Examination of Witnesses (Questions 1040-1055)
MR ANDREW PARKER, PROFESSOR GISLI GUDJONSSON, DR JANET BOAKES AND DR WILLIAM THOMPSON
THURSDAY 11 JULY 2002
1040. I suppose you are saying that if things like the care records have gone, for whatever reason, and there is no other physical evidence, then the further you go back the more careful you have to be. Is that right?
(Dr Thompson) The decision there, Mr Chairman, is not the question that "Oh, someone has now come up with a complaint, an allegation after 30 years", is it? The real problem is how do you deal with that lack of evidence? But that is the same question you have got to confront when anybody verbally accuses someone of any particular crime. But I will tell you why I would not want a particular time limit. You have heard, and you did have a witness here, I believe, who was talking about the historic cases when we used to send people to the colonies. Now in those cases the reasons records did not exist is that the moment the child was on the boat, the charity concerned burnt the records and they did it deliberately. It was as a matter of practice and policy. But some of those people have been trying to chase up their parents who really existed for 50 or 60 years and that is a very good reason, I think, to keep records. And it is possible, in certain circumstances, that if you put a time limit on a crime, you also give people the excuse to ditch all the records. And you never know in the future when those records may be needed for something else.
1041. So you all agree no time limit? Is that right?
(Mr Parker) I think on the basis of two basic principles. One is victim care and wanting to encourage people to come forward and to have issues dealt with. And two, the interests of justice. For example, my sample of 129, 14 per cent are cases that have been delayed over ten years. One was 20 years time lapse. Four were 18 years and five 19 years. Now those are individuals, if a statute of limitations or something similar was brought in, who would not essentially get a hearing and they would be shown the door. And I think that is not right. Particularly as seven of those cases, seven of the 13, produced a conviction and one that has not been subject to an appeal.
(Dr Thompson) I might have a different criteria. It would help, would it not, determine what really happened in history and what lessons one can learn from a comparative analysis across time. There is no reason why a historic allegation is necessarily false. Difficult to prosecute, very difficult to defend yourself against. But there is no innate reason why it should necessarily be cut off.
1042. Of course that is the reason, difficult to defend yourself against.
(Dr Thompson) Can that not be taken into account in other ways? For example, you were told quite categorically that the major motivation is to seek corroboration. We are dealing with issues of corroboration by volume in similar fact cases. It is possible to deal with that issue in another way by considering what is real corroboration as opposed to false corroboration.
1043. Yes, okay. I was going to come to that point in just a minute. So you would be in favour of reforming the law of similar fact evidence to re-introduce a requirement of striking similarity?
(Dr Thompson) Very definitely, I would. I do not know about the others.
(Mr Parker) I am undecided on that. I think there are difficulties with similar fact evidence.
1044. Tell us what they are.
(Mr Parker) I think when you are talking about similar fact evidence in terms of MO, I think there are some very difficult decisions for a court to decide. Whether similar fact evidence itself is corroboration, again it is very difficult to generalise, but I think it would be down to the individual case itself and I think each instance of an event of abuse, whether it be a single victim or multiple victims, each one has to stand on its own. I think as a general principle it needs to stand on its own. There may be a weight of evidence that a number of people are subject to the same abuse in the same way, but I would prefer to rely on evidence of individual abuse to be dealt with singly.
(Dr Thompson) That was one of the advantages of similar fact originally, was it not? It is that it was used for cases where you did have some evidence. People were dying in baths repeatedly or people were beingthe Scottish case, they were being harassed by a certain person in a certain company
1045. Yes, there was a body or there was some physical evidence.
(Dr Thompson) There was evidence independent. Each one
1046. Of a crime having been committed.
(Dr Thompson) Yes. But the problem you have now is what counts for corroboration? The fact that he allegedly showed them pornography or the fact that they were sexually assaulted? And then you do not have to go much further than that. The danger in child sexual assault cases, and we can be honest about this, we live in a time where that crime is regarded as the most heinous imaginable. It is worse even than murder. And you have been told, of course, that people who suffer from it then have a living death. That is not true. But it is regarded as more heinous than murder. In that case, people who are accused of the most heinous crime that society labels as the most heinous crime should be afforded the very best opportunity for their defence precisely because of that reason, because the stakes are so high. Consequently that is why I would want to bring back in striking similar fact. And you may find some guidance from recent judgment in Scotland, although the precedents and the similar fact laws are slightly different. And that is the AJE case, where the three Law Lords make some comments about the nature of similar fact. And one importance is this; you have been told in these cases that people are culled from different parts of the country, they will not have seen each other since their care home experience and they are allegedly supposed to be coming up with the same stories. I have demonstrated to you that they do not come up with the same stories and even if they were doing that, it is like the satanic abuse cases, there are other sources as to how they can come up with the same stories. But it is also being pointed out to the Committee by disparate people who have never met each other that they are being asked the same questions, shown photographs or being given names by police officers. Now, it is interesting. The police officers in these cases wish to believe all the similar facts and the disparate claims from different parts of the country when there is someone being accused of paedophilia or hebophilia, sex crime. But they do not believe it when they themselves are in the frame and people are accusing them of bad practice. What an irony. You see, but that is the problem, is it not, with simple similar fact? Are we really dealing with similar fact in many of these cases or are we dealing with similar allegation? That is the problem. And just to say someone sexually assaulted you, that is similar.
(Mr Parker) I guess my problem with similar fact evidence is that it tends to run in line with our natural need to want to generalise things, to look at statistics and say "This is always happening this way because the stats tell us this". I have an unease about that and I would prefer to look at each particular instance and prove each instance of abuse.
(Dr Boakes) I feel slightly out of my depth at this point, but I am inclined to agree with Andrew, I think. I feel happier if you take each one and prove it.
(Professor Gudjonsson) I reserve my opinion, but I think I am very keen on looking at each individual case on its own merit. And I just do not know enough really to be able to comment in any more depth than has been discussed.
1047. Okay. Anonymity for the accused as well as the accuser?
(Dr Thompson) Definitely.
(Mr Parker) Yes.
(Professor Gudjonsson) I agree with that, yes.
(Dr Boakes) I agree as well. In actual fact it is quite interesting because in some countries like Norway, and I testified in three cases in Norway, high profile murder cases, it is very interesting that they keep the name away from the media and the media is respectful of that. In actual fact, you have very famous cases and the names of the individual are never actually recorded. And I have spoken to people, they find that very reassuring that in actual fact
1048. Until there is a conviction?
(Professor Gudjonsson) Until the conviction and even then, the name may not be reported in the media. Even after being convicted.
(Dr Thompson) It has happened here. I was involved in a case where it was deliberately dealt with as much as possible before the trial to keep everything out of the media, and no one has ever heard of the LSD satanic killing case because it was a successful operation by a police force to keep it from the media for various reasons, and that was the family involved. They did not want to add to their burdens.
1049. I guess they have heard of it now.
(Dr Boakes) You will not know where it is, Mr Mullin.
1050. Any other changes we could recommend that you would advise?
(Professor Gudjonsson) I think that when you are dealing with interviewing, you are dealing with interviewing different kinds of people. You cannot say they should all be interviewed in the same way. There have to be certain basic principles, of course, but people vary in terms of their vulnerabilities. If you are dealing with a child with a learning disability, that child may be very different to an adult with learning disabilities and I would say that we have to be aware of the vulnerabilities of the people we are dealing with. That is very important. So more knowledge and more communication to the police about the strengths and weaknesses of people so they can actually take precautions, they can actually interview people properly. I am very keen on vulnerabilities being identified to prevent miscarriages of justice. So the police actually identify people to ensure there is full protection. When dealing with victims and witnesses, I think the same should apply, that you have got to have certain protection there. So I think it is very important that the police identify vulnerabilities of victims, witnesses and suspects and do not play on them. The danger is like in America. There is a tradition of identifying vulnerabilities in order to play on them and get what the police want. And that is very, very dangerous. In Britain, it is really a question of identifying vulnerabilities so people can be protected. And even witnesses and victims, their vulnerabilities must also be determined and the police should be aware of them.
(Mr Parker) I absolutely concur with that. For a long time, since the mid-1980s, we have had legislation that require police to consider the vulnerabilities of potential suspects before interview. However, we have had nothing in terms of guidance of interview of witnesses. And I think it is a big gap. I was bit disappointed with the working party's recommendations in 1998, Speaking Up for Justice, and the legislation which will bring in tape recorded interviews or video recorded interviews, essentially memorandum interviews, but expanded to more groups of people. I think that is a step forward. However, as part of that is a consideration of special measures that should be taken particularly in court, for vulnerable and intimidated witnesses, such as screens and admission of video evidence, CCTV links and so on. It is the consideration of who is vulnerable within that. The Achieving Best Evidence Guidance does not give any indication as to how we go about assessing people's vulnerabilities and I think it is still an area that we need to address.
1051. The most vulnerable person in one of these cases may well be the accused who has led an apparently respectable life and is now perhaps retired and is faced with a series of allegations by people who are career criminals.
(Mr Parker) Absolutely, yes.
(Dr Thompson) And to serve that system well and now knows they are facing a false allegation. I mean that is incredibly mentally traumatic. It has effectively destroyed their whole life and their belief in the system that they worked for for so long. I have several other recommendations. Apart from the general one, and I will keep on banging on with it until we have got it, a critical review approach by social service personnel, police officers and so on. Apart from that, recording I believe is a must. I really think you ought to look at the return of jobs of people who have been found to be completely innocent. I do believe you have spoken to Mr Fiddler, an excellent social worker who definitely should not be blacklisted. I would suggest, it has been suggested to me, rigorous pursuit of people who make false complaints. This is not done and the message is sent out that people can make a complaint, it is proven to be false, maybe even sometimes possibly malicious and they are not rigorously prosecuted. I would also like to see the police end their prosecute-the-accused culture; the culture of get a result. Finding that someone is innocent, a nil result, is as much of a result as getting a conviction. And if you found someone who is falsely accused innocent, that has been money well spent. We need to end the prosecution culture and introduce an investigation culture. I suggest that the CCRC and the CPS are also involved in that kind of approach. We need to look at investigations, not prosecutions. I would definitely want a look at better corroboration tests. And I would want an end to the inconsistency of disclosure. I have managed to solve one of those six cases. I know where all the claims came from. I only found that out by going through the disclosed material and in my cases I believe you have heard there is an inconsistency in disclosure. You have already dealt with media, time limits and reviews. So the last thing I would like to stress again is that I think that the police, the CPS and the CCRC have to seriously look at what is corroboration in similar fact cases and the way in which these are investigated.
(Dr Boakes) I would like just to add, entirely separately, proper training and understanding of the scientific evidence and the scientific approach, particularly in relation to repression, because it may be a very small sub-set of these cases but it is a sub-set, and the belief that it is perfectly normal practice to block out extensive abuse covering a range of years and recover it entirely intact is so widespread in the community that I think it needs to be challenged. And I think people, police and indeed the barristers and the judiciary need to have a crash course in the scientific method really, to understand the basis rather than dwelling upon prevailing beliefs and cultural mythology.
1052. Dr Thompson, you mentioned a Scottish case in relation
(Dr Thompson) AJE.
1053. Yes. Have you got the judgment?
(Dr Thompson) You can get it off the Internet, thanks to Mr Blair. Go to Scotslaw.gov. Go the higher cases, they have lower and higher case courts, and just type in AJE and it should come up. I know you yourself are against mobile phones, like myself, but there are other people who are computer literate
1054. Yes, do not worry, I know how to delegate. Mr Parker?
(Mr Parker) Just one thing, coming back to Bill about the investigative culture. Of course, since the separation of responsibilities from the CPS taking prosecutions, there are separate structures there. It is certainly best practice to consider evidence in a case to prove or disprove an allegation, and certainly I think that maybe we should celebrate disproving an allegation just as much as we celebrate proving an allegation. That is the first thing on the cultural side. The other thing is more practical and that is the Health Department lists of people who would be found to be unsuitable to work with children, List 99. I often think that the purpose of that is to list those people that have been found to be inadequately trained or dangerous or potentially dangerous to the welfare of children. I do not see the reason why we should not have a list that says these people have been certificated as acceptable to work with children and a positive change in the way we approach people being trained properly and certificated for access to children in jobs like this. Where inappropriate behaviour or a criminal offences have been proved, then those people could be struck off the list. It would make my job of researching members of staff for various institutions who come into access with children
1055. The only thing is we get accused of introducing yet more red tape. Not a day goes by without such a complaint, sometimes by the police, I might add.
(Mr Parker) Yes, that is a valid point. However, it depends how seriously we take the welfare of children.
Chairman: Thank you, Mr Parker. Professor Gudjonsson, Mr Parker, Dr Thompson, Dr Boakes, thank you very much for coming. This session is closed.