Examination of Witnesses (Questions 240-259)
MR CHRIS SALTRESE, MS LINZI MCDONALD, and MR NEIL O'MAY
TUESDAY 21 MAY 2002
240. What would you like to see done to improve the future conduct of investigations and prosecutions?
(Ms McDonald) One of the things I would like to see is a thing that has been mentioned before which is either the video-taping or audio-taping of police interviews with witnesses. Mr Webster spoke about it last week and said although it is not a fool-proof system (there can obviously be conversations off tape) that must be something that is introduced, and I imagine it can be introduced fairly easily.
(Mr O'May) I would agree with that. Similar facts, joinder and severance have to be looked at completely again. I think trawling should be prohibited and the CPS needs to be given an objective test and an objective ethos. The police should not in any way be involved with compensation discussions, compensation documents or compensation referrals to the CICA and, as Linzi said, all contact particularly with passive complainants (but I think all complainants) must be video-taped.
(Mr Saltrese) I would start off with a statute of limitations of three years or the age of majority plus three years. The law on similar fact evidence and severance needs to be reviewed and I would certainly endorse the video-taping of contact between investigators and complainants.
241. Would you preserve the anonymity of the accused?
(Mr Saltrese) I would preserve the anonymity of the complainant and extend it to the accused. At present the accused has no anonymity.
242. Would you all agree with that?
(Ms McDonald) I would agree.
(Mr O'May) I would extend it to the accused. The problem with the Sexual Offences Amendment Act 1992 is that it gives lifelong anonymity to the complainant and I think that and the compensation and all the other things is quite a destructive device in the integrity of the trial.
243. So what would you do with the 1992 Act, what amendment would you make?
(Mr O'May) I think there could be a cooling off period after a trial ends, if you like, so that the complainant is not immediately harassed by the newspapers, but at a certain point that anonymity is lostsix months or some period afterwards.
244. Does everybody else agree with that?
(Ms McDonald) It is not something to which I have turned my mind but it seems sensible.
(Mr Saltrese) I have not considered it because I think it is probably a relatively minor point.
245. Would you restrict or remove compensation from victims of past sexual abuse?
(Mr Saltrese) The important thing is to get the law right. Once we are happy that the judicial system can arrive at a correct verdict then compensation for me is not an issue.
(Mr O'May) If you agree that compensation should be awarded by the state in criminal cases and that it can extend not just to compensation for loss of limb or physical harm but also psychological harm, then you cannot differentiate these cases. As Chris says, the problem is transparency and accessibility to this material and secondly, the overlap between the police investigation and the issues of compensation and referral onwards. If you can crack that and make it more transparent and differentiate those two parts of an investigation (that is the police do not initiate compensation discussions) then you are on the road at least.
(Ms McDonald) I would agree. It is the transparency that needs to be looked at. Excluding this class of case from compensation is artificial, it is unrealistic.
(Mr Saltrese) Just to come back on the compensation point, I think it is rather naive for people to think the police are going round introducing the notion of the availability of compensation in these cases. By and large, the sub-culture from which these complaints are drawn knows about compensation. I went to visit a former resident in Liverpool Prison the year before last and he told me that in the same week there were trawling operations from four police forces visiting his wing to see various former residents of care homes, so prisoners know what it is about, they know what is available. We should all understand that.
Mrs Dean: Can you think of any way that the appeal process can be improved?
246. Mr O'May may have dealt with that point.
(Mr O'May) The only thing I would add to it is to try and improve the tests that are being applied by the Court of Appeal in conjunction with the referral test from CCRC. Both are lacking. It may be from the Court of Appeal we need to tackle that issue but a driving force may be a change in the referral on the CCRC.
247. Are there any ways that we can address the problem of those who have already been convicted of past abuse some of whom, according to what we have said, may well be innocent. Is there anything that you can suggest to the Committee?
(Mr O'May) I did not hear the last part of it.
248. I am asking you whether there is anything that you can suggest to this Committee looking at this issue that we could do to address the issue of people who have already been convicted who may well be innocent?
(Mr O'May) Apart from what I say about the CCRC and the Court of Appeal in particular, I think the driving force is to clear their names, not just to get out of prison but to clear their names. I think that the imperative of that has to be understood by the whole judicial system and the gates must be opened wider than they are, not closed and restricted.
(Mr Saltrese) It is extremely difficult at present to hold out much hope that these wrongful convictions are going to be overturned. The CCRC will only refer something back to the Court of Appeal if it is something that the court has not considered already and there is a reasonable chance of the conviction being overturned. The CCRC is in a position of constantly trying to second guess what the Court of Appeal will say and in these cases that is extremely unsatisfactory. I am afraid I am at a loss to suggest a way out. I think probably funding is part of the problem but even if solicitors are well financed to investigate these cases, what are they going to turn up?
249. You can only realistically reverse the existing convictions if you made the other changes you are talking about and then retrospectively looked at which cases would fall had the new rules been applied at the time, is that not the case?
(Mr Saltrese) That is correct.
250. So we are talking about some way down the line, are we not?
(Mr O'May) This may be a superficial view but I do feel that the attitude and ethos in the Court of Appeal to these kinds of cases has to be changed. I think that will happen simply by force of numbers. There are lots of groups which are bringing these miscarriage of justice cases to the fore: the All Party Group for Abuse Investigations here in the House of Commons, the FACT people, lots of people are bringing these together. We are on the cusp, really, of an attitude by the Court of Appeal which previously was irritation at these cases coming forward and if the jury has found this person to be a paedophile so be it, to an examination of just exactly what goes wrong in these kinds of cases and an understanding of that. I think there will be a change but it needs all the pressure that has been coming in the last few years.
251. As we know it takes quite a lot to move the Court of Appeal, does it not?
(Mr O'May) It does indeed.
252. I am a bit disturbed by the suggestion of a time limit of 15 to 20 years. When you consider what has happened in other countries, in Ireland and the United States, where allegations have been made of widespread abuse by priests and nuns in particular, do we really want a situation in Britain where if the alleged incident goes back more than 15 to 20 years the Crown Prosecution Service would say in effect "We cannot take any action"?
(Mr Saltrese) First of all, I think we are talking about a limitation period of certainly less than 15 years. I am talking about three years from the alleged offence or three years from the age of majority. I appreciate what you are driving at but I am speaking as somebody who represents defendants, who visits defendants in prison, people who I believe to be totally innocent of the crimes they have been convicted of, and I am afraid I am speaking very much from their corner.
253. I understand that obviously, and I have said already previously that anyone who is falsely accused of these monstrous crimes the House of Commons should be concerned about, that is part of our function. As far as I understand it, there is no other criminal activity which is immune from prosecution because of a time limit. If there was to be a time limit of not prosecuting cases because the alleged incidents took place so many years ago it would be quite unique, would it not, in criminal law?
(Mr Saltrese) No, it is not unique in criminal law at all. We have limitation periods in this country for certain minor offences. Certainly if you look at other jurisdictions, they do have a statute of limitations and I think there are very sensible reasons for those laws being in place. After a while the trail really does go cold. In these cases jurors are being invited to convict on late oral testimony and that is very, very dangerous, I think.
254. These are not minor matters and of course the question of how far one should go back was debated in both Houses in 1990 over a very different matter. In that particular instance, as you will know, it went back over half a century.
(Mr Saltrese) I agree, but again I would draw the distinction between war crimes and allegations of abuse. In war crimes you had several thousand dead bodies lying around. Where is the evidence here that any crime has been committed at all?
255. I suppose the argument, would you not agree, on the difference between war crimes and sexual abuse (although war crimes included sexual abuse or physical abuse obviously) is if somebody has been sexually abused and there does not seem to be any argument it has happened, and those we have heard today have declared their innocence and indeed the courts have found them innocent, but if lives have been damaged as a result of the sexual abuse, however long ago these incidents took place, surely justice demands that if there is sufficient evidence cases should be brought?
(Mr Saltrese) There has to be a balancing act between the rights of the defendant and the rights of the complainant. What I am saying at the moment, as Mr O'Brien said earlier on, is that the pendulum has swung far too in favour of complainants.
256. That has been put to us in written evidence.
(Mr O'May) I think that what you are saying has some validity. It is difficult to distinguish these particular cases from other cases on the face of it, but they themselves generate this idea of historical abuse and delay. Article 6 of the Human Rights Act demands that a fair trial incorporates the issue of delay. The problem is that in this country when we apply that and the defence argue abuse of processit is too long ago, we cannot get to the evidence, the building has been knocked down, the witnesses have diedthe attitude of the courts is, "You can put that all to the jury, let's see what happens in front of a jury." Maybe the answer is to change the balance there and to say that where a complainant with very little or no other evidence of a crime comes forward three years after the event, they must make out a case as to why there is delay and absent that excuse for the delay and say that there could not be a fair trial under Article 6 and the case should be stayed. That may be a formula and it changes the balance the other way, which I think is necessary.
257. So a presumption against any case being pursued after whatever the agreed time limit is with perhaps discretion to the CPS to allow a case to go ahead in exceptional circumstances; would that meet your point?
(Mr O'May) I think it would. Discretion to the judge. The judge has to hear the evidence as to why there has been a delay and whether it deals with the presumption against the abuse of process argument succeeding.
258. Just coming back to compensation, I am rather reluctant, given the corrupting effect that money appears to have in this and many other aspects of our life these days, to surrender so quickly on the point of doing away with compensation. You all say it is impractical. Are there not one or two jurisdictions where compensation has been removed from these types of cases?
(Mr Saltrese) I have heard that in Germany they removed compensation for these types of cases and the amount of claims fell by 97 per cent. That is purely anecdotal. Nobody has produced a document to me in which that has been stated.
(Ms McDonald) I have no knowledge of any other jurisdictions dropping compensation.
(Mr O'May) In other jurisdictions the basis upon which claims are awarded is different so that you do not get large amounts of money for psychological damage for an event taking place. You have to prove or show you have lost an ear or an eye or a leg. That may meet the whole issue. I understand the corrupting influence of money, but I think the difficulty is, which we were discussing before, how, for instance in a rape case, would you differentiate the issue of compensation and allow compensation there when you refuse it in abuse in homes? That is the difficulty and where you draw the line, but it would be very, very nice to find a formula to draw a line somewhere.
259. Nobody has got a suggestion on that?
(Mr O'May) No.