REPORT: Campaigning organisation FACT (Falsely Accused Carers and Teachers)’s Spring Conference on Wrongful Accusations of Abuse was held on May 30th, under the aegis of Cardiff Law School. The morning session consisted of break-out groups for members, to discuss their own experiences of how false allegations have affected their families, and to offer mutual support.
After lunch, the radio presenter and retired schoolmaster Simon Warr gave an electrifying address about his own experience of being arrested, charged and finally acquitted of allegations of historic abuse. He stated that post-Savile: ‘Here in the UK we are in the face of a firestorm of historical child abuse allegations.’ See here for Simon Warr’s account.
Warr said he had lost faith in many things: in the presumption of innocence; in a system which can keep an accused’s life on hold for two years, while the police trawled for other complainants, and in the police themselves, who exhibit confirmation bias instead of investigating with an open mind. He noted that the police like to target educated professional people, as they are more disposed to cooperate and answer questions. He said that the compensation culture is largely to blame for false allegations. He called for accused persons to be treated fairly and justly.
Professor Goodyear-Smith of the University of Auckland then presented a lecture on ‘Why would anyone make a False Allegation?’ Her analysis started with external factors. She referred to various ideological agendas, notably 1980s feminism, which portrayed women as powerless victims of patriarchy, and men as potential rapists.
Moral crusaders also insisted on a duty to believe. This resulted in the 1980s moral panics about satanic ritual abuse and ‘paedophile rings’. Such uncritical beliefs have resulted in the balance of justice being tilted in favour of complainants, who are now seen as ‘victims’ who should be ‘believed’. A further factor is suggestive and repetitive interviewing techniques; visualization techniques the use of anatomically correct dolls, and the use of psychological reinforcement (‘you’re really brave for telling’).
Next is the phenomenon of ‘confirmation bias’, where over-zealous professionals believe that abuse must have occurred, and selectively withhold or distort evidence. An egregious example of this is the case of George Gwaze, wrongly accused and twice tried of murdering his niece, despite overwhelming evidence that she had died of natural causes. Goodyear-Smith recently published a book on this case (here).
Goodyear-Smith also blames modern feminism’s preoccupation with ‘affirmative consent’. She said the idea of consent to sex as an ‘ongoing process’ is completely ludicrous. In reality, consent is seldom, if ever, explicitly sought or given: instead, it is usually indirect for both parties. Misinformation and confusion about legal definitions of consent are a cause of false allegations.
She then went on to consider various internal factors, which can give rise to false allegations. She criticised therapy culture, in particular the ‘self-help bible’, The Courage to Heal (1988) that she said did ‘colossal harm’ in the 1980s and 1990s. The erroneous belief that an accusation’s veracity is somehow correlated with the degree of of detail, emotional intensity and degree of confidence of its narrator (which may be the result of counselling) has also led to false claims. An extreme illustration of false claims being generated by counselling is the panic about Satanic Ritual abuse, in which therapists ‘uncovered’ extreme atrocity tales from their clients.
Goodyear-Smith went on to discuss problems with memory, a fertile source of false allegations. Retelling constructs memory and hence a person’s reality. She quoted Carol Tavris: ‘Memories create our stories, but our stories also create our memories.’ A claim may be partly remembered, and partly true. But it can be deliberately embellished, or vitiated by an honest mistake.
The tactic of ‘corroboration by volume’ –the charging of multiple claims by multiple claimants in the hope that each claim is somehow capable of reinforcing the others, also known as ‘no smoke without fire’ – can generate a few guilty verdicts, thus giving some credibility to other accusations.
Even a deliberate liar can come to develop a sincere belief in his or her falsehoods. And experience has shown that elements of truth can be incorporated into an elaborate web of false allegations, as Richard Webster has shown in his discussion of those ‘lying for love’. Personality disorders, a desire for fame and attention may also be a factor in false allegations. Finally Goodyear-Year Smith drew attention to child custody disputes, a fertile source of false accusations. In such cases, suggestive informal questioning can contaminate a child’s memories.
Professor Julie Price of Cardiff Law School then spoke of the Cardiff Innocence Project, and the problems caused by police trawling. In one case she referred to, police approached a witness twelve times in a month to try and get them to make a complaint. (A member of the audience commented that he had been approached four times by police as a boy to solicit a complaint against his teacher, which he refused to make).
Her colleague Holly Greenwood gave an account of a case, which they are seeking to have the CCRC re-open. Dr Dennis Eady then discussed the difficulties in practice getting cases reviewed by the Criminal cases Review Commission. This requires ‘new evidence’, as opposed to the approach recommended by the Runciman Commission in 1993, which advocated that a verdict should be reviewed if it was ‘unsafe’.
Eady expressed frustration with the prevailing belief in jury infallibility, which he described as irrational. He also criticised a prevailing one-dimensional victimology, summed up in the slogan ‘We believe’. He pointed out that evidential requirements are now minimal, and pointed to the raft in changes to criminal procedure and evidence, which have made it easier to prosecute by removing safeguards for an accused. These include the abolition of the need for corroboration; the new approaches to sexual history evidence, bad character and hearsay, and the Court of Appeal back-tracking on Pendleton (2001) in O’Donnell (2012). He argued that prosecuting very elderly defendants in the absence of former historic safeguards was itself a form of elder abuse.
The day concluded with a panel discussion and Q & A involving me, the criminal barrister and blogger Matthew Scott (here), Dr Mark Smith of Edinburgh University, former Duncroft resident Susanne Cameron-Blackie (who blogs as ‘Anna Raccoon’), and leading criminal defence solicitor, Chris Saltrese. The subject was how to reduce false allegations.
Saltrese said that several thousands have been wrongly convicted of historic offences, and this was a national disgrace. He said that there is a huge personal injury industry and that historic abuse is a big part of that. He noted that since 1995, recorded crimes have fallen by 50%, yet we have an increased number of police officers with time on their hands. He called for a statute of limitations for crime of 3 years, though he would allow an exception in cases where there was strong independent corroboration (e.g. DNA evidence). As matters stand, those accused of historic offences have no prospect whatever of a fair trial, such is the erosion of safeguards for defendants. The position is different for those accused of contemporary assaults. He also criticized modern victimology.
‘If you control the language, you control the debate. “Survivor” is a term nicked from the Holocaust.’
I also put in a plug for such a Statute of Limitations, given the sheer unreliability of human memory. I suggested a model endorsed by ancient Athens: five years, save in cases of homicide, which should have no time limit. The present situation, in which we have nonagenarians put on trial, and criminal charges dating back to 1947, is insane. The criminal justice system is failing to face up to the lessons of memory science, unlike the Commercial Court (here).
Susanne Cameron-Blackie said she did not support limitation in criminal cases. However, she strongly objected to compensation claims by complainants in historic abuse cases, arguing that they have sufficient just satisfaction, if the person whom they accuse is convicted. She also considered that the way in which sexual offences are categorised now is giving the public a very misleading idea of sex crime. She thought that whilst all the changes to the criminal law of evidence are defensible, seen individually, the problem is when they all operate together.
Matthew Scott said that far too many historic allegations are being prosecuted in very unfair circumstances. A tide of very weak, unfair cases is now reaching court. He said that the Court of Criminal Appeal has been very feeble in supervising these prosecutions, and has eroded the principle of abuse of process, which is now very close to being a dead letter. Other changes in the law have made it easier to prosecute: the removal of the need for a corroboration warning, and the weakening of the ‘similar fact’ evidence rule. Finally, he put in a plea for abolition of the dock, an eighteenth-century anachronism.
Dr Mark Smith commented on the new atmosphere post-Savile, and the intense fear of the media, which now seems to drive criminal justice policy and practice in this area. He mentioned a very recent lecture by Professor David Garland at the University of Edinburgh on 27 May, ‘What is Wrong with Penal Populism?’
Barbara is a barrister practising at 1 Gray's Inn Square. She specialises in public and administrative law; human rights & civil liberties; and professional discipline and regulatory law. Her practice includes mental capacity and court of protection work, judicial review, inquests, healthcare law, professional discipline and employment law.