By Margaret Jervis & Chris Saltrese onShare:
From Inside Time issue December 2007
Margaret Jervis and Chris Saltrese take a close look at injustice in sex trials and conclude that it has become a political problem
It is important for a jury to be cautious about convicting a person on the basis of uncorroborated evidence. Judges will always warn of the dangers of so doing”. So spoke the then Home Secretary, Douglas Hurd, in October 1987. He was speaking on the occasion of a bill to lift the bar on children giving uncorroborated evidence in court.
It was an emotive issue, with the warring claims of mass sexual abuse in Cleveland and dodgy diagnostics making headlines on a daily basis. Allowing children to give uncorroborated evidence in such circumstances was a reasonable and necessary step in the interests of justice. But contrary to what Douglas Hurd promised, the warning would not stand firm. Within a few years, Michael Howard was announcing its demise for all complainants in sexual offences, because it was ‘demeaning to victims [sic]’.
Nobody stopped to correct him that in many uncorroborated cases the status of ‘victim’ was precisely the matter at issue. But then the erosion of justice in contested sexual offence cases over the past two decades has been marked largely by silence or irritation that measures do not go far enough. And just when corroboration warnings were hitting the skids, a rush of cases started to flood courtrooms countrywide, based solely on a complainant’s story of what was alleged to have happened long ago.
Before the mandatory corroboration warning was scrapped in the 1994 Criminal Justice and Public Order Act, the House of Lords decided that multiple complainants making allegations could be regarded as corroborating each other and that where there was a danger of collusion or contamination – precisely the dangers that had historically kept such allegations apart at trial – it was for the jury to decide.
Once the mandatory corroboration warning had gone, the new rules on mutual support by allegation remained. So family members acting out an old grudge against a long divorced parent could recite their pieces before the jury who would be able to use one allegation to support another and vice versa. Yes it’s circular, but it was a powerful way of convicting people in sex offence cases, even if there was no evidence of the crime outside what was said.
Nowhere was the new similar fact rule employed to greater effect than in the trawl cases involving former approved schools and children’s homes. Massive police investigations scoured prisons and probation lists for allegations against care workers. As in all sexual offence cases, there were some guilty people (though often, contrary to popular belief, detected at the time), but the bulk of allegations were against innocent people and, as is often a trademark of fictitious allegations, the more serious the allegations and more frequent the purported conduct, the less likely, by rational analysis, was it to be true, but the more likely it was that the jury would convict.
In 2002, the Parliamentary Home Affairs Committee produced a damning report on the children’s homes trawls, detecting a ‘new genre’ of miscarriage of justice and calling for legislative reform of the similar fact rules to restore safeguards against wrongful conviction.
In fact concerned defence lawyers were aware that the ‘new genre’ extended back further and more broadly than the Committee was willing or able to probe.
Being jointly hit in the massive North Wales and Merseyside trawls of the midnineties, care workers had begun to form their own collective lobby, which led to the Parliamentary inquiry. Domestic cases, though far more prevalent, have so far failed to attract the same kind of collective concern.
But the calls for reform fell on deaf ears in the government. And the similar fact rule, far from being abolished, has been extended through the Criminal Justice Act 2003 to include allegations of prior ‘misconduct’ such as alleged domestic violence that play no part in the criminal charges themselves.
Why has this happened? The classic excuse is that sexual crimes are so prevalent, dangerous and difficult to detect that it is necessary to have special rules of evidence to convict. Such was the legalistic rationale in the 17th century witch trials where ‘spectral evidence’ dreams, visions and hallucinations was admitted.
Something similar exists in today’s secular world, where sex crimes, particularly against children, are seen as a kind of demonic infestation that is the reserved territory of therapists and ‘survivor’ advocates and not the proper inquiry into offences committed in space and time.
It was as the witch trials faded away, that the ‘corroboration warning’ first began to be formulated. Contrary to what has been said by opponents, there was never a time when corroboration was required to convict on sworn testimony in sexual offences in English law, the warning however acted as a brake on a rush to judgment, as well as method of gate-keeping and, importantly, a touchstone of investigation.
For while the handling of sexual complaints may have been insensitive and sceptical in times gone by, there is every reason for the police to test the evidence at the first opportunity, both to screen out unreliable claims and to find out whether there is a solid foundation for the offence. In effect it formed a spinal cord of the investigation and prosecution of sex crimes, and many sex crimes are in fact capable of being independently corroborated, if reported promptly.
For what the direction said was that experience showed that people do, for whatever reason, make false allegations of sexual crimes, and that it was dangerous to convict on uncorroborated evidence, but, despite this caution, if the jury were sure then they could convict.
When public anxiety and prejudice is excited, as in terrorism cases, an army of civil rights advocates will usually rush to the defence, though of course there are some people who pose a threat and do commit heinous crimes. Yet for over two decades now in Britain there has been a deafening silence on the issue of escalating injustice in sex trials. There is little, if any, attempt to conduct proper research and evidential reviews. This position must change. The current extent of injustice is an enormous waste on the public and private purse, in addition to being an affront to civilised values. While good defence and appeals may make a small indent, the problem, as the Criminal Cases Review Commission is occasionally moved to suggest, is endemic within the system of justice itself. In short, it is a political problem and that is where the change must begin.