To catch a sex offender: the making of a new genre of miscarriage of justice
This is the first part of three part article by the investigative journalist David Rose to be run on the Justice Gap. It is from a new book Wrongful Allegations of Sexual and Child Abuse (edited by Ros Burnett; published by the Oxford University Press)
I can remember the exact moment when alleged ‘historic’ abuse and false allegations first entered my consciousness, because it happened to be the day of my wedding on 1 July 2000 to Professor Carolyn Hoyle, now the director of the University of Oxford’s Centre for Criminology. One of our guests was the criminal barrister Andrew Hall QC. He thrust a copy of Richard Webster’s first book on the subject into my hands, and told me I had to read it. A few months later, my BBC Panorama programme, In the Name of the Children, was the result.
The Panorama film drew general conclusions, but mainly focused on a single case, that of Roy Shuttleworth, who had been a teacher at an Approved School in Cheshire, Greystone Heath. He was convicted and sentenced to 12 years’ imprisonment in 1996, on the evidence of eight former inmates who said he abused them in the 1970s, more than 20 years before his trial.
Greystone Heath was one of many institutions in the Northwest which were the subject of ‘trawl’ police inquiries. In each, the method was the same. Following an initial allegation against a former member of staff, the police would contact as many former pupils or inmates as they could. This could run to many hundreds for each institution concerned. Detectives would ask them whether they had been abused, sexually or physically, and those who said they had been often became witnesses at subsequent trials.
Many of those the police spoke to had been in care as children or given custodial sentences as juveniles, and many had later been convicted and imprisoned as adults. All the ‘victims’ who gave evidence against Shuttleworth had convictions as adults for crimes of dishonesty, and three were in prison during his trial. According to Richard Webster, the officers who conducted Operation Granite, the Cheshire Police investigation into Greystone Heath and other institutions, made special arrangements with the prison authorities to take such men out of their jails and interview them in the relative comfort of police station rape suites. Meanwhile, word spread rapidly along prison landings that for those who alleged they had been abused as children, there was compensation to be had, either from the Criminal Injuries Compensation Authority or through civil damages claims. Unless there was compelling evidence that their stories were false, complainants were treated as and categorised only as ‘victims’.
As I delved into the Shuttleworth case, it became clear that important interactions between police and their eventual witnesses were often poorly recorded, or not at all. In many cases, I discovered, police had met alleged victims several times before their statements were produced and signed, but did not create any reliable record of such pre-statement interviews. None were audiotaped, let alone recorded on video. There were thus risks that witnesses might be ‘led’ to their statements, that inconvenient details which did not fit other, verifiable facts could be changed or excised before they were committed to paper, and that claims from one complainant might be fed to another. This might lead to an appearance of corroboration, where the reality was a mutual collusion to tell lies.
The allegation ‘wigwam’
The House of Lords had set a precedent that multiple allegations that were not ‘strikingly similar’ could be held to be mutually corroborating, even if there were no other supporting evidence (DPP v P (1990) 93 Cr App R 267). Professor Mike McConville, then of Warwick University, described this in an un-broadcast portion of his interview as a ‘wigwam’, with ‘allegations propping each other up, like drunken men’.
In regard to Roy Shuttleworth, my colleagues and I were able to cast factual doubt on every allegation against him, mainly by showing that central details of the ‘victims’ statements flew in the face of other, externally verifiable facts. The most surprising moment in our research came when I interviewed one of the complainants, who had given evidence that after Shuttleworth forcibly subjected him to anal sex in the Greystone Heath showers, he escaped by jumping from a first floor window in his accommodation block, and then ran across the grounds to the headmaster’s office. He claimed that, naked and bleeding from his anus, he had covered a distance of about 400 yards in full view of a busy road, without any motorists or pedestrian passers-by noticing. On arriving at the head’s study, he went on, he was not only disbelieved, but caned on his naked buttocks.
By the time we made the programme, Greystone Heath had long been abandoned, and was semi-derelict. But I managed to gain access to the buildings and inspected the windows of the block where the ‘victim’ said he jumped through the first floor window. All the windows in the block were barred with thick slats of solid steel. I measured the gap between each slat: three inches. I asked the witness if he remembered this, and how he had managed to fit through. He replied: ‘That’s right, but I was skinny, weren’t I.’
Like many trawl investigations, Operation Granite began in 1993 with allegations to police that were almost certainly genuine: Alan Langshaw, the former teacher who was their object, pleaded guilty. Inspired by the recent example of inquiries into historic abuse in North Wales, which had attracted immense, national publicity, the police began their trawl.
The apparent credibility of complainants who could not possibly be telling the truth was impressive. One former Greystone Heath pupil told me that among other assaults by Shuttleworth, he had been forced to masturbate him when they took a shower together. He was quite insistent, saying he had made a statement after the police showed him photographs of former members of staff and he recognised Shuttleworth as the man who had abused him. No doubt he would have given evidence at Shuttleworth’s trial, had not the police, at a very late stage, discovered an inconvenient fact: this supposed victim had left Greystone Heath in 1967 – seven years before Shuttleworth started working there. Even when I put this to him, he stuck to his bogus story, telling me: ‘It did happen. He was there. He was there, Shuttleworth’.
The complainant also revealed he had made a claim for compensation through a firm of solicitors, which had enrolled him as a client and obtained legal aid. Now that the discrepancy in dates had emerged, he said he had been compelled to withdraw this claim. In his view, this was a grave injustice.
Long before the trials of Shuttleworth and others, several law firms were putting together a class civil action, which eventually included more than 700 complainants. In this, there was no one more energetic than Peter Garsden of the Cheadle Hulme firm Abney Garsden McDonald (now Abney Garsden). By the time I interviewed him in the autumn of 2000, he had 350 clients in this single class action. He was also a founder of the Association of Child Abuse Lawyers, of which as of this writing in 2015, he is president and media relations officer. The programme’s time restrictions meant only a small proportion of Garsden’s interview was broadcast, so most of what follows here, taken from the transcript of the recorded interview, is published now for the first time.
A fight between good and evil
Garsden was candid about the closeness of his relationship with the police, saying: ‘It very quickly became apparent that it was important for us and the police to have a symbiotic relationship with each other. They depended on us, and we depended on them.’ That meant ‘the police would want us to refer any new complaints of abuse that they didn’t know about to them, because it would help them in their process’. In turn, ‘we depended on them, because we wanted from them as much information about the pending criminal trials as possible, so that we could attend court, take notes of evidence; we wanted statistical information about allegations of abuse, who was abused at which home.’
He admitted that the ‘two systems,’ criminal and civil, were therefore ‘running in parallel’. But he said he was confident that there was no danger of this ‘symbiosis’ contaminating the criminal process. His reason was that the police made it clear they wanted the solicitors to ‘do as little as possible’ before criminal trials. Witnesses would not therefore be giving criminal evidence when civil proceedings were already current – although they were, of course, in prospect.
As a Merseyside detective superintendent, John Robbins was in charge of Operation Care, a trawl investigation into homes and schools which saw twenty former staff convicted for historic abuse – as well as the acquittal, a few weeks after In the Name of the Children was broadcast, of David Jones, the former manager of Wolverhampton Wanderers football club. (He had worked in an institution in Liverpool as a young man.) Meanwhile, Robbins had joined Peter Garsden’s law firm.
In an interview with me, he admitted he was now helping to support the civil damages claims of some of the same individuals he had previously come across as alleged victims in criminal trials. But like Garsden, he insisted there was no danger that the prospect of compensation could contaminate police inquiries. ‘I sleep easy in my bed. We were searching for the truth,’ he said. As for the advice he had given to personal injury lawyers not to lodge claims until criminal trial were complete, he commented: ‘My advice was designed to avoid creating the impression they [alleged victims] were in it only for the money’.
Arguably, that impression could have been said to be misleading.
Thanks to generous legal aid funding, it was evident that fighting claims on behalf of alleged abuse victims was good business. At the time we met in 2000, his firm’s historic abuse department was employing 16 people, including six solicitors and three assistants. But the money he was making was not, he said, his primary motive. He said he believed that he was, quite literally, doing the work of the Lord, while some of his opponents – those who defended historic abuse law suits or suggested that innocent people might be convicted of abusing children – were agents of Satan: ‘I believe that really, we’re messing with the Devil, because you know, child abuse is evil, and the people that get involved in it are powerful, manipulative people. They will do their level best to stop us succeeding and stop us getting justice for the victims.’
I asked him: ‘Is this the Devil at work?’ He replied: ‘It is, it is, and that was something that never occurred to me before I became involved with a Christian pressure group. And it was them that said this to me. I mean, within the umbrella of abuse is Satanic Abuse. And that is a lot more closely associated with the Devil than this [historic school and care home abuse] is, but it, but this is still an evil force, definitely.’
Convinced of the righteousness of his cause, Garsden refused to accept that anyone who claimed to have been a victim of historic abuse might be lying: ‘Nobody in this world is going to put themselves through what these people have to put themselves through, if they’re telling a pack of lies. It’s absolute nonsense.’ It was true, he averred, that there had been occasions when a ‘survivor’ had made allegations against people who turned out not to have been working at an institution at the same time as they were an inmate: this was exactly sort of discrepancy that defence counsel liked to exploit to discredit a witness. He told me: ‘Defence teams will play games with these sorts of discrepancies, that’s their job. Their job is to suggest that the account is “unreliable”.’
Yet this, Garsden said, did not ‘shake the truth’ of the central allegation of abuse. In his view, such discrepancies could invariably be explained by the passage of time: ‘You find that the peripheral details are sometimes inaccurate, because it happened so long ago. But the central memory of the abuse stays with them. It comes back to them in nightmares on a daily basis… Everything else sort of surrounds that and is, you know, detail.’
Garsden was far from unique. Solicitors in other parts of the country were equally assiduous in generating historic abuse lawsuits, and in working closely with the police. One example I examined some months after making the programme was that of Forde Park School in Devon, where the law firm Woollacombe Beer Watts had been collaborating with another police inquiry, Operation Lentisk.
Lentisk – which led to several criminal convictions and lengthy sentences – owed its very origins to the search for compensation. In the autumn of 1996, long before Lentisk started, a former pupil named Andy Kershaw formed the Forde Park Survivors’ Group. He told me its express purpose was to press for damages from Devon County Council, the local education authority, not only for alleged abuse but for its supposed failure to provide a ‘decent education’.
Kershaw said that he believed that to stand a chance of success, he needed corroborative evidence from other former pupils: ‘The only way forward, as I saw it, was I had to speak to other people.’ He said he used local radio and newspapers to ‘advertise’ (his word) for other alleged victims. By early 1997, he went on, about 65 former pupils had contacted him. He wrote to all of them, urging them to try to start legal proceedings, and they agreed that Kershaw would try to get legal aid. If successful, the other members of the group would follow his example and sue.
Kershaw also lobbied the police. At first, he said, they were not prepared to launch an inquiry because of the three decades that had elapsed since the alleged abuse. Their disdain meant the survivors group was ‘concerned we weren’t being taken seriously. So we contacted the press.’ A series of media features about Forde Park ensued. Some made outlandish allegations – such as that pupils were forced to endure brain operations without their consent. The group also organised lobbies of Parliament. Finally, Kershaw said, in 1998 the police agreed to begin Operation Lentisk.
Meanwhile, Kershaw got his legal aid. By the time the police inquiry started, the survivors’ group had employed a solicitor, Woolacombe Beer Watts’s Penny Ayles. Between December 1999 and April 2001, Ayles organised several meetings for the survivors at an Exeter hotel. There, it was explained they could expect different levels of damages for different kinds of abuse – up to £50,000 for buggery, but significantly less for mere physical assaults.
When I interviewed Ayles, she confirmed that some of her clients had spoken to the police only after making statements to her. But like Peter Garsden, she denied that the civil and criminal legal processes had become dangerously blurred, creating a risk of false allegations. Again like Garsden, she believed the traumatic impact of ‘disclosing’ the alleged historic abuse was simply too great, and could not be feigned: ‘I would think it highly unlikely, having met the clients and seen the devastating effects [of their alleged abuse] on them.’
My investigations into Forde Park focused on the case of Brian Ely, a former teacher and scout troop leader, whom I met after his conviction in the forbidding setting of Dartmoor prison. Sentenced to 15 years, he protested his innocence throughout.
I found one piece of evidence that supported his assertion: a man whose own family claimed he had lied about Ely and Forde Park after contact with the survivors’ group. Both his partner and mother-in-law told me he had only ‘come forward’ after seeing a TV news item about Forde Park. Afterwards, he had gone to a group meeting, and only then announced he intended to concoct a bogus story. ‘As far as I am concerned,’ his mother-in-law said, ‘he is lying when he says he was abused and is doing it for compensation.’ Of course, as with any alleged victim of a sexual offence, the protection afforded by the Sexual Offences Act means his name could not be published. This restriction lasts for the lifetime of the complainant, no matter how strong the evidence is that he or she has lied.
‘A new genre of miscarriages of justice’
By the time of the 2001 General Election, awareness of the dangers of false allegations and convictions was spreading. The former Merseyside Labour MP, Claire Curtis-Thomas, had displayed considerable political courage by giving a forthright interview about these risks for In the Name of the Children, and went on to found the All-Party Group for Abuse Investigations to press for reform.
After the group’s inaugural meeting, the then-Lord Chief Justice, Lord Woolf, said in an interview that there might well have been wrongful convictions in historic abuse cases. The evidence given by some complainants ‘may not be accurate’, he said, especially when they were ‘tempted’ by compensation awards. The dangers were especially great when solicitors and police conducted trawls and asked them, ‘Did anything happen to you?’
After the election, the Labour MP Chris Mullin was appointed chairman of the Commons Select Committee on Home Affairs. Before he became an MP, he had worked for the ITV programme World in Action, and led its eventually successful attempts to find new evidence that would undermine the wrongful convictions of the Birmingham Six.
I wrote to him and urged him to hold an inquiry into trawl inquiries and historic abuse. Later, along with Richard Webster and Bob Woffinden, a doyen among investigative reporters concerned with miscarriages of justice, I gave evidence to the committee. Its fourth question for potential witnesses at the outset of the inquiry was: ‘Is there a risk that the advertisement of prospective awards of compensation in child abuse cases encourages people to come forward with fabricated allegations?’ In our evidence, all three of us answered this in the affirmative.
The committee’s 2002 report, among whose signatories was the future prime minister David Cameron, was an outstanding document, warning that trawl inquiries into historic abuse had produced ‘a new genre of miscarriages of justice’. Mullin said at its launch: ‘I am in no doubt that a number of innocent people have been convicted and that many other innocent people, who have not been convicted, have had their lives ruined.’
The report made many recommendations designed to reduce these dangers. Rejecting the argument made to me by Peter Garsden, that discrepancies between the details of victims’ claims and other, verifiable facts did not ‘shake the truth’ of a complainant’s allegations, it recommended that complainant’s claims be subjected to ‘statement validity analysis’ as a tool for assessing their credibility. It also recommended that allegations that were more than ten years old should only proceed with the permission of the court, while the requirement that similar fact evidence could only constitute corroboration when there were ‘striking similarities’ between different allegations against the same individual should be restored.
Peter Garsden had given evidence, denying that solicitors’ relationship with the police was (as he had earlier told me) ‘symbiotic’. He told the committee that in fact, the police regarded him as a ‘pain in the neck’. Nevertheless, the committee stated that it was deeply concerned about the absence of rules governing relationships between the police and personal injury solicitors in historic abuse inquiries. It recommended that the Home Office should issue clear guidelines, to be drawn up in consultation with the Association of Chief Police Officers. The report’s conclusion added: ‘The potential for compensation to act as an inducement for giving false or exaggerated evidence during investigations of this kind, is another area of real concern. To minimise this risk, we have recommended that the working relationship between personal injury solicitors and the police be guided by a ‘model relationship’, to be drawn up by the Home Office.’ Nevertheless, ‘much can be done to improve the conduct of future investigations and prosecutions’.
On 16 October 2002, Claire Curtis-Thomas succeeded in holding a Commons debate to discuss the committee report, in which the Conservative shadow attorney-general, Edward Garnier QC, acknowledged the risks of miscarriages of justice, citing the cases of two of his own constituents. It appeared that the dangers of false convictions were beginning to be recognised by both main parties.
The following year, the Labour government’s response showed such optimism was unjustified.
Trawling was henceforth to be re-branded as ‘dip-sampling’, but the only important committee recommendation that the government accepted was that all interactions between witnesses and police should be recorded. The committee’s proposals on similar fact evidence, statement validity analysis and cases that were more than ten years old were all rejected. Underlying the committee’s report had been the assumptions that there had been many false allegations and wrongful convictions, the response said. However, while the ‘government… respects the views of the Committee,’ it ‘ does not share its belief in the existence of large numbers of miscarriages of justice’.
The response’s comments about personal injury solicitors and the lure of compensation refused to recognise that this might be a problem – adding that in any case, relationships between the police and lawyers were already covered by a Home Office (2002) circular, Complex Child Abuse Investigations: Inter-Agency Guidance. Section 68 of the response was the most negative of all:
The Government does not think that the existence of a problematic relationship between police forces and firms of solicitors has been substantiated, and therefore specific guidelines are not justified. The assumptions that civil compensation claims have driven false allegations, or that impropriety has existed in relationships between police forces and firms of solicitors is not supported by any evidence.
This is an extract from a chapter in the OUP book edited by Ros Burnett: Wrongful Allegations of Sexual and Child Abuse, available at 20% discount if ordered direct from Oxford University Press (here).