Examination of Witnesses (Questions 1-19)
MR DAVID CALVERT-SMITH, QC, MR RICHARD FOSTER AND MR STEVE PRZYBYLSKI
TUESDAY 26 FEBRUARY 2002
The following evidence was heard as part of a general session on the work of the Crown Prosecution Service. The remainder of the session was published as "The Work of the Crown Prosecution Service" (HC 650).
Chairman: We are about to conduct a short inquiry into the method by which some child abuse cases are investigated which, as you know, has been fairly controversial.
1. Mr Calvert-Smith, what concerns do you have about the conduct of investigations into past cases of abuse in children's homes and in particular about the current practice of "trawling" through records in order to identify potential victims?
(Mr Calvert-Smith) The first thing to say is that each caseand I mean each individual case rather than each care home or each police inquiryis and will continue to be treated by the CPS when it comes to us on its individual merits. There is no question of a special policy being developed outside the Code for Crown Prosecutors to deal with this particular form of case. That said, everybody understands, and certainly all of us in the CPS do, that all cases where you are delving in particular into past history, sometimes 10, 20, even 30 years ago, pose special problems and therefore particular care needs to be taken when making the decision, both on evidential and public interest grounds. You will no doubt be aware that, for instance, the passage of time since the commission of the offence, unless the defendant himself or herself has deliberately contributed by concealing evidence, is a public interest factor which militates against prosecution so that the older the case getsand I am being over-simplistic about itthe less likely you are to be prosecuted. The police have a duty imposed on them by statute, the Criminal Procedure and Investigations Act, to follow all reasonable avenues of investigation. I suspect in retrospect, though there are others more expert in this than I, that the way in which that duty has been carried out (or at least has had a result) in some cases has meant that people have, for whatever reason,and maybe we can come on to discuss that and no doubt your Committee will be discussing itbeen inclined to invent or to exaggerate things that have happened to them because of the invitation that they received one day through the letter box to give information. On the other hand one must encourage the police to investigate properly if, when a properly worded invitation goes out to those who were in a particular care home during a particular time and the reply comes back, "Out of the question. I never heard or saw anything untoward going on" from a substantial number of people, that hopefully will influence the police investigation either to close it down altogether or to understand that this perhaps was confined to a single person if at all. I do thinkand this is really a police operational matterthat the way in which the "trawl" is carried out means that the further investigation which is required to be carried out under the Criminal Procedure and Investigations Act is absolutely vital. It is just as important as the need not to lead children through their evidence on a video so that what you get is what they want to say and not what the police officer wants them to say or thinks they would like to say. I welcome, if I may say so, with respect, the setting up of this inquiry. I do not know whether the whole question of limitation periods is within your remit, but clearly many continental countries and others have statutory limitation for certain classes of offence up to a particular degree of seriousness. I also welcome the way in which the police carry out their duty under the CPIA in a non-leading way but in order to establish whether they are on the right track or not on the right track, and the way in which we as a Service (but I stress it is actually individual people when it comes down to it, applying a document which is on public view to the best of their ability) interpret that code. Perhaps I could say finally, and I know this is an over-long answer but it is a very big topic, that when the last survey was done in which we can actually give numbers, it turned out that we turned away 79 per cent of the cases sent to us by the police for possible charge, which is a very high percentage when compared with other types of offence, no doubt borne out of the unreliability in criminal justice terms of some of the evidence, the length of time since the alleged events and the failure of memory, and the inability therefore of the defendant to put up a proper defence because his or her witnesses may not be available, so that 80 per cent of the cases we have received we send straight back and say, "Sorry". In the cases we do take on, and I know there may be questions about the susceptibility of juries to convict because of the scandalous nature of the offence and so on, but accepting the jury verdict, convictions are achieved in something like 83 per cent of the cases, a vast number of those of course by pleas of guilty. That does not exclude those who contest that and protest their innocence. That is a much higher percentage than we achieve across the board in ordinary crime, which suggests that even if there can be improvements we are applying to those cases a fairly severe filter on the grounds of age of case, unreliability of evidence and inability of defendants to mount a proper defence because of the delay. Whether that can be improved I would welcome suggestions upon as to how we can do better. We do our best. Of course we must not forget, because we have been accused of this many times in the past as a Service, that even emotionally disturbed people who were already criminals by the time they were abused and later became hardened criminals are actually entitled to the protection of the law, even at a late stage, even if they make their complaints late, so that, going way back, the idea that you could not mount a case of rape when a prostitute was the victim has long since passed into history, quite rightly, and the same principle must apply even to those who are for various reasons more likely to be fabricating, exaggerating, inventing.
2. Added to the difficulties of evidence because of the lapse of time is the lack of medical evidence.
(Mr Calvert-Smith) Quite.
3. No doubt you take that into account.
(Mr Calvert-Smith) Of course.
4. But bearing in mind that you put some stress there on the longer the time the more difficulty there is in getting accurate evidence and an accurate account, would you be in favour of a statutory time limit?
(Mr Calvert-Smith) I think this is almost the first time today that I have said this, but I do not think that is a matter for us as a prosecution service. We must simply apply the law as it is and attempt to do the best job we can. Clearly, and it hardly needs saying, it would be easier, because it would simply mean that we would be debarred from making these difficult decisions, if there was a limitation period but that is not a judgement for us to make, I do not think.
5. Compensation to victims of sexual abuse can be £30,000 or more. To what extent do you think that would motivate people to come forward?
(Mr Calvert-Smith) There is clearly a risk, and this is a topic we have already visited this morning, in the context of the prison cell conversations and the hope for parole or reward, for any number of reasons that victims may invent or exaggerate evidence in order to get a financial reward or some other kind of reward and this form of alleged crime is no exception. We constantly have to deal outside this sphere with witnesses who have been offered sums of money by newspapers; many of you will have read of such cases. Clearly that has to be disclosed and the jury have to take that into account and the defence be allowed to make such use of it as they can to destroy the credit of the witness. On the other hand, and I said this earlier and I am sorry to repeat myself, there is a Criminal Injuries Compensation Authority and people who have been injured by criminal activity are under the law entitled to compensation at the hands of the state, albeit that that compensation can be paid, as I understand it (and I am not expert; it is a long time since I appeared in front of that tribunal), whether somebody has been convicted or not of an offence. The answer is yes, there is a risk, whether it is a media story, whether it is the compensation that may be payable, whether it is the hope of parole, but it is a risk we try to guard against. That will no doubt be one of the reasons why an individual Crown prosecutor will come down on the side of no prosecution in some cases rather than prosecution.
6. We have also heard stories of the police and sometimes solicitors advertising for witnesses and potential victims in a particular area where a particular young person's home was. Would you take those matters into account?
(Mr Calvert-Smith) Of course, but I go back to the duty that the police have in whatever way is appropriate to carry out proper investigations in whichever direction they lead. The difficulty, as we all know, about abuse is that it happens in private, it is very shameful, there are feelings of guilt both in the abuser and in the abused person, and it is very difficult. Some people want to shut away that corner of their life for ever and never refer to it again. If somebody does revealand I hate to say it but I am quite sure that it does happen sometimesa general pattern of abuse within a particular institution, then the only way in which that can be brought home is by getting more than one person normally, and hopefully people who were unknown to each other at the time and have had no contact, freely and without undue leading and without too much hope of reward, to give evidence. Advertising is one way of doing it, but some form of extension of the inquiry beyond the individual complaint must be contemplated. Otherwise the police would be failing in their duty.
7. In the context of all the difficulties of evidence that we have discussed, I want to ask you about similar fact evidence and the dangers that the accused can be pulled down purely by the weight of similar factors coming from lots of different sources. What are your concerns about that? How do you guard against the court being unduly prejudiced by it?
(Mr Calvert-Smith) Can I just go back to your previous question for one moment because I had a whisper. If the Committee felt that one way of making the trawl process and the general investigative process fairer was to insist on the recording of interviews with complainants or to suggest that the Government insist on it, then clearly that would make our lives as prosecutors much easier.
8. That is a very helpful suggestion. Thank you.
(Mr Calvert-Smith) I am grateful to my right for reminding me of that. Going back to your question, Mr Prosser, a similar fact principle is of course a principle that applies to all offences, where it is relevant. If we can show a hallmark, a similarity which it is hard if not impossible to explain away as a coincidence, then it must be that it is right that one and one is allowed to make two instead of being tried as two discrete allegations. We were as a Service pleased when the House of Lords effectively extended the similar fact principle recently in a case of rape and allowed us to introduce cases where there was very close similarity, we alleged, in instances where in fact on some occasions the accused had been acquitted at the time. We were allowed to adduce the evidence and effectively to say, "You may have been acquitted at the time but here is another woman ten years later saying that you did exactly the same and she did not consent" and so on. We have in a sense campaigned by taking a case all the way to the House of Lords for the slight extension of the similar fact evidence rule. One possibility of course which we discussed earlier on Lord Justice Auld's recommendations and the Law Commission's recommendations would be to extend the ambit in which previous conduct of one kind or another could be put before the court. I am bound to say that I have not personally been involved (as counsel that is) in any one of these huge institutional alleged child abuse cases and so I cannot comment from direct personal experience on the way in which the similar fact rule applies. All I can say is that the court has been rigorous over the years to try and avoid the possibility that unfair prejudice spills over from the fact that A has made an allegation on to the fact that B has and has tried to keep the balance between cases where the coincidence is such that really a jury ought to be given the chance of saying, "Is this just a coincidence or is it actually the fact that these two people are telling the truth?", and cases where it is simply a question of lumping one prejudicial allegation on another and on another and on another and coming out with an unfair conviction at the end. I cannot say that I or the Service have any real concerns about the operation of the similar fact rule as it is currently being applied but if your investigation were to throw up real concerns then clearly we and the courts would have to take them on board.
9. Finally on that subject, I would agree with the points you have made in regard to widening similar fact cases, but the special case here is the long distance between actions and prosecutions, all the evidential problems which you have highlighted and the possible inducement of the claims for compensation. With that in mind would you feel it should be a stricter test in terms of similar fact trials?
(Mr Calvert-Smith) I think I prefer to focus on the dangers from the trawl process, the dangers that people may be encouraged to say things when they are not true by an inappropriate investigation and the general concept that I mentioned earlier, that the older a case gets the more the memory of the victim is likely to play tricks innocently, because people brood on things and they become almost obsessed sometimes with them, and on the ability of the defendant, whose own witnesses may have gone or died, to defend themselves rather than to home in on the application of what I think is a well understood legal doctrine of similar fact. Judges are frequently asked to rule on similar fact evidence as to whether it should be admitted or not, and clearly one of the things they will take into account is the sort of thing that you have mentionedlength of time, so is it really similar fact; is there a possibility that the similar fact has been tailored to be a similar fact because of some cross-pollination between victims, they talk to each other and therefore their allegations have grown together? I am confident that in the vast majority of cases judges make that judgement and sometimes we win the argument, and I think it has been fairly well publicised now that we lost the argument in a recent very high profile case where somebody has recently been convicted of the murder of a child down in Sussex. We argued to the judge with similar fact evidence. He said, "No, on balance this does not quite meet the criteria" and ruled it out, so that was an example of it working in practice.
10. Going back to that figure you mentioned, Mr Calvert-Smith, of 79 per cent of such cases being turned away, how does that compare with the average for turning away cases presented to you by the police?
(Mr Calvert-Smith) We discontinue 13 per cent of cases, so we actually get cases in and some of these cases may well have been cases where if the police had not come to us in advance for advice they would have charged and they would be part of that 13 per cent. Where they are simply advice cases I do not think we have the statistics yet on advice cases as to how many of them we turn away.
11. So 13 per cent, as you said earlier, is what you turn away overall. When you say 79 per cent, is that including advice cases?
(Mr Calvert-Smith) Both. Cases that are referred to us by the police. The majority of cases are referred to us by the police after charge, hence the discussion over whether we should take it forward.
12. Those are not strictly comparable figures, 79 per cent and 13 per cent.
(Mr Calvert-Smith) No; I was not suggesting they were.
13. Have you got anything at all to compare with the 79 per cent?
(Mr Calvert-Smith) I can assure you that it is very high because of common experiences. First of all the police do not come to us for advice in that many cases.
(Mr Przybylski) That is exactly the point I hoped the Director was going to make, that the number of times the police come to us for advice is small, but we do stop 13 per cent of all cases. It is quite a compelling statistic.
14. Yes, it is, is it not, because the 79 per cent is liable to be made up mainly of cases where charges have been preferred.
(Mr Calvert-Smith) Yes, substantially.
15. So they might not quite be comparable but they are getting on that way.
(Mr Calvert-Smith) I would say substantially. In the very big inquiries, such as South Wales, North Wales, Merseyside, the ones that we have all read about, I would have been astonished if the police had not come to us.
16. I see, so it may not be quite so strong, but you are saying that an awful lot, the majority, of such cases are turned away. Does that not set an alarm bell ringing?
(Mr Calvert-Smith) It sets a bell ringing. I think it suggests that the police are taking this very seriously, and it may be that your inquiry will think too seriously, I do not know, but they are taking these allegations very seriously, following a period when I suspect they stood accused of not taking them seriously at all.
17. That is the danger, is it not, that the pendulum has swung too far the other way, as sometimes happens? Everybody understands they are subject to public pressure.
(Mr Calvert-Smith) Yes. I would hate to go nap on whether that is the reason but certainly that must be a possibility.
18. It is a possibility that you cannot entirely exclude.
(Mr Calvert-Smith) I would say so.
19. Have you got any further breakdown on the 79 per cent that you could let us have?
(Mr Przybylski) I am not sure they are our figures but we can certainly investigate it for you.1