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Previous News Items from 2002
How often do the media bear false
witness? - Catholic Herald, 29 November 2002 (Margaret Jervis on some
of those who make acusations of child abuse)
How often do the media bear false witness?
Margaret Jervis on some of those who make accusations of child
abuse
It may have been co-incidence that the paedophile former priest Michael
Hill was convicted for a second time on the same day as the Government
announced a new raft of measures to combat sexual abuse. Likewise the
fact that when he was sentenced, three days later, a new crime Bill was
published that included indefinite prison sentencing for sex offenders.
But one thing was clear from the media coverage bridging these events:
the Catholic Church was in the media dock, and struggling to prove its
innocence.
At the centre of the storm is the beleaguered figure of Cardinal Cormac
Murphy-O'Connor, currently under police investigation for neglect in knowingly
allowing a paedophile priest to continue in office. The media however,
having already adjudicated on his culpability in relation to Hill, have
widened the charge to include other alleged paedophile priests, 'hush
money' to victims, and the suggestion of a cover-up of clerical 'paedophile
rings' operating freely within the church.
Victims of barbed media attacks habitually place the blame on the media
- as did the Cardinal in his plaintive letter to the Times when he wrote
of Catholics hurt by the 'relentless attack' on their faith. But this
is only half true. Certainly the media have control of the distribution
and pitch of reports. But the media is in essence just that ‹ a vehicle
for the publication of stories, not their sole manufacturer.
A cursory glance at the Times stories provides clues to some of the interests
served. There is Margaret Kennedy, a social worker who heads a pressure
group for victims of clergy abuse, which in her definition includes consensual
adult affairs. Ms Kennedy has been prominent in promoting claims of 'Christian
abuse survivors' for over a decade and is an advocate of the discredited
'recovered memory' process of abuse history and therapy.
Kennedy¹s organisation and others such as alleged multiple and priestly
abuse survivor Colm O'Gorman who runs the One in Four group are networked
to compensation lawyers who specialise in claims against institutions
for abuse. Solicitor Richard Scorer, quoted in the Times, is a leading
member of the Association of Child Abuse Lawyers set up by a former barrister,
Lee Moore, who claims to be a multiple and 'satanic' abuse victim and
the discredited Cleveland social worker, now psychotherapist, Sue Richardson.
Of course there is nothing wrong with victims seeking succour, nor claiming
damages. But what is disturbing is that some abuse claims are false. This
harms not only the individuals falsely accused. It also harms the institutions
held responsible and, ultimately, the vulnerable and suggestible false
accusers.
The House of Commons Home Affairs Committee recently published a report
on the conduct of investigations into past cases of abuse in children¹s
homes, some of which were Catholic-run. It delivered a damning indictment
on the potential for miscarriage of justice in police trawls stating it
was conscious that many of its recommendations were 'closing the door
after the horse has bolted'. In giving evidence to the inquiry Peter Garsden,
the secretary of ACAL, contended that he had never come across a false
allegation in the 700 claims he was handling. He also stated that the
claimants were suffering from 'repressed memory' and 'dissociation' until
contacted by the police to enquire as to whether they had been abused.
In other words, a good proportion of the claimants had no conscious memory
of abuse until the prospect of compensation became apparent. This is absurd.
Even at its highest, the incidence of genuine recovered memory is very
rare while it is also probable that false 'recovered memory', or 'false
memory', elides easily with opportunistic fabrication by alleged victims.
Media coverage of the HACR was minuscule compared to the sweeping onslaught
on Cormac, and the extolling of the new Government measures. Similarly
the historic malicious libel victory of the two former nursery nurses
in Newcastle who were falsely accused of bizarre abuse by a council-appointed
review team was viewed in the media as an aberrant outbreak of hysterical
zeal. Most journalists, including respected specialist correspondents,
eagerly regurgitate unsubstantiated claims that vast numbers of paedophiles
are undetected necessitating ever harsher laws and tougher penalties.
Yet what is rarely recognised is the paradox at the heart of these claims.
For while awareness of child sexual abuse has been high on the public
agenda since the opening of Childline in 1986, a mounting number of people
have also been falsely accused, prosecuted and wrongly convicted for non-existent
crimes. So if it is the case that a large number of sex offenders are
unconvicted or undetected, we can have little faith that more stringent
measures will catch them without at the same time multiplying the number
of innocent people drawn into the net.
The repugnance evoked by child sexual abuse and the over-arching term
'paedophilia' silences reason. Nobody knows the true prevalence while
claims such as '80 per cent of abuse occurs in the home' are imprecise
and lack scientific foundation. The ensuing confusion serves to divert
a witchhunt mentality from one target to another on a revolving carousel
of claims.
It might have been hoped that the Nolan review would correct some of the
more damaging fallacies paving the road to injustice. Unfortunately, as
the Cardinal has discovered, it has simply ignited the expectation of
a festering mass of iniquity 'silenced' or 'tolerated'.
The imposition of the stringent Nolan measures is also likely to aggravate
false claims, and obscure the sifting of truth. In this context it is
worth emphasising a central fact overlooked by the media: no legal settlement
precludes the reporting of a crime to the police. The suggestion that
victims are unable to come forward unless alerted by press revelations
defies what is the police practice, namely that claims are believed until
proven otherwise. Multiple individual accusations, spontaneously reported
without the taint of collusion and contamination, are those most likely
to be reliable. However, with Nolan in place and a database under the
auspices of COPCA it is possible that the type of defective trawl operations
criticised in the HACR will migrate to the internal workings of the Church
itself.
So what should be the response of the ordinary members of the church,
clergy and laity?
Genuine offenders should be brought to justice and victims compensated.
But the Church also has a duty to truth and a responsibility to identify
injustice. There is a burgeoning movement of ordinary good people affected
by false abuse accusations and an all party parliamentary group examining
abuse investigations.
Instead of the Church succumbing to despair, it could be that a witchhunt
might ignite an informed movement against the injustice of false abuse
allegations, not just within the Church, but in society at large.
*****
Shieldfield lawyers nominated for the Liberty and
Justice Human Rights Lawyer of the Year Award
Barristers Adrienne Page QC and Adam Speker together with solicitor Richard
Osborne from SJ Cornish have been nominated for the Liberty and Justice
Human Rights Lawyer of the Year Award for work done on the Shieldfield
case. The award ceremony will be held on 10th December 2002. Below is
an extract from the nomination list:-
.. for their dedication to pursuing and securing access to justice and
upholding the rights of individuals falsely accused of child abuse, at
great financial risk to themselves, ensuring that their innocence was
clearly established through the legal process.
*****
Summary of Key Conclusions and Recommendations
from the Home Affairs Select Committee Report into the Conduct of Investigations
into Past Cases of Abuse in Children's Homes
1. Although we hold some reservations about the conduct
of police trawls, we do not accept that trawling should be prohibited.
The police have a statutory duty to investigate allegations of child abuse,
regardless of whether they relate to contemporary or past events. In general,
the longer the delay between the alleged offence and the allegation being
made, the more difficult the investigation. We believe that senior officers
should retain their discretion to determine the nature and scale of an
investigation, particularly in complex investigations into past institutional
abuse. In every case, however, there should be clear justification for
the decision to launch a trawl (paragraph 26).
2. We take the view that any initial approach by the police to former
residents, should—so far as possible—go no further than a general
invitation to provide information to the investigation team. We invite
the Association of Chief Police Officers to revise the internal police
handbook for senior investigating officers, in order to set out clearly
the terms of an initial approach to potential witnesses (paragraph 34).
3. We believe there is a strong argument, in cases of this kind, for introducing
a general requirement to record police interviews of complainants and
other significant witnesses on video or audio tape. Where a video-recording
is impracticable, we recommend that the interview be recorded on audio
tape, as a mandatory requirement (paragraph 45).
4. We recommend, that the Home Office issues a code of practice for the
audio and visual recording of police interviews with complainants and
other significant witnesses in cases of historical child abuse (paragraph
47).
5. We recommend that resources are channelled into researching and piloting
the use of "statement validity analysis" as a tool for evaluating
the credibility of witness testimony in complex historical child abuse
cases (paragraph 50).
6. We would, encourage the Association of Chief Police Officers to distil
the core recommended practices and procedures into a prescriptive list,
to be included in the police handbook for senior investigating officers
(paragraph 59).
7. We endorse the view that, where a trawl is conducted, complainants
should be offered appropriate victim support services, such as counselling,
from an early stage of their involvement in the investigation (paragraph
61).
8. In our view, the Crown Prosecution Service is presently faced with
a difficult task when reviewing past cases of institutional child abuse.
However, the sheer volume of such cases which are rejected by the CPS,
seems to indicate that it is applying a sufficiently robust review to
sift out weak cases. We are not persuaded that there should be a new test
for Crown Prosecutors (in addition to the evidential and public interest
tests) to require firm evidence, or a firm belief, that a crime has been
committed for the prosecution to proceed. We, therefore, decline to recommend
any changes to the Code for Crown Prosecutors (paragraph 70).
9. We note that failure to disclose evidence inconvenient to the prosecution
case was a factor in many—if not most—proven miscarriages of
justice and we express the hope that the recommendations made by these
various studies are acted upon without delay. We look forward to hearing
from the Home Office on this point (paragraph 72).
10. We welcome the proposal for a national protocol for the disclosure
of third party material and hope to see its speedy delivery. In the longer
term, we support Lord Justice Auld's recommendation for a new statutory
scheme for third party disclosure, "to operate alongside and more
consistently with the general provisions for disclosure of unused material".
We again look forward to hearing what plans there are to implement Lord
Justice Auld's recommendations on disclosure (paragraph 74).
11. Whilst we accept that the criminal justice system needs to be more
sensitive to the needs of victims and witnesses, we are concerned that
the proposed removal of safeguards for the defendant, set out in Justice
for All, may further prejudice the defendant in historical child abuse
trials. We are particularly concerned about the proposed relaxation of
the rules of evidence, which may allow for greater admission of 'similar
fact' evidence. In our view, given the sensitive and difficult nature
of investigating allegations of historical child abuse, there is a strong
case for establishing special or additional safeguards for the exclusion
of prejudicial evidence and/or severance of multiple abuse charges (paragraph
83).
12. We are inclined to agree that the prosecution of offences relating
to child abuse should not be time-barred. In our view, prosecution decisions
should continue to be based on the merits of the case, having regard to
public interest factors, such as delay. Whilst a limitation provision
may protect innocent defendants from fabricated allegations that are difficult
to refute, it may also prevent guilty defendants from being brought to
justice. For these reasons, we decline to recommend the introduction of
a statutory limitation period (paragraph 89).
13. We recommend that the prosecution of offences relating to child abuse,
which is alleged to have occurred over ten years since the date of the
offence, should only proceed with the court's permission. We suggest that
the time period does not begin to run until the complainant has reached
age 21 (paragraph 92).
14. We, recommend that the law of similar fact evidence is reformed to
require a "striking similarity" in historical child abuse cases.
We suggest that the law of severance is also reformed, to introduce a
presumption in favour of severance in cases where the similar allegations
are inadmissible on a similar fact basis (paragraph 97).
15. We suggest that the statutory reporting restrictions, which preserve
the anonymity of victims of sexual offences, are extended to persons accused
of historical child abuse. We believe that the restrictions should operate
to protect the accused until the date of conviction, with provision to
lift the restrictions by court order. Although there is a case for extending
this recommendation to all sexual offences, for which the victim is granted
anonymity, this goes beyond our remit for this inquiry (paragraph 99).
16. We are concerned that neither the internal police guidance, nor the
Government guidance, on historical child abuse investigations, give any
specific direction on the proper relationship between the police and personal
injury solicitors. We recommend that the Home Office issues guidelines,
which prescribe the elements of a 'model relationship'. We suggest that
the Home Office act in consultation with the Association of Chief Police
Officers to ensure consistency between the various guidance documents
(paragraph 108).
17. We recommend that the Criminal Injuries Compensation Authority conduct
a review of its Scheme, with a view to ensuring that it is sufficiently
user-friendly and attractive to victims of past institutional child abuse
(paragraph 115).
18. We would like to see a return to the legal position, pre-2001, when
employers were not generally regarded as liable for sexual assaults committed
by their employees, unless the employer was also at fault through his
own negligence. To go back to this position would not, in any way, affect
the liability of employers who were found to be negligent, nor would it
prevent complainants from suing the alleged abuser directly, or from claiming
compensation from the Criminal Injuries Compensation Authority. For these
reasons, we recommend that the Government gives serious consideration
to the introduction of legislation to overturn the House of Lords' decision
in Lister v. Hesley Hall Ltd, which—in our view—has broadened
the scope of 'no-fault' (vicarious) liability too far (paragraph 121).
19. We are not persuaded that personal injury actions arising from historical
child abuse should be excluded from public funding (paragraph 126).
20. We would invite the Association of Chief Police Officers to further
revise the internal police handbook for senior investigating officers,
with a view to minimising the risks of inducing false or exaggerated allegations.
First and foremost, we believe that any practice by the police of offering,
or acceding to requests for, mitigation in exchange for evidence against
suspected child abusers in historical cases should be prohibited (paragraph
129).
21. We conclude—and this is a point that goes wider than simply historical
child abuse cases—that the Commission's test for referral to the
Court of Appeal is too narrow. We believe that the test should be broadened,
to bring it into line with the test applied by the Scottish Criminal Cases
Review Commission. We, therefore, recommend that the test is revised to
allow the Commission to make a referral where they believe that a miscarriage
of justice may have occurred and that it is in the interests of justice
that a reference should be made (paragraph 137).
*****
BFMS Submission to the Home Affairs Select
Committee
MEMORANDUM 11
Submitted by the British False Memory Society (BFMS) (CA 98)
This submission is made by Margaret Jervis, Legal Affairs Adviser, of
the British False Memory Society (BFMS). The BFMS is a registered charity
with a scientific advisory board. Founded in 1993 at the height of therapeutically
induced false "recovered memory" claims, the BFMS aims to promote
accurate differentiation between true and false allegations of abuse.
Margaret Jervis is a former journalist with 15 years of specialist research
in the field of contested allegations of sexual abuse including retrospective
care home cases.
Should there be a time limit—in terms of years since the alleged
offence took place—on prosecution of child abuse cases?
There is no time limit for the prosecution of reports of sexual crimes
in English law. This is the case whether or not the evidence is capable
of corroboration. Contrary to popular belief, corroboration of adult sworn
oral testimony in sexual crimes has never been a requirement of English
law. Rather a mandatory warning regarding the absence of corroboration
existed in common law until its statutory abolition in the Criminal Justice
and Public Order Act 1994.
The corroboration warning served two major functions:
(1) it reminded juries that people do make false allegations of sexual
crimes and that it is dangerous to convict unless corroboration is present
(2) it concentrated the trial process, including the prosecution gate-keeping,
on the quality and testability of the prosecution evidence.
It is submitted that through separate but related judicial reasoning,
these important functions have been eroded in ways that are prejudicial
to the defendant. This is in contravention of Article 6(1) of the European
Convention on Human Rights and has resulted in, at the very least, hundreds
of questionable prosecutions and convictions. Some of these are the result
of institutional police "trawls" while others relied on unproven
psychological processes. However the current situation with regard to
care home cases is a subset of a much wider question of justice.
In the late 1980s, whilst the corroboration warning was still mandatory,
adults suddenly reporting a history of childhood sexual abuse proliferated.
These long delayed accusations began to be prosecuted. These developments
did not stand in isolation. Rather they followed the rise in popularity
of psychological theories linking adult problems with "post traumatic
stress disorder" hypothetically caused by sexual abuse. It was sometimes
alleged that the memory of the abuse was likely to be hidden to the consciousness
of the accuser until recalled with the help of counselling or therapy.
In the pursuit of justice, welfare and criminal justice professionals
began to highlight the availability of criminal injuries compensation
awards for reported sexual abuse offences.
The first judicial ruling on "delayed" prosecutions of childhood
abuse was in 1990 in LPB.1 It concerned an abuse of process application
to stay an indictment of alleged childhood sexual offences committed by
a step-father against a now adult woman. This key judgment recognised
that there were two forms of delay in criminal cases:
Type 1—between the investigation and trial of an offence
Type 2—between the commission of an offence and its report by
the complainant.
The then Mr Justice Judge discriminated in favour of the prosecution
of late reports of offences in the case of sexual crimes against children
regardless of whether there was evidence capable of corroborating the
offences. The judge stated that delay in reporting child sexual offences
was "understandable and justifiable" because "delay (is)
directly connected with and may be a consequence of the offences."
He could therefore conceive of no instance where a delay, however long,
in the reporting of child sexual offences should result in a stay of the
proceedings2.
Subsequent rulings in the higher courts3 overruled this judgment and
confirmed that the basis for a stay on the grounds of delay was the ability
of the defendant to receive a fair trial. The defendant had to prove on
the balance of probabilities that it was impossible for him to receive
a fair trial. However by conflating Type one and two cases, the law has
overlooked the fact that in the bulk of retrospective prosecutions for
sexual abuse, it is first necessary to establish that an offence has been
committed. It is for the prosecution to prove that there has, in fact,
been a delay. If the allegations have been fabricated in the recent past,
no delay has occurred.
Thus the current position in relation to retrospective sexual abuse
trials includes two hidden assumptions prejudicial to the defence. Firstly
the defendant may be seriously prejudiced by the presumption of delay.
Secondly, the legacy of LPB has meant that unproven psychological theories
about the "special" nature of sexual abuse memory and disclosure
have been automatically incorporated into the trial process.
These developments, combined with the House of Lords rulings on similar
fact evidence and contamination4, and the abolition of the mandatory corroboration
warning, contributed to a mushrooming of retrospective prosecutions for
alleged abuse. As more people were convicted, the evidential test became
weighted towards the prosecution regardless of the quality of the evidence.
If it is correct that the rules of evidence in relation to historic
cases are unfair, then some means must be formulated which balances the
public interest in prosecuting sexual abuse cases with the protection
of the defendant from oppression and unfairness.
This raises a number of questions:
(1) Are the current rules of evidence in relation to Type two cases compatible
with Article 6(1) of the ECHR?
(2) Should the burden of proof in abuse of process arguments in Type
two cases be reversed to rest on the prosecution to prove beyond reasonable
doubt that a fair trial is possible?
(3) Should there be a statutory limitation period for the prosecution
of uncorroborated sexual offences?
(4) Should there be a statutory limitation period subject to discretionary
waiver with or without a long-stop period?
(5) Should the overriding principle in all cases be whether the evidence
can be objectively tested with the re-instatement of a mandatory corroboration
warning (bearing in mind that the current similar fact rules would need
amending).
Statutory limitation periods in civil law are currently under review.
The Law Commission has recommended the ending of the current six year
limit between the commission of the offences, or after the age of majority,
in trespass to the person cases, to a uniform three year limit subject
to the discretionary waiver as currently exists in personal injury cases.5
A similar reform in criminal law might appear to be attractive. However,
personal injury law cannot be easily translated into criminal law. For,
as has been argued in leading cases6, while action in personal injury
may rest on delayed effects or the recognition of the connection between
cause and effect, a similar proposition has no place in criminal law which
rests on the fact of the crime.
However, where there is a burden of proof on the prosecution to justify
a historic report of uncorroborated abuse, the two presumptions implicit
under current rules would be made explicit and the evidence, and its production,
would be open to critical and scientific scrutiny.
February 2002
REFERENCES
1. (1991)91Cr.App.R.359.
2. He limited his comments to domestic cases but the
principle has subsequently been applied to any adult in authority.
3. R v Telford Justices ex parte Badhan [1991] 2 QB
78, 93 Cr.App.R.171.
AG Ref. No 1 of 1990[1992]QB 630, 95 Cr.App..R.296.
R v JAK [1992] Crim.L.R.30
4. DPP v P [1991] 2 AC 447.
R v H [1994] 1 WLR 809
5. Limitation of Actions (Law Com 270) London: The Stationery
Office.
6. Stubbings v Webb [1993] 2WLR 120.
*****
Newcastle Libel Trial - City Council Statement
on Review Team Appeal
Newcastle City Council is recommending that its Cabinet should not fund
an appeal against the finding of malice against the Review Team following
the recent court case.
The council has endeavoured to provide the people of Newcastle with as
much information as possible during sensitive legal negotiations and is
now of the opinion that it cannot justify committing any more public money
to this matter.
Chief Executive of Newcastle City Council, Ian Stratford, said: "I
have commissioned the Head of Legal Services to prepare a report on issues
to learn from the judgement."
"The City Council fully accepts Justice Eady's Judgement that Dawn
Reed and Christopher Lillie are innocent of all the allegations against
them. The council regrets the suffering these events have caused them."
"Our sympathies remain with all the people affected by this case."
See also 'Landmark Libel Trial' page
*****
Obituary of Professor Sydney Brandon
Professor Sydney Brandon, psychiatrist, was born on September 20, 1927.
He died on December 6, 2001, aged 74.
Having been led into the field of psychiatry by an interest in disturbed
children, Sydney Brandon held posts at Columbia, Manchester and Leicester
Universities. He served as vice-president of the Royal College of Psychiatrists,
and as a consultant to the RAF, he was involved in the debriefing of the
Beirut hostages.
He published on a variety of topics: eating disorders, carbon monoxide
poisoning, sexual deviation, child abuse, panic disorder, post-traumatic
stress disorder and recovered memory syndrome. After he retired in 1993,
his interest in post-traumatic stress disorder led to an association with
Rwanda, where he counselled victims of trauma after the genocide.
*****
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