You know that things may be getting a little out of hand when the head of the Metropolitan Police Bernard Hogan-Howe is forced to publicly raise concerns that the current approach to child sexual abuse cases may be going too far. To informed observers this should be no surprise – Mark Barlow and I warned back in 2012 of the dangers of the new approach advocated by the then DDP Keir Starmer , now MP for Holborn and St Pancras.
What are the concerns being expressed by Bernard Hogan-Howe? It is considered that public confidence has suffered as a result of the recent controversies over Operation Midland and, in particular, that it may be wrong for police to start a case by making public declarations that ‘they believe the victims are telling the truth’.
The Commissioner believes now that the starting point should change. In 2014, Her Majesty’s Inspector of Constabulary said: ‘The presumption that a victim should always be believed should be institutionalised.’ And so now a complaint of sexual abuse must now be recorded as a crime.
Today, Hogan Howe, writing in the Guardian, says that ‘a good investigator would test the accuracy of the allegations and the evidence with an open mind, supporting the complainant through the process’.
‘This is a more neutral way to begin than saying we should believe victims, and better describes our impartial mindset. Emotionally, though, it may not be enough to give victims confidence in our approach. There’s a tension there that’s hard to reconcile.’
The result of all this is yet another judge-led inquiry – some of which seem lost in the mire and all seem superseded by the Goddard inquiry which increasingly looks set to take many years to report.
What is the purpose of a new inquiry for the Metropolitan Police and what will it actually achieve? I suspect very little. The answers are already out there and the emerging pattern of case failure (admittedly notionally – no one is collecting statistics) is that the new approach to investigation advocated by the former DPP is leading to many more failures and is not the means for ‘unheard victims’ to get justice as was envisaged .
The reality of this whole debacle post-Savile is the realisation that, whilst some genuine victims were not having cases properly investigated in the past, that in itself was no justification for changing the whole basis of testing allegations at the investigatory stage. Such a change would inevitably lead to case failure because many allegations were either false or so weak that they could not stand up to the rigor of trial.
In Operation Pallial – the investigation into allegations of sexual abuse in the north Wales care system – we have seen a very mixed bag of results. Other investigations haven’t even got off the ground.
If, for example, a case can’t even get to the half way stage of a trial due to ID failures, then serious questions need to be asked. In what sense are we helping people who are making such allegations that are so doomed to failure?
These failed prosecutions do nothing for the ‘emotional well-being’ of a ‘victim’. To be put through that process and then the collapse of the case can only damage further the person making the complaint. This can have disastrous consequences.
They will pay a high price for their day in court. The falsely accused may pay an even higher price.
It is much better for the police to test allegations made and to determine whether there is evidence which either supports it or contradicts it. Testing cases in this way not only supports a possible ‘victim’ but also narrows the risk of false accusations.
Complainants, not ‘victims’
The real danger with this change of emphasis is that it has created a culture in which guilt is assumed and cases are not tested at all. It has become commonplace for police officers to refer to complainants as ‘victims’. They are not, until a jury decides an allegation is true. Even more unpalatable has been the willingness of senior police officers to put themselves in front of the media claiming they believe the victims.
This makes it impossible for any fair or independent investigation to be undertaken. We seem to have forgotten that it is not the police’s role to decide a case; they are there to fairly collect the evidence.
Whilst the question of anonymity for those accused pre-charge is to be welcomed, we must be careful not to make this ‘a celebrity’ issue. False allegations ruin the lives of anyone accused – this cannot be one rule for one and another rule for others.
We need a system in which every allegation is taken seriously but we then fairly and independently scrutinise those allegations. Only if there is a realistic prospect of securing a conviction, do we charge and let the detail of those allegations enter the public domain.
Recent events should sound a clear alarm bell for those who have got far too carried away in this ‘moral panic’, including over enthusiastic MPs and journalists.
It is worth remembering again what the late Richard Webster said in his 2005 book The Secret of Bryn Estyn:
‘There can or at least there should be no doubt that child sexual abuse is one of the most serious problems of our age, and that it is more widespread than most people are prepared to accept. But onto this palpable and disturbing reality we too have projected a fantasy. According to this fantasy those who sexually abuse children are seen not simply as human beings who have committed criminal acts but as the ultimate incarnations of darkness, evil and cruelty. So powerful has this fantasy become and so urgent is our need to rid the world of anyone who might conceivably be a paedophile that the requirement for evidence has all but disappeared. It is for this reason that the innocent are almost as likely to be arraigned as the guilty.’
The current panic emanating following the death of Jimmy Savile has led to a feeding frenzy with wild allegations of shadowy public figures involved in sexual abuse rings. None of this has so far been found to have a shred of truth.
There has been an explosion of historic sexual offence reporting, inevitably some will be true but many will not be. It has been fed by the opportunity to be heard, pursue compensation and fight out past grievances in our crown courts.
This will inevitably fail many genuine victims, increase the chance of people being falsely accused and guarantee many more wrongful convictions.
We are ill equipped to deal with the consequences of all of this and cannot wait for Goddard to address the issues. We must accept now that we have simply gone too far, that our investigations must be rigorous and start from an impartial platform. Past failings aren’t fixed by prosecuting every case that comes along.
The police, politicians and media need to stop making public judgments and allow the criminal justice system to do its job. In the meantime the Commissioner and colleagues might be well advised to focus their investigative efforts on what they were trained to do – fairly investigating all allegations from both sides in a search for the truth.
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.