How recent changes within the criminal justice system are combining to erode traditional safeguards and are thus leading to miscarriages of justice in prosecutions of sexual offences. By Bartle Frere (2017)
The term sexual offence encompasses any offence of rape or indecent assault involving adults or children. Recent years, particularly since the eruption of the Jimmy Savile scandal, have seen a massive rise in prosecutions for sexual offences, following a fundamental shift in how the authorities – particularly the police and Crown Prosecution Services (CPS) – deal with allegations and with those making them. Several changes have been enacted in the criminal justice system that are unique to cases of sexual crime: there is no time limit to the reporting of allegations; no corroborative evidence is necessary for a charge to be brought and restrictions have been placed of the cross examination of complainants. Furthermore, high levels of compensation are now available to alleged victims.
It will be argued that these factors combine in a post Savile climate to cause prosecutions to proceed where they would not previously have met the evidential threshold for charging. Furthermore, it will be reasoned that juries are convicting in many such cases despite not reaching the state of ‘beyond reasonable doubt’ that is traditionally required for a guilty verdict.
Sexual crimes present a unique set of problems to the investigating authorities. Usually there are no witnesses to such crimes and, unless the crime is reported almost immediately, there will be little, if any, forensic evidence to back up the allegation. The very nature of such crimes means that they are often not reported for some considerable time. The embarrassment of having to report details of such an unpleasant experience – and inevitable disclosure to family and close friends – combine with feelings of self-reproach and disgust that the victim ‘allowed’ the act to occur. It is a common feature of prosecutions of sexual offences that many years have passed between the alleged offence and the institution of proceedings. The usual reason for this is that the complainant has delayed making any form of allegation of impropriety such as would trigger a formal investigation.’ (Arhibold 2017,p.2227). In the case of children, coercion and persuasion may have been applied that convinced the child for many years that either such an act was perfectly normal, or else that the child itself was at fault for allowing it to happen.
During the past three decades, there has been a realization, not only of these difficulties, but also of the fact that the authorities were too quick to dismiss complaints from women and children when they did come forward. ‘Too often genuine victims were treated with disrespect and disbelieved, leading to a form of impunity that brought terrible danger to children and violence to women.’ (MacDonald 2017). Furthermore, such complaints – particularly if they were historical (i.e. relating to alleged incidents more than five years in the past) – stood little chance of resulting in charges being brought or of a guilty verdict being reached. Until Tony Blair’s government introduced a completely revised Sexual Offences Act in 2004, offences were subject to statute of limitation, which imposed strict time limits to the reporting of alleged offences. There is a statute of limitations on most crimes which prevents them being prosecuted after such a period. Yet almost alone in the world, we do not have such a statute on sex offences.’ (spectator.co.uk, accessed 25 October 2017).
In an attempt to address the problem of failing prosecutions, changes to legislation have been introduced by successive governments over the past 30 years. The first significant change occurred in the Criminal Justice Act 1988. This piece of legislation contained a clause that removed the requirement of a judge, in his direction to a jury, to warn of the dangers of convicting on the basis of a child`s allegations alone. `Any requirement whereby … it is obligatory for the court to give the jury a warning about convicting the accused on the uncorroborated evidence of a child is abrogated.` (Archibold 2017,p.1385). The Criminal Justice and Public Order Act 1994 expanded this alleviation to encompass allegations of sexual assault made by adults`… in respect of whom (the offence) is alleged to have been committed…` (Archibold 2017,p.569) as well as children. These seemingly minor changes have profound implications. They effectively transform the status of a complainant`s statement from mere testimony to that of evidence. This is unique to sexual crimes.
The Youth Justice and Criminal Evidence Act 1999 made further concessions in order to ease, for allegation victims, the process if giving evidence in cases of sexual assault. This act allowed for complainants` evidence to be presented as a pre-recorded interview – usually made at a police station. This was designed to alleviate the trauma of having to recall in full detail, in open court, the experiences upon which the allegations were based. It also `… tightened up the rules as to cross-examination of the complainant about previous sexual experiences…(and)…extended the latter restrictions to complaints of all sexual offences, whereas they were formerly confined to allegations of “a rape offence”.` (Archibold 2017, p.2226).
Then, as mentioned above, the Sexual Offences Act 2003, which `…came into force on May 1, 2004.` (Archibold 2017, p.2226) finally abolished the time limits that were previously in force, allowing claims of historical abuse to be tried in court.
Traditionally, any compensation awarded to victims of sexual abuse would need to be won through civil action against the perpetrator. Since 2012, however there has been another source in the form of the Criminal Injuries Compensation Authority (CICA). `This state-backed scheme is generally thought of as compensating the blameless who have sustained physical harm as victims of crime, and it has an extremely thorough system of tariffs, covering every imaginable bodily injury…`(Lawson 2017). In order to further ease the process for those seeking financial compensation for alleged abuse, the CICA website displays an `…exhaustive list of tariffs for sexual assaults --- the lowest payout being for minor non-penetrative sexual physical acts over clothing: £1,000”. Sufferers of mental injury are also remunerated (up to £27,000).` (Lawson 2017), Furthermore, in order to qualify for financial compensation from the CICA, `…no offender needs to have been prosecuted or convicted: police only have to be satisfied that a crime was committed.` (Paris 2017). This rather astonishing fact comes from `… clause nine (on the CICA website): “A person may be eligible for an award under this scheme whether or not the incident giving rise to the criminal injury to which their application relates has resulted in the conviction of an assailant in any part of the United Kingdom or elsewhere.``` (Gambaccini 2016, p.153).
Shortly after his death in 2012, the former entertainer Jimmy Savile was exposed as a prolific sex offender. It soon became apparent that various peccadilloes of Savile`s --- if not the full extent of his depravity --- were widely known to senior managers in various organisations that admitted him. Yet nothing was done to prevent his offending. In effect he enjoyed the protection of the establishment. `In the past the police were insufficiently prepared to investigate claims of sexual assault --- at least when the alleged perpetrator was deemed “respectable”.` (Lawson 2017).
The exposure of Savile and the apparent protection he had enjoyed provoked a frenzied reaction in the press. Institutions, such as the BBC, who had apparently turned a blind eye to Savile`s activities for decades, were targeted, and much critic was aimed at the police for failing to take claims of abuse seriously. Things needed to change, and indeed they did.
However, as the former Director of Public Prosecutions, Lord MacDonald, has stated: `…much needed reform brought with it examples of tragic over-correction, haplessly threatening fairness and decency.` (MacDonald 22017) and the police `…adopted an astounding new doctrine: that anyone claiming to have been a victim of sexual abuse, no matter how long ago, “will be believed”. Not just “be taken seriously and the claims investigated”. Believed.` (Lawson 2017). As we shall see, this new police mind-set has profound implications for those accused of such terrible crimes.
It was not just the police who were keen to increase the conviction rate of those accused of sexual offences. When she was Justice Secretary, Liz Truss stated: `With more victims now finding the confidence to come forward, I am determined to make their path to justice swifter and less traumatic.` (Liz Truss, quoted in The Daily Telegraph, 2017) and also pointed out that `Attitudes to sex crimes and victims have changed beyond all recognition in our lifetime, and rape prosecutions are now at record levels. (Liz Truss, quoted in The Daily Telegraph 2017). Indeed, the past decade --- and particularly the years since 2012 --- have seen an unprecedented rise in allegations of sexual abuse and rape. `Child sex prosecutions rose by 82% over the decade and make up one third of the 13,700 convictions over the past year for sexual offences across England and Wales --- up 15% on the previous year, The Crown Prosecution Service (CPS) says.` (Gibb 2017). Whilst many would agree with Ms Truss that justice is at last being served on those who might traditionally have got away with such terrible crimes, others take a different view `The justice system seems to have badly lost its way over sex crimes … the police are already overwhelmed… (with historical cases)… The reason the police are overwhelmed, though, is that they assume if someone claims to be the victim of a sex crime they are telling the truth.`(Phillips 2017).
The comparative ease with which claimants can obtain financial compensation from the CICA has met with some critic `Critics fear the system could have helped to encourage an industry of false claimants. `(Mendick et al. 2017). In 2016, £43.6 million was paid by the CICA to claimants alleging sexual assaults, and a total of £238 million was dispensed between 2010 and 2016 (source: CICA) Although `The CICA are careful and often skeptical. Many claims are thrown out.` (Parris 2017), very little energy appears to be devoted to pursuing those making false claims or to recover money from fraudulent claimants `Fantasists who allege they were sex abuse victims are being allowed to keep taxpayer-funded compensation even after their claims have been exposed as false …`(Mendick et al. 2017). Between 1st January 2014 and 31st December 2016, 645 claims were referred to the CICA as possibly fraudulent. Charges were prepared in only 11 of these cases, of which just 6 resulted in convictions (source CICA). In other words, even if the authorities suspected you of making a fraudulent claim, there is a probability of more than 99% that you will get away with it. There is also the question of how appropriate cash compensation is to victims, and alleged victims, of sexual crime. Many of those making allegations report that terrible psychological damage has resulted. It is hard to see what long-term benefit cash --- even the considerable amounts available to alleged victims of sexual crimes --- would have. This was recognized by Germany in 2011 ` … in the wake of the revelations of historic abuse within the Catholic Church. They set up a £100m fund. But it would all be spent on counselling and therapy for the victims: there would be no cash compo. That`s most appropriate for genuine victims --- and much safer for the rest of us.` (Lawson 2017). It would surely be naïve to assume that the unscrupulous in society see no temptation to make false allegations of sexual abuse in order to tap into this ready source of revenue.
No official figure yet exists for the number of false allegations of sexual crime that are made. In 2010, Baroness Stern published a report that suggested`…A figure of 8 to 10% of reported rape cases could well be false reports.` (Stern, quoted in Hansard, 2010 whilst stating `…that this is an area on which we need further research` (Stern, quoted in Hansard 2010). At Prime Minister`s Questions on9th June 2010, David Cameron said “We know that a lot of people are falsely accused…` (Cameron, quoted in Hansard, 2010). Despite the absence of official figures there is plenty of documented evidence of false allegations having been perpetrated. The Metropolitan Police`s now discredited `Operation Midland` resulted in much-publicised allegations involving, among others, Lords Bramall and Brittan. These allegations were made by a man known only by his alias `Nick`. `”Nick is now --- belatedly recognized as a dangerous fantasist.` (Lawson 2017). David Bryant, a retiree fireman, was imprisoned in 2013 on the basis of a false allegation. `Mr. Bryant spent 2.5 years in jail before the Court of Appeal exonerated him. (Mendick et al. 2017). Books have been written by Simon Warr – a former school master --- and Paul Gambaccini , the broadcaster both of whom were victims of false allegations. Paul Gambaccini was investigated by the Metropolitan Police under their `Operation Yewtree` which also attempted to indict Sir Cliff Richard. Both of these accounts paint a disturbing picture of the way in which the police now conduct inquiries Into sexual abuse and `…how the police “trawl” for corroborating witnesses, (and) of the contaminating incentive of compensation…` (Aaronovitch 2017). We shall look at this next.
In 2014 the Inspector of Constabulary said “the presumption that a victim should always be believed should be institutionalized”, )Phillips 2017) and this stance has been reiterated by Simon Bailey, chief constable of Norfolk, who heads the National Child Abuse Unit. In autumn 2016, Sir Richard Henriques published his report into the Metropolitan Police`s handling of `Operation Midland`. `Mr Bailey… was heavily criticised in the Henriques report for assuming that victims must be believed.` (Phillips 2017). Indeed, specifically on Bailey`s stance Sir Richard stated: `This instruction foisted upon investigators…perverts our system of justice.` (Sir Richard Henriques, quoted in The Sunday Times, 2017).
Read any account by someone who has been subjected to a police investigation into sexual abuse and a disturbing pattern emerges: `One of the biggest fears for justice is the way that the police, instead of seeking the truth, often build cases against people, having convinced themselves that they have identified the guilty party. They then hold to it tenaciously, doing whatever they can to make it stick.` (Finklestein 2017). Referring specifically to the Wiltshire police`s two-year inquiry into the late Sir Ted Heath, Daniel Finklestein remarks: `Each mistake they appear to have made --- the case building, the ignoring of possibly contrary evidence…is a potential threat to every citizen.` (Finklestein 2017). In his best-selling book Black Box Thinking, Matthew Syed has a name for this closed-loop thinking whereby mistakes are denied and consequently lessons never learned: `cognitive dissonance doesn`t leave a paper trail…it is a process of self-deception. And this can have devastating effects, not least on…the wrongfully convicted.` (Syed 2015, p 120).
What is particularly disturbing is how the CPS appears to have become a complicit party to this process. Simon Warr, in his harrowing book Presumed Guilty, describes the cozy relationship between the police and CPS: `After my third interview at Bury St. Edmunds` police station…(the investigating officer)…wanted a decision made by the Crown Prosecution Service on that day…whether to charge me or not, as she was flying out to Greece for a holiday the next morning. I asked her how the CPS…could possibly come to a decision…as they didn`t have access to my (police interview). Her shocking response was: “They will process based on what I tell them.” So there you have it. If anyone tells you that the police and the CPS act independently in investigations, you know that this is not the case.` (Warr 2017, p 275).
The separation of powers in criminal justice --- that very quality that guarantees its fairness and integrity---was destroyed.` (MacDonald 2017). By setting out with the noble intention of assisting genuine victims of sexual crime, traditional safeguards --- designed to protect the innocent --- have been badly eroded. The lack of separation between police and CPS means no dispassionate consideration of a case now takes place before a charging decision is reached. With political pressure on for more convictions in sexual offence cases, it is inevitable that charges are brought today in cases that previously would never have achieved the charging threshold.
Those who are prosecuted on charges of sexual crimes face an uneven playing field. With no corroboration required, the complainant`s statement, as mentioned earlier, assumes that status of evidence, whilst the defendant`s denial does not. The defendant is therefore faced with having to prove his innocence. This undermines the principal if `innocent until proven guilty`. The limitations and procedures designed to assist and protect the complainants serve to tilt the tables further against the defendant. `Is the Lord Chancellor`s top priority to protect the innocent from wrongful conviction, as it should be, or…Is (the Lord Chancellor) hell bent on increasing rape convictions, regardless of how that goal is achieved?` (Pearson 2017).
Many would argue that a jury panel of twelve `good men and true` is a highly effective tool for evaluating evidence and reaching an appropriate verdict. However, in sexual cases, there often is no `evidence` in the traditional meaning of the term and the jury are left to decide on one person`s word against another`s. In such an evidence vacuum` it is perhaps inevitable that factors, which should not be regarded as relevant, will affect the jury. Important amongst these is unconscious bias. `…we are all afflicted with certain systemic biases in the way we see, remember and perceive the world around us, and these biases make us prone to commit certain kinds of errors.` (Hallinan 2009, p 2).
Unconscious bias causes us to make snap judgements about people based on first impressions and our own ingrained prejudices. Such opinions are notoriously hard to shift `We are…so swayed by our initial impressions of things that we are reluctant to change our first answer…In one case, people encountered an unknown man and were later told his occupation. When they were told the man was a truck driver, they said he weighed more (than) when they were told he was a dancer…` (Hallinan 2009, p 2). Given all the press-fuelled hysteria that has surrounded the explosion of sexual abuse cases in recent years, there must surely be a grave danger that a man --- especially a more mature man, or one who appears somehow `creepy` or `vulnerable` --- standing in the dock on a charge of sexual assault will be unconsciously pre-judged as guilty by the jury.
Some may argue that, ultimately, our criminal justice system is infallible. Trial by jury is held to be the best system; miscarriages of justice are rare and avenues exist for their correction when they do occur. There is, however, no data to support this view because `It is illegal in the UK to even conduct a study on how juries go about their deliberations. The unstated rationale for this prohibition is that if the public find out how juries operate, they might lose confidence in the system. It is an `ignorance is bliss` approach. But this is as intellectually fraudulent as removing the black box from an aero plane to ensure that people won`t ever find out about pilot error. The result is inevitable: the same mistakes will be made, over and over.`(Syed 2015 p 128). In his book Black Box Thinking, Matthew Syed quotes an Israeli study of eight judges who were engaged in making parole decisions. This study analysed what amounted to `…40% of the parole decisions made in Israel over the 10 month period.
Each judge had an average of 22 years of experience.` (Syed 2015, p.128). The results were startling. `…if the case was assessed by a judge just after he had eaten breakfast, the prisoner had a 65% chance of getting parole. But as time passed through the morning, and the judges got hungry, the chance of parole gradually diminished to zero.` (Syed 2015, p 129). This pattern was repeated after lunch. This unconscious bias amongst those considered most able to make crucial criminal justice related decisions surprised everyone. `Why?. Because it had never been analysed .` (Syed 2015, p 129). None of this is to argue that the jury system should be abolished … it is merely to highlight the almost total lack of evidence as to whether juries are working effectively compared with possible alternatives.` (Syed 2015,p 129). The blinkered and rather arrogant view that the current system is the best there is will only lead to the public losing faith as more and more people are convicted of crimes they did not commit. `Criminal justice, like so many other areas of public life needs to undergo a high performance revolution based on something that has historically proved almost impossible: learning from mistakes.` (Syed 2015, p 129).
The abolition of time limits in prosecutions of sexual crimes is also problematic for the defendant. Given the impossibility of either side giving an accurate account of events that may or may not have occurred many years ago, the jury are faced with choosing between two versions, neither of which represents the truth. This will inevitably lead to other, irrelevant, factors coming into play, as described above. It is also possible that the legal system in England and Wales are in breach of the European Convention on Human Rights (ECHR): `Article 6 of the ECHR…entitles a person charged with a criminal offence to a `fair and public hearing within a reasonable time by an independent and impartial tribunal`.(Archibold 2017, p 398).
However sympathetic one may be to the plight of genuine victims and despite the authorities `strong desire to assist them in gaining closure, one needs to call into question the logic of abolishing the statute of limitations. As one blogger recently posted: `Authorities have all but given up pursuing terrorists murders back in the 1970`s, with old IRA men sent comfort letters assuring them they no longer face prosecution. How bizarre that placing an uninvited hand on someone`s knee can now be effectively treated as a more serious matter than blowing their head off with semtex.`(spectator.co.uk, accessed 25 October 2017).
The cash inducements offered by the CICA inevitably encourage the unscrupulous to make false allegations. The current police mindset of assuming that all complainants are victims, along with the government`s desire to increase conviction rates, cause these allegations to be ruthlessly pursued, rather than impartially investigated. Cases are constructed and contrary evidence ignored. The collusion between police and CPS means there is a greater likelihood than ever before of these allegations resulting in charges being brought. The lack of requirement for corroborative evidence places the defendant at a disadvantage and the playing field is further tilted against them by the recent changes to the criminal justice system, each designed with the noble intention of assisting the complainant. Predisposition of jury members combine with the lack of hard evidence to mean that juries are now more likely than ever to convict despite being a long way from a state of `beyond reasonable doubt`.Thus a sizeable percentage of trials for sexual offences result in wrongful convictions. Given the many thousands of such trials that take place annually, a significant number of innocent men have been, and are being imprisoned.
References
Aaronovitch, D (20170. A bitter lesson from the year of Savile. The Times, Saturday review. P. 16 (March 18)
Criminal Injuries Compensation Authority. (2017). Freedom of information request.
Finklestein, D. (2017). This disgraceful chief constable must quit. The Times, p. 27.(October 11).
Gambaccini, P. (2016). Love, Paul Gambaccini – My year under the Yewtree. Biteback Publishing Ltd., London.
Gibb, F. (2017). Unnamed article. The times, p.2. (October 10).
Hallinan, J. (2009). Erromomics. Random House Group, USA.
Hansard (2010). Defendant Anonymity. Hansard Debates for 8th July 2010 (Part 2).
Hansard (2010). Prime Minister`s Questions. (June 9).
Hughes, L. (2017). Rape victims to be spared stress of having to face their attackers in court. The Daily Telegraph, p.5. (March 20).
Lawson, D. (2017) . Easy money for sexual abuse claim profiteers. Sunday Times. (September 03).
MacDonald, K. (2017). Why did the police back this shocking smear of Sir Ted? The Daily Telegraph, (September 20).
Mendick, R., Evans, M. and Rayner, G. (2017). Ministers pledge to end compensation scandal of handouts to fake victims. The Daily Telegraph, p.1 (September 04).
Pearson, A. (2017). Truss and the sisterhood are on the slippery slope to injustice. The Daily Telegraph, p5 (March 20).
Parris, M. (2017). This grotesque racket in sex abuse claims. The Times, (October 07).
Phillips, M. (2017). Justice is warped by hysteria over sex crimes. The Times (March 14).
Sweet & Maxwell (2017). Archibold. Thompson Reuters (Professional) UK Ltd. London.
Syed, M. (2015). Black Box Thinking. John Murray (Publishers), London.
Warr, S. (2017). Presumed Guilty. Biteback Publishing Ltd, London.
The term sexual offence encompasses any offence of rape or indecent assault involving adults or children. Recent years, particularly since the eruption of the Jimmy Savile scandal, have seen a massive rise in prosecutions for sexual offences, following a fundamental shift in how the authorities – particularly the police and Crown Prosecution Services (CPS) – deal with allegations and with those making them. Several changes have been enacted in the criminal justice system that are unique to cases of sexual crime: there is no time limit to the reporting of allegations; no corroborative evidence is necessary for a charge to be brought and restrictions have been placed of the cross examination of complainants. Furthermore, high levels of compensation are now available to alleged victims.
It will be argued that these factors combine in a post Savile climate to cause prosecutions to proceed where they would not previously have met the evidential threshold for charging. Furthermore, it will be reasoned that juries are convicting in many such cases despite not reaching the state of ‘beyond reasonable doubt’ that is traditionally required for a guilty verdict.
Sexual crimes present a unique set of problems to the investigating authorities. Usually there are no witnesses to such crimes and, unless the crime is reported almost immediately, there will be little, if any, forensic evidence to back up the allegation. The very nature of such crimes means that they are often not reported for some considerable time. The embarrassment of having to report details of such an unpleasant experience – and inevitable disclosure to family and close friends – combine with feelings of self-reproach and disgust that the victim ‘allowed’ the act to occur. It is a common feature of prosecutions of sexual offences that many years have passed between the alleged offence and the institution of proceedings. The usual reason for this is that the complainant has delayed making any form of allegation of impropriety such as would trigger a formal investigation.’ (Arhibold 2017,p.2227). In the case of children, coercion and persuasion may have been applied that convinced the child for many years that either such an act was perfectly normal, or else that the child itself was at fault for allowing it to happen.
During the past three decades, there has been a realization, not only of these difficulties, but also of the fact that the authorities were too quick to dismiss complaints from women and children when they did come forward. ‘Too often genuine victims were treated with disrespect and disbelieved, leading to a form of impunity that brought terrible danger to children and violence to women.’ (MacDonald 2017). Furthermore, such complaints – particularly if they were historical (i.e. relating to alleged incidents more than five years in the past) – stood little chance of resulting in charges being brought or of a guilty verdict being reached. Until Tony Blair’s government introduced a completely revised Sexual Offences Act in 2004, offences were subject to statute of limitation, which imposed strict time limits to the reporting of alleged offences. There is a statute of limitations on most crimes which prevents them being prosecuted after such a period. Yet almost alone in the world, we do not have such a statute on sex offences.’ (spectator.co.uk, accessed 25 October 2017).
In an attempt to address the problem of failing prosecutions, changes to legislation have been introduced by successive governments over the past 30 years. The first significant change occurred in the Criminal Justice Act 1988. This piece of legislation contained a clause that removed the requirement of a judge, in his direction to a jury, to warn of the dangers of convicting on the basis of a child`s allegations alone. `Any requirement whereby … it is obligatory for the court to give the jury a warning about convicting the accused on the uncorroborated evidence of a child is abrogated.` (Archibold 2017,p.1385). The Criminal Justice and Public Order Act 1994 expanded this alleviation to encompass allegations of sexual assault made by adults`… in respect of whom (the offence) is alleged to have been committed…` (Archibold 2017,p.569) as well as children. These seemingly minor changes have profound implications. They effectively transform the status of a complainant`s statement from mere testimony to that of evidence. This is unique to sexual crimes.
The Youth Justice and Criminal Evidence Act 1999 made further concessions in order to ease, for allegation victims, the process if giving evidence in cases of sexual assault. This act allowed for complainants` evidence to be presented as a pre-recorded interview – usually made at a police station. This was designed to alleviate the trauma of having to recall in full detail, in open court, the experiences upon which the allegations were based. It also `… tightened up the rules as to cross-examination of the complainant about previous sexual experiences…(and)…extended the latter restrictions to complaints of all sexual offences, whereas they were formerly confined to allegations of “a rape offence”.` (Archibold 2017, p.2226).
Then, as mentioned above, the Sexual Offences Act 2003, which `…came into force on May 1, 2004.` (Archibold 2017, p.2226) finally abolished the time limits that were previously in force, allowing claims of historical abuse to be tried in court.
Traditionally, any compensation awarded to victims of sexual abuse would need to be won through civil action against the perpetrator. Since 2012, however there has been another source in the form of the Criminal Injuries Compensation Authority (CICA). `This state-backed scheme is generally thought of as compensating the blameless who have sustained physical harm as victims of crime, and it has an extremely thorough system of tariffs, covering every imaginable bodily injury…`(Lawson 2017). In order to further ease the process for those seeking financial compensation for alleged abuse, the CICA website displays an `…exhaustive list of tariffs for sexual assaults --- the lowest payout being for minor non-penetrative sexual physical acts over clothing: £1,000”. Sufferers of mental injury are also remunerated (up to £27,000).` (Lawson 2017), Furthermore, in order to qualify for financial compensation from the CICA, `…no offender needs to have been prosecuted or convicted: police only have to be satisfied that a crime was committed.` (Paris 2017). This rather astonishing fact comes from `… clause nine (on the CICA website): “A person may be eligible for an award under this scheme whether or not the incident giving rise to the criminal injury to which their application relates has resulted in the conviction of an assailant in any part of the United Kingdom or elsewhere.``` (Gambaccini 2016, p.153).
Shortly after his death in 2012, the former entertainer Jimmy Savile was exposed as a prolific sex offender. It soon became apparent that various peccadilloes of Savile`s --- if not the full extent of his depravity --- were widely known to senior managers in various organisations that admitted him. Yet nothing was done to prevent his offending. In effect he enjoyed the protection of the establishment. `In the past the police were insufficiently prepared to investigate claims of sexual assault --- at least when the alleged perpetrator was deemed “respectable”.` (Lawson 2017).
The exposure of Savile and the apparent protection he had enjoyed provoked a frenzied reaction in the press. Institutions, such as the BBC, who had apparently turned a blind eye to Savile`s activities for decades, were targeted, and much critic was aimed at the police for failing to take claims of abuse seriously. Things needed to change, and indeed they did.
However, as the former Director of Public Prosecutions, Lord MacDonald, has stated: `…much needed reform brought with it examples of tragic over-correction, haplessly threatening fairness and decency.` (MacDonald 22017) and the police `…adopted an astounding new doctrine: that anyone claiming to have been a victim of sexual abuse, no matter how long ago, “will be believed”. Not just “be taken seriously and the claims investigated”. Believed.` (Lawson 2017). As we shall see, this new police mind-set has profound implications for those accused of such terrible crimes.
It was not just the police who were keen to increase the conviction rate of those accused of sexual offences. When she was Justice Secretary, Liz Truss stated: `With more victims now finding the confidence to come forward, I am determined to make their path to justice swifter and less traumatic.` (Liz Truss, quoted in The Daily Telegraph, 2017) and also pointed out that `Attitudes to sex crimes and victims have changed beyond all recognition in our lifetime, and rape prosecutions are now at record levels. (Liz Truss, quoted in The Daily Telegraph 2017). Indeed, the past decade --- and particularly the years since 2012 --- have seen an unprecedented rise in allegations of sexual abuse and rape. `Child sex prosecutions rose by 82% over the decade and make up one third of the 13,700 convictions over the past year for sexual offences across England and Wales --- up 15% on the previous year, The Crown Prosecution Service (CPS) says.` (Gibb 2017). Whilst many would agree with Ms Truss that justice is at last being served on those who might traditionally have got away with such terrible crimes, others take a different view `The justice system seems to have badly lost its way over sex crimes … the police are already overwhelmed… (with historical cases)… The reason the police are overwhelmed, though, is that they assume if someone claims to be the victim of a sex crime they are telling the truth.`(Phillips 2017).
The comparative ease with which claimants can obtain financial compensation from the CICA has met with some critic `Critics fear the system could have helped to encourage an industry of false claimants. `(Mendick et al. 2017). In 2016, £43.6 million was paid by the CICA to claimants alleging sexual assaults, and a total of £238 million was dispensed between 2010 and 2016 (source: CICA) Although `The CICA are careful and often skeptical. Many claims are thrown out.` (Parris 2017), very little energy appears to be devoted to pursuing those making false claims or to recover money from fraudulent claimants `Fantasists who allege they were sex abuse victims are being allowed to keep taxpayer-funded compensation even after their claims have been exposed as false …`(Mendick et al. 2017). Between 1st January 2014 and 31st December 2016, 645 claims were referred to the CICA as possibly fraudulent. Charges were prepared in only 11 of these cases, of which just 6 resulted in convictions (source CICA). In other words, even if the authorities suspected you of making a fraudulent claim, there is a probability of more than 99% that you will get away with it. There is also the question of how appropriate cash compensation is to victims, and alleged victims, of sexual crime. Many of those making allegations report that terrible psychological damage has resulted. It is hard to see what long-term benefit cash --- even the considerable amounts available to alleged victims of sexual crimes --- would have. This was recognized by Germany in 2011 ` … in the wake of the revelations of historic abuse within the Catholic Church. They set up a £100m fund. But it would all be spent on counselling and therapy for the victims: there would be no cash compo. That`s most appropriate for genuine victims --- and much safer for the rest of us.` (Lawson 2017). It would surely be naïve to assume that the unscrupulous in society see no temptation to make false allegations of sexual abuse in order to tap into this ready source of revenue.
No official figure yet exists for the number of false allegations of sexual crime that are made. In 2010, Baroness Stern published a report that suggested`…A figure of 8 to 10% of reported rape cases could well be false reports.` (Stern, quoted in Hansard, 2010 whilst stating `…that this is an area on which we need further research` (Stern, quoted in Hansard 2010). At Prime Minister`s Questions on9th June 2010, David Cameron said “We know that a lot of people are falsely accused…` (Cameron, quoted in Hansard, 2010). Despite the absence of official figures there is plenty of documented evidence of false allegations having been perpetrated. The Metropolitan Police`s now discredited `Operation Midland` resulted in much-publicised allegations involving, among others, Lords Bramall and Brittan. These allegations were made by a man known only by his alias `Nick`. `”Nick is now --- belatedly recognized as a dangerous fantasist.` (Lawson 2017). David Bryant, a retiree fireman, was imprisoned in 2013 on the basis of a false allegation. `Mr. Bryant spent 2.5 years in jail before the Court of Appeal exonerated him. (Mendick et al. 2017). Books have been written by Simon Warr – a former school master --- and Paul Gambaccini , the broadcaster both of whom were victims of false allegations. Paul Gambaccini was investigated by the Metropolitan Police under their `Operation Yewtree` which also attempted to indict Sir Cliff Richard. Both of these accounts paint a disturbing picture of the way in which the police now conduct inquiries Into sexual abuse and `…how the police “trawl” for corroborating witnesses, (and) of the contaminating incentive of compensation…` (Aaronovitch 2017). We shall look at this next.
In 2014 the Inspector of Constabulary said “the presumption that a victim should always be believed should be institutionalized”, )Phillips 2017) and this stance has been reiterated by Simon Bailey, chief constable of Norfolk, who heads the National Child Abuse Unit. In autumn 2016, Sir Richard Henriques published his report into the Metropolitan Police`s handling of `Operation Midland`. `Mr Bailey… was heavily criticised in the Henriques report for assuming that victims must be believed.` (Phillips 2017). Indeed, specifically on Bailey`s stance Sir Richard stated: `This instruction foisted upon investigators…perverts our system of justice.` (Sir Richard Henriques, quoted in The Sunday Times, 2017).
Read any account by someone who has been subjected to a police investigation into sexual abuse and a disturbing pattern emerges: `One of the biggest fears for justice is the way that the police, instead of seeking the truth, often build cases against people, having convinced themselves that they have identified the guilty party. They then hold to it tenaciously, doing whatever they can to make it stick.` (Finklestein 2017). Referring specifically to the Wiltshire police`s two-year inquiry into the late Sir Ted Heath, Daniel Finklestein remarks: `Each mistake they appear to have made --- the case building, the ignoring of possibly contrary evidence…is a potential threat to every citizen.` (Finklestein 2017). In his best-selling book Black Box Thinking, Matthew Syed has a name for this closed-loop thinking whereby mistakes are denied and consequently lessons never learned: `cognitive dissonance doesn`t leave a paper trail…it is a process of self-deception. And this can have devastating effects, not least on…the wrongfully convicted.` (Syed 2015, p 120).
What is particularly disturbing is how the CPS appears to have become a complicit party to this process. Simon Warr, in his harrowing book Presumed Guilty, describes the cozy relationship between the police and CPS: `After my third interview at Bury St. Edmunds` police station…(the investigating officer)…wanted a decision made by the Crown Prosecution Service on that day…whether to charge me or not, as she was flying out to Greece for a holiday the next morning. I asked her how the CPS…could possibly come to a decision…as they didn`t have access to my (police interview). Her shocking response was: “They will process based on what I tell them.” So there you have it. If anyone tells you that the police and the CPS act independently in investigations, you know that this is not the case.` (Warr 2017, p 275).
The separation of powers in criminal justice --- that very quality that guarantees its fairness and integrity---was destroyed.` (MacDonald 2017). By setting out with the noble intention of assisting genuine victims of sexual crime, traditional safeguards --- designed to protect the innocent --- have been badly eroded. The lack of separation between police and CPS means no dispassionate consideration of a case now takes place before a charging decision is reached. With political pressure on for more convictions in sexual offence cases, it is inevitable that charges are brought today in cases that previously would never have achieved the charging threshold.
Those who are prosecuted on charges of sexual crimes face an uneven playing field. With no corroboration required, the complainant`s statement, as mentioned earlier, assumes that status of evidence, whilst the defendant`s denial does not. The defendant is therefore faced with having to prove his innocence. This undermines the principal if `innocent until proven guilty`. The limitations and procedures designed to assist and protect the complainants serve to tilt the tables further against the defendant. `Is the Lord Chancellor`s top priority to protect the innocent from wrongful conviction, as it should be, or…Is (the Lord Chancellor) hell bent on increasing rape convictions, regardless of how that goal is achieved?` (Pearson 2017).
Many would argue that a jury panel of twelve `good men and true` is a highly effective tool for evaluating evidence and reaching an appropriate verdict. However, in sexual cases, there often is no `evidence` in the traditional meaning of the term and the jury are left to decide on one person`s word against another`s. In such an evidence vacuum` it is perhaps inevitable that factors, which should not be regarded as relevant, will affect the jury. Important amongst these is unconscious bias. `…we are all afflicted with certain systemic biases in the way we see, remember and perceive the world around us, and these biases make us prone to commit certain kinds of errors.` (Hallinan 2009, p 2).
Unconscious bias causes us to make snap judgements about people based on first impressions and our own ingrained prejudices. Such opinions are notoriously hard to shift `We are…so swayed by our initial impressions of things that we are reluctant to change our first answer…In one case, people encountered an unknown man and were later told his occupation. When they were told the man was a truck driver, they said he weighed more (than) when they were told he was a dancer…` (Hallinan 2009, p 2). Given all the press-fuelled hysteria that has surrounded the explosion of sexual abuse cases in recent years, there must surely be a grave danger that a man --- especially a more mature man, or one who appears somehow `creepy` or `vulnerable` --- standing in the dock on a charge of sexual assault will be unconsciously pre-judged as guilty by the jury.
Some may argue that, ultimately, our criminal justice system is infallible. Trial by jury is held to be the best system; miscarriages of justice are rare and avenues exist for their correction when they do occur. There is, however, no data to support this view because `It is illegal in the UK to even conduct a study on how juries go about their deliberations. The unstated rationale for this prohibition is that if the public find out how juries operate, they might lose confidence in the system. It is an `ignorance is bliss` approach. But this is as intellectually fraudulent as removing the black box from an aero plane to ensure that people won`t ever find out about pilot error. The result is inevitable: the same mistakes will be made, over and over.`(Syed 2015 p 128). In his book Black Box Thinking, Matthew Syed quotes an Israeli study of eight judges who were engaged in making parole decisions. This study analysed what amounted to `…40% of the parole decisions made in Israel over the 10 month period.
Each judge had an average of 22 years of experience.` (Syed 2015, p.128). The results were startling. `…if the case was assessed by a judge just after he had eaten breakfast, the prisoner had a 65% chance of getting parole. But as time passed through the morning, and the judges got hungry, the chance of parole gradually diminished to zero.` (Syed 2015, p 129). This pattern was repeated after lunch. This unconscious bias amongst those considered most able to make crucial criminal justice related decisions surprised everyone. `Why?. Because it had never been analysed .` (Syed 2015, p 129). None of this is to argue that the jury system should be abolished … it is merely to highlight the almost total lack of evidence as to whether juries are working effectively compared with possible alternatives.` (Syed 2015,p 129). The blinkered and rather arrogant view that the current system is the best there is will only lead to the public losing faith as more and more people are convicted of crimes they did not commit. `Criminal justice, like so many other areas of public life needs to undergo a high performance revolution based on something that has historically proved almost impossible: learning from mistakes.` (Syed 2015, p 129).
The abolition of time limits in prosecutions of sexual crimes is also problematic for the defendant. Given the impossibility of either side giving an accurate account of events that may or may not have occurred many years ago, the jury are faced with choosing between two versions, neither of which represents the truth. This will inevitably lead to other, irrelevant, factors coming into play, as described above. It is also possible that the legal system in England and Wales are in breach of the European Convention on Human Rights (ECHR): `Article 6 of the ECHR…entitles a person charged with a criminal offence to a `fair and public hearing within a reasonable time by an independent and impartial tribunal`.(Archibold 2017, p 398).
However sympathetic one may be to the plight of genuine victims and despite the authorities `strong desire to assist them in gaining closure, one needs to call into question the logic of abolishing the statute of limitations. As one blogger recently posted: `Authorities have all but given up pursuing terrorists murders back in the 1970`s, with old IRA men sent comfort letters assuring them they no longer face prosecution. How bizarre that placing an uninvited hand on someone`s knee can now be effectively treated as a more serious matter than blowing their head off with semtex.`(spectator.co.uk, accessed 25 October 2017).
The cash inducements offered by the CICA inevitably encourage the unscrupulous to make false allegations. The current police mindset of assuming that all complainants are victims, along with the government`s desire to increase conviction rates, cause these allegations to be ruthlessly pursued, rather than impartially investigated. Cases are constructed and contrary evidence ignored. The collusion between police and CPS means there is a greater likelihood than ever before of these allegations resulting in charges being brought. The lack of requirement for corroborative evidence places the defendant at a disadvantage and the playing field is further tilted against them by the recent changes to the criminal justice system, each designed with the noble intention of assisting the complainant. Predisposition of jury members combine with the lack of hard evidence to mean that juries are now more likely than ever to convict despite being a long way from a state of `beyond reasonable doubt`.Thus a sizeable percentage of trials for sexual offences result in wrongful convictions. Given the many thousands of such trials that take place annually, a significant number of innocent men have been, and are being imprisoned.
References
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Gambaccini, P. (2016). Love, Paul Gambaccini – My year under the Yewtree. Biteback Publishing Ltd., London.
Gibb, F. (2017). Unnamed article. The times, p.2. (October 10).
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MacDonald, K. (2017). Why did the police back this shocking smear of Sir Ted? The Daily Telegraph, (September 20).
Mendick, R., Evans, M. and Rayner, G. (2017). Ministers pledge to end compensation scandal of handouts to fake victims. The Daily Telegraph, p.1 (September 04).
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