Can the Justice System Adequately Rectify Wrongful Convictions for Historical Sexual Abuse?
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CAN THE JUSTICE SYSTEM ADEQUATELY RECTIFY WRONGFUL CONVICTIONS FOR HISTORICAL SEXUAL ABUSE? A thesis submitted to the University of Manchester for the degree of Doctor of Philosophy in the Faculty of Humanities 2020 NAOMI-ELLEN J. SPEECHLEY School of Social Sciences Department of Criminology Table of contents Abstract .................................................................................................................................... 4 Introduction .............................................................................................................................. 7 CHAPTER ONE: Wrongful Convictions and Post-Conviction Investigation .......................... 11 Introduction ...................................................................................................................................... 11 Part 1: ‘Wrongful Convictions’, ‘Miscarriages of Justice’ and ‘Unsafe Convictions’ ......................... 12 Part 2: How and by whom is a conviction reviewed? ....................................................................... 16 Part 3: Alternative post-conviction casework approaches: pro bono and campaigning groups ...... 26 Part 4: Applying ‘interested’ and ‘disinterested’ approaches to historical sexual abuse cases ....... 34 Chapter Summary ............................................................................................................................ 41 CHAPTER TWO: Particular Difficulties Pertaining to Historical Sexual Abuse Cases ......... 42 Introduction ...................................................................................................................................... 42 Part 1: What exactly are HSA cases? .............................................................................................. 43 Part 2: Common features making HSA cases prone to error .......................................................... 50 Part 3: From Epidemic to Pandemic ................................................................................................ 63 Chapter Summary ............................................................................................................................ 83 CHAPTER THREE: Developments In the Justice System facilitating HSA convictions ....... 84 Introduction ...................................................................................................................................... 84 Part 1: The increase in political importance of victims, and ‘rebalancing’ of the justice system. ..... 85 Part 2: The widening of goalposts for sexual offence cases ........................................................... 92 Part 3: Recognising and referring convictions obtained through ‘different rules’ ........................... 102 Chapter Summary .......................................................................................................................... 105 CHAPTER FOUR: Analysis of CCRC HSA case referrals .................................................. 107 Introduction .................................................................................................................................... 107 Part 1: Data collection of alleged unsafe HSA convictions ............................................................ 108 Part 2: Which literature-based predictions were identified in the referred cases? ......................... 109 Part 3: A return to wider theoretical themes .................................................................................. 127 Chapter Summary .......................................................................................................................... 135 CHAPTER FIVE: Conclusions and Implications .................................................................. 138 Summary of key arguments ........................................................................................................... 138 2 Thesis Conclusions ........................................................................................................................ 139 Policy Implications ......................................................................................................................... 142 Theoretical implications and review of the framework ................................................................... 143 Limitations and suggestions for further research ........................................................................... 149 Repositioning my outlook: some personal reflections .................................................................... 153 BIBLIOGRAPHY .................................................................................................................. 155 APPENDIX .......................................................................................................................... 168 Word count including footnotes: 79,932 3 Abstract The criminal justice system operates within the constraints that it can only determine a person’s guilt within the confines of the law and the information used at trial. The actual truth of an alleged offence may never be fully established. If the system is to operate fairly, it must balance the rights of the accuser (as a potential victim) with the rights of those accused. The thesis asserts early on that in England and Wales, the sustained politicisation of law and order has affected this balance, increasing the weight now afforded to potential victims of crime. This, however, includes those claiming to be victims, before a crime has been established or any trial process has begun. As such, the increase in rights and protections for those bringing accusations can erode safeguards protecting those accused from wrongful conviction. The thesis examines this effect through the lens of historical sexual abuse (HSA) cases. It identifies risk factors making this case category vulnerable to error, such as the paucity of evidence, and discusses the inherent difficulties they present for those seeking to appeal a conviction. The thesis analyses several recent scandals, resembling a moral panic, which prompted measures designed to facilitate prosecution. The collective effect of these changes is argued to have increased the likelihood of wrongful convictions, similar to the temporary and emergency provisions brought in to facilitate convictions following Northern Ireland-related terror attacks. In these cases, several convictions were subsequently found unsafe due to the systemic procedural errors. In England, Wales and Northern Ireland, the Criminal Cases Review Commission (‘CCRC’, an organisation re-investigating alleged miscarriages of justice) checks applications made to it for potential procedural error and credible investigative avenues indicating that the conviction or sentence was unjust. The thesis queries whether the systemic factors disadvantaging those appealing HSA cases (as indicated in literature) are adequately picked up on at the CCRC, given its position as a statutory body operating within the justice system, and according to the constraints of the law. A review of every HSA conviction the CCRC has referred back to an appeal court indicated that it is adequately able to identify potential injustice. While most cases were referred (and quashed) due to subsequent evidence weakening complainant credibility, compromising the safety of the conviction, few of the causative factors frequently discussed in the literature on wrongful HSA convictions were reflected in the CCRC-referred appeals. Case decision-making in relation to HSA convictions was found to be exceptionally liberal, indicating that potential wrongful HSA convictions are successfully being identified. However, in several cases, both the (allegedly conservative) CCRC and appeal courts note the likelihood of the applicant’s guilt, despite legal technicalities compelling them to refer or quash a conviction. This undermines the supposition that those wrongly convicted for HSA cannot get their cases referred by the CCRC, and indicates that, in these cases, the balance of justice is in fact weighted in favour of upholding the due process of law. 4 DECLARATION No portion of the work referred to in the thesis has been submitted in support of an application for another degree or qualification of this or any other university or other institute of learning. COPYRIGHT STATEMENT i. The author of this thesis (including any appendices and/or schedules to this thesis) owns certain copyright or related rights in it (the “Copyright”) and s/he has given The University of Manchester certain rights to use such Copyright, including for administrative purposes. ii. 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