December 02 2023

Pendulum swing too far? Remember the rights of the accused

Pendulum swing too far? Remember the rights of the accused

The Director of Public Prosecutions, Keir Starmer QC, today has delivered a speech calling for a national consensus on the investigation and prosecution of child abuse cases suggesting that the current ‘pendulum’ between victims of child sex abuse and the accused has swung too far away from those abused.

  • This article is written by Mark Barlow, a barrister at Garden Court North Chambers in Manchester and Mark Newby, a solicitor Advocate at Quality Solicitors Jordans in Doncaster.
  • Earlier today, Keir Starmer told the BBC there was an ‘overcautious’ approach to victims of child abuse –see HERE.

That it was time that a full review be considered in determining whether the failings identified in cases involving grooming and sexual exploitation of young and vulnerable victims, together with the Savile investigation, enabled an assessment of what lessons could be learnt.

This call to arms is a welcome development in what is a complex and difficult area of our criminal justice system. The difficulties that face the police in conducting their investigations vary from each case. There were specific failings in the original decision in the Rochdale case. The Savile case highlighted the difficulties that exist with historic allegations of past childhood sexual abuse. All cases involving any form of sexual abuse presents challenges to all concerned.

How this system deals with victims and their fear of not being believed or lack of trust in statutory agencies or the feelings that the justice system would be ineffective in prosecuting the offenders are serious issues. They will have to be addressed. The concerns of individuals being falsely accused or convicted of such serious crimes is also of the utmost importance in a criminal justice system that relies upon an adversarial system played out in front of a jury.

Ultimately it is the fairness of that process to everyone which has to be addressed in determining how we deal with child sex offences. That is not an easy task. However, in any final analysis it is the position of the accused and the right to a fair hearing that is fundamental in our justice system.

Therefore any progress in addressing these competing issues is a welcome development. Roundtable discussions and seeking the experience of those who operate in this area will go some way in developing and improving current policy and practice. However, it is vital that those discussions do not become one sided.

The danger of seeking to redefine the balance between these competing factors creates the danger that the foundation upon which we operate the trial process may become undermined. That the ‘swing of the pendulum’ towards believing all allegations made of child sex abuse regardless of the state of the evidence is an unhealthy deployment.

The issue of the reliability and credibility has always been central to these cases. Ultimately it is a matter for a properly directed jury to act upon. However the duties of the prosecution in determining whether a case should go to trial are based upon a clear test namely whether there is a reasonable prospect of securing a conviction. That is done by assessing the quality of all the evidence in a particular case and which includes the reliability of the victims. It also involves consideration of the law and the use of bad character evidence. The suggestion by the DPP that the test should be extended to an assessment of the Defendant in that decision-making process has always been a feature.

There is no doubt that all involved in these cases have learnt important lessons in this difficult area. There has been good progress with more recent cases.

As the DPP notes in the report of Baroness Stern into how rape allegations are handled in England and Wales in March 2011 it was noted that:

‘A substantial amount of change has been introduced in recent years by public authorities that carry responsibilities in this area. Attitudes, policies and practices have changed, fundamentally and for the better.’

The challenges of robustly and fairly investigating historic cases however represents a different challenge and one which arguably still appears elusive for the Police to achieve in a consistent way.

A new genre of miscarriage
In 2002 the Home Affairs Select Committee published a report into institutional abuse in care homes and labelled a number of convictions as wholly unsafe considering a new genre of miscarriage had arisen in the over-enthusiastic pursuit of those allegations. The DPP has intimated that the Committee report may have influenced the police and prosecution in their later decisions in deciding whether to prosecute similar cases. The real difficulty is that there are no statistics available to show how many such investigations had been conducted by the police in a given period. Or any information as to how many of those investigations were prosecuted or the results of the criminal trials. The same applies in regard to the number of applications to the Court of Criminal Appeal or the CCRC. Without any statistics it makes it more difficult to assess the extent of the perceived problems.

The way in which cases were conducted was strongly criticised with the committee hearing concerning evidence over police methods including police trawling and contamination of evidence by police officers.

Another worrying idea from Keir Starmer QC is the suggestion that there should somehow be a greater dialogue with complainants over other allegations made by other potential victims against the same defendant.

This is effectively a passport to contaminate any potential case and was exactly the sort of danger that the Home Affairs Select Committee warned about. Contamination leads to wrongful convictions because once more than basic information is shared it can help bolster different accounts so that they can appear to the jury consistent. Defendants then end up being convicted by numbers as opposed to a qualitative assessment of the evidence against them.

The support of victims of child sex offences should not be ignored. Witness support has quite rightly become a feature in all criminal trials. Those who have suffered require support. However, the dangers of the police supplying that support leads to difficulties with contamination. The role of the police is to investigate the allegations. The support of victims should be entirely separate and conducted by specially trained individuals who can provide that necessary support.

As for any suggestion that the pendulum has swung the wrong way there is simply no evidence to support that proposition. Further the imposition of the ability to introduce bad character in the 2003 Criminal Justice Act and re-writing of the Judges Bench Book to give clear and lengthy directions to a jury as to why people do not complain at the time have all operated to bolster the prospects of success in even the most flimsy prosecutions.

Keir Starmer QC has also called for greater training of police forces and a consistent policy across the country. If that is actually achievable it is to be welcomed but with the autonomy of individual forces and enquiry teams it is difficult to see how that could be achieved unless there is a robust system for monitoring such cases and assessing them to identify trends and delivery.

Any new system for investigating and prosecuting these cases will require clear input from all participants in the criminal justice system and the judiciary will have to bare a heavy burden in ensuring that cases which are safe to be tried are left to a jury and those that are not are withdrawn.

Lessons still to be learned
The police need to embrace a professional and modern approach to investigating these cases and the past problems of becoming overly committed to a case and losing perspective must be stepped aside from if faith is to be restored in the polices integrity to investigate these cases fairly. Any investigation into child abuse must be impartial and a meticulous investigation. The search for evidence, which supports the victim or the accused, requires proper training and an appreciation of the issues in any given case. It should never be simply the recording of the complainant.

Everyone involved in the criminal justice system plays an important role in the furtherance of justice. The dangers associated with historic allegations and lessons learnt should not be ignored. The call for a national consensus must be welcomed and all those involved must be prepared to engage in it but we must be clear on what the ultimate aim of that consensus is. It should be to ensure that both potential victims and the accused are given an equal and fair voice. But ultimately the right to a fair trial should not be undermined.