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‘Closing the blinds on mediocrity’ from billaday, Flickr, creative comms

The tragic death of 13 month old Poppi Worthington raises a number of troubling questions – not only the widely reported shortcomings in the police investigation, but also Mr Justice Jackson’s decision to publish his finding that Paul Worthington had sexually assaulted his daughter before her death. This case forms part of a recent trend in which – rightly or wrongly – criminal proceedings have not been possible and other agencies have taken it upon themselves to pronounce on a person’s culpability.

Whatever the merits of these individual cases, there is a risk that this development reinforces some of the practices that led to wrongful convictions in the past, and could create a new class of ‘ghost’ miscarriages of justice, for which there can be no remedy.

The judgment last week related to an appeal against a family court decision about who should have care of Poppi’s siblings following her death in December 2012. The police, Crown Prosecution Service, Cumbria Social Services and the coroner have been criticised for their handling of this case. Items of potential evidential value, including bedding and the father’s laptop were not secured. Only one of the expert witnesses stated definitively that the child had been sexually assaulted.

Because the other experts could not provide an alternative scenario, and the judge was unimpressed by Mr Worthington’s account of the events leading up to Poppi’s death, he found on the balance of probabilities (is it more likely than not that the alleged event occurred?) that the father had sexually assaulted his daughter. The expert evidence was so contradictory and inconclusive that it was decided in March 2015 that there was insufficient evidence to prosecute anyone – a criminal conviction would require the jury to be ‘sure’ that this had happened. It may never be known how Poppi died, but the two most likely outcomes are that either a healthy toddler died following a sexual assault by her father who escaped conviction – or a bereaved parent has been wrongly labelled an incestuous paedophile.

The higher standard of proof in criminal proceedings that contributed to this case not being prosecuted stems from Blackstone’s maxim that ‘it is better that 10 guilty persons escape than that one innocent party suffer’.

Following the appeal of Angela Cannings, where there was conflicting expert evidence as to whether her children had been murdered or died from Sudden Infant Death Syndrome, the Court of Appeal held that ‘if the outcome of the trial depends exclusively or almost exclusively on a serious disagreement between distinguished and reputable experts, it will often be unwise, and therefore unsafe, to proceed’. Whilst this might lead to the factually guilty escaping justice, the Court held that this is preferable to a factually innocent person being convicted.

Structurally unfair
The priority in the family court is, of course, the welfare of the child, and applying the criminal standard of proof would lead to more children being left in danger. The difficulty arises where courts or tribunals make what are essentially findings of criminal liability but on a lower standard of proof and without the same evidential protections. Without commenting on the specifics of the judge’s fact-finding in this case, the system seems structurally unfair – can a fact be found on 51% certainty?

A single judge making a decision of this significance echoes the concerns raised about the fairness of Diplock judges sitting alone in Northern Ireland. It also seems extraordinary – certainly from a criminal perspective – that a judge should hear an appeal against his own decision.

This level of publicity in family court proceedings is relatively recent. The Times ran a campaign in 2008 to increase the transparency of decision-making in the family courts. Its leading article stated that ‘[a]llowing the family courts and social services to operate in secret allows miscarriages of justice without the possibility of redress’.

The media took an interest in this case and challenged the secrecy of previous decisions, in part to highlight the failings of the agencies involved. Whilst this seems entirely in the public interest, it is not clear what benefit has been gained by naming the individuals in this case. Mr Worthington is apparently in hiding, following death threats. Judging by much of the publicity and the comments made online, the legal niceties of the burden of proof appear to have been lost on most people.

Media pressure on the police to ‘catch someone’ has long been seen as a contributing factor to miscarriages of justice – and this was the case long before rolling news and social media. Being suspected of a crime, however briefly, can be a horrendous experience. Christopher Jefferies gave evidence to the Leveson Inquiry about his vilification by sections of the press when he was questioned about the murder of his tenant, Joanna Yeates. Following some of the investigations into celebrities for historical sex cases, the Home Affairs Select Committee recommended that suspects should not be named unless and until charged. The acquittal of a Durham University student on two charges of rape earlier this month, led some to call for defendants in sex cases to be given anonymity until charge or even conviction. It should be reiterated that Mr Worthington was not even charged and has no obvious means of challenging the finding that has been made against him (the CPS said this week that it will review the file but this cannot exculpate him).

Due process
Allegations of sexual abuse made against those who have died recently have allowed the police and CPS to make definitive pronouncements about suspects’ guilt (including the police officer who found ‘Nick’s’ account of the VIP paedophile sex ring to be ‘credible and true’; the police call from outside the home of Sir Edward Heath for ‘victims’ to come forward; and the joint police and NSPCC Report ‘Giving Victims a Voice’ which labelled the late Jimmy Savile ‘one of the UK’s most prolific known sexual predators’). A well-documented cause of wrongful convictions was ‘case construction’ or ‘tunnel vision’ by police officers who believed they had the right suspect and viewed (and shaped) all the evidence from that perspective. Much hard work has been undertaken to try to prevent this – indeed it was one of the reasons for establishing an independent prosecution body. Creating an ethos in which the police and CPS again get to say who they think is guilty not only allows the reputations of the recently deceased to be traduced, it also risks normalising a culture that can increase the risk of wrongful conviction of the living.

Demonstrating how the boundaries of due process can then be tested further, when Lord Janner was found to have such advanced dementia that he was unable to stand trial it was decided to hold a ‘trial of the facts’, despite the manifest unfairness of such a procedure in this type of case. It was even suggested that the proceedings might continue after his death (something even the Soviet Union baulked at).

Lord Janner’s case will now be examined by the Independent Inquiry into Child Sexual Abuse. Section 2 of the Inquiries Act 2005 provides that, while a statutory inquiry cannot determine criminal or civil liability, it ‘is not to be inhibited in the discharge of its functions by any likelihood of liability being inferred from facts that it determines or recommendations that it makes’. Justice Goddard has stated that this will include naming of people who she finds have been responsible for the sexual abuse of children. The Act makes no provision as to the standard of proof to be applied by an Inquiry when making findings of fact or recommendations, rather it is up to the Chair of each inquiry to determine the terms.

The ‘flexible and variable’ approach to the standard of proof formulated in the Baha Mousa Inquiry has been followed by others, with the higher standard applied to more serious questions. The Inquiry into the death of Alexander Litvinenko, who died from radioactive poisoning in 2006, found – to a criminal standard – that he was killed by two Russian agents it named as Andrei Lugovoi and Dmitry Kovtun (the original inquest was replaced by a Public Inquiry so that material attracting public interest immunity could be considered). The coroner at the Hillsborough Inquest has directed the jury that it must consider whether the match commander was responsible for the manslaughter by gross negligence of those who died, again to the criminal standard of proof. Many of these determinations have the potential to pose a risk to the lives of those so named and the state’s responsibility under Article 2 of the European Convention of Human Rights (the right to life) may therefore be engaged.

There is an understandable public desire in all of these cases to find out what happened but if it were that easy, these lengthy, often belated, attempts would not be necessary. For understandable, pragmatic reasons when the FBI could not convict the gangster Al Capone for running a vast criminal enterprise, it pursued him for minor offences and eventually he was imprisoned for failure to pay his income taxes. This had the practical achievement of breaking up his empire but he escaped censure for his worst activities. In these current cases, alternative means – police statements, family courts, inquests and inquiries – are being used to express condemnation when formal punishment is not possible. Criminal law has a powerful labelling function, however, and we should be wary of imposing that censure without the necessary safeguards. (The Children’s Commissioner has suggested in response to the Poppi Worthington case, that the standard of proof should be lowered in criminal cases of child sexual abuse.) Tempting as it may be to circumvent these measures when considering other people, they protect us all from miscarriages of justice as expressed in Robert Bolt’s A Man for All Seasons:

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I’d cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!