meetings have now been established between the Association of Chief Police Officers and the Crown Prosecution Service. He said that one of the topics on the agenda was "whether ACPO would, while retaining their operational police independence, seek advice more often on this sort of topic from the CPS". Q. 22. Back
115 The Director of Public Prosecutions indicated to us that the recording of interviews would "make our lives as prosecutors much easier", Q. 7. Back
116 In section 1 (The Investigation), we recommend that recording be introduced as a mandatory requirement; see para. 45. Back
117 David Rose, Q. 85. Back
118 Bob Woffinden, Q. 82 and Vol. II, Ev 131. This was supported by Claire Curtis-Thomas MP, Q. 833, and Neil O'May also suggested that the CPS required "an objective test and an objective ethos", Q. 240. Back
119 The tests are set out in more detail in The Code for Crown Prosecutors, (Crown Prosecution Service, 2000) and in the memorandum of Sir David Calvert-Smith QC, Vol. II, Ev 37. Back
120 Vol. II, Ev 33-7, p. 37. Back
121 Vol. II, Ev 62-4, p. 63. Back
122 Attorney General's Guidelines: Disclosure of Information In Criminal Proceedings, 29th November 2000. Back
123 Neil O'May, Q. 217. Back
124 Q. 264. Back
125 A Fair Balance? Evaluation of the Operation of Disclosure Law, Joyce Plotnikoff and Richard Woolfson, (Home Office, 2001). Back
126 Report on the Thematic Review of the Disclosure of Unused Material, Crown Prosecution Service Inspectorate Report no. 2/2000, (HMCPSI, March 2000). Back
127 Review of the Criminal Courts of England and Wales; Report, (TSO, October 2001), pp. 444-476. Back
128 See e.g., R. v. Brushett  Crim L.R. 471, CA. Back
129 Nigel Duggan told us that the national multi-agency working group, which was set up to look at the disclosure issue, was "about to reach a conclusion", Q. 749. The Government guidance states that "it is expected that the model protocol will be completed later in 2002". Complex Child Abuse Investigations: Inter-agency issues, Guidance, (Home Office, Department of Health, May 2002), para. 5.6. Back
130 We were informed that two separate protocols are in place for Operation Goldfinch, an investigation conducted by South Wales Police. This is because only two of the seven local authorities would allow disclosure of a complete file to the police. The other five authorities would allow more limited access "based on the police team identifying" the relevant material. Nigel Duggan, Q. 749. See also Mr Mick Holland, Chief Superintendent Mike Langdon and Detective Chief Inspector Gareth Tinnuche, QQ. 745-748. Back
131 Review of the Criminal Courts of England and Wales; Report, (TSO, October 2001), pp. 475-476, para. 190. The Director of Public Prosecutions was broadly in favour of this proposal; see The Work of the Crown Prosecution Service, Home Affairs Committee Minutes of Evidence, 26 February 2002 (HC 650), Q. 2. Back
132 See for example, David Rose, QQ. 86-7. Back
133 Q. 219. Back
134 See for example, Metropolitan Police, Vol. II, Ev 74-5. Back
135 See for example, Professor Gisli Gudjonsson, Q. 983, "as a general rule memory does deteriorate and it makes the job of the police much more difficult when you are going back ten, 15, 20 years". Back
136 See for example, Timothy Hackett, Vol. II, Ev 58-9. Back
137 See for example, Rhondda Cynon Taff County Borough Council, Vol. II, Ev. 97-8. Back
138 See for example, Neil O' May, Q. 219. Back
139 Sally Bostock cites a Canadian study, in which it was found that out of 849 prospective jurors, 36 per cent stated on oath that, knowing the nature of the charge (child sex abuse), they could not be impartial during the trial; Sally Bostock, The Effects on Juries of Hearing about the Defendant's Previous Criminal Record: A Simulation Study,  Crim. L.R. 734-755, at 739. Back
140 Bob Woffinden, Q. 82. Back
141 Sir David Calvert-Smith QC Vol. II, Ev 33-7 at pp. 35-7. See also Professor Adrian Keane Vol. II, Ev 66-7, Professor Solomon Salako Vol. II, Ev 102-105, Professor Colin Tapper Vol. II, Ev 116-7, Richard Webster Vol. II, Ev 125-127. Back
142 Vol. II, Ev 33-7 at p. 35. Back
143 The revised test allows evidence to be admitted if "its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it was prejudicial to the accused in tending to show that he was guilty of another crime"; DPP. v. P.  2 A.C. 447, HL, at 460/D-G per Lord Mackay. Back
144 We have heard that there is a real danger that trawling gives rise to cross-contamination of complainants' evidence and/or collusion. See sections 1(The Investigation) and 3 (The 'Compensation Factor'). Back
145 Neil O'May, Q. 201. Research studies have found that conviction is more likely where there was a concurrent charge for a similar offence. These are cited in Bostock,  Crim. L.R. 734-755. Back
146 Q. 232. Back
147 Neil O'May, Q. 233, British False Memory Society, Vol. II, Ev 25-7, Timothy Hackett, Vol. II, Ev 58-9. Penney Lewis has said that the 'fair trial' test has been "sidelined" by the Court of Appeal for a test "based on the justifiability of the delay", which tends to lean in favour of the prosecution: Vol. II, Ev 70-1. See also Penney Lewis and Alastair Mullis, 'Delayed Criminal Prosecutions for Childhood Sexual Abuse: Ensuring a Fair Trial', (1999) 115 Law Quarterly Review 265. Back
148 Penney Lewis, Vol. II, Ev 70-1. Back
149 In a jury simulation study, the participants (i.e., the potential jurors) said that they would most regret a mistaken acquittal as compared with a wrongful conviction where the charge was child sex abuse. The study is cited in Bostock,  Crim. L.R. 734-755, at 738. Back
150 Sir David Calvert-Smith QC, Vol. II, Ev 33-7, pp. 35-6. Compare DDP. v. Boardman  A.C. 421, HL with the more recent decisions in DPP. v. P.  2 A.C. 447, R. v. H.  2 A.C. 596 and R. v. Christou  A.C. 117. Back
151 Q. 201. Back
152 Justice for All, Cm. 5563 (Home Secretary, Lord Chancellor, Attorney-General, July 2002) foreword. Back
153 See section 1 (The Investigation). Back
154 Bob Woffinden, QQ. 88, Phil Craig, Q. 180 and Chris Saltrese, Q. 240. Back
155 Falsely Accused Carers and Teachers (FACT), Vol. II, Ev 45-6. Back
156 Vol. II, Ev 74-5. Back
157 Those opposed to the idea included Association of Chief Police Officers, Vol. II, Ev 2-11, British Association of Social Workers, Vol. II, Ev 25, British False Memory Society, Vol. II, Ev 25-6, Care Leavers Association, Vol. II, Ev 27-8, Penney Lewis, Vol. II, Ev 70-1, Respond, Vol. II, Ev 96-7, Voice UK, Vol. II, Ev 123. Clear arguments both for and against a time limit were set out by Sir David Calvert-Smith QC, Vol. II Ev 33-7. Back
158 See for example, Sir David Calvert-Smith QC, Vol. II, Ev 33-7. A detailed account of such factors is set out in 'Child Abuse in Community Institutions and Organisations: Advancing Professional and Scientific Understanding', David A. Wolf, Peter G. Jaffe, Jennifer L. Jette, Samantha E. Poisson (as yet unpublished). Back
159 Vol. II, Ev 74-5. Back
160 Setting the Boundarides: Reforming the Law on Sex Offences, (Home Office, July 2000), para. 3.6.6. Back
161 Neil O'May, Q. 256. Back
162 The leading case is DPP. v. P.  2 A.C. 447, HL. See also Professor Adrian Keane Vol. II, Ev 66-7, Professor Solomon Salako Vol. II, Ev 102-105, Professor Colin Tapper Vol. II, Ev 116-117, Richard Webster Vol. II, Ev 125-127. Back
163 Neil O'May, Q. 201. Back
164 See for example, Claire Curtis-Thomas MP, Q. 837, Detective Inspector Andrew Parker, Professor Gisli Gudjonsson, Dr Janet Boakes, Q. 1043-1046. Back
165 See for example, Richard Webster, Q. 98. Back
166 As advocated, obiter, by Lord Cross in DPP v. Boardman  A.C. 421 at 459, HL. Back
167 See the Sexual Offences (Amendment) Acts 1976 and 1992. Back
168 See for example, Rory O'Brien, Q. 177, Chris Saltrese, Q. 241, Linzi McDonald and Neil O'May, Q. 242, Dr William Thompson, Detective Inspector Andrew Parker, Professor Gisli Gudjonsson and Dr Janet Boakes, Q. 1047. Back