The current unfolding drama surrounding the explosion of sexual allegations in a post-Savile world is providing more twists than a modern day drama although it is worth remembering that sexual allegations are not a drama but a real life story affecting both the falsely accused and potential victims.
For those who thought the current spate of celebrity cases might be a rush to an unabated witch-hunt there are signs that the ordinary members of the public remain alive to past lessons of false allegations. The decision in the Mr Le Vell case certainly went against the expected grain and led those who have pushed the need for a new approach to come out urging that this result should not lead to a retrograde step.z
In recent weeks there has been good news for celebrity watchers with the failure to pursue Jim Davison. Others, including Max Clifford, William Roache, Rolf Harris and Dave Lee Travis, have been stoic in their defence of themselves but their particular dramas will now play out in the new year.
However interesting these cases may be they are the tip of the iceberg with virtually all those facing such allegations sharing neither celebrity nor the means to fund the defence of themselves in the same way.
The Criminal Justice System is starting to groan under the weight of sexual allegation cases with most forces now reporting a substantial increase in complaints. Complaints of this nature take a considerable amount to time to investigate particularly when the forces involved are so under funded.
This funding gap is evident from the recently reported five year low in rape case reporting to the CPS compared with a 30% increase in cases reported to the police.
We still of course also await further developments in the North Wales Enquiry with the Macur Review. In the meantime care home arrests have started with an emerging pattern of escalation around the country.
Just to stoke the fires we recently had the interviews of Jimmy Savile released from the 2009 enquiry. These are effectively portrayed by the media as Savile’s answers from the grave. It is easy to concentrate on disturbing comments in those interviews but there is little concentration on any comments he advanced in support of his denials. That’s because it remains unpalatable to consider for a moment that Savile may not be guilty of the vast amount of complainants who have come forward.
This is all part of an underlying shift we have seen in which the current agenda over sexual allegations which is being run by the media and politicians. This is the hallmark of the moral panic one in which the machinery of justice itself then becomes fearful of stepping out of line with current social perception.
In the context of historical allegations the additional difficulty that arises is we are drawn into mixing concerns over current allegations with that of historical allegations, which bring with them wholly different considerations.
So for example the judiciary in response to concerns over child witnesses are proposing a range of measures to address the issue and through the Advocates Gateway we have proposals for greater restriction of questioning of witnesses, use of intermediaries and the retiring Lord Chief Justice even went as far to advocate a position in which in the future evidence might be pre-recorded before trial. This would be an attractive idea if the state of preparation of prosecution cases weren’t so bad that there is no hope that the defence would have had all the evidence to investigate in time for such recordings.
Nonetheless trials of the process are underway and we shall see what the outcome of this is. The process has in fact been adopted in Australia amongst others. However in Australia and other jurisdictions around the world there are significant differences in the trial process, which make them more suitable for the process. In a system in which disclosure is invariably late and pressure is placed to hear cases as soon as possible the prospect becomes much more challenging.
These are difficult issues because based with the notional idea of a young child giving evidence we would all be drawn to supporting these proposals, as indicated we create problems however when we combine fresh cases with historical cases. For example the recent guidelines proposed by the Director of Public Prosecutions make clear in their introduction they mix current cases such as the child sexual exploitation cases with those concerning an adult who was a child at the time they may have been committed.
When Keir Stamer first raised these in the background of the Savile fallout in June of this year he pronounced that they would be built upon consensus. That consensus appears to be built upon those involved in prosecuting or administering justice in the court and not with those who defend the falsely accused. Certainly there was no mention of such engagement in the announcements last week.
What does the new protocol do for us above and beyond what we have already?
The answer is very little in terms of substance but plenty in terms of prejudice. Some of the measures proposed include:
– Use of an intermediaries during the video interview process
– Telling a witness that other allegations have been made
– Trawling is to be avoided but use of targeted intelligence to contact witnesses may be appropriate
– Focus should be had on the credibility of the allegations and not the witness
– Less focus on inconsistent accounts
– Prosecutors should guard against looking for corroboration of a victims account
– A merits based approach where the prosecutor adopts a notional jury position not prejudging on issues such a late reporting
– Prosecutors should look beyond victims convictions as to the drivers or circumstances of offending behaviour
– Conversely the circumstances of the suspect need to be considered as intensely as the reliability of the complainant.
– Prosecutors should take the lead in obtaining directions from the Judge over myths and assumptions.
– Ground Rule hearings in Young Witness cases to restrict cross-examination.
– A New National Protocol over disclosure
The proposals are in terms of historical allegations a recipe for further miscarriages of justice. The disclosure of other allegations to witnesses will inevitably lead to further contamination of evidence with the consequent result that more convictions by numbers will follow. Put simply if a potential witness hears evidence that other witnesses are giving there is a considerable danger they will adopt the same account as their own. This will result in a number of witnesses appearing consistent under the code and the accused charged and ultimately convicted by a jury on the basis of ‘no smoke without fire’ .
The DPP might want to learn the lessons of trawling cases in the past however in reality “targeted intelligence “ has little difference in approach to trawling and may lead to the same outcome .
The shift in emphasis away from testing the complainant’s account is a dangerous one. The evidence of many past cases is that there are allegations, which are simply not true, and the indication of this is clear inconsistencies or factual errors in the account.
The danger unfortunately is that juries in historical cases have shown themselves to be swayed by the emotion of cases and to convict where an allegation is not only doubtful but factually could not have happened. We are facing the gravest danger if we remove from our investigators the obligations to test these allegations at an early stage.
As to the suspect he or she has always faced a rigorous assessment of their credibility. Whatever the reluctance may or may not have been for example to investigate someone such as Savile this has no relation to the general approach currently employed. Generally suspects are robustly investigated and the police in building a case to support complainant’s accounts look for any possible inconsistency in the suspect’s account or any aspect of their life, which can be utilised against them.
Finally as to the question of disclosure this will not be the first time efforts have been made for a comprehensive system of disclosure has been sought. It is ultimately doomed to failure due to the varied nature of practices and policies adopted by a myriad of local authorities, social service departments and educational establishments. Whilst a consistent policy is to be applauded the likely fallout is a protocol, which won’t work, which will tie up the courts in further failed bureaucracy and disclosure applications at trial will continue to be the norm.
We are certainly now at a crossroads. If we continue to descend then the only outcome is to see a massive expansion in convictions for sexual offences, in the short term this will lead to considerable problems for the Justice Secretary in housing these men and women and in the long term the Court of Appeal Criminal Division will be facing the awful moment when the realisation of the imbalanced approach to sexual allegations we are now taking will come home to roost.
In the meantime countless lives will have been decimated. We will continue to lock up ordinary people long after the celebrity cases have been and gone and the compensation lawyers have moved on to their next targets.
Mark is a solicitor advocate and criminal law specialist with QualitySolicitors Jordans. He is an advisor to the Innocent Network UK and has overturned a number of high profile wrongful convictions - notably the cases of Ian Lawless and Anver Sheikh who overturned his conviction on his third appeal.