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
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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
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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.
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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
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Acknowledgements
A huge thank you to Bill, Claire and Hannah for their time and patience supervising; to all my friends for their incredible support; to Dunja Begović for her detailed commentary on an earlier draft of the thesis; to Sue Speechley for pointers on good grammar throughout the last 30 years, to the unsung academic support staff heroes in the School of Law, ESRC and UKRI; to Justin Hawkins at the CCRC for his help finding case data; to the Justice Select Committee research staff for answering my (many) questions; and to Ros Burnett, Carolyn Hoyle, Mai Sato and Carole McCartney for their support in the early stages of my academic career.
About the Author
During her LLB law degree (2.1) and Masters in Criminal Justice Studies (1st), the author developed an interest in miscarriages of justice, focusing her dissertation topic on the Criminal Appeal Act 1995 and its creation of the Criminal Cases Review Commission (CCRC). Alongside an academic interest, the author worked pro bono on an Innocence Project. After providing some casework assistance on the third-party intervention in the R v Nunn appeal (concerning the disclosure to applicants of information used to convict them), the author collected qualitative and quantitative data at the CCRC for the University of Oxford Leverhulme Trust and Fell Fund study, ‘Decisions and Discretion at the Criminal Cases Review Commission’. From there, the author led research on a joint project between the University of Oxford and Falsely Accused Carers and Teachers, entitled ‘The Impact of Being Wrongly Accused of Abuse in Occupations of Care and Trust’. This entailed a review of relevant literature, drafting consent forms and questionnaires, sampling participants, running focus groups and conducting one-to-one interviews with those claiming to have been wrongly accused of (mostly sexual) abuse. The idea for the doctoral project developed from these research posts.
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Introduction
‘The resources available for any society’s criminal justice processes are limited… so within criminal trials, truth is traded off against fairness, and both against considerations of cost.’ 1
* ‘A new genre of miscarriages of justice has arisen from the over-enthusiastic pursuit of [historical sexual abuse] allegations… the risks of effecting a miscarriage of justice in these cases are said to be unusually high.’ 2
* ‘I am in no doubt that a number of innocent people have been convicted.’ 3
* ‘The official body responsible for investigating alleged miscarriages of justice is no longer fit for purpose.’ 4
Overview
This research analyses the work of the Criminal Cases Review Commission (hereafter ‘CCRC’), as the organisation created to identify potential miscarriages of justice in England, Wales and Northern Ireland. It does so through the lens of historical sexual abuse (HSA) cases, which are argued to be a category at growing risk of wrongful conviction.
First, the research draws together theoretical models of the criminal justice system and its mechanisms for correcting error, and academic work chronicling (i) the influx of HSA cases and (ii) measures introduced to improve prosecution and conviction rates. These developments in the justice system are argued to collectively weaken safeguards for those accused.
HSA is established as an almost uniquely difficult category of case to appeal. This is chiefly because of the lack of available exculpatory evidence not already relied on at trial. There are also considerable prejudices and suspicions conferred upon those convicted for this crime (such as the ‘no smoke without fire’ bias). Therefore, the thesis then argues that, where goalposts have been widened to prosecute those accused of HSA, the risk of miscarriages of justice widens as well. It compares this situation to the many convictions being found unsafe as a result of the temporary and emergency provisions brought in to facilitate convictions during the Northern Ireland troubles.
1 R Nobles and D Schiff, Understanding Miscarriages of Justice: Law, the Media, and the Inevitability of Crisis (2000, OUP) p4 2 Home Affairs Select Committee, The Conduct of Investigations Into Past Cases of Abuse in Children’s Homes (HC836, 2002) p2 3 Home Affairs Select Committee Press Release (No. 28, 30 October 2002) 4 E Allison, S Hattenstone and O Bowcott ‘Miscarriages of justice body is not fit for purpose, lawyers say’ (The Guardian, 30 May 2018)
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Having identified a category of defendant for whom the risk of wrongful conviction is increased, the thesis then considers the possibility of these errors being identified. The politicisation of the victim/accuser’s rights is positioned to affect the CCRC’s ability to operate as an independent watchdog in the changing ‘culture’ of justice. As the CCRC is embedded within the justice system, its ability to recognise systemic errors may be compromised. Such errors would result where, for example, convictions are obtained through State-implemented procedural measures that effectively widened the goalposts. As the CCRC was created prior to the development of a legislative shift encouraging HSA prosecutions, there is strong cause to examine this possibility.
The literature reviewed throughout the thesis indicates several clear criticisms – that the CCRC is already referring cases too conservatively, that it is hamstrung in its ability to achieve a just result (as opposed to one that is technically correct), and it fails to look at each application in a holistic, joined- up investigative manner in sufficient detail. In addition, several ‘near miss’ cases have recently occurred, in which a wrongful conviction was prevented by the dogged work of a family member or lawyer seeking to prove the defendant’s innocence (at great personal cost). This partisan, innocence- championing approach - in contrast to the bureaucratic, systemic formal review body - could hold greater potential to redress wrongful HSA convictions, than reliance on the CCRC being able to identify them.
This central argument, developed from the literature, is then considered against an analysis of every HSA conviction referred back for appeal by the CCRC. Each case was thematically reviewed using the appeal court judgments, and the issues they turned on were compared. Appeal judgments were used because the CCRC’s reasons for case referral are not all publicly available. The case data showed that most HSA convictions were referred due to evidence that compromised the complainant’s credibility. Only 4% of these cases bore indicators of the convicted person’s innocence, and hardly any of the literature-flagged risk factors for wrongful HSA conviction were found. Furthermore, both the CCRC’s reasons for referral and the Court’s judgments in the cases where convictions were quashed, were far more liberal than suggested by current literature. This indicates a robust process for identifying wrongful HSA convictions, albeit one where doubts about the integrity of the process could be raised not because of perceived conservatism, but in relation to the liberal extent of HSA convictions overturned.
Key literature and theoretical framework
As an interdisciplinary study blending criminology and critical legal scholarship, the thesis is not structured with assigned chapters covering a literature review, methodology and similar standard sections. Existing social scientific theory is referred to and integrated throughout the work where necessary. Different aspects of theory (on for example, moral panics, bureaucracy, just-world thinking
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and models of the criminal process) have been used to build a new framework, to assist in charting a phenomenon not yet measured. The key elements of the framework are briefly outlined below.
The thesis draws first from theories pertaining to the justice system. Herbert Packer’s ‘crime control’ and ‘due process’ models are referenced below, to introduce the idea that policy developments can pull the justice system towards one or other of the models. As such, the system itself embodies a compromise between elements of each (although limitations of Packer’s models in failing to account for the influence of victims are later discussed). Packer is referred to throughout later chapters when discussing how the justice system moves back and forth between these models when balancing the interests of potential victims and the rights of those accused.
The introduction also draws on Brian Forst’s typology of error management within a criminal justice system. His categorisation of ‘type 1’ and ‘type 2’ errors is useful in the context of the possible outcomes – erroneously sanctioning an innocent person or failing to sanction a guilty person. It was initially thought that for HSA cases, type 1 was occurring, but the findings of the research suggest type 2 is more likely.
The thesis incorporates a doctrinal element in the analysis of the criminal appeals process, looking chiefly at provisions in the Criminal Appeals Act 1995 which created the CCRC. The CCRC’s model of investigation is cast in the mould of Weberian bureaucracy, to the extent that its casework function can become constrained in contrast to other independent investigative processes. (It was later found, however, that bureaucratic elements operated in a way that encouraged, not restricted, HSA referrals.) Michael Naughton’s criticisms of its investigative approach are referenced, as well as Carolyn Hoyle and Mai Sato’s recent study on its decision-making, but there is no specific study on its management of HSA cases to date.
When tracking the development of HSA cases, Stan Cohen’s concept of a ‘moral panic’ is used to characterise the scandals. The influx of legislation brought in to increase prosecutions for these cases is compared to the temporary and emergency provisions introduced amidst political and public pressure in the wake of Northern Ireland terrorism offences. The thesis applies Marny Requa’s work in arguing that these changes constitute systemic errors, which Hannah Quirk interprets as effectively changing the rules for convictions, causing miscarriages of justice. Their analysis is used to highlight the potential for those wrongly convicted to experience sustained injustice due to the cognitive bias of ‘just-world’ thinking – which in this context is the belief that all those convicted must be guilty, due to misplaced confidence in the integrity of the justice system.
Ros Burnett’s work on the proclivity of HSA cases to wrongful allegations is drawn upon, in conjunction with examples from practicing lawyers and recent cases. This provides a grounded, evidenced foundation for the arguments that those seeking to appeal HSA convictions face unique difficulties, and that investigators seeking to establish applicants’ possible innocence may be more
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likely to find exculpatory evidence.
Together these concepts are used as stepping-stones to theorise that the CCRC may be hamstrung in its ability to flag wrongful HSA convictions. Accordingly, an integrated and arguably new theoretical framework was built to assess the ability of the justice system to address them.
Contribution, Relevance and Importance
HSA cases are an endemic and pressing public policy issue.5 The existing literature points to them as a significant - and potentially growing - risk of miscarriage of justice. It is therefore essential to scrutinise possible causes of this, as well as the ability of the justice system to redress such errors. No study has yet looked at whether the organisations tasked with rectifying potential wrongful convictions of HSA can appropriately do so. HSA cases were recognised as ‘a new genre of miscarriage of justice’ nearly 20 years ago by a 2002 Home Affairs Select Committee.6 Since then there have been dramatic reductions in legal aid funding and increases in CCRC applications, with no proportionate budgetary increase. This new genre of miscarriage of justice could require a new genre of post-conviction review, given these contextual constraints. This, it is argued, highlights the importance of research on the capability of the justice system in rectifying potential errors of this category.
5 House of Lords Library, Historical Child Sex Abuse Investigations, 27 June 2016; Sir Richard Henriques, Independent Review of the Metropolitan Police Service's handling of non-recent sexual offence investigations alleged against persons of public prominence (31 October 2016); R Burnett (ed) Wrongful Allegations of Sexual and Child Abuse (2016, OUP) 6 Home Affairs Select Committee, Press Release (No. 28, 30 October 2002)
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CHAPTER ONE: Wrongful Convictions and Post-Conviction Investigation
Introduction
This chapter seeks to contextualise the subject matter of the thesis within the field of miscarriages of justice. It provides an analytic overview of the post-conviction appeals process, setting out the main avenue of redress for those seeking to appeal allegedly wrongful convictions. England, Wales and Northern Ireland have a Criminal Cases Review Commission (hereafter ‘CCRC’), which was specifically created to review potential miscarriages of justice (both convictions and sentences). The chapter assesses the test it utilises when deciding whether to refer cases. This test reflects the criteria used by the appeal courts, which permits appeals on the basis of whether the conviction in question may be ‘unsafe’. This concept is distinguished from a ‘wrongful conviction’, which is in turn distinguished from a ‘miscarriage of justice’.
The chapter then explains criticisms of the CCRC and appeal court approach to the identification of ‘wrongful convictions’, as being overly legalistic. Indeed, as a consequence of such dissatisfaction, Innocence Projects (and other pro bono casework groups) formed to focus solely on cases where the convicted person may be innocent. A key debate in this field revolves around whether the criteria for convictions to be referred and overturned should be that they are ‘unsafe’, or whether the applicant might be innocent. A further contention is whether case investigation should take a disinterested approach, or whether a partisan approach is better. The chapter argues that the formerly favoured ‘non-partisan’ approach taken by the CCRC might not be as advantageous for certain case types in comparison to where case investigation is undertaken by campaigners, lawyers and other investigators acting on behalf of an individual they believe to be innocent. Although cases exhausting normal appeal rights generally only reach further appeal courts through CCRC referral, it is argued that the latter approach could significantly improve chances of success.
This chapter proceeds to highlight historical sexual abuse (HSA) cases as an area of current concern. This category of case presents specific difficulties on appeal. While the next chapter assesses these difficulties in more detail, this chapter refers to them to illuminate the effectiveness of ‘partisan’ (versus ‘disinterested’) investigations. This chapter argues that the CCRC’s processes, strengths and weaknesses should be prospectively reviewed through the lens of this potential category of wrongful conviction. By applying knowledge of the way organisations investigate wrongful convictions through the filter of these especially problematic cases, the research contributes a new and significant avenue of understanding.
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A raft of legal changes has been introduced since the CCRC was created, which have sought to make convictions easier to obtain for (particularly historical) sexual offences. It was not set up in a way that adequately anticipated the problems these cases currently present on appeal, nor was it envisioned to handle as many sexual offence applications as it now faces.7 Overall, the chapter queries whether the CCRC’s bureaucratic, legalistic investigative approach may not to be as beneficial for these cases as campaigners led by belief in their client’s innocence, and actively seeking to establish it.
Part 1: ‘Wrongful Convictions’, ‘Miscarriages of Justice’ and ‘Unsafe Convictions’
In everyday speech, ‘wrongful convictions’ and ‘miscarriages of justice’ are used interchangeably. They are frequently interpreted to refer to the situation where someone is convicted for a crime they did not commit. However, when someone is convicted, four possibilities arise. The right (i.e. guilty) person could be convicted, and through correct procedures (i.e. the right process), the right person could be convicted through incorrect procedures (i.e. the wrong process), the wrong (i.e. innocent) person could be convicted through correct procedures, or the wrong person could be convicted through incorrect procedures.8 A ‘wrongful conviction’ could therefore refer to the wrong person being convicted, or where a conviction is technically ‘wrongful’ because it was obtained unfairly, using incorrect procedure.
‘Wrongful’ is a slightly archaic word which connotes injustice over and above a mere error (which would be described as ‘wrong’, ‘incorrect’ or ‘unsafe’).9 Though this makes it fitting for someone convicted of a crime of which they were innocent, the term ‘wrongful conviction’ is not a legal term. In criminal law, where a conviction for a serious offence is appealed, the court’s test for whether to allow it (and quash the conviction) is whether it thinks ‘that the conviction is unsafe’.10 If the conviction is concluded to be unsafe, the conviction must be quashed - there is no discretion to dismiss the appeal (even if the appellant’s guilt appears likely). A retrial may, however, be ordered.11
The statute does not define what is ‘unsafe’. The wording is succinct yet deliberately wide. In R v Criminal Cases Review Commission Ex p. Pearson [1999], Lord Bingham C.J. stated, ‘In some cases unsafety will be obvious, as (for example) where it appears that someone other than the appellant committed the crime and the appellant did not, or where the appellant has been convicted of an act that was not in law a crime, or where a conviction is shown to be vitiated by
7 Although sexual offences remain a relatively low proportion of all crimes recorded by the police (3%), they make up 25% (a large minority) of CCRC applications (and 19% of referrals). See Office for National Statistics, Crime and Justice in England and Wales, year ending December 2019 (latest release)
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serious unfairness in the conduct of the trial or significant legal misdirection, or where the jury verdict, in the context of other verdicts, defies any rational explanation’.12
However, he also noted the commonality of, ‘Cases where the court, although by no means persuaded of an appellant's innocence, is subject to some lurking doubt or uneasiness whether an injustice has been done … If, on consideration of all the facts and circumstances of the case before it, the court entertains real doubts whether the appellant was guilty of the offence of which he has been convicted, the court will consider the conviction unsafe. In these less obvious cases the ultimate decision of the Court of Appeal will very much depend on its assessment of all the facts and circumstances’.13 From his description, ‘unsafe’ therefore applies to both categories of ‘wrongful’ conviction discussed above - whether a factually innocent person has been convicted, or whether procedural errors occurred before or during trial.14
Even though both of these categories are covered, the Court can also consider a conviction unsafe if it has a ‘lurking doubt or uneasiness’ about whether an injustice has been done.15 This can occur even where the Court is not persuaded of an appellant's innocence,16 and even if there is ‘no doubt about guilt’.17 Known as the ‘lurking doubt’ principle, the purpose of this is interpreted as a means of rectifying wrongful convictions in cases that would otherwise be beyond reproach. It is rarely used. As Roberts notes, the Court cannot comment on whether it thinks an appellant is innocent, nor can it override the supremacy of the jury at the trial as the fact-finders.18 Therefore, using this principle risks ‘trespassing on the function of the jury, despite offering a safety valve in the system’.19
Unlike ‘wrongful conviction’, ‘miscarriage of justice’ is a legal term, though perhaps the least precise. The Criminal Appeals Act 1968 (prior to replacement by the Criminal Appeals Act 1995) permitted appeals against convictions where the Court found them a) ‘unsafe or unsatisfactory’, or b) ‘the judgment of the court of trial should be set aside on the ground of a wrong decision of any question of law’, or c) ‘there was a material irregularity in the course of the trial’.20 Even where one or more of these criteria were met, though, the Court could dismiss appeals if it concluded that ‘no miscarriage of justice had actually occurred’.21 This indicates that a ‘miscarriage of justice’ could have occurred in criteria a, b or c. If so, its definition would be synonymous with unsafe or ‘wrongful conviction’, applying to those convicted who are innocent of a crime and those convicted through procedural errors.
12 R v Criminal Cases Review Commission Ex p. Pearson [1999] 3 All E.R. 498 per Lord Bingham CJ 13 Ibid. 14 S Roberts and L Weathered, ‘Assisting the factually innocent: the contradictions and compatibility of innocence projects and the CCRC’ Oxford Journal of Legal Studies [2009] 29(1), 43 15 Lurking doubt was introduced in R v Cooper [1969] 1 All ER 32, reaffirmed in R v B [2005] EWCA Crim 63 16 R v Criminal Cases Review Commission Ex p. Pearson [1999] 3 All E.R. 498 at 46 17 R v Davis, Johnson and Rowe [2001] 1 Cr. App. R. 115, 131-132 per Mantell LJ 18 S Roberts, ‘The Royal Commission on Criminal Justice and Factual Innocence: Remedying Wrongful Convictions in the Court of Appeal’ Justice Journal [2004] 1(2), 86 19 L Leigh, ‘Lurking Doubt and the Safety of Convictions’ Criminal Law Review [2006] 809 20 S2(1) a-c, Criminal Appeal Act 1968. This section was repealed by the Criminal Appeal Act 1995 which simplified it into a ‘safety test’. The section now states that the Court ‘(a) shall allow an appeal against conviction if they think that the conviction is unsafe; (b) shall dismiss such an appeal in any other case’. This amendment was intended to simplify the law rather than change it, so the Court could focus solely on the issue of whether a conviction is safe. 21 S2(2) Criminal Appeal Act 1968. This subsection was known as ‘the proviso’.
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As an academic subject, ‘miscarriages of justice’ are interpreted far more widely. Nobles and Schiff define miscarriages of justice as ‘a gap between the values claimed by the criminal justice system, and its actual practice’ (or malpractice, in the case of a breach of rights).22 Walker observes that miscarriages of justice can occur ‘whenever suspects, defendants or convicts are treated by the State in breach of their rights’.23 As such, even someone who is factually guilty of a crime could suffer a miscarriage of justice if convicted by a process that did not respect basic rights. He explains that mistreatment could result from inadequate protection or disproportionate treatment by the State, deficient legal processes, unfair application or even inherent unjustness of laws. The potential injustice arising from legitimately made rules is a central consideration of the thesis. It is explored in conjunction with whether an organisation within the system, operating on legal definitions, can adequately recognise this kind of miscarriage of justice.
Savage et al interpret ‘miscarriages of justice’ to apply to situations where State agencies fail to act appropriately in response to victimisation. The State, Crown Prosecution Service (CPS), police or courts could contribute to or create a miscarriage of justice by failing to investigate, prosecute, or convict an offender – or by doing so through improper procedures.24 This may be accidental or deliberate. On this point, Naughton distinguishes miscarriages of justice occurring due to human error, from what he provocatively terms ‘abortions of justice’ – where injustice was deliberately caused.25 There have however been extensive regulations governing criminal justice agencies’ conduct seeking to reduce possibilities of this.26
Naughton’s allegory is useful to the extent that it highlights the borrowed terminology from a comparative loss of life situation. The word ‘miscarriage’ refers to the death of a foetus before birth. Its application to justice (and instances of its ‘failed delivery’) communicates a similar life-afflicting unfairness, such as an innocent person suffering a punishment for something they did not do.27 This phrase (unlike ‘unsafe convictions’) arguably connotes that the error type it refers to is Forst’s ‘type 1’, wherein an innocent person is erroneously convicted.
In academic terms, miscarriages of justice are caused by criminal justice process failures to investigate reported crime, to ensure rights are upheld, to convict the guilty, to sentence them proportionately, and to do so through correct procedure. Savage et al argue that the appeals system can maintain miscarriages of justice if reluctant to probe previous decisions or there are failures to
22 R Nobles and D Schiff, Understanding Miscarriages of Justice: Law, the Media, and the Inevitability of Crisis (2000, OUP) p34 23 C Walker, ‘Miscarriages of Justice in Principle and Practice’ in C Walker and K Starmer (eds) Miscarriages of Justice - A Review of Justice in Error (1999, Blackstone) p32 24 S Savage, J Grieve and S Poyser, ‘Putting Wrongs To Right’ Criminology and Criminal Justice [2007] 7(1), 84 25 M Naughton, The Innocent and the Criminal Justice System (2013, Palgrave) p56-57 26 For example, through safeguarding measures such as mandatory recorded interviews, maximum periods of detention, the right to legal advice, independent custody officers to ensure suspects’ rights are upheld, and the inadmissibility of evidence obtained by undue process (Police and Criminal Evidence Act 1984, Codes C, E, F and S78). Prior to this, detainees had limited protection under non-statutory Judges Rules, which only outlined procedural guidance in relation to police questioning. 27 ‘Miscarriage of Justice’, Cambridge English Dictionary
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rectify previous errors.28
Although appellate judges are positioned to provide this check upon the criminal justice system, Quirk argues that their role in identifying and addressing miscarriages of justice is rarely addressed in the legal discourse. She identifies a lack of scrutiny over why wrongful convictions are being upheld – not just created.29 The thesis contributes to closing this gap by scrutinising appeal judgments of CCRC referrals. Chapter Two explores this issue in more detail, in relation to potential systemic injustices arising from evidential requirements, which disadvantage certain categories of case on appeal.
Limiting the focus of the study The focus of this thesis is on HSA convictions that may potentially be unsafe. Sentence appeals and failures to convict are beyond the remit of this study. For this reason, and for the sake of clarity, the phrase ‘unsafe conviction’ is predominantly used from hereon, unless (i) citing a source which uses an alternative phrase, or (ii) referring to the ‘wrongful conviction’ of the innocent. ‘Unsafe conviction’ is a precise legal category, whereas ‘miscarriage of justice’ and ‘wrongful conviction’ give room for misunderstanding, as the cases they are used to refer to denote opposite kinds of cases in academic use than in general comprehension. Conflation of these terms would reinforce the perspective that the criminal appeals system identifies miscarriages of justice (which connotes innocent people wrongfully convicted), when in fact it considers which convictions may be ‘unsafe’ (which has a much wider remit). Though the field and topic are best known as ‘miscarriages of justice’, this phrase is reserved for discussion about its wider meaning.
A further limitation of this study – and much of the UK academic scholarship on this topic - is its narrow focus on CCRC cases. This excludes all cases that did not incur custodial sentences and cases where the factually innocent were able to mount a successful appeal (at first instance).30 As Savage et al argue, most miscarriages of justice are never revealed – so cases referred by the CCRC and quashed on appeal represent the ‘tip of the iceberg’.31
Lastly, it should be noted that although ‘HSA’ is an umbrella term for sexual offences usually appealed from the Crown to the Court of Appeal, it can also include cases heard at a Magistrates court. Though unusual, one such example was the 2015 trial of celebrity radio DJ Neil Fox, on counts of indecent assaults on girls under 16 (contrary to s14(1) of and Schedule 2 to the Sexual Offence Act 1956 and s3 Sexual Offences Act 2003). His strategic decision for the case to be heard by way of summary trial at Westminster Magistrates’ court (rather than face jury trial in the Crown court) was described by legal commentators as a tactic shaped by concerns that hostility to celebrity HSA
28 S Savage, J Grieve and S Poyser, ‘Putting wrongs to right’ [2007] Criminology and Criminal Justice 7(1), 84 29 H Quirk, ‘Don’t Mention the War’ Modern Law Review [2013] 76(6), 971 30 M Naughton, ‘Redefining Miscarriages of Justice: a revived human rights approach to unearth subjugated discourses of wrongful criminal conviction’ British Journal of Criminology [2005] 45, 165. Most of the work in this field looks at criminal convictions for serious offences, which can distort perceptions about where ‘miscarriages of justice’ arise. Most ‘miscarriages of justice’ are absent in the literature either as they are only ‘miscarriages’ in a broader sense (such as false allegations, failures to identify all guilty perpetrators, or unjust sentences), or because they have been successfully appealed at first instance. 31 S Savage, J Grieve and S Poyser, ‘Putting Wrongs To Right’ Criminology and Criminal Justice [2007] 7(1); M Naughton, Rethinking Miscarriages of Justice: Beyond the Tip of the Iceberg (2007, Palgrave)
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scandals would compromise the fairness of the trial.32
Although the CCRC can accept applicants whose cases were heard by Magistrates, most of its applications concern serious criminal offences involving lengthy prison terms (by their nature of having reached this stage of appeal). From the sample of every HSA conviction referred, none were appeals from a Magistrates court, due to the severity of the offences involved. However, given that 94% of criminal cases are dealt with at the Magistrates’ courts, the potentially unsafe convictions identified are in this sense atypical, and unrepresentative of most ‘miscarriages of justice’.33
Part 2: How and by whom is a conviction reviewed?
Those convicted in England and Wales must apply to the relevant court for ‘leave’ to appeal. If granted, their appeal will be heard. If this appeal is unsuccessful (or if they were not granted leave), the convicted person may still apply to the CCRC to reconsider their case. The CCRC operates as an independent public body, which reviews convictions, verdicts, findings or sentences, and refers potential injustices back to the appeal courts for reconsideration.34
Background context: why the CCRC was created The CCRC was introduced to replace the body that had previously dealt with unsafe convictions, the Home Office’s Criminal Cases Unit (‘C3’ division). Its introduction followed criticisms that C3 was failing to help innocent victims of wrongful conviction.35 C3 reviewed 700-800 petitions from prisoners every year, wherein applications were made to the Home Secretary. However, the petition application process meant that those with very poor literacy levels and/or without any legal assistance would be unable to make a persuasive application to begin with. Taylor and Mansfield reflect that, where applications were reviewed, C3’s lack of investigatory capacity and abilities proved a further constraint.36
As a Home Office department, C3 was part of the executive, referring cases on indictment to the Court of Appeal where the Home Secretary ‘saw fit’.37 The Home Secretary was, however, also responsible for the police. Critics argued that undue deference was afforded to the Court of Appeal,
32 D Corker, ‘‘Dr Fox’ in the magistrates court; winning the legal battle, losing the publicity war’ (21 January 2016)
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as successive Home Secretaries sought not to challenge its independence and authority.38 The fact that C3 oversaw police investigation into the initial crimes also made it ill-placed to reinvestigate unsafe convictions – it frequently assigned the original police officers to reconsider their own cases.39 C3 was criticised for its ‘entrenched reluctance’ to inquire too deeply into cases due to potential conflicts of interest.
C3’s inadequacies were highlighted by a series of high-profile post-conviction appeals in the late 1980s and early 1990s, involving covered-up police misconduct and repeated appeal refusals.40 Widespread public mistrust of the criminal justice system (and appeals in particular) was triggered by cases such as the ‘Guildford Four’, ‘Maguire Seven’ and ‘Birmingham Six’ amongst others, where (mainly) Irish people had been wrongly convicted of IRA-related terror offences between 1975-1976.41 False confessions had been elicited by police pressure and use of violence, and there had also been deliberate failures to disclose exculpatory evidence in order to facilitate a conviction. The Court of Appeal dismissed repeated appeal applications, before eventually quashing the convictions between 1989-1991.
The Court was heavily criticised for its previous failures to rectify alleged wrongful convictions. In March 1991, on the day the Birmingham Six had their convictions overturned in the Court of Appeal, the formation of a Royal Commission on Criminal Justice (hereafter ‘RCCJ’) was announced. Its purpose was to recommend new procedures for appeals against conviction and for post-appeal review of ‘miscarriages of justice’.42 The RCCJ’s final report specified that C3 should be replaced with a new organisation, independent from both the government and judiciary.43
The recommendations of the RCCJ were enshrined in the Criminal Appeal Act 1995. Creating the CCRC as a separate body, its independence was entrenched through recommendations that staff were drawn from a mix of former police, prosecution and defence lawyers, and forensic science practitioners, and that Commissioners would hold positions for limited times.44 This ensured a range of expertise, and avoidance of complacency, political sympathy or ‘blinkered vision’. In order to encourage transparency and accountability, the Criminal Appeal Act 1995 obliged the CCRC to consider every eligible application made to it, and to file regular casework progress reports, detailing how it discharged its duties and accounts. It further stipulated that the CCRC must issue statements
38 N Taylor and M Mansfield, ‘Post Conviction Procedures’, in C Walker and K Starmer (eds) Miscarriages of Justice: A Review of Justice in Error (2004, OUP) p166 39 Sir J May, Report of the Inquiry into the circumstances surrounding the convictions arising out of the bomb attacks in Guildford and Woolwich in 1974- Final Report (HC499, 1994) as quoted in Viscount W Runciman, Report of the Royal Commission on Criminal Justice (Cm2263, 1993) p182 40 Most notably the Birmingham Six, the Maguire Seven, the Guildford Four, the Cardiff Three, the Bridgwater Four, Stefan Kisko and Judith Ward. Chris Summers’ Miscarriages of Justice Report for the BBC’s Life of Crime series (January 2001) gives detailed accounts of the cases, the media reception and public backlash against the criminal appeals system.
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of reason to applicants and the appeal courts explaining the reasoning for its decision.45
The CCRC investigates cases where people believe they have been wrongly convicted of a criminal offence or wrongly sentenced, by the Magistrates’ courts, the Crown Court in England, Wales and Northern Ireland and the Court Martial and Service Civilian Court. Upon receiving an application, it seeks court documents and appeal papers to determine what investigations are likely to be required. If the application is eligible and there are issues deemed to warrant further investigation, the case is assigned for review. If it raises no significant new points, or the applicants did not appeal at the time of original conviction, it is rejected (though there are some exceptions).46 If the decision is made to not refer the case, the applicant and their representatives have a chance to comment on the CCRC’s reasons before the CCRC issues a final decision.
Where applications are investigated, the CCRC is able to obtain information from public bodies such as the police, the CPS, the NHS, social services, and local councils, and summon documents from private individuals or organisations.47 It can commission police investigations, interview jurors and witnesses (original and new), and arrange for new expert evidence such as psychological reports and DNA testing. It can therefore obtain material that an applicant or their representatives would not have been able to obtain, or even know about. After investigation, if the Case Review Manager sees no prospect of the case being referred, it is referred to a Commissioner (or a decision-making committee) for a final decision. If, however, the Case Review Manager thinks it is referable, a decision-making committee will consider whether it can meet the requisite test.
The CCRC’s test to refer a case back for appeal Under s13 Criminal Appeal Act 1995, the CCRC’s test for whether to refer a case or not is whether it thinks there is ‘a real possibility that the conviction or sentence would not be upheld’ by the Court of Appeal.48 The referral must also present fresh evidence or argument (for appeals against convictions) or new points of law (for appeals against sentences) not used at previous trials. In addition, the applicant must have also either had an appeal determined or been refused leave to appeal. Referrals lacking these requirements are permissible only in ‘exceptional circumstances’.49
The first element of this test means that the CCRC must have regard to the appeal courts’ criteria when considering whether there is a real possibility it would not uphold the conviction. As set out above, this is whether a conviction can be held to be ‘unsafe’.50 The CCRC therefore sub-applies the appeal courts’ test telescopically when determining which cases are referable.
One of the key debates in England and Wales’ miscarriage of justice literature revolves around the
45 S14(4-6) Criminal Appeal Act 1995 46 See Criminal Cases Review Commission, Exceptional Circumstances in “No Appeal” Cases Casework Policy (updated 9 April 2020)
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CCRC second-guessing the Court’s decisions. Critics argue that only referring what it predicts the Court will quash (and refusing to refer what it foreseeably would not) risks the CCRC becoming subordinate to the Court. This compromises the independence specifically assigned to it in order to act as a check on the justice system.51
In addition, the Court’s jurisprudence can be contradictory and complex to interpret - so there is a risk that the CCRC could misinterpret its rulings and receptivity. This would further impair its ability to decide which cases merited referral. A 2015 Justice Select Committee report on the CCRC expressed concerns that ‘there may be some miscarriages of justice going uncorrected because of the difficulty the CCRC faces in getting some such cases past the threshold of 'real possibility', as a result of the Court of Appeal's approach’.52
The ‘unsafety’ test also means that the Court of Appeal (and by default, the CCRC) refer and quash cases where the convicted person may be demonstrably factually guilty, but the conviction could be deemed unsafe due to a legal technicality or procedural error. Its casework is not limited to those where the applicant may be innocent, nor does this steer investigations and decisions. Explaining its criteria for case review, the CCRC website makes clear that, ‘…we do not consider innocence or guilt, but whether there is new evidence or argument that may cast doubt on the safety of an original decision’.53 Emphasising the point that it does not seek to establish applicants’ potential innocence, one of its legal advisers stated that he did ‘not know what a miscarriage of justice is’.54 This is because caseworkers only consider whether there is a real possibility that the conviction would not be upheld, were a reference to be made.
Academics and practitioners have highlighted problems with this legalistic approach. Naughton, who founded a University Innocence Project (and later the Innocence Network UK, a formal body overseeing other projects’ work), argues that the focus on identifying where due process has been breached compromises concern for whether applicants are actually innocent.55 McCartney and Roberts (both of whom have also established Innocence Projects) indicate that casework investigations looking for procedural errors come at the cost of investigative work to search for evidence of innocence.56 This is a particular problem for cases with no evident breach of due process.
Eady and Price describe the effect of this test, which permits the situation where likely (or identifiably)
51 K Kerrigan, ‘Real Possibility or Fat Chance?’ in M Naughton (ed) The Criminal Cases Review Commission: Hope for the Innocent? (2009, Palgrave MacMillan) p167. Richard Nobles, Bob Woffinden and David Schiff have made similar criticisms throughout their work on the CCRC. 52 Justice Select Committee, Twelfth Report: Criminal Cases Review Commission (HC850, 2015) p27 53 Criminal Cases Review Commission, ‘Who We Are’
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guilty applicants may be investigated, referred and quashed (at great time and resource expense),57 whilst applicants whose cases have strong indicators of innocence can be rejected because they cannot demonstrate procedural errors, or meet the requirements of s13 (such as fresh evidence or argument, or inspiring lurking doubt).58 Kerrigan asserts that, in such instances, the CCRC is ‘not a solution, but as a contributor to systematic injustice’.59
The concept of innocence has been a driving force in the creation of the key remedies against wrongful convictions. Both the CCRC and Court of Appeal were created following a series of high- profile convictions causing public outrage. Naughton reasons that the CCRC was set up after recognition of the ‘reluctance of the Court to address the actual innocence or guilt of applicants’, therefore, it was specifically not intended to mimic the Court’s ‘due process’ approach.60 He goes on to argue that the present-day CCRC runs contrary to how the RCCJ envisioned it – which was ‘that it would re-investigate claims of factual innocence thoroughly to determine whether they are valid or not’.61
Naughton supports this argument by explaining that, ‘the way in which the RCCJ and JUSTICE had defined a miscarriage of justice was very clear and in line with lay understandings: it was either the wrongful conviction of the factually innocent and/or the wrongful acquittal of the factually guilty’.62 If Naughton’s interpretation is correct, it follows that the CCRC’s working practice does signify a move away from the principles upon which it was set up. By sub-applying the Court’s ‘unsafety’ test, it (i) fails to assist the innocent and (ii) has become subordinate to the Court, compromising its independence.
The RCCJ, when proposing the CCRC, does explain that it was formed to overcome the barriers to justice that existed previously due to C3’s deference to the Courts. Because of this, the independence of the CCRC from both the executive and the judiciary was paramount.63 However, neither the RCCJ nor the Criminal Appeal Act 1995, when setting out its terms of reference, specified that the CCRC should focus on applicants’ potential innocence.
An initial provision specifying that the CCRC should consider innocence was abandoned, to allow passage of the Bill. Michael Zander (who was a member of the RCCJ) clarifies that the main reason
57 For example, the cases of Christopher Mullen and Nicholas Farnell were referred following judicial review. In Farnell v Criminal Cases Review Commission [2003] EHWC 835 (Admin) the CCRC’s decision not to refer the case on technicalities (as the applicant had admitted unlawful killing), was held to be invalid. Compelled to reconsider, the CCRC referred it and the Court quashed Farnell’s murder conviction, replacing it with manslaughter. This demonstrates how adherence to the ‘unsafety’ test resulted in a known offender being afforded resources for reinvestigation on a technical matter, at potential cost to the innocent. 58 D Eady and J Price, ‘Innocent Projects, the CCRC and the Court of Appeal: breaching the barriers?’ Archbold Review [2010] 9, 8 59 K Kerrigan, ‘Real Possibility or Fat Chance?’ in M Naughton (ed) The Criminal Cases Review Commission: Hope for the Innocent? (2010, Palgrave Macmillan) p166 60 M Naughton, ‘Conclusion’ in M Naughton (ed) The Criminal Cases Review Commission: Hope for the Innocent? (2010, Palgrave Macmillan) p222 61 Ibid. 62 M Naughton, ‘The importance of innocence in the Criminal Justice System’ in M Naughton (ed) The Criminal Cases Review Commission: Hope for the Innocent? (2010, Palgrave Macmillan) p20 63 W Runciman, Report of the Royal Commission on Criminal Justice (Cm2263, 1993) Ch.11 para 46
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the RCCJ proposed the body was to ‘replace C3 as a better vehicle of investigating wrongful convictions’, rather than to refer cases under a new principle such as ‘suspected innocence’. He speculates that the RCCJ would have agreed with the CCRC’s approach under s13.64
Naughton arguably errs in using an interpretation of RCCJ ideals against which to measure the CCRC’s correct working purpose. To do so is inherently problematic for several reasons. Firstly, the RCCJ’s ideals were made nearly 25 years ago, in a different criminal justice climate, and were subject to criticisms at that time.65 They are arguably therefore no longer a suitable benchmark. Secondly, the Act that enshrined the RCCJ’s recommendations in statute adapted the proposed remit of the CCRC, according to what was feasible after detailed consideration. Thirdly, as the final arbiter is the Court of Appeal, CCRC decision-making must to an extent follow its evolving jurisprudence. Different types of cases have arisen presenting new challenges. Prevailing cultural norms, attitudes and values have also affected the legal climate. Neither the RCCJ nor drafters of the Criminal Appeal Act 1995 could have envisaged the practical constraints of the justice system within which the CCRC now operates.66
This argument is underlined by the thesis in its assessment of whether HSA cases pose increasing difficulties for the CCRC. Given that it operates in a different criminal justice climate than when it was (i) designed and (ii) created, comparisons between the CCRC’s current practice and the intentions of recommending bodies have limited lasting applicability. The following parts of this chapter explore the argument that the CCRC’s post-conviction investigation cannot continue to be informed by previous standards and past expectations.
Proposed alternatives to the CCRC’s s13 and Court’s ‘unsafety’ tests Nobles and Schiff propose that the CCRC should apply an asymmetric referral test (i.e. one that differs from the Court’s test), which would realign its casework priorities. Instead of trying to second- guess the Court’s jurisprudence, they propose that the CCRC should focus on ‘identifying suitable miscarriages of justice and getting them to the Court of Appeal’.67 There is also some academic support for the similar test of whether there is a 'real possibility' that a miscarriage of justice occurred.68 The proposal echoes the test used by the Scottish CCRC, which refers cases back for appeal ‘where it believes that a miscarriage of justice may have occurred’, and it is in the interests of justice to refer.69
However, the symmetry between the current tests prevents the CCRC from referring cases under one set of conditions, only for them to be rejected by the Court of Appeal upon referral. The issue with the suggested amendment above is that, even if the CCRC were ‘unshackled’ and free to refer cases that
64 M Zander QC, Paper 15 (presented at the CCRC Stakeholders’ Annual Conference, 28 November 2012) p3 65 L Bridges and M McConville, ‘Keeping Faith With Their Own Convictions: The Royal Commission on Criminal Justice’ Modern Law Review [1994] 57, 75–90 66 Such as the rapidly increasing caseload and changing rules around joint enterprise in relation to a conviction’s safety, and changing jurisprudence on Article 6. 67 R Nobles and D Schiff, ‘Absurd Asymmetry – a comment on R v Cottrell and Fletcher and BM, KK and DP (Petitioners) v Scottish Criminal Cases Review Commission’ Modern Law Review [2008] 71, 464 68 Justice Select Committee, Twelfth Report: Criminal Cases Review Commission (HC850, 2015) Q18 per Michael Naughton 69 S194c Criminal Procedure (Scotland) Act 1995
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it perceived as potentially unjust and deserving of review, the Court would remain the ultimate arbiter and still apply its statutory threshold. Thus, cases would arguably stand better chances of referral (and thus appeal) if the CCRC follows the same concepts as the Court’s test.
An alternative suggestion is for the CCRC to refer where it believes an applicant ‘is, or might be, innocent’.70 However, assessments of whether convictions are unsafe under the current test already encompass considerations of potential innocence.71 In addition, Duff explains that it is ‘never possible to be sure about what precisely happened’, and innocence is often harder to demonstrate than doubts as to the safety of a conviction.72 An ‘innocence’ standard would have a narrower remit in practice, meaning that the CCRC could only consider a much smaller category of cases. If ‘innocence’ replaced ‘unsafety’ as the key factor governing potential appeals, it would be very difficult for many applicants to demonstrate, and the CCRC would seldom be able to refer. Consequently, fewer innocent people would get convictions quashed than under the broader ‘unsafety’ provision.
Ultimately, the application of either provision must embody the trade-off discussed in the introduction, between the quality of the conviction process, and the quantity of offenders processed (i.e. efficiency of the process). The ‘unsafety’ provision ensures that only those safely convicted remain so, at the cost of letting some potentially guilty offenders go free where their convictions were achieved through erroneous, undue or ‘unsafe’ processes. It emphasises quality of conviction. An ‘innocence’ provision, conversely, prioritises quantity, by restricting the number of those who have a last chance to appeal their convictions.
McCartney and Roberts further explain that the CCRC’s current referral test provides a means of redress for anyone wronged by the criminal justice system. This benefits innocent applicants who would otherwise fail to meet the criteria, by providing them with grounds of appeal.73 It also provides an important due process check upon the criminal justice system. If enacted, an ‘innocence’ requirement would reduce the scope for identifying and correcting procedural errors and undue process. In practice, this would signify that convictions obtained through procedural errors and malpractice – even if it was the right result (or ‘positive correct’ to use Forst’s terminology) - were not unsafe or wrongful.
There have been proposals of a compromise approach, whereby the CCRC would prioritise cases where it senses the applicant was actually innocent, over cases that raise only technical or legal appeal grounds.74 However, if this were introduced as policy, it may make little practical difference
70 M Naughton and G Tan, ‘Criminal Justice System Still Failing the Innocent’ in M Naughton and G Tan (eds) Innocence Network UK Symposium on the Reform of the Criminal Cases Review Commission (2012, Lexis Nexis) p61 71 S Roberts and L Weathered, ‘Assisting the factually innocent: the contradictions and compatibility of innocence projects and the CCRC’ Oxford Journal of Legal Studies [2009] 29(1), 43 72 P Duff, ‘Straddling Two Worlds: Reflections of a Retired Criminal Cases Review Commissioner’ Modern Law Review [2009] 72, 721 73 C McCartney and S Roberts, ‘Building Institutions to Address Miscarriages of Justice in England and Wales: ‘Mission Accomplished’?’ University of Cincinnati Law Review [2012] 80, 25 74 Home Affairs Select Committee, The Work of The Criminal Cases Review Commission (HC106,1999) para 2; Ministry of Justice, Triennial Review: Criminal Cases Review Commission - Combined Report (2013, Home Office) p12-13
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given that most applicants claim innocence. Prioritisation would therefore be difficult until after investigation.75 It is also possible that CCRC staff already use discretion to prioritise applicants suspected as more likely to be innocent anyway.
Even if an ‘innocence’ requirement were added to the existing s13 test, Zander argues that it would result in ‘first and second class referrals’ from the CCRC, implying that others referred were less - or not actually - innocent. If this suggestion were applied to the Court’s appeals, it would similarly ‘create two classes of people: those found to be factually innocent and those who benefited from the presumption of innocence and the high standard of proof beyond a reasonable doubt’.76 Were the Court to introduce a finding of ‘innocent’ in addition to guilty or not guilty, it would degrade the meaning of the ‘not guilty’ verdict. In R (Adams) v Secretary of State for Justice, the Court explained that, ‘just as a criminal trial is not a declaration of factual innocence, but rather a vehicle for upholding the presumption of innocence, an appeal court… does not have jurisdiction to consider whether an appellant is innocent or not’.77
Lurking Doubt There is a provision that permits convictions where there is no fresh evidence or procedural irregularity to be quashed on appeal. This is where the Court has a ‘lurking doubt’. Introduced in R v Cooper, it relates to appeals where ‘the Court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done’.78 This effectively offers the Court a backstop to rectify injustices that fall short of s13. The CCRC can therefore consider whether the Court might have a lurking doubt when considering which cases to refer. Arguably, a significant proportion of HSA cases could conceivably fall within this category, given their inherent difficulties meeting the appeal threshold (set out in detail in Chapter Two).
However, appeals on the basis of a ‘lurking doubt’ are seldom successful. Roberts explains that, as this provision essentially permits the Court to decide whether a conviction is unsafe through a review of evidence given at trial, its deference to jury verdicts makes it an extremely difficult ground to argue.79 Zander argues that this is because the Court does not wish to quash a conviction ‘on a hunch’, or usurp the decision of the jury.80 He further argues that the Court deliberately sets the bar high to overturn previous judgments, so as to avoid such difficult cases.81
75 Criminal Cases Review Commission, ‘Code of Conduct for Commission Board Members and Employees’ (CCRC Corporate Reports) p2
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Consequently, it is difficult for the CCRC to determine which potential referrals could utilise this provision. This was noted in the 2015 Justice Select Committee report on the CCRC. Having expressed concerns with the CCRC’s position in deciding which cases were referable based on Court of Appeal receptivity, it stated that, ‘the Court's jurisprudence... on 'lurking doubt' is difficult to interpret and it is concerning that there is no clear or formal mechanism to consider quashing convictions arising from decisions which have a strong appearance of being incorrect’.82 In relation to HSA cases in particular, former CCRC Commissioner David Jessel stated that the Court of Appeal has indicated unwillingness to receive them, which has led to the CCRC finding it subsequently difficult to refer them.83
Academics have argued that the Court should be more prepared to act on lurking doubt, and that the CCRC should refer much more readily on the basis of this provision. Giving evidence to the 2015 Justice Select Committee, Nobles put forward the suggestion that the CCRC refer cases based solely on 'lurking doubt', given the difficulty of anticipating the Court of Appeal's willingness to reconsider jury verdicts.84 This was argued to have the potential to ‘push’ the Court’s jurisprudence, challenging its conservatism rather than allowing CCRC referrals to be guided by it. However, the CCRC might be hamstrung in its ability to refer these cases on ‘lurking doubt’, due to the (perceived or real) unreceptiveness of the Court of Appeal, and its need for cooperation with the Court in order to function as a case review body. As the Court would still be the ultimate arbiter, Nobles remains sceptical of change unless efforts were made to increase its willingness to engage with factual innocence.85
Systemic constraints In addition to this referral difficulty, this thesis argues that CCRC may also be hamstrung in its ability to identify cases (such as HSA) that cannot meet the s13 test, where injustice has been caused by systemic errors. Examples of cases involving ‘systemic injustice’ could arise in the context of convictions obtained through unjust laws (or where their operation causes manifest disadvantage).
As an example, the Dangerous Dogs Act 1991 made it an offence to have a dog ‘dangerously out of control’, and penalties for owners include destruction of the dog, a ban on owning dogs or a prison sentence. The Act was introduced in response to a spate of 11 violent dog attacks.86 However, the measures have been criticised as a knee-jerk reaction, judging dogs by breed and appearance, not behaviour.87 The broad definition of ‘dangerously out of control’ (which could extend to chasing,
82 Justice Select Committee, Twelfth Report: Criminal Cases Review Commission (HC850, 2015) p27 83 D Jessel, quoted in M Naughton and G Tan (eds) Innocence Network UK Symposium on the Reform of the Criminal Cases Review Commission (2012, Lexis Nexis) p28 84 Ibid. Prior to this, the Royal Commission explicitly recommended that the Court of Appeal ‘should be readier to act upon serious doubt even where there was nothing new and no irregularity at trial’. See, W Runciman, Report of the Royal Commission on Criminal Justice (Cm2263, 1993) Ch.10 para 46 85 R Nobles, in M Naughton and G Tan (eds) Innocence Network UK Symposium on the Reform of the Criminal Cases Review Commission (2012, Lexis Nexis) p35 86 Hansard (25 June 1991) Col 510-511 per Robert Shirley, Minister of State for Home Affairs. The vicious pit bull terrier attacks on toddler Rucksana Khan and Frank Tempest, a man whose extreme disfigurement was shown on television and in newspapers, were said to have caused widespread public concern. 87 Environment, Food and Rural Affairs Committee, Dog Control and Welfare (HC575, 2013)
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jumping and barking where this causes a person to reasonably believe they will be attacked) has also been criticised as overly harsh.
More recently, the Terrorist Offenders (Restriction of Early Release) Act 2020, introduced following several terror attacks in London by men recently released from prison, blocks the automatic release of people convicted of terror offences.88 Unusually, it applies retrospectively – meaning that prisoners already convicted under pre-existing rules allowing for release halfway through a sentence will no longer have this right. This has prompted criticisms for being rushed ‘without review or evidence’, encroaching on the civil liberties of those convicted under one set of rules only to have this time period extended under different rules.89
Quirk has looked at criminal cases stemming from similar temporary and emergency provisions, introduced during terror-related conflict in Northern Ireland.90 She argued that the current appeals system is unsatisfactory in relation to exposing injustice in such cases, because it does not take contextual account of the effects of the conflict on the appeal process at the time these provisions were operational.91 These examples pertain to a specific statutory instrument. If, however, manifest disadvantages were produced through several pieces of legislation working collectively, injustices are arguably further obscured from the reach of the CCRC.
There is evidence that the CCRC takes steps to use its position to address causes of unsafe convictions and prevent further cases arising. When patterns in asylum and immigration cases emerged, indicating convictions were obtained unfairly due to the availability of a statutory defence which solicitors failed to recognise, it addressed the (then) UK Border Agency, CPS, law firms and academic audiences in order to ensure the mistakes were understood and the law applied correctly in future cases.92
Though Sato et al interpret this to show the CCRC pushing boundaries to address wider injustice, the outcomes of the referrals depended on the fresh available evidence that an unused statutory defence existed.93 For HSA cases, however, it is argued that the potential systemic injustice stems from the collective effect of laws. As a bureaucratic and legalistic casework body embedded within the justice system, the CCRC is arguably too constrained to tackle the possibility that rules and procedures of the justice system can, collectively and indirectly, cause injustice.
In contrast, independent investigators looking beyond the Court’s stringent threshold may be better
88 Plans for the Parole Board to reconsider terrorist offenders to be released after serving two thirds of their sentence had already been announced in the Queen's Speech, but the retrospective element of this was new. 89 BBC, ‘Streatham attack: Emergency terror law to end early prisoner release’ (3 February 2020)
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able to recognise systemic errors. Belief in the innocence of a convicted person by their loved ones, lawyers and campaigners has underpinned dogged investigation and eventual exposures of injustice, as the next section outlines.
Part 3: Alternative post-conviction casework approaches: pro bono and campaigning groups
Journalists, lawyers, non-governmental organisations and amateur volunteers sometimes also carry out post-conviction casework. They have undertaken or funded investigations and campaigns, and assisted with applications to the CCRC (and before it, petitions to the Home Office). Poyser et al characterise their campaign work, particularly where pro bono, as client-focused and driven from suspected innocence.94 These groups fall into five categories.
Formal campaigning organisations, such as JUSTICE, Amnesty International or Amicus, have taken on human rights-related casework for decades. Though it is not necessarily their main work, they have provided clients with information for appeals and access to lawyers or other experts, and have done awareness-raising work and responded to Government consultations. There are also grassroots groups such as Falsely Accused Carers and Teachers (‘FACT’), False Allegations Support Organisation (‘FASO’), Miscarriages of Justice Organisation (‘MOJO’), and Joint Enterprise Not Guilty by Association (‘JENGbA’). Often regional-level and voluntarily run, these organisations provide advice, support and awareness-raising for those claiming to be innocent and wrongfully convicted, and persons close to them. They can also fund research reports, provide experiential evidence and campaign for law reform.
Journalists have done a lot of work in this field, though this has dropped off significantly since the CCRC’s work picked up. The BBC programme ‘Rough Justice’ began broadcasting in 1982. It contributed to the release of 18 people in cases involving miscarriages of justice. In 1990, the team behind Rough Justice set up ‘Just Television’, a production company focusing on miscarriage of justice investigations. Their programme, ‘Trial and Error’, was broadcast by Channel 4 from 1992- 2000. Head reporter David Jessel then went on to work as a Commissioner at the CCRC after it became operational in 1997.
A recent resurgence of miscarriage of justice programmes has appeared in mainstream media. However, they are also appearing on online platforms – such as Netflix’s Making a Murderer and the podcast Serial, following the murder convictions and appeal attempts of Steven Avery and Brendan Dassey, and Adnan Syed respectively. Because the online format means such shows have a global audience, the ‘investigative’ elements are arguably more diluted for the purposes of viewer ratings. Critics note that facts are withheld from the public for the purpose of presenting an intriguing narrative,
94 S Poyser, A Nurse and R Milne, Miscarriages of Justice: Causes, Consequences and Remedies (2018, Policy Press) p107
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disguised as an unbiased expose.95 However, both examples led to popular support for further investigation, which contributed to both cases concerned culminating in retrials (though the convictions for Avery and Syed, the main defendants, were upheld).
Charitable projects such as APPEAL (formerly the Centre for Criminal Appeal) and Inside Justice (led by Louise Shorter, former producer and director of Rough Justice) also undertake casework investigations. They also provide access to experts and commission new forensic work. In addition, the Criminal Appeal Lawyers Association (CALA) also formed to promote better representation for those seeking to appeal their convictions and sentences. Its members undertake appellate work particularly for applications to the CCRC and for compensation for victims of miscarriages of justice. Originally set up to investigate alleged ‘miscarriage of justice’ cases, they also highlight systemic failings, support academic research and campaign for reform.
There are also student Innocence Projects (sometimes called ‘Justice’ or ‘Pro Bono’ Projects) and similarly modelled law clinics. Such projects have been set up following academic dissatisfaction with the CCRC’s attention when reviewing convictions that may be potentially unsafe, as opposed to focusing on cases where the applicant may be innocent. These projects, usually set up in University law schools, are comprised mainly of student volunteers overseen by legal professionals and academics, who review letters from applicants. They select cases to pursue (by obtaining case files and statements) only where the applicant claims to be wholly innocent. After investigation, they aim to refer cases to the CCRC.96
Such projects were intended to benefit both applicants and students – the former receive help in putting a CCRC appeal together, and the latter gain experience of applying the law to real cases, while receiving first-hand education about causes of unsafe convictions. In numerical terms however, these projects have sent less than 30 cases to the CCRC, of which a smaller percentage still have actually been investigated. Since their formation in 2005, just 2 UK Innocence Project-assisted applications have been quashed.97
Families and friends of those convicted are frequently the driving force behind campaigns, persuading police to reinvestigate, and fundraising for legal costs. Within this group there can be unwavering belief in the convicted person’s innocence, which can be an extremely powerful factor in persistent campaigning, informal research and funding of further investigations.
95 N-E Speechley, ‘A one-sided conversation with the Making a Murderer lawyers’, (The Justice Gap, 1 November 2016)
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Are these approaches beneficial, given that the CCRC reinvestigates applications anyway? As each of these organisations’ casework culminates in a potential application to the CCRC, their position in the case review process is an additional step. If they investigate and refer a case to the CCRC, the CCRC must re-investigate anyway. This is problematic where long time periods are taken to look at cases that yield little useful material, during which time they could have been in the queue for CCRC investigation.
There is also a significant discrepancy in the resources each casework organisation above has available, which impacts on the quality of investigations each of these groups can undertake. For a thorough review, those undertaking investigatory work are likely to require a detailed knowledge of police investigative procedures, what material must have been obtained and how this should have been recorded, what may exist that should have been disclosed to the defence but wasn’t, and what materials the defence could have requested (as well as what they did not receive). Resources are also required where they seek to obtain unused/undisclosed material, revisit or re-enact the alleged offence, or commission forensic examinations, for example. While longstanding groups like CALA have excellent resource access and a strong track record of cases being referred by the CCRC, family-funded campaigns, individual-led investigations and student projects have far less specialism and available means. Eady and Price admit that student and clinic-style projects are simply not able to replicate the quality of CCRC work, given its superior resources.98
Poyser et al note that individual campaign efforts in particular can be as much of a hindrance as help when compared to qualified lawyers.99 This is because they may not have access to privileged information or a comprehensive understanding of all the facts and applicable law. They can also compromise a later investigation if materials have been handled, moved or witnesses contacted informally. A further risk is that these groups’ focus on cases where innocence is claimed (rather than the conviction being unsafe for other reasons) would cause them to reject applicants who are in fact eligible for CCRC consideration. These applicants may then not apply.
These avenues do offer an overwhelming benefit for applicants, however. Assisted applications are often better written and correspond to criteria used by the CCRC. They also set out preliminary investigation steps, and indications of new evidence or where it may lie. In a 2007 study, Hodgson and Horne found that applicants to the CCRC were far more likely to be (i) investigated and (ii) referred, if they had been legally assisted. Only 2.1% of unrepresented applicants gained a referral as against 7.6% of represented applicants. In nearly two fifths of all referrals to the Court of Appeal (38%), legal representatives had a central role. Of the referred cases where the applicant was represented, the lawyer’s role was crucial in 49% of them. 15% of these were because previous applications without representation had failed, or because legal representations made after a
98 D Eady and J Price, ‘Innocent Projects, the CCRC and the Court of Appeal: breaching the barriers?’ Archbold Review [2010] 9, 8 99 S Poyser, A Nurse and R Milne, Miscarriages of Justice: Causes, Consequences and Remedies (2018, Policy Press) p123
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provisional decision not to refer caused them to be referred upon CCRC re-review.100
Returning to the CCRC’s referral criteria, s13(1)b Criminal Appeal Act 1995 requires fresh evidence or argument in order for the application to be referable. Despite the CCRC website and application form clarifying that it is their job to uncover fresh evidence, the website also states that cases may be rejected because ‘the application does not raise any significant new points that might allow us to send your case for an appeal’.101 Green notes that applicants are often unaware of what constitutes fresh evidence or where to begin to look for it. He further explains that ‘those who write their own applications fail… to explain why evidence they think exists is fresh, why it is important and makes a difference to their case’.102 Critics argue that the catch-22 underpinning the CCRC’s initial application of the ‘fresh evidence’ requirement, therefore, is that ‘evidence of potential factual innocence has to be unearthed by an investigation that is looking for it’.103 The CCRC asserts though, that the request for applications to identify new evidence or arguments about why the conviction (or sentence) is unsafe is a sensible compromise, allowing it to focus investigative resources appropriately, given the increasing number of applications and limited resources.104
It has also been argued that the CCRC uses s13(1)b as a convenient excuse to undertake ‘desktop reviews of whether convictions might be legally unsafe’,105 rather than spend resources on case investigations with no direction or foreseeable result.106 While there is little supporting objective first- hand evidence of CCRC case reviews to support the ‘desktop review’ allegation, its formal casework protocol documents state that applications raising no reviewable grounds or fresh issues may be ‘fast tracked’, undergoing basic process checks into likely sources of new evidence.107 If this yields nothing substantial, these cases are rejected.108 Yet, where speculative casework has already been carried out, this could further persuade the CCRC to investigate the case where it would otherwise not have done (for example, it if initially did not appear relevant, thus not justifiable in terms of resources).
The Supreme Court, in the appeal case of Nunn (in which JUSTICE, INUK and CALA were third-party interveners), set out that the CCRC should welcome assistance. It stated, ‘There is no doubt that the CCRC is much assisted by informed legal analysis and presentation if an application for review is made to it… If there appears to be a real prospect that further enquiry will
100 J Hodgson and J Horne, ‘The extent and Impact of legal representation on applications to the Criminal Cases Review Commission’ Legal Services Commission Report (2008, Warwick Law School) p42. The results could however be due to a selection factor bias, whereby lawyers choose only to work on arguable cases and filter out unmeritorious applications. 101 Criminal Cases Review Commission, ‘Questions and Answers about the CCRC’ p4
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uncover something that may affect the safety of the conviction, then there should be co-operation in making it. It is in nobody’s interest to resist all enquiries unless and until the CCRC directs it’.109
A demonstrative example is the appeal of Dwaine George. He was convicted in 2002 of murder on the basis of gunshot residue particles, identification evidence and voice recognition. After the CCRC rejected his application, he applied to the Cardiff University Law School Innocence Project. Students on the project, overseen by academic and legal advisors, looked into several possible weaknesses with the case and eventually commissioned new expert testing which showed that the level of residue was now deemed to be insignificant, according to updated Forensic Science Service guidelines. They referred it back to the CCRC in 2010, which carried out its own investigation, referring the case to the Court of Appeal in 2013. In 2014 his conviction was quashed. Dr Dennis Eady, the Project’s co- supervisor, argues that this is a clear example of the situation where the CCRC was not persuaded to refer the case even where the original evidence was flawed, due to a lack of fresh evidence.110 This however was not identified until the Project, as an alternative, partisan remedy, commissioned its own investigation.
Though praising the Project for its instrumental work, the CCRC states that its referral to Court was not on the evidential points that the Project raised. ‘Cardiff University Law School Innocence Project raised issues relating to gunshot residue evidence and made representations based on an expert report obtained by them. As part of its review, the CCRC commissioned further specific expert analysis of gunshot residue evidence and its presentation at trial. The Commission’s referral is centred on that further expert report’.111 Regardless of which issues a case is referred or quashed on, it is clear that campaigners and individuals have a beneficial role to play in helping to find evidence (or where it would lie) to assist with CCRC applications (and the likelihood or extent to which they will be investigated).112
Even where no application to the CCRC is made, there are wider benefits of these grass-roots investigative organisations. There is a clear provision of valuable service where caseworkers have explained legal complexities to clients in plain language for would-be applicants, or set out why ineligible clients were found guilty where they previously had not understood it. This could also have the effect of reducing the CCRC’s caseload by filtering out ‘no-hope’ applications.
Although Savage et al note that most pro bono project and campaign work focuses on ‘individualised justice’, that is, a finding or result favourable to an individual, their work ultimately helps to expose legal rules or norms operating unfairly in certain situations. This then effects ‘generalised justice’, for
109 Nunn v Chief Constable of the Suffolk Constabulary & Another [2012] EWHC 1186 (Admin) 110 The Independent, ‘Dwaine George: How Cardiff Law School’s Innocence Project discovered scientific evidence was of ‘no evidential significance’ (3 February 2016)
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example where campaigns have led to criminal justice policy or legislative reform.113 Campaigners and other ‘alternative remedies’ further highlight issues for future lawyers to be aware of, which (although difficult to quantify) may go some way toward mitigating against future injustice. In these respects, the partisan work of groups who champion, or act upon, belief of innocence, is invaluable.
Theorising the CCRC’s casework approach Fundamentally, any criminal justice system must ascertain evidence pointing toward truth, whilst ensuring due process and maintaining necessary checks. This requires resources. Balancing these two founding values then requires an inevitable trade-off. Cases could be eternally re-investigated and the degree of truth or certainty about a set of facts whittled down further and further. To repeat the quote used to introduce the dissertation, Nobles and Schiff note that for criminal appeals, ‘resources are limited, and the pursuit of values such as truth and rights has to stop somewhere’.114 The different organisations undertaking criminal appeals casework then must interpret where to draw the line of this balancing principle.
A direct comparison between the alternative remedies discussed above and the CCRC would be ineffectual, given that they operate at different stages of the post-conviction appeal process. The CCRC’s extensive investigatory powers and professionalised casework process appears much preferable for applicants seeking to overturn their convictions. Its casework criterion of ‘unsafe’ is also broader than alternative remedies’ tendency solely to focus on ‘innocence’. However, this thesis identifies the drawbacks of this approach (on top of those already identified by critics) by conceptually drawing from the scholarly literature on bureaucracy.
Although the CCRC has more resources, staff and investigative powers than alternative grass-roots groups, it has many more cases between which to divide these resources. The disinterested approach underpinning CCRC casework affects the way it allocates resources. It is not as likely as individuals acting for a client or loved one to take 'long shot' chances on applicants’ assertions, or spend resources on unlikely investigative avenues without good reason. In contrast, those who believe in an individual’s innocence (or take it as their investigative start-point) would be more likely to go out on a limb with their casework in seeking to establish it.
In their statement applying for leave to intervene in the appeal case of Nunn,115 CALA set out that where lawyers and family members had championed the individual’s innocence, they expended more resources on ‘long shots’ to look for evidence of this, ultimately avoiding or rectifying wrongful convictions. They assert that,
113 S Savage, J Grieve and S Poyser, ‘Putting Wrongs To Right’ Criminology and Criminal Justice [2007] 7(1), 89. Although campaigns focus largely on individuals, some groups and individuals are currently campaigning in this area – Harvey Proctor, Sir Cliff Richard Simon Warr and Paul Gambaccini have been individual victims-turned-campaigners, using their status to make wider influences. Groups such as Falsely Accused Carers and Teachers, Falsely Accused of Sexual Offences, and more, are attempting to collate members’ experiences and inform policy debate. 114 R Nobles and D Schiff, Understanding Miscarriages of Justice: Law, the Media, and the Inevitability of Crisis (2000, OUP) p8-9 115 Nunn v Chief Constable of the Suffolk Constabulary & Another [2012] EWHC 1186 (Admin)
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‘it is the job of the lawyer in such a situation to mount a case which is persistent and vigorous, and (if the client continues to maintain that they are wrongly convicted) to keep digging despite setbacks. It has been that persistence which historically has righted many of the worst errors of the criminal justice system’.116
Victor Nealon’s case illustrates this point. Convicted of attempted rape in 1997, he was sentenced to life, and his appeal was dismissed. He twice applied to the CCRC but was turned down. His legal representatives persisted to request further disclosed material and commissioned a DNA test, which conclusively showed that the DNA found on the victim was not Nealon’s. A further application was made to the CCRC, which referred his case back to the Court of Appeal in 2012, which was then quashed in 2013.117 CALA argue that ‘there was clearly no chance whatsoever that the CCRC would have persisted in the way that Nealon’s solicitor did’.118
The CCRC claim that it will look into all cases thoroughly, independently and objectively, and where feasible avenues can be identified, it will always spend resources to investigate.119 Further, it consistently runs background checks in other areas that could lead to evidence, whether applicants identify them as potential leads or not.120 Former Chair Sir Richard Foster stated that if the organisation thought there was new evidence suggesting an applicant’s innocence, it ‘would move heaven and earth’ to obtain it.121 In individual casework decisions this may be correct. Yet a layer of bureaucracy informs CCRC decision-making at organisational level, which filters down so as not to be visible from the perspective of individual case investigation.
At each stage of CCRC review, a case is the responsibility of the assigned administrator, Case Review Manager and Commissioner(s), working in a structured process. Their investigative decisions are tightly circumscribed by documents governing casework procedure.122 Although there is some room for discretion, their decisions are made as representatives of the organisation (and subject to scrutiny), so personal beliefs in relation to an applicant’s guilt must necessarily be set aside. Even then, informal organisational cultural norms affect staff decisions in terms of what is seen as usual or expected.123
Organisations that operate through defined rules of procedure, duties and hierarchical relationships
116 Criminal Appeal Lawyers Association (CALA), ‘Supporting statement for application for leave to intervene in the case of Nunn v Chief Constable of the Suffolk Constabulary & Another [2012] EWHC 1186 (Admin)’ (December 2012)
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are characterised by Weber as bureaucracies. Under this model, workers’ duties are carried out in accordance with set procedures to ensure efficiency and consistency. The CCRC framework, wherein employees act in accordance with predefined organisational policies (as opposed to in a personal capacity), is typical of classic Weberian bureaucracy.
Though ‘bureaucracy’ nowadays connotes inefficiency and administrative red tape, Weber’s model is the opposite of this. As du Gay explains, ‘the rationality of bureaucracy resides in the system of rules, not the judgment of individuals’.124 In the ideal bureaucratic model, people work as parts of the ‘organisation machine’ in pursuit of fairness and efficiency, their performance unaffected by emotional reactions and unregulated variables. It ensures objectivity and equal treatment for its clients.
Notwithstanding the evidence that casework manager expertise can be a lottery (which the CCRC admits),125 this is evidenced in the CCRC’s work structure. Although there will always be some variation between caseworkers’ backgrounds, experience and casework quality, the CCRC seeks to minimise this by fostering knowledge exchange. This is organised formally, through training, presentations and casework guidance notes, and casework groups overseen by group leaders. The ‘hive mind’ approach is also encouraged informally, where staff members seek advice from others who have worked on similar cases or have knowledge of the area. However, this also reinforces the potential for individual’s casework decision-making to be shaped by organisational values.
The bureaucratic approach strips caseworkers of agency as individual decision-makers. This is in direct contrast to individual campaigners who act on personal beliefs, and who, informed by this, can ‘go out on a limb’ with investigative work. Though the interests of efficiency and fairness underpinning bureaucracy have clear benefits in the context of a formal case review system, Kahneman and Tversky recognise that heuristics (defined as ‘mental shortcuts’, which focus on one key factor to make a decision rather than taking into account every small detail) can be advantageous when judging fairness. They argue that emotions are not necessarily logical flaws – they are in fact essential to decision-making.126
Bureaucracies also have an inbuilt tendency to focus on following procedure correctly. This can eclipse considerations for the justness of individual case outcomes. Merton characterises this as ‘goal displacement’, whereby the intended outcome (i.e. fair review of cases) is displaced by the means (i.e., correct casework protocol), which becomes an end in itself.127 Essentially, there is a risk that workers will act in accordance with what they believe the organisation requires over what may be fairest in the case at hand.
This exact situation is alleged of the CCRC by several campaign-focused academics and journalists.
124 P du Gay, In Praise of Bureaucracy: Weber, Organisation, Ethics (2002, Sage) p2 125 C Hoyle and M Sato, Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission (2019, OUP) p44, p66 126 A Tversky and D Kahneman, ‘Rational Choice and the Framing of Decisions’ Journal of Business [1986] 59, 251–278 127 R Merton, ‘Bureaucratic Structure and Personality’ Social Forces [1940] 18(4), 560-568
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Answering criticisms that it has failed to fully investigate and refer cases that present ‘exceptional circumstances’ and/or a ‘lurking doubt’,128 the CCRC defends its case decision-making through the counter-argument that every decision or action was in accordance with its correct processes and the constraints of the law.129 Its staff make case investigation decisions based on perceptions of correct organisational procedure, and the CCRC finalises case referral decisions based on perceptions of Court receptivity. In the context of potential injustice arising from within the criminal justice system, however, this means that each individual decision-making actor faces inflexibility when faced with possible structural injustice (or even outright powerlessness to address it).
The chapter has so far raised the question of whether the legalistic CCRC might not be as advantageous as investigation done by groups acting on behalf of a client and seeking to prove their innocence. There are some categories of case in which fresh exculpatory evidence or argument (as required by s13) is very difficult to find and would in practice require resources to be gambled on ‘leaps of faith’ due to unwavering belief in the applicant’s innocence. In such cases, the CCRC’s non- partisan investigative approach and (necessarily) bureaucratic resource allocation could prevent it from going as far as ‘interested’ individuals would in order to unearth injustice. This is considered in the following section.
Part 4: Applying ‘interested’ and ‘disinterested’ approaches to historical sexual abuse cases
Historical sexual abuse (hereafter ‘HSA’) cases have been chosen as the lens through which to assess post-conviction investigation, as they are both inherently problematic, and comprise a growing category in which convictions are contested.130 The reasons for this, and the difficulties these cases present upon reinvestigation, are explained in substantial detail in Chapter Two. At this point, what is offered is a preliminary analysis of how HSA appeals might fare under each of the approaches outlined above. This sets out the foundation of the research question, asking whether the CCRC’s investigative model is still suitable for these cases.
Reduced compatibility with the CCRC’s referral criteria To begin with, HSA cases present specific difficulties in meeting the statutory thresholds to be referred and quashed. The requirement for fresh evidence under s13 Criminal Appeal Act 1995 poses
128 See cases and arguments set out in the Innocence Network UK (INUK) Dossier Of 44 Cases
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a particular difficulty. Due to the nature of the crime alleged being both sexual in nature and allegedly having occurred years previously, such cases typically feature little ‘hard’ evidence. Sexual offences often occur in places with no witnesses other than the accuser. The delayed reporting means nothing would have been collected at the time, and any useful CCTV, forensic evidence and other records that existed would likely have perished, been lost or destroyed. The memories of potential witnesses are also likely to have faded or become contaminated.
Because of these issues, prosecutions in these cases are often built around two or more uncorroborated claims of separate incidents, which can count as mutually corroborative at trial. When collecting evidence, police may therefore proactively seek out other potential claimants with the aim of gathering further complaints. Webster notes that investigations have contributed to wrongful convictions where, for example, they have produced ‘opportunities for the exchange of descriptive detail, pollination of rumours and confabulation of memories’.131
At trial, Zander notes that HSA cases are ‘perhaps the category of case in which the jury is most likely to get it wrong’.132 As there is commonly little or no evidence beyond the accusations of the alleged victims, these cases can often turn on jury decision-making. In the absence of other evidence, police statements and prosecutorial arguments may be afforded more weight. Several academics further argue that in HSA cases, the benefit of doubt is more likely to be given to the accuser, even where the only evidence is the accuser’s testimony, strongly rebutted by the accused. This is due to a prevailing cultural moral imperative not to let down sexual abuse victims, and assumptions that false sexual abuse allegations would not reach trial.133 As Zander explains, ‘jurors are all too likely to be influenced by a climate of opinion that today recognises the possibility of sexual abuse that, years ago, would have been considered unthinkable [and] … believes the accusations’.134 The context and implications of these issues are explored in detail in the next chapter.
When seeking to appeal, then, HSA cases already present very few sources of fresh evidence. Naughton explains that, ‘in cases where the evidence that led to the convictions cannot be undermined by fresh evidence – for example, juries believing the word of the accuser against the defendant in the absence of any physical evidence in historical sexual abuse cases… or convictions based on purely circumstantial evidence put before a jury, the applications are unlikely to be referred and/or the injustice
131 Ibid., quoting R Webster, The Great Children’s Home Panic (1998, Orwell Press) 132 M Zander, ‘When Juries Find Innocent People Guilty’ in R Burnett (ed) Wrongful Allegations of Sexual and Child Abuse (2016, OUP) p215 133 It seems feasible that charges brought on slim grounds would be sifted out at the trial stage, making a wrongful conviction unlikely. However, further literature and case evidence suggests that this is not the case. Hoyle et al argue that ‘among politicians, criminal justice agencies and charities in the UK, there is a collective sense of remorse that reports of abuse were often not properly investigated and that those who reported it were often not believed’. See C Hoyle, N-E Speechley and R Burnett, The Impact of Being Wrongly Accused of Abuse in Occupations of Trust: Victims’ Voices (2016, OUP) p14; R Webster The Secret of Bryn Estyn: The Making of a Modern Witch Hunt (2005, Orwell Press) p18; S Kassin, I Dror and J Kukucka, ‘The Forensic Confirmation Bias: Problems, perspectives, and proposed solutions’ Journal of Applied Research in Memory and Cognition [2013] 2(1), 43, 52; D Medwed, Prosecution Complex: America's Race to Convict, and Its Impact on the Innocent (2012, New York University Press) 134 M Zander, ‘When Juries Find Innocent People Guilty’ in R Burnett (ed) Wrongful Allegations of Sexual and Child Abuse (2016, OUP) p215
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corrected’.135 Unless the accuser recants their statement, or forensic tests done on still-intact items exclude the convicted person, or the true perpetrator comes forward, there is little prospect of finding the kind of fresh evidence required to persuade the Court of Appeal to grant leave to appeal. Nor, then, is there much chance of producing the ‘fresh evidence or argument’ necessary when applying to the CCRC. This problem is effectively magnified for those convicted. Any fresh evidence may have been used during previous appeal and cannot then count towards another. Fresh fresh evidence would then be needed.
For those cases that make it to the stage of an eligible CCRC application that persuades it to reinvestigate, the organisation does have extensive powers through which to uncover possible fresh evidence. Caseworkers may request police files, trial papers (prosecution and defence files and appeal documents), records of the witness’ previous or subsequent complaints, and relevant criminal records. For all sexual offences, social services files and criminal injury compensation claims are often sought, as well as school or care home records if abuse was alleged to have occurred in that setting.136 Although many institutions are privately run, since July 2016 the CCRC has had the formal power to obtain material from private bodies and individuals.137
However, Former Commissioner John Weeden admits that despite the wide-reaching powers available to obtain evidence, there is often little that can be obtained in HSA cases to show that the allegations were incorrect.138 In the context of care homes, former colleagues who may have been able to provide alibis are now too elderly to offer reliable accounts (or have deceased). Records of the institution, showing attendance and staff employment terms, are often long since destroyed or lost. In addition, he notes that the majority of complainants in such cases have had a difficult start in life, and many have numerous convictions for dishonesty offences. This is usually known by the jury at trial – and where they have convicted in spite of evidence of witness unreliability, it is extremely difficult for the CCRC to find sufficiently compelling evidence to meet the ‘real possibility’ test.
In addition to the hurdle of fresh evidence, those seeking to overturn a HSA conviction need the CCRC to be persuaded that if they refer the case back to court, there is a real possibility it could be overturned. Much then depends on the receptivity of the Court, and the CCRC’s forecasting of this. This ‘telescopic’ situation and its associated problems were set out earlier in the chapter. Given the difficulties associated with HSA cases in meeting the evidential requirements, it is arguable that some of these cases might warrant reconsideration under the principle that they cause the appeal courts to have ‘lurking doubt’ (as discussed above).
135 M Naughton, ‘The importance of innocence in the Criminal Justice System’ in M Naughton (ed) The Criminal Cases Review Commission: Hope for the Innocent? (2009, Palgrave MacMillan) p21-22 136 Criminal Cases Review Commission, ‘Enquiries As To Witness Credibility’ Casework Policy January 2020 (replacing the ‘Formal Memorandum on Sexual Offence Cases’, created on 9 November 2015), p5 137 S18a Criminal Appeal Act 1995 (as amended by the Criminal Cases Review Commission (Information) Act 2016). Prior to this amendment the CCRC could only make informal requests, there was no power to compel disclosure. 138 J Weeden CB, The Challenges of Historical Allegations of Past Sexual Abuse from the perspective of the CCRC (paper presented at the CCRC Annual Stakeholders’ Conference, 16 February 2009)
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Naughton argues that the CCRC is unlikely to refer troubling convictions that cannot meet the s13 criteria, because it must work within the parameters of the Court’s jurisprudence, which would not in practice seek to undermine jury verdicts. This is because juries ‘would have heard the evidence in the context of the trial, regardless of how unsubstantiated it may have been, and decided to convict anyway’.139 Conversely, the CCRC does have discretion not to refer a case even where the statutory conditions for referral are satisfied.140
However, Mark Newby, a solicitor specialising in HSA appeals, argues that the Court of Appeal is receptive to HSA cases, but that the CCRC fails to appreciate this. He cites appeal judgments that recognise (i) the difficulty of courts in dealing fairly with HSA cases, (ii) the problem of police witness trawls, (iii) the fallibility of judges in correctly handling how to put evidence to a jury, (iv) the questionable fairness of a trial where documents demonstrating whether the accused could commit the offence or not are lost, and (v) that the decades-long delay in accusations being brought compromised the ability of the accused to defend themselves.141 He contrasts this with a description of the CCRC rejecting his clients’ applications for not meeting the ‘real possibility’ test, despite the historical abuse appearing not to have occurred on the facts of the case.142 However, the Court of Appeal cases he references have since been distinguished or rowed back from in subsequent jurisprudence. The rejected cases he discusses are not cited, and the CCRC’s statement of reasons has not been made public. Therefore, his arguments – though they may be sound – are anecdotal only.
CCRC bureaucracy constraining its decision-making David Jessel, a former CCRC Commissioner, stated that sexual offence cases were ‘by far the largest category of CCRC applications, which to my mind represent the largest cohort of potential miscarriages of justice’.143 Two years after this statement, Chris Saltrese, a solicitor with 18 years specialism in these cases, describes a sharp increase in letters from prisoners convicted of HSA claiming innocence.144 Yet, the CCRC was set up in a different criminal justice era, where miscarriages were predicted to be exposed through DNA re-testing of exhibits, crime scene reconstruction, and independent investigation into police practices. Its creators did not envisage
139 M Naughton, ‘The importance of innocence in the Criminal Justice System’ in M Naughton (ed) The Criminal Cases Review Commission: Hope for the Innocent? (2009, Palgrave MacMillan) p25-6 140 As recognised by the Court of Appeal in R v Clark [2001] EWCA Crim 884; R v Smith (Wallace Duncan) [2004] EWCA Crim 631; R v Luckhurst [2010] EWCA Crim 2618. See, Criminal Cases Review Commission, Discretion In Referrals Casework Policy, (updated 9 April 2020)
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sexual offences to be its bread-and-butter work, nor did they adequately anticipate the problems HSA cases now present on post-conviction appeal.
Newby states that the CCRC is ill-equipped to refer HSA cases, arguing that this is due to its tendency to seek forensic ‘quick hits’ to refer on.145 Examples he gives include caseworkers finding supporting expert opinions, re-testing exhibits, or finding experts to challenge other expert opinion, statements or examinations. He argues that, as the ‘real possibility’ test favours cases that can be referred on forensic science evidence, HSA cases are at a significant disadvantage.
This goes some way toward supporting the parallels drawn between CCRC casework and theories on bureaucracy. Although procedural fairness is emphasised, CCRC investigations are managed through targets, and resources must be divided between the applications in the queue. Given the limited avenues that HSA cases present, it would not be unreasonable to suspect that investigations in these cases are not afforded as much priority as those with an easier route to a decision outcome.
Despite some basic organisational guidance on factors affecting the prioritisation of cases in the CCRC’s queue, there is no published evidence on whether and how individual caseworkers manage their time in accordance with the cases they prioritise. There is, however, some precedence. In a study on CCRC discretion and decision-making, Sato et al note that biases operate at all levels of decision-making, including the CCRC.146 CCRC decision-making is subject to ‘reference-point’ bias, wherein certain information (‘anchors’) can dominate decision-making judgments by framing what seems relevant to consider. Looking in detail at ‘anchors’ weighing the decision to refer or reject in asylum and immigration cases that the CCRC rejected prematurely, mistakes were made due to the CCRC’s lack of familiarity with the law, and the politico-geographical context of these cases. Anchors and reference-point bias can also, however, pertain to politically charged cases or convictions, featuring popularly negative images of the applicant and crime, and few leads to go on.147 Arguably, HSA cases share these risk factors.
Sexual abuse cases form a significant proportion of CCRC casework, as mentioned above, and if historical, present little in the way of fresh evidence for appeal. Sexual abuse, particularly of children (as HSA cases commonly involve), is also a universally reviled crime.148 Caseworkers are not immune from unconscious prejudice and prevailing cultural beliefs, affecting their treatment of HSA cases.149
145 M Newby, ‘Historical Abuse Cases: Why They Expose the Inadequacy of the Real Possibility Test’ in M Naughton (ed) The Criminal Cases Review Commission: Hope for the Innocent? (2009, Palgrave MacMillan) p103 146 M Sato, C Hoyle and N-E Speechley, ‘Wrongful convictions of refugees and asylum seekers: responses by the Criminal Cases Review Commission’ Criminal Law Review [2017] 2, 115-116. They explain that, ‘we may expect organisations to apply a normative theory of decision-making, where all relevant information is gathered and a decision is reached in a rational and logical manner. Studies have shown, however, that deviations from the normative model of decision-making are widespread and human decision-making involves biases’. 147 Ibid., p116. Such anchors, in asylum and immigration offence cases, could be for example a guilty plea or legislative discourse portraying migrants as ‘deviant’. 148 S Jahnke, R Imhoff and J Hoyer, ‘Stigmatization of People with Pedophilia: Two Comparative Surveys’ Archives of Sexual Behavior [2015] 44(1), 22, 33–34; D Spencer, ‘Sex Offender as Homo Sacer’ Punishment & Society [2009] 11, 219-40 149 M Hall, Victims of Crime: Construction, Governance and Policy (2017, Palgrave MacMillan) p2-5, p145-6. Hall discusses how public (and lawyers’) stereotypes of certain cases have adapted over time with evolving cultural understanding, and how victims’ experiences and opinions are inescapable, being ‘beamed into our homes, phones and laptops by 24-hour news
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This may come in the form of inescapable knowledge of the widespread rate of sexual abuse and poor attrition rate, or beliefs in the probability of an applicant’s guilt (as a convicted person with a failed appeal), cynicism from caseworkers who have handled a large number of HSA cases all alleging similar stories, or subconscious revulsion given the offences involved felt on behalf of caseworkers with children.
Weinstein explains that criminal justice professionals dealing repeatedly with huge amounts of case information use unconscious mental shortcuts (known as heuristics) as an inevitable part of this process.150 Heuristics are problem-solving strategies, formed through a feel for what is right based on previous experience and ‘field knowledge’, which generally (but not invariably) lead to a satisfactorily ‘correct’ outcome. Recent research established prevalent heuristic use among criminal justice system decision-makers who combine disparate pieces of evidence to reach a conclusion about the guilt of a suspect, as opposed to those who only evaluate individual pieces of evidence (e.g., forensic scientists).151 Case decisions are therefore likely to be affected to some degree by subconscious cognitive bias.
Although CCRC casework is circumscribed by detailed procedure and measures to ensure casework consistency, Hoyle and Sato found ample evidence of heuristics in decision-making. Interviewed staff members admitted to caseworkers’ backgrounds shaping their ‘natural tendencies’ towards applications, being guided by ‘gut feelings’ borne from experience, ‘getting a feel for’ certain case types and the inescapable organisational knowledge that ‘most of them are guilty’.152 In the context of HSA investigations, a Commissioner stated that ‘some of them pleaded guilty, so I mean it obviously did happen’.153 Whilst this is likely to hold true in an overwhelming majority of cases, it ignores any other possibility, demonstrating heuristics working against applications in this category. Several studies have shown that emotionally charged evidence (particularly relating to CSA) directly influences criminal justice professionals’ proclivity to view a suspect as guilty.154 In light of this, the possibility of bias in case decisions involving HSA becomes much more apparent.155
networks’, increasing public consciousness about the offence and perceptions of its prevalence. He points to revelations concerning Savile’s prolific sexual offending forcing a deep cultural confrontation. 150 I Weinstein, ‘Don't Believe Everything You Think: Cognitive Bias in Legal Decision Making’ Clinical Law Review [2003] 9 789 151 S Charman, A Douglass and A Mook, ‘Cognitive bias in legal decision making’ in N Brewer and A Douglass (eds) Psychological Science and the Law (2019, Guilford Press) p31, p50 152 C Hoyle and M Sato, Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission (2019, OUP) p44-47 153 M Sato, C Hoyle and N-E Speechley, ‘Wrongful convictions of refugees and asylum seekers: responses by the Criminal Cases Review Commission’ Criminal Law Review [2017] 2, 106 154 W Wallace (2016) The Effect of Confirmation Bias in Criminal Investigative Decision Making (PhD Thesis, College of Social and Behavioral Sciences, Walden University) p30-31, 47, 121-122; A Voss and R Wiener, ‘Feeling your way to a decision: The role of emotion in perceptions of sexual harassment’ Law and Human Behavior [2016] 30, 231–248; M Stevenson, E Malik, R Totton and D Reeves, ‘Disgust Sensitivity Predicts Punitive Treatment of Juvenile Sex Offenders: The role of empathy, dehumanization, and fear’ Analyses of Social Issues and Public Policy [2014] 1530-2415; B O’Brien ‘Prime Suspect: An examination of factors that aggravate and counteract confirmation bias in criminal investigations’ Psychology, Public Policy, and Law [2009] 15(4), 315–334 155 Comparisons drawn between pre-conviction and post-conviction caseworker decision biases are limited in that their functions differ. Both may be seeking to verify guilt, but the former do so with a view to trial requirements and the latter with a view to conviction safety. However, it is also arguable that the start-point for CCRC caseworkers of the applicant already being convicted and having failed appeal attempts puts them at a far greater disadvantage in terms of unfavourable heuristics than an investigator, for whom a larger proportion of suspects will turn out not to be guilty.
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Alternative partisan casework approaches for HSA As HSA cases present fewer avenues in which fresh evidence might lie, the willingness of campaigners to go a step further, expending resources to investigate seemingly unpromising leads where a bureaucratic organisation would not, seems preferable for applicants. Evidence for this point can be found in the ‘near miss’ cases that did not reach the CCRC stage.
For example, David Bryant was accused by Danny Day of raping him 40 years earlier.156 There was no direct or ‘hard’ evidence, but Day’s account was convincing, and circumstantial evidence had been interpreted as supportive. Bryant was convicted in 2014 and Day was awarded £12,000 from the Criminal Injuries Compensation Scheme, citing Bryant’s conviction and a psychiatric report to demonstrate personal suffering. Bryant’s wife Lynn, adamant that he was innocent, found that the pool table upon which Day claimed to have been raped did not exist at the time of the attack. She also discovered that the police were using an old map of the fire station, and in fact its layout was different at the time Day alleged to have been raped and did not match his evidence.
After a commercial barrister offered to take the case pro bono, it was further discovered that Day had made unsupported and seemingly far-reaching claims in his compensation application, such as having to forsake his place on the British boxing team at the 1984 Los Angeles Olympics because of the trauma the assault caused him. His medical records (which had previously been overlooked during the initial police investigation) were scrutinised more closely. They revealed that Day was a compulsive liar and had been receiving treatment for nearly a decade. This was not disclosed in the trial. On second appeal in 2016, Bryant’s conviction was quashed. As of May 2020, Danny Day faces charges of perverting the course of justice at Brighton Magistrate’s Court.
Similarly, Geoff Long was convicted in 2010 on testimonial evidence for sexual abuse of his daughter years earlier.157 His wife did not believe the allegations and sought to prove his innocence. She commissioned an investigation including the transcription of 3,600 pages of witness reports not used at trial, illustrating several discrepancies that had not been disclosed. The bingo hall that the victim’s mother claimed to be at whilst the abuse occurred was found to have closed decades before the alleged assaults. Long’s current wife also traced his former mistress, who confirmed she was with him every Saturday night when the abuse was alleged to have occurred. The brother of the alleged victim informed police that she had stated whilst intoxicated that the allegations were false, but had been charged with perverting the course of justice. Long sought to appeal in 2012 and faced retrials in 2014 and 2015. Only in January 2016 did the CPS drop charges against him and the brother of the accuser, after the accuser’s evidence under cross-examination was found to be inconsistent with that in the original trial, and the prosecution case was therefore fatally undermined.
These examples demonstrate the advantage of having an individual or campaigner who believes in the
156 J Robins, ‘‘Chronic liar’ charged with perverting the course of justice over false allegations’ (The Justice Gap, 5 May 2020)
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convicted person’s innocence, and investigates with this vested interest until they find something that casts doubt on the safety of the conviction. Although a quantifiable comparison with the CCRC’s casework is not a feasible comparison, this approach on the face of it could arguably be more likely to yield results that would go towards an unsafe conviction being exposed.
Chapter Summary
Seeking to contextualise the subject matter of the thesis, this chapter has distinguished ‘miscarriages of justice’, ‘wrongful’ and ‘unsafe’ convictions, terms that are oftentimes erroneously conflated. Though academics define ‘miscarriages of justice’ broadly as unfair treatment encroaching on an individual’s liberties on behalf of the State, it is more popularly understood to refer to instances where a wholly innocent person had been sentenced to a term of imprisonment. The phrase has been removed from statute in England and Wales and replaced with ‘unsafe’ as a test for whether a conviction appeal should be allowed.
The main post-conviction investigation organisation, the CCRC, is statutorily bound to investigate and refer convictions, verdicts, findings or sentences where there is a real possibility that they may be overturned, which comes down to whether or not they may be unsafe. Although its work is discussed in terms of ‘miscarriages of justice’, it should be remembered that a sizeable proportion of the cases it refers concern guilty perpetrators, whose convictions are ‘unsafe’ due to legal technicalities. Use of the terminology of the criminal appeal system is arguably preferable, and it is argued that academics in this field should avoid emotive phrases (which are subject to misunderstanding) to discourage preconceptions and encourage more accurate understanding of the cases discussed.
The CCRC is not limited to case assessments with reference to an applicants’ possible innocence. Evidence of innocence is harder to find than evidence casting doubt on the safety of a conviction, therefore, a far greater proportion of cases can be referred than if it was limited to an ‘innocence’ criterion in terms of which cases it could refer. For HSA cases, which typically feature scant evidence, this is particularly beneficial. However, the scant evidence also makes these cases some of the most difficult to review.
In this respect, this chapter outlines that the CCRC’s bureaucratic and legalistic investigative approach may not to be as beneficial for HSA cases as the approach of campaigners, who start from the belief of their client’s innocence and seek to establish it. Although the CCRC reinvestigates cases that independent campaigners and individuals send to it, the latter approach could make a difference to the chances of success in reaching post-conviction appeal, as individuals believing in the applicant’s innocence would be more willing to expend resources on pursuing seemingly unpromising leads and long-shot avenues of investigation.
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CHAPTER TWO: Particular Difficulties Pertaining to Historical Sexual Abuse Cases
Introduction
As one of the ‘most likely categories of case in which a jury may err’,158 this chapter considers in some depth the category of cases of historical sexual abuse (or ‘HSA’). These cases are notoriously difficult to investigate and adjudicate. As Chapter One outlined, the amount of time that has elapsed between the alleged offence occurring and investigation of it means that evidence can be scarce. Records may be lost or destroyed, memories contaminated or faded, and corroborative forensic evidence perished. The sexual nature of the crime means that there are likely to be very few witnesses other than the accuser and accused. Where the actus reus cannot be established on the facts, cases turn on witness evidence, often coming down to the accuser’s word against the accused. Socio-political pressures, moral assumptions and cognitive biases (for example, thinking that there is ‘no smoke without fire’ or that ‘children never lie’) can compromise jury impartiality. In this respect, there is an increased risk of wrongful conviction.
For these cases, appealing against conviction is doubly difficult. Because so little evidence exists, would-be appellants are less likely to find the fresh evidence or argument necessary to form an appeal that was not already used or known at trial. Once the accused is convicted, the guilty verdict confirms prevailing beliefs that those accused of HSA are probably guilty. So, appealing such a conviction entails an invisible cultural hurdle as well, needing to overcome social and individual unease about the innocence of someone convicted, and of societal discomfort at the prospect. Chapter Three discusses the theory behind this argument.
Part 1 of this chapter sets out to establish what constitutes ‘historical sexual abuse’. Though the difficulty of investigating, prosecuting and (more recently) defending these cases was well-known, academic attention has only recently started to recognise HSA appeals as a uniquely problematic category.159 Part 2 then sets out the inherent characteristics of HSA cases that make post-conviction investigations especially difficult. As well as scant available evidence, these cases involve legal irregularities such as the lack of a time limit on prosecutions, and accuser anonymity. Part 3 then charts how HSA cases developed from a cultural epidemic (recognised as a series of scandals), to endemic – wherein almost every police force in the country had on-going HSA investigations. The reviled nature of HSA as an offence meant that these cases generated a lot of sensational media
158 M Zander, ‘When Juries Find Innocent People Guilty’ in R Burnett (ed) Wrongful Allegations of Sexual and Child Abuse (2016, OUP) p215 159 D Allnock, J Lloyd and J Pearce, Evidence-based Models of Policing to Protect Children from Sexual Exploitation (2017, University of Bedfordshire Institute of Applied Social Research). Allnock documents a dearth of research on historical CSA.
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coverage – even prompting new terms such as the ‘Savile Effect’. The patterns and factors involved in this effect are compared to a ‘moral panic’, as a heightened societal sense of exaggerated concern about a threat from those seen to engage in evil practices.
Part 1: What exactly are HSA cases?
Even though it is a widely used term, there is no standard definition of ‘historical sexual abuse’. Ministry of Justice, Home Office and CPS crime data are sometimes classified as ‘historical’ or ‘child sexual abuse’ (which is discussed further below). However, each case originates with a police decision as to whether it will enter into the justice system, which in turn is made in accordance with which (if any) legal category of offence it falls under. Therefore, HSA cases can be identified by looking at the overlap between statutory provisions setting out sexual offences and child abuse, and guidance documents providing working definitions for child protection authorities.
‘Sexual Abuse’ All sexual offences fall under the Sexual Offences Act (‘SOA’) 2003, which codified the law and repealed most of the previous statutes covering sexual offences. The offence that the accused is charged with depends on the date when the abuse is alleged to have taken place.160 The SOA 2003 applies where offences were committed on or after 1 May 2004. For offences alleged to have occurred before this date (as many historical cases are), the prior law is applied and charges are brought for the relevant offences listed in the statute of that time.161 Where it is not possible to determine the date(s) that the alleged abuse occurred, the old law applies if it attracts a lesser maximum sentence.
‘Sexual abuse’ is not a defined, stand-alone offence. Principal non-consensual offences are listed in s1-4 of the 2003 Act as rape, assault by penetration, sexual assault, and causing a person to engage in sexual activity without consent.162 It then gives separate categories of sexual offences against children and persons with a mental disorder.163 It also lists peripheral offences such as facilitating a child sexual offence (s14), grooming (s15), possessing indecent photographs of children (s45-46) and so on. All these offences (some of which overlap) are commonly referred to as ‘sexual abuse’.
The term ‘abuse’ as a sexual offence only arises in relation to specific categories further on in the
160 Crown Prosecution Service, Child sexual abuse: Guidelines on prosecuting cases of child sexual abuse
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statute, such as an ‘abuse of position of trust’ (s16-19), or ‘abuse of children through prostitution or pornography’ (s47-50). However, ‘abuse’ is frequently used as an umbrella term to cover a range of statutory sexual offences, which may be contact or non-contact activities. Recent statutory guidance produced for organisations who provide services for children defines child sexual abuse as, ‘involv[ing] forcing or enticing a child or young person to take part in sexual activities… whether or not the child is aware … [which can be] physical or non-penetrative acts… and may also include non- contact activities, such as involving children in looking at, or in the production of, sexual images, watching sexual activities, encouraging children to behave in sexually inappropriate ways, or grooming a child in preparation for abuse’.164 The charity National Association for People Abused in Childhood also defines it broadly, as ‘something which causes significant harm’.165 From this, sexual abuse can be defined as a harmful sexual offence. This is a very broad, all-encompassing definition, which has connotations of serious sexual offences but can include ‘vague’ behaviours, of which the criminality is difficult to identify and prove.
Looking at literature on child sexual abuse, the terms ‘child sexual offences’ (CSO), ‘child sexual exploitation’ (CSE) and ‘child sexual abuse’ (CSA) are used popularly (and at times interchangeably). CSE is defined as a form of CSA, where an individual or group coerces or manipulates someone under the age of 18 into sexual activity.166 CSO is a broader term, which can include for example possession of child pornography, which is not a direct form of ‘abuse’.167 In sociological terms, their use is a form of ‘discourse’, marking a significant shift in cultural understanding about societal developments and issues.168 However, these are not legal terms or specific offences.
The variations in definition of what constitutes sexual abuse, and the overlap of offences which would be counted therein, mean that there are limits to how well this category of case can be quantified. Statistics given on the prevalence of sexual abuse, and of the extent of criminal justice involvement, can be misinterpreted in media reports and public understanding. News headlines in January 2020, for example, proclaimed that ‘One in Five Adults Experienced Abuse as A Child’.169 However, this statistic is taken from an estimate made by the Crime Survey for England and Wales (CSEW) from self-reporting data, and includes emotional abuse, physical abuse, sexual abuse, or witnessing domestic violence or abuse, before the age of 16 years. The estimated proportion of child sexual abuse in the year ending March 2019 was 7.5%.170
164 Department for Education, Working Together to Safeguard Children: a guide to inter-agency working to safeguard and promote the welfare of children (2019)
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Similarly, data from the National Society for the Prevention of Cruelty to Children (hereafter NSPCC) has been quoted by local news media to claim that ‘there has been an increase of 11% in sexual abuse-related contacts to the NSPCC’s helpline in the year ending March 2019’.171 However, these contacts are based on the perceptions of abuse and neglect of the caller, who may not be familiar with the law, and do not correlate with the amount of children sexually abused according to official statistics or even police records.172
While it is important to raise public awareness of the prevalence of abuse and highlight a need for action, misrepresentation of the proliferation of serious offences is problematic. It does not help organisations trying to allocate resources to tackling the scale of sexual abuse, nor does it accurately inform societal perceptions of offending behaviour and where the real risks are. In terms of criminal justice, the wide perimeters of what could be reported as sexual abuse could cause individuals whose conduct is in question to be quickly labelled an offender without the elements of a statutory offence being accurately identified.
‘Historical’ Unlike many other jurisdictions, there is no time limit for when most sexual offences can be prosecuted in England and Wales. For this reason, there is no legal classification or common definition that determines the timeframe for when a sexual offence is classified as ‘historical’. The notion of a sexual offence being ‘historical’ is primarily used by investigative agencies when categorising cases. It is also a term used in policy documents and media coverage of such cases, by law firms advertising for clients, and by victims’ organisations (both those formally recognised and grass-roots groups). Though there is little formal guidance on HSA, there is significant overlap in literature on historical and child sexual abuse (sometimes used synonymously with ‘historical or child sexual offences’).
A regional evaluation on historical CSE, undertaken on behalf of the Norfolk Police and Crime Commissioner, reported that ‘the average delay between the end of the abuse and the initial disclosure is reported to be between 3 and 18 years, with some survivors not disclosing until mid-to late adulthood’.173 Despite giving an indication of the timeframe for allegations to be classed as historical, it does not specify how this timeframe was determined or who by.
The NSPCC definition is frequently cited in professional practice guidance. However, it gives much broader terms - ‘non-recent abuse (also known as historical abuse) is an allegation of neglect, physical, sexual or emotional abuse made by or on behalf of someone who is now 18 years or over,
171 Rochdale Online, ‘Rising number of contacts to the NSPCC Helpline about wellbeing of children’ (19 September 2019)
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relating to an incident which took place when the alleged victim was under 18 years old’.174
Solicitors specialising in historical cases note that the term generally (but not always) connotes that the alleged victim was a child.175 This could be because ‘historical’ cases indicate that the victim was unable or unwilling to press charges at the time, and ‘abuse’ suggests that the abuser held a position of authority and power over the victim (‘abuse’ is less frequently used for adult-to-adult sexual offences). A specialist solicitors’ firm, JF Law, define HSA as ‘any type of sex abuse whereby the victim is now an adult, however the abuse occurred when they were younger than 18’.176 This gives no timeframe and conflates ‘historical’ with ‘child’ sexual abuse.
The recent report of the Independent Inquiry into Child Sexual Abuse (hereafter ‘IICSA’, the largest statutory inquiry into failures to address child sexual abuse) avoids the term ‘historical’ completely. It instead refers to ‘non-recent’ abuse. Its glossary of terms explains that, ‘The word ‘historical’ implies that the sexual abuse happened a long time ago but, for many victims and survivors, the effects of the sexual abuse are still with them today. It also implies that this type of abuse no longer happens in today’s society, however it is clear that this is still very much the case. We use the term ‘non-recent sexual abuse’ as this accurately reflects the time that has passed since the sexual abuse happened but does not diminish the impact of the sexual abuse suffered by the victims and survivors’.177
Even though it includes detailed discussion on appropriate terminology, IICSA neglects to specify a duration between an alleged offence occurring and allegations being made (or charges brought) for the offence to be labelled ‘non-recent’. Neither does it specify what constitutes ‘recent’ abuse, from which ‘non-recent’ could be distinguished.
Despite not being a specific category of case, the phrase ‘HSA’ is habitually used by law firms when advertising for clients for prosecutions and compensation claims, and by victims’ interest organisations as a category in which they can provide support.178 The colloquial use of HSA by such organisations therefore serves to encompass a wide range of possible offences, and create solidarity between those identifying as victims, encouraging them to come forward and take action. The focus on the age of the alleged victim in most of the working definitions suggests a purpose of illustrating a power imbalance between the perpetrator and victim (including negated consent).
Use of the term ‘HSA’ can, however, cause misconceptions about the nature and extent of the abuse. As set out above, ‘sexual abuse’ can include and a wide variety of behaviours (such as a lewd
174 National Society for the Prevention of Cruelty to Children, ‘Non-recent abuse: Support for adults abused as children’ (23 November 2018)
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comment, a hug held for too long, underage teenagers having consensual sex or a misjudged explicit picture). Because the definition can be stretched to refer to many different offences and timeframes, any statistics quoting HSA become inherently imprecise. Although ‘HSA’ (as commonly used) bears connotations of perpetrators being older male adults manipulating a power imbalance to seriously sexually assault young and vulnerable children, for which a severe penalty seems implicitly appropriate, the precise nature of the offending is obscured. In fact, most child abuse is perpetrated by other children.179 This however does not fit the causes or publicity purposes of most organisations using ‘HSA’ as a case category, as outlined above.
Criminal justice agencies are also not immune to referring to HSA cases as a distinct typology, despite HSA not being clearly or uniformly defined. CPS guidance states that, ‘the police frequently receive reports of historic sexual offending, often involving abuse over a number of years within a family, at a school or in residential care homes. A pattern of misconduct may have been established with an escalation from sexual assault... There may also be multiple complainants, groomed at different times by the defendant, often following a similar pattern of abuse’.180 A CCRC memorandum further describes historical abuse cases as ‘intra-familial, care home related, or committed by someone with celebrity status or power’.181 It recommends caseworkers to examine police ‘trawling’ (a tactic discussed below) and look into why certain allegations were not proceeded with. Many law firms specialising in this area also describe HSA case commonalities as including repeated abuse, of young and vulnerable victims, often featuring a breach of trust between the offender and victim.182
The risk here is that discussing HSA cases as a homogenous category could cause investigators, lawyers and decision-makers to form preconceived opinions about circumstances, guilt, and which points to pursue, rather than closely considering the merits of each case. As this dissertation later discusses, this could in turn affect how they process these cases.
From hereon, the term ‘historical’ (or HSA) is used to mirror the definition used by the source or organisation under discussion. Though it is arguably more coherent to collectively describe cases that could span one month or ninety years as ‘non-recent’, the dissertation uses ‘historical’ over ‘non- recent’. This is firstly because this term is more frequently used in the academic and practitioner guidance texts drawn upon, and secondly because the thesis is intended for an academic (as opposed to victim service provider) audience.
179 The Guardian, ‘Child-on-child sexual assaults soar, police figures reveal’ (9 October 2017) reported that between a fifth and a third of UK child sexual abuse cases involve perpetrators under the age of 18. However in a 2009 survey of over 6000 people, two thirds of those who reported sexual abuse in childhood said that it was committed by other children. See, L Radford et al, Child abuse and neglect in the UK today ((2011, NSPCC) 180 Crown Prosecution Service, ‘Rape and Sexual Offence Indictments’
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HSA Crime Classification Each police force is required to provide crime recording statistics, classified according to the National Crime Recording Standard and Home Office Counting Rules. Sexual offences are classified according to statutory definitions, with no specific classification for non-recent or historical offences.183 As ‘historical’ (or non-recent) is not a legally defined category, HSA cases cannot be consistently counted within the justice system. However, the Home Office Data Hub, which collects police force data, distinguishes ‘current’ from ‘non-recent’ offences, where the latter ‘took place more than 12 months before being recorded’ by the police.184
An enquiry sent to the Police National Legal Database asking how long ago an alleged offence of sexual abuse has to have occurred to be recorded as 'historical' or 'non-recent', received a response stating that, ‘there is no set time frame, this is just a term used to describe cases that occurred a long time ago’.185 However, a BBC article reports that police categorise cases as historical ‘if the abuse took place more than 28 days before the allegations were made’.186 Even then, a local government interagency group, Nottinghamshire Safeguarding Children Partnership, state that ‘historical abuse refers to any allegations of child abuse, which occurred when the victim was a child, and which have been made when the victim is an adult’.187
Since the sharp rise in reported historical sexual offences since 2012,188 there has been a growing interest in the classification of historical sexual offences. Individual forces have begun to implement specialist branches and case markers. Other victim-reported crimes are seldom categorised in this way because there is not such a considerable time delay between the alleged offence and a report being made – this phenomenon is near-unique to HSA cases.189
North Yorkshire Police has a specific Non-recent Abuse Investigation Team, whose remit is to investigate cases of abuse ‘that happened more than one year ago at the time of reporting’.190 Kent Police use the similar but vaguely worded definition for a ‘historical’ offence as, ‘any offence recorded in a particular year but not necessarily committed in that year’.191 A Freedom of Information request asking how West Midlands Police define historical sex offences, received a response that stated:
183 Office for National Statistics, How are sexual offences defined and measured? (latest release)
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‘WMP has a special interest marker of Historic (HIST) which can be applied to a crime record, the definition… is where a sexual, physical or emotional crime has been reported and a delay in reporting has negated the use of immediate investigative opportunities such as forensic/CCTV or other corroborative evidence. This could relate to a case which is only a few days old and the marker was only introduced in August 2012’.192 These preliminary enquiries indicate that each force uses its own procedure and system to capture crime data, and uses its own working definition of what constitutes a ‘historical’ offence. Therefore, the accuracy is reduced of any statistics gathered, published, or used to inform policing priorities and resource expenditure.
For the police, distinguishing historical cases from recent ones could demarcate where investigations might require specialist strategies due to problems like lost or destroyed evidence. It could also signify which cases could be afforded lower priority (given the passage of time and paucity of evidence). This is arguably a useful strategy given that, although the accuser may still feel distress, the abuse is not on-going, the offence is difficult to prove and the perpetrator – if alive – may be difficult to trace and accurately identify. Accordingly, resources could be prioritised for more urgent causes – such as recent sexual offences or higher-risk violence. Though some forces have stated that they prioritise current over historical sexual offences because of the need to recover forensic evidence before risks of contamination,193 for others, HSA cases are no longer low-priority due to increased reports and public pressure for it to be investigated.194
For other organisations, categorising cases (which are usually sexual offences) as ‘historical’ is done for their individual internal purposes. News sources can specify their own timeframes when seeking data about and reporting on HSA cases. The BBC, for example, defined historical allegations as those occurring over 10 years ago, when reporting case statistics, despite no specific timeframe existing for when an alleged offence becomes historical.195 CPS guidance discusses ‘non-recent’ cases in relation to whether there is public interest in prosecuting them. It defines ‘non-recent’ cases as those ‘where the alleged offence occurred some time ago’.196 It refers to the particular difficulties of drafting indictments for ‘historic’ cases (using the same meaning as ‘non-recent’), given that accusers may struggle to recall exact dates and details of the incidents, so different offences and sentencing provisions will apply at different times.197 Prosecutions can be brought at any time, though it is very rare for offences alleged to have occurred over 30 years ago. However, this is not uncommon for HSA cases. This signifies efforts made to increase the prosecution rate in this category, and impose no arbitrary timeframe.
192 West Midlands Police, ‘Historical sexual offences’ (Freedom of Information request response, 27 July 2015)
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In terms of official statistics, the Ministry of Justice and CPS use markers (sometimes called flags) such as ‘rape’ or ‘child abuse’ to identify these case types.198 However, the majority of rape-flagged cases are not historical, and they are separated from other sexual offences, making them a poor comparator for HSA. Cases flagged as ‘child abuse’ related comprise sexual abuse, physical abuse, emotional abuse, and neglect (as covered by the offence of cruelty to and neglect of children under the Children and Young Persons Act 1933). Within these flagged cases, there is some available data pertaining specifically to ‘child sexual abuse’, but this is limited to when the abuse was alleged to have occurred, and what the assigned outcome of the investigation or CPS decision was. However, this overlaps with sexual offences where the alleged victim or complainant is an adult (as in most HSA cases), which is recorded in a separate dataset.199 As the precise quantity of overlap between ‘child sexual abuse flagged’ and ‘rape flagged’ is unknown, it is difficult to calculate proportions of these cases or track them statistically through the justice system.
Interestingly, national data held on delayed reporting in sexual offences pertains to why accusers failed to report offences, rather than marking specific care and attention needed during investigation. Crime reporting data published by the Office for National Statistics specifically looks at reasons why victims aged 16-59, of rape or assault by penetration (including attempts) experienced since age 16, did not inform police.200 Moreover, the Office for National Statistics has published this data alongside 9 different helplines and agencies for those who believe to have been abused to report this and access support services.201 Arguably, this data has been collected with a view to improving victim services. This in turn can be viewed as evidence of their increasing political importance – it indicates that victims (including those alleging to be) are positioned as customers requiring service improvements. This argument is developed in detail in Chapter Three.
Part 2: Common features making HSA cases prone to error
There are particular measures in place to encourage sexual offence victims to come forward. Those making accusations can remain anonymous, but those accused can be publicly named. There is also no time limit on when proceedings can be brought. HSA cases often therefore turn on highly fallible witness testimony, and there is no requirement for it to be corroborated by ‘hard’ evidence for a
198 Cases are flagged as ‘child abuse-related’ by lawyers or administrative staff, and may be applied at the beginning of a case or later in the prosecution process. Thus, CPS child abuse data are only accurate to the extent that these flags were correctly applied. 199 Office for National Statistics, Child abuse in England and Wales: year ending March 2019 (released 5 March 2020)
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conviction to result.
These measures, which this chapter discusses in detail, affect the justice system’s balancing of rights between accusers and those accused. There are (fiercely contested) prospects that these features could facilitate wrongful (malicious or mistaken) claims to be made, or compromise defendants’ ability to refute the accusations. Then, there are the consequences of HSA being a particularly emotionally- charged allegation, and highly publicised in the media, invoking perceptions that there is ‘no smoke without fire’, ‘an innocent person wouldn’t get as far as criminal trial’, or that ‘sexual offence victims wouldn’t put themselves through trial’, and similar cognitive biases. The effects of these are hard to measure, but the likelihood that they contribute to jury decision-making biases should not be ignored.
This chapter questions whether, collectively, these unique features produce a category of case where a wrongful conviction is more likely. The relevant features inherent in HSA cases are explained chronologically, from investigation to appeal.
Police Investigation: HSA cases often feature little ‘hard’ physical or scientific evidence because of the nature of the alleged offence. Sexual crimes typically occur in private with few witnesses other than accuser and accused, and ‘abuse’ is a vague category covering hard-to-trace acts like inappropriate touching and voyeurism. Where an offence is alleged to have occurred in the significant past, the time elapsed means that any evidence that did exist, exculpatory or affirmative, would likely have perished or been lost.202 As such, this makes investigation of HSA cases especially difficult for police (and of course, post-conviction caseworkers).
Firstly, investigators would need to assess the accuracy of the complaints, and to what extent they may have been shaped by the influence of other individuals and memory fading. Whereas there is significantly improved understanding of delayed reporting of childhood abuse at present, there is also a body of literature pointing to accounts of abuse being shaped heavily by media reports, co-witness discussions (which have become increasingly easy in the age of social media), psychological therapy, and memory distortion.203 The way in which witnesses are interviewed has an important effect on the quality of information retrieved, and there is a risk or suggestive questioning, which may be exacerbated by witnesses giving an account that they believe the interviewer wants or expects to hear. Kebbel and Westera explain that this is particularly problematic in HSA cases as the complainant is likely to remember less, tempting an interviewer to resort to closed questions to fill in the gaps. This, they argue, poses significant risk of eliciting inaccurate evidence that falsely suggests an innocent suspect’s guilt. 204
202 M Kebbell and N Westera, ‘Investigating Historical Allegations Of Sexual Abuse’ in Y Smaal, A Kaladelfos and M Finnane (eds) The Sexual Abuse of Children: Recognition and Redress (2016, Monash University Publishing) 203 P Lewis, Delayed Prosecution for Childhood Sexual Abuse (2006, OUP) p2-29 204 M Kebbell and N Westera, ‘Investigating Historical Allegations Of Sexual Abuse’ in Y Smaal, A Kaladelfos and M Finnane (eds) The Sexual Abuse of Children: Recognition and Redress (2016, Monash University Publishing)
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Due to the lack of evidence, police may seek further independent accusations to add credibility to an unsupported claim. A single claim of HSA may not have any supporting evidence, but multiple allegations are more persuasive and strengthen a case. A number of similar-sounding claims can acquire a heightened sense of credibility, despite each allegation being dubious on its own. This is especially dangerous where cases go to court. The accounts corroborate ‘by volume’, effectively overcoming the high evidential standard of proof required to convict.205 Thus, police investigations into those accused of HSA can comprise of ‘trawls’ or ‘dip sampling’ for witnesses as would-be complainants. This entails giving identifying details of the accused, in order to encourage others connected to the case to contribute information. Would-be accusers may feel more confident to make a claim knowing there have been others, whereas previously they would not have pressed charges.
Collecting evidence in this way can, however, compromise the independence of each statement. During inquiries, police may disclose information or use leading questions, inadvertently guiding accusers’ accounts to become mutually corroborative. There is a risk of contamination when prompting others to make accusations. While this may be flagged or rectified in other case types with contrasting facts or counterstatements, the lack of any such further evidence in HSA cases means this safeguard is absent.206
As the scale and nature of some allegations can grow, and additional victims or alleged perpetrators identified later on in the course of enquiries, HSA investigations can quickly become complex. Allegations may relate to abuse in various institutions and/or a network of individuals with varying degrees of alleged involvement, crossing police force boundaries and local authority responsibility. This can present further difficulties for investigating officers in terms managing the spread of information so as to preserve statements and avoid compromising subsequent investigations. Failure to do so could undermine the investigation process (to the detriment of either accuser or accused). Community knowledge of safeguarding measures such as preventing the accused person from contact with children creates the impression that they pose a risk (suggesting guilt). Police guidance on historical abuse cases warns that potential witnesses may consequently recast memories as ‘evidence’ of abuse to fit this perception.207
In sexual offence cases, individuals claiming to be victims are granted anonymity from the press and public throughout a case, once their complaint has been made.208 This extends to complainants in cases where a conviction did not result. Accusers, as potential victims, are deemed vulnerable, so protecting their anonymity may encourage them to come forward and report crime. However, anonymity can encourage people to make weak, unsupported, false or misleading accusations that
205 R v Mayberry [2003] EWCA Crim 782 per Latham LJ 206 Nottinghamshire Safeguarding Children Partnership, Procedure for Historical and Non-Recent Abuse (July 2015)
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they would otherwise not have made – particularly in relation to historical offences.209 Publishing details of those suggested to be sexual abusers in order to encourage further allegations, is dangerous in that some of those allegations are false, made by fantasists, those seeking attention, sympathy or compensation, or genuine victims of abuse (or those believing to be) who have misremembered details or conjured false memories.210 This is because the protection of anonymity can shield them from negative consequences. They may then be treated as a victim, given attention and support from victim services, or apply for compensation. These issues are discussed in detail later.
The accused does not have this automatic right (save for rare exceptions).211 Police can publish identifying details of suspects to encourage other witnesses to come forward, potentially consolidating a case against the suspect. Serial sexual offenders have been documented to try and ensure there is not enough evidence in each individual offence to be convicted. This is done by grooming, isolating and coercing victims into blaming themselves or thinking that they stand no chance of being believed and achieving justice.212 Publicising the arrest of sexual offence suspects (a tactic sometimes referred to as ‘shaking the tree’) can therefore prompt other victims to report incidents, leading to charges that could otherwise not be brought due to lack of evidence. This approach has had notable success - following publicity around the arrest of taxi driver and serial rapist John Worboys, other victims came forward, having been attacked in a similar way, which helped secure his conviction. Similarly, after the arrests of Max Clifford, Stuart Hall and Rolf Harris were publicised, further people came forward to report abuse by the same men, which was later relied on in court.213
This investigation tactic can however be misused to the effect that it risks false allegations (thus increasing the risk of unsafe convictions). Veteran broadcaster Paul Gambaccini was arrested over a claim he sexually assaulted two teenage boys in the 1970s and 1980s as part of Operation Yewtree, a police investigation into sexual abuse allegations against a number of media personalities. He was re-bailed seven times over the course of a year on dates coinciding with developments in other high- profile celebrity HSA investigations. The coincidence of these dates made apparent the intention of the police to draw out potential further complaints.214
209 P Rumney and K McCartan, ‘Purported False Allegations of Rape, Child Abuse and Non-Sexual Violence: Nature, Characteristics and Implications’ Journal of Criminal Law [2017] 81 499; L Kelly, 'The (In)Credible Words Of Women: False Allegations In European Rape Research' Violence Against Women [2010] 16 210 Ibid. 211 The Sexual Offences (Amendment) Act 1976 introduced anonymity for defendants at the same time as for complainants, but this was repealed in 1988. However there are exceptions. At trial stage, the court has discretionary powers to restrict the reporting of criminal proceedings, which may include the identity of a defendant. The Contempt of Court Act 1981 permits the court to delay reporting of trial details until proceedings are concluded, in circumstances such as where naming the defendant could expose the identity of the complainant. Reporting restrictions can apply - it is an offence under the Education Act 2011 to identify a teacher accused of an offence against a child at the school until they are charged. 212 S Colley, ‘Perpetrators of Organised Child Sexual Exploitation (CSE) in the UK: a Review of Current Research’ Journal Of Sexual Aggression [2019] 25(3), 258-274 213 BBC, ‘Sex crime suspects deserve anonymity, MPs say’ (20 March 2015)
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Giving evidence before the Home Affairs Select Committee, Gambaccini described the ‘leaked’ details of his arrest as being used as ‘human flypaper’, which cost him financial and reputational damage despite no evidence being found against him.215 Gambaccini received a settlement from the CPS over the unfounded abuse claims, but criticised the prosecution for being recorded as dropped due to ‘insufficient evidence’, because this leaves a question mark hanging over the accused as a potential suspect.216 The Committee concluded that police use of the ‘flypaper’ practice of naming suspects in the media was unacceptable, and that suspects should remain anonymous until charged.
More gravely, there have also been several cases where named suspects accused of (predominantly child) sexual offences, have been violently attacked. Bijan Ebrahimi, Darren Kelly and Luke Harwood were all killed after being wrongly identified as paedophiles or rapists. Attacks occurred despite the accusations having been shown to be false.217
In spite of this, the recommendations of the Committee have not been taken up. It remains the overriding role of the police to investigate whether an offence has occurred, by utilising all reasonable tactics to uncover evidence. This includes naming sexual offence suspects. The potential to uncover evidence (which could support justice being done) is prioritised by police over the (likely) harm to those accused.218 If a suspect is not guilty, it is reasoned that incriminating evidence will not be found, therefore the suspect should have nothing to hide or fear – and where evidence supporting the charge is not robust enough, it is reasoned that the CPS will drop the case or the suspect will be acquitted. The problem that naming those accused of HSA creates a deeply pervasive stigma which impacts on procedural fairness at trial, is not a quantifiable police concern.219
Pre-trial Decisions: In 1976, the Sexual Offences (Amendment) Act 1976 introduced anonymity for both complainants and defendants accused of sexual offences, in the interests of fair trials. The measure was proposed in order to ensure equality of arms between complainants and defendants, and to protect innocent defendants against stigma.220 It was however repealed shortly after in 1988, following a Criminal Law Revision Committee Report that asserted that sexual offence defendants should not be treated differently to others.221
215 Home Affairs Select Committee, Seventeenth Report: Police Bail (Cm962, 2015) 216 The Telegraph, ‘Paul Gambaccini receives payout from CPS over unfounded abuse claims’ (3 November 2018)
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This thesis argues, in spite of this conclusion, that those accused of HSA now represent a category of defendant whom require special consideration. There are strong arguments suggesting that the fairness of sexual offence trials is severely compromised when defendants are identifiable in advance of court proceedings. Prejudicial information can be circulated about them (both in the media and in the community), and jurors can find out information about the defendant causing them to form preconceived opinions before considering the evidence. As discussed above, the naming of a defendant can also prompt wrongful allegations, mistaken or deliberate. Maura McGowan QC, chair of the Bar Council of England and Wales, argues that because the stigma of being accused as a sex offender is so severe, those accused of a serious sexual offence should not be identified unless and until they are found guilty.222 Barrister Matthew Scott also notes that there is a high risk of harmful societal reactions in the face of untested allegations, especially for child and sexual abuse, which goes towards disadvantaging those accused (particularly where the alleged incident was not recent).223
Recognising the severity of these potential consequences, several formal proposals sought to address the balance of protections for those accused. In 2010 the newly-elected Coalition proposed to reintroduce anonymity to defendants in rape cases,224 but dropped the proposal after a Ministry of Justice report concluded there was insufficient evidence supporting the necessity of the policy.225 More recently, proposals for suspects to be anonymous until charge resurfaced, supported by several high-profile public figures, following a 2018 ruling that the BBC naming Sir Cliff Richard as a suspect under investigation for HSA was unlawful.226
In spite of this, the proposals were again not taken forward. In the present climate, high importance is placed upon widespread encouragement of people to report abuse and the importance for investigators of finding corroborative evidence. These principles would be compromised by anonymity for those accused of sexual offences.227 As such, sexual abuse lawyer Richard Scorer summarises the political thought du jour in stating that, despite the risk and damage of false allegations, ‘they are rare and, on balance, justice is far better served under the current system’.228 Kebbell and Westera, however, point to the huge disparity between the different estimates of the number of false allegations reported to the police, summarising that, ‘with regards to historical allegations, we simply have no
222 F Gibb, ‘Lawyers at war over calls to give rape accused anonymity’ (The Times, 17 February 2013)
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idea how many are true and how many are false’.229
There is no official recorded data on HSA cases, though data on CSA can be used as a comparator as it is more likely than rape or other sexual offences (which are not counted together) to represent the circumstances of HSA cases. Delayed reporting also means there will be a significant overlap - 34% of sexual offences against children recorded by the police in the year ending March 2019 (the latest published dataset at the time of thesis submission) occurred one year or more ago, including 21% in which abuse occurred 10 years or more ago.230 CSEW statistics estimate that in the year ending March 2019, 7.5% of the population aged 18 to 74 years experienced sexual abuse before the age of 16 years, and only 17.3% informed the police. For CSA cases in that year which had been assigned an outcome, only 4.3% resulted in a charge or summons.231 This indicates that HSA is far more prevalent than police records show, and that the percentage of abusers brought to justice is a fraction of the true number.
However, there are alternative reasons why the attrition figures present such a disparity. As some sexual experiences are often not clear-cut in terms of when behaviour crosses over into an offence, in such instances, a lot depends on whether a person perceives an offence to have occurred, and identifies as a victim, or not. The level of surety when reporting oneself as a victim of a sexual crime may be far higher for an informal recording method like the CSEW, than to bring criminal charges. Moreover, though small in number, estimates of unsafe convictions (measurable by the amount overturned on appeal (including those referred by the CCRC)) are not accounted for in estimates of false accusations, charges or prosecutions.232
In the large majority of CSA cases (27.5%), the victim (as they are termed in the dataset) did not support further action taken, and in a further 15% no suspect was identified.233 In over 20% of CSA cases, the accused was found not guilty. Many cases were stopped because of victim non- participation (such as retraction, non-attendance or evidence of the victim not supporting the case). While some of these defendants will have been factually guilty but the case was impossible to prove beyond reasonable doubt, these figures also indicate the possibility of erroneous claims and charges brought. Therefore, any pre-trial decisions made on the basis of estimates of false allegations warrant closer analysis.
Evidence at Trial:
229 M Kebbell and N Westera, ‘Investigating Historical Allegations Of Sexual Abuse’ in Y Smaal, A Kaladelfos and M Finnane (eds) The Sexual Abuse of Children: Recognition and Redress (2016, Monash University Publishing) 230 Home Office, Crime Outcomes open data year ending March 2019
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Under English common law, if a witness giving evidence is deemed reliable, there is no overall requirement for evidence to be corroborated for a conviction (save for a small number of specific offences).234 In 1976 the Devlin Committee considered the fairness of this when reviewing miscarriages of justice, but determined that a defendant identified by an apparently reliable single witness should still be expected to present a defence. The Committee’s report concluded that the introduction of a requirement for additional corroboration of witness evidence would effectively give immunity from prosecution to perpetrators of hard-to-prove offences.235 The issue was considered further by the Law Commission in 1991, and again in 1993 by the Royal Commission on Criminal Justice. However, a ‘common law’ warning given to juries was seen as enough of a safeguard, so long as it was tailored to each case.236
The current position in relation to sexual offences is that the judge will decide (taking into account the case circumstances) whether a warning should be given to the jury, as to the danger of convicting on uncorroborated evidence from the complainant.237 For such a warning to be merited, there must be a clear evidential basis (over and above suggestions by cross-examining counsel) to suggest that the evidence of the witness may be unreliable.238 This means that the accused can be convicted on the basis of a single complainant’s testimony alone.
The lack of corroboration would generally form a safeguard against unsafe conviction, in that the case would not be strong enough to prosecute or persuade the jury of the defendant’s guilt. However, in cases in which it is alleged that the defendant committed the same offence against a number of victims (not uncommon in HSA cases), a jury is permitted to take evidence from other witnesses or complainants into account when considering the count in relation to a particular alleged victim. Each account can be interpreted to support the evidence of the other alleged victims, thus providing mutual corroboration, as discussed in the section above.
In HSA cases, evidence commonly consists of witness statements (usually the complainant’s testimony), and available social services, school, care home or clinical records.239 The actus reus frequently cannot be established on the facts (especially if it did not occur!), so cases often turn on the quality of the witness evidence. For these cases, then, considerable weight is placed on the veracity of unproven accusations. This becomes particularly problematic in the context of jury trials, as research has demonstrated that humans can accurately detect a lie 50% of the time.240 In a HSA case
234 Corroboration is distinct from supporting evidence in that it derives from an independent source other than the witness. 235 P Devlin, Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases (HC338, 1976) vii, 4.27 to 4.42 236 See Law Commission, Criminal Law report on Corroboration of Evidence in Criminal Trials (Cm1620, 1991); W Runciman, Report of the Royal Commission on Criminal Justice (Cm2263, 1993) p127 para 35 237 Prior to 1994 a warning given to the jury about the danger of convicting the accused on uncorroborated evidence from complainants in sexual cases (simply because they were in that category) was mandatory. This was abolished by s32 of the Criminal Justice and Public Order Act 1994, and placed on a discretionary footing. 238 R v Makanjuola [1995] 3 All ER 730 at 473 239 C Saltrese, quoted in C Rowles, ‘Historic Sex Offence Cases’ (Inside Justice, 16 October 2015)
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where much hangs on a single witness’ testimony, there is then a clear likelihood that the jury will err.
A further issue here is that witness testimony is documented to be notoriously unreliable.241 At trial, the jury needs to be convinced that the witness is both accurately describing events that occurred, and accurate about who committed them. Yet, a complainant who is inaccurate about either of these things can believe they are correct, and so appear convincing, for a number of reasons. Due to the passage of time, memories may fade or become distorted. The complainant may have been genuinely abused but unable to recall correctly who by (particularly if they were abused by a number of people). The complainant may also be recalling a factual event but misremembering or misinterpreting the behaviour as abuse when it was not. Even where an allegation is knowingly false, complainants may appear persuasive when recounting a reviled crime, having become a skilled liar (such as Danny Day) and/or displaying genuine traits of someone who has been abused (as was Carl Beech, who is discussed later).242
It is also possible, though less likely, that a complainant will recount details of abuse that happened to someone else, and are therefore able to offer convincing details. Cases have even been documented where the complainant has formed a false memory of being abused, which they believe to be true. Katrina Fairlie, for example, accused 18 men including her father of repeated violent sexual offences. Her ‘memories’ of the events were fictitious - formed whilst talking to psychiatrist Dr Yellowlees in therapy sessions.243 Cases of this nature are often linked to psychotherapy sessions that ‘recover’ memories.
For HSA cases predominantly turning on testimony, inconsistencies in the defendant’s testimony may be cast in court as lies and used against them.244 However, inconsistencies in a complainant’s testimony are mitigated by the explanation that the trauma of sexual abuse affects recall.245 Although trauma has been proven to be prevalent and can affect recall and testimony, the considerable trauma experienced by those falsely accused is not accounted for.246
As the burden of proof is on the accuser to convince the jury of their accuracy, the threshold to secure a conviction in sexual offence cases appears difficult to meet. Certainly, the statistics on the low attrition rate seem to support this. The paucity of evidence would generally be heralded as a reason for acquittal. However, the lack of evidence in HSA cases means that much turns on believability; and where the accuser appears believable (a factor that has been shown to be influenced by cultural
241 S Ross, C Tredoux and R Malpass, ‘Evaluating eyewitness testimony of adults’ in I Weiner and R Otto (eds) The Handbook of Forensic Psychology (2014, Wiley) p514, p558-9 242 J Davis, ‘Victim Narratives and Victim Selves: False Memory Syndrome and the Power of Accounts’ Social Problems [2005] 52 (4), 530 243 Fairlie v Perth and Kinross Healthcare NHS Trust [2004] SLT 1200 (OH) 126 244 The judge can for example give the jury a ‘Lucas’ direction, which (under R v Lucas [1981] QB 720) permits deliberate lies told by the accused outside of court, to be used as corroborative of another witness’ evidence (for example the prosecution) under certain circumstances. 245 D Connolly, H Price and H Gordon, ‘Judging The Credibility Of Historic Child Sexual Abuse Complainants Psychology, Public Policy, and Law [2009] 5(2) 246 C Hoyle, N-E Speechley and R Burnett, The Impact of Being Wrongly Accused of Abuse in Occupations of Trust: Victims’ Voices (2016, OUP) p24-25
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biases),247 the accused must essentially counter this by defending their argument of innocence. The burden of proof is almost reversed.248
In trying to effectively disprove the allegations, defendants face increased difficulty finding exculpatory evidence to support their defence. English law has no statute of limitations for serious criminal offences, so there is no time limit on when prosecutions can be brought. Yet, prosecutions for offences alleged to have occurred decades ago are seldom brought, due to the compromised ability of each side to obtain evidence or receive a fair trial, and the question of whether it is in the interests of justice to try the person accused after so long. However - the exceptions to this are homicide and historical abuse cases. Given the passage of time, evidence proving what a defendant did – or did not do – on a particular day, is therefore likely to be scarce.249 Where the complainant does not specify an exact date, it is harder still. As Connolly et al point out, failure to rebut allegations (particularly where there is no hard evidence) is seen as an admission of guilt.250 An unsuccessful defence (such as providing an alibi that is then destroyed), gives stronger implications.
The increased risk of a wrongful conviction in cases that turn predominantly on the recollection or truthfulness of witnesses has been recognised in court. In R v B [2003], Lord Woolf (then Lord Chief Justice) recommended a conviction to be quashed because the 30-year time-lapse between alleged offence and trial severely compromised the ability of the accused to present a defence. It was not possible to ascertain whether the complainant or defendant was most accurate about the incident with a level of surety to uphold the conviction. Woolf gave the reasoning that, ‘at the heart of our criminal justice system is the principle that… an injustice is not done to a defendant… although it may mean that some guilty people go unpunished, it is more important that the innocent are not wrongly convicted’.251 However, this case precedent has fallen into disuse, having been distinguished in subsequent Court of Appeal rulings.
Courts do have the power to 'stay' proceedings where the passage of time would completely compromise the fairness of a trial.252 So, there is a legal safeguard in place to minimise unsafe convictions. It is however narrowly interpreted - delay alone cannot amount to a reason on which to stay a case. A defendant must prove that the delay causes them such serious material disadvantage that they are prevented from receiving a fair trial. In R v Hallahan, the Court of Appeal affirmed that a prosecution for a historical offence would be stayed only where the delay can be specifically shown to have prejudiced the defendant. Even where important records are proven to have existed and perished, the prosecution would only be stayed where it had been demonstrated that such evidence
247 D Connolly, H Price and H Gordon, ‘Judging The Credibility Of Historic Child Sexual Abuse Complainants Psychology, Public Policy, and Law [2009] 5(2), 102–123 248 J Robins, Guilty Until Proven Innocent: the crisis in our justice system (2018, Biteback) p201 249 A Ashworth, ‘Four threats to the presumption of innocence’ International Journal of Evidence and Proof [2008] 10, 241–279 250 D Connolly, H Price and H Gordon, ‘Judging The Credibility Of Historic Child Sexual Abuse Complainants Psychology, Public Policy, and Law [2009] 5(2) 251 R v B [2003] 2 Cr. App. R. 13 252 Crown Prosecution Service, Abuse of Process
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was central to the case.253
Where evidence has been lost or destroyed (as can occur in HSA cases), there is a further safeguard in the form of the prosecution being deemed an ‘abuse of process’. Due to the strong public interest in the prosecution of crime, this safeguard is used only in exceptional circumstances, where allowing the prosecution to continue would amount to an ‘abuse of process’ of the court.254 The court can only use this as a last resort – it must first consider whether the unfairness can be prevented by other measures, such as specially written jury directions, or the exclusion of certain evidence.255 However, applications for prosecutions to be stayed are often met with rejections. The reason for this is that ‘the defence will be able to make use of the absence of that evidence, arguing that its absence should help to create a reasonable doubt in the minds of the jury or magistrates as to the guilt of the accuse’.256 Criminal barrister Matthew Scott argues that the rationale that perceived unfairness can be dealt with during the trial process actually circumvents the abuse of process safeguard, rendering it ineffective.257
Jury decision-making As outlined above, HSA is not a legal category. It is an umbrella term covering a variety of sexual offences, which existed at different times and across different statutes. Some of these offences may since have become defunct, others recast in newer language or with differing thresholds of criminality. Because a defendant is tried according to the laws at the time of the alleged offence, a jury may be required to consider what constituted an actus reus or mens rea for offences which no longer exist.
One example is the offence of indecent assault. Abolished in 2003, it was defined as unwanted touching, coupled with ‘circumstances of indecency’.258 A contemporaneous jury considering a case where this was alleged may struggle to determine what such circumstances were, given that there has been a cultural shift in both discourse and attitudes as to what constitutes criminal indecency. On top of this, younger jury members may not have an understanding of the cultural context in which the alleged offence occurred. Social histories, memoirs and anecdotal evidence (both from the legal profession and those who grew up at the time) suggest that several decades ago, an ‘unwelcome kiss, pinched bottom or creeping hands’ would have been written off as inappropriate lechery to be ignored or answered with a slap, whereas now they would more readily be treated as offending behaviour.259
253 R v Hallahan [2014] EWCA Crim 2079 254 R v Crawley [2014] EWCA Crim 1028 255 R v Telford Justices Ex p. Badhan [1991] 2 Q.B. 78; R v Great Yarmouth Magistrates Ex p. Thomas [1992] Crim. L.R. 116. These cases affirmed that the burden is on the defendant to establish that bringing or continuing criminal proceedings would amount to an abuse of the court's process. 256 Crown Prosecution Service, Abuse of Process
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This is not to say that such behaviour should not be prosecuted. The expanding category of newly- classified sexual offences reflects increasing modern understanding of victimisation and personal boundaries. However, there is real possibility of imposing ‘new understandings’ on instances of behaviour where a person is tried for a historical offence. If the jury cannot fully understand the cultural perspectives of the time, this undermines the principle that defendants are tried according to the law at the time of the alleged offence.
Hoyle et al argue that, in addition, any decision-maker in HSA cases is ‘likely to be influenced by the prevailing cultural discourse and consequent preconceptions about sexual predators and their alleged victims’.260 Firstly, sexual abuse of a child is widely seen as morally heinous, and one of the worst crimes that can be committed. Jensen and Jensen note that, when child sexual abuse is set out during the opening address, it ‘creates a highly charged, prejudicial atmosphere’, provoking an almost involuntary emotional response.261 Richard Webster, who chronicled HSA scandals and police investigation of sexual abuse cases, adds that, ‘the reality in all too many cases is that, by the time the prosecution opening has been completed, both the jury and the judge may have been caught up in a current of prejudice so powerful that they are swept together toward a guilty verdict without being able properly to assess the evidence which is presented to them’.262 This in turn creates a hostile climate for those disputing the allegation, which Webster argues, causes the benefit of doubt in HSA cases to be given to the accuser, even where the only evidence is the accuser’s testimony.
Secondly, literature on HSA and miscarriages of justice frequently refers to the ‘no smoke without fire’ fallacy.263 This is the tendency to believe that allegations must bear some truth, as accusers are unlikely to be mistaken and have little reason to lie. It is argued that, because of the cultural consensus that HSA is an abhorrent crime, investigators and jurors may seek to err on the side of caution when contemplating guilt. Given the maxim that one is ‘innocent until proven guilty’, to err on the side of caution would formerly have meant not risking a wrongful conviction. However, the rise in awareness and media coverage of HSA allegations, widespread beliefs that it is rife and that many perpetrators remain at large, and awareness of previous mistreatment of sexual offence complainants, arguably means that for juries and magistrates, ‘erring on the side of caution’ now means to convict. 264 This is due to a compelling moral imperative to ‘make up for lost time’ in tackling HSA, and not to ‘let down another victim’ or let a possible abuser go free. Because of this, Zander explains that HSA trials are ‘perhaps the category of case in which the jury is most likely to get it
260 Hoyle et al argue that ‘among politicians, criminal justice agencies and charities in the UK, there is a collective sense of remorse that reports of abuse were often not properly investigated and that those who reported it were often not believed’. Many safeguarding measures were created in response. See C Hoyle, N-E Speechley and R Burnett, The Impact of Being Wrongly Accused of Abuse in Occupations of Trust: Victims’ Voices (2016, OUP) 261 G Jensen and I Jensen, Presumed Guilty: The Plight of Falsely Accused and Wrongly Convicted Carers and Teachers FACT Briefing Document (2011, FACT) p18 262 R Webster, The Secret of Bryn Estyn: The Making of a Modern Witch Hunt (2005, Orwell Press) p18 263 M Zander, ‘When Juries Find Innocent People Guilty’ in R Burnett (ed) Wrongful Allegations of Sexual and Child Abuse (2016, OUP) p214-15; see also R Burnett, ‘The Default Belief in Allegations of Child and Sexual Abuse’ in J Robins (ed) No Defence: Lawyers and Miscarriages of Justice (2013, The Justice Gap) p80; R Webster, The Secret of Bryn Estyn: The Making of a Modern Witch Hunt (2005, Orwell Press) p550; K Findley and M Scott, ‘The Multiple Dimensions of Tunnel Vision in Criminal Cases’ Wis. L. Rev. [2016] 2, 291 264 Ibid.
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wrong’.265
Thirdly, as HSA cases can frequently feature multiple allegations on unspecified dates, defendants must not only build a defence covering a vague timeframe, but also overcome the cloud of suspicion created by multiple counts. The charges could also be from several accusers.266 Unlike defendants accused of one offence on a specific date, juries’ impressions about the extent of abuse can be misled without clarification when thinking about several incidents alleged to have occurred several times. Anecdotal evidence suggests that this can translate into a jury ‘hedging its bets’ or finding a ‘middle ground’ and convicting for some but not all counts, in the false belief that this is in some way a compromise.267
A defence barrister (writing anonymously) recalled a case where the defendant was charged with rape and indecent assault on the complainant between 1980-1990, where the offence was not possible for the prosecution to prove, or the defendant to disprove. The jury acquitted of the rapes, and all but one of the identical sexual assault charges. Yet, the evidence for the charge they convicted on was the same as for all the other charges they acquitted. The defence barrister describes this outcome as ‘not uncommon’, and that those involved in the trial were of the view that ‘they did it just in case’.268 It is certainly conceivable that a jury might feel in such a case where evidence is so scant, that to convict on only one of the numerous counts achieves a good balance of justice for both parties. They may also think that in doing so, they minimise any potential ‘miscarriage of justice’, and that the defendant can always appeal if one should occur.
Appeal against conviction Where an error of justice has resulted, those seeking to appeal HSA convictions face further difficulties by the very nature of the offence(s). As Chapter One outlined, the requirements to appeal a conviction under s13 Criminal Appeal Act 1995 present a high hurdle for HSA cases. Fresh evidence is difficult to find, because HSA cases typically feature little evidence to begin with. Due to the passage of time since the alleged offence, exculpatory documents may have been lost or destroyed, and witnesses may no longer be contactable. Of those able to give evidence, their memories will have faded significantly. The further passage of time between conviction and appeal can increase these difficulties. In the absence of physical evidence, it is even more difficult to gain fresh evidence that would undermine that which the conviction is based on. Upon CCRC application, evidence used (or even available) in previous appeals cannot count towards subsequent appeals as it is not deemed fresh.269
265 M Zander, ‘When Juries Find Innocent People Guilty’ in R Burnett (ed) Wrongful Allegations of Sexual and Child Abuse (2016, OUP) p214-15 266 This is partly due to the repeated and progressive nature of the offence but also due to the means of evidence collection (such as from police trawls and adverts). 267 R Webster, The Secret of Bryn Estyn: The Making of a Modern Witch Hunt (2005, Orwell Press) p500 268 Defence Brief, ‘Historic sexual offences’ (22 July 2016)
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In the absence of other evidence, many HSA convictions are likely to have been based on the complainant’s oral testimony. Avenues of appeal are more likely to involve a point of law resulting in unfair trial, or a subsequently discredited witness. Where a jury has convicted on purely circumstantial evidence though, they have believed the accuser’s testimony over that of the accused. However, Court of Appeal reluctance to undermine jury decisions is well-documented. Zander explains that, as juries would have heard the evidence in the context of the trial, regardless of how unsubstantiated it may have been, and decided to convict anyway, for the Court to quash the conviction ‘on a hunch’ would usurp the jury’s function.270 Former CCRC Commissioner Professor Leonard Leigh argues that its reluctance to interfere extends to the scarce use of the lurking doubt proviso, despite it being created by the Court of Appeal as a failsafe allowing it to quash cases falling short of the evidential threshold.271
Lastly, despite the benefits that media interest can bring for those appealing convictions, it is rather dependant on the sympathy and belief in the convicted person’s innocence it generates (which may then lead to funding for further investigative work and lawyers). Media interest is not typically sympathetic to (or willing to champion the case of) those already convicted for serious sexual abuse, however.272 As cases with little evidence to suggest innocence, in which a legal technicality is generally needed to succeed in order to be overturned, HSA appeals are much less likely to receive favourable media attention. Media coverage focuses more on possible injustices of abusers that ‘get away with it’ (or not sentenced severely enough).273 The relationship between HSA cases and the media is explored further below.
Part 3: From Epidemic to Pandemic
The legal and evidential difficulties outlined above are only part of what makes HSA convictions vulnerable to error. These cases have been at the centre of a cultural shift towards heightened social awareness of unreported sexual abuse, the experiences of victims and reasons for non-reporting, and multi-level institutional failures to protect them. With this has come a stronger moral imperative not to let down more victims, to make up for lost time in exposing unreported abuse, and to act more readily in cases of suspected offending. Whilst these are all beneficial developments, they have come alongside heightened suspicion and violence toward perceived threats and consequently decreased safeguards for suspects. Excessive and sensationalist media reporting has been a significant driving factor of this. It is argued that these developments bear some of the hallmarks of a ‘moral panic’ in terms of media-fuelled public overreaction to deviant behaviour deemed threatening to societal
270 M Zander, ‘When Juries Find Innocent People Guilty’ in R Burnett (ed) Wrongful Allegations of Sexual and Child Abuse (2016, OUP) p217-220 271 L Leigh 'Lurking Doubt and the Safety of Convictions' Criminal Law Review [2006] 809, 16 272 G Virdi, ‘The media only wanted me when they thought I was guilty’ (The Justice Gap, 17 October 2019)
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values. Although there is academic disagreement over what constitutes a true moral panic, the comparison is made to signify that the circumstances and risk factors involved produce fertile conditions for injustice.
As Part 1 of this chapter explained, HSA is an umbrella term covering imprecise legal categories, within which the definition and scope of offences have changed in the last few decades. There are therefore no clear legal categories demarcating present-day understandings of CSA or HSA, despite crime statistics being published annually. As such, the true prevalence of HSA is difficult to quantify.
Whilst historical child sexual abuse has been considered one of the most serious offences in Britain since the 20th century, O’Neill reports that comparatively few cases falling under this category were prosecuted before 1990.274 Sexual offence legislation did not focus on children as a particularly vulnerable group, and criminal justice proceedings were typically not brought where grounds were weak. The cultural reluctance to address CSA as prevalent meant that changes were slow and piecemeal until the Sexual Offences Act 2003 introduced many new sexual offences that reflected increased understanding of abuse.
Since the late 1980s CSA and HSA allegations and prosecutions have become much more prominent. They have also arisen in several ‘series’ with commonalities or a central linking thread. In England and Wales, public scandals have clustered around Satanic ritual abuse cases in the late 1980s-1990s, the ‘Great Children’s Home Panic’ during the 1990s, the 2012 ‘Savile Scandal’, the ensuing police operations (Yewtree, Hydrant and Midland) revolving around politicians, celebrities and a ‘VIP paedophile ring’ involving senior politicians, abuse within Church institutions, sports clubs and the contemporary international ‘#metoo’ movement. These scandals (though by no means an exhaustive list) have principally affected the public psyche, eventually shaping legislation and leading to the nation-wide Independent Inquiry into Child Sexual Abuse. This part gives a brief overview of these scandals and the overarching factors that led to a statutory inquiry. From there it reflects back, drawing evidence from the trends across these developments about why HSA cases are comparable to a moral panic (though falling short of the precise meaning), and how this affects the safety of convictions.
Chronology of a crisis (1): the ‘Satanic Panic’ Throughout the late 1980s to early 1990s, a series of cases arose in which social and care workers suspected Satanic ritual abuse (hereafter ’SRA’) to be rife. Many children were removed from their homes, and criminal proceedings brought, based largely on error (though some children involved had genuinely been abused).275 Initially, several cases arose in the US involving children in day-care centres making comments that triggered child protection workers to suspect abuse by organised,
274 M O’Neill, Independent Evaluation Supporting ‘Historic’ Victims/Survivors of Child Sex Exploitation (CSE) in Leeds: Pilot Project Administered by the Office of Norfolk Police & Crime Commissioner (30 July 2016)
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devil-worshipping networks. After accounts of this abuse were ‘coaxed’ from children during suggestive and coercive interviews, criminal investigations followed.276 The ‘successful’ SRA identification practices were widely disseminated, leading to many other SRA-type cases across other English-speaking countries during the decade.277
In the Cleveland Child Abuse Scandal (1987), paediatricians diagnosed abuse in 2 children using a now-discredited method of measuring reflex anal dilation. Despite the findings and accuracy of this method being contested by the police surgeon, social workers intervened, interpreting the evidence of the possibility of abuse as evidence that it had occurred. In the ensuing interviews, the children appeared to confirm the presupposed abuse, though threats, bribes and leading questions were used to elicit this evidence. As linked cases spread from the allegations and publicity, over 100 children were ultimately removed from their homes.278
A subsequent inquiry into these cases found that the interview strategy had conflated therapeutic purposes and evidence-gathering, which (when implemented pre-trial) risked contaminating the children’s evidence.279 It also criticised social workers for placing undue reliance on a diagnostic test which was not conclusive proof of abuse, and failing to seek corroborative evidence.280 Charles Pragnell, former Head of Research at Cleveland Social Services Department, stated that the ‘social workers started at the point of believing the abuse has actually occurred, then looked for evidence to prove it, disregarding evidence to the contrary’.281 This criticism is a recurrent theme in almost every HSA scandal described in this Chapter.
In the Nottingham Broxtowe Cases (1988), 10 adults were prosecuted for incest, indecent assault and cruelty against 21 children of their extended family. Although police found no evidence that it had been of a Satanic or ritual nature, social workers sought to discredit this conclusion believing that SRA had occurred, and that the police had insufficient knowledge of its signs. However, a Joint Enquiry Team concluded upon re-investigation that, similar to the Cleveland scandal, the cases featured ‘dubious investigative techniques, [social workers’] readiness to believe anything, and unwillingness to check basic facts or accept challenges to their views’.282 The Joint Enquiry Team
276 Famous examples include the ‘McMartin Preschool’ case, Kern County cases and the ‘Wee Care’ case. This trend has been described as ‘McCarthyism’, referring accusations made against a person in a persecutory manner without evidence, synonymous with ‘witch-hunt’. See B Gallagher, B Hughes and H Parker, ‘The nature and extent of known cases of organised child sexual abuse in England and Wales’ in P Bibby (ed) Organised Abuse: The Current Debate (1996, Arena) p215-230 277 For example, The Law Enforcement Guide to Satanic Cults, police training video
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report called for immediate abandonment of material assisting with identification of SRA in the absence of any supporting evidence. It also recommended multi-agency casework and cooperation between police and Social Services.
Following several further scandals where these errors were repeated, a Government report was commissioned. It established that no evidence of SRA existed in England, and that welfare workers’ erroneous beliefs in its existence stemmed from training courses given by Evangelical US groups, in the wake of the ‘Satanic Panic’ cases there. It described the fundamental error of investigations in (alleged) SRA cases, in ‘thinking that [SRA] was something they hadn't seen because they hadn't looked, and thought they had better start looking’.283 The report also warned against interviews with children being too frequent, direct and aggressive, causing them to give answers in ways that mirrored interviewers’ expectations, which could lead to falsely implanted memories in children’s minds.284
Even after this report, SRA cases have persisted. In 1994, Christopher Lillie and Dawn Reed, two day-care nurses at Shieldfield Nursery, were tried for multiple counts of child abuse. The initial complaint was made by a mother who reported to social workers that her son claimed Lillie had touched his genitals. Social workers contacted other parents with children at the nursery to ask them to enquire whether their children experienced anything similar. Several others made accusations that grew increasingly fantastical, whereupon the nurses were formally accused of being part of a ritual abuse ring.285 Despite a lack of any physical evidence, abuse was diagnosed by a paediatrician.
The nurses were prosecuted for allegations relating to 27 children, although the total number of allegations involved over 100. At trial, the judge held that the evidence was too weak to present, as children had been questioned repeatedly, during prolonged interviews, with heavily leading and closed questions, bribes, threats, and selective reinforcement. Both defendants were acquitted.286 The public reaction to this was one of outrage and disbelief. The pair were labelled paedophiles in the media, and parents of the children involved demanded compensation and a public inquiry. Despite evidence amounting to serious professional misconduct, the medic who misdiagnosed the abuse was not struck off the practice register. Even an independent review report four years later libellously stated that the two nurses ‘conspired as a pair to abuse children’, despite its purpose being to examine how the abuse allegations arose, not to assert guilt or innocence.287
Though SRA and the associated panic might seem inconceivable nowadays, further cases have arisen as recently as 2015. Two children were video-recorded by their mother and her partner, claiming that teachers and parents at their Hampstead School were part of a Satanic abuse network.
283 J LaFontaine, The Extent and Nature of Organised and Ritual Abuse (1994, HMSO) p21 284 Ibid. 285 L Jennings, ‘Nursery Workers Libel Trial Decision’ (The Northern Echo, 25 July 2002) p16 286 See summary in Lillie & Reed v Newcastle City Council & Ors [2002] EWHC 1600 (QB) 287 R Barker et al, Abuse in the Early Years: Report of the Independent Inquiry into Shieldfield Nursery and Related Events (1998, Newcastle County Council) p264
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This was posted online and viewed by 4 million people.288 Physical examinations were performed using the same controversial diagnostic tool that caused the incorrect abuse diagnoses of children in Cleveland in 1988. The doctor stressed the need to take the allegations very seriously, despite the children withdrawing their allegations during the police interview, stating that their mother and her partner had violently coerced them into making the accusations. Family Division judge Mrs Justice Pauffley concluded that the physical findings were completely unreliable and that there had been no satanic cult or sexual abuse. She stated with ‘complete conviction’ that the allegations were ‘baseless’, and warned of the ‘speed and uncontrolled way in which untrue information about any innocent organisation or group of people can spread’.289
These cases demonstrate the suggestibility of children and their proneness to fantastical claims. However, they also demonstrate the risks of them being believed without other corroborative evidence and independent multi-agency investigation. These cases reoccurred because they were investigated in a way that confirmed investigators’, social workers’ or parents’ flawed beliefs and suspicions, causing contrary evidence to be ignored. Arguably this was due to welfare workers’ beliefs they were ‘doing the right thing’, adopting a ‘better safe than sorry’ approach. Academics liken these cases to a witch-hunt, with parties eager to find evidence of the current ‘folk devil’ or feared issue du jour, believing they are acting in accordance with their duties to root out wrongdoers.290 Furedi comments that, as with previous panics throughout history, the duty to fight a ‘moral crusade’ against a perceived evil is so pervasive that it persists despite no supporting evidence, and plenty to the contrary.291
Chronology of a crisis (2): the ‘Great Children’s Home Panic’ As with the SRA cases, this panic centred around genuine cases of child abuse. After several failed attempts to find credible evidence, police investigations between 1990-1996 sought evidence of institutional child abuse occurring throughout 1974-1990 in North Wales residential care homes. From these enquiries, the Utting Report (1991), the Warner Report (1992), and the Jillings Report (1994) set out that there had been a degree of collusion between police and authorities to cover up the extent of allegations, which were largely disbelieved and therefore not acted on. After much media coverage, which focused particularly on the notion of a mass cover-up by authorities, a full public inquiry commenced in 1996. Known as the Waterhouse Inquiry, it reviewed 700 allegations of abuse relating to 170 individuals. It identified 28 alleged perpetrators, criticising nearly 200 others for failure to protect the children.292
Nation-wide investigations into undetected child abuse followed. Between January 1998 and May 2001, 34 of the 43 police forces in England and Wales were investigating historical abuse in children’s
288 Re P and Q (Children: Care Proceedings: Fact Finding) [2015] EWFC 26 (Fam) 289 Ibid. 290 M DeYoung, ‘Demons, Devils and Ritual Abuse’ in R Burnett (ed) Wrongful Allegations of Sexual and Child Abuse (2016, OUP) p39 291 F Furedi, ‘Moral Crusades, Child Protection, Celebrities, and the Duty To Believe’ in R Burnett (ed) Wrongful Allegations of Sexual and Child Abuse (2016, OUP) p33 292 R Waterhouse, Lost In Care: Report of the Tribunal of Inquiry into the Abuse of Children in Care in the Former County Council Areas of Gwynedd and Clwyd since 1974 (HC201, 2000)
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homes and other institutions. During this timeframe 5,750 former care home residents made allegations of abuse, said to have occurred 10-30 years previously.293 By 2004, this figure was estimated to be closer to 10,000.294 A summary of judicial outcomes in historical child abuse cases between 1997-2000 shows that of those cases examined where a plea was entered, 55 out of 163 pleaded guilty.295 Despite the large numbers of arrests and convictions however, many were acquitted, discontinued or dismissed. While those not convicted were not necessarily innocent, the large numbers of those accused, and the very scant evidence upon which some of the convictions were obtained, prompted legal concerns about the reliability of the way police contacted potential victims to seek out corroborating statements in large-scale HSA investigations.
Cultural historian Richard Webster criticised the Waterhouse Inquiry for lack of consideration of public hysteria in the spread of these abuse scandals, as had occurred in the SRA cases. Webster set out that the investigations followed a pattern of a ‘moral crusade’, rooting out evil in the form of predatory care home workers, once again ignoring any evidence to the contrary. This resulted in police ‘trawling’ for corroborating statements to over-compensate for scant available evidence, causing ‘damaged and suggestible’ former residents to make unsubstantiated claims. He identified a number of care workers whom he argued were convicted with insufficient evidence, and argued that attractive compensation offers meant some claims may have been motivated by the prospect of financial reward.296 In 2000 a BBC programme, In The Name Of The Children, also broadcast evidence that compensation advertisements and poor policing practices led to false allegations in these care home cases. The risk of ‘effecting a miscarriage of justice in these cases’, Webster summarised, was ‘unusually high’.297
MP Claire Curtis-Thomas established an All-Party Parliamentary Group in 2001, leading to a Select Committee in 2002 examining the processes used to achieve these convictions. It looked specifically at whether police ‘trawls’ produced unreliable prosecution evidence, whether witnesses were interviewed with regard to appropriate due process safeguards, whether the CPS were deciding to prosecute overly weak cases, whether adverts for compensation encouraged false allegations, and whether the recently changed law on ‘similar fact’ evidence contributed to unsafe convictions.298 This marks a key point in the recognition of the justice system that the way HSA cases were handled could cause injustice of at least compromise the safety of convictions.
Despite stating early on that ‘a new genre of miscarriages of justice has arisen from the over- enthusiastic pursuit of these allegations’, the Committee report summarised that the current CPS prosecution test was robust enough.299 It cited the volume of cases rejected as evidence that the test
293 Hansard (1 November 2001) Col 853-856 per John Denham MP 294 R Webster, The Secret of Bryn Estyn: The Making of a Modern Witch Hunt (2005, Orwell Press) p550 295 Home Affairs Select Committee, The Conduct of Investigations into past cases of abuse in Children’s Homes (HC836, 2002) Memorandum 2, Appendix D (Evidence submitted by Terence Grange of the Association of Chief Police Officers (ACPO), from internal research conducted of cases between 1997-2000) 296 R Webster, The Secret of Bryn Estyn: The Making of a Modern Witch Hunt (2005, Orwell Press) p550. Webster calculates that 8,000 care workers were arrested during police trawling operations. 297 Ibid., p4, p7 298 Home Affairs Select Committee, The Conduct of Investigations into past cases of abuse in Children’s Homes (HC836, 2002) 299 Ibid., p44
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was operating to sift out weak cases appropriately. In terms of the handling of investigations, the report recommended that police trawls were necessary in HSA cases but should be more carefully conducted. Further, it summarised that ‘complainants should be offered appropriate victim support services, such as counselling, from an early stage’, and that the compensation scheme should be more user-friendly for claimants.300
The Government response to this report went even further, stating that trawling practices were not implemented in a way that was compromised by a pre-determined outcome, and that there was ‘no substantive evidence that an endemic miscarriage of justice problem existed’.301 It asserted that there was no evidence that civil compensation claims drove false allegations, stating that ‘consideration for the views of abuse survivors… whom we can reasonably assume lack motive to fabricate their claims, point towards a wholly different view of these issues’.302
It rejected the Committee’s proposals for precautions to ensure the validity of HSA complainants’ evidence, and for a time limit after which prosecutions for HSA cannot be brought, reasoning that these suggested measures would dissuade HSA victims from reporting cases.303 In addition, the response emphasised that potential unfairness caused by delay is a factor considered when the CPS decides whether prosecution is in the public interest.
It also rejected the Committee’s recommendation for witness accounts only to be deemed corroborative where they bore ‘striking similarities’, asserting that this would risk denying juries ‘potentially highly relevant evidence relevant to assessing the cogency of a witness account’.304 Multiple accusations against an offender were deemed significant, ‘due to the unlikelihood that they should be independently falsely accused of offences of a like nature… what might credibly be explained as a mistake on one occasion becomes much less so in respect of repeated incidents’.305
Both the Committee and Government Reports give far greater consideration to those purporting to be victims of HSA than for those wrongly convicted. The reports at times conflate those making accusations of sexual abuse with those who are genuine victims in terms of their rights and vulnerabilities. The Committee gave little supportive evidence for the issues it investigated, and the Government response contains no reference to the possibility or struggles of those wrongly accused or convicted whatsoever. This arguably marks a clear and deliberate culture shift towards victim- oriented measures, failing to fully acknowledge issues of police overzealousness or erroneous outcomes in HSA cases.
300 Ibid., p5 301 Ministry of Justice, Reply to the Home Affairs Select Committee Fourth Report HC836 (Cm5799, 2003) p8-9 302 Ibid., p4 303 Ibid., p7 304 Ibid, p43. This was due to concern that proposed relaxations of the rules of evidence would allow for greater admission of ‘similar fact’ evidence, which would particularly prejudice HSA defendants. It also noted a strong case for establishing special or additional safeguards for the exclusion of prejudicial evidence and/or severance of multiple abuse charges. 305 Ibid., p11-12. The Government’s proposals for reforming the law on bad character evidence were enacted in the [then] Criminal Justice Bill.
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At the same time as the publication of these key reports, and in the wake of a former teacher being convicted for child sexual offences, another HSA inquiry began at St William’s community home school. Known as Operation Aldgate, the investigation involved police seeking to trace former pupils who could have provided further corroborative statements. Adverts encouraging would-be victims to come forward were also published in local media. Six men were charged, all of whom were later acquitted except one (who was the former teacher, that had already been convicted of related sexual offences). Operation Aldgate was itself subject to an inquiry, conducted by the Independent Police Complaints Commission (IPCC).306 The IPCC inquiry identified over 400 major criticisms. Most pertinently, it highlighted problems with the police adopting an over-credulous mindset, believing accusers’ stories without verification (especially given that each of the accusers had multiple convictions), failing to seek corroboration of allegations, and failing to pursue enquiries that could have helped prove suspects’ (and disprove witness’) accounts. It summarised that HSA investigations involving these mistakes would risk injustices being done.307
Despite the acquittals of all but one Aldgate suspect, and the errors set out by the IPCC inquiry, a solicitors’ firm later advertised for former residents of St William’s to claim civil damages and attracted over 100 clients making HSA allegations. Another police operation was then launched to look again into allegations of abuse at St William’s. 4 of those acquitted were re-arrested on more serious charges and some convicted. However, by 2012, 53 Aldgate cases were discontinued by the CPS and several claimants were investigated for fraud.308 Many claimants were proven to have lied about being at the school, statements listed increasingly lurid claims, and many had made allegations about the same fictional individuals, though publicity afforded to this was minimal compared to media reports of the allegations.309 This demonstrated that police trawling did in fact prompt collusion or cross-contamination, and that compensation also proved a feasible motive for false allegations (supported by the descriptions of increasingly severe offences mirroring beliefs that they would attract more compensation).
In most of these care home cases, as in the SRA cases, several factors contributed to sustaining the scandal, but clouding understanding of the facts. Crucially, almost all centred around actual occurrences of abuse that were embellished after gaining attention. Chronicling the miscarriages of justice amidst a huge number of allegations and arrests in the North Wales care home scandal, Webster sets out that a clear pattern emerged. Unsubstantiated accusations elicited by police trawling, were believed by authorities wanting to put right any past wrongs and expose abusers, which prejudiced their investigations, and caused them to misinterpret inconclusive or contrary evidence, to
306 This has since been replaced with the Independent Office for Police Conduct (IOPC). 307 Independent Police Complaints Commission, Operation Gullane: Report on the IPCC Managed Investigation Undertaken by West Yorkshire Police into Complaints Emanating from Operation Aldgate (2007) accessed 12/09/17
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fit the narrative of scandal.310 Webster also noted the regularity with which unsupported narratives were published in the press, the salacious coverage of which he argued affected rational judgment in relation to such cases and ‘stirred the public’s deep-rooted psychological need for a narrative of evil’.311
Despite growing awareness of the possibility of false allegations and unsafe convictions following the work of Webster, MP Claire Curtis-Thomas and the Home Affairs Committee, a BBC Newsnight report in 2012 broadcast claims from former North Wales care home resident Steve Messham, that the 2000 Waterhouse Inquiry had failed to uncover the full scale of abuse.312 Messham stated that a paedophile ring that included a senior Thatcher-era Conservative politician, had abused him and others. The programme wrongly implicated former treasurer Lord McAlpine, who sued successfully for libel, prompting the resignation of the Director-General a week after the broadcast. Furedi argues that the readiness with which unsubstantiated abuse allegations were interpreted as fact by leading journalists and the BBC ‘caught up in the febrile atmosphere, indicates that the usual standards of proof had been dispensed with’.313
In response to the allegations of an institutional cover-up of widespread HSA, Theresa May (then Home Secretary) announced that there would be an inquiry into the original police investigation and Messham’s subsequent allegations of HSA in North Wales (‘Operation Pallial’).314 She also announced a review of the Waterhouse Inquiry, to assess whether it failed to investigate historical abuse by establishment figures (the ‘Macur Review’). The review reported in 2017 that no evidence of this was found.315
Chronology of a crisis (3): The Savile Scandal and Operation Yewtree Following the death of media personality Jimmy Savile in 2011, reports emerged that he had sexually abused children during his employment at the BBC, at Stoke Mandeville hospital and an ‘Approved’ (residential) School. A BBC Panorama programme about Savile’s alleged abuse was cancelled, eventually airing on ITV in 2012.316 Because Savile had been a BBC star, the production delay and cancellation led to speculation of a cover-up.317 When it finally aired, it prompted hundreds of further HSA allegations being made to 13 different police forces.318
In response to the revelations, a Metropolitan Police operation (codenamed ‘Yewtree’) was set up to
310 R Webster, The Secret of Bryn Estyn: The Making of a Modern Witch Hunt (2005, Orwell Press) p583 311 Ibid., p585, p589 312 BBC Newsnight (broadcast 2 November 2012); see also BBC, ‘BBC apologises for Newsnight child abuse report’ (10 November 2012)
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investigate previous failures to investigate Savile, and the new allegations.319 A national helpline was also launched to encourage suspicions to be reported and victims to come forward. The police inquiry, coupled with media campaigns, led to an ‘unprecedented number’ of charges and accusations. The operation prompted an increase in reporting of HSA by over 100% that year, many but not all related to Savile.320 In addition to Yewtree, Operation Hydrant was launched in 2014 to co- ordinate all police HSA investigations nationally, enabling them to identify individuals or institutions being investigated by other forces. By 2015, 2,228 suspects were involved, with the National Police Chiefs’ Council predicting an 88% increase in 2016.321 The pronounced rise in reports of HSA - dubbed the ‘Yewtree effect’ - persisted in the following years.322
The Yewtree report describes Savile using his celebrity status to gain access to victims at 13 hospitals and on BBC premises, who felt they could not report the abuse at the time due to fear of disbelief, or not being taken seriously.323 Some of those who did report it were dismissed or ignored.324 A large number of inquiries were launched as a result, examining BBC institutions, NHS hospitals, North Yorkshire and West Yorkshire police forces, and a review by Her Majesty's Inspectorate of Constabulary of all police material held on Savile.325 These reports revealed that there was existing police intelligence about Savile’s sexual conduct, but nothing had been deemed strong enough to act upon. It was discovered that of the 76 alleged crimes involving 68 victims in the area recorded, West Yorkshire police had not investigated any, leading to a further investigation into his relationship with the force. North Yorkshire police also held an internal inquiry, finding that opportunities to charge Savile were missed.
Operation Yewtree Commander Peter Spindler asserted that Savile was ‘undoubtedly’ one of the most prolific sexual offenders who had ever lived, that ‘the thousands of people who have come forward… cannot all be making it up’, and that police believed what they said because they were all saying the same thing independently.326 While this may well be true, treating the volume of allegations as corroborative proof of Savile’s guilt reinforces a prejudiced investigation starting point, rather than
319 Daily Telegraph, ‘Jimmy Savile: Director of Public Prosecutions to review why CPS did not prosecute’ (24 October 2012) Suspicions had been recorded (by his colleagues, journalists, or police inquiries,) but no prosecutions brought. 320 M O’Neill, Independent Evaluation Supporting ‘Historic’ Victims/Survivors of Child Sex Exploitation (CSE) in Leeds: Pilot Project Administered by the Office of Norfolk Police & Crime Commissioner (30 July 2016)
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independent assessments of evidence (though they are likely to correlate).327 Furedi argues that ‘such implicit rebranding of an unproven allegation into evidence all but relieves the accuser of the burden of proof’.328
The exposure of failures to investigate Savile created pressure on police to address HSA allegations with much more commitment. DeYoung argues that the culture of over-compensating for previous failures to help victims has led to a moral authority to regard abuse allegations as de facto truths.329 This investigative starting point was implemented in national police sexual abuse investigation guidance, which stated that officers ‘must believe the victim when they provide their account, and then launch an investigation’.330
Critics have argued that police began arresting those accused as a ‘default option’ before any serious investigation has begun.331 This resulted in very weak HSA cases being prosecuted in an effort to over-compensate. Despite the investigation formally recording 214 uncorroborated allegations as crimes, only 19 arrests were made up to October 2015 (mostly on HSA charges). Of these, 6 resulted in convictions.332 Former BBC producer Wilfred De'Ath, who was arrested but released without charge, stated on Radio 4's Today programme that the Metropolitan Police were being ‘overzealous’ and arresting people on ‘spurious’ claims because they had ‘failed miserably’ on Savile.333
Chronology of a crisis (4): Westminster and ‘VIP’ paedophile rings The allegations of institutional cover-ups for high-profile HSA extended far beyond the Savile scandal. In October 2012, Tom Watson MP stated in the House of Commons during Prime Minister’s Questions that there was ‘clear intelligence suggesting a powerful paedophile network linked to Parliament and No.10’.334 His claim was made at a time of heightened disquiet about HSA, just three weeks after the first allegations about Savile had been broadcast, and fed into the growing public concern that a network of child sexual abusers may have operated with a degree of impunity at the highest levels of public life.335 HSA scandals – evidenced and un-evidenced - have been a near- constant topic in political and media news reporting since this date.336
In a July 2014 televised interview on The Andrew Marr Show, former politician Lord Tebbit agreed (in
327 F Furedi, Moral Crusades in an Age of Mistrust: The Jimmy Savile Scandal (2013, Palgrave Macmillan) p24-25 328 F Furedi, ‘Moral Crusades, Child Protection, Celebrities, and the Duty to Believe’ in R Burnett (ed) Wrongful Allegations of Sexual and Child Abuse (2016, OUP) p43 329 M DeYoung, ‘Demons, Devils and Ritual Abuse’ in R Burnett (ed) Wrongful Allegations of Sexual and Child Abuse (2016, OUP) p39 330 North Yorkshire Police, Reporting child sexual abuse to the police
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answer to the host’s questions) that ‘there may well have been a big political cover-up’ of HSA in the 1980s.337 Further to this, a series of online articles on the now-defunct Exaro news website published details of HSA and homicide during the 1970-1980s by a ‘VIP paedophile’ network. The allegations involved CSA, torture, rape, orgies and three murders across a nine-year timespan, and implicated former Prime Minister Edward Heath, MPs including Lord Brittan, Harvey Proctor, late Labour peer Lord Janner, Jimmy Savile, former diplomat Sir Peter Hayman, and senior Army officer Lord Bramall (some of whom were exposed as child abusers).338
The day after Lord Tebbit’s interview was broadcast, then Home Secretary, Theresa May announced an overarching Inquiry into Child Sexual Abuse (discussed below). In addition, on the same day, an inquiry was commissioned into concerns that the Home Office had buried a dossier, compiled by a former MP in the 1980s, implicating eight high-profile individuals including Lord Brittan (then Home Secretary) in HSA allegations. It found that a number of relevant files were missing.339 The most recent (2020) Inquiry report on this issue has established that MPs Sir Cyril Smith, Victor Montagu and Sir Peter Morrison were protected from prosecution for child sexual offences in the 1970s and 1980s due to undue institutional deference towards well-connected persons of public prominence.340 However, it did not establish any evidence of an organised paedophile network at the heart of government.341
The allegations of this had originated from a single source, ‘Nick’, a man claiming to be the victim and sole witness of the torture, rape and murders. As Nick’s detailed, apparently first-hand accounts of abuse were published in the media before police interviewed him, this enabled others to make similar claims building on the details already provided. Any such statement would thus appear to corroborate by similarity or in number. In the fervour of media exposés of HSA cover-ups, the publication of his statements reduced the safeguard against false or contaminated statements being made subsequently. In fact, this exact scenario happened when similar claims from another source, ‘Darren’, were published, concerning a linked ‘VIP paedophile network’ murder on a Suffolk estate.342
Although Nick’s claims would have meant that (i) an extensive, elite cover-up had taken place to hide all evidence yet left an eyewitness, and that (ii) nobody involved had mentioned the horrifying incidents to anyone thus far, police considered his allegations ‘credible and true’. They issued a public statement outside the home of former Prime Minister Edward Heath to assure the public that the allegations of an elite child sexual abuse ring would be taken seriously and thoroughly investigated.343
337 BBC1, The Andrew Marr Show, broadcast 5 July 2014, archived at
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Several different operations were launched.344
One of the former MPs accused, Harvey Proctor, used a press conference to defend himself against the allegations made. Effectively turning the tables on his accuser, Proctor listed Nick’s far-fetched accusations against him in to the press, inviting the police, public and media to judge their credibility. He pointed to a widely publicised previous sexual incident with an underage male (when 21 was the age of consent for homosexual sex), as making him a target for false memories or accusations. Asking any witnesses who could truthfully implicate him to come forward, Proctor stated that he welcomed charges being brought in order to be able to denounce the allegations in court and suggested that Nick should be prosecuted for perverting the course of justice. By publicly questioning Nick’s claims, Proctor also called into question the police’s lack of scepticism, and the damaging extreme to which the ‘believe the victim’ policy had been implemented.345
In March 2016, despite extensive investigation, appeals for witnesses and home raids on several of the accused, the £2.5million investigation (known as Operation Midland) halted after 16 months. Investigators had not found any evidence capable of corroborating Nick’s claims, and no arrests had been made. The police admitted error in describing the untested allegations as ‘credible and true’, but stated that the investigation had not been prejudiced, and that Nick’s allegations had contained enough credible detail to warrant the costly investigation. It was not until July 2019 when Nick, identified as Carl Beech, was convicted for compensation fraud and perverting the course of justice, after the CPS was able to demonstrate that key claims had been fabricated. He has also subsequently been found guilty of child sexual abuse he himself had perpetrated.
A BBC article claims that Nick was believed by officers due to being a professional, articulate and intelligent man in his 40s, a former NHS manager and Care Quality Commission inspector, and giving a ‘detailed account, which apparently contained information he would not have known if he had simply imagined it’.346 His claims were rooted in some truth – two of those he accused were identified as child abusers, and the sexual preferences of two others he accused had been publicly queried in previous press. Nick also presented symptoms consistent with having been abused in earlier life. The men accused were prominent public figures, stirring public suspicion of secret elite establishment networks and media exposés.
Police defended the policy of ‘believing the victim’ at the start of investigations, on the grounds that ‘the historic nature of the allegations means that [such cases] are complex, where the normal avenues of evidence from CCTV, DNA and telephone data, are not open’.347 Historically, investigators formerly initially disbelieved those making abuse allegations, which dissuaded people from coming
344 When the Met upgraded the case to a full criminal investigation, it became ‘Operation Fernbridge’. At that point, it was separated from ‘Operation Fairbank’, which looked at allegations of child sex abuse against several senior political figures. 345 BBC, Ex-MP Harvey Proctor calls abuse inquiry 'homosexual witch hunt' (25 August 2015)
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forward with sexual abuse allegations to the police or other authorities, and ‘undoubtedly led to crimes going unreported’.348 However, this approach compromises essential scrutiny of claims from the offset.
There is evidence to suggest that the investigation lacked rigour, and/or an eagerness to find evidence supporting the claims rather than investigate independently.349 Police tasked with recording the history of Nick’s abuse were unaware of details he had published in blogs. They did not look into whether Nick had made a compensation claim, or cross-check the statement he gave in respect of it. The reports from Nick’s counsellor were also taken at face value, with no attempts to check the counsellor’s credentials, despite reports from each of the previous scandals documenting the risk of suggestive counselling contributing to false HSA allegations. The protocol of believing the victim prior to investigation had been criticised for lacking appropriate professional scepticism in many of the previous HSA scandals – and was again critiqued following the conviction. The sentencing remarks from Beech’s trial set out clearly the wasted police resources and burdens created by his persistent false allegations.350
An independent review by retired judge Sir Richard Henriques called for the abandonment of the police position of ‘believing victims’, which it referred to as a ‘recipe for miscarriages of justice on a considerable scale’.351 This was because of the risk of prejudice (and consequential error) in investigations, and the associated bias where a complainant is referred to as a victim without conclusive proof. It also recommended that suspects should have the right to anonymity prior to arrest enforced by statute, in a criticism of the problematic ‘flypaper’ tactic used in HSA cases. Lord Lexden had proposed statutory guidelines on HSA investigations a year earlier, noting that believing untested allegations of abuse was ‘a short step from the diminution, if not the reversal, of that most basic of our rights: that we are innocent until proved guilty’.352
The Independent Inquiry into Child Sexual Abuse The scandals outlined above are by no means exhaustive. Similar accounts of HSA have unfolded in relation to sports clubs, church institutions, organised and localised grooming gangs, and residential schools to name but a few. The Independent Inquiry into Child Sexual Abuse (‘IICSA’) was announced in 2014 as an extensive, nation-wide review of the circumstances allowing widespread HSA to have occurred unchecked, but was then expanded into an independent statutory inquiry.353 This afforded it additional power when re-investigating previous scandals, going over and above previous inquiries. It is the largest public inquiry into institutional child abuse and accusations of establishment cover-ups in England and Wales. Scotland, Northern Ireland and Jersey have also
348 Ibid. 349 R Henriques, The Independent Review of the Metropolitan Police Service's handling of non-recent sexual offence investigations alleged against persons of public prominence (31 October 2016) 350 R v Carl Beech [2019] Case No. T20187624 (26 July 2019) Sentencing Remarks, per Goss J 351 R Henriques, The Independent Review of the Metropolitan Police Service's handling of non-recent sexual offence investigations alleged against persons of public prominence (31 October 2016) 352 Home Affairs Select Committee, Seventeenth Report: Police Bail (Cm962, 2015) 353 Independent Inquiry into Child Sexual Abuse, Interim Report (HC954-I, 2018)
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launched concurrent nation-wide historical abuse inquiries. This can be taken as a measure of the scale of HSA as an endemic cultural concern.
The work of IICSA comprises of evidence gathering and analysis, public hearings and regular research reports. Its terms of reference are to establish how institutions handled child sexual abuse allegations, how they failed to protect children from sexual abuse, and how these failings should be addressed.354 It currently has wide-ranging investigations into several County Councils, residential schools and care homes, the Anglican and Catholic church, Westminster, children in custodial institutions, abuse through organised networks, and abuse on the Internet.355
In addition, it promises to ‘give a voice to victims and survivors of child sexual abuse’ through the Truth Project, which ‘collects and publishes narrative experiences from Victims and Survivors in order to make recommendations to the government and organisations on how to help protect children in the future’.356 It invites them to share accounts and statements under the assurance that they ‘will not be questioned or challenged’, stating that the information they provide ‘will not be verified or tested’.357
There are clear methodological benefits to collecting accounts from (and better understanding) abuse victims who would not otherwise have disclosed offences. However, using untested statements taken at face value to inform criminal justice policy responses is inherently problematic. To do so completely overrides warnings set out by the 2016 Henriques report, that to take complainants as victims and believe accounts without corroboration, will lead to injustices. O’Neill, writing for The Times in 2019, noted concerns that IICSA would give renewed credibility to false accusations and conspiracy theories, under the guise of truth-finding (and at a cost of £95 million).358
Journalist David Aaronovitch has further criticised IICSA for the ‘misleading and self-serving way’ it has put a ‘spin on the findings’ to obscure the false allegations that were believed without rigorous checks.359 Though he was referring to the Westminster Inquiry report (2020), a very similar conclusion can be drawn from its statistical reporting. The latest statistical bulletin sets out that, since its launch, there have been 26,656 total correspondents, 20,005 expressions of interest, 4,738 accounts received, and 513 witnesses that have given evidence to the Inquiry.360 These large figures appear to serve the sole purpose of publication, and risk giving a false indication of the quantity of CSA. IICSA’s
354 Independent Inquiry into Child Sexual Abuse, ’Terms of Reference’
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interim report (which gives details of criminal justice outcomes, and discloses the possibility of counting duplicates) states that as of March 2018, 1,866 cases referred to Operation Hydrant resulted in no further action, 472 were on-going investigations, and 14 were charged and awaiting trial. Of the 34 tried, 14 were convicted.361 Although it is well-documented that many victims will not support the trial process, and many cases are unable to be prosecuted, these figures support a dramatically different picture of proven offending than that which might be inferred from IICSA’s quarterly statistics.
Beyond the case outcomes, both the IICSA interim report (2018) and the latest Inquiry reports (2020) found top-level institutional failures to prevent or expose child abuse, due to ‘the politics of the day, which were consistently prioritised over the welfare of children’.362 Its recommendations thus far, however, have focused on improving victim participation in the criminal justice system. After finding that victims were sometimes advised against therapy, counselling or compensation application as these might undermine the prosecution, IICSA argues for a top-level inspection of compliance with the Victims’ Code to ensure CSA victims are receiving full benefits, and a broadening of eligibility for compensation. It also recommends that measures for vulnerable witnesses providing evidence in criminal courts (such as the option to pre-record evidence), should be implemented in civil trials.363
Yet, these recommendations ignore evidence from previous inquiries and judgments about the lowered standards of civil trials prompting criminal allegations. Notwithstanding the need to identify hidden abuse and encourage reporting, the recommendations indicate that IICSA has so far sought to allay victims’ fears of not being taken seriously, whilst omitting to consider the risks of wrongful conviction.
A Moral Panic? As the culmination of decades of earlier abuse scandals, the IICSA marks not only how prevalent HSA allegations have become, but also how long investigative issues have persisted. Scandals have been so numerous that police investigation tactics, dedicated units, national helplines, specialist victim organisations and lawyers have emerged. Arguably, this demonstrates how HSA cases have developed from a series of localised epidemics to an issue of national concern, endemic in society. Given similar large-scale national inquiries into historical and child abuse running concurrently in Australia, Northern Ireland, Jersey and Scotland, and large-scale Church-based HSA scandals in the USA, Portugal and several other countries, HSA investigations could even be characterised as a pandemic.
During a pandemic, panic can result from widespread reports of the cases feared, coupled with difficulties ascertaining the true (versus rumoured) number and sources. This has clear parallels with the HSA case scandals. Strong explains that,
361 Independent Inquiry into Child Sexual Abuse, Interim Report (HC954-I, 2018) 362 Ibid, p44, p38 58, see also Independent Inquiry into Child Sexual Abuse, Allegations of Child Sexual Abuse Linked to Westminster: Investigation Report (2020, HMSO) v-vi 363 Independent Inquiry into Child Sexual Abuse, Interim Report (HC954-I, 2018) p53-4, p57, p71
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‘Any society gripped by a florid form of epidemic psychology may simultaneously experience waves of individual and collective panic, outbursts of interpretation as to why the situation occurred, rashes of moral controversy, and… strategies aimed at controlling the further epidemics of fear and social dissolution’.364 Alike the panics surrounding HSA cases, the driving force behind societal reactions is not the actual prevalence of the undesirable cases, but the fear of those responsible for spreading them.
In criminological terms, these effects are reminiscent of the concept of a moral panic. Coined and developed by sociologists Stan Cohen and Jock Young,365 a ‘moral panic’ refers to a publicly exaggerated fear of deviant behaviour, which is deemed a threat to societal values.366 This is built up by the media using a wholly negative bias, and may prompt legal or social policy changes. Though the concept has gone through several refinements and divergences,367 five key stages consistently characterise the moral panic phenomenon. These are (i) a group or conduct defined as a threat to social norms or community interests, (ii) perpetrators depicted in a hostile form, sometimes called ‘folk devils’, (iii) broad and unified negative social reactions resulting from the exaggerated portrayal of the issue, (iv) a response from authorities and policy makers, and (v) changes made within the community as a result.
The term has been used to describe media reports of sexual abuse scandals (and the ensuing public and state reactions) by a wealth of literature. Moral panics have been alluded to on a regular basis, since the SRA cases of the 1980s right up to the current inquiries being made under IICSA.368 Considering the five main hallmarks of a panic, it is clear that each of the HSA scandals discussed in this thesis unfolded in a remarkably similar pattern.
Warner documents how concerns about sexual abuse and child welfare have evolved significantly since the ‘relaxed’ 1970s, to become almost ingrained in the present day.369 This is visible in the dearth of legislation brought in which placed particular focus on expanding sexual offence categories, as the next chapter sets out in detail. It is also evidenced in increasing press coverage of CSA after the 1980s, amidst ‘more feminist campaigning on the prevalence of male violence and abuse; more
364 P Strong, ‘Epidemic Psychology: A Model’ Sociology of Health & Illness [1990] 12(3), 251 365 J Young, ‘The Role of the Police as Amplifiers of Deviance’, in S Cohen (ed) Images of Deviance (1971, Penguin); S Cohen, Folk Devils and Moral Panics: The Creation of the Mods and Rockers (1972, Paladin). The phrase ‘moral panic’ was initially coined by Young in 1971, and the concept developed theoretically and applied empirically in Cohen’s 1972 text on two British youth movements, whose feuding in 1964, he argued, prompted a moral panic. 366 V Cree, G Clapton and M Smith, Revisiting Moral Panics (2015, Polity Press) p11-12, p295 367 There is a divide between Cohen’s original moral panic concept and an American notion formulated by Goode and Ben‐Yehuda, although many European scholars have also revised Cohen’s original framework. The latter has greater emphasis on the psychological aspects involved and was chiefly developed from child abuse campaigns in the 1980s. The main areas the concept has been applied to are AIDS, child abuse, drugs, immigration, media violence, street crime and youth deviance. 368 D Aaronovitch, ‘VIP abuse farce shows danger of moral panic’ (The Times, 26th February 2020); D Pilgrim, Child Sexual Abuse: Moral Panic or State of Denial? (2018, Routledge); G Clapton, V Cree and M Smith, ‘Moral Panics and Social Work: Towards a sceptical view of UK child protection’ Critical Social Policy [2013] 33(2), 197-217; I Marsh and G Melville, ‘Moral Panics And The British Media – A Look At Some Contemporary ‘Folk Devils’’ Internet Journal of Criminology [2011]; K Fox, ‘Incurable Sex Offenders, Lousy Judges & the Media: Moral Panic Sustenance in the Age of New Media’ American Journal of Criminal Justice [2012] 38, 160; R Lancaster, Sex Panic and the Punitive State (2011, University of California Press); P Jenkins, Moral Panic: Changing Concepts of the Child Molester in Modern America (1998, Yale University Press); M de Young, The Day Care Ritual Abuse Moral Panic (2004, McFarland & Co) 369 J Warner, The Emotional Politics of Social Work and Child Protection (2015, Policy Press)
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child-centric thinking in criminal justice; a more populist, outspoken tabloid press, and a number of high profile scandals in children's homes’.370
The increased number of HSA cases being brought (many of which fell into patterns akin to a ‘typology’), led to a corresponding rise in media coverage, increasing the prominence of HSA in public consciousness. TV, websites and newspapers frequently speculated on the numbers of (alleged) offenders and victims, secret cover-ups and abuse networks among well-connected persons in positions of power, and catastrophic criminal justice failures. Reports regularly sought to expose endemic social threat, and indicate the number of hidden victims and potential perpetrators. The peak of this effect is represented by the mass of allegations against Savile after his death, prompting nation-wide investigation and marking public recognition that institutional child abuse was endemic (and that trusted public organisations had failed to expose it). In 2015, Bingham and Settle documented that ‘CSA, both contemporary and historic, has become one of the defining issues of our times. Barely a day goes by without media reports of the arrest or conviction of alleged offenders, or of the latest details of official enquiries into the problem… or rumours of conspiracies and cover-ups’.371
As the phenomenon of HSA grew, so did the language used to discuss it – phrases like the ‘Savile effect’ and ‘Yewtree effect’ are commonplace, while criticism of biased police ‘trawling’ prompted the Government to rebrand it as ‘dip-sampling’, deemed more neutral but referring to the same strategy. Informal, salacious vocabulary has also circulated as the terms ‘sexual predators’, ‘paedo-rings’ and ‘cover-ups’ have been used as shorthand when discussing accused persons, alleged networks of abusers and non-malicious actions that led to abuse not being reported. Most notably, ‘victim’ and ‘offender’ are used in lieu of ‘complainant’ and ‘suspect’. The media-driven hysteria surrounding sexual abuse led to a culture of what was cynically labelled ‘paedogeddon’ in a 2001 spoof news programme.372
Nobles and Schiff state that the media constructs certain cases as threats to public confidence in the criminal justice system, and historical abuse cases – implying previous failures to convict - are exemplary.373 The ‘frame’ through which HSA is presented in the media is that it is rife, undetected and must be rooted out, thus spreading fears. There is little doubt that perpetrators of CSA (the homo sacer folk devil) have been consistently depicted in a hostile form, as perpetrators of a crime deemed worse than murder.374 Revisiting the concept, Cohen notes that child sex offenders are ‘pure
370 A Bingham and L Settle, Scandals and silences: the British press and child sexual abuse (2015, History and Policy Group)
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candidates for monster status’.375 Many of those accused were cast in the same mould by the press - a previously lauded person of public prominence with a dark predatory side, evading justice through their celebrity or high-up connections. The reviled nature of the crime means these cases generate a lot of sensational publicity, rousing a moral obligation to look for signs of abuse and report suspicions, or for individuals to consider whether a prior experience could have been abuse.376 Coverage of a victim’s alleged abuse is far more popular than the accounts of those (wrongly) accused, even when they have been demonstrably vindicated.
The policy and state responses to the HSA scandals (and the community changes that followed) were extremely wide-ranging, and are documented throughout the next chapter. The effects of the HSA moral panic(s) were visible in national publicity campaigns launched by child protection or victims’ support organisations, the proliferation of litigation and compensation advertisements from law firms, Parliamentary scrutiny, changes to governance in child-care institutions, statutory restrictions on the protections for those accused, expanded categories of sexual offences, vast inquiries into failures of previous investigations to uncover abuse, and the overarching IICSA. This itself has been described as a moral panic hallmark, having been established on a reactionary basis to the public claims made by Tom Watson and Carl Beech (‘Nick’), which it failed to find fresh evidence to support.377
Although the HSA case phenomenon clearly bears hallmarks of ‘claims that direct interests have been violated’, ‘an act of othering sometimes expressed in terms of demonization’ and ‘media amplification creating a spiral of public fear and indignation, pressurizing the police to respond’ which Young describes, he argues that the concept has been stretched in its recent application.378 Specifically, that there has been a ‘tendency to pluck the concept out of its intellectual context’ of a cultural conflict of two sides, as in the moral indignation of the public and the youth cultures of the 1960s and 1970s that challenged it. He argues that the initial formulations of moral panic suggest that ‘such phenomena arose out of considerable moral disturbances rooted in significant structural and value changes.379 In this respect, characterisation of HSA as a moral panic does not match these conceptual structures.
However, it is here argued that there remains a strong case for its applicability. American moral panic scholars such as Goode and Ben-Yehuda developed the concept with greater emphasis on the wider psychological impact, applying it to child abuse.380 Moreover, the notion of moral indignation and tumult in the 1960s has since evolved with media and governance structures. Any purist academic application of a ‘moral panic’ pertaining only to the original structures with no room for growth will
375 S Cohen, Folk Devils and Moral Panics (2004, Routledge) pXVI 376 V Cree, G Clapton and M Smith, Revisiting Moral Panics (2015, Polity Press) p11-12, p295; I Marsh and G Melville, ‘Moral Panics And The British Media – A Look At Some Contemporary ‘Folk Devils’’ Internet Journal of Criminology [2011] 377 Independent Inquiry into Child Sexual Abuse, Allegations of Child Sexual Abuse Linked to Westminster: Investigation Report (2020, HMSO) at v-vi; see also S O’Neill, ‘Tom Watson VIP sex ring claim ‘started moral panic’’ (The Times, 05 March 2019)
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necessarily become defunct.381 The sheer extent and regularity with which literature (academic and journalistic) ties HSA to moral panics demonstrates that the two bear some consideration in relation to each other.382 Even in Wikipedia, an unreliable but illustrative source in terms of general public understanding, under the entry for ‘moral panic’ CSA is discussed.383
Where Goode and Ben-Yehuda’s and Young’s approaches converge, though, is in agreement that a moral panic chiefly involves exaggeration of the extent or threat the conduct poses to society. As such, the concept rests on disproportionality.384 Crucially, the scandals were almost all rooted in some truth. There have been many, many genuine incidents of abuse, exposed with the help of victims coming forward, pursuing the matter through the justice system. From its establishment in June 2014 up to 31 December 2019 (the latest statistics published), Operation Hydrant (a Police coordination hub recording non-recent child sexual abuse investigations) has recorded 7000 alleged suspects. Of the allegations made, 4024 (35%) resulted in conviction.385 This is atypical of a classic ‘moral panic’ in terms of the proportionate high numbers of evidenced CSA indicated.386 Pilgrim further points out that to characterise HSA and associated child abuse scandals as a moral panic is damaging in that it lessens the awareness of the true scale of abuse that occurs.387
However, this thesis draws attention to the many false HSA allegation cases also uncovered, many of which are also not reported.388 In addition, disproportionality is well-demonstrated in the fact that accounts of abuse in every scandal were elaborated on in extent, number and victims, or wrongful allegations encouraged, embellished and published, to the point where accusers would not recant.389 Investigative journalist David Rose writes that the last decade has been an era ‘when the most lurid, uncorroborated claims of this nature are disseminated widely and given great prominence by the media, and adopted – apparently unquestioningly – by both the police and senior politicians’.390 This phenomenon exactly describes the cultural development of HSA from something not well-recognised to an endemic, feared issue – arguably the heart of a moral panic.
381 J Best, ‘The problems with moral panic: the concept’s limitations’ in C Krinsky (ed) The Ashgate Research Companion to Moral Panics (2013, Ashgate) p68, p79-80 382 D Altheide, ‘Moral Panic: From Sociological Concept to Public Discourse’ Crime, Media and Culture [2009] 5(1), 79 383 Wikipedia, ‘Moral Panic’
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Chapter Summary
The analysis presented here argues that HSA cases have now emerged as a distinct typology in the UK. However, as a flexibly defined category of case that is not evenly or routinely recorded, its prevalence is difficult to measure. There are several aspects to HSA cases that were argued to make unsafe convictions more likely (though arguably still rare). There is typically less available evidence than in other offence categories. This in turn limits investigative avenues, and means that if convicted, avenues for appeal are slim. As the accused may be named for the purposes of encouraging further claims, yet accusers remain anonymous, this can encourage unsure and mistaken allegations. There is no safeguard of a time limit on prosecutions. Not only is witness evidence fallible, but the lack of requirement for corroborating evidence means that witness statements, as the main source of evidence, are given more weight. For HSA cases which then come down to believability, prevailing cultural beliefs can significantly affect jury decision-making. The requirement for fresh evidence in order to appeal, and the unwillingness of the Court to challenge jury decisions, mean that HSA convictions bear the hallmarks of being some of the most difficult to overturn.
These issues are only part of what makes HSA cases vulnerable to error and disadvantage on appeal. There has been a marked cultural shift towards heightened public suspicion on allegations of HSA, and clear evidence of highly publicised police investigations. The chapter charted the development of HSA cases from a series of localised scandals to a national inquiry, arguing that this signified a nation-wide crisis.
The commonalities in these scandals indicate issues inherent in HSA investigations that contribute to the risk of error. To start with, the notion that abuse has occurred and was then deliberately hidden brought about a moral imperative to expose it. Attempts to encourage victim reporting and make up for previous scepticism have mutated into investigations treating accusers as victims and giving undue credence to their accounts without robust verification. This risks encouraging incorrect claims, which appear to corroborate one another in the face of little other supporting evidence. There have been repeated situations where those falsely accused have faced the prospect of conviction, and accusers receiving compensation from claims which have been given undue credence and given momentum by the media (and subsequently, justice agencies), only to be exposed as falsehoods. The scandals demonstrate the ease with which large numbers of child protection, medical and criminal justice professionals misdiagnose and misconstrue original claims into much more extensive allegations, which appear credible and become difficult to refute.
The surge in publicity of HSA cases, in addition to the consequent climate shift in public consciousness that followed, provided fertile ground for political and public support for tougher measures. The next chapter charts the development of policy changes brought in to make HSA convictions easier, which in turn make appeals harder. It argues that these measures constitute a marked reduction in ‘due process’ safeguards against unsafe convictions.
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CHAPTER THREE: Developments In the Justice System facilitating HSA convictions
Introduction
The previous chapter set out how difficulties particular to HSA cases contribute to an increased risk of unsafe conviction. After tracking the development of these cases into a distinct phenomenon, it asserted that media coverage and public responses to HSA brought considerable pressure on the system to prevent further injustice. This chapter describes a shift in criminal justice system values, towards improved identification of such cases and better treatment of victims. Working from this interpretive position, many measures were introduced to improve processing of sexual offences. The chapter argues that collectively, they equate to different rules, through which more HSA convictions are sought. However, this makes errors increasingly harder to rectify.
Part 1 revisits the ‘crime control’ and ‘due process’ models outlined in the Introduction, to track the ebb and flow of criminal justice policymaking since the 1980s on this spectrum. It sets out that the weighting of new elements now at play in the justice system has developed from the time of Packer’s models, particularly as the political significance of victims has dramatically increased. The shift towards greater acknowledgement and positioning of victims’ views is evidenced within the governmental political strategy of ‘rebalancing’ the justice system in favour of victims. The chapter discussed this inherently flawed rhetoric, querying whether there is a feasible optimum balance.
Within this context, Part 2 examines the resulting policy changes intended to facilitate convictions and better support those making allegations of sexual abuse. Some of these are the product of the justice system ‘rebalancing’, and others are reactive measures following HSA scandals. Collectively, they are argued to have effectively widened the goalposts for complainants of this offence, amounting to reduced safeguards against unsafe conviction. The chapter argues that these changes increased the likelihood of prosecuting and convicting guilty persons, but also some who are innocent. When considered alongside the risk factors already inherent in HSA cases, unsafe convictions become a much more likely prospect.
Part 3 makes the case that our understanding of this can be theoretically enhanced by considering the analogous issue of the introduction of temporary and emergency provisions (‘TEPs’) in response to several high-profile Northern Ireland conflict-related terror offences. Arguably, here too, different rules were put in place during a time of heightened fear and political pressure to bring offenders to justice through convictions. This comparison is used to develop the central argument that, if convictions have been obtained under these different rules, then the existing post-conviction review process is compromised in its ability to rectify errors that result. Where new policies and practices
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specifically target (and disadvantage) those accused, be it of terror offences or HSA, this carries implications for the effectiveness of appeals process organisations in recognising and addressing unsafe convictions obtained through justice system-sanctioned ‘different rules’.
Part 1: The increase in political importance of victims, and ‘rebalancing’ of the justice system.
Back and forth between ‘due process’ protections and ‘crime control’ measures As the Introduction set out, Packer modelled the criminal justice process using two theoretical values - one method of delivery favouring ‘crime control’ and the other prioritising ‘due process’.391 A justice system following the ‘crime control’ model would place highest importance on addressing and repressing offending. Defendants’ liberties are traded for effective protection from crime, and success would be measurable by the identification, prosecution and conviction of offenders. In contrast, the ‘due process’ model is concerned with ensuring procedural fairness in order to safeguard the rights of citizens. The principle of ‘innocent until proven guilty’ would drive laws, policies and practices. Consequently, suspects and defendants would have extensive rights, and the police and other criminal justice agencies would have to respect these rights.
Sanders, clarifying Packer’s theory, explains that ‘due process’, unlike ‘crime control’, is not an end goal of a justice system – it is the maintenance of procedural standards of fairness. As such, it is not diametrically opposed to crime control as a system goal, but a constraining factor in the process of a system offering criminal justice. An overriding preference for ‘crime control’ over ‘due process’ provisions would see convictions prioritised for the ‘probably guilty’ at the expense of some innocent people also being convicted. Conversely, strong ‘due process’ protections built into a system would mean that innocent people were protected at the expense of convictions of people strongly suspected (but not proven) to be guilty. In this respect, the models can be viewed as two ends of a spectrum.392
Although evolving jurisprudence, statutory amendments and varying practical realities all contribute to the constant shifting between ‘crime control’ and ‘due process’ measures, there are several cornerstones in England and Wales’ criminal justice system marking clear prioritisation of ‘due process’ procedural standards. Founded on the principle that the accused must be held innocent until proven guilty, this ‘presumption of innocence’ means that the burden of proof lies with the person making an accusation to prove it is true.393 It is not for the person accused to prove their innocence. The standard of proof the accuser must meet is ‘beyond reasonable doubt’. This is higher in criminal cases than civil matters. If the decision-maker believes that the probability of guilt is less than beyond
391 H Packer, The Limits of the Criminal Sanction (1968, Stanford University Press) p161 392 A Sanders, ‘Reconciling the apparently different goals of criminal justice and regulation: the ‘freedom’ perspective’ in H Quirk, T Seddon and G Smith (eds) Regulation and criminal justice: Innovations in policy and research (2010, Cambridge University Press) p49 393 This wording is enshrined in the UN Declaration of Human Rights 1948 (Article 11, section 1) and the European Convention for the protection of Human Rights (Article 6, section 2), as incorporated by the Human Rights Act 1998 in England and Wales. The principle, however, is far older.
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reasonable doubt’, they must acquit. The threshold for conviction is set high at first instance, due to the principle that it is preferable that guilty persons go free than for innocent persons to be wrongly imprisoned.394 Traditionally, then, the ‘balance’ is set in favour of the accused – enshrining concern for the due process of law over a high rate of offender sanctioning.
Several major and lasting procedural changes protecting ‘due process’ were implemented into the justice system from the recommendations of two royal commissions. The Royal Commission on Criminal Procedure (‘Philips Commission’, 1981) called for a ‘radical overhaul of the criminal justice process in order to balance the rights of suspects and powers of police’.395 It directly influenced legislation governing police powers in the Police and Criminal Evidence Act 1984 (‘PACE’), which set out police powers, suspects’ rights, and safeguarding measures – such as mandatory recorded interviews, maximum periods of detention, the right to legal advice, independent custody officers to ensure suspects’ rights are upheld, and the inadmissibility of evidence obtained by undue process.396 The Phillips Commission also led to the establishment of an independent Crown Prosecution Service (via the Prosecution of Offences Act 1985), which replaced police prosecutions. Dividing the responsibilities of criminal investigation and prosecution ensured better impartiality and observance of suspects’ rights.
Just over a decade afterwards, the Royal Commission on Criminal Justice (‘Runciman Commission’, 1993) led to the Criminal Appeals Act 1995 and formation of the CCRC to reinvestigate claims of wrongful conviction (as discussed earlier). The CCRC was formed to be independent of the executive, replacing the previous system whereby prisoners would write to the C3 department of the Home Office, which was constitutionally and politically constrained by being linked to government and having limited investigative resources.397 The effectiveness or otherwise of these safeguards is discussed in other chapters. Here, they bear significance having first come from royal commissions (which in turn were formed in response to egregious injustices),398 the reports of which are non- binding, but also in the degree to which recommendations were followed.399
Though these safeguards increased due process protections, the 1990s also saw rising crime rates, which peaked dramatically in 1995. With this, came ‘new right’ political thought, and renewed interest
394 The principle was expressed in this format by jurist Sir William Blackstone in Commentaries on the Laws of England Book VI (c1765–1770, Clarendon). It was first formalised into law in Re Hobson (1831) 168 Eng. Rep. 1034, per Holroyd J. However the maxim is far older. 395 C Philips, Report of the Royal Commission on Criminal Procedure (Cm8092, 1981) paras 10.1, 1.11-135 396 Police and Criminal Evidence Act 1984, Codes C, E, F and S78. Prior to PACE, detainees had limited protection under non- statutory Judges Rules, which only outlined procedural guidance in relation to police questioning. 397 C Walker, ‘Miscarriages of Justice and the Correction of Errors’ in M McConville and G Wilson (eds) Handbook of Criminal Justice Process (2002, OUP) p514. When C3 was operational, applications were made under s17 Criminal Appeal Act 1968 to the Home Secretary. 398 A public inquiry into the false confessions and conviction of three innocent boys for the murder of Maxwell Confait in the 1970s led to the establishment of the Royal Commission on Criminal Procedure. See H Fisher, Report of an inquiry into the death of Maxwell Confait (HC90, 1977). The Royal Commission on Criminal Justice was set up after a further series of high profile cases where the convictions were later recognised as miscarriages of justice, namely the Guildford Four (1974); the Birmingham Six (1975); the Maguire Seven (1976) and Judith Ward (1974). These cases featured false confessions, police misconduct, non-disclosure and unreliability of expert forensic testimony. 399 B Lauriat, ‘The Examination of Everything: Royal Commissions in British Legal History’ Statute Law Review [2010] 31(1), 33
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in harsher penalties.400 Evidential protections started to be removed under Michael Howard’s government. The Criminal Justice and Public Order Act 1994, for example, extended police stop-and- search powers, introduced the ability to obtain intimate body samples, and permitted adverse inferences to be drawn from those exercising their right to remain silent.401 It also abrogated the former requirement for a jury to be warned of the danger of convicting the accused on uncorroborated evidence in sexual offence cases (among others), placing it on a discretionary footing (as discussed in the previous chapter).402
New Labour addressed the heightened concerns by placing criminal justice high on its agenda. It championed policies to crack down on crime, and after coming into power in 1997, made even more extensive changes. Over 3000 new criminal offences and criminal justice process amendments were introduced between 1997-2006 alone.403 In particular, the Criminal Justice Act 2003 brought in a wealth of amendments to the justice system governing criminal procedure, admissibility of evidence and sentences. To give some examples from its 300+ provisions, it scrapped the ‘double jeopardy’ principle for serious crimes (which disallowed people to be tried for the same crime twice), further extended police powers, and narrowed the remit for bail applications. It broadened the definition of ‘bad character’ evidence admissible in court. Previously, this referred to a defendant’s prior offences, but was redefined to include ‘other reprehensible behaviour' – which prosecutors could interpret broadly.404 This Act also allowed hearsay evidence to be permitted if it is deemed in the interests of justice to do so.405 These examples illustrate the extensive nature of the wide-reaching statute.
Many of the major criminal justice statutes introduced in this period increased police powers and curtailed suspects’ and defendants’ rights. These developments were epitomised by New Labour’s criminal justice strategy, which promised to be ‘tough on crime, tough on the causes of crime’, representing a move towards a decidedly more ‘crime control’ direction. Then-Prime Minister Tony Blair gave a clear statement of this intent when discussing the direction of future policies, stating that ‘the biggest miscarriage of justice in today's system [is] when the guilty walk away unpunished’.406 McLaughlin et al note that the strategy to appear uncompromising on crime and supportive of victims appealed to the public, and marked the growth in politicisation of law and order.407
It arguably also signified the start of a new era of victims’ political importance. Sanders argues on this basis that Packer’s models are now inadequate, having not accounted for their role and rights. As Packer’s theory places crime control as the primary goal of a justice system, Sanders argues,
400 M Hall, Victims of Crime: Construction, Governance and Policy (2017, Palgrave MacMillan) p55 401 S60, S54–59, S34–39 Criminal Justice and Public Order Act 1994 402 Ibid., S32 403 A Sanders, ‘The Aims and Values of Criminal Justice’ in A Sanders, R Young, and M Burton (eds) Criminal Justice (2010, OUP) p8 404 S98-113 Criminal Justice Act 2003. However, the common law general exclusionary discretion, that bad character evidence should be excluded because it is unfairly prejudicial, is retained. 405 S114(1)d Criminal Justice Act 2003 406 T Blair, ‘The biggest miscarriage of justice in today's system [is] when the guilty walk away unpunished’, Prime Minister's speech on 'Re-balancing of criminal justice system (18 June 2002) Full text reproduced at
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concerns for the victim will always be secondary, and the concept of ‘balancing’ an increased probability of conviction against reduced civil liberties becomes redundant in the face of the rising importance of victims.408 This critique is revisited in the thesis conclusion.
Criminal justice as victim ‘customer service’ Before the 1990s, victims of crime had minimal importance in the justice system. Piecemeal policy developments in relation to victim-focused concerns meant that there were few victim support services.409 Since the 1990s however, Hall observes that victims have become increasingly prominent in political discourse and powerful agents in the criminal justice process.410 The Home Office (under Prime Minister John Major’s Conservative government) introduced a Victim’s Charter in 1990, which set out rights for victims. In 1996, this was revised to provide ‘service standards’ that victims could expect from the justice system.411 It also permitted access to details relating to sex offenders upon what Williams terms ‘customer request’.412
Despite these early semantic indications of victims positioned as customers, however, the Charter was criticised for failing to bring effective changes.413 In response to scrutiny from victims’ rights organisations in relation to the treatment of victims by the justice system, victim-oriented policies were included on successive Governments’ agendas. Following on from New Labour’s landslide election victory in 1997, the 1998 paper ‘Speaking Up For Justice’ was drafted. Discussing its proposals, then- Home Secretary Jack Straw stated, ‘For too long victims of crime have not been given a proper support and protection they deserve. This must change. I am determined to ensure that their needs are placed at the very heart of the criminal justice system’.414 New Labour’s 2002 white paper ‘Justice for All’ similarly sought to increase victim support measures, and ‘put victims and witnesses at the heart of the criminal justice system to ensure they see justice done more often and more quickly’.415
Subsequent Home Office papers between 2004-2012 sought specifically ‘to increase victims’ and witnesses’ satisfaction with the criminal justice system’, introduce a national victim and witness care programme, and create a victims’ Code of Practice, setting out their rights.416 Hall argues that the Code marked a significant step in the direction of explicitly casting victims as consumers of the criminal justice process.417 Garland notes that this step, in turn, was part of a bigger shift in political
408 A Sanders, ‘Reconciling the apparently different goals of criminal justice and regulation: the ‘freedom’ perspective’ in H Quirk, T Seddon and G Smith (eds) Regulation and criminal justice: Innovations in policy and research (2010, Cambridge University Press) p49 409 S Farrall and C Hay, ‘Not So Tough On Crime? Why Weren't the Thatcher Governments Radical in Reforming the Criminal Justice System?’ British Journal of Criminology [2010] 50, 550 410 M Hall, Victims of Crime: Construction, Governance and Policy (2017, Palgrave MacMillan) p56, p287 411 Home Office, The Victim’s Charter: a statement of the rights of victims of crime (1990, HMSO); Home Office, The Victim’s Charter: a statement of service standards for victims of crime (1996, HMSO) 412 B Williams, ‘The Victim's Charter: Citizens as Consumers of Criminal Justice Services’ The Howard Journal of Criminal Justice [2002] 38, 388 413 Ibid. 414J Straw (1999), cited in A Sanders, ‘Victim participation in an exclusionary criminal justice system’ in C Hoyle and R Young, (eds) New Visions of Crime Victims (2002, Hart Publishing) 415 Home Office, Justice For All (Cm5563, 2002) 416 For example, Increasing victims’ and witnesses’ satisfaction with the criminal justice system (2004); No witness no justice: the national victim and witness care programme (2004); The code of practice for victims of crime (2005); Rebalancing the criminal justice system in favour of the law-abiding majority (2006); Working together to cut crime and deliver justice (2008) 417 M Hall, Victims of Crime: Construction, Governance and Policy (2017, Palgrave MacMillan) p56
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approach causing the criminal justice system being recast as a business, bringing retribution for those victims affected by crime (who are positioned as service users).418 This reflects a managerial approach to policymaking, where the relationship between the State and victims of crime is moved towards that of a service provider providing rights and means of redress to customers.419
Since Hall’s 2017 analysis, in September 2018 the Conservative Government published a Victims Strategy, committing to strengthen the Victims’ Code. A ‘Victims’ Law’ has also been proposed to enshrine these rights, in order to ‘ensure that victims receive extra help and support they need to cope and recover’.420 The Victims Bill currently under review in Parliament is discussed in the next chapter,421 but in respect of victims’ importance in policy-making, it marks a sustained and continuing cross-party trend.
In the context of sexual offences, two seminal Home Office reports highlighted how police and defence practices intimidated, traumatised and dissuaded sexual offence victims from reporting, pressing charges or giving evidence. The 1998 report ‘Speaking Up For Justice’ established that police questioning and the trial process intimidated victims, and that witness vulnerabilities should be accounted for in future policy.422 In 1999, another report on the investigation and prosecution of rape, showed that women frequently retracted claims in order to avoid upset and humiliation when questioned.423 Understanding improved of the situation where for some victims, their involvement with the criminal justice process was re-traumatising, and ‘more unpleasant that the crime itself’.424
Consequently, the growing recognition of the secondary victimisation caused by criminal justice system engagement became a considerable impetus behind victim-centred approaches that followed. This effect was evident particularly in sexual offence policy change.425 As Sanders sets out, victims are needed to come forward and report crime, give evidence and participate in order for the criminal justice system to function effectively and with integrity.426 Arguably, then, positioning victims (or complainants as potential victims) as customers of justice, and providing them with greater service standards, countered criticisms that victims were not listened to, and were treated unfairly by the system. This in turn is a means to improve legitimacy of the justice system by encouraging victim confidence and participation. The next chapter builds on this by introducing the idea that, to assist those purporting to be victims, proverbial goalposts have been widened to facilitate convictions for
418 D Garland, The Culture of Control (2001, OUP) p143 419 J Jackson, ‘Justice for All: Putting Victims at the Heart of Criminal Justice?’ Journal of Law and Society [2003] 30(2), 309 420 Ministry of Justice, Consultation on Improving the Victims’ Code and the Government Response to the 2019 consultation: Proposals for revising the Code of Practice for Victims of Crime (CP236, 2020) p3 421 The Victims Bill had its second reading at the House of Lords on 19 July 2019.The Bill was first introduced in March 2015 by Elfyn Llwyd of Plaid Cymru, who subsequently stepped down from Parliament. Baroness Brinton introduced it in the House of Lords as a Private Member’s Bill in 2017. That year the Conservative Party manifesto stated it would introduce legislation to ‘enshrine victims’ entitlements in law’. 422 Home Office, Speaking Up For Justice: Report of the Interdepartmental Working Group on the treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System (Home Office, 1998) 423 J Harris and S Grace, A Question of Evidence? Investigating and Prosecuting Rape in the 1990s (Home Office Research Study 196, Home Office 1999) p8 424 B Williams, Victims of Crime and Community Justice (2005, Jessica Kingsley Press) p88 425 A Sanders, ‘Victim Participation in an Exclusionary Criminal Justice System’, in C Hoyle and R Young (eds) New Visions of Crime Victims (2002, Hart) p46 426 Ibid., p45-46
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sexual offences.
In addition to feminist-based critique and victims’ rights movements, heavily-reported offences also triggered the huge increase in weight and power afforded to victims of crime during this period. The wide-ranging policy responses to the abduction and murder of Sarah Payne by a registered sex offender perfectly demonstrate this. Following the offence, a campaign led by the News of the World and the victim’s mother, Sara Payne, called for the government to enact ‘Sarah’s Law’. This sought to allow parents to check whether there were known sex offenders in their local area, through access to the Sex Offenders Register. This legislative proposal was initially met with disapproval, for the chance it could drive child sexual offenders underground,427 put suspected abusers at risk of vigilante action,428 and cause those on the register to lose employment, become excluded from the community and risk possible reoffending.429 However, these due process concerns were overridden by the emotional responses and punitive political pressures produced by the campaign.430
The government responded by introducing 14 pieces of legislation to tighten the laws on child sex offenders, and permitting controlled access to the Sex Offenders Register under the Child Sex Offender Disclosure Scheme.431 It also awarded Sara Payne an MBE for her work, and introduced the quasi-political position of a Victim’s Champion for her.432 This was later expanded to the legal role of Victims' Commissioner under the Coroners and Justice Act 2009, subsequently affording the position- holder far greater power and political weight. Successive Victims' Commissioners have directly influenced public policy, particularly on matters relating to sexual offence victim support.433
Rebalancing the Justice System in Favour of Victims Against the backdrop of growing crime rates and dissatisfaction with the previous government, New Labour were able to capitalise on the idea of a criminal justice imbalance, which prompted support for policies seeking to tighten controls and redress the balance. Explaining this effect, Newburn reasons that it is easier for governments to promote victim-friendly policies (thus seeming tough on crime) than it is for them to bring in measures to catch and convict offenders.434
Government responses to these criticisms (and broader accusations that the system had become too lenient towards criminals) have been to ‘rebalance the system’ to better encourage victim participation and satisfaction. In the Queen’s 2002 address (and again in 2006), she stated that,
427 J Silverman and D Wilson, Innocence Betrayed: Paedophilia, The Media and Society (2002, Polity Press) p13 428 V Bell, ‘The Vigilant(e) Parent and the Paedophile: The News of the World Campaign 2000 and the Contemporary Governmentality of Child Sexual Abuse’ Feminist Theory [2002] 3(1) 429 R Tewkesbury, ‘Collateral Consequences of Sex Offender Registration’ Journal of Contemporary Criminal Justice [2005] 21(1), 67 430 V Bell, ‘The Vigilant(e) Parent and the Paedophile: The News of the World Campaign 2000 and the Contemporary Governmentality of Child Sexual Abuse’ Feminist Theory [2002] 3(1) 431 The Child Sex Offender Disclosure Scheme was developed in consultation with Sara Payne and began in 2008. It is now in place across each UK police force, and enables all forces to disclose sex offence information. 432 S48 Domestic Violence, Crime and Victims Act 2004. In January 2009 Sara Payne was appointed as Britain's first Victims' Champion, a new 'independent public voice' for victims of and witnesses to crime. See Sara Payne, Redefining Justice: Addressing the individual needs of victims and witnesses (2009, Ministry of Justice) 433 Justice Select Committee, Oral evidence: Work of the Victims' Commissioner (HC305, 28 April 2020) 434 T Newburn, ‘Tough on Crime: Penal Policy in England and Wales’ Crime and Justice [2007] 36, 455
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‘at the heart of my Government's legislative programme is a commitment to reform and rebalance the criminal justice system to deliver justice for all and to safeguard the interests of victims, witnesses and communities’.435 Two subsequent Home Office briefing papers promised again to ‘rebalance’ the criminal justice process in favour of victims’,436 and to ‘rebalance the criminal justice system in favour of the law-abiding majority’.437 The rhetoric of ‘putting victims first…[and] at the heart of the justice system’ was also emphasised by both then-Prime Minister Tony Blair and Home Secretary David Blunkett in press briefings.438
This continued into the Coalition era. The Conservative and Unionist manifesto of 2010 promised to ‘rebuild confidence in the criminal justice system so that people know it is on the side of victims and working for law-abiding people, not criminals’.439 Theresa May (as Home Secretary) further assured the public that the government would ‘put the criminal justice system on the side of responsible citizens’.440 These statements bear familiarity to the Conservative government’s 2018 Victims Strategy, which stated that ‘all victims of crime have a right to know that the State is on their side’, reiterating the message that policy changes would help ‘give victims back their voice’.441
However, it is emphatically not for the justice system to be ‘on anyone’s side’. Its purpose is to establish whether the accused is culpable and if so, how they should be most appropriately sanctioned. The accused is not a ‘criminal’ until they have been through the process, which is not set up with the purpose of avenging victims. Placing victims in such an influential position also ignores a key principle in criminal law, that a criminal act harms not only the immediate victims, but society as a whole. An offence is understood to be committed against the State, which is why prosecution is brought on behalf of the Crown, and the sanction afforded is to benefit society.
The use of balancing analogies implies that one side or other must be favoured in order for a level of ideal fairness to be achieved. Sanders points out that ‘the problem with the idea of ‘balance’ is that, in itself, there is no basis for judging whether a particular ‘balance’ is well struck or not… no-one has provided a coherent basis for calibrating ‘how much’ due process (or the rights of victims) should intrude’.442 Policies and statutory amendments offering to rebalance the justice system in favour of victims, or put victims’ needs at the heart of the system treat the process as a zero-sum game, erroneously equating criminal justice with victim
435 House of Lords 15 November 2006 : Column 1 Queen’s Speech; A Travis, 'Smarter Justice' Plans Aim To Rebalance System In Favour Of Victim' (The Guardian, 16 November 2006)
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security.443 The protection of one group’s rights, however, does not necessitate the lessening of the other’s rights. To do so would risk compromising ‘due process’ protections and in turn, the legitimacy of the system.
Naughton argues that this effect occurs where high-profile cases (particularly sexual or violent offences involving children) trigger knee-jerk law. Though such cases are exceptional, the severity of the offence sparks disproportionate fears and panic, to the detriment of common-sense policymaking.444 Ultimately, this results in fewer checks and balances on the processing of those accused through the system in a procedurally fair manner. Though these measures were designed to facilitate prosecutions and increase conviction rates, they do so for both the guilty and innocent. For this reason, Gelsthorpe summarises the collective effect as a ‘significant erosion of the due process rights of suspects’.445 The weakened safeguards risk an increased rate of wrongful convictions, which in turn increases the margin of error deemed acceptable in the justice system.
Sanders reasons that, where Government rhetoric claims to create a victim-centred justice system, this would have ‘no due process or human rights protections for the accused’. Moreover, ‘vengeful (and falsely accusing) victims would be able to insist on arrest and prosecution when there was no evidence, and on wildly disproportionate sentences’.446 Although he uses this point to argue that Packer’s ‘crime control’ and ‘due process’ models have become somewhat ‘dated’ in terms of theoretical application, if not obsolete in the face of victim-oriented policymaking, this thesis argues that the fundamental changes made are nevertheless still ‘crime control’ in nature. The next part sets out exactly why this is so.
Part 2: The widening of goalposts for sexual offence cases
Sexual offences were particularly targeted amongst the many criminal offences and policy changes introduced since the 1980s.447 Some of the changes were a fundamental part of the shift towards victims’ rights and customer service, responding to critique that they had been disregarded by creating special measures for accusers. Other legal developments were brought in specifically to facilitate sexual offence convictions, as reactionary measures following high-profile sexual offence cases. As Chapter Two outlined, HSA cases are notoriously difficult to investigate, and typically feature little ‘hard’ evidence that would not have perished. Measures reducing hurdles to conviction were, therefore, seen as progressive in assisting victims to seek justice. The raft of policy measures introduced to facilitate convictions for (particularly historical) sexual offences is, however, argued to compromise ‘due process’ safeguards, increasing the risk of unsafe convictions.
443 J Jackson, ‘Justice for All: Putting Victims at the Heart of Criminal Justice?’ Journal of Law and Society [2003] 30(2), 309 444 M Naughton, ‘Redefining miscarriages of justice: a revived human rights approach to unearth subjugated discourses of wrongful criminal conviction’ British Journal of Criminology [2005] 45, 167 445 L Gelshorpe, ‘Foreword’ in A Hucklesby and E Wahidin, Criminal Justice (2009, OUP) p11 446 Ibid., p58 447 For background on this, see Home Office, Setting the Boundaries: Reforming the Law on Sex Offences (2000, HMSO)
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Removal of the mandatory warning against uncorroborated sexual offence testimony As previously outlined, due to the nature of sexual offences, evidence given cannot always be corroborated. Yet there is no requirement that it must be, in order for a conviction to occur. Article 2(2) of the Sexual Offences Act 1956 set out that a person ‘shall not be convicted of an offence under this section on the evidence of one witness only, unless the witness is corroborated in some material particular by evidence implicating the accused’. There was an assumption that a complainant’s testimony alone should not be trusted, and as such, the threshold for conviction was set high. Judges traditionally issued a mandatory warning to juries in relation to the dangers of decision-making based on the uncorroborated testimony of a sexual offence complainant, which was justified as an appropriate counterweight to defendants being convicted on unproven accusations.448 It was also seen to guard against malicious allegations.449
However, s31-2 of the Criminal Justice and Public Order Act 1994 removed the requirement for a judge to warn the jury about the dangers of convicting the accused on uncorroborated evidence. Abolishing the mandatory warning meant that it was left to judges to use discretion when deciding whether a warning was necessary in sexual offences.450 This change was intended to bring about more successful prosecutions for rape and domestic abuse, made amidst a culture of rape law reform which emphasised a growing awareness of prior disbelief and discrimination against (particularly female) sexual offence complainants.451
Criminal Barrister Matthew Scott argues that this change may have resulted in judges giving warnings purposefully infrequently, so as to demonstrate mindfulness of past prejudice.452 As such, the jury may well not be cautioned about finding a defendant guilty solely on a complainant’s testimony. This is problematic in cases where there is no corroboration, as a lot rests on whether the jury believes the complainant or defendant. As an accuser’s testimony is often the key evidence in HSA cases, reducing this credibility check means that the accuser’s testimony is afforded more weight. Scott concludes that in HSA cases where corroboration is very weak, this change brings ‘all the potential to produce miscarriages of justice on a scale unprecedented in recent English history’.453 Indeed, both Brigham and Furedi argue that the efforts made to challenge the myth of the ‘lying woman’ have produced a replacement myth – that of a ‘never-lying woman’. Applying a presumption of victimhood to sexual offence complainants in this way risks becoming a blanket default, hiding important
448 M Hale LCJ, Historia Placitorum Coronæ; The History of the Pleas of the Crown (1778) p635 449 G Williams, Textbook of Criminal Law (1978, Stevens) p196–7: ‘many complaints of rape are false … an adolescent girl who consents to intercourse may, to placate her parents, assert that she did not consent; the parents then complain to the police and the girl finds herself compelled to keep to her lie. [She]… may even convince herself subsequently that she did not really consent. There is also the danger of a false allegation being made out of spite, when the man was in fact a lover who jilted the woman, or for obscure psychological reasons.’ 450 Under R v Makanjuola [1995] 3 All ER 732, it was held, ‘It is a matter for the judge’s discretion, what, if any, warning is appropriate… the judge will often consider that no special warning is required at all’. 451 Law Commission, Corroboration of Evidence in Criminal Trials (Working Paper No.115, 1990) 452 M Scott, ‘Sir Cliff Richard and historic sex cases: is our justice system fair to old men?’ (3 September 2014)
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protections to which defendants are entitled.454 Hall too notes that ‘an over-reliance on cultural narratives as a basis for assigning victim capital has the potential to breed injustices’.455
‘Similar Fact’ evidence and HSA investigation As the last chapter outlined, in HSA cases, police may collect evidence through trawling and dip sampling, producing several uncorroborated claims of separate incidents. A strong case can be built where such accounts present ‘similar fact’ evidence from more than one complainant. Under similar fact evidence principles these may count as mutually corroborative, as each testimony is treated as verification of the others.456 Previously, testimonial evidence of ‘similar facts’ (or allegations) was permissible only where there were ‘striking similarities’, but this approach was rejected in DPP v P [1991],457 which did away with the ‘striking’ component. Shortly after, in R v H [1994], it was held that a judge should ‘generally assume that the allegations in question were true’ when ruling on the admissibility of a series of similar allegations.458
As the previous chapter outlined police investigation and evidence collection in HSA cases that trawl for corroborative witnesses have been heavily critiqued for contributing to unsafe convictions by producing ‘opportunities for the exchange of descriptive detail, pollination of rumours and confabulation of memories’.459 Saltrese argues that this creates ‘a phantom shared narrative’ whereby juries erroneously see multiple similar accounts as evidence of abuse, asking ‘why would so many complainants come forward if it were not true?’, without realising the risk of cross-contamination from the methods used to obtain the accounts.460
Introduction of evidence of bad character (or propensity towards it) The Criminal Justice Act 2003 supplanted ‘similar fact evidence’ by permitting evidence to be adduced of a defendant’s ‘bad character’.461 Despite warnings that it would cause injustices to unfold from the former Lord Chief Justice,462 the provision is very broad in scope, permitting evidence of previous convictions or charges (even if acquitted), evidence of misconduct, evidence of ‘reputation for misconduct’, and ‘other reprehensible behaviour', which prosecutors may interpret widely.463 This
454 J Brigham, ‘‘Rape Culture’ Narrative, State Feminism, and the Presumption of Guilt’ in R Burnett (ed) Wrongful Allegations of Sexual and Child Abuse (2016, OUP) p66-81; F Furedi, ‘Moral Crusades, Child Protection, Celebrities, and the Duty to Believe’ in R Burnett (ed) Wrongful Allegations of Sexual and Child Abuse (2016, OUP) p42-53 455 M Hall, Victims of Crime: Construction, Governance and Policy (2017, Palgrave MacMillan) p256 456 R Burnett ‘Reducing the Incidence and Harms of Wrongful Allegations of Abuse’ in R Burnett (ed) Wrongful Allegations of Sexual and Child Abuse (2016, OUP) p289 457 DPP v P [1991] 93 Crim App R 267 458 R v H (1995) 2 AC 596 per Mackay LC 459 R Burnett, ‘The Default Belief in Allegations of Child and Sexual Abuse’ in J Robins (ed) No Defence: Lawyers and Miscarriages of Justice (2013, The Justice Gap) p80 460 C Saltrese, ‘CPS guidelines and the Pinocchio effect’ (16 March 2015)
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rule was specifically intended to secure convictions for serial sexual offenders who may have several accusers but little evidence on which they can be convicted. The CPS guidance note explains that it makes evidence admissible against a defendant which was previously inadmissible, thus ‘mak[ing] it easier for the prosecution to discharge the burden of proving the defendant's guilt’.464
Edge and Mills note that this has the effect of weakening due process safeguards considerably for those accused. Instead of merely permitting the prosecution to present evidence of previous convictions, a number of previous (unfounded) allegations may be treated as mutually corroborative and cross-admissible.465 This creates a particular difficulty for someone in a position where they may be vulnerable to being wrongly accused. Unique to child and sexual abuse cases is that police retain records of anyone accused of or investigated for these offences – including those not charged or convicted. Prior allegations, even if disproven or retracted, may still be used as evidence if they are accused in future.466 Those in teaching, caring or pastoral support roles for young, disadvantaged or vulnerable people are more likely to be susceptible to accusations of abuse than those in other professions.467 In light of the change in law, the occupational hazard of being accused of unfounded incidents for those in these professions means that prosecution (and wrongful conviction) becomes a much more significant risk.
Multiple incident or 'course of conduct' counts In many HSA cases, incidents are typically alleged to have occurred several times, and/or over an uncertain time period. Consequently, the Criminal Procedure (Amendment) Rules 2007 was brought in to address such situations, allowing multiple incidents of the same offence to be grouped under a single count.468 Where complainants can identify specific incidents (e.g. by reference to a date or event), but allege that there were other incidents they are unable to specify, each separate incident may be included within 'multiple incidents' counts, or counts which allege that the same offence occurred 'many' times.469
HSA cases frequently involve allegations of repeated or progressive sexual acts. In R v John Hartley [2011] the Court of Appeal advised that for cases involving allegations of a course of conduct over a long period, a course of conduct count could be included with single count in relation to the same period, ‘so that the basis of any verdict is clear’. It explains that the overall principle is ‘simply that regard must be had in an intelligent way to the possible views of the case at which a jury might arrive
464 Crown Prosecution Service, Guidance on Bad Character Evidence (revised January 2019)
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and to the position of the judge in due course should there be convictions'.470
This paved the way for a greater deal of leniency afforded at trial to the accuser’s accuracy regarding the time and place of alleged offences. For example, where evidence is not consistent when building a HSA case, dates of offences that do not seem to fit the timeline may be ‘stretched’, i.e. suggested as falling on other dates in the preferred timeframe, and the inconsistency explained away as due to trauma from the abuse.471 This is a generous provision for prosecutors, as it takes an extremely detailed defence statement to counteract it. The lack of specificity means it is also harder to appeal.
In 2014, as part of Operation Midland, Conservative MP Nigel Evans was tried and acquitted on nine rape and sexual assault charges. In the case against him, several witnesses had given evidence about sexual impropriety, but said they did not class themselves as victims - nor did they wish for him to be prosecuted for drunken inappropriate behaviour. Following the acquittal, MP David Davis called for a review of sexual offence cases where the CPS put together a number of lesser, subsidiary charges in order to reinforce one serious case, because of the risk of an injustice resulting.472 However, no changes have since been effected.
Special measures and restrictions shielding sexual offence complainants The 1998 Home Office report ‘Speaking Up For Justice’ set out recommendations to improve the treatment of vulnerable or intimidated witnesses at trial. Giving particular focus to sexual offence complainants, it paved the way for a major overhaul of the law regulating sexual history evidence. Most of the recommendations were implemented in the Youth Justice and Criminal Evidence Act 1999 (‘YJCEA’). Though Hall points out that its provisions are in fact directed at witnesses rather than just victims,473 Hamlyn et al cite these measures as clear examples of an increased focus on the victim’s perspective in the adversarial criminal justice system.474 This is because of the changes made to rules on the admissibility of evidence of complainants' sexual behaviour, which severely restricted trial judges’ discretion to introduce such evidence, or allow questions concerning it.
Firstly, the YJCEA brought in ‘special measures’ for all sexual offence complainants (among other specified categories of vulnerable or intimidated witness).475 These included screens hiding the witness from the accused (s23(1)), the option to give evidence by live video-link (s24), which both prevent the witness from the (potential) ordeal of seeing the accused, and the option to give evidence
470 R v John Hartley [2011] EWCA Crim 1299 471 Criminal Law Solicitors' Association Annual Conference, March 2018, discussion in personal capacity. 472 BBC, ‘Nigel Evans verdict: MPs criticise police and CPS over prosecution’ (10 April 2014)
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in private (i.e. where a judge clears the courtroom of anyone whose presence is not essential while the witness gives evidence (s25)). In addition, the YJCEA allows for the removal of wigs and gowns in order to make the proceedings appear less daunting where requested (s26). It further provides that a witness’s evidence-in-chief may in certain circumstances be replaced with a video-recording (s27).
It has ben argued by both academics and practitioners that these measures can create bias in terms of presumptions of innocence or guilt. Not only can video-recorded evidence make false allegations more difficult to detect,476 but it increases the risk of inadmissible evidence (from leading questions and issues of hearsay) being admitted, as it is within the recording. Although ‘Achieving Best Evidence in Criminal Proceedings’ guidance was introduced in 2011 to minimise this risk, Doak et al note that ‘there are inevitably cases where this sort of evidence permeates’.477
Further, s32 YJCEA provides for judges to give a warning to the effect that a special measures direction should not cause prejudice to the accused. Hall argues that courts would take care to ensure ‘there is no implication that granting special measures to complainant witnesses means that witness’ “victim status” has already been to any extent pre-judged’.478 In practice, though, their use can serve to make accusers look more vulnerable and afraid, needing to be ‘protected’ from the accused, who in turn appears more intimidating – a trial tactic which defence lawyers can capitalise on.479
S41 YJCEA prohibits the ability of the defence to introduce evidence or questions relating to the complainant’s sexual history (save for four narrowly proscribed exceptions, where strict criteria must be met).480 It does not block evidence of previous false complaints of sexual misconduct, though.481 This change was brought in to prevent the defence drawing upon rape myths and stereotypes to discredit complainants.482 Restrictions of evidence concerning a complainant’s sexual history were only introduced in s2 of the Sexual Offences (Amendment) Act 1976 following criticisms and campaigns against previous perceptions that women often lied about sexual abuse, during the ‘second wave’ of feminism.483 As Speaking Up for Justice set out, however, concerns remained that s2 did not go to far enough in relation to protecting victims of sexual abuse, and s41 YJCEA was formed.
476 G Davies, C Wilson, R Mitchell, and J Milsom, Videotaping Children’s Evidence: An Evaluation (1995, HMSO) p11. Davies et al found that 20% of judges and 50% of barristers believed it would make false allegations more difficult to detect. 477 J Doak, C McGourlay, M Thomas, Criminal Evidence in Context (2018, Routledge) p111 478 M Hall, Victims of Crime: Construction, Governance and Policy (2017, Palgrave MacMillan) p29-30 479 L Hoyano, ‘Witnesses: Will Special Measures Directions Contravene Guarantees of a Fair Trial?’ [2001] Crim. L.R. 961 480 The exception ‘gateways’ under s41 are (3)a where the evidence is relevant to an issue which is not an issue of consent; (3)b where it is an issue of consent and the sexual behaviour of the complainant is alleged to have taken place at or about the same time as the event which is the subject matter of the charge; (3)c it is an issue of consent and the sexual behaviour of the complainant is too similar to the alleged offence or other sexual behaviour of the complainant taking place at or about the same time that it cannot reasonably be explained as coincidence; or s41(5) where the evidence specifically rebuts or explains evidence adduced by the prosecution about sexual behaviour of the complainant. 481 R v RT [2002] 1 All E.R. 683 482 House of Commons Library Research Paper 99/40 on the Youth Justice and Criminal Evidence Bill (HL) (Bill 74 1998/99) 14 April 1999
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Amplified by the other difficulties surrounding HSA cases, there was some concern as to whether the s41 prohibition on questions about sexual history would prevent a defendant from having a fair trial. In a landmark case, R v A (No 2), the House of Lords found that s41 was only barely compliant with the right to a fair trial under Article 6 of the European Convention on Human Rights.484 Whilst a complainant should not be subjected unnecessarily to humiliating cross-examination, Hoyano asserts that the defendant’s right to a fair trial ought to remain the most important objective in a case.485
Although the judgment provides precedent to ensure that the defendant is not deprived of a fair trial, it has been applied very infrequently. The issue remains that, if all context is stripped away from the incident being prosecuted, the jury may well be entirely misled by an artificial scenario.486 In an in- depth 2018 study, barristers (many of whom had prosecuted and defended) expressed concern that s41 was too restrictive for complicated cases, and was often implemented in a rigid and immovable way, making it too difficult to ‘fit the justice of the case into the words of the section’. Where relevant evidence could not fit under one of the four strict statutory ‘gateway’ exceptions, it could result in serious unfairness to the defendant, leading to wrongful convictions.487
Decreased use of the power to stop proceedings after lengthy delays Following on from the greater understanding of the trauma suffered by sexual abuse victims was improved understanding about delayed complaints. Previously, judges had the ability to stop cases proceedings if there has been a lengthy delay between alleged offence and complaint, under the principle that it would be an abuse of process of the court to try the accused. This formed an important ‘due process’ protection for those accused of historical offences.
However, its use has been greatly reduced since 2000, as the criminal courts have developed directions to juries to address and mitigate any prejudice arising from delayed complaints, memory fading and unavailability of evidence. The 2001 judgment of R (Ebrahim) v Feltham Magistrates Court marked a turning point, setting out that cases in which circumstances would ‘inevitably be unfair are likely to be few and far between’, and that the trial process is now seen as adequately equipped to deal with any unfairness arising from delayed complaint.488 This would be done through cross- examination of the complainant on the issue of delay, rulings on evidential admissibility, and warnings as to the dangers caused by absence of witnesses or deterioration in recollection.
Two further recent judgments have demonstrated the Court of Appeal’s increasing willingness to overturn decisions of trial judges to stay proceedings on grounds of delay and loss of evidence, and their reluctance to find convictions unsafe where trial judges have declined to grant a stay, even
484 R v A (No 2) [2001] UKHL 25, [2002] 1 AC 45, per Lord Steyn at 31 485 L Hoyano, The Operation of YJCEA 1999 section 41in the Courts of England & Wales, Oxford Legal Studies Research Paper No. 17/2019 (2018, Criminal Bar Association and University of Oxford) p3 486 Ibid., p120. 487 Ibid., p6, p47. One barrister gave the example that, ‘I was recently not allowed to put to a woman the assertion that she had told D that he was not the father of her child (relevant to an issue in the case) because that suggestion, of itself, meant that she would necessarily have had sex with someone else and therefore s41 applied. This was surely not the intention of Parliament… s41 can be very unfair on Defendants, particularly when implemented in the often rigid and immovable way that it is.’ 488 R (Ebrahim) v Feltham Magistrates Court [2001] 2 Cr App R 23, per Brooke LJ
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where the time periods of delay were significant, and the loss of material substantial.489 Proceedings brought after a long delay are generally heard, but accompanied by a general warning about possible unfairness to the defence given to the jury.490 Consequently, there is a reduction in mitigation against the significant forensic disadvantages faced by those accused of historical offences (such as the unavailability of potential witnesses, the loss or unavailability of evidence and difficulties in recollection).
Case-building from the starting point of ‘believing the victim’ Aside from the many statutory amendments, policy changes have also resulted within justice system organisations. Following criticisms of previous ill-treatment of sexual abuse complainants,491 Metropolitan police guidance was revised to state that police should accept the account of those reporting serious sexual offences, unless evidence emerges rendering their account untenable. Officers were recommended to ‘accept allegations made by the victim in the first instance as being truthful’. This was formalised in a 2005 report, setting out the goal of establishing an institutional ‘culture of belief, support and respect’ for sexual offence victims.492
In November 2014, Her Majesty’s Inspectorate of Constabulary (HMIC)493 published a report into police handling and recording of offences. It set out that investigations into sexual offence allegations ought to be carried out from a position of believing the ‘victim’ (avoiding the term ‘complainant’), and that sexual abuse complaints should be recorded as a crime straight away.494 Guidance for senior investigating officers was revised to account for the importance of believing an accuser (i.e. treating them as a victim) until evidence proves otherwise. This is in order to account for genuine victims’ therapeutic needs. This was strongly criticised by Sir Richard Henriques for effectively setting aside the presumption of innocence. His report concluded that, ‘the policy of ‘believing victims’ strikes at the very core of the criminal justice process … it has and will generate miscarriages of justice on a considerable scale’.495
In the wake of the Savile scandal, the CPS also introduced several measures to increase HSA prosecutions. It launched a Child Sexual Abuse Review Panel to look again at cases where action was not taken following sexual offence allegations where the claimant was under 18. It also introduced a ‘Victim’s Right to Review’ scheme, affording complainants the right to review a CPS decision not to prosecute. The CPS further revised their guidelines on child sexual abuse cases, detailing their change in approach to complainants. The guidelines advise prosecutors to ‘guard
489 PR v R [2019] EWCA Crim 1225, R v SR [2019] EWCA Crim 887 490 A Choo, ‘Abuse of Process and Delayed Prosecutions’ in A Radcliffe, G Gudjonsson, A Heaton-Armstrong and D Wolchover (eds) Witness Testimony in Sexual Cases: Evidential, Investigative and Scientific Perspectives (2016, OUP) p58-59 418 Police reputation and trust was severely damaged in relation to sexual offence investigations after the BBC documentary ‘Police’ (1982, produced by Roger Graef) which showed the bullying of a rape victim by Thames Valley police. 492 HM Inspectorates of Constabulary Report Crime: Making the Victim Count (2014, HMIC); see also Code of Practice for Victims of Crime (2015, Ministry of Justice) at 20: ‘“victim” includes those who simply report crime to the police’. 493 In 2018 this body became Her Majesty's Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS) 494 Her Majesty’s Inspectorate of Constabulary, Crime Recording: Making the Victim Count (2014, HMIC) states that ‘the presumption that the victim should always be believed should be institutionalised’. 495 R Henriques, The Independent Review of the Metropolitan Police Service's handling of non-recent sexual offence investigations alleged against persons of public prominence (31 October 2016)
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against looking for corroboration of the victim’s account or using the lack of corroboration as a reason not to proceed with a case’.496 Former Director of Public Prosecutions Alison Saunders stated that, ‘even though past experience might tell a prosecutor that juries can be unwilling to convict in cases where, for example, there has been a lengthy delay in reporting the offence … these sorts of prejudices against complainants should be ignored … the prosecutor should proceed on the basis of a notional jury which is wholly unaffected by any myths or stereotypes of the type which, sadly, still have a degree of prevalence in some quarters’.497
The measures outlined here are not an exhaustive list of the changes brought in to facilitate sexual offence convictions, but their effect is clearly visible. The National Police Chiefs’ Council recorded an unprecedented number of (historical and recent) sexual offence complaints, rising from 2012 to a peak in 2015.498 The Office for National Statistics have stated that the trend of increases in sexual offences recorded by the police was likely driven by improvements in recording practices and a greater willingness of (particularly non-recent) victims to come forward to report such crimes.499 The change in approach has also prompted more prosecutions for (especially historical) sexual offences, which reached a record high in 2017.500 Directly or indirectly, these changes (and the culture shift underpinning them) have arguably had a significant net-widening effect.
Adverts and compensation for sexual abuse claims One possible reason for the net-widening effect, though the subject of heated debate, is that the process for making a sexual abuse claim has been made much easier, and incentives to make them increased. In 2001, New Labour made several substantial additions to the tariff-based Criminal Injuries Compensation scheme. In particular, the awards for sexual abuse injuries were increased. Injuries caused by sexual abuse may be awarded compensation from £1,000 to approximately £44,000. The descriptions relating to child abuse and sexual assault were also expanded and clarified to encourage more potential claimants. Compensation may be sought many years after an event, when the accused is deceased, and even where the accused is not convicted.501
Following the Savile scandal (discussed in the previous chapter), the High Court approved a compensation scheme in February 2014 of more than £3m, enabling victims to make claims against the Savile estate, the BBC and the NHS, with payments of up to £60,000 each. The court further
496 Crown Prosecution Service, Guidelines on Prosecuting Cases of Child Sexual Abuse (17 October 2013, revised 26 July 2017) para 55
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ordered that advertisements be placed in national newspapers.502 Advertisements from the NSPCC and similar groups became widespread, offering support for (particularly non-recent) sexual abuse victims, but also encouraging claims. Specific helplines were set up to facilitate sexual abuse reporting, and TV programmes featuring sexual abuse listed contact details for those affected. Conditional fee agreements were introduced (though the premise dated from 1995). This meant that those making a claim do not incur fees if their case is lost. Payments are only deducted if the claim is successful. Personal Injury ‘no-win-no-fee’ solicitors and the possibility of compensation were widely advertised.503 As such, it is arguable that litigation has become much easier and more accessible for potential claimants to make claims.
Adverts for no-win-no-fee solicitors and compensation can also tempt claims where the claimant is unsure what may or may not have happened, prompting erroneous allegations where non-offences are re-conceptualised or misremembered as such. Others may be prompted to make fraudulent claims, or accusations based on half-truths, due to the lure of compensation and the reduced difficulty of the process. The false sexual abuse allegations of Carl Beech, Danny Day and Jemma Beale (discussed in previous chapters) were all initially believed. In these cases, financial motivation was subsequently uncovered.
Victims’ groups fiercely deny that false claims result from compensation lures, citing the trauma of giving evidence as a sexual offence victim and the fact that financial recompense is deemed by many as inadequate compared the harms endured.504 Stark contrast is also drawn between high estimated offence rates and low false allegation rates. A CPS analysis of prosecutions between January 2011 and May 2012 revealed that, in comparison to 5,651 prosecutions for rape during this period, there were just 35 prosecutions for making false allegations of rape (and three further prosecutions for false allegations of both rape and domestic violence).505 This gives a false allegation rate of 0.6%.
However, the false allegation figures omit all sexual abuse allegations that don’t have enough supporting evidence to reach trial – which, if allegations were false, would be a significant proportion. It also excluded convictions subsequently overturned (the basis of which is frequently damaged complainant credibility). In a 2010 evidence review assessing the merits of affording anonymity to sexual offence suspects, the Ministry of Justice published findings that around 8-11% of rape allegations in England and Wales are false.506 In a 2012 Ministry of Justice report, 3% of 1,149 rape
502 BBC, ‘Jimmy Savile: Adverts advise victims on compensation’ (22 April 2014)
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cases were flagged as involving malicious allegations – but this figure rose to an estimate of 12% where a broad definition of false allegation is taken, including non-malicious incidences of mistaken and misremembered incidents subsequently dropped.507 Since the Government’s statement the Home Affairs Select Committee was too anecdotal and overstated the problem, Jensen and Jensen compiled 37 further cases between then (2002) and 2010 wherein allegations of abuse against teachers were established to be false before a conviction occurred.508 These cases, they argue, are indicative of many more examples where the accused has not been able to demonstrate their innocence.
Overall, though individually well-intentioned, it is argued that these measures collectively widen the goalposts for HSA convictions. They have certainly produced a net-widening effect. Since 2010, the conviction rate for CSA has increased on average each year, up to a record high of 79% in the year ending 2018-2019. Since 2014, over 4,000 HSA allegations have led to guilty verdicts.509 However, this also supports the argument that these measures have weakened ‘due process’ safeguards in their facilitation of more HSA convictions. Taken together with the evidential and moral difficulties HSA cases already present (as Chapter Two set out), an increased risk of unsafe conviction is entirely possible. The next part queries whether the CCRC is adequately positioned to be able to identify cases in this category.
Part 3: Recognising and referring convictions obtained through ‘different rules’
Where the numerous and targeted victim-centred changes are argued to amount to a widening of goalposts for HSA complainants, their collective role in facilitating convictions represents a logic of ‘different rules’ used to expedite cases. The result is a system-sanctioned relaxing of safeguards against unsafe convictions, and an implicit acknowledgment that the ‘balance’ should be tilted in favour of victims, at the cost of those erroneously accused.
At first, such a phenomenon seems unlikely. The rate of sexual offences prosecuted is a fraction of those reported.510 This has been argued as due to ‘a powerful culture of disbelief of victims in relation to these offences’, and hurdles for a conviction to be reached ‘which for most cases, are insurmountable’.511 There is an innate need to believe that those convicted are guilty, and that those
507 Ministry of Justice, Understanding the progression of serious cases through the Criminal Justice System (July 2012)
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enforcing the law do so to the fairest principles possible in each case. There is also a populist perception that the justice system has enough checks and balances not to convict innocent people. As Requa observes in her work on ‘just-world thinking’, where convictions are overturned in the appeals process, this is conceptualised as a safeguard against wrongful convictions, not as ample evidence that they exist.512
Yet, as the maxim goes, hard cases make bad law - and bad law makes hard cases. Taken in the context of controversial offences where legislation is borne of fear or panic, knee-jerk policies have been given legislative effect without detailed analysis as to the nature of the problem, and with little parliamentary scrutiny. As Chapter One detailed, this intractable reactive approach has been well- documented to result in cases of injustice – be it the destruction of dangerous-looking dogs, retrospective delays to terror offenders’ custody release or, as argued here, the increased risk of unsafe conviction for HSA.
Temporary and emergency provisions as ‘different rules’ used to obtain convictions It is useful at this point to consider the analogous situation of the introduction of the temporary and emergency provisions (‘TEPs’).513 Brought in to enable easier prosecutions following a series of terrorism offences during the 1970s-1990s conflict in Northern Ireland, their introduction was a response to public panic and highly charged political pressures to secure convictions. They had the effect of lowering the evidentiary standard for admitting confessions compared to non-terrorism cases, which in turn lowered judicial scrutiny of the circumstances in which the evidence was obtained.514
Although many of the terror suspects arrested under TEPs were released without charge (indicating an intelligence-gathering rather than prosecutorial function), their implementation came with breaches of suspects’ rights and safeguards. Police and legislators prioritised interrogation in these investigations because of difficulties obtaining other forms of evidence.515 Those arrested were routinely detained in the early hours of the morning and questioned over several days, with multiple interviews per day and some lasting several hours, at times late at night. Access to counsel, parents or appropriate adults was delayed.516 Cases eventually referred by the CCRC show that there was considerable conflict-era bias against terrorism suspects and defendants by the criminal justice system that contributed to tolerance of failure to appropriately account for the vulnerable position of those accused.517 Quirk argues that the lowering of standards compared to other offences amounted almost to ‘different rules’ put in place by the justice system.518
512 M Requa, ‘Considering Just-World Thinking in Counter-Terrorism Cases: Miscarriages of Justice in Northern Ireland’ Harvard Human Rights Journal [2014] 27, 45 513 Northern Ireland (Emergency Provisions) Act 1973, Northern Ireland (Temporary Provisions) Act 1972, Northern Ireland (Emergency Provisions) Act 1978, Prevention of Terrorism (Temporary Provisions) Act 1989 514 J Jackson and S Doran, Judge Without Jury: Diplock Trials in the Adversarial System (1995, Clarendon) p19; see also P Hillyard, ‘Political and Social Dimensions of Emergency Law in Northern Ireland’, in A Jennings (ed) Justice Under Fire: The Abuse Of Civil Liberties In Northern Ireland (1990, Pluto Press) p191, p194–96 515 C Ryder, The RUC 1922–1997: A Force under Fire (1997, Mandarin) p15–16 516 M Requa, ‘Considering Just-World Thinking in Counter-Terrorism Cases: Miscarriages of Justice in Northern Ireland’ Harvard Human Rights Journal [2014] 31 517 Ibid., 45 518 H Quirk, ‘Don’t Mention the War’ Modern Law Review [2013] 76(6), 971
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This net-widening risks unsafe convictions in a similar respect to the HSA policy-changes, as charted in the preceding part of this Chapter. It also works to maintain injustices for those attempting to appeal. The very difficulties faced by the Government in bringing prosecutions used to justify the TEPs, such as difficulty in collecting forensic material and the reluctance of witnesses to cooperate, meant that many of the usual sources of evidence on which appeals can be launched did not exist. As Quirk points out, ‘it was made easier for the State to achieve these convictions, but there is less evidence on which to found an appeal - yet the appellate threshold remains the same, thus excluding an unknowable number from the legal process’.519
HSA convictions comparably present poor eligibility for review. Difficulties at the time of prosecution (for example, faulty forensic evidence collection or un-cooperative witnesses) can mean that sources of fresh evidence for appeal do not exist. There is little prospect of persuading the Court of Appeal to grant leave to appeal where cases come down to who the jury believed, and any appeal on a point of fresh legal argument is impossible if the principles used to convict are deemed to be lawful. At CCRC stage, defence solicitor Mark Newby states that the CCRC is ill-equipped to refer HSA cases, due to its tendency to seek to refer on forensic ‘quick hits’ to meet the ‘real possibility’ test (covered in Chapter One). These would be, for example, finding supporting expert opinion or finding experts to challenge other expert opinion, statements or examinations.520 HSA cases lacking forensic evidence (as most do) are clearly disadvantaged.
If convictions have been obtained under these different rules, then the existing post-conviction review process could well be compromised in its ability to rectify errors that result. Although the Northern Ireland Court of Appeal (‘NICA’) quashed several Northern Ireland conflict cases after CCRC referral, its display of willingness to revisit its old decisions and accept a wide range of reasons rather than just technical or legal arguments came in peacetime, when it had long been accepted that wrongdoings were administered by the State.521 Bold, generous interpretations may be suitable for a post-conflict restoration of justice,522 but in relation to HSA cases where the crime is considered so heinous and innocence is seldom believed due to the ‘no smoke’ prejudice, such liberalness is not expected. Unlike the post-conflict Northern Ireland cases, the current justice system is still firmly within a HSA risk-averse culture, given the prevalent and compelling moral imperative to not ‘let down another victim’ or let a possible sex offender go free (as laid out in Chapter Three).
Appellate court recognition of the political context in previous justice system errors is particularly important because criminal appeals are where norms are made explicit. Judgments demonstrate what
519 Ibid., 969 520 M Newby, ‘Historical Abuse Cases: Why They Expose the Inadequacy of the Real Possibility Test’ in M Naughton (ed) The Criminal Cases Review Commission: Hope for the Innocent? (2009, Palgrave MacMillan) p103 521 H Quirk, ‘Don’t Mention the War’ Modern Law Review [2013] 76(6), 965 522 For example, the NICA in its generosity when quashing many convictions over-compensating through guilt for the unfair policies that the convictions resulted from, without having to specify fault of the criminal justice system and its actors.
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the justice system deems to be appropriate conduct and the fundamental principles of applied law.523 Although it is primarily a court’s role to consider the safety of the conviction before it (rather than draw conclusions about contextual factors), Quirk argues that the court does have the authority to acknowledge systemic errors. Moreover, its failure to do so is a missed opportunity to prevent injustices.524 Yet, the NICA judgments noticeably avoided blaming police or lawyers’ conduct, or trial judges’ decisions that led to errors, and further ignored the effects of the conflict in the causation of the convictions’ unsafety. It examined appeals ‘in purely evidential terms, making no reference to the… political situation in which these convictions occurred and were upheld’.525 For HSA appeals, it also seems likely that judgments overturning convictions would focus on legalistic, technical arguments, with no preparedness to recognise systemic contributions.
Quirk argued overall that the current appeals system is unsatisfactory in relation to exposing injustice in the Northern Ireland cases, because of failures to account for the effects of the conflict on the appeal process at the time these provisions were operational.526 This raises questions as to the extent that the post-conviction review system is independent and capable of challenging the status quo where it causes injustice. By failing to account for the context of the conflict and the problematic policies leading to the injustice, the CCRC and appeal courts may not be best placed to expose and address wrongful convictions involving systemic contributions.527 This situation is argued to be comparable to HSA cases, except that instead of potential systemic injustice pertaining to a specific statutory instrument, it is argued to stem from several pieces of legislation working collectively. As a bureaucratic and legalistic casework body embedded within the justice system, the CCRC may be too constrained to tackle the possibility that rules and procedures of the justice system can collectively and indirectly cause injustice.
Chapter Summary
As previously noted, England and Wales’ criminal justice system was founded on the principle that it is preferable that the guilty go free than for the innocent to be convicted. The accused must be held to be innocent until proven guilty, and the burden of proof lies with the person making the accusation. The threshold for conviction in criminal cases is also set high – if the decision-maker believes that the probability of guilt is less than ‘beyond reasonable doubt’, they must acquit. Despite the existence of safeguards (such as the CCRC) providing checks against the risk of injustice, it is argued that these principles may no longer be consistently upheld for those accused of HSA.
There have been a large number of policy and legislative developments since the 1990s seeking to
523 H Quirk, ‘Don’t Mention the War’ Modern Law Review [2013] 76(6), 952 citing H Packer, ‘The Limits of Criminal Sanction’ (1968, Stanford University Press) p232 524 Ibid., at 974 525 Ibid., at 952 526 Ibid., at 971 527 Ibid., at 953
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assist the prosecution of sexual offences. Some of these policy changes came in the wake of prolific events, leading to a shift in public opinion regarding the prevalence of sexual abuse and demands for a better system with tighter controls over crime. Others were borne within the context of managerialism and the rising recognition of victims in the justice system. Victims were reconceptualised as ‘customers’ of the justice system, and successive political parties set out to ‘rebalance’ it in their favour by increasing rights and benefits at the cost of decreased safeguards for suspects. Measures introduced to facilitate sexual offence convictions include (amongst many), the removal of a mandatory warning against uncorroborated sexual offence testimony, the broadening of admissible similar fact evidence and subsequent ‘bad character’ evidence (or propensity towards it), the move away from arguments that heavily delayed reporting of an offence could mean that a subsequent trial was an abuse of process, and the introduction of 'course of conduct’ counts for multiple unspecified incidents alleged.
Taken individually, these changes each seek to provide better support and access to justice for sexual abuse victims. However, their collective effect gives prosecutors a ‘step up the ladder’ towards meeting the evidential threshold required for conviction. They have had a ‘net-widening’ effect, compromising ‘due process’ safeguards of those accused. The risk of wrongful conviction was argued to increase where the likelihood of prosecuting and convicting those guilty of HSA increases, so does the risk of convicting some who are innocent in the absence of safeguards. This situation effectively creates a logic of different rules under which HSA convictions are sought. This is analogous to TEPs brought in to expedite convictions for Northern Ireland terrorism offences, formed within a deeply politicised justice culture, hyper-responsive to public and media demand.
This logic of ‘different rules’ has implications for independent and adequate appeal possibilities. Not only is there less available evidence on which to found an appeal, but the appellate threshold remains the same despite the widened goalposts used to convict. Those convicted of HSA become a special ‘exceptional’ category for whom the ‘real possibility’ test is somewhat unsuited. Being accused of something a long time ago for which witnesses and documentation are no longer available, convictions will often come down to testimonial evidence and whom the jury believes.
In terms of post-conviction review, the CCRC may be compromised in their ability to identify or rectify errors resulting from this situation. It is therefore arguable and indeed likely that decisions will lack acknowledgement of systemic contributions to injustice, focusing solely on the case facts at hand. The next chapter seeks evidence for this assertion by analysing HSA convictions referred back to the appeal courts by the CCRC.
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CHAPTER FOUR: Analysis of CCRC HSA case referrals
Introduction
The thesis has so far described the difficulties inherent in HSA cases, and the raft of policy changes seeking to secure ‘improved’ sexual offence arrest, prosecution and conviction rates. These developed alongside a cultural shift towards explicit recognition of victim vulnerability, and enhanced protections for complainants (as part of a flawed notion of ‘rebalancing’ justice system rights). The measures were argued to collectively widen goalposts to improve conviction rates, effectively creating ‘different rules’ for those accused of HSA and increasing the risk of error. It was argued that those wrongly convicted of HSA face unique difficulties on appeal, in terms of poor availability of exculpatory evidence making the ‘real possibility’ test almost insurmountable.
Having reviewed the literature on how wrongful HSA convictions may be occurring and how they might be identified, the argument was made that the CCRC is not well-positioned to be able to identify them, as it was designed and developed in an era before the huge increase in HSA cases, the ‘moral panic’ surrounding them, and many of the legal changes brought in to facilitate convictions. If different rules have been created to obtain convictions through prejudicial developments within the justice system, the CCRC’s position as a watchdog embedded within that system may prevent it from adequately identifying and challenging consequentially unsafe convictions they have facilitated.
The chapter now considers whether this process can adequately identify possible unsafe HSA convictions, or whether other models of post-conviction investigation would better support such cases. It provides what could be termed a theoretical systemic review, assessing the strengths and weaknesses of each model for contested HSA convictions and the issues they present, with reference to the investigating organisations’ casework and associated theoretical underpinning.
An analysis of all referred HSA judgment has not yet been carried out. Without an analysis of every referred case to identify the factors that the referral turned on, any conclusions about what is required for an unsafe HSA conviction to be overturned and which investigative organisation is best placed to do this are purely theoretical. Taking the standpoint that assertions from the existing research literature should be tested against evidence from actual cases, every HSA conviction the CCRC referred back to the appeal courts (up to April 2019)528 was reviewed. This was in order to determine firstly, which of the literature-based assertions are evident in the convictions that have been identified as potentially unsafe, and secondly, what investigative steps were necessary in persuading the Court
528 Using the latest statistics publicly available from the most recent CCRC annual report, at the time of thesis submission.
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to reconsider the safety of these cases.
Part 1: Data collection of alleged unsafe HSA convictions
Every HSA case referred back to the appeal courts by the CCRC was analysed (up to April 2019). These are set out in Table 1 of the Appendix. The CCRC publishes each case referred in its annual reports and on its website, as well as the outcome of referrals heard by the appeal courts that year. However, most sexual offence cases are anonymised, and the CCRC does not demarcate which convictions were for historical offences. Thus, the cases to be analysed were collected by finding the judgments for every sexual offence referral in the CCRC annual reports and case library listed on BAILII, Westlaw and LexisNexis, through searches for the case name and date where available.529
Each case database was then searched for the remaining anonymised referrals by using Boolean search terms such as “criminal cases review commission reference OR referral” combined with terms from the alleged sexual offences (“incest OR indecent OR indecency OR sexual OR assault OR rape OR buggery”). This search was performed on each of the three databases named and the results were cross-checked. The cases that these searches revealed were recorded into a spreadsheet,530 and the ‘historical’ cases were identified by reading each judgment to work out which offences were alleged to have occurred one year or more before the date of arrest or conviction (a definition in line with common police force categorisation outlined in Chapter Two). For the remaining six cases where a judgment could not be found, a Freedom of Information request was sent to the CCRC and Court of Appeal to enquire when the offences were said to have occurred, from case records held there. From this it was possible to work out whether to classify them as historical and include them or not.
Data collection limitations: As with any dataset there are some limitations. Firstly, as every referral was made through the CCRC, it is also not clear from the available data which cases had pro bono project or campaigner involvement. Secondly, individual case data are drawn from appeal court judgments, which set out why referrals were subsequently quashed or upheld by the Court. Appeal courts may accept or reject certain points made within a referral, and the CCRC does not ‘bring the case’ in the capacity of legal counsel, so further arguments may have been made before the court. Therefore, not every single point on which the case was referred is identifiable. This information is contained in the CCRC’s Statement of Reasons, but these documents are only provided to applicants and their legal representatives, and not made public (unless an applicant chooses to do so). Without sight of this it is not possible to determine every CCRC investigation step or reason for referring the case, which precludes any full empirical analysis. However, many of the referral points are clearly identifiable in
529 In terms of offences counted as sexual abuse, human trafficking was excluded from the dataset as it is not a direct sexual offence as covered by the general understanding of sexual abuse, as discussed in earlier chapters. 530 A full table of all CCRC sexual offence referrals since its inception until April 2019 is on file with the author.
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the judgments - there is generally a large overlap of the points on which cases are referred, and the reasons for referrals being accepted (where convictions have been quashed or part-quashed).531 Nonetheless, the limitation should be noted that the findings cannot be taken as wholly representative of every investigative step the CCRC has taken, or each ground for referral it has made.
Thirdly, although the sample consists of every HSA conviction referred back to the Court, the findings cannot be generalised to all appeals against HSA convictions. The research was limited to CCRC referrals, thus excludes appeal judgments prior to this ‘last resort’ stage. Most HSA convictions are decided directly by the appeal courts before reaching the CCRC, which might have different trends and risk factors at stake. By the same token, the sample is not representative of all unsafe HSA convictions, as it excludes cases which have not yet appealed, those which have appealed and been overturned (or rejected) before CCRC involvement, or applied but been rejected by the CCRC.
In addition, as non-referrals were not included in the study, there is insufficient data to calculate what proportion of CCRC (i) applications or (ii) investigations HSA cases represent in total. Data was not collected on HSA applications rejected by the CCRC. These are not publicly available, and a detailed review would need to be conducted at the CCRC. Although beyond the remit of this research project, a research proposal to compare the findings of this study to non-referred HSA cases is currently being drafted by the author. A comparison between the data presented in this study and an analysis of non- referred HSA CCRC cases could offer much better-evidenced data in terms of the investigative steps and case features that correlated with likelihood of case referral or rejection.
Further limitations that became clear after case analysis are discussed in Chapter Five.
Part 2: Which literature-based predictions were identified in the referred cases?
The previous chapters set out the possibility that criminal justice measures seeking to increase HSA prosecutions have the collective effect of risking unsafe convictions. The reasons for this are assessed in turn, in relation to their presence or absence in each of the HSA convictions referred for appeal.532 Case and/or applicant names are kept exactly as they are referred to in CCRC documents. In some places this is a full name, in others an initial. A full list of cases (some of which pertain to multiple applicants) along with the judgment citations can be found in Appendix A.533
HSA cases as a significant category of wrongful conviction Chapters Two and Three outlined HSA literature and policy developments that indicated that the risk of error in these cases is high. Professor Michael Zander QC warned that ‘trials for historical sex
531 Rejected CCRC applications were excluded from the data because the research focuses on factors contributing to referral. 532 Without sight of the CCRC’s Statement of Reasons (which are not made publicly available) it is not possible to determine every reason a case is referred on, precluding full analysis of all referral points (though most are identifiable in the judgments). 533 Some ‘linked’ cases involve more than one applicant and some judgments pertain to more than one applicant case. Further, CCRC codenames for applicants do not always match to the applicant’s name as stated in the relevant judgment.
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abuse cases are perhaps the category of case in which the jury is most likely to get it wrong’,534 and former CCRC Chair Professor Graham Zellick (giving evidence to the 2003-2004 Home Affairs Select Committee) argued that HSA ‘presents possibly the greatest challenge to the criminal justice system at the present time’.535 The appeal courts too have noted that, ‘the increased flow of such cases has rightly been a cause for concern to prosecuting authorities, practitioners, judges, and juries because of the obvious risk of injustice where a defendant is confronted by an allegation so long after the event that he is unable to effectively challenge what may be a detailed and circumstantial, but nonetheless false, accusation’.536 Consequently, the thesis sought to ask whether there is case-based evidence indicating that HSA cases represent a significant category of unsafe conviction.
It could be expected that HSA cases make up a comparatively high percentage of CCRC referrals proportionate to the high number of applications for sexual offences it receives, especially after the changes made to the justice system to increase sexual offence convictions. Conversely, the percentage could be low given the paucity of evidence in such cases, meaning that those convicted would struggle to find grounds to have their cases investigated and referred within the constraints of the ‘real possibility’ test threshold.
In fact, the proportion of HSA convictions (i) referred and (ii) overturned (i.e. quashed or part- quashed) is in line with CCRC referral averages. Since starting work in April 1997 up to April 2019 the CCRC had referred 664 cases, all but 10 of which had been heard.537 This represents an average referral rate of 2.75% of the total number of completed cases. Of the total cases referred, 439 appeals were allowed and 202 dismissed.538 127 (19%) of these referrals were sexual offences. Of these, 84 (66% of those referred) were quashed or partly quashed and 39 (30% of those referred) upheld. These proportions are in line with the 67% of CCRC referrals that are quashed across all offence types.
The figures since the CCRC started its casework up to 1 April 2019 show that a total of 24,887 applications had been received.539 Of those, 24,078 cases had been completed while 656 were under review and 152 were awaiting review. The difference between the number of cases referred and the number of appeal outcomes is accounted for by cases where appeals have been heard and judgment is awaited, by referred cases awaiting appeal and by referred cases where appellants abandoned their appeals. Since starting CCRC referred average rate of 33 cases a year; some 67% of the resulting appeals have been successful. The CCRC long-term referral rate is 2.9%.540
534 M Zander, ‘When Juries Find Innocent People Guilty’ in R Burnett (ed) Wrongful Allegations of Sexual and Child Abuse (2016, OUP) p215 535 Home Affairs Select Committee, Oral evidence: The Work of The Criminal Cases Review Commission (HC289-1 2004) Q75 536 R v Graham W [1999] 2 Cr App. R 201, 206 537 Criminal Cases Review Commission, Annual Report and Accounts 2018/19 (HC2438, 2019) p10, p16 538 Criminal Cases Review Commission Case Statistics
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Chart 1: CCRC referral proportions and outcomes (all offences, up to April 2019)
Chart 2: CCRC referral proportions and outcomes (sexual offences, up to April 2019)
Focusing on appeals against conviction (not just the sentence), 105 sexual offence convictions have been referred, which is 19% of the 555 total convictions referred by the CCRC up to April 2019. 46 of these sexual offence convictions can be categorised as ‘historical’ if the offences were said to have occurred over a year prior to criminal proceedings being brought (as per the categorisation discussed in Chapter 2). This means that HSA referrals account for 44% of all sexual offence referrals, and 8%
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of all referred convictions.541 Of the 46 referred HSA convictions, 28 (61%) were quashed, 3 (7%) were part-quashed, 14 (30%) were upheld and 1 judgment was still pending. These percentages also reflect the overall referral outcome proportions above.
Chart 3: CCRC referral proportions and outcomes (historical sexual offences, up to April 2019)
The statistics indicate that the CCRC is not referring this category of case at a below average rate. Without data on the number of HSA convictions rejected by the CCRC or those overturned before this stage, and a comparator figure of overall HSA conviction rates, the picture is incomplete. It could be argued that if HSA cases were near-impossible to refer as suggested in literature, the figure would be much lower. Similarly, if they were so unlikely to meet the threshold to be overturned, there would be very few quashed, contrary to the above findings.
Reasons for the proportion to be higher than expected may be that sexual offences make up the second largest category of CCRC applications (at 25%).542 The classification of sexual offences into the sub-category of ‘historical abuse’ can be expected to have a correspondingly high proportion. Moreover, all the referrals went through the CCRC, which sends cases back to the appeal courts on the basis of possible unsafe convictions, which encompasses more referable cases than a strict ‘innocence’ criterion would.
It could equally be true that the number of unsafe HSA convictions is high, and that this is not reflected in the referred convictions, as these cases have either not applied to the CCRC (having been overturned on appeal or not been granted appeal), or have applied and been rejected due to the specific disadvantages set out in earlier chapters. The number of CCRC referrals is not indicative of
541 The number of CCRC conviction referrals up to April 2019 is not published, as annual reports only record numbers of case referrals (counting conviction and sentence combined). This limits comparisons drawn with HSA conviction referrals. 542 CCRC administrative data records for cases between 2005-2014; see also L Elks, Righting Miscarriages of Justice? Ten Years of the Criminal Cases Review Commission (2008, JUSTICE) p218. These sources record sexual offences as 18% of all CCRC referrals, which is calculated at 19% as of April 2019 in this study.
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how many cases it investigates, and without data on the total number of HSA convictions, CCRC applications and rejections, the picture of non-referred potentially unsafe HSA convictions is incomplete.
Only 2 of the 46 judgments categorised as HSA alluded to the applicants’ likely innocence. This finding underlines the reason that these cases are referred to as ‘unsafe’ in this thesis (as opposed to ‘wrongful convictions’ or ‘miscarriages of justice’). Although academic literature discusses ‘wrongful convictions’ and ‘miscarriages of justice’, which can be interpreted as synonymous with those convicted being innocent, this is often not possible to establish. It is also not reflective of the prevalence (recorded, reported and statistically predicted) of these cases.
In Barker, the first case where the applicant’s innocence is alluded to, both complainants retracted their allegations. It was found that they were encouraged to make them by an adult in a convent where they were re-housed, who had also prompted other children to make similar uncorroborated allegations of abuse. Once referred, the medical evidence relied on by the prosecution was subsequently shown to be incapable of bearing the evidential weight which it had been afforded. A gynaecological examination showed that the female complainant was still a virgin, and the evidence suggesting buggery in the male complainant has since been discredited. The reference went uncontested by the CPS, and the Court noted that there was ‘nothing to support original allegations’, quashing the convictions ‘knowing that unhappily Mr Barker has had to suffer the humiliation and everything else that goes with it… those are years he cannot have back’.543
In the second of these cases, ARM, the appellant had seen a report that the stepfather of the complainants had himself been convicted of sexual offences against them. The CCRC found that these offences had happened during the same timeframe and bore a striking resemblance to the allegations made against the appellant. Though the Court did not go as far as in Barker to indicate innocence, it stated in a very brief judgment that the conviction would be quashed ‘with no need for detail’, that the matter was ‘disturbing’, and that the Crown ‘would not invite this court to even consider a retrial’.544 These are the only two appeals in which the appellants’ innocence is indicated to be likely.
In stark contrast to this, 15 of the 28 quashed cases were quashed only on legal technicalities, which the judgments make explicit. In 7 applicants’ cases, the Court expresses sympathy with the complainant, stating that the new evidence ‘falls far short of showing that the complainant was not abused’ (OS, CS, H and G) and that ‘no criticism of the complainant [or their credibility] was to be implied’ (Mr F, N, AF). In AF it also goes as far as to reiterate regret that the complainant had had no opportunity to intervene or give his side of the story.545 Moreover, in 7 of the quashed cases the Court indicated the likelihood of the applicants’ involvement due to their proximity to the alleged offence.546 It
543 R v David Barker [2006] EWCA Crim 3249 544 R v ARM [2003] EWCA Crim 281 at 5 and 7 545 R v F (Andrew) [2009] EWCA Crim 2909 at 18-19 546 R v CS & Anor [2001] EWCA Crim 339, R v (Allen Arthur) S [2010] EWCA Crim 2630, R v Frost-Smith & Ors [2003] EWCA Crim 3435, R v Aston [2010] EWCA Crim 3067, R v PF [2009] EWCA Crim 1086, R v P (PSP) [2001] EWCA Crim 2786
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states that for both L and Mr F, ‘much in the case would make the convictions unsurprising regardless of the medical evidence’.547 In L the Court also noted cross‑corroboration between complainants, and no clear motive for false accusations, as well as evidence that the complainants were reluctant to be left alone with the appellant (L). For OS and CS it went as far as to conclude that the new evidence supports the conclusion that the accuser had been abused, aided and abetted by the appellants.548
In 4 further quashed referrals, where one complainant’s credibility was damaged, the Court expressed reluctance at quashing convictions relating to separate complainants. The Court highlighted that no new material justified quashing the convictions relating to other complainants (where there was an indication of the jury drawing improper inferences or incorrectly cross-corroborating when considering a separate count), but that it had to be done according to correct procedure.549 For a further 6 applicants, the Court expresses that a retrial is desirable ‘in the overwhelming interests of justice’.550
The clear finding is that HSA referrals are overwhelmingly not underpinned by likely innocence. When added to the 13 upheld convictions and 3 part-quashed, the proportion of ‘likely innocent’551 HSA appellants from the 46 referrals is, at its greatest 14 (30%), but at its lowest, 2 (4%). Likely (or partially) guilty appellants would consequently make up between 69-96% of the applicants referred by the CCRC. Although the CCRC and Court of Appeal consider the safety of a conviction (and explicitly not the likelihood of innocence or guilt),552 some judgments give clear signals as evidenced above. Though these – and the proportions calculated above - cannot be said to be affirmative, their indication should not be ignored.
In a large proportion of the referred cases, abuse was concluded to have occurred, but there was confusion as to the extent of who was directly involved, or where it had not been realised until much later on that what had happened was a sexual offence. This holds true to the literature on child sexual abuse, which details that in such cases there is often a sliding scale of occurrences where the parties involved may not be sure exactly what happened or how far it constituted offending.553 Thus, it is unhelpful to classify the sample into the ‘wholly innocent/guilty’ binary, because from a spectrum of inappropriate behaviour, the extent of criminality is uncertain.
This finding could be limited by the possibility that HSA cases still may represent a large category of unsafe conviction, but that this population have not applied, been accepted for investigation, or been referred by the CCRC. HSA convictions may not have been referred due to the difficulties in re- investigating these cases due to lost evidence, faded memories, difficult legal thresholds, or poor
547 R v Aston [2010] EWCA Crim 3067; R v F (Andrew) [2009] EWCA Crim 2909 548 R v CS & Anor [2001] EWCA Crim 339 549 R v Siddall & Anor [2006] EWCA Crim 1353 at 40, R v S [2012] EWCA Crim 1433 (in which three applicants referred to as ‘R’, ‘C’ and ‘B’ (but CCRC coded ‘U’ ‘X’ and ‘V’,) were heard together), R v S (T) [2012] EWCA Crim 3118 550 R v S (T) [2012] EWCA Crim 3118, R v JH [2005] EWCA Crim 1828 (two linked cases, ‘H’ and ‘G’), R v Berry (Brian) [2013] EWCA Crim 1389, R v RF [2002] EWCA Crim 633, R v Frost-Smith & Ors [2003] EWCA Crim 3435 551 i.e., referrals not quashed solely on legal technicalities; where inculpatory evidence has been discredited or neutralised, or there is some new exculpatory evidence, and where the Court has not alluded to the likely guilt of the appellant, or the likely veracity of the complainant. 552 R v Pendleton [2001] UKHL 66 553 HC Deb 30 June 2016, vol 773, cols 1672–1701
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campaigner/innocence project resources as outlined earlier in this thesis. However, the fact that those convicted are encouraged to apply to the CCRC (for example through its Easy Read form, prison newspaper adverts, outreach work and proactive trawls for potential wrongful convictions), coupled with the fact that those investigated appear to have been referred on a liberal understanding of the issues, indicates that this scenario would be unlikely.
Police trawling for corroborating accounts Chapter Two discussed sources highlighting police impropriety and trawling (or ‘dip sampling’) as a significant risk factor in unsafe HSA convictions. When investigating historical institutional abuse (‘HIA’) cases, police were found to have ‘advertised’ for other possible victims within residential care to build corroborating evidence. If they did not implement perfectly the training on interviewing best practice, police investigation risks asking leading questions and encouraging memory contamination or incorrect statements, prompting false or mistaken allegations.554 Much has been written about police advertising for possible victims to come forward, through trawling and ‘flypaper’ tactics used extensively in Operations Yewtree, Midland and Fairbank (amongst others).
Despite this, trawling (or police misconduct in general) was not identified as a ground for referral in any of the cases.555 Only one judgment (pertaining to two applicants) registered concern with this policing strategy.556 Institutional abuse cases in general were the smallest category of referred HSA case. The vast majority of the alleged abuse was in an intra-familial context (32 out of 46 applicants), including foster and step-families. In such cases, other possible victims and witnesses are generally easily identifiable without trawling. Of the rest, 7 applicants were babysitters or neighbours of the complainants, and only 5 were staff in residential or care homes.
Hoyle and Sato, in their larger-scale (but smaller sexual offence sample) study on CCRC decision- making, similarly found no evidence of CCRC HSA cases where trawling was a direct ground for referral.557 From this, an initial impression is formed that police trawls of the kind described in the literature are not widespread or problematic enough to be causing the wrongful convictions identified at this stage. Unsafe HSA convictions involving trawling could have been overturned at first appeal, never reaching the CCRC. Alternatively, they may have been screened out at the CCRC application stage if their application raised no feasible avenues for investigation.
However, Hoyle and Sato’s study found that this type of case is making its way to the CCRC. As of
554 S Poyser, A Nurse and B Milne, Miscarriages of Justice: Causes, Consequences and Remedies (2018, Policy Press) p59 555 Without sight of the CCRC’s Statement of Reasons (which are not made publicly available unless an applicant chooses to do so), it is not possible to determine every reason a case is referred on, precluding full empirical analysis of all referral points. Referral points are only evidenced when mentioned in the appeal court judgment, precluding full empirical analysis of all referral points (though they were very frequently discussed). 556 R v Siddall & Anor [2006] EWCA Crim 1353 557 C Hoyle and M Sato, Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission (2019, OUP) p158
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2015, it had received 47 HIA applications, of which only 6 were referred.558 It therefore seems more plausible that these figures result from many more cases where applicants raise trawling as a possible issue, but upon investigation the conduct has not amounted to a ‘referable’ extent. This assertion is supported by the CCRC’s position that evidence of trawling without any other challenges to the safety of a conviction will not constitute a referral point.559
Indeed, in the case where both applicants (Siddal and Brooke) were convicted following a large-scale trawling operation,560 this was not a referral issue. The consequent side-effects of possible collusion or cross-contamination in complainants’ testimonies were considered, but did not appear to drive the referral. Despite the Court noting there was no evidence of collusion between the three complainants at separate homes, and that ‘it would be surprising if three independent witnesses all gave evidence of a similar nature which was untrue’,561 the convictions of Siddall were quashed due to new evidence pointing to a tendency for false allegations and motivation for financial gain on behalf of one complainant only. Brooke, the other applicant, had his convictions quashed on the basis of a cumulative effect (whereby convictions relating to another complainant were quashed due to forensic developments). Though there was a clear avenue for investigation and referral in police trawling, this was eschewed by the CCRC in favour of other lines of argument more likely favoured at Court. Trawling appears not to be as likely a successful issue for referral as the literature indicates.
This does not mean that it has not, and could not, cause unsafe convictions. Hoyle and Sato argue that despite forming no referral grounds in their sample, trawling is nonetheless a pressing cause for concern. They found that the CCRC investigated allegations of police misconduct (raised in most HIA cases) in detail, reviewing police files and databases concerning the relevant operation, interviewing officers and comparing practice to police conduct guidelines. It also searched for possible contamination by checking if advertising had been used in any form to encourage would-be complainants to come forward.562 In two cases it found evidence of flawed investigation and issued criticism in its Statement of Reasons (SOR), but it did not amount to enough for a referral ground.563
Hoyle and Sato note the possibility that the CCRC may be making a tactical decision to avoid referring on grounds of police trawls (as suggested above).564 However, if the CCRC shied away from looking at police trawls as an issue for referral, it would be illogical to expend resources investigating it to this extent. The thesis argues that a more likely explanation would be that HSA cases involving trawling fail to be referred not because of political influence, but because they frequently feature
558 Ibid., p157. The discrepancy between the 6 they identified as referred and the 5 in the present study could be explained either by their definition of historical institutional abuse including physical (not sexual) abuse, and/or where they have included sentence only referrals, as opposed to convictions only, as studied in this research. 559 Statement of Reasons for case HIA4 (unpublished), discussed in C Hoyle and M Sato, Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission (2019, OUP) p159 560 Operation Clyde involved alleged abuse at 17 residential homes. 2,226 people were questioned, 42 arrested, 17 prosecuted and 3 convicted. 561 R v Siddall & Anor [2006] EWCA Crim 1353 562 C Hoyle and M Sato, Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission (2019, OUP) p160 563 Ibid., cases HIA11b, HIA12 in Hoyle and Sato’s sample. 564 Ibid., p158
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multiple complainants and multiple counts.
In Hoyle and Sato's sample of HIA cases, those referred correlated with cases with the fewest complainants and convictions.565 Where trawling and flypaper tactics are used, there is a likelihood of cases featuring several complainants, accusing a defendant of many counts. The more complainants there are, the more allegations there will be and the more likely it is that multiple convictions will result. This increases the difficulty of finding material that would make a conviction unsafe, and makes post-conviction investigation more resource-intensive.
This situation poses dual dangers for both models of post-conviction investigation. If investigators concentrate resources investigating trawling (as an issue often raised by applicants), there is a high risk it will not amount to a referable argument. Conversely, if they spend more time focusing on more statistically viable leads (such as complainant credibility), this not only avoids an issue of significant concern, but also weakens safeguards against such practices where they are not routinely scrutinised.
Multiple Complainants and ‘Similar Fact’ Evidence As outlined above, HSA cases frequently have multiple complaints, either due to trawling or flypaper techniques, or the context of sexual abuse (claimed or real) often being repeated. In all but one of the referred cases, defendants were convicted on multiple counts of progressive offences. This mirrors the findings from Hoyle and Sato’s sample of HIA cases, in which almost all were convicted of rape or buggery and indecent assault on several counts (as opposed to a singular offence).566
This generates a time-consuming post-conviction investigation, involving problems associated with the issue of corroboration. Where multiple complainants’ evidence describe similar facts, these are deemed corroborative. As Chapter Three stated, following DPP v P [1991], the threshold for complainants’ accounts to be ‘strikingly similar’ to be corroborative was lowered so they need only be similar,567 and judges may not warn the jury about statements without ‘hard’ evidence corroborating them. Several lawyers have pointed to the danger of this making an otherwise weak case look stronger, or that juries will overlook the reliability of each complainants’ testimony or the possibility of cross-contamination, assuming that if so many complainants say the same thing, they cannot all be lying.568 In conjunction with trawling as the practice used to obtain evidence of this type, the literature suggested that this would play a key part in unsafe HSA convictions.
565 Ibid., p157 566 C Hoyle and M Sato, Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission (2019, OUP) p157 567 DPP v P [1991] 93 Crim App R 267 568 Defence lawyers have described this practice as ‘a numbers game’ that creates a phantom shared narrative as each statement is seen to verify the others. A jury may not question the quality of each testimony or realise cross contamination was possible. See, for example, barrister Mark Barlow and solicitor advocate Mark Newby, ‘The Challenges of Historic Allegations – The Way Ahead’ (16 February 2009) Conference paper, reproduced at
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Multiple-complainant cases present a unique problem arising after re-investigation, when the CCRC must take a decision whether to refer. If post-conviction investigators find exculpatory evidence for one or more complainants but not all, they must choose whether to a) decline to refer the case given the lack of evidence suggesting some of the counts are unsafe (and unlikelihood of material change); b) refer the case only on the counts that could be unsafe; or c) refer the whole case arguing that there is a cumulative effect, whereby the possible unsafety of some counts has a bearing on the integrity of the whole case.
The CCRC navigates this situation by considering whether the outcome would be in the public interest, looking at the severity of the offence and sentence, and the impact of possible outcomes (such as an applicant remaining on the sex offenders’ register).569 This approach is informed by its disinterested position, where independent investigation is valued over referrals. It follows that, in contrast, interested and partisan investigators such as campaigners and lawyers would be more predisposed to refer in HSA cases in this situation, giving less weight to the prospects of success and the resource burden it costs the justice system by referring.
However, Hoyle and Sato express disquiet at several referrals the CCRC has used options b) and c) to make. In one, the CCRC found evidence suggesting four out of five complainants’ accounts could be compromised, but not the fifth. Thus, even if the Court quashed the convictions pertaining to the four in question, the applicant would remain convicted for the same offences in relation to the other complainants, just on fewer counts (rape and indecent assault, as opposed to rape, buggery and indecent assault). Despite the tangible benefit to the applicant being slight, it was referred. In a further case, the CCRC found evidence raising a real possibility that the convictions pertaining to three female complainants were unsafe, but nothing in relation to the fourth male complainant who was in a separate children’s home from the others. The CCRC referred convictions pertaining to the female complainants, then referred those relating to the fourth using the ‘cumulative effect’ argument. Though this shows inconsistent and imbalanced CCRC decision-making of the type just explained, it also demonstrates a liberal approach when deciding to refer.570
Recovered Memory Literature on false allegations and wrongful convictions in relation to HSA often warns of false and recovered memories.571 This could occur, for example, where those in therapy or counselling come to believe (or lead others to believe) that they were abused. In an effort not to risk a potential abuser evading justice, the ‘memories’ may be encouraged, and a case is built around them. This pattern, which Chapter Two traced across several decades and locations, has led to the growth of expertise on the signs of false allegations and unreliable memories.
569 C Hoyle and M Sato, Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission (2019, OUP) p162-3 570 Ibid., p164-6. Inconsistent HIA case decisions at the CCRC (as identified by Hoyle and Sato) are explained by variations in Case Review Managers’ decision-making, and the lack of clear formal policy guiding this. 571 See generally, W Petherick, ‘False Reports in Child Abuse and Neglect Cases’ Child Abuse and Neglect [2019] 10(16), 263- 287; J Davis, ‘Victim Narratives and Victim Selves: False Memory Syndrome and the Power of Accounts’ Social Problems [2005] 52(4) 529-48; B Tully, ‘The Evaluation of Retractions in Sexual Abuse Cases’ Child Abuse Review [2002] 11, 95
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In the referred convictions, though, this issue was rare. Expert evidence of unreliable early childhood memories recovered through counselling led to just one conviction being quashed (H). A linked conviction (G) was also quashed in this judgment, but not directly due to this expert evidence. In this case, the Court stated that the new evidence ‘fell far short’ of showing that the complainant was not abused, permitting the appeal only because it might have made a crucial difference.572 It then issued a warning about the introduction of ‘false memory’ expert evidence, stating that ‘such evidence will be relevant and admissible… only in those rare cases in which the child provides a description of very early events which appears to contain an unrealistic amount of detail [which] does not happen often’.573 Subsequent jurisprudence shows that expert evidence of this nature is now sceptically regarded.574 Therefore, post-conviction investigators would need to tread with caution if seeking expert evidence on this issue.
In this case, despite quashing the convictions, the Court displayed unreceptiveness to arguments relying on false memories, issuing a warning about expert evidence of this nature and expressing strong desire for a retrial. This shows a divergence between the ‘due process’ of justice according to legal rules, and the reality of suspected guilt. This concept is explored in Part 3 of this chapter.
Delay and missing documents In jurisdictions with no statute of limitations, the issue of substantial pre-trial delay compromising the defendant’s ability to receive a fair trial is central in literature on HSA cases. Yet, in the referrals, arguments that delay prejudiced the trial (and/or that the judge’s directions on this point were flawed) were noted in just 4 judgments. It is possible that the CCRC may have referred many more cases using this argument, only for the Court to reject them. However, the difficulty with locating exculpatory evidence in delayed prosecution cases itself would be a strong reason for a low number of referrals on this point. If evidence is not there for investigators to identify a possible unsafe conviction, it will not make it to the stage of being referred on the grounds of prejudice to the trial fairness caused by delay.
Though pre-trial applications to stay the proceedings were once common in HSA cases, these are not favourably received by the Court, which set out the opinion that the trial process provides the necessary protection for defendants.575 Thus, post-conviction caseworkers would need to establish that the judge gave inadequate directions as to the delay in the trial, or that evidence was incorrectly omitted (or admitted).
The length of delay between the alleged offence(s) and charge in the 4 referrals featuring this point were in Michael P between 15-24 years, in GW 14-17 years, in GG 20-24 years, and in Siddall 13-15 years for the first applicant, 14 years for the second. These delays were not exceptional compared to
572 R v JH [2005] EWCA Crim 1828 at 44-47 (emphasis added) 573 Ibid. 574 See R v Malcolm W [2006] EWCA Crim 1404, R v E [2009] EWCA Crim 1370 575 Through regulations governing evidence admissibility and judges’ directions regarding prejudice caused by delay. See, R v Siddall & Anor [2006] EWCA Crim 1353 at 40
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the other referrals. The time duration itself is not a critical part of the argument of trial unfairness, however. The defendant must be able to demonstrate how the delay caused a deficiency that would have prejudiced the trial.576 In each referral, it was argued that the judge had failed to adequately direct the jury as required given the delayed prosecution of sexual abuse.
Only the linked appeals in Siddall were allowed. There, the Court held that ‘a clear warning should have been given of the difficulties which the passage of time caused to the appellant in defending this case, particularly when his defence was a complete denial’.577 It referred to the standard directions suggested by the Judicial Studies Board at the time,578 and stated that the trial judge’s direction did not identify, still less stress, the prejudice which the defendant faced when challenging allegations made many years after the alleged event. However, it went on to state that convictions would not be rendered unsafe simply because of the legal developments in the way judges sum up cases to juries. Even where post-conviction caseworkers can identify a deficient direction, this alone would not render the convictions unsafe. Thus, applicants and their representatives (or other post-conviction caseworkers) must go further to overcome this hurdle.579
2 of the 3 rejected appeals (GW and Michael P, both 1999) had been referred on the authority of R v Percival (unreported, 19 June 1998). In this case, the trial judge’s directions as to how delayed prosecution could prejudice a trial were held to be deficient. In the two referrals, Percival was distinguished by the Court, which held that there was no material prejudice identified on the facts of these cases, and no set standard or benchmark of direction. Again, by reiterating that the appropriate direction depends on the facts of each case, the Court is setting requirements for post-conviction caseworkers to tailor each argument about deficient directions to the facts of a referral to show specific damage. By taking this approach, the Court is also protecting the judiciary against criticisms of inconsistency in the directions given.
In GG, the third rejected appeal raising delay as a referral issue, the CCRC focused upon the specifics of the appellant's case accordingly, citing a number of cases to illustrate understanding of the Court’s prior jurisprudence.580 It suggested that the delay of over 20 years between alleged offence and reporting meant that the appellant's defence could essentially be based only on his own assertions that he had not committed the offences. As such, the prosecution should have been stayed as an abuse of process (failing which, the judge ought to have given a more detailed direction as to the prejudicial effects of delay). This was met with an arguably harsh judgment. The Court held that the judge's directions could not properly be criticised, given the ample material in which the jury could
576 R v Telford Justices Ex p. Badhan [1991] 2 Q.B. 78; R v Great Yarmouth Magistrates Ex p. Thomas [1992] Crim. L.R. 116 577 R v Siddall & Anor [2006] EWCA Crim 1353 at 43 578 Ibid., at 42. The judge set out the following direction on delay; ‘You should make allowances for the fact that with the passage of time memories fade. Witnesses cannot be expected to remember with crystal clarity events which happened many years ago…. sometimes the passage of time plays tricks on memories. You should also make allowances for the fact that from the Defendant's point of view, the longer the time since an alleged incident, the more difficult it may be for him to answer it’. The Judicial Standards Board directions were subsequently strengthened. 579 Ibid., at 44 580 R v G [2005] EWCA Crim 1792 at 24. The cases distinguished were R v B [2003] EWCA Crim 319, R v Mansoor [2003] EWCA Crim 1280, R v Hooper [2003] EWCA Crim 2427 and R v Brizzalari [2004] EWCA Crim 310
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assess complainant credibility, and that the appellant could contest the allegations in several ways, not solely limited to mere denial.581 This further restricts the referral point of prejudice caused by delay, to circumstances in which applicants can only deny allegations. A case bearing these exact circumstances is difficult to envisage.
Soon after GG, the first-appeal case of R v Sheikh [2006] became a key authority in ‘delay/missing documents’ arguments.582 Similarly, 20 years had passed between alleged offence and trial, and documents that might have been probative were lost (such as annual leave records, preventing the defendant from rebutting allegations of abuse on a particular date). The Court held that the absence of these denied the defendant a fair trial. The judgment was cited as a safeguard against uncorroborated HSA allegations,583 and consequently, the CCRC referred two cases on the grounds that proceedings should have been stayed due to missing contemporaneous documents, which could have prejudiced the trial.
However, this argument failed both times. In Dent, the referral outlined that missing contemporaneous documents might have resolved whether an offence could have taken place during the specific timeframe alleged. However, the Court distinguished this from the precedent of Sheikh by asserting that the material presented ‘fell far short’ of being determinative.584 In MH, as in GG, the Court held that missing documents were ‘regrettable but by no means unique in a case of this sort’, and that ‘what light they may have cast on the issues in the case is entirely a matter of speculation’.585 Because trial counsel was able to challenge the complainant’s evidence, cross-examination was considered an effective enough tool in this circumstance. Discussing a further unsuccessful appeal referred on Sheikh, a CCRC caseworker stated that this issue was extremely tightly judged, and that the missing documents effectively must have been probative.586
The Court’s judgments on these issues show that referrals based on delay or lost documents are ‘barking up the wrong tree’ unless the case facts are such that the lost material is likely to be directly exculpatory. The implication of this for post-conviction case investigation is that a legally trained caseworker is needed to understand the nuances of this issue. Even where this is in place (for example at the CCRC, with its legal expertise and in-house research following appeal judgments), any post-conviction investigator unable to find evidence supporting this exacting requirement from the Court would struggle to argue this issue. The theoretical implications of the Court’s consciously narrowing jurisprudence on this are considered in Part 3 below.
False Allegations and Complainant Credibility As Chapter Two outlined, complainant credibility is an issue HSA cases commonly turn on. It follows
581 R v G [2005] EWCA Crim 1792 at 67-69 582 R v Sheikh [2006] EWCA Crim 2625 583 L Elks, Righting Miscarriages of Justice? Ten Years of the Criminal Cases Review Commission (2008, JUSTICE) p236 584 R v Dent [2014] EWCA Crim 457 at 47 585 R v MH [2008] EWCA Crim 2644 at 34 586 C Hoyle and M Sato, Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission (2019, OUP) p168
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that this would also be a key issue in post-conviction investigation. Post-conviction investigators seeking evidence of false or otherwise erroneous allegations would need to obtain evidence undermining the complainants’ credibility. Damaged complainant credibility does not, however, equate to the complainant making erroneous allegations, nor does it mean the defendant was not guilty. Complainants can be credible if mistaken but genuinely believing they are victims. Conversely, they may have significantly undermined credibility, but their claims are true. Even where complainant credibility is damaged, convictions referred on this point will not necessarily be unsafe.
Most CCRC referrals for sexual offences are either solely or partly based on discredited complainant credibility.587 It was also the most prevalent theme in HSA referrals (having been raised in 17 cases, alone or in combination with other factors).588 Within these 17 referrals, non-disclosure of evidence indicating prior false allegations or relevant sexual history featured in 8 referrals that were accepted. Evidence of post-trial false or exaggerated sexual abuse allegations was a factor in 5. Taken together with 5 further referrals where the complainant’s credibility was damaged in other respects, this issue was most fatal to the safety of convictions.
Pre-trial material discrediting complainants would either be previously known but not disclosed (in which case the ground for referral would be on the non-disclosure of it), or not previously known about. In the context of HSA cases this would typically be in social services files, school or institutional records, information from the Police National Computer or Police National Database (PNC/PND), medical records, statements from those close to the complainant, Criminal Injuries Compensation Authority (CICA) files, and information on civil actions against local authorities. These could provide information on previous or subsequent allegations and the similarities between them. They could also demonstrate untruthful character, discrepancies in accounts, the whereabouts of the complainant at certain times or dates, knowledge of and motivation for financial gain, and medical conditions or prescriptions that would have had a bearing on the claims (such as an intact hymen, a sexually transmitted infection or contraceptive use). These things would not necessarily mean the allegations in question are false, but they would represent warning signs and avenues for further investigation.
These avenues of investigation require considerable resources and legal expertise. The CCRC’s powers to obtain materials from public and private bodies and individuals make it far more appropriately placed to seek this information than individual investigators. As complainant credibility is such a key issue in sexual offence cases, these so-called ‘s17 (and 18a) checks’589 are often crucial to a referral. Post-conviction investigators carrying out these checks as routine are more likely to find
587 Ibid., p173. This finding mirrored Hoyle and Sato’s research on a sample of 27 CCRC referred sexual offences, in which damaged complainant credibility was also the most common reason. 588 Pretrial: R v DA [2000] EWCA Crim 100, R v P (PSP) [2001] EWCA Crim 2786, R v H [2002] EWCA Crim 1855, R v PO [2004] EWCA Crim 2336, R v Siddall & Anor [2006] EWCA Crim 1353, R v P [2010] EWCA Crim 2438, R v C [2010] EWCA Crim 2725. Posttrial: R v Frost-Smith & Ors [2003] EWCA Crim 3435, R v Carrington-Jones [2007] EWCA Crim 255, and R v S [2012] EWCA Crim 1433 (in which 3 applicants referred to as ‘R’, ‘C’ and ‘B’ (but CCRC coded ‘U’ ‘X’ and ‘V’,) had cases heard together, 2 of which were quashed.) 589 S17 and S18A Criminal Appeal Act 1995, as amended by the Criminal Cases Review Commission (Information) Act 2016
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evidence to refer on, so the CCRC’s model, as a co-ordinated organisation with internal protocols ensuring this practice, appears preferable.590
However, lawyers, campaigners and Innocence Projects – if believing in (or at least seeking to prove) their clients’ innocence - are still arguably motivated to ‘go the extra mile’ to discredit a complainant they believe to be untruthful. Acting on the advice of her client Liam Allan, barrister Julia Smart conducted an unpaid, late night in-depth analysis of undisclosed material to identify evidence of mobile phone messages sent between complainant and defendant, supporting the defence that the sexual intercourse had been consensual. Similarly, Danny Kay was able to overturn his conviction for rape after an inmate taught him a way of recovering deleted messages from a phone. He shared this knowledge with his sister and barrister, enabling them to discover important undisclosed material.591
This ‘partisan’ approach, as an individual pursuit of exculpatory evidence, contrasts with the CCRC’s bureaucratic case management, under which prescriptive, preliminary checks are carried out in many cases, but in-depth investigation in fewer. Whether complainant credibility checks in such cases are performed, and to what extent, is subject to the bureaucratic casework process. For example, under old internal guidance to perform credibility checks selectively, Hoyle and Sato found that the CCRC did not follow up the claims of an unrepresented applicant with prior criminal history that rape allegations against him were falsified.592 His application was rejected after three months’ review. Subsequently, his later legally-assisted reapplication presented evidence of a retraction, prompting the CCRC to carry out CICA checks on the complainant, finding inconsistencies which caused the conviction to be quashed.593 Hoyle and Sato conclude that the casework review hierarchy at the CCRC caused CRMs to omit credibility checks in several cases following advice from the screening Commissioner. However, where a reapplication is made or the case is flagged for reconsideration, and these checks are carried out, the case is often then referred.594
Post-trial evidence of false or erroneous allegations or other material discrediting complainants’ credibility generally consists of discrepancies in account in CICA or civil compensation claims, retractions, and exaggerated, falsified or inconsistent post-trial allegations. Applicants may not know of the existence of such evidence, or where it may lie. Thus, it would fall to post-conviction investigators to know where and what to look for.
The CCRC has extensive powers to summon documents and locate post-trial material (such as CICA and civil case files, the PNC and PND). However, these are not necessarily always useful. Hoyle and
590 Since 2006, though this changed in 2017. Yet, in their sample of sexual offence cases, Hoyle and Sato found that in all those not referred on this point in whole or in part, checks were still carried out. 591 Both barristers speaking at the National Training Conference on Investigating Miscarriages of Justice 2018. See also, The Independent, ‘Man cleared of rape due to Facebook message revealing his innocence after two years in prison’ (3 January 2018)
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Sato note that checks on CICA files for inconsistencies in the complainants’ accounts are now of little value, as the account given to CICA is not filled in from scratch by the complainant – it is copied from prior statements.595 In addition, from 2006, credibility checks were mandatory in sexual offence cases at the CCRC, but this provision was dialled back in 2017 to make such checks a possibility where ‘necessary and reasonable’ instead of routine.596 The existence of the s17 and s18a powers is not enough to ensure thorough post-conviction investigation within this organisation – it comes down to whether individual caseworkers feel able to invoke them. Thus, the decision (and inter-alia, casework thoroughness) is affected by internal guidance documents and organisational politics. On this point, erroneously convicted applicants may better reach appeal through partisan investigators (such as lawyers or campaigners) where, because of their closer proximity, they are more readily persuaded that unlikely and resource-intensive investigation avenues should be pursued.
Chapter One explained how the CCRC forecasts and then telescopically applies the Court’s reasoning when considering whether a case is referable (i.e., has a real possibility of success). Critics often point to the CCRC as being too atomistic in its thinking, being unable (or refusing) to consider case issues holistically, and following Court conservatism too closely, being unwilling to send borderline or challenging cases.597 However, it has referred several cases on doubts about complainants’ veracity (excluding retractions), despite the medical evidence supporting abuse. This shows a remarkably generous decision-making approach on behalf of both organisations. It also contradicts findings and arguments in a large amount of the literature that convictions are unlikely to be referred (let alone quashed) where compromised complainant credibility is only one of several elements that went together to result in a conviction. It should be noted however that since 2010, Hoyle and Sato record that the Court’s interpretative remit became stricter, which the CCRC took as a message to be wary when referring cases on victim credibility.598
Retractions Given the centrality of complainant credibility, and the paucity of other evidence, complainant retractions were predicted to carry considerable weight in the context of HSA cases. Retractions of previous evidence by complainants (and one eyewitness) formed a referral ground in 6 cases, but of these, only 3 convictions were quashed (one of which was on certain counts only).599
In David Barker (B), a girl complainant retracted her allegations against Barker. After this, the boy complainant was traced and retracted his account during an interview. The CCRC found that they had
595 Ibid., p173 596 Ibid., p172 597 M Naughton, ‘The Criminal Cases Review Commission: Innocence Versus Safety and the Integrity of the Criminal Justice System’ Criminal Law Quarterly [2012] 58(2) at 210; S Heaton, A critical evaluation of the utility of using innocence as a criterion in the post conviction process (PhD thesis, December 2013) p273 598 C Hoyle and M Sato, Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission (2019, OUP) p154-155 599 R v P (PSP) [2001] EWCA Crim 2786, R v H [2002] EWCA Crim 1855, R v PO [2004] EWCA Crim 2336, R v EM [2005] EWCA Crim 2683 (2 linked cases, CCRC reference ‘EMM’, quashed), R v David Barker [2006] EWCA Crim 3249 (quashed), R v S (T) [2012] EWCA Crim 3118 (quashed). A further 2 cases involved retractions from experts or witnesses but not on the question of abuse occurrence. It was also investigated in R (CCRC U) but the vacillation of this retraction was found to be credible thus it did not form a referral ground. R v S [2012] EWCA Crim 1433 in which 3 applicants’ cases, referred to as ‘R’, ‘C’ and ‘B’ (but CCRC coded ‘U’ ‘X’ and ‘V’,) were heard together.
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been encouraged to give the accounts by a woman running an organisation called the Old Convent, where the children had been taken shortly before the allegations were made. Investigations into the Old Convent showed the same woman had encouraged other children to make sexual abuse allegations, which later appeared to be unfounded. Discussed earlier, the judgment in this case heavily implies that the applicant was indeed innocent.600
In EMM, the applicant was the mother of children abused by their father (who pleaded guilty) and were subsequently removed by Social Services. The children wished to return to the family and claimed that social services had pressured them to make the abuse allegations, which were true of their father but not of their mother. The CCRC expressed concern at the retractions, which bore inconsistencies, but referred as the mother’s convictions were ‘based on the unsupported evidence of three children in a difficult, perhaps disturbed, environment’. The Court found the convictions unsafe but noted the ‘almost irreconcilable dilemma’ of adjudicating ‘whether, on the one hand, the retractions are true, or, on the other, the evidence that they gave when they were very much younger in 1991 was by contrast, as the jury found, true’.601
Independent investigators may see retractions as a smoking gun, even seeking them out in order to sway a case, but the complex family relationships and emotional strains typically at play in HSA cases mean that retractions are not clear-cut.602 Criminal barrister Matthew Scott, who has written frequently on HSA cases, recently argued that a first appeal judgment (R v SB [2019] EWCA Crim 565) was a ‘miscarriage of justice’ because the conviction was upheld despite a retraction (which the Court dismissed as not credible).603 However, his argument does not account for the extent of the circumstances the retraction was made in. As in 6 of the 7 HSA referrals featuring retractions, the initial accusation in SB was made in the context of a broken home, and the retraction offered little detailed explanation as to why the accusations were made. Against the backdrop of contested intra- familial abuse there are complex emotional ties, power dynamics attached to living arrangements, and manipulation from other family members at play. It requires careful investigation of the ties and motivations to investigate such cases further.
In P Peter, the Court warned the CCRC (who had interviewed the eyewitness wishing to retract her statement) that it was not credible, as she was under acute emotional strain, had been taken away from home, and was living with her mother who denied any abuse occurring. The eyewitness’s retraction was found to be ‘remarkably similar’ to letters her mother had written protesting the conviction, sent on the same day ‘by pure coincidence’ to authorities. The Court went as far as to state that the retraction had ‘all the hallmarks of an account which was created and not remembered’,
600 R v David Barker [2006] EWCA Crim 3249 601 R v EM [2005] EWCA Crim 2683 (2 linked cases, CCRC reference ‘EMM’) at 29 602 In R v Uddin and Ali [2014] EWCA Crim 2269 at 54, Fulford LJ noted that sexual offence complainants are ‘frequently damaged young people [who] can be difficult, emotional, contradictory, aggressive and on some occasions wholly uncommunicative’. 603 M Scott (Twitter) @Barristerblog (3 April 2019) ‘Single complainant. No corroboration. Counsellor involved. D convicted. 12yr sentence. Complainant then retracts, on oath. CA refuses to accept retraction. Conviction upheld. www.bailii.org/ew/cases/EWCA/Crim/2019/565.html’ accessed 12/04/20
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and that it was difficult to believe that the original account from both the complainant and the eyewitness were a concoction in such a short space of time, bearing in mind the extent to which it was maintained in subsequent statements and in evidence at trial.604
Similarly, in R, a complainant retracted her evidence in a letter to the appellant four years after the conviction. She was subsequently interviewed as part of the CCRC investigation and was adamant that her evidence at trial was true. She stated that her retraction had been due to family pressure. The CCRC concluded that this was true, and that her vacillation did not suggest she was any less truthful during the original police investigation. The retraction was discounted as a referral ground.
Despite the Court’s criticism of earlier CCRC referrals on retractions, its extensive powers enable case reviewers to build a bigger picture of the circumstances that retractions have been made in. It can also effectively follow up on why the retractions (and allegations) were made initially, as well as linked complainants who may also retract. Given that these retractions bore indications of being made under pressure, an acute awareness of the families or social nexus involved, and the ability to interview sensitively, would be strong assets in such cases. As such, ‘interested’ campaigners, lawyers and student projects could each be at a disadvantage here, either through being too well- known to certain parties (and thus not trusted by others), or not familiar at all.
New forensic, medical and expert evidence After discredited complainant credibility, the next most prevalent trend was referrals made chiefly on new medical evidence (15 referrals). This was also the most common reason for counts being quashed (in 13 referrals), the Court finding that the new evidence would likely have affected the jury’s deliberations had it been known at the time. Given the delays and paucity of evidence in HSA cases, and the difficulty of ascertaining physical signs of non-recent abuse, the number of referrals involving new medical evidence is unexpectedly high.
This evidence did not conclusively prove that any of the complainants had not been sexually abused in the manner described (save for one who was a virgin). It generally only went as far as to negate previous evidence, which had incorrectly been taken as a definitive sign that sexual activity had occurred. In this respect, it can be argued that the quashing of so many convictions on the basis that the updated standards of medical evidence used to prove sexual contact only ‘may’ have affected a jury’s view, is generous to complainants, as it gives them the benefit of the doubt on appeal.
Their convictions have been overturned on this basis despite the possibility that the jury at the time may well equally have found them guilty on the updated diagnostic tests (which was noted by both the Court and CCRC). If independent groups had been knowledgeable about changes in sexual abuse diagnoses and had had sight of the trial papers, they would have been able to obtain the new medical evidence required (such as doctors’ scientific opinion or reports on new testing methods). However,
604 R v P [2001] EWCA Crim 2786
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lacking the CCRC’s s17 power to obtain documents from public bodies (inter alia medical records), a specific enough argument may not be achievable for independent campaigners unless they had specialist knowledge of the area.
Procedural errors: summing up, indictments and changes in law The second most common referral point was improper legal procedure (such as incorrect judge’s directions and developed case law). Accepted as a ground in 10 referrals, it was also the second most common reason for convictions being quashed (6 referrals). The salient issue in these referrals was the evolving jurisprudence on delayed prosecutions of underage consensual intercourse. The applicants in these cases had been charged with indecent assault. This was in lieu of consensual intercourse with a person under 16 when reported after 12 months’ delay (the latter charge needed to have been reported within 12 months for this charge to apply, under the Sexual Offences Act 1956). The appeals cited R v J [2005],605 which confirmed that this practice was inappropriate. These convictions were quashed due to legal technicalities as opposed to indications of likely innocence – and in half of these cases the Court (either alone or quoting the CCRC) underlines this explicitly.
Part 3: A return to wider theoretical themes
CCRC deference to a conservative Court of Appeal Chapter One reviewed academic assertions and arguments querying whether the CCRC can truly exercise independent judgment as to which convictions may be unsafe, when it must apply the Court of Appeal’s criteria telescopically. The existing literature suggests that the CCRC is overly deferent to the Court, which in turn would be unreceptive towards HSA cases. This would forecast HSA referrals to have been made sparingly, conservatively, and seldom on ‘lurking doubt’.
Despite the Court of Appeal explicitly discouraging the referral of historical cases in R v Quinn [2004],606 the CCRC referred the most HSA convictions in the years that followed (6 in 2004, 4 in 2006, 5 in 2007). This was consistently higher than the usual HSA conviction referral rate of 1 or 2 per year. However, a partial explanation for the increased sustained numbers is that 11 of the applications were linked, 4 judgments pertained to 2 applicants each, and 1 pertained to 3. Due to a common nexus, the cases were referred together.607 A second notable increase in HSA referrals came after the publication of a 2008 report of the Royal College of Paediatrics and Child Health, ‘The Physical Signs of Child Sexual Abuse’. Following this, the report was cited in many subsequent cases as a ground for referral. The CCRC’s 2009-2010 Annual Report notes that sexual offences had become the largest
605 1 Cr App R 277 606 EWCA Crim 3026 (per Lord Justice Clarke) 607 R v CS & Anor [2001] EWCA Crim 339, R v Siddall & Anor [2006] EWCA Crim 1353 at 40, R v EM [2005] EWCA Crim 2683 (2 linked cases, CCRC reference ‘EMM’), R v JH [2005] EWCA Crim 1828 (2 linked cases, ‘H’ and ‘G’), R v S [2012] EWCA Crim 1433 (in which 3 applicants ‘R’, ‘C’ and ‘B’ (but CCRC coded ‘U’ ‘X’ and ‘V’,) had cases heard together).
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category of case referred.608
After these spikes, there was a significant drop in HSA referrals. Though the number of cases under review increased dramatically (particularly after the introduction of an ‘Easy Read’ form in 2012),609 only two HSA cases were referred between 2013 and 2018. Neither were quashed. These extremes tend to suggest that HSA referrals depend largely on a driving theme or common nexus inspiring a cluster of referrals.
A pattern in the CCRC referrals emerges, of what could either be termed ‘generosity’ or ‘risk-taking’. In as many as 10 of its 46 referred HSA cases, the judgments record CCRC commentary noting the improbability of the applicant’s innocence in the referral. Were internal CCRC documents included for analysis, it is arguable that this proportion of cases would be higher. In IW, R and L, the CCRC recognises that its referrals were based on an ‘artificial situation’, in terms of an alternative possible jury interpretation of an omitted judges’ direction in combination with discrepancies as to the date of the offence and the exact relation of the perpetrator within the family. In L, despite referring anyway, the CCRC states that even in the absence of the [subsequently disputed] medical evidence at trial, there would have remained a cogent case against the appellant. In D(TS), one complainant retracted her evidence but the other maintained it. The CCRC notes it uncovered no new evidence to undermine the second complainant's allegations in the referral but referred it on an improper jury direction. Further, in EMM and R(U), the CCRC expresses concern at the reliability of the complainants’ retractions. Although the CCRC states that each case turns on its own merits, it is arguable that these examples collectively show a tendency towards referring on a ‘benefit of the doubt’ basis. This in turn is affected by Court receptivity.
The reasons given for appeal outcomes show the Court adopting a similarly generous decision- making approach. Not only did it quash convictions due to procedural errors even where guilt was deemed probable, but also on the basis of ‘cumulative effect’, far more readily than was anticipated. In Siddall the Court noted that there was ‘no new material that would justify quashing the conviction alone’, that there had been ‘no evidence of collusion between complainants’, and that there existed a significant unlikelihood that independent witnesses would all make similar complaints.610 Yet, it begrudgingly allowed the appeals due to one witness’ damaged credibility and the jury's inability to reach a verdict in relation to another.
The Court even goes as far as to second-guess the jury reasoning that may have contributed to an unsafe conviction. In B(V), it states, ‘though a technically correct approach may be, ‘even if the conviction on Count 1 is unsafe, the balance of the convictions survives’ – this is to expect a purity of reasoning [from the jury] which experience teaches us would not be likely’.611 This is extremely liberal,
608 Criminal Cases Review Commission, Annual Report and Accounts 2009/10 (HC254, 2010) p24 609 The introduction of an Easy Read application form, in combination with other outreach measures, led to a 74% increase in the number of applications to the Commission from 933 in 2010/11 to 1625 in 2012/13. 610 R v Siddall & Anor [2006] EWCA Crim 1353 at 44 611 R v S [2012] EWCA Crim 1433
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given that the Court could have upheld the remaining conviction. Contrary to the expectation that the Court would not interfere with jury reasoning, the judgments show it repeatedly finding ways around this maxim.
Although HSA cases seem apt for the Court to apply the ‘lurking doubt’ principle, given the lack of hard evidence, clear recollection, and the old age of those accused, cases referred on this argument were neither expected nor prevalent. Only 1 judgment records it as a partial referral ground (though it could have been argued unsuccessfully in other cases, as the judgments do not record every referral reason in every case). In GG, the CCRC suggested ‘that the Court should exercise its residual power to hold that the conviction was unsafe because of what used to be a called a lurking doubt’.612 The Court rejected this argument, stating that it was relevant only in exceptional cases where the appellant can only deny the allegations with no other ability to defend themselves. The conviction was upheld on the basis that there were other means by which the appellant was able to challenge the complainant's credibility, after which the jury believed the complainant.
The Court upheld the vast majority of referred convictions for the reasons that the material offered is peripheral, the points fail to go to the heart of the issue, and do not have direct effect.613 So, the fact that the CCRC referred cases due to material not being wholly relevant, moreover that it attempted to use the lurking doubt argument in at least one referral, indicates a tendency for generosity (or risk- taking) in its HSA referrals.
Recognising systemic injustice and ‘just-world thinking’ Marny Requa published a study in 2014 on Northern Ireland Court of Appeal (NICA) decision-making in CCRC-referred terrorism cases. The NICA acknowledged abuses and procedural irregularities made in the counterterrorism conflict-era justice system, causing them to quash many convictions. Despite admitting these errors in individual cases, the NICA did not address the justness or otherwise of the laws and procedures in the past system.614 Requa argues that it, like other appellate courts, has been found to display unwillingness to interrogate lower court decisions due to their belief ‘that systemic abuses do not occur in the United Kingdom, or, rather, an unwillingness to publicly acknowledge and redress them’.615 Its faith in the past system (and its ability to do justice), Requa argues, is misplaced in the face of the number of convictions quashed, demonstrating compromised integrity and a hidden desire to limit the number of potential future referrals.616
612 R v G [2005] EWCA Crim 1792 at 26 613 In 9 of the referrals where convictions were upheld, it was held that the points raised did not go to the heart of the case. In 3, it was held that delay helped (not hindered) the applicant. In a further 3 it was held that the fresh evidence adduced was not credible. In a further 3 it was held that the fresh evidence adduced was not new, and in 1, it was held that the apparent retraction was not credible. 614 By demonstrating faith in earlier justice system processes decision making by police, prosecutors, and judges even when acknowledging irregularities; by accepting the approach taken by the courts to counterterrorism laws and procedures even when such approaches would not stand today; and by failing to assess conditions of detention when deciding whether confessions were properly admitted. 615 M Requa, ‘Considering Just-World Thinking in Counter-Terrorism Cases: Miscarriages of Justice in Northern Ireland' Harvard Human Rights Journal [2014] 27, 57 616 Ibid.,10
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The circumstances behind the convictions concerned were argued in Chapter Three to bear similarities to HSA cases, in terms of many elements coming together to form a set of ‘different rules’ through which the convictions were facilitated. In the terrorism-related offence cases, police and legislators prioritised interrogation in these investigations because of difficulties in obtaining other forms of evidence.617 Criminal procedure reforms implemented to deal with Northern Ireland terrorism cases and secure convictions created a distinct criminal process. This was marked by heavy reliance on elicited confessions, a low threshold for the admissibility of confessions, and delayed access to counsel.618 The evidentiary standard for admitting confessions was lower than in non-terrorism cases, and the lower standard reduced judicial scrutiny of the circumstances in which the evidence was obtained.619 In addition, the judiciary were not immune to the influence of government and media depictions of terrorists, or public discourses relating to the conflict.620 Where the case concerns a particularly egregious offence (such as terror attacks), police tunnel vision and prosecutorial zealousness to build a case against an identified suspect add to the risk that inconsistent or exculpatory evidence gets disregarded.621 So too could this occur in HSA cases, which bear similar circumstances involving media depictions of (accused, suspected or even wrongly portrayed) child abusers as hate-figures, meaning that those accused are already met with inherent suspicion due to societal attitudes towards this offence.622
Any comparable scepticism regarding the innocence of those accused (the ‘no smoke without fire’ adage), bites twice in the context of someone already convicted. Those reviewing HSA convictions may be reluctant to accept arguments as to their innocence, given the risk (and ethical consequences) of letting an abuser go free, and harming further victims. Hoyle and Sato note the effect of this upon the judiciary, through the example of the Court of Appeal rowing back from the precedent set by Sheikh (discussed earlier).623 When this occurred, the political ‘surround’ had changed from widespread assumptions that complainants were lying, to pressure to actively believe them; and from a fear of wrongful convictions to wrongful acquittals.624
The NICA judgments in the CCRC-referred terror offence cases were found to be consistent with the socio-psychological phenomenon of ‘just-world thinking’. This is a cognitive bias causing objective observers, motivated by a concern with justice and a need to believe the world is just, to believe that individuals ‘got what they deserved’.625 In application to criminal appeal decision-making, it translates into a tendency to uphold the (statutory and political) status quo, even to the point of upholding
617 C Ryder, The RUC 1922–1997: A Force under Fire (1997, Mandarin) p15–16 618 J Jackson and S Doran, Judge Without Jury: Diplock Trials in the Adversarial System (1995, Clarendon) 619 Northern Ireland (Emergency Provisions) Act 1973; Northern Ireland (Emergency Provisions) Act 1978 620 L Baum, Judges And Their Audiences: A Perspective On Judicial Behavior (2008, Princeton) p21–23, p73, discussing R v Mullen [2000] Q.B. 520 (EWCA) [535] 621 K Findley and M Scott, ‘The Multiple Dimensions of Tunnel Vision in Criminal Cases’ Wis. L. Rev. [2016] 2, 291 622 Ibid. See also, R Burnett, ‘The Default Belief in Allegations of Child and Sexual Abuse’ in J Robins (ed) No Defence: Lawyers and Miscarriages of Justice (2013 The Justice Gap) p80 623 By arguing that appropriate warnings depend on the circumstances of each case, this protects the judiciary of criticisms of inconsistency in directions. 624 C Hoyle and M Sato, ‘Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission’ (2019 Oxford: OUP) p168-9, p171 625 C Hafer and L B`egue, Experimental Research on Just-World Theory: Problems, Developments, and Future Challenges, Psychol. Bull. [2005] 131 128
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‘wicked’ law or the State’s discriminatory implementation of neutral law.626 This is partially because it satisfies a popular need for consistency, certainty, and structure, and therefore becomes particularly appealing when the system itself is under threat. It is also partially because people ‘often reassess incidents or situations so that the outcomes are understood to be just’.627 As Requa summarises, ‘the world is easier to cope with if others have deserved their fates rather than been subjected to unfairness’.628
Where the appeal courts retain confidence in the system whilst acknowledging that its policies led to injustice, Requa argues that this presents a view that ‘the vast majority of applicants deserved to be punished because they were found guilty; although some wrongful convictions took place, the system itself was just’.629 This limits considerations of appeal for those convicted under system-sanctioned rules operating disadvantageously. Requa concludes that to counter just-world thinking, judicial discretion regarding the admissibility of evidence should be limited, confessions should be supported by additional evidence, and courts should be required to scrutinise the conditions in which evidence was obtained.630
The thesis proposed that just-world thinking would cause HSA convictions to be reviewed with an extra layer of suspicion as to their injustice, due to societal attitudes towards this offence. Moreover, it suggested that criminal appeals organisations may struggle to recognise this inherent prejudice where it occurs within the system. Chapter Three proposed that HSA cases invoked pervasive and inherent cognitive biases (such as the ‘no smoke without fire’ rationale), and that challenges to convictions without substantial persuasive evidence would be avoided.
Poyser et al argued that the CCRC, as a formal remedy that is situated within the criminal appeals system, can fail to recognise fallible processes in the system as a whole.631 Its position means it would be unable to query the fairness of criminal legal processes (and jury decisions), where these processes have operated correctly but resulted in an unfairness. Under organisational and bureaucracy theories, the CCRC would be positioned as a cog in a machine, thus having to operate according to its individually specified remit within the justice system, without reviewing the effectiveness of the whole system. This is because, as Chapter One set out, it is embedded within the structure of the appeals system and must telescopically apply the appeal court’s reasoning. This indicates a need for informal remedies such as individual campaigners, who are able to view criminal procedure critically and independently. Investigators outside of the justice system, championing an
626 M Requa, ‘Considering Just-World Thinking in Counter-Terrorism Cases: Miscarriages of Justice in Northern Ireland' Harvard Human Rights Journal [2014] 27, 59. During periods of conflict or authoritarianism and when confronted with draconian law or practices, many courts seek to justify the legal regime rather than challenge it. 627 L Montada, ‘Belief in a Just World: A Hybrid of Justice Motive and Self-Interest?’ in L Montada and M Lerner (eds) Responses To Victimizations And Belief In A Just World (1998, Springer) p217, 238 628 M Requa, ‘Considering Just-World Thinking in Counter-Terrorism Cases: Miscarriages of Justice in Northern Ireland' Harvard Human Rights Journal [2014] 27, 58 629 Ibid., p64. 630 Ibid., p66 631 S Poyser, A Nurse and B Milne, Miscarriages of Justice: Causes, Consequences and Remedies (2018, Policy Press) p107
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individual’s innocence, could be advantageous for those appealing HSA convictions.632
However, this is not supported by the analyses and findings of this thesis. The referral judgments show a favourable prejudice for HSA cases - both at the CCRC and Court of Appeal. As most referred and most quashed HSA cases lacked indications of innocence, convictions were overturned typically on technicalities such as legal procedural issues, exaggerated allegations or disputed medical experts. Most of the post-conviction casework done by the CCRC is not concerned with ‘miscarriages of justice’ in the sense that there may be indicators that an innocent person was convicted (or even with cases where innocence is probable). The HSA judgments however show a balance being struck in favour of likely guilty persons going free.633
Moreover, there are several examples of the CCRC actively seeking to improve its reviews of HSA cases, tracking case themes and developing internal knowledge and policies accordingly.634 After the first 10 HSA cases were referred by 2001, the CCRC set up a working group to analyse and refine its approach to the ‘particularly difficult category’ of CSA cases. Following the 2002 Home Affairs Committee report on historical abuse in children’s homes, the CCRC stated it would review all HSA applications for problematic features in light of these developments.635 Its 2006-2007 Annual Report describes the emerging theme in convictions for sexual offences of complainants subsequently found less reliable than was apparent at trial.636 This led to increased credibility checks in sexual offences (though this was reduced a decade later).637
Bureaucratic versus partisan resource expenditure Earlier chapters outlined arguments that independent campaigners (including lawyers, innocence projects and family campaigns), acting from the standpoint that the convicted person was likely innocent, could provide invaluable assistance where the CCRC could not. This was because individuals would investigate in a partisan way, seeking to establish the applicants’ possible innocence, and would thus be more likely to devote time and resources to unpromising, ‘long-shot’ leads, in their attempts to uncover an unsafe conviction. Though the CCRC has more resources and investigatory powers than most alternative groups, it has strict budgetary accountability and thousands of cases to divide resources between.638 Consequently, the chances of it exploring ‘long- shot’ avenues to establish potential conviction unsafety are significantly lower. This tendency towards desk-based investigation has been highly criticised.
For HSA cases, where there is limited evidence and inherent biases within the justice system, this
632 However, neither group are immune to this bias – and may be more likely to fall victim to it during the course of many years of HSA casework, causing conscious or subconscious expectations about guilt to form. 633 Of the convictions quashed, the judgments indicate a ratio of ‘conviction unsafe’ to ‘likely innocent’ resembling 31:2 on the facts of each case. 634 C Hoyle and M Sato, Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission (2019, OUP) p2-3, p116-120 635 Criminal Cases Review Commission, Annual Report and Accounts 2002/03 (HC845, 2003) p30 636 Criminal Cases Review Commission, Annual Report and Accounts 2006/07 (HC771, 2006) p27-8 637 These would be for example, seeking social services records or compensation claims to assert whether the original claims had been stated differently, or whether other allegations had been made. 638 S Poyser, A Nurse and B Milne, Miscarriages of Justice: Causes, Consequences and Remedies (2018, Policy Press) p109
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bites particularly. The (non-CCRC) cases of David Bryant, Danny Kay and Liam Allan (all previously discussed) have shown that to establish innocence, investigators may need to pursue costly, time- consuming and unpromising avenues of investigation on a ‘leap of faith’. Further, to be able to consider that the jury was biased, got it wrong or that there have been hidden fatal flaws in the criminal process. In this respect clearly individual-championing campaigners have strengths.
From the review of the referrals, the judgments do not mention where cases have received assistance from individual campaigners, so predictions about the suitability of their investigative model for HSA cases cannot be directly evidenced. However, a review of the reasons why each referral was accepted illustrates that the majority of referrals were possible just from the analysis of all files and office-based casework.639 CCRC casework in HSA cases typically comprises of legal analysis (from trial/appeal papers), requests for information under s17 Criminal Appeal Act 1995 for medical and social services files, reviewing recent case law and medical developments, and seeking new medical or evidential reports.640 There is rarely any forensic testing of exhibits, visits to the alleged crime scene or to interview associated persons, or other ‘boots on the ground’ investigation. Although it is accurate to state that the majority of the CCRC’s work in HSA referrals was desk-based, the critique behind this (that more should have been done to investigate further leads) is arguably misplaced.
Bureaucratic versus partisan approaches to case investigation The fact that the CCRC investigates to establish whether a conviction may be unsafe, which is a wider criterion than likely innocence, arguably increases the chances of a wrongful conviction being referred and quashed. Looking at the indicators of innocence in the judgments, the ratio of cases with ‘challenges to the safety of the conviction’ to those with ‘indications strongly suggesting innocence’ resembles 31:2. In proportional terms, then, the CCRC’s approach is more favourable to those seeking to challenge such a conviction. Further, while there may be some wrongfully convicted of HSA who were unable to get their cases referred, or even fully investigated by the CCRC,641 the number of cases referred on ambiguous (and generously interpreted) signs of unsafety give an indication that those not referable after preliminary investigation simply presented no leads suggesting innocence (or more likely, presented signs of guilt). This in turn indicates likelihood of applicants’ guilt.
However, CCRC casework only goes as far as to find evidence indicating the convictions might be unsafe – as opposed to persisting until evidence of an individual’s innocence is found, as some campaigners or lawyers may do. Even though the result would be the same as if investigators championing innocence had pursued evidence demonstrating this, the distinction could make a world of difference for the accused when seeking to clear their name.
639 All but 5 referrals were made on investigations possible to achieve in-office. 640 Criminal Cases Review Commission, Enquiries As To Witness Credibility Casework Policy (2015, reviewed in January 2020)
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According to bureaucracy theory, caseworkers make decisions as representatives of the organisation, instead of human individuals investigating possible human error. They do not investigate in a partisan way, determining investigative decision-making through beliefs about applicants’ possible innocence. Critics argue that, because of its constraining legislation, the CCRC only seeks to determine the lawfulness (vis a vis safety) of convictions, and as such, provides safety checks on convictions rather than in-depth inquisitorial investigations to seek truth in claims of innocence.642
This is certainly evidenced in the casework procedures and approach – the CCRC refers to those convicted as ‘applicants’, whereas pro bono student projects, lawyers and campaigners treat them as ‘clients’. This partisan language indicates how each organisation conceptualises their role. The judgments do not disclose any assistance from families, campaigners, lawyers or pro bono projects. Yet, several non-CCRC case examples have shown where independent investigators’ ability to garner media publicity, journalist involvement and public support, have assisted in increasing pressure for cases to be thoroughly reviewed.643
In contrast, the bureaucracy involved in CCRC investigations (in terms of compulsory and recommended checks, case waiting lists and resource allocation, and individual targets) can restrict investigatory avenues for caseworkers. This is not a direct effect, as caseworkers can exercise discretion and follow thought-out instructions based on experience. However, it could take hold indirectly. Hoyle and Sato argue that the 2006-2017 change in the CCRC’s policy on credibility checks (discussed above), was caused by political influence, as the CCRC reacted to its ‘surround’, wherein the prevailing culture in the justice system (and in Court jurisprudence) was that of increased understanding about HSA victims’ vulnerabilities and behaviour.644
Of every independent investigatory group, Poyser et al argue that the accused’s family are a particularly strong driving force for the overturning of a conviction.645 In championing their belief in the individual’s innocence, they can campaign tirelessly, help to persuade police forces to reinvestigate, and seek media attention. From the referred cases however, the vast majority of cases concerned intra-familial abuse, reducing the feasibility of family as a source of appeal support.
More peripherally, it has been argued that the CCRC’s caseworkers have varied backgrounds and experience, making applications subject to a ‘staff lottery’ in terms of whether they get a specialist or a caseworker with less experience. Individual campaigners or lawyers may however be experienced specialists (or at least closely attached to the case), which in light of complex multi-victim multi- offender minimal-evidence HSA cases, is highly desirable. However, a review of the CCRC’s Annual
642 M Naughton, ‘The Criminal Cases Review Commission: Innocence Versus Safety and the Integrity of the Criminal Justice System’ Criminal Law Quarterly [2012] 58(2), 210 643 As became apparent in the cases of David Bryant, Geoff Long, Dave Jones, Liam Allen and Isaac Itiary to name but a few. For an extensive case list, see J Robins, Guilty Until Proven Innocent (2018, Biteback) 644 C Hoyle and M Sato, Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission (2019, OUP) p174 645 S Poyser, A Nurse and B Milne, Miscarriages of Justice: Causes, Consequences and Remedies (2018, Policy Press) p118
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Reports and publicly available documents shows that caseworkers partake in knowledge exchange training, seek guidance from one another informally, and write formal memoranda and casework guidance documents to disseminate best practice on certain case types (including HSA).646 There is also a recently formed research committee, and sub-management level ‘group leaders’ introduced to ensure casework quality control.
Poyser et al argue that informal remedies can however help get a case to the CCRC, more quickly or where this may not happen otherwise.647 This is slightly inaccurate - the CCRC must consider every application made to it. Independent investigators can however help to identify leads for the CCRC to investigate, making it more likely that a case will be accepted for full review.648 The value of these alternative remedies in filtering and assisting the applications is returned to in the concluding chapter.
Chapter Summary
HSA case characteristics From the analyses of every HSA conviction the CCRC has referred back to the appeal courts for reconsideration, this thesis finds that unsafe HSA convictions are successfully being identified. The quantities referred and quashed are in line with CCRC averages.649 These referred convictions however were not ‘miscarriages of justice’ in the commonly understood sense (where a factually innocent person has been wrongfully convicted). This is also typical in CCRC referrals. Though it is possible that every applicant might have been innocent, facts suggestive of applicants’ innocence were apparent in only two cases. Most of the convictions referred were found to be safe, and of those found unsafe, most were predominantly caused by procedural error and previously or subsequently exaggerated allegations from the complainant.
Issues discussed in length in current literature on wrongful HSA convictions (such as police trawling tactics, false memories, financially motivated accusations, delayed prosecutions affecting trial fairness, and the collective effect of amended sexual offence laws increasing the likelihood of error) were apparent in few referrals. This finding contradicts suggestions in the literature as to whether and why unsafe HSA convictions are arising.
The thesis supposition that sexual offence laws have been amended to weaken procedural safeguards may be correct – but the import of any such weakening was not apparent from the analysis in this research. Though it could be possible that the unsafe convictions affected by these issues have not yet reached the stage of post-conviction investigation, or have been erroneously
646 Criminal Cases Review Commission, Annual Report and Accounts 2018/19 (HC2438, 2019) p15, 27-29 647 S Poyser, A Nurse and B Milne, Miscarriages of Justice: Causes, Consequences and Remedies (2018, Policy Press) p132 648 H Greenwood, ‘Innocence projects: losing their appeal?’ in C Ashford and P McKeown (eds) Social Justice and Legal Education (2018, Cambridge Scholars Publishing) p166-168 649 However, without the statistics on CCRC HSA case rejections (which are not calculated by the CCRC and not publicly available) it is not possible to ascertain whether the rate of referral is less than usual.
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rejected by the CCRC, the generous interpretation of whether convictions were unsafe in those referred indicates otherwise. It is more likely that wrongful HSA convictions have been identified at an earlier stage or are lower in number than the literature suggests. Either way, it follows that existing claims made about CCRC investigations (and inter alia, the Court’s handling of referred cases) is ripe for reconsideration.
Post-conviction investigations It was initially argued that for an investigating organisation to identify an unsafe HSA conviction, it would likely need to devote resources to unpromising, ‘leap of faith’ avenues of investigation. Belief in an applicant’s innocence and a smaller caseload made the approach of those championing an individual seem more favourable. In particular, family-led campaigning efforts had been crucial in the avoidance or rectification of wrongful HSA convictions. Yet, the commonality that most of the HSA cases referred involved intra-familial abuse significantly reduces the support available from families in terms of spearheading partisan campaigning and investigation.
Most convictions were referred on grounds of unsafety from legal technicalities or other desk-based research. In several judgments, doubts about the applicant’s innocence are made clear. Where interviews or more detailed investigation were required, the CCRC was well-placed and able to build on amassed knowledge to take these steps. From a practical perspective, independent investigators acting on behalf of and in close proximity to the convicted client could additionally disadvantage their investigations, if following the convicted person’s instructions as to what and where to investigate. The points the HSA cases were referred (and later turned) on were frequently not correlated to the points applicants raised, making the CCRC’s approach more favourable due to its checks carried out for material beyond that raised by the applicant. Nonetheless, the judgments do not mention where cases have received assistance from individual campaigners, so predictions about the suitability of their investigative model for HSA cases cannot be directly evidenced.
Overall, as the CCRC (i) has more resources and investigatory powers at its disposal, and (ii) investigates to establish whether a conviction may be unsafe (which is a wider criterion than likelihood of innocence), this makes it strategically beneficial for HSA cases. The CCRC’s routine safety checks widen the pool of possibly unsafe convictions for review, rather than being narrowly focused on which cases may be innocent – which would have greatly diminished the number of HSA cases which could be referred.
Theory and Practice A review of the literature signalled CCRC deference to the Court of Appeal, and consequent conservatism when referring HSA cases, to be likely. However, the analysis of every HSA referral showed both organisations acting more liberally than expected. The CCRC increased its referrals despite the Court discouraging historical cases and referred many on technicalities (and two using the principle of ‘lurking doubt’). The Court in turn took a broad approach to possible conviction unsafety in
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allowing appeals on legal procedural errors even where guilt was very probable. These effects lean towards far greater concern for due process than that indicated in the literature.
However, this is explained by the context of the CCRC and Court of Appeal acting as the check on the justice system. If counterbalancing correctly, they would balance out ‘crime control’ oriented measures (such as any ‘different rules’ introduced) with concerns for due process, so rectifying errors of justice. This context could also explain why the cognitive bias of just-world thinking was expected, but not evidenced in the analysis of the judgments.
The generous HSA referral and appeal decisions show the criminal appeals process correcting errors the system failed to recognise earlier on. The conclusion drawn is that even though HSA cases are treated in the justice system with ‘crime control’ indications, the current appeals system (including the CCRC) is still ‘due process’ focused, to the point of strong leniency benefitting HSA applicants.
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CHAPTER FIVE: Conclusions and Implications
Summary of key arguments
As the introduction set out, any criminal justice system could either erroneously sanction an innocent person or fail to sanction a guilty person. The process should operate in a way that, according to Forst, strikes the most agreeable compromise between these possible errors. The justice system was characterised as having overriding safeguards for due process due to in-built features (such as a Court of Appeal and CCRC), which guard against erroneous sanctions. The introduction closed however with the assertion that (A) the justice system has moved towards increased emphasis on identifying and processing suspected sexual offence cases at the cost of due process protections.
Chapter One situated the project within the field of miscarriage of justice literature, arguing that (B) post-conviction review processes should be prospectively examined through the lens of HSA cases, which have arisen in a ‘pandemic’ changing the landscape of the justice system. Despite it having more resources than individual investigators, CCRC investigations are desk-based and bureaucratic in nature. Caseworkers have set targets and resources to allocate between each case application accordingly. This could disadvantage complex, time-intensive HSA cases where avenues for investigation are slim, when competing for resources with cases that could be resolved more quickly. In contrast, individuals or campaigners investigating from the premise that their client is innocent, have been shown to expend more resources on ‘long shots’ to look for evidence of this, successfully avoiding or rectifying injustices in sexual offence cases. Chapter One argued that (C) the CCRC’s disinterested investigative approach may prevent it from adequately rectifying unsafe HSA convictions.
Chapter Two catalogued the characteristic problems with HSA cases that increase their proneness to error. It argued that (D) these difficulties increase the disadvantage of those convicted for HSA when seeking to appeal, largely because of the difficulty finding the fresh evidence, argument or exceptional circumstances necessary. Chapter Two also (E) conceptualised a cultural shift towards hyper- awareness and heightened suspicion of HSA, capable of contributing to unsafe convictions.
Chapter Three characterised the raft of legal and policy changes introduced to encourage sexual offence prosecutions as ‘different rules’ used to widen the goalposts for HSA convictions. The collective effect of these changes was (F) argued to erode defendants’ due process safeguards, prejudicing HSA trials in favour of complainants, and increasing the risk of unsafe convictions. Consequently, it was theorised that (G) there could be a growing number of disadvantaged people convicted for HSA who are practically unable to appeal because of these in-built prejudices in the
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criminal justice process. In such cases, the CCRC may not be adequately able to recognise and address unsafe HSA convictions if they are the product of systemic injustice.
Chapter Four examined the arguments against findings from a first-hand analysis of every HSA case referred back to the appeal courts by the CCRC. This was firstly to quantify the factors presented in the literature, and secondly to identify the investigative work required for successful case referral. Its key findings are integrated into the overall assessment below.
Thesis Conclusions
No significant prevalence of unsafe HSA convictions not overturned at first appeal identified The research sought to assess whether HSA cases were a growing risk of unsafe conviction, and if so, whether this issue could be identified and corrected within the existing justice system parameters. Whereas the first three chapters of the thesis posited HSA as a significant category of unsafe conviction,650 the findings from the analysis of referred cases in Chapter Four show that HSA referrals were averagely proportionate to other CCRC referrals.
Few of the literature-suggested factors were prevalent in CCRC HSA conviction referrals An analysis of the existing literature suggested that unsafe HSA convictions could have stemmed from trawling, false memory, use of similar fact evidence and other ‘different rules’, yet none of the themes expected were found to be particularly prevalent in the HSA referrals. The earlier chapters also pointed to cases involving HSA alleged to have occurred at care homes and children’s institutions as a particularly prominent risk for unsafe conviction. The issue of delay in particular was identified as having the potential to prejudice trials. Conversely, the research presented in Chapter Four found the convictions referred and quashed were due to incorrect judge’s directions, other allegations made by the complainant found to be false, or developments in medical examination meaning that previous diagnoses were uncertain (though not necessarily disproven), rather than the factors suggested by the literature.
Consequently, the thesis argues that there is a disparity between the issues described in literature on HSA cases that are flagged as likely to cause injustices, and the kind of appeal cases that most often occur at court. Though both are accurately evidenced, media articles and academic texts (including research) can focus more heavily on extreme case examples and worst-case scenarios as opposed to the normal, routine and mundane issues occurring in most cases. Therefore, readers’ sense of the commonality or likelihood of such problems can become skewed, as while dominant in publications, they are not numerically representative.
650 Either large in number, due to the widened goalposts for conviction increasing wrongful convictions comparatively, or small, due to the difficulties of appeal.
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The finding that the strong assertions in the existing literature were not apparent in the referred cases indicates that case studies and topics presented in literature (both academic texts and media articles) represent the extremes of the bell curve of normality. This underlines the importance of research checking reported claims, warnings and arguments with the frequency of its occurrence. The conclusion can be drawn that it is not enough for research to be informed by discussions of theoretical problems - empirical examination of the extent of those problems is needed. Academic and journalistic concerns over unsafe HSA convictions are a healthy response to the huge amounts of HSA reported. However the impact that either has on justice system policy should be tempered with a more nuanced empirical assessment of statistical prevalence.
The CCRC and Court of Appeal are not taking a restrictive approach to HSA referrals Similarly, academic arguments that the appeal courts are too restrictive (and the CCRC too cautious) would be improved if qualified by case category, given that in fact the opposite was found to be happening in HSA cases. Not only did both refer and quash liberally, but this was done with marked unease. Statements about post-conviction appeal investigation in the literature have been made without sight of confidential investigation results, and an understanding of how resources are allocated or spent. While this study identifies this shortcoming in research on CCRC cases, it is also necessarily hampered by it itself, having not accessed internal investigation documents relating to the HSA cases. This is discussed further under the ‘Limitations’ section below.
‘Different rules’ operating to the detriment of those appealing HSA convictions were not apparent The argument that sexual offence laws have been changed into effective ‘different rules’ was not evidenced. Though this theorised effect may exist, and may be visible in acquittals or appeals at first instance, the result of this were not visible in the findings. Perversely, there was evidence to show current laws (and post-conviction review mechanisms) working to get guilty people’s convictions overturned.
If, as posited in the literature, it were indeed the case that unsafe HSA convictions are acutely disadvantaged with regard to locating the fresh evidence or arguments needed to launch an appeal, then it is unlikely that a large number of these cases would be found in CCRC referrals as they would probably not reach this stage of review. However, another explanation for this finding is that the literature prompting the theory of ‘different rules’ focused on ‘near misses’, cases overturned on first appeal, and unsafe convictions that remain unidentified. These case categories fall outside of the dataset (comprising of CCRC referrals) researched here. This explains discrepancies between what is suggested and what was found (or not found). The limited picture of unsafe HSA convictions given by studying only CCRC-referred cases is discussed in more detail below.
The thesis examined the argument that current post-conviction review models may be rendered ineffective when faced with increasing HSA applications, given the difficulties in reviewing such cases. In particular, the CCRC’s bureaucratic, justice system-embedded approach was argued not to be as
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promising as individual campaigners’ partisan casework.651 As the ‘different rules’ predicted in literature were not identified, it was not possible to evidence arguments that individuals are better than the CCRC in tackling unsafe convictions that result from structural injustice. However, it was ascertained that the CCRC’s approach resulted in a high number of generous HSA referrals. Although it rejects a larger number of HSA cases, this category is one of the most difficult to review. It follows that the CCRC appears successful in handling these cases proportionately, in terms of referring the same amount of them as cases in other categories.
The CCRC’s bureaucratic approach is highly advantageous for HSA applicants Though CCRC bureaucracy risked innocent victims of wrongful HSA conviction being screened out, the case analysis showed it had also led to quality control mechanisms such as in-house knowledge exchange and backward trawls which have ‘rescued’ some of the rejected HSA cases. The benefits of a bureaucratic, disinterested approach here outweigh an individual approach in terms of the number of cases that can be investigated. This does not directly counter the original argument that those innocent but convicted of HSA would need a partisan, interested champion in order to be identified. It just indicates that the likelihood of this happening is greater under a bureaucratic, disinterested model, which has been found to result in a much more generous approach to determining which convictions are potentially unsafe.
The terms ‘innocence’, ‘miscarriage of justice’ and ‘wrongful conviction’ hinder pragmatic scholarship Given that most HSA convictions overturned bore few signs of actual innocence, ‘miscarriage of justice’ is arguably not a representative term for these CCRC referrals. This is because it connotes innocence. The phrase ‘wrongful conviction’ is to a similar degree ill-fitting due to the moral judgment it implies. Though there may be overlap (i.e. convictions where indicators of innocence may be rightful, or vice versa), the term ‘unsafe’ does not invoke a moral judgment (or assumed innocence) in the same way as ‘wrongful’ conviction, or the more emotionally-laden ‘miscarriage of justice’. The CCRC is defined as the organisation set up to investigate suspected miscarriages of justice’.652 Yet, conflating the CCRC’s work and ‘miscarriages of justice’ arguably clouds the specific work that it does – namely investigating convictions (and sentences) that may be unsafe. Miscarriages of justice in the ‘innocent’ sense, are exceptional rather than routine post-conviction appeals casework. It is argued that academics in this field should adopt the words of the appeals system – i.e. ‘unsafe conviction’, when discussing this area of criminal law, rather than comparably more subjective phrases. This would avoid predispositions and foster more pragmatic understanding amongst future scholars studying criminal appeals.
Of the numerous HSA convictions overturned where the Court and/or CCRC alluded to the applicant’s factual guilt being likely, few retrials were ordered. Reasons given for this were that it was not in the
651 Virtually every post-conviction case that has exhausted the usual appeals process must be referred back via the CCRC, so independent investigators are preliminary stages to the CCRC, not comparable alternatives. It was a foregone conclusion that the CCRC’s ‘unsafety’ criterion allows a far greater proportion of HSA cases to be referred than an ‘innocence’ criterion. 652 Criminal Cases Review Commission, ‘About Us’
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public interest given the old age of the accused, that there was too little usable evidence for a realistic prospect of reconviction, or that key witnesses would be unavailable or deceased. Where it was originally argued that HSA cases may be at a disadvantage upon post-conviction appeal, in this respect they hold several advantages preventing retrial and conviction. This effect is not characteristic of a crime-control justice system, as originally argued.
Though managerialism has been documented within the justice system, resulting in attempts to appear more punitive, the rhetoric is not fully supported in HSA appeals. Statistically, those convicted represent only a small minority of HSA perpetrators, and even then, many convictions are overturned on appeal.653 It seems more likely that in relation to HSA cases, the justice system is reducing due process safeguards to appear more ‘crime control’ in terms of case targets and public image. This conclusion is supported by a recent report of the CPS being encouraged not to pursue weak sexual offence cases in order to improve its success rates.654
In essence, this thesis concludes that the CCRC’s disinterested post-conviction review model is not operating to deny justice to innocent victims of wrongful HSA conviction. Theoretically, its bureaucratic process (where cases are reviewed for a preliminary checklist for basic flaws and weak candidates are screened out early on) appears disadvantageous compared to an individual investigator willing to invest resources to prove the client’s innocence. Yet, the value of this is outweighed in terms of the higher numbers investigated and referred by the CCRC. This however comes at a cost – by prioritising due process safeguards, the CCRC’s bureaucratic post-conviction appeals system helps guilty applicants go free. The frequent referral of convictions that could be argued to be unsafe in the face of other suspicious facts is in itself, a type of reverse miscarriage of justice.
Policy Implications
The study illustrated how HSA cases progressed from the CCRC to appeal court, and which factors succeeded after referral. Having established which issues in HSA case investigation were more likely to lead to convictions being referred (and which less so), post-conviction investigators could use this to prioritise these factors in their casework. For example, they may focus resources on investigating whether developments in medical or expert opinion could subsequently shed doubt on that which was used to convict, as opposed to researching unfairness caused by delay. They may also develop better strategies for HSA case investigation, re-prioritising what documents or information is sought accordingly. Examples include looking for evidence of accusers’ exaggerated claims post-conviction
653 Court of Appeal Criminal Division, Annual Report 1 October 2018 to 30 September 2019 (24 February 2020)
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as opposed to material the applicant states could prove their innocence.
The CCRC too may be better informed about likely, and evolving, Court of Appeal jurisprudence on this unique category of case. It could for example, identify a sea change in terms of the near- impossibility of abuse-of-process arguments in HSA cases,655 and choose to push back on this point given the critique of the judiciary. Findings and conclusions of this project will be disseminated to these organisations accordingly.
The findings show not only show to a certain extent how unsafe HSA convictions were caused, but inform practice as to how they can be identified or prevented in future. Given the significant proportion of convictions found ‘unsafe’ pertaining to persons where innocence was unlikely, however, the preventative measures set out above pertain not only to ensuring innocent people are not convicted, but that guilty people are convicted safely.
These policy implications present an ethical dilemma, however. A significant number of the referred cases indicated probability of guilt (given the paucity of indicators of innocence after several appeals and much investigation). Consequently, by realigning casework to increase the chances of applicants or clients being referred, post-conviction caseworkers would also be increasing chances of guilty offenders going free. The impact of this in relation to theories of the justice system is set out below.
Theoretical implications and review of the framework
‘Crime Control’ and ‘Due Process’ justice system models Herbert Packer’s ‘crime control’ and ‘due process’ concept of criminal process were used to introduce the idea that a criminal justice system can lean toward one or other of these models. Policy developments can also move the criminal justice system incrementally between them. Having written this work in the United States in 1968, there have inevitably been criticisms and more modern refinements in terms of the application of his theory.
Discussing studies showing that police, prosecutors, judges and defence counsel share common organisational interests that defy the contrasting ideologies of crime control and due process, Roach states that these professionals are essentially ‘bureaucrats who habitually cooperate to maximise their own organisational interests, not warriors for crime control or due process’.656 The concept of different agencies making up a justice system, but with individual and at times competing agendas, is returned to in the context of error correction theory borrowed from Forst, below.
655 J Wood QC, ‘Is abuse of process in historic sex abuse dead?’ (Doughty Street Insights, 6 September 2019)
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Additionally, by assuming that individuals’ interests opposed those of the State, Packer’s models have been argued to give too much emphasis on professional and adversarial conflict. As Roach notes, Packer ‘did not conceive of the criminal sanction as a remedy required to respect the rights of victims and potential victims of crime’.657 They are therefore limited in their application to situations involving family or community resolution or restorative justice, and that modern models of criminal justice might conceptualise the system with more emphasis on reconciling offenders, victims and families or communities. This concept is returned to further in this conclusion.
When considering the statistical prevalence of HSA and unjust convictions thereof, the thesis referred to the CSEW. Such victimisation surveys help to calculate the risk of certain groups to certain crimes. This new knowledge offers measurement of failures of the criminal justice system to control pervasive risk of crime, contributing to a ‘risk society’, the prevalence of which post-dated Packer’s models.658 It also has a significant effect on criminal justice policymaking. Examples include the statistics cited on the prevalence of people abused in childhood, or women likely to experience sexual assault in the course of their lives.659 These have considerable effect on policymaking, to the point where Roach argues that the new knowledge of risk could ‘decentralise the criminal sanction as the societal means to tackle crime’.660
Certainly, Packer’s theory was developed in an era where sexual and domestic violence against women and children were publicly ignored, which has since seen the birth of first and second-wave feminism and its associated recognition of victimisation. Reflecting on the increase in attention given to the interests and needs of potential victims, Chair of the Justice Select Committee and former barrister Sir Bob Neill MP recalled in commentary that the culture for practicing barristers twenty years ago was such that prosecutors sought mainly to set out the facts as alleged on the potential victim’s behalf. The complainant, in turn, was expected to report the alleged crime and proceed to trial as part of their civic duty, with very little guarantee of rights, support services or special considerations. He observed that in contrast, the criminal justice system has changed dramatically to reflect a greater understanding of the needs of potential victims, and as a form of service provision of the State, has assumed more responsibility in relation to their treatment.661
As several academics have set out, the interests and needs of potential victims are now a substantial and increasing part of policy considerations.662 So too are there a range of victim-oriented non-
657 Ibid., p24-5 658 U Beck, Risk Society: Towards a New Modernity (1992, Sage) p20-23, 33-34 659 K Roach, Due Process and Victims' Rights: The New Law and Politics of Criminal Justice (2010, University of Toronto Press) p27 He states that, ‘statistics describing the percentage of women and children who are sexually assaulted during their lives have resonance in policy debates in both courts and legislatures’, and as such, ‘groups use their disproportionate exposure to documented risks to make new demands on the criminal justice system’. 660 Ibid., p26 661 Sir Bob Neill MP, speaking in personal capacity as Justice Committee Chair and former criminal barrister, Commons Justice Select Committee private meeting (held via Zoom, Tuesday 12 May 2020). Notes of the meeting are on file with the author. 662 K Roach, Due Process and Victims' Rights: The New Law and Politics of Criminal Justice (2010, University of Toronto Press); M Hall, Victims of Crime: Construction, Governance and Policy (2017, Palgrave MacMillan), A Sanders, ‘Reconciling
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government actors and interest groups forming what Hall terms ‘new governance structures’. This relatively recent development is outside Packer’s considerations, representing a further shortcoming.663 The rise in political importance of victims was a key point in the formation of the thesis, which necessarily delimits the application of Packer’s models as he originally described them in the present-day context.
Whilst there are calls on police and the CPS for higher levels of service for victims, undoubtedly forming an extra element at play in justice system ‘balancing’,664 this does not extend to advocating on behalf of victims per se. Because the police and CPS (or courts, or CCRC – in essence the whole criminal justice system in general) does not work on behalf of victims or close claiming to be, Packer’s models were seen as still applicable. The present study did not focus on victims’ rights specifically, and sought not to re-theorise or chart their experiences of the justice system.
Hall sets out that criminal justice system is under increasing pressure to offer victims (and increasingly, their supporters) more in terms of service and participation, characterised by the oft- repeated (yet vague) pledge to ‘put victims at the heart of the criminal justice process’.665 However, he also argues that reforms introduced in the name of ‘victim care’ often disguise punitive measures, neo-liberal market philosophies and cost-cutting. Upon reflection, the political motivations that lay underneath such measures could have been explored to a greater extent, in relation to sexual offences. However, in the realm of criminal appeals (the main focus of the thesis), this development has been accounted for when considering policy and differing motivations of criminal justice agencies, by reference to bureaucracy and managerialism (discussed in a separate section below).
Ultimately, the core idea that a justice system (or agencies within it) moves back and forth balancing interests between the necessity to demonstrate control over criminal behaviour, and ensuring the fair treatment of those accused (in the capacity of having freedoms curtailed by the State), is argued to remain a relevant thread underpinning this study.
Moral Panics, Moved Goalposts and ‘Just-World Thinking’ The well-documented increase in the importance given to victims in criminal justice policy underpinned an influx of changes encouraging sexual offence complainants to come forward. This occurred in tandem with an unprecedented increase in HSA complaints being made. The thesis tracked this phenomenon, and its associated risks of criminal justice net-widening and unsafe convictions. This moral panic concept was useful because it underpinned the disproportionate media hype and associated abundance of legislation pertaining to these cases, of which little conclusive statistical proof existed.
the apparently different goals of criminal justice and regulation: the ‘freedom’ perspective’ in H Quirk, T Seddon and G Smith (eds) Regulation and criminal justice: Innovations in policy and research (2010, Cambridge University Press) 663 M Hall, Victims of Crime: Construction, Governance and Policy (2017, Palgrave MacMillan) p284 664 Ibid., p162 665 Ibid., p3
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Considering the requisite elements for a situation to qualify as a moral panic, the HSA case scandals fulfilled most. This contributed to the premise that (a) cases were being brought too eagerly and (b) wrongful convictions were more likely due to erroneous social perceptions. The theory also foregrounded the concept of there being ‘different rules’ to increase convictions for abusers, who must exist given the prevalence of allegations, within which there could be ‘no smoke without fire’.
However, the application of this concept was undermined significantly in one respect, namely the disproportionality. Despite fulfilling all other criteria of a moral panic, genuine cases of HSA are widespread. They are emphatically not unfounded in fact or driven by irrational fears. Further, to characterise HSA and associated child abuse scandals as a moral panic lessens the awareness of the true scale of abuse that occurs. This goes against the importance given in this conclusion to avoid clouding issues with theory that obfuscates proportionate representations of case issues.
Hoyle and Sato recognised that HIA cases (and the police trawls that led to them) constituted a moral panic in the early 2000s, marked by associated sensationalist media coverage, police criticisms, unsuccessful prosecutions, academic critique, and high-profile political response (namely the 2002 Home Affairs Select Committee evidence sessions and a large number of publications on the topic).666 Though parallels can be drawn between these signifiers of the HIA panic and the landscape discussed in the first half of this thesis, on reflection the concept of a current moral panic could have been limited to Operation Midland only. This is because of the allegations from one source being blown out of proportion by media and scandalised, culminating in no convictions and scant evidence yet sparking national outrage and paranoia.
Though Operation Midland bore similar patterns to other HSA scandals, the ‘moral panic’ concept was perhaps applied too far beyond this specific incidence to other HSA scandals. This error was revealed not only through the disproportionate amount of HSA occurring, but through the emergent cultural recognition that HSA is an endemic issue, signified by the on-going IICSA which has far overshadowed the Select Committee and APPG enquiries into false allegations and justice system errors in this area.
The legislative changes brought in to facilitate sexual offence prosecutions were argued to collectively amount to ‘different rules’, widening the goalposts for convictions. This argument was foregrounded by borrowing from Requa and Quirk’s work on the Northern Ireland temporary and emergency provisions. This context provided the analogous (yet near-unique) scenario of potential unsafe convictions (i) being caused by systemic legal changes and ‘just-world’ thinking (whereby misplaced confidence in the integrity of the justice system to convict only those who deserve it), and (ii) being sustained due to compromised ability of the CCRC to rectify such systemic injustice.
666 C Hoyle and M Sato, Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission (2019, OUP) p159
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Although the comparison provided a sound basis upon which these issues could be anticipated in relation to HSA cases, the ‘different rules’ theorised were not evidenced to have produced the effects suggested by the literature. The absence of it actually contradicts suggestions in literature as to whether and why unsafe HSA convictions are arising.
The parallels between HSA-focused criminal justice policy developments and the TEPs were drawn in order to demonstrate the context in which a criminal appeals system would face difficulty recognising potential ‘systemic injustices’, rather than to predict how many cases might be affected. Yet, a look at the amount of convictions overturned due to recognition of deficiencies in NI terror laws accepted as systematized injustice,667 compared to the number (or lack thereof) of HSA convictions recognised as ‘wrongful’ and overturned due to knee-jerk bad laws as a result of the panic, clearly indicate the limit of any comparison drawn.
In addition to the differences in proportion, the context in which the TEPs were introduced was one of terrorism and counter-terrorism measures. This involved national political disagreement and perceived injustices on both sides which pre-empted violent conflict. Post-conflict, appeal court jurisprudence is informed by an evolved understanding of unwarranted sanctions, and can concede that some convictions were unfair. In contrast, sexual activity with children is a universally abhorred crime, not subject to political debate in our open society in the same way as understandings on terrorism offences. As such, problematic legal and policy changes in relation to HSA have not been recognised or accepted as a possible cause of systematised injustice thus far. Nor are they arguably likely to be in future.
CCRC bureaucracy The CCRC case investigation model was cast in the mould of Weberian bureaucracy, to the effect that, in the pursuit of fairness and efficiency its casework may have become constrained by it (as critics over several decades have alleged). The relevance of bureaucratic frameworks within criminal justice agencies is also well-supported by academic critique highlighting the rise of managerial, customer-service criminal justice and cost-cutting neo-liberal market policy-making.668
Bureaucracy theory was used to contextualise the argument that, as an organisation embedded within the criminal justice system, the CCRC would be hamstrung in ability to identify unsafe HSA convictions caused by injustices created within that system. This then served as a foundation for the argument that those seeking to appeal HSA convictions face unique difficulties, and that independent investigators seeking to establish applicants’ possible innocence may be more likely to find
667 Jackson and Doran note that there had been ‘well over 10,000 defendants’ processed under counterterrorism legislation from 1973 to 1995 (J Jackson and S Doran, Judge Without Jury: Diplock Trials in the Adversarial System (1995, Clarendon)); Shirlow and Mcevoy estimate that 15,000 republican and 5,000–10,000 loyalist paramilitary members were imprisoned during the conflict (P Shirlow and K Mcevoy, Beyond The Wire: Former Prisoners And Conflict Transformation In Northern Ireland (2008, Pluto Press) p2. These numbers are clearly incomparable to the HSA convictions and appeals recorded in this thesis. 668 M Hall, Victims of Crime: Construction, Governance and Policy (2017, Palgrave MacMillan) p3
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exculpatory evidence.
Though bureaucratic elements were identified to be operating throughout CCRC decision-making, it worked in the opposite way to that which has previously been suggested. It was shown that previous arguments made that the CCRC’s casework processes are overly bureaucratic were correct, but that the context in which these arguments were leveled (namely, that this restricts the CCRC from making referrals) was, for HSA cases, unfounded. The bureaucratic procedures in place for casework decision-makers to follow operated to encourage, not restrict, referral of HSA cases.
Where those criticizing CCRC bureaucracy for restricting referrals overlap with those campaigning on behalf of applicants arguing that their case should be referred, this finding holds significance. Arguments that the bureaucratic casework approach is overly restrictive to the point of sustaining injustice and negatively impacting applicants, do not square with associated arguments that CCRC caseworkers should take more initiative to adopt a more holistic view of cases which do not necessarily meet the test for referral but present doubt as to the safety of the conviction. For this reason, Weberian bureaucracy was an important inclusion in the theoretical framework.
The flipside, of course, is that bureaucratic casework investigation and referral processes are good for referral rates but bad for justice (as measured by the ratio of innocent to guilty referred). This issue is considered in conjunction with Forst and error management theory below.
Criminal Justice System error preference management The project sheds light on two simultaneous ‘miscarriages of justice’ - wrongful convictions (either where the convicted person is innocent, or where they were guilty but convicted through undue processes), and wrongful acquittals, where guilty people are incorrectly granted freedom. The thesis referred early on to Forst’s typology of error management, whereby the criminal justice system must manage the inevitable outcomes of erroneously sanctioning an innocent person or failing to sanction a guilty person. Contrary to indications in literature, the conclusion drawn in relation to HSA cases is that type 2 errors (guilty going free) are a greater risk. A significant number of those whose convictions were quashed were likely guilty – the ratio of this to those likely innocent resembled 20:2 in the findings. This is at the stage of post-conviction appeal – many more convictions have been quashed prior to this. This again is offset by the already high attrition rate for sexual abuse.
However, this study further demonstrates how wrongful (legal) HSA convictions when overturned became likely wrongful (factual) acquittals - even in the eyes of the CCRC and Court, the organisations responsible for these procedures. The use of borrowed error management theory does not stretch to cover the situation where wrongful convictions can become wrongful acquittals when processed ‘successfully’ by the system, as this is the end result of the error correction system.
Therein lies the limit of applicability of this concept. Where the criminal justice process (from arrest to
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conviction) errs in incorrectly convicting an innocent defendant, the criminal appeals system is the safety net in place to correct this (and, by extension, post-conviction investigators such as the CCRC and pro bono projects). However, by rectifying type 1 errors, the appeal system also creates some type 2 errors. They are not technically ‘failing to sanction a guilty person’, but where a guilty person has been sanctioned and that sanction subsequently found unsafe in law, the basic outcome is the same. The broader implication of this is that the justice system (by rectifying HSA case errors overcautiously) is failing to ensure that guilty offenders remain convicted.
Not a great deal of scholarship within the field of miscarriages of justice considers the ramifications of the criminal justice system failing to sanction a likely guilty person after they have had a conviction overturned. Though parallels are sometimes drawn between those cases and cases of believed- innocent applicants who have not been able to have their cases referred, such cases could provide a novel (if statistically tiny) angle for criminal appeals analysis. Certainly, for HSA cases, it seems that an injustice has arisen from the lack of feasibility of retrial in some of the quashed cases, that another type of injustice has arisen here, which is not well-recognised in current literature.
Lastly, there are many different actors and agencies within the justice process, each with their own (and at times competing) agendas. The ‘criminal process' refers to the wide range of activities and actors responding to crime. It can be charted as an orderly progression, but it is not. Roach explains that the criminal justice ‘system’ is a term actually describing a complex set of (often coercive) social institutions, which regulate potential, alleged and actual criminal activity within procedural limits, which are supposed to protect people from unjust treatment.669 Characterising or theorising it as a collective group (for example, as overly ‘crime control’, or reducing it to a balance between sanctioning offenders and protecting innocents) ignores the nuances of individual agencies and their relationships within it.
Limitations and suggestions for further research
Researchers cannot know for sure who is innocent or guilty – it is an unknown or hidden figure.670 Therefore, the legal categories must be adopted when discussing whether a person is innocent or guilty of a crime, and whether they have been rightly or wrongly convicted. Even then, research evaluating criminal appeals decision-making (in terms of whether outcomes were correct, well- founded or justified) necessarily involves some interpretive judgments to be made.671 In parts of this research, convictions were termed ‘likely innocent’ or ‘likely guilty’ according to what was asserted outright or clearly indicated in the judgments. This classification was made according to whether the
669 K Roach, Due Process and Victims' Rights: The New Law and Politics of Criminal Justice (2010, University of Toronto Press) p11; A Sanders, R Young and M Burton, Criminal Justice (2010, OUP) p2-3 670 P Rumney and K McCartan, ‘Purported False Allegations of Rape, Child Abuse and Non-Sexual Violence: Nature, Characteristics and Implications’ Journal of Criminal Law [2017] 8, 499 para 10 671 Ibid., See also, K Hail-Jares, B Lowrey-Kinberg, K Dunn and L Gould, ‘False Rape Allegations: Do they Lead to a Wrongful Conviction Following the Indictment of an Innocent Defendant?’ Justice Quarterly [2020] 37(2), 281-303
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judgments noted criteria establishing likely guilt or innocence (as opposed to conviction safety). Although it cannot be said for certain where the truth lies, the categorisation was used in order to record and interpret the suspicions and unease or readiness that the Court (and CCRC) demonstrated when processing these cases.
It was also necessary to set parameters, in relation to which, the cases would be analysed. As the research question focused on post-conviction investigation, cases were sampled solely from CCRC referrals (although every HSA case referred up to April 2019 was included). As of April 2019, there have been no post-conviction HSA cases referred from individual campaigners or innocence projects heard by the Court.
However, analysing referrals alone gives only a partial picture of CCRC casework. Though these show ‘what worked’ in terms of successful referral, there is still no data on what causes such cases to fail at the CCRC stage. Findings from CCRC referrals cannot be extrapolated to CCRC rejections, so the picture of its HSA case handling is incomplete.
A study of HSA cases which were not referred (i.e. were screened out or rejected) by the CCRC would give a holistic understanding of its investigative steps and decision-making – especially as most of its casework leads to non-referrals. To develop this research further, and evidence current predictions and conclusions from this study, a subsequent analysis of HSA cases that the CCRC failed to refer would be valuable. This would require in-house access to CCRC case files, which are not publicly available. Scope for this study as a post-doctoral project is in early planning stages.
Alternatively, this work could be used to develop and update Hoyle and Sato’s study of CCRC decision-making and exercise of discretion in sexual offences (of which they sampled 49, 27 of which were referred) and of HIA cases (of which they sampled 14, 4 of which were referred). This would produce a more detailed insight into HSA cases, by combining their data (from research in the field, privy to internal CCCRC documents and which includes rejections), with a complete sample (i.e. 100%) of HSA referrals. An article setting out what can be learned by overlapping these sources of knowledge will be proposed by the author.
In terms of the numerical data analysis, there are inevitable discrepancies between figures given referring to the number of judgments and the number of applicants whose convictions were referred, quashed or upheld. This is because several cases were heard together in 1 judgment. 11 of the applicants referred were in linked cases (4 of the judgments pertained to 2 applicants paired together, and 1 pertained to 3). 2 referrals were abandoned, and in 1 further referral (Neil Secker) the judgment had not yet been delivered. This case was included in statistical HSA referral data, but excluded from statistics pertaining to case judgments. This missing data explains why quantities represented in the pie charts do not equate to 100% of the population.
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A further limitation to note is that, as CCRC casework documents are not publicly available, the case data has been taken from appeal court judgments. Yet, the judgments do not fully illustrate what work the CCRC or other actors have carried out in these cases. Further research could develop this by conducting interviews with CCRC caseworkers to see if their descriptions and experiences of HSA casework match the organisation’s protocol, or if things differ in practice.
Similarly, the conclusions drawn about the appeal courts’ treatment of HSA referrals may not be wholly applicable to their handling of pre-CCRC HSA appeals (i.e. at first instance). Comparisons could have been drawn between the appeal courts’ handling of CCRC-referred HSA appeals, and first appeals. However, this was beyond the scope of this project and its focus on post-conviction investigations.
The dataset built in the present study could be used to check and qualify whether other claims made about CCRC or appeal court characteristics are (or are not) evidenced for the whole population of cases in one specific category. Alternatively, the methodology used here could be repeated in relation to another offence or emergent case category, such as historical murders, revenge porn and underage sexting offences, terrorism or convictions under the COVID-19 emergency legislation. Building up a detailed knowledge base of how general claims made about criminal appeals pertain to these case types would provide an original and valuable academic path.
It would also follow the point emphasised in the conclusion, that for research and policy development to progress, future studies should account for the gap between literature-based assertions and how organisations work in practice, given the resource constraints of the organisation under critique. This does not amount to an outright defence of CCRC operations or appeal court jurisprudence. It is however a crucial means of strengthening future research into its casework.
The research developed from two fundamental problems – firstly, the potentially erroneous convictions for HSA of the innocent, and secondly, potentially inadequate post-conviction investigation failing to identify these cases. As discussed above, the research findings indicate that approaches seeking to ‘level the playing field’ can result in a reverse miscarriage of justice, increasing chances that genuine abusers go free. Therefore, it is argued that a strategy developed by thinking ‘outside the box’ would greatly improve chances of decreasing HSA and in turn, unsafe convictions thereof. Preventative intervention and policy change is advocated at several stages of HSA case development, pre-conviction and even prior to justice system involvement.
The first and foremost effective way to stop wrongful HSA convictions is to prevent them arising. Better still would be the prevention of sexual abuse occurring. Radical programmes such as the Prevention Project Dunkelfeld in Germany have proposed the encouragement of would-be abusers to self-identify as potential abusers and seek help with managing their impulses.672 Most preventative
672 The Prevention Project Dunkelfeld provides free, confidential treatment for individuals who have a partial or exclusive
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attention to date has been paid to known offenders with a general CSA awareness-raising aspect about reducing risks of victimization, and discussion about pre-offence intervention is notably absent in academic discourse on HSA.673
Rayment‐McHugh et al argue that CSA is geographically unevenly distributed, and that neither individual level approaches (such as most clinical, justice and child protection services) nor population level approaches (such as large scale public awareness or education campaigns) naturally reach the high prevalence ‘hotspots’, be they families, neighbourhoods, or organisations.674 They argue that efforts to prevent abuse should be based on the best possible understanding of its precise local causes and context, as very different approaches would be required to successfully prevent sexual abuse in a family home, than an organisational setting. Other ideas criminology can contribute are ‘target hardening’, in the form of teaching self-protective behaviors to potential victims to resist sexual victimization.675 While this could be incredibly beneficial, it courts controversy in an era of strong resistance to policies seen to create an onus (and inter alia, blame) on would-be sexual offence victims. In terms of balancing the risk of sexual abuse going unsanctioned, and injustices arising from attempts at criminal justice, preventative action is the single most effective solution, which should not be ignored.
Educating both potential victims and abusers about what constitutes sexual abuse, and what the legal implications of it are, could lead to fully informed behaviour choices (i.e. non-denial) on the part of perpetrators. Hopefully, this could also go towards preventing abuse. Education about what is and what is not sexual abuse could also encourage victims to recognise this and report much more promptly, strengthening prosecutions.
Intervention at the stage of HSA complaint making and recording would also be invaluable. Though much has been done in terms of police strategy (such as Achieving Best Evidence interview techniques and training), many convictions have been overturned due to accusers making identical allegations against others, or exaggerating their accounts. In such cases, the Court and/or CCRC commented on the likelihood of guilt and unease at the circumstances requiring the convictions to be quashed.
Real-life examples of (anonymised) claimants over-inflating their allegations in line with beliefs about increased compensation (as Hoyle and Sato have published)676 could assist criminal justice professionals who are in contact with victim/accusers, to ensure that complaints and allegations are not over-inflated. If accusers were informed about the negative consequences of their exaggerated paedophilic sexual preference. However, a recent study found it to be ineffective. See, A Mokros, R Banse, ‘The "Dunkelfeld" Project for Self-Identified Pedophiles: A Reappraisal of its Effectiveness’ [2019] J Sex Med 16(5), 613
673 S Rayment‐McHugh, D Adams, R Wortley and N Tilley, ‘‘Think Global Act Local’: a place‐based approach to sexual abuse prevention’ [2015] Crime Science 4(22), 1 674 Ibid., p3 675 B Hebenton, ‘From offender to situation: The ‘cold’ approach to sexual violence prevention?’ International Journal of Law and Psychiatry [2011] 34, 145 676 C Hoyle and M Sato, Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission (2019 Oxford University Press) p153
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allegations on the safety of convictions, knowing that this increases their chances of seeing an offender brought to justice (and remaining convicted) may encourage them to be more truthful and precise. Similarly, training for prosecutors on HSA case specifics (and the factors causing convictions to become overturned), could lead to stronger cases built on multiple points.
The difficulty of this is that, in helping accusers make their accounts more credible, any resulting conviction is more difficult to appeal. While on one hand this helps genuine victims achieve (lasting) justice, it serves to increase the difficulty for those wrongfully convicted, who may have little to no means of appeal other than by demonstrating damaged complainant credibility.
Another option (if not a complete solution) would be to overhaul how sexual offence cases are handled, and offer an option more aligned with restorative justice. While this sounds unfeasible (and to some, undesirable), Baroness Stern’s (2010) review into the handling of rape complaints observes, in a similar vein, that ‘conviction rates are a poor measure of “success” in rape cases if we are to take into account the broader impacts on victims themselves…. it is time to take a broader approach to measuring success in dealing with rape [in terms of] of other important outcomes for victims’.677 Complainants may benefit far more from a non-criminal justice system form of conflict resolution, such as counselling sessions with the person they accuse, in order for each to come to terms with what they perceive to have happened, and to understand why the other party feels how they feel. This removes the binary sense of ‘winner versus loser’ and associated culpability as a Court rules it, and encourages both parties to approach the matter in a more individual, restorative sense.
Repositioning my outlook: some personal reflections
It is uncomfortable to raise the fact that some of those convicted for HSA are innocent, when there are also undoubtedly many factually guilty abusers who evade conviction. Evidence indicates that many cases of HSA do not enter the criminal justice system. The CSEW estimated that 7.5% of adults aged 18 to 74 years experienced sexual abuse before the age of 16 years (3.1 million people); this includes both adult and child perpetrators. 678 For each type of sexual abuse measured by the CSEW, it was estimated that less than one-quarter of adults had reported their abuse to the police. Around 1 in 7 adults who called the National Association for People Abused in Childhood’s (NAPAC’s) helpline had not told anyone about their abuse before.679 Moreover, a HM Inspectorate of Constabulary and Fire and Rescue Services (HMICFRS) report on crime recording found that sexual offences were
677 V Stern, Report by Baroness Vivien Stern CBE of an Independent Review into How Rape Complaints Are Handled by Public Authorities in England and Wales (2010, Home Office) p117 678 Office for National Statistics, Child abuse in England and Wales: year ending March 2019 (released 5 March 2020)
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previously under-recorded by 26%.680 Although it is life-ruining for the innocent to be wrongly convicted, the number of lives affected are a tiny percentage when compared to the proportion of those abused who do not see their abuser brought to justice.
This discomfort has been underlined by the finding that many of the judgments where convictions were quashed, registered disconcerting indicators of guilt as to the applicant’s involvement in HSA (either by enabling or failing to report HSA if not perpetrating the specific offence convicted thereof). The circumstances particular to HSA cases inhibiting retrials in such instances is also troubling.
Planning the study, I was acutely aware of a large number of factors indicating that false accusations and wrongful convictions for HSA were a large and immediate risk. My previous research looked at the appalling effects upon those falsely accused and others claiming to be wrongly convicted for (largely sexual and historical) abuse. Although I expected to find indicators of the prevalence of unsafe HSA convictions, the findings have marked a repositioning of my outlook. However, it is important to uphold the same standards of fairness for HSA as in other criminal appeals, and to maintain rigorous scrutiny of the fairness of criminal procedure and the organisations involved.
At a time of austerity cuts to the justice system, the future of this body is itself not set in stone. As an independent Non-Departmental Public Body, the CCRC is funded by way of a ‘Grant in Aid’ from the Ministry of Justice, in order for it to maintain independence from the Government and other criminal justice system agencies. However, the CCRC remains chronically underfunded, and chief executive Karen Kneller identified securing enough money as a major threat.681 Former CCRC Commissioner Laurie Elks identified ‘underlying hostility’ towards the organisation on behalf of the Home Office as far back as 2008. He warns of threats to the CCRC provision of casework in terms of the sponsoring unit regarding it ‘as an unnecessary evil’, and where the executive has demonstrated willingness to use legislation to pare down the remit of the CCRC, as evidenced in the Criminal Justice and Immigration Bill at that time, which sought to prevent appeals on ‘technicalities’.682
In light of the crystalizing threat of budgetary cuts and statutory provisions further curtailing the body investigating possible miscarriages of justice, accurate research detailing its casework outcomes would therefore hold value where its preservation is concerned. So too could it be used to inform decisions about where to focus resources improving the justice system. In the face of assertions in the literature, this research is testament to the value of empirical socio-legal investigation. The importance of research that subjects claims to scrutiny, as recognised in the conclusions above, will set the tone for my future work.
680 HM Inspectorate of Constabulary and Fire and Rescue Services (HMICFRS) report, ‘Crime-recording: making the victim count’
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BIBLIOGRAPHY
Cases *
DPP v Fell [2013] EWHC 562 (Admin) DPP v P [1991] 93 Crim App R 267 Fairlie v Perth and Kinross Healthcare NHS Trust [2004] SLT 1200 (OH) 126 Farnell v Criminal Cases Review Commission [2003] EHWC 835 (Admin) Lillie & Reed v Newcastle City Council & Ors [2002] EWHC 1600 (QB) Nunn v Chief Constable of the Suffolk Constabulary & Another [2012] EWHC 1186 (Admin) PR v R [2019] EWCA Crim 1225, R v A (No 2) [2001] UKHL 25 R (Adams) v Secretary of State for Justice [2011] UKSC 18 R v B [2003] 2 Cr. App. R. 13 R v B [2005] EWCA Crim 63 R v Burke [2005] EWCA Crim 29 R v Carl Beech [2019] Case No. T20187624 (26 July 2019) R v Cooper [1969] 1 All ER 32 R v Criminal Cases Review Commission Ex p. Pearson [1999] 3 All E.R. 498 R v Crawley [2014] EWCA Crim 1028 R v Davis, Johnson and Rowe [2001] 1 Cr. App. R. 115 R (Ebrahim) v Feltham Magistrates Court [2001] 2 Cr App R 23 R v Great Yarmouth Magistrates Ex p. Thomas [1992] Crim. L.R. 116 R v H (1995) 2 AC 596 R v Hallahan [2014] EWCA Crim 2079 R v John Hartley [2011] EWCA Crim 1299 R v Lucas [1981] QB 720 R v Makanjuola [1995] 3 All ER 730 R v Mayberry [2003] EWCA Crim 782 R v Nealon [2014] EWCA Crim 574 R v Pendleton [2001] UKHL 66 R v Robson [2006] EWCA Crim 2754 R v RT [2002] 1 All E.R. 683 R v Sheikh [2006] EWCA Crim 2625 R v SR [2019] EWCA Crim 887 R v Telford Justices Ex p. Badhan [1991] 2 Q.B. 78 Re P and Q (Children: Care Proceedings: Fact Finding) [2015] EWFC 26 (Fam) Re Hobson (1831) 168 Eng. Rep. 1034 Sheikh v the Crown (retrial, unreported)
* The CCRC HSA referrals are set out in Table 1 Appendix A
Statutes and statutory instruments
Criminal Appeal Act 1968 Criminal Appeal Act 1995 Criminal Cases Review Commission (Information) Act 2016 Criminal Justice and Public Order Act 1994 Criminal Procedure (Scotland) Act 1995 Contempt of Court Act 1981 Domestic Violence, Crime and Victims Act 2004 Education Act 2011 Human Rights Act 1998 Indecency with Children Act 1960 Northern Ireland (Emergency Provisions) Act 1973 Northern Ireland (Temporary Provisions) Act 1972 Northern Ireland (Emergency Provisions) Act 1978 Police and Criminal Evidence Act 1984
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Prevention of Terrorism (Temporary Provisions) Act 1973 Sexual Offences Act 1956 Sexual Offences Act 2003 Sexual Offences (Amendment) Act 1976 Sexual Offences (Amendment) Act 1992 Youth Justice and Criminal Evidence Act 1999
Books (including edited collections)
C Ashford and P McKeown (eds) Social Justice and Legal Education (2018, Cambridge Scholars Publishing)
L Baum, Judges And Their Audiences: A Perspective On Judicial Behavior (2008, Princeton)
U Beck, Risk Society: Towards a New Modernity (1992, Sage)
P Bibby (ed) Organised Abuse: The Current Debate (1996, Arena)
W Blackstone, Commentaries on the Laws of England Book VI (c1765–1770, Clarendon)
N Brewer and A Douglass (eds) Psychological Science and the Law (2019, Guilford Press)
R Burnett (ed) Wrongful Allegations of Sexual and Child Abuse (2016, OUP)
S Cohen, Folk Devils and Moral Panics (2004, Routledge)
S Cohen, Folk Devils and Moral Panics: The Creation of the Mods and Rockers (1972, Paladin)
S Cohen (ed) Images of Deviance (1971, Penguin)
V Cree, G Clapton and M Smith, Revisiting Moral Panics (2015, Polity Press)
D Davies, In Plain Sight: the life and lies of Jimmy Savile (2014, Quercus)
J Doak, C McGourlay, M Thomas, Criminal Evidence in Context (2018, Routledge)
R Edge and A Mills (eds) Evidence (2016, OUP)
L Elks, Righting Miscarriages of Justice? Ten Years of the Criminal Cases Review Commission (2008, JUSTICE)
B Forst, Errors of Justice: Nature, Sources and Remedies (2004, Cambridge University Press)
F Furedi, Moral Crusades in an Age of Mistrust: The Jimmy Savile Scandal (2013, Palgrave Macmillan)
D Garland, The Culture of Control (2001, OUP)
P du Gay, In Praise of Bureaucracy: Weber, Organisation, Ethics (2002, Sage)
E Goode and N Ben-Yehuda, Moral Panics: The Social Construction of Deviance (2009, Blackwell)
P Granhag, A Vrij and B Verschuere (eds) Detecting deception: Current challenges and cognitive approaches (2015, Wiley- Blackwell)
M Hale LCJ, Historia Placitorum Coronæ; The History of the Pleas of the Crown (c1778)
M Hall, Victims of Crime: Construction, Governance and Policy (2017, Palgrave MacMillan)
S Hall, ‘Introduction’ in S Hall (ed) Representation: Cultural Representations and Signifying Practices (1997, Sage)
S Heaton, A Critical Evaluation of the Utility of Using Innocence as a Criterion in the Post-Conviction Process (PhD thesis, December 2013)
C Hoyle and M Sato, Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission (2019, OUP)
C Hoyle, N-E Speechley and R Burnett, The Impact of Being Wrongly Accused of Abuse in Occupations of Trust: Victims’
156
Voices (2016, OUP)
C Hoyle and R Young (eds) New Visions of Crime Victims (2002, Hart Publishing)
P Jenkins, Moral Panic: Changing Concepts of the Child Molester in Modern America (1998, Yale University Press)
A Jennings (ed) Justice Under Fire: The Abuse Of Civil Liberties In Northern Ireland (1990, Pluto Press)
J Jackson and S Doran, Judge Without Jury: Diplock Trials in the Adversarial System (1995, Clarendon)
C Krinsky (ed) The Ashgate Research Companion to Moral Panics (2013, Ashgate)
J LaFontaine, The Extent and Nature of Organised and Ritual Abuse (1994, London, HMSO)
R Lancaster, Sex Panic and the Punitive State (2011, University of California Press)
P Lewis, Delayed Prosecution for Childhood Sexual Abuse (2006, OUP)
D Medwed, Prosecution Complex: America's Race to Convict, and Its Impact on the Innocent (2012, New York University Press)
L Montada and M Lerner, Responses To Victimizations And Belief In A Just World (1998, Springer)
M McConville and G Wilson (eds) Handbook of Criminal Justice Process (2002, OUP)
M Naughton (ed) The Criminal Cases Review Commission: Hope for the Innocent? (2010, Palgrave Macmillan)
M Naughton, The Innocent and the Criminal Justice System (2013, Palgrave)
M Naughton, Rethinking Miscarriages of Justice: Beyond the Tip of the Iceberg (2007, Palgrave)
M Naughton and G Tan (eds) Innocence Network UK Symposium on the Reform of the Criminal Cases Review Commission (2012, Lexis Nexis)
R Nobles and D Schiff, Understanding Miscarriages of Justice: Law, the Media, and the Inevitability of Crisis (2000, OUP)
H Packer, The Limits of the Criminal Sanction (1968, Stanford University Press)
D Pilgrim, Child Sexual Abuse: Moral Panic or State of Denial? (2018, Routledge)
S Poyser, A Nurse and R Milne, Miscarriages of Justice: Causes, Consequences and Remedies (2018, Policy Press)
H Quirk, T Seddon and G Smith (eds) Regulation and criminal justice: Innovations in policy and research (2010, Cambridge University Press)
A Radcliffe, G Gudjonsson, A Heaton-Armstrong and D Wolchover (eds) Witness Testimony in Sexual Cases Evidential: Investigative and Scientific Perspectives (2016, OUP)
K Roach, Due Process and Victims' Rights: The New Law and Politics of Criminal Justice (2010, University of Toronto Press)
J Robins (ed) No Defence: Lawyers and Miscarriages of Justice (2013, The Justice Gap)
J Robins, Guilty Until Proven Innocent: the crisis in our justice system (2018, Biteback)
C Ryder, The RUC 1922–1997: A Force under Fire (1997, London: Mandarin)
A Sanders, R Young, and M Burton (eds) Criminal Justice (2010, OUP)
P Shirlow and K Mcevoy, Beyond The Wire: Former Prisoners And Conflict Transformation In Northern Ireland (2008, Pluto Press)
J Silverman and D Wilson, Innocence Betrayed: Paedophilia, The Media and Society (2002, Polity Press)
Y Smaal, A Kaladelfos and M Finnane (eds) The Sexual Abuse of Children: Recognition and Redress (2016, Monash University Publishing)
157
C Walker and K Starmer (eds) Miscarriages of Justice: A Review of Justice in Error (2004, OUP)
W Wallace, The Effect of Confirmation Bias in Criminal Investigative Decision Making (2016, PhD Thesis, Walden University)
J Warner, The Emotional Politics of Social Work and Child Protection (2015, Policy Press)
R Webster, The Great Children’s Home Panic (1998, Orwell Press)
R Webster, The Secret of Bryn Estyn: The Making of a Modern Witch Hunt (2005, Orwell Press)
I Weiner and R Otto (eds) The Handbook of Forensic Psychology (2014, Wiley)
B Williams, Victims of Crime and Community Justice (2005, Jessica Kingsley Press)
G Williams, Textbook of Criminal Law (1978, Stevens)
M de Young, The Day Care Ritual Abuse Moral Panic (2004, McFarland & Co)
Journal articles
D Altheide, ‘Moral Panic: From Sociological Concept to Public Discourse’ Crime, Media and Culture [2009] 5(1)
A Ashworth, ‘Four threats to the presumption of innocence’ International Journal of Evidence and Proof [2008] 10
V Bell, ‘The Vigilant(e) Parent and the Paedophile: The News of the World Campaign 2000 and the Contemporary Governmentality of Child Sexual Abuse’ Feminist Theory [2002] 3(1)
L Bridges and M McConville, ‘Keeping Faith With Their Own Convictions: The Royal Commission on Criminal Justice’ Modern Law Review [1994] 57
R Burnett, C Hoyle and N-E Speechley ‘The Context and Impact of Being Wrongly Accused of Abuse in Occupations of Trust’ The Howard Journal of Crime and Justice [2017] 56(2)
G Clapton, V Cree and M Smith, ‘Moral Panics and Social Work: Towards a sceptical view of UK child protection’ Critical Social Policy [2013] 33(2)
S Colley, ‘Perpetrators of Organised Child Sexual Exploitation (CSE) in the UK: a Review of Current Research’ Journal Of Sexual Aggression [2019] 25(3)
D Connolly, H Price and H Gordon, ‘Judging The Credibility Of Historic Child Sexual Abuse Complainants Psychology, Public Policy, and Law [2009] 5(2)
C Critcher, ‘Moral Panic Analysis: Past, Present and Future’ Sociology Compass [2008] 2(4)
J Davis, ‘Victim Narratives and Victim Selves: False Memory Syndrome and the Power of Accounts’ Social Problems [2005] 52(4)
P Duff, ‘Straddling Two Worlds: Reflections of a Retired Criminal Cases Review Commissioner’ Modern Law Review [2009] 72
D Eady and J Price, ‘Innocent Projects, the CCRC and the Court of Appeal: breaching the barriers?’ Archbold Review [2010] 9
S Farrall and C Hay, ‘Not So Tough On Crime? Why Weren't the Thatcher Governments Radical in Reforming the Criminal Justice System?’ British Journal of Criminology [2010] 50
K Findley and M Scott, ‘The Multiple Dimensions of Tunnel Vision in Criminal Cases’ 2 Wis. L. Rev. [2016] 2
K Fox, ‘Incurable Sex Offenders, Lousy Judges & the Media: Moral Panic Sustenance in the Age of New Media’ American Journal of Criminal Justice [2012] 38
C Hafer and L B`egue, Experimental Research on Just-World Theory: Problems, Developments, and Future Challenges Psychol. Bull. [2005] 131 128
K Hail-Jares, B Lowrey-Kinberg, K Dunn and L Gould, ‘False Rape Allegations: Do they Lead to a Wrongful Conviction
158
Following the Indictment of an Innocent Defendant?’ Justice Quarterly [2020] 37(2)
B Hebenton, ‘From offender to situation: The ‘cold’ approach to sexual violence prevention?’ Int. J. Law Psych. [2011] 34
L Hoyano, ‘Witnesses: Will Special Measures Directions Contravene Guarantees of a Fair Trial?’ [2001] Crim. L.R. 961
J Jackson, ‘Justice for All: Putting Victims at the Heart of Criminal Justice?’ Journal of Law and Society [2003] 30(2)
S Jahnke, R Imhoff and J Hoyer, ‘Stigmatization of People with Pedophilia: Two Comparative Surveys’ Archives of Sexual Behavior [2015] 44(1)
S Kassin, I Dror and J Kukucka, ‘The Forensic Confirmation Bias: Problems, perspectives, and proposed solutions’ Journal of Applied Research in Memory and Cognition [2013] 2(1)
L Kelly, 'The (In)Credible Words Of Women: False Allegations In European Rape Research' Violence Against Women [2010] 16
B Lauriat, ‘The Examination of Everything: Royal Commissions in British Legal History’ Statute Law Review [2010] 31(1)
L Leigh, ‘Lurking Doubt and the Safety of Convictions’ Criminal Law Review [2006] 809
I Marsh and G Melville, ‘Moral Panics And The British Media – A Look At Some Contemporary ‘Folk Devils’’ Internet Journal of Criminology [2011]
C McCartney and S Roberts, ‘Building Institutions to Address Miscarriages of Justice in England and Wales: ‘Mission Accomplished’?’ University of Cincinnati Law Review [2012] 80
C McCartney, N-E Speechley, ‘The Supreme Court, post-conviction disclosure and ‘fishing expeditions’: R (Nunn) v Chief Constable of Suffolk Constabulary & Anor [2014] UKSC 37’ International Journal of Evidence & Proof [2015] 19(2)
E McLaughlin, J Muncie and G Hughes, ‘The Permanent Revolution: New Labour, New Public Management and the Modernization of Criminal Justice’ Criminology and Criminal Justice [2001] 1
R Merton, ‘Bureaucratic Structure and Personality’ Social Forces [1940] 18(4)
A Mokros and R Banse, ‘The "Dunkelfeld" Project for Self-Identified Pedophiles: A Reappraisal of its Effectiveness’ [2019] J Sex Med 16(5)
M Naughton, ‘Redefining Miscarriages of Justice: a revived human rights approach to unearth subjugated discourses of wrongful criminal conviction’ British Journal of Criminology [2005] 45
M Naughton, ‘The Criminal Cases Review Commission: Innocence Versus Safety and the Integrity of the Criminal Justice System’ Criminal Law Quarterly [2012] 58(2)
T Newburn, ‘Tough on Crime: Penal Policy in England and Wales’ Crime and Justice [2007] 36, 455
M Newbury, ‘Historical Sexual Abuse Investigations: A case for law reform’ Current Issues In Criminal Justice [2014] 44, 1
R Nobles and D Schiff, ‘Absurd Asymmetry – a comment on R v Cottrell and Fletcher and BM, KK and DP (Petitioners) v Scottish Criminal Cases Review Commission’ Modern Law Review [2008] 71
B O’Brien ‘Prime Suspect: An examination of factors that aggravate and counteract confirmation bias in criminal investigations’ Psychology, Public Policy, and Law [2009] 15(4)
A O’Hagan, ‘Light Entertainment’ London Review of Books [2012] 34 (21)
W Petherick, False Reports in Child Abuse and Neglect Cases Child Abuse and Neglect [2019] 10(16)
D Pilgrim, ‘The Perils of Strong Social Constructionism: The Case of Child Sexual Abuse’ Journal of Critical Realism [2017] 16(3)
H Quirk, ‘Don’t Mention the War’ Modern Law Review [2013] 76(6)
S Rayment-McHugh, D Adams, R Wortley and N Tilley, ‘‘Think Global Act Local’: a place-based approach to sexual abuse prevention’ [2015] Crime Science 4(22)
159
M Requa, ‘Considering Just-World Thinking in Counter-Terrorism Cases: Miscarriages of Justice in Northern Ireland’ Harvard Human Rights Journal [2014] 27
S Roberts, ‘The Royal Commission on Criminal Justice and Factual Innocence: Remedying Wrongful Convictions in the Court of Appeal’ Justice Journal [2004] 1(2)
S Roberts and L Weathered, ‘Assisting the factually innocent: the contradictions and compatibility of innocence projects and the CCRC’ Oxford Journal of Legal Studies [2009] 29(1)
P Rumney and K McCartan, ‘Purported False Allegations of Rape, Child Abuse and Non-Sexual Violence: Nature, Characteristics and Implications’ Journal of Criminal Law [2017] 81 499
M Sato, C Hoyle and N-E Speechley, ‘Wrongful convictions of refugees and asylum seekers: responses by the Criminal Cases Review Commission’ Criminal Law Review [2017] 2
S Savage, J Grieve and S Poyser, ‘Putting Wrongs To Right’ Criminology and Criminal Justice [2007] 7(1)
D Spencer, ‘Sex Offender as Homo Sacer’ Punishment & Society [2009] 11
M Stevenson, E Malik, R Totton and D Reeves, ‘Disgust Sensitivity Predicts Punitive Treatment of Juvenile Sex Offenders: The role of empathy, dehumanization, and fear’ Analyses of Social Issues and Public Policy [2014] 1530
P Strong, ‘Epidemic Psychology: A Model’ Sociology of Health & Illness [1990] 12(3)
R Tewkesbury, ‘Collateral Consequences of Sex Offender Registration’ Journal of Contemporary Criminal Justice [2005] 21(1)
B Tully, ‘The Evaluation of Retractions in Sexual Abuse Cases’ Child Abuse Review [2002] 11
A Tversky and D Kahneman, ‘Rational Choice and the Framing of Decisions’ Journal of Business [1986] 59
A Voss and R Wiener, ‘Feeling your way to a decision: The role of emotion in perceptions of sexual harassment’ Law and Human Behavior [2016] 30
I Weinstein, ‘Don't Believe Everything You Think: Cognitive Bias in Legal Decision Making’ Clinical Law Review [2003] 9 789
B Williams, ‘The Victim's Charter: Citizens as Consumers of Criminal Justice Services’ The Howard Journal of Criminal Justice [2002] 38
J Young, ‘Moral Panic: Its Origins in Resistance, Ressentiment and the Translation of Fantasy into Reality’, British Journal of Criminology [2009] 49(1)
Command papers
Conservative and Unionist Party, Invitation to Join the Government of Britain (2010, Conservative Party)
Court of Appeal Criminal Division, Annual Report 1 October 2018 to 30 September 2019 (24 February 2020)
Criminal Cases Review Commission, Annual Report and Accounts 2002/03 (HC845, 2003)
Criminal Cases Review Commission, Annual Report and Accounts 2006/07 (HC771, 2006)
Criminal Cases Review Commission, Annual Report and Accounts 2008/09 (HC857, 2009)
Criminal Cases Review Commission, Annual Report and Accounts 2009/10 (HC254, 2010)
Criminal Cases Review Commission, Annual Report and Accounts 2010/11 (HC1225, 2011)
Criminal Cases Review Commission, Annual Report and Accounts 2011/12 (HC390, 2012)
Criminal Cases Review Commission, Annual Report and Accounts 2012/13 (HC482, 2013)
160
Criminal Cases Review Commission, Annual Report and Accounts 2013/14 (HC207, 2014)
Criminal Cases Review Commission, Annual Report and Accounts 2014/15 (HC210, 2015)
Criminal Cases Review Commission, Annual Report and Accounts 2015/16 (HC244, 2016)
Criminal Cases Review Commission, Annual Report and Accounts 2016/17 (HC246, 2017)
Criminal Cases Review Commission, Annual Report and Accounts 2017/18 (HC1083, 2018)
Criminal Cases Review Commission, Annual Report and Accounts 2018/19 (HC2438, 2019)
Criminal Law Revision Committee, Fifteenth Report: Sexual Offences (Cm9312, 1984)
Department for Education, Working Together to Safeguard Children: a guide to inter-agency working to safeguard and promote the welfare of children (2019)
P Devlin, Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases (HC338, 1976)
Environment, Food and Rural Affairs Committee, Dog Control and Welfare (HC575, 2013)
H Fisher, Report of an inquiry into the death of Maxwell Confait (HC90 1977)
B Hamlyn, A Phelps, J Turtle and G Sattar, Are Special Measures Working? Evidence from Surveys of Vulnerable and Intimidated Witnesses (2004, Home Office Research Study No. 283, HMSO)
J Harris and S Grace, A Question of Evidence? Investigating and Prosecuting Rape in the 1990s (Home Office Research Study 196, Home Office 1999)
R Henriques, The Independent Review of the Metropolitan Police Service's handling of non-recent sexual offence investigations alleged against persons of public prominence (31 October 2016)
HM Government, Victims Strategy (Cm9700, 2018)
HM Government, The Coalition: Our Programme for Government (20 May 2010, Cabinet Office)
HM Inspectorates of Constabulary, Crime: Making the Victim Count (2014, HMIC)
Home Affairs Select Committee, The Work of The Criminal Cases Review Commission (HC106, 1999)
Home Affairs Select Committee, The Work of The Criminal Cases Review Commission (HC289-i, 2004)
Home Affairs Select Committee, The Conduct of Investigations Into Past Cases of Abuse in Children’s Homes (HC836, 2002)
Home Affairs Select Committee, Seventeenth Report: Police Bail (Cm962, 2015)
Home Office, Criminal Justice System Review: Rebalancing the Criminal Justice System in Favour of the Law-Abiding Majority (2006, Home Office)
Home Office, Justice For All (Cm5563, 2002)
Home Office, Speaking Up For Justice: Report of the Interdepartmental Working Group on the treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System (1998, HMSO)
Home Office, Setting the Boundaries: Reforming the Law on Sex Offences (2000, HMSO)
Home Office, The Victim’s Charter: a statement of the rights of victims of crime (1990, HMSO)
Home Office, The Victim’s Charter: a statement of service standards for victims of crime (1996, HMSO)
Independent Inquiry into Child Sexual Abuse, Allegations of Child Sexual Abuse Linked to Westminster: Investigation Report (2020, HMSO)
Independent Inquiry into Child Sexual Abuse, Interim Report (HC954-I, 2018)
Justice Select Committee, Twelfth Report: Criminal Cases Review Commission (HC850, 2015)
Justice Select Committee, Oral evidence: Work of the Victims' Commissioner (HC305, 28 April 2020)
161
Law Commission, Criminal Law report on Corroboration of Evidence in Criminal Trials (Cm1620, 1991)
Law Commission, Corroboration of Evidence in Criminal Trials (Working Paper No.115, 1990)
Law Commission, Evidence of Bad Character in Criminal Proceedings (Law Com No 273, 2001)
J Macur DBE, The Report of the Macur Review (HC390 2017)
J May, Report of the Inquiry into the circumstances surrounding the convictions arising out of the bomb attacks in Guildford and Woolwich in 1974 (HC499, 1994)
Ministry of Justice, Providing anonymity to those accused of rape: An assessment of evidence (November 2010)
Ministry of Justice, Code of Practice for Victims of Crime (2015, HMSO)
Ministry of Justice, Reply to the Home Affairs Select Committee Fourth Report HC836 (Cm5799, 2003)
Ministry of Justice, Triennial Review: Criminal Cases Review Commission - Combined Report (2013, Home Office)
Ministry of Justice, Consultation on Improving the Victims’ Code and the Government Response to the 2019 consultation: Proposals for revising the Code of Practice for Victims of Crime (CP236, 2020)
S Payne, Redefining Justice: Addressing the individual needs of victims and witnesses (2009, Ministry of Justice)
C Philips, Report of the Royal Commission on Criminal Procedure (Cm8092, 1981)
V Stern, Report by Baroness Vivien Stern CBE of an Independent Review into How Rape Complaints Are Handled by Public Authorities in England and Wales (2010, Home Office)
W Runciman, Report of the Royal Commission on Criminal Justice (Cm2263, 1993)
P Wanless and R Whittam QC, An Independent Review Of Two Home Office Commissioned Independent Reviews Looking At Information Held In Connection With Child Abuse from 1979-1999 (2014, Home Office)
R Waterhouse, Lost In Care: Report of the Tribunal of Inquiry into the Abuse of Children in Care in the Former County Council Areas of Gwynedd and Clwyd since 1974 (HC201, 2000)
Commissioned research reports
D Allnock, J Lloyd and J Pearce, Evidence-based Models of Policing to Protect Children from Sexual Exploitation (2017, University of Bedfordshire Institute of Applied Social Research)
R Barker et al, Abuse in the Early Years: Report of the Independent Inquiry into Shieldfield Nursery and Related Events (1998, Newcastle County Council)
A Bingham and L Settle, Scandals and silences: the British press and child sexual abuse (2015, History and Policy Group)
G Davies, C Wilson, R Mitchell, and J Milsom, Videotaping Children’s Evidence: An Evaluation (1995, HMSO)
L Exton and K Thandi, Would they actually have believed me? A focus group exploration of the underreporting of crimes by Jimmy Savile (2014, NSPCC and HMIC)
D Gray and P Watt, Giving Victims a Voice: Joint report into sexual allegations made against Jimmy Savile (2013, NSPCC and Metropolitan Police Service)
Her Majesty's Inspectorate of Constabulary, Mistakes were made: a review into allegations and intelligence material concerning Jimmy Savile between 1964 and 2012, (2013, HMIC)
Her Majesty's Inspectorate of Constabulary, Crime: Making the Victim Count (2014, HMIC)
J Hodgson and J Horne, ‘The extent and Impact of legal representation on applications to the Criminal Cases Review Commission’ Legal Services Commission Report (2008, Warwick Law School)
C Hoyle, N-E Speechley and R Burnett, The Impact of Being Wrongly Accused of Abuse in Occupations of Trust: Victims’ Voices (2016, OUP)
Independent Police Complaints Commission, Operation Gullane: Report on the IPCC Managed Investigation Undertaken by West Yorkshire Police into Complaints Emanating from Operation Aldgate (2007)
162
L Hoyano, The Operation of YJCEA 1999 section 41in the Courts of England & Wales, Oxford Legal Studies Research Paper No. 17/2019 (2018, Criminal Bar Association and University of Oxford)
K Lampard and E Marsden, Themes and lessons learnt from NHS investigations into matters relating to Jimmy Savile (2015, Department for Health)
Nottinghamshire County Council, Revised Joint Enquiry Report (7 June 1990) p45-48
M O’Neill, Independent Evaluation Supporting ‘Historic’ Victims/Survivors of Child Sex Exploitation (CSE) in Leeds: Pilot Project Administered by the Office of Norfolk Police & Crime Commissioner (30 July 2016)
N Pollard, The Pollard Review Report (2012)
J Smith, An Independent Review Into the BBC’s Culture and Practices During the Jimmy Savile and Stuart Hall Years (2016)
Statistical datasets
Crime Survey for England and Wales, Child Sexual Abuse dataset, year ending March 2019 (released 14 January 2020)
Home Office, Crime Outcomes open data year ending March 2019
Independent Inquiry into Child Sexual Abuse, Quarterly Statistics Jan-Mar 2020
Ministry of Justice, Statistical dataset: HMCTS management information - April 2019 to April 2020 (released 11 June 2020)
Ministry of Justice, Understanding the progression of serious cases through the Criminal Justice System (July 2012)
National Police Chiefs Council, Operation Hydrant Statistics
Office for National Statistics, Abuse during childhood: Findings from the Crime Survey for England and Wales, year ending March 2019 (released 5 March 2020)
Office for National Statistics, Child abuse in England and Wales: year ending March 2019 (released 5 March 2020)
Office for National Statistics, Child Abuse and the Criminal Justice System dataset, year ending March 2019 (released 05 March 2020)
Office for National Statistics, Crime and Justice in England and Wales, year ending December 2019 (latest release)
Office for National Statistics, Sexual offending: victimisation and the path through the criminal justice system
Office for National Statistics, Sexual Offences in England and Wales: year ending March 2019 (released 5 March 2020)
163
Organisation-specific guidance documents
Criminal Cases Review Commission, ‘About Us’ < https://ccrc.gov.uk/about-us>
Criminal Cases Review Commission, ‘Code of Conduct for Commission Board Members and Employees’ (Corporate Reports)
Criminal Cases Review Commission, ‘Decision-Making Process Casework Policy’ (13 February 2018)
Criminal Cases Review Commission, ‘Enquiries As To Witness Credibility’ Casework Policy (2020)
Criminal Cases Review Commission, ‘Formal Memorandum on Sexual Offence Cases’ (2015)
Criminal Cases Review Commission ‘Formal Memoranda on Stage 1 decisions (no reviewable grounds cases)’
Crown Prosecution Service, Guidance on Bad Character Evidence
Crown Prosecution Service, Guidance on Abuse of Process
Crown Prosecution Service, Guidelines on Prosecuting Cases of Child Sexual Abuse
Crown Prosecution Service, Non-Recent Cases and Nominal Penalties
Crown Prosecution Service, Prosecuting Rape: CPS Policy
Crown Prosecution Service, Rape and sexual offences - Chapter 17: Indictments
Independent Inquiry into Child Sexual Abuse, ‘Terms and Phrases’
Independent Inquiry into Child Sexual Abuse, ’Terms of Reference’
Independent Inquiry into Child Sexual Abuse, ‘The Truth Project’
Innocence Network UK (INUK), Dossier Of 44 Cases
Ministry of Justice, Claim compensation if you were the victim of a violent crime: Eligibility
Ministry of Justice, Understanding the progression of serious cases through the Criminal Justice System (July 2012)
Ministry of Justice, Providing anonymity to those accused of rape: An assessment of evidence (November 2010)
National Association for People Abused in Childhood, Was it Really Abuse? (2016, NAPAC)
National Society for the Prevention of Cruelty to Children, ‘Non-recent abuse: Support for adults abused as children’ (23 November 2018)
North Yorkshire Police, Reporting child sexual abuse to the police
Nottinghamshire Safeguarding Children Partnership, Interagency Safeguarding Children Procedures: Historical and Non- Recent Abuse (2015)
Nottinghamshire Safeguarding Children Partnership, Procedure for Historical and Non-Recent Abuse (July 2015)
Rape Support Centre ‘Historical sexual abuse, rape and reporting’
Tees Safeguarding Children Procedures ‘Historical abuse allegations’
164
News websites and blogs
E Allison, S Hattenstone and O Bowcott. ‘Miscarriages of justice body is not fit for purpose, lawyers say’ (The Guardian, 30 May 2018)
D Aaronovitch, ‘VIP abuse farce shows danger of moral panic’ (The Times, 26 Feb 2020)
BBC, ‘Blair Promises Victims Justice’ (14 Nov 2002)
BBC, Ex-MP Harvey Proctor calls abuse inquiry 'homosexual witch hunt' (25 August 2015)
BBC, ‘Child abuse inquiry: Detective on 'credible and true' account’ (18 Dec 2014)
BBC, ‘Jimmy Savile: Adverts advise victims on compensation’ (22 April 2014)
BBC ‘Jimmy Savile: police launch criminal investigation after victims claim some abusers are still alive’ (19 October 2012)
BBC, ‘Streatham attack: Emergency terror law to end early prisoner release’ (3 February 2020)
BBC, ‘Sex crime suspects deserve anonymity, MPs say’ (20 March 2015)
BBC, ‘Police's Savile Yewtree inquiry 'has gone too far' (26 March 2013)
BBC, ‘Nigel Evans verdict: MPs criticise police and CPS over prosecution’ (10 April 2014)
BBC, ‘North Wales child abuse scandal: The road to Macur’ (17 March 2016)
BBC, ‘Rape defendants to be granted anonymity’ (20 May 2010)
BBC, ‘One in five adults experienced abuse as children’ (14 January 2020)
BBC, ‘Rise in historic sexual abuse cases in Kent’ (23 July 2014)
BBC, ‘Cleveland Child Abuse Crisis - Twenty years on’ (21 May 2007)
College of Policing, College Statement Following Sir Richard Henriques Review (08 November 2016)
D Corker ‘‘Dr Fox’ in the magistrates court; winning the legal battle, losing the publicity war’ (21 January 2016)
Criminal Cases Review Commission, ‘Commission refers the murder conviction of Gary Walker’ (18 May 2020)
Criminal Cases Review Commission, ‘Commission refers the convictions of eight members of the Shrewsbury 24’ (4 March 2020)
Criminal Cases Review Commission, ‘Commission refers the murder conviction of Dwaine George to the to the Court of Appeal’ (15 November 2013)
The Daily Telegraph, ‘Jimmy Savile: Director of Public Prosecutions to review why CPS did not prosecute’ (24 October 2012)
L Dean, ‘Yewtree Effect: Trials of Dave Lee Travis, Rolf Harris and Bill Roache Led to Surge in Reported Sex Crimes’ (The Times, 24 January 2014)
165
L Dearden, ‘Legal challenge launched against CPS over plummeting rape prosecutions’ (The Independent, 24 September 2019)
Defence Brief, ‘Historic sexual offences’ (22 July 2016)
C Doidge, ‘Police ‘struggling’ with historical child abuse workload’ (BBC, 6 October 2013)
F Gibb, ‘Lawyers at war over calls to give rape accused anonymity’ (The Times, 17 February 2013)
The Guardian ‘Pressure grows for ban on naming of sexual crime suspects’ (17 October 2016)
The Guardian Justice On Trial series, ‘Miscarriages of justice? Cases that campaigners want CCRC to reconsider’ (27 March 2012)
The Guardian, ‘Prosecutors urged to ditch 'weak' rape cases to improve figures’ (24 September 2018)
R Hooper, 'Rape Victims Face ‘Culture Of Disbelief’ Despite #Metoo Movement, Says Commissioner' (The Independent, 2019)
The Independent, ‘Dwaine George: How Cardiff Law School’s Innocence Project discovered scientific evidence was of ‘no evidential significance’ (3 February 2016)
The Independent, ‘Man cleared of rape due to Facebook message revealing his innocence after two years in prison’ (3 January 2018)
D Jessel, ‘Something has to give’ (The Justice Gap, 28 May 2012)
The Justice Gap, ‘Anonymity for those accused of sexual offences would ‘jeopardise open justice’ (20 October 2016)
JF Law, ‘Historical sexual abuse victim claims – How much compensation? 2018 update’ (Legal Expert, 23 November 2018)
D Murray, ‘James O’Brien and the other VIP child sex abuse lies’ (The Spectator, 14 September 2019)
M Naughton, ‘Please forgive me, but I won’t be holding my breath’ (The Justice Gap, 6 September 2019)
N-E Speechley, ‘A one-sided conversation with the Making a Murderer lawyers’, (The Justice Gap, 1 November 2016)
S O’Neill, ‘Tom Watson VIP sex ring claim ‘started moral panic’’ (The Times, 5 March 2019)
J Robins, ‘‘Chronic liar’ charged with perverting the course of justice over false allegations’ (The Justice Gap, 5 May 2020)
Rochdale Online, ‘Rising number of contacts to the NSPCC Helpline about wellbeing of children’ (19 September 2019)
D Rose, ‘To catch a sex offender: Institutional amnesia’ (The Justice Gap, 26 September 2016)
D Rose, ‘In Memoriam: Noel Hartnett’ (The Justice Gap, 7 April 2015)
166
C Rowles, ‘Historic Sex Offence Cases’ (Inside Justice, 16 October 2015)
C Saltrese, ‘CPS guidelines and the Pinocchio effect’ (16 March 2015)
M Scott, ‘Should there be anonymity for rape defendants?’ (1 May 2013)
M Scott, ‘The shocking case of David Bryant reveals the fallacy that we can always spot a liar’ (21 July 2016)
M Scott, ‘DLT and Bill Roache: Is the CPS obsessed with political correctness?’ (13 February 2014)
M Scott, ‘Sir Cliff Richard and historic sex cases: is our justice system fair to old men?’ (3 September 2014)
C Summers, Miscarriages of Justice Report (BBC Life of Crime series, January 2001)
The Telegraph, ‘Police Forces Have To Prioritise Crime’ (2 March 2017)
The Telegraph, ‘Paul Gambaccini receives payout from CPS over unfounded abuse claims’ (3 November 2018)
A Travis, 'Smarter Justice' Plans Aim To Rebalance System In Favour Of Victim' (The Guardian, 16 November 2006)
G Virdi, ‘The media only wanted me when they thought I was guilty’ (The Justice Gap, 17 October 2019)
J Wood QC, ‘Is abuse of process in historic sex abuse dead?’ (Doughty Street Insights, 6 September 2019)
Television and radio programmes
BBC1, The Andrew Marr Show, broadcast 5 July 2014, archived at
Ministerial Statements
Hansard (25 June 1991) Col 510-511 per Robert Shirley, Minister of State for Home Affairs Hansard (1 November 2001) Col 853-856 per John Denham MP Hansard (15 November 2006) Col 3 Queen’s Speech Hansard (7 June 2010) Col 149, per Crispin Blunt, Parliamentary Under-Secretary of State for Justice Hansard (12 November 2010) Col 25WS per Crispin Blunt, Parliamentary Under-Secretary of State for Justice Hansard (24 October 2012) Col 923 per Tom Watson MP Hansard (30 June 2016) Cols 1672–1701 Commons Justice debate Hansard (18 July 2018) Col 409 per Anna Soubry MP
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APPENDIX
Table 1: Every HSA case referred by the CCRC up to April 2019
Case name as Offence(s) Date of Date of Referral Referral Citation in CCRC files* convicted for referral Judgment Outcome
W Graham Indecent assault, rape 22/10/98 19/1/99 Upheld R v Graham W [1999] 2 Cr. App. R. 201 689/98 P Michael Indecent assault (x3); 23/10/98 20/7/99 Upheld R v Michael P No. 98/6724/S1 270/97 rape (x3) A Derek 161/97 Indecent assault, rape 30/11/98 14/3/00 Quashed R v DA [2000] EWCA Crim 100 SHAW Cornelius Rape, indecent assault 9/2/00 15/2/01 Quashed R v CS & Anor [2001] EWCA Crim 339 277/97 SHAW Olbie Indecent assault, rape 28/3/00 15/2/01 Quashed R v CS & Anor [2001] EWCA Crim 339 167/00 Attempted rape, P Peter 527/97 26/1/00 30/11/01 Upheld R v P (PSP) [2001] EWCA Crim 2786 indecent assault, rape F Reginald Indecent assault, incest 11/12/98 14/2/02 Quashed R v RF [2002] EWCA Crim 633 106/97 (x4) Assault occasioning H (HAYES) ABH, indecent assault 12/12/00 17/7/02 Upheld R v H [2002] EWCA Crim 1855 Dennis 199/97 (x3), rape Conspiracy to commit BOND Ernest R v Frost-Smith & Ors [2003] EWCA Crim indecent assault, 7/2/01 30/10/03 Quashed 884/97 3435 indecent assault (x2) MORRIS Andrew Robert Indecent assault (x2) 15/5/01 5/2/03 Quashed R v A R M [2003] EWCA Crim 281 77/01 Part Indecent assault (x11), O 191/01 20/1/04 4/8/04 Quashed R v PO [2004] EWCA Crim 2336 rape (x2) (6 counts) Aiding and abetting EMM 886/98 11/3/03 13/10/05 Quashed R v EM [2005] EWCA Crim 2683 buggery EMM 402/01 Incest, indecent assault 11/3/03 13/10/05 Quashed R v EM [2005] EWCA Crim 268 Indecent assault (x2), H 509/03 29/9/04 30/6/05 Quashed R v JH [2005] EWCA Crim 1828 rape (x3) Indecent assault, rape G 248/00 10/6/04 22/6/05 Upheld R v GG [2005] EWCA Crim 1792 (x4) Indecent assault (x4), L 800/03 3/8/05 8/12/05 Upheld R v L [2005] All ER (D) 128 (Dec) rape WHITEHEAD, Indecent assault (x6) 8/3/05 23/6/06 Upheld R v Whitehead [2006] EWCA Crim 1486 Ian 241/04 SIDDALL, Indecency with a child, 8/12/04 15/6/06 Quashed R v Siddall & anor [2006] EWCA Crim 1353 John 511/00 Indecent Assault (x3) G 712/02 Indecent assault (x5), 29/9/04 31/3/06 Quashed R v JH [2005] EWCA Crim 1828
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rape (x3)
BROOKE, Ian Buggery, indecent 8/12/04 15/6/06 Quashed R v Siddall & anor [2006] EWCA Crim 1353 683/01 assault (x3), rape (x3) B 390/04 David Buggery (x2), indecency 2/5/06 14/12/06 Quashed R v David Barker [2006] EWCA Crim 3249 Barker with a child, rape (x2) Indecent assault (x2), R v Carrington-Jones [2007] EWCA Crim C 827/06 13/6/07 16/10/07 Quashed rape (x2) 2551 FULTON, Indecent assault (x5) 19/7/07 8/10/07 Quashed R v Fulton [2007] EWCA Crim 2787 Kenneth 762/05 Indecent assault on a R v P [2007] EWCA Crim 275 2007 WL P 456/02 female below age 13 22/3/06 24/1/07 Quashed 621035 (x2) Indecent assault (x4), S 198/03 28/9/06 8/6/07 Quashed R v Samuels [2007] EWCA Crim 1619 rape (x4) Buggery, indecent R 301/05 13/2/06 15/2/07 Upheld R v R - [2007] EWCA Crim 518 assault (x6), rape (x3) G 146/02 Indecent assault (x5) 20/2/07 1/2/08 Quashed R v G - [2008] EWCA Crim 241 Buggery, indecent W 441/06 29/3/07 19/5/08 Quashed R v W [2008] EWCA Crim 1329 assault (x11), rape (x2) Indecent assault, HAMMILL, unlawful sexual 26/6/07 23/10/08 Upheld R v MH [2008] EWCA Crim 2644 Martin 576/03 intercourse C 14/07 - Rape, indecent assault 15/6/09 15/12/09 Quashed R v F (Andrew) [2009] EWCA Crim 2909 Andrew France Indecency with a child, Mr F 591/02 25/9/08 13/5/09 Quashed R v PF [2009] EWCA Crim 1086 indecent assault, rape Attempted rape, gross indecency with a child, L 874/06 12/3/10 2/12/10 Quashed R v Aston, [2010] EWCA Crim 3067 indecent assault, rape (x2) Buggery, attempted J 95/07 rape, incest, indecent 24/2/10 27/10/10 Quashed R v P [2010] EWCA Crim 2438 assault (x8), rape (x4) Attempted Rape, sexual N 263/08 assault of a child under 13/5/10 29/10/10 Quashed R v (Allen Arthur) S [2010] EWCA Crim 263 13 (x5) Indecent assault, E 261/06 indecency with a child, 13/7/09 6/5/10 Upheld R v Mockford [2010] EWCA Crim 1380 rape O 633/08 C Indecent assault (x7), 11/6/10 4/11/10 Upheld R v C (Callaghan) [2010] EWCA Crim 2725 (Callaghan) rape U 868/07 ('R') Rape 23/3/11 28/6/12 Upheld R v S [2012] EWCA Crim 1433 Indecent assault (x2), X 706/08 ('C') 19/7/11 28/6/12 Quashed R v S [2012] EWCA Crim 1433 attempted rape, rape Buggery, indecency with V 201/08 ('B') 26/7/11 28/6/12 Quashed R v S [2012] EWCA Crim 1433 a child, indecent assault Indecent assault (x4), D 969/09 ('TS') gross indecency with a 19/3/12 13/12/12 Quashed R v S (T) [2012] EWCA Crim 3118 child (x2)
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Indecent assault (x11) G 00559/2010 indecency with a child 22/11/12 31/07/2013 Quashed R v Berry (Brian) [2013] EWCA Crim 1389 Berry (Brian) (x3) Part E 496/2007 Indecent assault (x9) 21/5/12 18/03/2014 Quashed R v Dent [2014] EWCA Crim 457 John Dent attempted buggery (x2) (2 counts) Indecent assault, indecency with a child, P 369/09 17/07/2013 18/11/2015 Upheld R v L [2015] EWCA Crim 1792 rape, attempt to commit gross indecency PETERSEN, Indecent assault on a Brian 455/09 P 16/06/2014 10/06/2015 Upheld R v P (B) [2015] EWCA Crim 1175 male (x4) ('B')
Y 1235/12 RH Rape, indecent assault 21/02/2017 06/07/2018 Quashed R v RH [2018] NICA 28 (6 July 2018)
Assault by penetration Neil Secker Pending as (x2), sexual assault on a 7/11/18 - - 640/17 of 04/2019 minor
* Note: CCRC case names do not always match applicants' names or initials as in the judgments.
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