Kent Academic Repository Full text document (pdf) Citation for published version Karmark, Ingrid (2017) The fair trial of those accused of historic child sexual abuse. Master of Philosophy (MPhil) thesis, University of Kent,. DOI Link to record in KAR http://kar.kent.ac.uk/64373/ Document Version Author's Accepted Manuscript Copyright & reuse Content in the Kent Academic Repository is made available for research purposes. Unless otherwise stated all content is protected by copyright and in the absence of an open licence (eg Creative Commons), permissions for further reuse of content should be sought from the publisher, author or other copyright holder. Versions of research The version in the Kent Academic Repository may differ from the final published version. Users are advised to check http://kar.kent.ac.uk for the status of the paper. Users should always cite the published version of record. Enquiries For any further enquiries regarding the licence status of this document, please contact: [email protected] If you believe this document infringes copyright then please contact the KAR admin team with the take-down information provided at http://kar.kent.ac.uk/contact.html The fair trial of those accused of historic child sexual abuse Ingrid Karmark November 2017 This thesis is submitted to the University of Kent for the degree of Master of Philosophy Page | 1 Acknowledgements I give thanks for all the patience and dedication of the following people who helped me with my thesis. Professors Steve Uglow and John Fitzpatrick, my thesis supervisors; To the prisoners and ex-prisoners who maintained that they had been the victims of historic child sexual abuse allegations and who allowed me to use their case papers for discussion in this study; Chris Saltrese, Helga Speck and others who work at Mr Saltrese’s law firm some of whose clients also wished me to read their case papers for this study; Dean Orme of the Criminal Cases Review Commission who answered questions for me specifically and who also came to lecture on miscarriages of justice at the University of Kent to its students; Nicole Girvan of the Criminal Injuries Compensation Board who provided information for me; Ann Barnes, the Kent Police Commissioner, who answered my questions on police investigations; The officials at Ministries of Justice of European countries who provided detail about time bars for prosecutions which operate in their jurisdictions. Page | 2 The fair trial of those accused of historic child sexual abuse Abstract The question which this research addresses is whether recent developments in law and practice concerning the prosecution of those accused of historic child sexual abuse (HCSA) especially taking into account the heightened public concern with this issue, may operate to compromise the right of the defendant to a fair trial in such cases, particularly with regard to the procedural and evidential safeguards which support that right. An historical and sociological survey of the problem of child abuse and a consideration of the impact on the criminal justice system of the intense public concern about child abuse provide the context for a forensic examination of four specific areas of concern: the investigatory methods of the police in such cases; particular problems arising from the delay in the allegations being made; changes to the rules relating to ‘bad character’ evidence about the complainant (Youth Justice and Criminal Evidence Act 1999 and Sexual Offences Act 2003); and changes to the rules relating to ‘bad character’ evidence about the defendant in sexual offences cases (Sexual Offences Act 2003). The study considers the available data and the extensive legal, historical and sociological literature concerning child sexual abuse, relevant international and municipal statute and case law and the case papers of some men convicted of historic child sexual abuse who maintain their innocence and volunteered their assistance to this study. It concludes that heightened public concern about child abuse has played a significant role in developments of relevant law and practice which may at times give rise to significant miscarriages of justice; that a long period of delay before charges are brought presents significant evidential challenges to a fair trial; that police methods of ‘dip sampling’ and interviewing in the investigation of such cases may operate to compromise the reliability of the evidence obtained; that current restrictions on the questioning complainants about their past character and sexual history may hinder the proper testing of prosecution evidence; and that the current rules on the admissibility of evidence about the past character of the defendant may have an unfairly prejudicial effect. Suggestions are offered as to how the current law and practice might be improved to address some of these issues. Page | 3 The fair trial of those accused of historic child sexual abuse Table of Contents Chapter Page I Introduction p.8 (i) The problem of HCSA p.8 (ii) Issues to be addressed p.11 (iii) Methodology and sources p.12 (iv) Ethical considerations p.17 II The heightened concern in society about child sexual abuse and the impact of that concern on the law and criminal process p.19 (a) Construct of child abuse p.20 (i) On childhood p.20 (ii) Typology of child abuse p.26 (iii) Historical development of the awareness of child abuse as a problem meriting legal reform p.33 19th century p.33 20th century p.37 21st century p.47 (b) The heightened concern about CSA p.55 (i) The theory of ‘moral panics’ in relation to CSA p.58 (ii) How ‘moral panics’ shape law and legal processes p.60 (iii) Problems with ‘moral panic’ models p.66 (iv) Heightened concern about child abuse and its impact on policy and law p.81 (v) Conclusion p.91 Page | 4 (III) Police methods in HCSA investigations p.95 (i) Description of the dip sampling technique p.100 (ii) Type of evidence police seek by using the dip sampling method p.102 (iii) The Government’s reply to concerns raised by the HASC Report 2002 p.105 (iv) Case study of ‘H’ illustrating the pitfalls of the dip sampling method p.107 (v) Problems arising from police interviewing techniques p.108 (vi) Repeat interviewing p.113 (vii) Comparing police interviewing techniques with children and adults p.114 (viii) Collusion issues: accidental and deliberate collusion p.123 (ix) Contamination of the evidence through other investigatory methods p.125 (x) Inducements p.126 (xi) Audio recording p.129 (xii) Addressing the problem p.133 (xiii) Conclusions p.134 (IV) Prosecuting historic allegations: challenges to a fair trial arising from delay p.137 (i) What is an ‘historic’ case? p.138 (ii) Statutes of limitation and judge-ordered time bars in European jurisdictions p.142 (iii) A comparative study of process in delay cases: Australia, Eire, UK p.149 (iv) Types of evidence that may be affected by delayed complaint p.157 (v) Conclusion p.168 (V) Developments concerning the complainant’s bad character evidence and its possible impact on the fairness of proceedings p.170 (i) Social and professional attitudes towards complainants p.172 (ii) The common law position of complainants in sexual offence cases p.174 (iii) S.2 of the Sexual Offences (Amendment) Act 1976 p.177 (iv) Background policy which shaped the Youth Justice and Criminal Evidence Act 1999 p.179 (v) Section 41 of the YJCEA 1999 and its remit p.185 Page | 5 (vi) Appeals referring to use of s.41 YJCEA 1999 p.187 (vii) Is there still justification in allowing ‘similar fact’ evidence against complainants? p.192 (viii) Is there still a place for s.41 of the YJCEA 1999 post section 100 of the CJA 2003? p.196 (ix) Prior research on the judicial approach to section 41 of the YJCEA 1999 p.199 (x) Comments on s.100 CJA 2003 p.205 (xi) Disparities between the complainant’s and defendant’s BCE rules p.210 (xii) Human rights issues arising from the English law restrictions on the use of BCE of the complainant p.212 (xiii) Applications and implications of Directive 2012/29/EU (‘Victims’ Directive’) p.218 (xiv) Conclusion p.222 (VI) Developments concerning the defendant’s bad character evidence in sexual offence cases and its possible impact on the fairness of proceedings p.224 (i) Evidence of character? p.225 (ii) The evolution of bad character evidence p.226 (iii) Reform of bad character evidence p.232 (iv) Policy underlying the erosion of safeguards for the use of BCE p.237 (v) Comparative practice p.240 (vi) Research on previous convictions and predisposition to criminality p.243 (vii) Discussion of the Criminal Justice Act 2003 and its impact on sexual offence trials p.254 (viii) Functions of the seven gateways p.255 (ix) Safeguards from abuse of the seven gateways p.262 (x) Problems with identifying tainted bad character evidence p.263 (xi) Conclusion p.267 (VII) Conclusion p.269 Book references p.273 Journal articles p.276 Page | 6 Table of cases referred to in the thesis p.299 Appendices: A) Criminal Cases Review Commission results on appealed cases from 1997-2012 involving a sexual offence p.303 B) Historic child sexual abuse cases: ones that miscarried p.309 C) The Criminal Justice Act 2003 (Categories of Offences) Order 2004 p.327 D)The case papers from convicted defendants and the issues they raise p.331 Page | 7 Chapter I Introduction (i) The problem of HCSA The purpose of this thesis is to discover whether recent law enforcement practices and reforms in the law of evidence in the UK may operate to compromise the right to a fair trial of defendants in historic child sexual abuse (HCSA) cases.