WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
February 19 2024
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
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Defenceless in the justice system

Defenceless in the justice system

This is a review of the trends underpinning historical sexual abuse case applications made to the Cardiff University Law School Innocence Project by people maintaining innocence

 

Our project (Cardiff University Law School Innocence Project) is a pro bono organisation based at the Cardiff University School of Law & Politics.  It engages law students, under staff supervision, to investigate cases where someone has been convicted and is claiming innocence, and has no ongoing legal assistance. 

It is difficult to ignore what we see as a recent increase of sex offences cases in the criminal justice system. It is also difficult to ignore the socio-political atmosphere surrounding allegations of sex offences, and the way in which this impacts upon criminal trials. We have seen this first-hand: 63% of the 244 requests for help we received between April 2019 and March 2022 related to convictions for sexual offences. These are, predominantly, recent convictions for historical offences.

Driven to delve deeper into this phenomenon, some of our students undertook a review of our sex offences caseload. We used a sample of 20 cases to extract and analyse data that could display trends, correlations, and threads of common themes. The rationale behind the review was to assess potential underlying causes of wrongful convictions in the sex offences arena. We presented this review at the FACT Spring Conference 2022 in Birmingham. This article is a condensed version of the larger set of data and analysis we presented at the Conference, which will be published in the upcoming issue of Faction magazine.

It is important to state that none of the analysed convictions have been overturned and are all alleged wrongful convictions. We cannot claim definitively that these findings reflect what is happening within the wider criminal justice system; rather, they are confined to the Cardiff project’s caseload. Notwithstanding that, our project does not exist in a vacuum. So, readers may want to reflect on whether our project is a microcosmic representation of the criminal justice system, potentially manifesting issues that are present in criminal trials across the country.

Most Significant Findings of the Review

Grounds of Appeal: 50% of the sampled defendants had attempted to appeal their convictions. The most common grounds were: (i) failure to adduce defendants’ medical conditions and (ii) abnormalities regarding times, dates, and locations in complainants’ evidence. Fresh evidence – commonly viewed as necessary to appeal/investigate convictions – was the least common. All defendants who attempted to appeal were unsuccessful.

Correlations with a Relationship Breakdown: 70% of the sample contained allegations which indicated a relationship breakdown, whether family or non-family related. The majority of cases contained family-related breakdowns, which subsequently led to allegations being made. Common causes of family breakdowns included: the complainant’s parents splitting up, falling out or getting a new partner; jealousy; and general conflict in the family home.

Psychological Evidence: Our review found an inconsistent approach to complainants’ and defendants’ psychological issues. 75% of complainants reported psychological issues at the pre-trial stage, and 20% of this evidence made its way into the trial. Yet, while 35% of defendants reported psychological issues at the pre-trial stage, none of the evidence found its way into the trial. There is also a clear lack of progression, among both sides, of psychological evidence from the investigative stage into the trial arena.

Long Average Length of Delay: Our sample indicated a 19-year average delay between the alleged offence and conviction, ranging from 2-38 years.

Counselling: In 35% of cases, the complainants were involved in counselling prior to making the complaint. While we do not seek to establish a causal link between participating in counselling and alleging the commission of an offence, false and more elaborate memories can sometimes arise through certain techniques used by counsellors in exploring or ‘recovering’ memories.

Background of the Complainant: Little weight was given to the background of the complainant and how this may affect their reliability. Certain complainants in the sample had a history of making false accusations (often recorded in Social Services records), which were not admitted at trial. Furthermore, inaccuracies in complainants’ evidence were often discounted and put down to the amount of time that had elapsed since the alleged offence. While we do not deny that it is a normal and natural process for the storing and relaying of memories to undergo distortions and inaccuracies, we nonetheless found that the way this is treated in trials places a level of unfairness on defendants’ abilities to refute allegations (by presenting alibi evidence for instance).

Physical Evidence: In 40% of cases, there was alleged physical injury claimed at trial by the complainant relating to the reported abuse suffered. However, medical evidence that could substantiate these claims was only presented in 25% of these cases and again the link to abuse was tenuous; there may have been other causes.

Insufficient Special Measures Provision: Our review confirmed the literature: the provision of special measures to complainants far exceeds provision to defendants in need of assistance. While all complainants in the sample benefited from special measures, only 10% of defendants received any assistance, and these related to hearing and translation issues. In our view, this demonstrates a level of neglect and lack of support for defendants throughout the trial process.

Policy Recommendations/Implications
Is there a solution?  The data we have examined from the project suggests that there needs to be a better balance underpinning the rights of people navigating the criminal justice system. The following changes, as a minimum, are needed:

  1. greater caution in charging historical allegations where no other evidence can be identified;
  2. the defence must be encouraged to explore at trial any psychological issues that might affect the reliability of a complainant;
  3. better use of psychological and other experts to increase the understanding of individual conditions and potential for false allegations or false memory; and
  4. restrictions on the use of claims of physical injuries, illnesses, or mental health problems as evidence of abuse, without any evidence of a link to the alleged abuse.

The reader is also invited to consider whether, to preserve the fairness of trials, there should be a statute of limitations: a time limit on the CPS’ ability to bring forward cases of historical allegations.