Examination of Witnesses (Questions 25-37)
SIR FREDERICK CRAWFORD, MS JACKY COURTNEY, DR JAMES MACKEITH AND MR DAVID JESSEL
TUESDAY 30 APRIL 2002
The following evidence was heard as part of a general session on the work of the Criminal Cases Review Commission. The remainder of the session was published as "The Work of the Criminal Cases Review Commission" (HC 810).
25. Can we now turn to the abuse cases. You have set up a working group to analyse these, I think. Can you explain in more detail what the objectives of the group are and what it is up to?
(Sir Frederick Crawford) Yes. Let me just say that if you analyse the applications that come into the Commission you can count offences, to say what category the offences fall into, and you can also count the number of counts, maybe three accusations of rape or something. You can do the percentage of all counts and percentage of all offences. What we discovered was that about 30 per cent of all the offences that come to us are either indecent assault or rape or other sorts of sexual offences; so 30 per cent of the offences but 40 per cent of all the counts. So in the sub-categories of those sexual offences there are many child sex abuse cases, not necessarily in care homes but in families and in other contexts, and they are very difficult by their nature to investigate. They are often very old for various reasons, which we may go into later; the complainant may not be completely reliable, the cases may have been decided virtually by an accused and a complainant, and very little corroborative evidence; there may not be anything available from that period which could be used to give new DNA or other types of forensic evidence. They are very hard. By the autumn of 2001, although we were talking about it before then (we were talking about it in the spring of 2001), we were aware of the North Wales and Cleveland surveys at that time and it seemed to us it would be a good idea to have a working group to look through the sub-category of sexual offences that involve children to try to decide how best to investigate them, what was the best way of going about them. Then, having decided what the options were for investigation, we could develop best practice for the Commission which would be part of our training for CRMs and Commission Members. We also wanted to see if there were new techniques, new sources of evidence, in the outside world that might be of use to us, so that meant keeping in touch with various experts. There might be somebody, for example, who analysed statements, the linguistics of statements, to determine their veracity, their accuracy and so on, but there are medical, psychological, psychiatric and other sorts of researches that might improve our processes. That was what we did. A little bit later than the autumn, you wrote to me to ask what I knew about these cases. At that time, we looked through and we had about seven or eight cases that I wrote to you about. That number has expanded and when I wrote again at the end of February I think that it had expanded to about ten or a dozen, but it is not a lot of cases that involve abuse in care homes. There are plenty of other child sexual abuse cases. We set up a small working group. We agreed to do it in about June or July 2001, and set it up in the autumn of 2001. It consists of Dr MacKeith, who is a forensic psychiatrist, Mr Jessel and four Case Review Managers plus our investigations adviser who I mentioned was an ex-senior policeman. They have been working their way through this agenda. It is preliminary at the moment. I have provided for you half a dozen cases that demonstrate the sorts of things that occur in child abuse cases. I do not think any of these seven examples that I have given on page 20 of the memorandum were actually from care homes. In one case, Case A, it was the examination of the Social Services' files that turned out to be crucial. In another one, Case B, it was medical records when we got to them that proved crucial. Looking at expert evidence is always part of our investigation and the particular evidence of sexual abuse in Case C was shown to be flawed. In another case, there was a key witness who turned out to be unreliable, who claimed to have overheard the abuse. Case E begins to introduce a different sort of question. That is when a complainant has been successful at one case and they begin to raise others which casts doubt on the first one. That particular complainant, who seemed to have had a perfectly legitimate complaint (and four people were sent to prison in Case E), later accused a very large number of people, perhaps to the CPS an incredible number of abusers, which cast doubt on that case. Then as a stronger version of that, Cases F and G, when there has actually been another trial, two trials, two individuals. In Case F it was looking at the evidence given to the Criminal Injuries Compensation Board that did not fit what had happened at the other trial that raised suspicion. In Case G it was two identical accounts of offences by two different people in two different care homes with almost a dotted line on which you wrote a different name for each one. That was to give you some flavour of the sorts of things that we turn up and where we look.
26. Are those cases you have referred?
(Mr Jessel) I think some of them are still in the system.
(Sir Frederick Crawford) There may be one or two still in the system but those are bits of evidence we have got.
27. Right. They are all cases that one way or another are going to be referred?
(Sir Frederick Crawford) Not necessarily, they show ways in which you have to look at things, things you might look for, and the hardest of all of course is to look at whether there are other trials involving the same person because you need a big database for that. The last thing I will comment on is the whole business of "trawling" which particularly interests you because it may lead to credibility questions as far as the complainants are concerned. Trawling has been around in other areas of crime, of course, for a long time. All we can say at the moment is (because our evidence is so weak and so fragmentary) that we have not any seen causal link between trawling and miscarriages of justice. First, you have got to find some miscarriages of justice involving trawling, that gives you correlation, but afterwards you have got to prove that it was the trawling that caused the case. All I can say on that is we are looking out for these things, we are sensitive to the questions that you and the MPs All-Party Group for Abuse Investigations are interested in, and we have talked to Ms Claire Curtis-Thomas and Baroness Shirley Williams on that. All I can say in my rather weak exit line on page 20 of the memorandum is if the situation changes obviously we will be in touch with our stakeholders, but we do not have anything very strong at the moment.
(Mr Jessel) They are a matter of concern to us generally these, as it were, locked-room mysteries where only two people really know what happened. Some people often say "My husband or my son was convicted on no evidence at all" and what they actually mean is there was very little evidence but the jury preferred the evidence of the victim. I have done an audit of what so-called "trawled cases" are in our system, and what is puzzling me at the moment is I do not think we have had any new ones since the beginning of this year. I thought at first this could be the beginning of a bow wave that is going to swell. I also thought that some of these investigations are comparatively recent. By the time they have gone through the courts, through the Court of Appeal, maybe they will arrive a few months down the line. There seems to be a bit of a pause at the moment. I do not draw any conclusions from that, I think we might get a hurricane of them coming later. At the moment, we do not have enough to go on except that by doing the audits we are increasingly educating ourselves about the danger signals, things that we might look into and ways in which we might improve our practice.
28. Since we announced that we were going to conduct a short inquiry into this area we have been inundated with correspondence from people who allege that they are victims. I guess some of these cases have yet to go to the Court of Appeal since this is a relatively new phenomenon and, therefore, they are not likely to come to you until they have done that. The other problem you are going to face is when they do get to you and they turn out just to be a choice between the victim's word and the alleged abuser's word and the jury being invited to make an educated guess, there is not a lot you can do, is there?
(Mr Jessel) That is why we are trying to find out what we are able to do, and what possible avenues we can explore. Obviously, we cannot refer a case on the basis that it was bad luck that it was in the trawl and somebody got caught up in it. Yes, there will be disappointments in a number of these cases.
29. One can wonder whether the Crown Prosecution Service should be putting cases on this flimsy basis to the jury and asking them in effect to make an educated guess.
(Mr Jessel) It is not really for us.
30. It might be if you got enough of them. This was the point I was making earlier, where if you see a genre developing perhaps you should express a view.
(Mr Jessel) I think that is absolutely right and what may happen as we gather experience in this is that we will be able to contribute more to that part of the Criminal Appeal Act 1995 which invites us to contribute to the criminal justice system and the understanding of it generally. I see that as a key thing for the future of the Commission.
(Sir Frederick Crawford) As far as the CPS is concerned they have two criteria, do they not? One is whether they are likely to secure a conviction and, secondly, is it in the public interest to prosecute. The very fact that the convictions have been secured rather suggests that they were right on the first one.
31. Well, no, I do not think it does suggest that with all due respect. It suggests it is 50/50 because an enormous number of these convictions are not secured. Enormous great cases like the one in Northumberland recently called Operation Rose collapsed completely with no convictions whatever but lots of ruined lives and people who even though they were acquitted, even though the evidence collapsed at the first puff of wind, can never be re-employed.
(Sir Frederick Crawford) I was only thinking of the cases that came to us.
32. I do understand that, yes. The suggestion we should be looking at is whether a whole new genre of miscarriages of justice is in the process of being created. I appreciate it is probably too early for you to have an opinion about that but that is what we should be looking at. We should also be looking at issues such as whether compensation is a driving factor in some of these allegations, the prospect of compensation, again a new phenomenon really. Have you got a view about that, Mr Jessel?
(Mr Jessel) We are alive to that motive obviously, especially given some of the sorts of people who might be involved in complaints who are themselves alive to the possibility of compensation. Of course people go to compensation boards because they have been wronged as well, one should never forget that. But it is one of the examples that we cite, where we do look in what terms the compensation claim was couched and we see how it compares to the actual witness statements. There is, as it were, an area that could prove to be weak, yielding, information which might help it along.
33. Might there be an argument for imposing a statutory time limit on prosecution of such cases?
(Mr Jessel) I think that would dissolve a lot of the anxiety. However, if you have been abused a long time back it seems rather unjust on the victims themselves.
34. I think the argument is whether you should wait 30 years to raise the subject.
(Mr Jessel) We would be interested in knowing more about the criminal injuries compensation area. Another thing with some of the cases we have looked at is that it is actually a matter of chance that people discover, the defence discovers, the courts discover, we discover, that the complainant has made serial complaints against other people which may or may not have succeeded. There is no general database of complaints, perhaps under the Data Protection Act there never could be. It would help us enormously if we were able to see if Complainant A had complained in other circumstances, but we do not have that material.
35. It is the job of the police and the prosecuting authorities not to quietly drop those cases that fall apart and proceed only with those where they think they can get away with it but to put the whole issue before the court, is it not, or make it available to the defence anyway?
(Mr Jessel) If you look at the answers that your colleague, Ms Claire Curtis-Thomas, got from the police forces in January, there are a staggering amount of allegations which are not matched by a staggering amount of either prosecutions or, still less, successful prosecutions. If it is a trawl, the mesh is fairly wide. I understand that is absolutely no compensation, and that gives no satisfaction to those people who are wrongly convicted.
36. I appreciate it is early days for you to have a view for the reasons we have just said but you are on the case anyway.
(Mr Jessel) We are certainly on the case.
(Sir Frederick Crawford) Can I just make one comment about the statistics that I presented for you. You have just heard from Mr Jessel that we have not had any additional cases since the 16 January 2002 survey that we did.1 At 31 March 2002, I can tell you that the updating of that small table was that where there were 254 offences there were 320 for the end of the financial year. The percentage is exactly right, 30.2; it has not changed. The number of counts has gone from 546 to 688, but with the percentage of counts sticking at 39.6. So those percentages remain the same. But of all the various categories (indecent assault, rape and other), we looked at a sample the other day in preparation for this meeting; of the last
1 See Vol II, Ev 30.
33 cases (and they fall into 14 categories), not one of them is in a care home. Of the indecent assaults, 22 out of 41 involve people under 18, but 13 of those were within the family, and of the remaining five I am not sure whether any are care homes. It is a very, very small sample and not growing very much.
See page 19 of the memorandum.
(Mr Jessel) We did get a list, I do not know whether it is a comprehensive list, from ACPO sources of those who have been convicted in such operations and I correlated those with those who applied to us. I have to say at the moment, and all I can say is at the moment, the number of those who have been convicted who have applied to usand again one has to add the caveat they may not have exhausted the appeals systemis surprisingly low.
37. Dr MacKeith, do you want to add anything to this or anything else you have heard?
(Dr MacKeith) Yes, I would like to add that we are on the case and have been perhaps since we first corresponded with Mr Webster some time ago. I think I would like to make the point that whatever Parliament may decide about a limitation on how long after alleged offences prosecution can be sought, and that will be for Parliament to decide, one does need to state what is very well known, and very well known no doubt to Members of your Committee, which is that there are reasons why people do not complain of sexual assault or sexual abuse until many years later, very plausible reasons in terms of the psychology and circumstances of alleged victims. I would also like to say that while one may be especially concerned about trials which amount to a conflict between a complainant's story and a defendant's story, the issue of examining how evidence was obtained from the alleged victim really overlaps with how statements are taken in general from witnesses. Witness statements are served up, but precisely how they have been generated, what sort of conversation between the investigating police officer and a witness takes place before the statement is formulated, is something that might be a wider matter for consideration and possibly eventually for review. Those are the things that I particularly wanted to mention. We have most recently made enquiries of Andrew Parker, who is known to your Committee because he has made a submission to it. He is a distinguished police officer who is also a psychologist. We are going to be asking him to formulate a briefing paper for us on what science, and I underline the word science, can now underpin the evaluation of statements and the likelihood that they are reliable. That is something which in other jurisdictions, for instance in Germany and Sweden, has been admissible in the courts, expert evidence on that subject, but not here. We need to be thoroughly well informed about what science, as opposed to idiosyncratic opinion, may underpin such methods. That may be something that we can exploit.
(Mr Jessel) Science is roughly at the stage that the science of disputed confessions was about 20 years ago. Things evolve, or they may not.
Chairman: Thank you.