Koestler cutThe best thing I’ve heard for a long time to come from the mouth of a senior Conservative politician was Andrew Mitchell claiming that he had been falsely accused by the police in the Plebgate affair. ‘If they can do this to a Cabinet Minister,’ he said, ‘what chance have ordinary people?’ As I tweeted at the time: ‘listen to the dull clank of the penny finally dropping’.

What many of us have known most of our adult lives – carers and teachers better than anyone – that we are all vulnerable to false accusations and certainly less powerful that a Tory minister to resist them – had finally got through.

  • This article is an edited version of the David Jessel’s opening speech at the FACTuk (Falsely Accused Carers and Teachers) Spring Conference in Oxford (‘Thank you for inviting me – you have been especially generous in your invitation given that most television investigations ignore the issue of falsely accused carers and teachers, preferring the cases of good honest murderers.’)
  • David Jessel is a broadcaster, investigative journalist (Rough Justice and Trial and Error), campaigner and former commissioner at the Criminal Cases Review Commission
  • The picture is from the 2012 Koestler Trust exhibition (The Yard 2030 – Maghaberry Prison, Northern Ireland, Commended for Oil/Acrylic Painting 2007)

I think a big problem with those who are indifferent to, or unaware of miscarriages of justice is a failure of imagination. They cannot imagine the sense of utter and desperate loss when you have lost your appeal, lost your legal support, lost your liberty, your reputation, your career, your family, your life – and there’s nothing you can do about it. For my part, I remember reading a description of wrongful conviction as ‘like being tortured for information you don’t actually possess.’ They cannot imagine how, as Lord McAlpine said, ‘it gets into your soul, into your bones’. Another Tory – at this rate, criminal justice reform will be in next year’s Conservative election manifesto.

As for my time as a Commissioner at the CCRC, although sometimes dispiriting – largely due to the shadow of real possibility looming over us from the Court of Appeal – I remember two cases in particular which gave me some satisfaction. The first was that of a falsely accused music teacher who we successfully referred after a review of the science of recovered memory. Alas, he did not live to hear his conviction quashed.

The second was of a care home assistant convicted after his alibi evidence could not be supported by staff rota records which had gone missing. At least to this non-lawyer commissioner, it just felt wrong that a defendant was effectively denied his only defence – and I’m glad to say my more learned lawyer colleagues and the Court of Appeal came to the same view.

We can only hope, for his own good, that Chris Grayling gets accused of a crime of which he is innocent. Then he might know what it is like to be defended by a solicitor who is paid a maximum of £250 to read the case papers to decide if an appeal is worthwhile. Legal aid cuts are just one part of the perfect storm which is building toward hurricane force and which directly threaten the falsely accused.

A second element is the gathering momentum around the Operation Yewtree and associated cases. I make no comment on these, but I do know that all those factors that lead to false accusations will have been encouraged by the prosecutions, and none of those factors which promote caution over such allegations will have been discouraged.

I’d couple with that the new orthodoxy that ‘the victim must be heard’ which so easily blurs into the concept that the complainant must be believed. Victimology is shark-infested waters in which I do not dare to paddle – at least not in public – I’d only commend an article by the barrister Barbara Hewson which forensically anatomises and coolly critiques the changing role of the alleged victim in the criminal justice system.

Legal aid cuts, the fallout from Yewtree, and a third element – don’t for a moment believe that the higher judiciary are immune to the momentum gathering around these cases.

Consider this careful view from Lord Chief Justice Woolf in 2001 where he told The Independent of his concerns over child sex cases as presenting the greatest danger of miscarriages of justice – abuse allegations ‘were easy to make’; serious concerns had already been raised … over a number of paedophile convictions involving ‘very old offences’ from former residents of children’s homes. He said many of the recollections ‘may not be accurate’, especially when they were ‘tempted’ by awards from the Criminal Injuries Compensation Board and the police were asking: ‘Did anything happen to you?’ Plans to relax the rules of evidence could add to the danger of miscarriages of justice in child abuse cases, he warned.

Now compare that with a lecture from the last LCJ Lord Judge just a few weeks ago. Lord Judge was damning in his indictment of past processes which, he argued, ‘discouraged or effectively disenfranchised the young from coming forward’. With cases of historic sexual allegations coming to the fore ‘we are,’ he said, ‘catching up with the consequences of the problems ignored or created by earlier generations.’

Judge questioned whether or not a belief that children were not worth listening to was part of the reason for the recent emergence of so many historic sexual abuse cases. This belief, combined with rules of admissibility designed as a safeguard to protect the innocent from wrongful conviction, and the ‘competency test’, whereby ‘children below some notional fixed age could not give evidence’ simply closed the door to many children’s complaints.

In other words, the court’s thinking, certainly catching the public mood, has lurched into complete reverse from where it was 13 years ago.

Let me be frank. I believe some accusations are true. But I was always struck – when I was a Commissioner at the CCRC – by the sheer fragility of the evidence in these cases, especially when set against the consequences I referred to a minute ago.

In the end, it was so often one person’s word against the other, often with the judge weighing in to assist the jury by saying ‘you have seen the complainant. Is it possible to imagine that she could have made up so many disgusting and terrible things?’

I have to tell those judges that these days it is commonplace for young teenagers to download porn videos of anal, oral and whatever sort of sex and send clips via their mobile phones to girls saying that that’s what they’d like to do next time. We live in a different world. Maybe it’s time judges did, too.

And I wouldn’t restrict this attitude to sex cases. In cases of so called Shaken Baby Syndrome the court regularly shirks the truth that in all but obvious cases the best scientific knowledge is that we do not know what happens to some of these babies. One day, when neuroscience finally yields up it secrets, we will look on Shaken Baby Convictions in the same way we think about burning witches.

I mentioned the CCRC, and have to include that as the fourth component of my perfect storm.

When I was a Commissioner, I was shocked by the sheer volume of child sex cases – up to 40% of the entire case load. These cases were overwhelmingly rejected on the grounds that there was little or nothing that could be done. Many of them were rejected on the grounds that the applicant had not appealed, and in that event the CCRC could only refer in ‘exceptional circumstances’.

Miscarriage fatigue
Well, people often don’t appeal because they are told by their own defence team that they can’t find any grounds and the applicant is in no position to find any exceptional circumstances – they could only be uncovered by the CCRC, either through legwork of the exercise of its powers under section 17. But in this cruel Catch 22, the CCRC rejects the cases on the application form alone, on the grounds that they don’t contain any of the exceptional circumstances which the CCRC alone is empowered to discover.

To be frank, the sheer scale of these applications, much of them with no merit at all – ‘my nine year old stepdaughter never complained at the time’ – can induce a miscarriage fatigue even among the most conscientious case review managers and Commissioners. My advice to solicitors involved with the CCRC is to put the Commission on notice that they expect the CCRC at least to implement its own formal memoranda, and take the prescribed investigatory steps involving past and continuing social service records, school records and so on. These cases cannot, and should never be screened out with no further investigation at all beyond assessing the application form.

Still with the CCRC, I am disturbed by a referral rate which has reduced in crude terms from 4% when I left in 2010 to 1.6% now. Even that 1.6% is skewed by a number of asylum cases in the magistrates courts based largely on procedural irregularities – which the CCRC quite properly referred.

I honestly don’t believe that miscarriages of justice have more than halved over the past few years. I do believe, however, that there has been a steady drift away from the investigative function of the CCRC to baldly analytical, case paper processing. The foreword to the 2012/13 CCRC annual report claims that most miscarriages of justice arise from procedural matters, and that ‘there are simple checks which can usually establish whether complainants’ credibility might be an issue for consideration’.

In my practical experience of 30 years of investigating miscarriages of justice, the answer only rarely lurks in the paperwork. I have always found that whenever you actually meet a prisoner or a witness, or go to the scene of the crime, you discover something new. You are unlikely to get the same result from simply interrogating a database. At the CCRC I supported a pilot programme where in every sex case the applicant should at least be seen. This was soon closed down by the accountancy tendency of the CCRC as being expensive and of no quantifiable advantage.

Resources do have an effect on delivery, and that’s as true of justice as anything else – 35 case review managers cannot do justice to 1600 cases a year.

Time for a truce
I come to my fifth, and probably the most depressing element – in what I confess has been a less than cheerful speech. But I believe it contains the seeds of hope.

We have lost interest in miscarriages of justice. As a former Channel 4 boss told me rather languidly, Miscarriages of Justice are a bit 80’s. Today, the quashing of a conviction after nine years scarcely warrants a paragraph – even in the Guardian.

It doesn’t help that those who are concerned about miscarriages are in a state of civil war – innocence projects notoriously clawing each other’s eyes out, squabbling over cases, refusing to co-operate with the media – “why should we give all our research to you?” – in one case persuading a prisoner to abandon his solicitor (an iconic figure in the history of miscarriages of justice). The divisions in our mission show that we have dropped the torch that my friend and hero Ludovic Kennedy lit, and it can only serve to please those who are indifferent to justice.

Let me appeal for a truce.

We can all work together towards the discovery and cure of miscarriages of justice. If the CCRC hasn’t the resources to do the investigative spadework, let’s hand the task to those students in the Innocence Projects to bring to the CCRC and say – ‘what do you make of that, then?’ Let’s encourage the CCRC to be more open to cases with a high media profile – they have a high profile because journalists have done some digging and come up with new evidence.
I do detect a renewed concern about justice in this country. Hillsborough, Plebgate, Tomlinson, undercover policemen, made-up crime figures, the appalling shortcomings of the Police Federation – all are once again fanning the spark of concern about our criminal justice system. The success of the Justice Gap website – I beg you to follow it – is also another straw in the wind.

I have always been an optimist – it’s what made me in 1985 choose to present Rough Justice rather than the Holiday programme. No brainer, because I believe that whether its Hillsborough, the Birmingham Six, the Luton Post Office murders which went back to the Court of Appeal five times before justice prevailed, the case of Eddie Gilfoyle, even maybe Lockerbie – the truth does have a habit of worming itself to the surface.

It needs help to do so. It needs an awful lot of help. But I sense a mood in society more ready to accept that terrible mistakes are made in the name of the law; the growth of the feeling that if we are to put the needs of victims first, that includes victims of justice and false accusations.

Even Channel 5 are about to launch a miscarriage of justice series. The pendulum has a habit of swinging back, but it needs the continued momentum of the falsely accused individually and collectively, and of FACT as an organisation. It needs the falsely accused and wrongly convicted to have faith that however abandoned they feel – they are not alone.

There is hope. The time will come. Public concern about justice and the falsely accused is returning. After all, if Andrew Mitchell can see the light, it could happen to everybody.

Profile photo of David Jessel About David Jessel
David Jessel is a broadcaster, investigative journalist (Rough Justice and Trial and Error), campaigner and former commissioner at the Criminal Cases Review Commission.

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