Examination of Witnesses (Questions 80-99)
MR DAVID ROSE, MR RICHARD WEBSTER AND MR BOB WOFFINDEN
TUESDAY 14 MAY 2002
80. Well, your name has cropped up. The Court of Appeal decided to uphold the conviction
Chairman: Why is this relevant?
81. It is relevant to the extent that I am sure Mr Woffinden has been involved in a number of cases of alleged miscarriages of justice. As I said, there is no criticism implied in that question.
(Mr Woffinden) If the committee would like to hold an inquiry into the Hanratty case I would gladly come and give evidence.
David Winnick: I just wanted it on record, that is all.
82. Mr Woffinden, if I could ask you your view on the Crown Prosecution Service. The last time the Director of Public Prosecutions appeared before this Committee he told us that about 80 per cent of cases that are forwarded to them are rejected for a variety of reasons, such as unreliability of evidence, failure of memory, the inability of the defendant to put a good case, even unavailability of witnesses. Of the remaining 20 per cent that they do take on, about 83 per cent secure a guilty verdict, a conviction on a plea of guilty. Do you think that the Crown Prosecution Service is adopting a sensible and consistent approach as to which cases they choose to go forward with?
(Mr Woffinden) Certainly in this area we believe they are not because we believe that most of these cases should not have gone forward in the first place because if they had been investigated more thoroughly then the inconsistencies and discrepancies in the statements of the complainants would have been exposed. What I suggested in my submission, in fact, is that there should be some sort of third criteria for the CPS in determining whether a case should go forward and this should be a firm beliefor some phrase we can talk aboutthat a crime had actually occurred. In a number of other high profile cases that I can mention, for example in the murder case of Squadron Leader Nicholas Tucker that I have recently written about, he suffered an accident in which his car went into the river and he was subsequently prosecuted for the murder of his wife. In that case five pathologists had given evidence, including two of the country's most renowned pathologists, the late Iain West and Professor Bernard Knight, there was no evidence at all that any murder had occurred, and yet that case was pushed forward. There are other cases that we know about like Sally Clark, the lawyer who was convicted of murdering her children, which is arousing serious concern as are other cases of that same nature. One I cannot talk about at the moment. It seems to me that there are cases which are going forward where we have not actually established whether a crime was committed in the first place. I would put these cases into that category. The problem of course is that once they do go forward then the momentum is with the prosecution, as it were. There appears to be the suggestion of a very awful crime having been committed. This is very great in the cases of mothers who are accused of murdering their children. It seems an horrific crime therefore I think juries are tempted to believe in those accusations. Similarly in these cases. What is interesting about accusations of paedophilia is that they are totally outside the comprehension of almost all of us, I think. If somebody we know is accused of taking a gun and robbing the corner shop, we might say, "Of course he's never going to do that". On the other hand, if someone is accused of interfering with a young child, curiously enough we probably tend to ascribe more credibility to those allegations just because we have nothing of our own experience that we can possibly put beside it to test that allegation.
83. If you feel that the investigative process is so flawed, do you think there is any way that the Crown Prosecution Service can be in a position to know whether the evidence is accurate?
(Mr Woffinden) We have mentioned people who do statement validity analysis and it strikes me that a lot of these cases could be thrown out on that basis. But even before we have to worry about whether we are video taping or audio taping the interviews, what we do have are the actual statements, and in a number of the prime cases that there are concerns about at the moment there are, as I say, discrepancies and inconsistencies with these statements that I think can be exposed. One of the problems in this area is that I think we have now reached the situation in the year 2002 where defence lawyers are beginning to get on top of this problem. We have mentioned the collapse of a number of cases recently. The problem, of course, is that ten years ago they were by no means on top of this problem and assumed, I think for the reasons I have already given, that if people were being prosecuted for allegations of this kind, then they must be guilty. In very many of these earlier cases the defence lawyers were caught without any sort of plan of how to address the allegations and therefore there were convictions in cases where there should not have been.
84. Mr Rose, you wanted to come in.
(Mr Rose) I think the problem is that the tests which the Crown Prosecution Service is asked to apply to any case are, as you know, whether the prosecution is in the public interest, but first and primarily, is there a realistic prospect of conviction?
85. Has a crime been committed?
(Mr Rose) They are not asked that question. They are asked if there is a realistic prospect of conviction. In these cases especially this is, I would say, a grave limit on their effectiveness as a filter which is how they were originally conceived by the Royal Commission on Criminal Procedure. They just do not apply the sort of reality test which these cases actually need. When you then bear in mind that these cases take place in a climate where paedophilia is actually regarded as a crime, as Richard has shown with those headlines, on a par with devil worship during the middle ages, and when one then conceives the cloud of prejudice and hatred that will hang over the courtroom when one of these proceedings is under way, well if the CPS gets the file (and bear in mind, as we are becoming increasingly aware, the amount of time they spend on each file is very limited) with ten statements accusing an individual of buggery, well, open and shut, of course we have a realistic prospect of conviction. On to the next case.
86. We have all seen the film In the Name of the Children which raises serious doubts about the evidence given against Roy Shuttleworth. Do you think that is unusual or are there large numbers of those cases?
(Mr Rose) I am certain there are large numbers of those cases. Roy Shuttleworth is lucky in one respectif being wrongfully convicted and sentenced to a long term in prison and losing your wife as a consequence can be said to be luckyin that it is possible to unpick quite easily, in fact, the statements made by each and every one of the complainants against him, some of whom said things which are simply ludicrous (such as the one who told me he squeezed through a three inch gap, jumping out of the window). The problem with so many of these cases is that when there is really no evidence, nothing substantial to get a handle on, then it is very, very difficult to actually knock that absence of evidence down.
87. Why do you think it is so difficult to mount an effective defence case?
(Mr Rose) I think defence lawyers are in a very difficult position and the less specific the allegation the more difficult it becomes. Also, there are a couple of other factors that make it even more difficult. Let us say the defence find a fact which appears to quash what a complainant says, for example the gap that somebody said he squeezed through is only three inches wide, the complainant will say, "Oh, yes, well it was twenty-five years ago. Maybe it wasn't in that room. Or maybe I got out through a door, maybe it didn't actually happen in that building at all. It is such a long time ago." In summarising the case in his closing speech the prosecuting counsel will say "Members of the jury, such a long time has gone by you can't expect this person's memory to be precise and anyway he is trying to blank out so much of it because it was so horrible". The second thing that makes it particularly difficult is that a lot of the witnesses in these cases are, by definition, people of bad character; they are people who were locked up because they had committed offences when they were children and they carried on committing offences. But the problem is that if you then counter this in cross-examination with the fact that an individual has, let us say, 62 offences of dishonesty on their record and perhaps (as in Shuttleworth's case) with an attempt to defraud the Criminal Injuries Compensation Authority in an earlier case, then the answer comes back: It would never have happened if he had not been sexually abused. There is one other notion I would like to plant with this committee and it is this: there is simply no basis at all anywhere in the scientific literature to suggest that a victim of sexual abuse is more likely to be dishonest. The biggest studies in Americaand they are mostly American studiessuggest that there is no definable syndrome of behaviours which a survivor of sexual abuse in adulthood will exhibit. They are no more likely to be drug addicts, thieves, credit card fraudsters or, indeed, Criminal Injuries Compensation Authority fraudsters than anybody else. But, unfortunately, that belief is widely held in the courts, widely held by judges who make no attempt to quash this claim and so defendants are in an even more difficult position.
(Mr Woffinden) Can I just add a couple of points to that. Another problem is that a large number of witnesses, as David said, come from this particular background. Of course, it must also be remembered that a large number of potential witnesses are actually dead. This is one of the key problems for anyone trying to defend themselves. How can you defend yourself when all the evidence has evaporated over the years? You cannot refer back to particular situations; you cannot say: "So-and-so would have been there to say that I was not visiting his home that night, it was a Tuesday night and I was watching a football match" or something. All the records have gone; all the witnesses have gone so therefore all that is left are the assertions of these people. As I say, over the years I think defence lawyers have begun to come to terms with this and to work out ways of how to defend their clients. But it is very, very difficult. Phil Fiddler, who is giving evidence I think before you next week, is a rare case. When he worked he had preserved, as I understand it, every document in his home. He had kept every bus ticket. So that when he was accused he had shoe-boxes of material at his disposal with which to be able to counter these allegations. But normally people are not going to have this sort of documentation available.
88. I am going back to the compensation culture in a second, but in response to the last questions, it would seem you would both advocate some limitation on the time, how far we can go back in time before these accusations might be investigated. Would you both agree with that?
(Mr Woffinden) I do not understand why we cannot straight away bring in some sort of time limit for allegations of sexual abuse. As I suggested in my submission, I do not see why it cannot be a period of, say, three years or, in the case of a minor, the age of 24, which is six years after the age of majority. I do not understand why that cannot be brought in more or less immediately because then if people did have historic allegations they wished to bring to the attention of the authorities and they knew this provision was coming in in twelve months' time then they would have the opportunity to bring them forward. It would be a case of speak now or forever hold your peace.
89. Can I just go back to the business of the compensation culture. You have already said that compensation has been a driving factor and that the police very often dangle compensation in front of people as a means of encouraging them to come up with an accusation. Can we just look at the role of the solicitors in this? In your programme, David, you had a solicitor who described his relationship with the police as "symbiotic" which I foundit could have been amusingcurious. Would you like to tell us what you think he meant by that?
(Mr Rose) He was Peter Garsden of Abney Garsden McDonald, a man who, I may say, has become very wealthyor his firm has become very wealthyon the proceeds of these cases. It is worth bearing in mind just how much money solicitors can make from these cases. His firm co-ordinates more than 700 actions across the North West on behalf of complainants. The average complainant can get probably between £12,000 and £20,000 as an up-front payment in legal aid. Once the case starts to get a bit further down the track you could easily be talking of doubling or even tripling that. When you consider his firm acts for 350 individuals and co-ordinates a further 350, we are talking about quite big sums of money. The firm I also mentioned in Devon actually talk about the "child abuse wing" on their office which was built as an extension after these cases started coming on stream. So there is a big incentive for solicitors to act in these cases. By "symbiotic" he meant that there wasand continues to bea two-way process of information sharing. I said to him "Are there occasions where you have referred people who come initially to you to the police?" He told me, yes, there were. In fact I found a man who had originally gone looking for money and had then gone to the police and an appointment had actually been made by Peter Garsden. And it goes the other way. The police refer clients to solicitors and they share information with solicitors. I think, in fairness, that this has begun to close down. I think the Association of Chief Police Officers has, in the last year or twoperhaps partly as a result of that programmebecome alive to the dangers of the very unhealthy closeness which has existed in the past. What is clear is that, as a result of that relationship which has existed, there are many people in prison of which I believe a large number are innocent. Also, as Richard has already said, in a sense the fact that the relationship may not be quite as symbiotic now is not all that important because the awareness of the money that is to be made now and the fact that there are solicitors who do now specialise in these cases is widespread. The grapevine buzzes with news of this, especially in prison. If that symbiosis played a large role for some years in the 1990s, possibly it is not even necessary any longer.
90. The relationship is bedded in sufficiently now. You mention prisons. We have had evidence that suggests that solicitors advertise civil actions in prison, even in the prison magazine.
(Mr Rose) That is quite true.
91. Do you have any evidence of that?
(Mr Rose) I have seen an advertisement by Woollcombe Beer Watts which is acting in the 70 or 80 cases in Devon and, I believe, in at least 30 or 40 cases in South Wales. It was an advertisement placed in Inside Time the prison newspaper distributed free to all inmates, published by, I think, the Newbridge Trust. It was a boxed advert. I paraphrase, but the wording was essentially "Have you been sexually abused in care? If so, we are here to help. Contact . . ." and there was a telephone number.
92. I have strong views on these compensation things. Do you think there is anything the Government, the Lord Chancellor's Department or someone should be doing about that type of advertising? Or the Law Society? Whoever?
(Mr Rose) It seems to me that when you have deliberate touting for business of that type which has the potential to impact directly on the criminal process, it is very dangerous. I do think that it is in a very different category from the ordinary advertisement or touting for business that used to be forbidden and which is now accepted. But I think we need to look beyond just advertisements. I think we need to think very carefully about ways of, once again, separating the civil and criminal processes. I think in many of these cases, the criminal process has become contaminated by the civil process. If you speak to any of these civil solicitors they say "But we are doing nothing wrong". Just as I said earlier, that I do not think that police officers in general act in bad faith (I have given a couple of examples earlier where I think the police officers did act in bad faith) they act according to their result based culture. They conform to the way the law and the process allows them to behave. Actually solicitors do the same thing. At the moment, to put it at its bluntest, they can get away with this without contravening any rule. Yes, I think we should draw up rules which prevent this from happening.
93. Just one final point there, apart from the compensationand obviously solicitors are doing quite nicely out of the legal aid system which is interesting in itselfare there any other factors which might lead a person to allege past abuse which we have not covered?
(Mr Rose) In my memorandum I set out one story, one case, which is sub judice at the moment. A man has been convicted and has an appeal pending. I have interviewed an individual in prisonin the company of a Member of Parliament and a solicitorwho has retracted all his allegations. I have actually met him on two separate occasions when he has given statements setting out in some detail how he came to make a false statement. His story is that he was serving a long sentence for an unrelated offence, he obviously wanted to be considered for parole and there were indications that the offence of which he has been convicted and is serving time for, may have been as a result of some form of animus against homosexuals. What happened was that the police played on this and suggested that if he was not prepared to make allegations against the former care home worker, then it would look very bad so far as the prison psychology department and the parole board were concerned because it would appear he was bottling up this past abuse; he was not disclosing what had happened. They put pressure on him that way, so money never came into it. But there was a vulnerable person at a very crucial stage of a long sentence who was induced, he says, to make a false allegation in that way.
(Mr Webster) I think that my own impressionand this was a conclusion which I reached reluctantlyis that compensation and therefore deliberate fabrication is at the root of the miscarriages of justice which we are talking about here. However, I think it is a very important question to ask if there are other motivations, as you do. I think, in addition to the kind of motivation that David is talking about, we must not forget the power of accusation. We are talking here in most cases about complainants who have had little or no power, who have always been at the receiving end of the police's domination in some cases or control who are suddenly offered the opportunity to turn the tables on the very police officers who they once may have perceived as their enemy, who can move social workers and police forces around entire counties. And the power of accusation is something whose psychological force we should not underestimate. Going with that is the attention, the very great attention which you will be given if you make a serious allegationand the more serious the allegation the more attention that tends to bring your wayand I do not think we should underestimate the power of that for people who have often been deprived of attention and the kind of affection which we may think it is normal for people to receive. Thirdly, I consider this a very considerable motivation, and that is the idea that they are doing good. Although I would not rule out the factor that there certainly seem to be people who do this purely maliciously for their own gain, there are also people who are led to believe by the police officers who are investigating that the person against whom the police officers are soliciting allegations are guilty: They are "at it", "He is one of them". "We already have evidence that he did this, that or the other". "He is an evil person. We just need one more allegation to put that person in prison. Can you help?" Those words are the kind of exchange which may take place. I do not think that needs to be said explicitly. But very often I think that people do make entirely false allegations because they believe, wrongly in many cases, that they are helping the police to put a guilty paedophile behind bars. What they are in fact doing is putting an innocent man behind bars.
(Mr Woffinden) Just to add to the list of points we are putting together there, obviously a false allegation can be a way out of a completely unrelated criminal charge: "I did it because I was abused when I was a youngster". It is an excuse that actually carries some credibility in the current situation. Of course, other people will use the excuse of having been abused just to make sense of their screwed up, messed up lives. It actually helps to have something like that in their background that they can point to that explains why they have reached the position they are in now. Other people just refer to it as "stroking". People like the attention which comes with having made an allegation.
(Mr Rose) One further point here, an analogy is what happened recentlywhich illustrates the dangers herein the Damilola Taylor case. At a fairly late stage of the investigation into the four and then two and then eventually, of course, none accused of murdering Damilola Taylor, the police went to Feltham Young Offenders Institution and trawled. They went around the wings over a number of days and said "Has anybody got anything to say about those accused of murdering Damilola Taylor?" Thirty-two people came forward and said "Yes, they confessed. We were in the tea room, in the TV room, in the shower". If these people were all telling the truth, the accused in that case were most astonishingly garrulous about this pending charge and boasting to all and sundry that they had actually killed Damilola Taylor. Eventually the police had to reject 14 of those individuals because it turned out they had actually not been on the same wing as those accused of the murder. But they had clearly taken them very seriously up until that point because they had taken detailed statements from them. I cannot remember if they called all 18 of those whose evidence was not knocked out in that way, but I think they called most, if not all. Clearly the judge and jury in that case regarded that evidence as highly unreliable, but it shows how false allegations can be generated when people who are, for one reason or another, in a vulnerable position, or a position where they can see some advantage in making false allegations to the police.
94. Mr Rose, you mentioned just now that you did not think that the police act in bad faith. One of the fundamental parts of police training is investigative skills and interviewing skills. They develop a way of telling whether somebody is telling the truth or not. Why do you think it is so very difficult in these cases? Why is it falling down?
(Mr Rose) There is a great deal of emphasis in police training on interviewing suspects, although some surveys of police interviews of suspects have suggested they are not nearly as skilful as they should be. There is far less emphasis on the interviewing of witnesses. There will be trained officers who will perhaps be skilled at taking statements from rape victims. That is one area where I think most people would agree; the police have enormously improved their practice over the last 20 years or so. But when it comes to taking statements from other kinds of witnesses or complainants, actually very little thought is given on how to do it. The problem is that in these cases, as far as there is a model of good practice, it isas Richard has already mentionedactually the very worst example, John Robbins of Merseyside Police, who, for a long time was held out to be the national best practice model. He toured the country talking to police training colleges, detectives and other forces who were thinking of doing this sort of inquiry and told how they had done it on Merseyside. What we know about how they did it on Merseyside is that they showed photographs to people; they told people about other people who had made allegations in an effort to generate further ones; they had this symbiotic relationship with solicitors. All of the kinds of bad practice that we have alluded to today happened on Merseyside. For a long time, the man responsible for those was the national best practice model. So may be that is part of the answer.
(Mr Webster) I think there is one more factor, which is that there is a particular quality which sexual abuse investigations have and as one or two people have observed already in asking us questions, people who genuinely have been sexually abused may very well be reluctant to make that allegation. I think that one of the dangers that police forces have slipped into without realising what is happening, is that it happens to be the case that the way in which you might sensitively seek to elicit from somebody who genuinely has been sexually abused an allegation to that effect, happens to be exactly the best way of encouraging somebody who has not been sexually abused to make an allegation to that effect. I think that when that is combined with the doctrine of delayed disclosure for which there is really no empirical evidence, namely that people who have been sexually abused are almost certainly going to delay years and years and years before they actually make that allegation, then you have a very dangerous situation indeed, because the best way of gathering genuine allegations turns out to be the most effective way of gathering large numbers of false allegations at the same time.
95. Can I first of all ask you, Mr Rose, you mentioned you felt there are many in prison who are innocent of the charges, have you been able to put any figure to that?
(Mr Rose) Any figure I could give would be an extrapolation. But based on the cases I have looked at my belief is that of the perhaps 120 former care workers convicted in these cases of sexual abuse and serving prison sentencesof sexual abusemy guess is that we are into quite high double figures of wrongfully convicted people. My suspicion is over 50, perhaps more than that, but it can only be a guess.
96. The over 50, would that include people who may have committed some offences?
(Mr Rose) No.
97. They would be completely innocent?
(Mr Rose) Yes.
98. Can I turn to you, Mr Webster. All three of you have told us how things could be changed in the way that the police operate to safeguard their procedures more, but you have suggested in your memorandum that the law of similar fact evidence should be changed. In your view, how should the law be reformed?
(Mr Webster) I make that suggestion because I believe that that is the root cause of the problem of trawling, and that is the ease with which it is possible to put totally innocent people in prison for a long period of time. If that is indeed happening, I hope that everyone would accept that that indicates a very serious problem with the law. So far as your specific inquiry is concerned, I have already implicitly offered one answer to it, and that is by pointing towards the decision in DPP v P in 1991 which said we do not any more have to have striking similarities. We can effectively bring as many allegations as we like into court providing there is a certain level of similarity. At the same time, I think it is important to recognise this, what has made the situation with regard to similar fact evidence even more serious is that there was for a long time a presumptionwhich I think was a wise presumptionon the part of judges that sexual allegations, because of their prejudicial power, should generally be severed if they could not be joined together on a similar fact basis. That presumption is another safeguard which has been eroded so that now even if you do not have any similar fact basis for joining the counts together you can do so. I think that there are two things there that we need to do. We need to restore the recognition of the prejudicial nature of these kind of sexual allegations and with it the recognition that we should not expose juries to the task of having to be told by a judge: "Now you heard evidence that this man buggered that person, I want you to put that out of your mind while you decide on this allegation." Historically judges have been very sensible in realising that that is a psychologically impossible request to make of juries or anyone else. Dangerously the judiciary has gone down the road of dismantling that safeguard. I think we need to re-introduce the criterion of striking similarity because that provides a safeguard against the kind of contamination which is happening in these cases. If you get rid of that demand for striking similarity, then anyone who reads the name or hears the name of somebody who has been accused of one of these offences in a care home investigation can simply make up any allegation which can then be joined on the indictment. The third point which we need to consider very carefully is the decision in 1995 in R v H which was once again an attempt to lower still further the threshold of admissibility. What was actually saidunbelievably to my mind and that of other legal observersis that if you are going to admit similar fact evidence it was always said that its probative power should exceed its prejudicial effect. In other words, that it should really prove that crimes had been committed and that that proof quality should be greater than its power to arouse prejudice. In 1995 the House of Lords actually said that in deciding whether its probative power exceeded its prejudicial effect the judge should assume that the allegations are true, which is clearly a nonsense. If you are assuming that the allegations are true for the purposes of assessing whether they have probative power, they will always be admitted. I think that was a very, very dangerous innovation. I am not a lawyer, and if I was the only one who had come to that conclusion I would be disturbed, but there are very experienced lawyersProfessor Colin Tapper is one of them whom I believe has submitted written evidencewho share that view. That does not complete the answer to your question, but that gives perhaps some indications.
99. Do you have a comment to make, Mr Woffinden?
(Mr Woffinden) I just wanted to show a cutting from the Sunday Telegraph that follows on from this which says "Tolkein's son is questioned over child sex allegations". As we know, this is not one of the racier tabloids, this is the Sunday Telegraph, one of the most responsible newspapers and it has very good lawyers. So, at the moment there is absolutely nothing wrong with headlines like this, very prominently placed in newspapers. The reason for this is that sub judice laws do not come backwards, as it were, they kick in from the moment someone is charged, but not prior to that. What has happened with trawling operations throughout the country is that while police have gone about gathering allegations about somebody, the press has been entirely free to write about what has been going on. There is nothing at all to prevent them doing that. There are clearly two things wrong with headlines like this. The first is the power of innuendo and the fact that once this is written then everyone begins to believe it. The second, of course, is the part it is going to play in the gathering of possibly potentially false allegations. This is the Sunday Telegraph, but we must bear in mind what has happened throughout the country with the local press when all of these operations have been going on in communities up and down the country and, as I say, journalists have been free to report them.
4 Note by witness: Since the Indictments Act of 1915 it has been possible to join together on the same indictment charges for different offences of a similar character and to hear these charges in a single trial. This can be done even where the different counts are not admissible on a similar fact basis. Judges, however, have always had a discretionary power to direct separate trials for different offences where they are `of the opinion that a person charged may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment.' Throughout most of the twentieth century it was widely held that, because of the highly prejudicial nature of sexual allegations, unless sexual offences could be joined on a similar fact basis they should be severed and heard in different trials. This presumption, which was long considered a vital safeguard for those falsely accused, has now been eroded. A key judgment in this respect was that given in R v Christou (1996). Back