Examination of Witnesses (Questions 100-120)
MR DAVID ROSE, MR RICHARD WEBSTER AND MR BOB WOFFINDEN
TUESDAY 14 MAY 2002
100. We have heard about the police measures against those who are facing accusations. Do you have any evidence of potential defence witnesses or character witnesses also having it intimated to them that if they persist with their speaking up on behalf of the accused then they themselves may be facing charges? Have you come across that yet?
(Mr Webster) Yes. There are two cases, one of which I can bring to mind, which certainly took place in Yorkshire where the Director of Social Services became aware that a trawling operation was going on in relation a former particular care worker and that a solicitor was seeking to interview potential defence witnesses. A letter was sent out saying that anyone should not immediately talk to this solicitor but should first of all get in contact with social services and get clearance, and so on. There was a clear, not very well veiled, request that no help should be given to this defendant. There are other cases as well where I have come across some evidence that that kind of practice of attempting to discourage defence witnesses has been engaged in by the police. I think it is fair to say I have not myself come across evidence that that is a particularly widespread practice, but I think we need to bear in mind of course that once again it may be superfluous for police forces to take that line because there are very powerful disincentives to coming into court and giving evidence on behalf of people who are accused of grotesque acts of paedophilia.
101. We heard earlier that a senior police officer said he had forensic evidence and he had not. Could I ask the other two gentlemen if you have heard about the situation I described where the police travel across the country to a potential defence character witness and say, "If you speak up for your former colleague you will face similar charges".
(Mr Rose) Not as crudely as that, but what I have come across is this: somebody comes forward as a defence witness and goes on the list as part of the defence disclosure that they are going to give evidence, and then is immediately accused and interviewed and becomes a suspect. In the case I am thinking of, that then hung over that individual for about another two years before eventually the police took no further action. The effect was that when that person gave evidence in courtwhich bravely he did dothat was hanging over him. It meant that his only legal advice was to be very, very careful what he was going to say. I think it is fair to say that that partially disabled him as a defence witness. He was not just a character witness, he was a witness who was able to say (in fact it was in the Shuttleworth case): "One of these allegations can't be true because it is alleged that a sexual assault took place in the swimming pool area. I had the keys to the swimming pool area. They were very tightly controlled for safety reasons." It is impossible that this child, as he said, could have got into the swimming pool block with his own key, as he claimed, where Shuttleworth met him for sex sessions. I think that certainly had an impact on Shuttleworth's trial.
(Mr Woffinden) Could I answer your point in a slightly different way. We have actually wondered whether the way in which trawling operations are carried out at the moment is actually legal under the Criminal Procedure and Investigations Act 1996 because, as you know, this was the Act which introduced fresh disclosure provisions which meant the police were able to withhold material from the defence. In return, responsibilities were placed on the police to investigate avenues of defence thoroughly because it was understood that the defence lawyers were no longer going to have the opportunity to investigate them as thoroughly if they were not going to have access to all the available information. An onus was placed on them to investigate defence lines thoroughly. What we find in these cases quite often is that if, in the course of a trawling investigation, police go either to former residents or to former staff members and they say, "Was anything going on while you were there?" and they say, "No", then the police walk away, they are not interested. Whereas the defence would be very interested to know, because that enables them to build a comprehensive picture of what is going on. So, in fact, the potential statements of people who are saying "Nothing at all happened while I was there" are vital to this investigation and they are very rarelyif everreaching the defence.
(Mr Webster) One other thing is that in North Wales, anyone who made a very positive statement saying that Bryn Estyn was "a wonderful place"and many people did, I do not want you to think I am just inventing an exampleand "I was looked after very well there by care workers" that statement was classified by the North Wales police as a negative statement because it was said to contain no allegation. Just to come back to your point, I think North Wales is a very good example of one of the things that does happen in these care home investigations which effectively removes potential defence witnesses from the court altogether. What happened in North Wales, as people will be aware, was that there were a huge number of allegations which were collected by the largest trawling operation ever mounted in the British Isles at that time (that was begun in 1991). Eventually, by the time the Tribunal was convened, some 650 people had made allegations against no fewer than 365 people, the majority of whom were care workers, but not all. At the end of the first stage of the North Wales investigation, I think I am right in saying, there was a dawn raid in which 16 former members of staff at Bryn Estynwhere there was supposedly a paedophile ring which did not, of course, existwere arrested. What that meant, to give but one example, is that the deputy head of Bryn Estyn at that point was facing an allegation of buggery (among other allegations) from a complainant who said that he had actually gone up to a care workera care worker who was held in very high regard by people at Bryn Estynand had said that he had been buggered by the deputy head of Bryn Estyn, Peter Howarth. Of course, the obvious avenue to go down for the defence was to call this care worker and say, "Did this in fact happen?" They were unable to do so in practice because that care worker had been arrested, allegations having been made against him of an equally serious nature, allegations which were entirely false and he was subsequently acquitted by a jury after ten minutes. I think that this gives an example of what is happening in too many of these cases where we are demonising not simply care workersor individual care workersbut we are demonising entire institutions (Bryn Estyn being a classic case in point) to the extent that we are effectively disqualifying the testimony of the colleagues of the people who end up being convicted.
Chairman: In the final minutes of this session, what I would like to concentrate on is what changes need to be made in the future. I think we have established there is a problem. What we now need to focus on is how to deal with it.
102. I am grateful for that intervention, Chairman, because most of my line of questioning has been covered by other members of the Committee. You seem to be describing a modern version of Salem.
(Mr Webster) I think that is a very reasonable comparison, and I think we should recognise that there are historical continuities. I think the point I would make with regard to that is if we talk about historical witch-hunts then one of the things we have to bear in mind is the extent to which they were driven forward by official findings, by judges and magistrates and by official inquiries. One of the things I think is very important to bear in mind is that yes, of course, we have had a tribunal of inquiry into events in North Wales. As I said, some 365 people were originally accused in North Wales. There were 650 people who made such complaints. It is something we ought to bear in mind that only, I think, 80 of those 365 people who were accused actually gave evidence to the North Wales Tribunal. Some 500 of those who made complaints did not appear before the tribunal. What I am pointing to is a very dangerous judicial situation where a tribunal of inquiry sat and pronounced upon what it claimed had happened without examining the evidence carefully and where the chairman of the tribunal did say that it would be quite unrealisticand it would have been far too expensivefor the tribunal to consider in detail every single allegation. So I would say that there was no inquiry.
Chairman: We have been talking for just over two hours. We know there is a problem. We want to focus on what the solutions are, which we have touched on, it is quite true, but let us do that please.
103. Taking the firm direction from the Chair, individually and collectively the three of you have, I believe, covered the need to take steps and in the written evidence you have given us, that the police and CPS should test the veracity of the allegations. You have mentioned introducing a time limit on the prosecution of cases, and certainly been very critical of solicitors advertising for compensation cases to come forward. In summary, are there any other measures that you would like to see adopted to minimise the risks of generating unreliable evidence in such cases? Over the last two hours you have explored and answered colleagues' questions on these matters, but the Chairman is anxious that we now have on record the sort of recommendations on the way forward so that we do not have these problems in future.
(Mr Woffinden) We have already mentioned the taping of interviews with potential complainants. We have also mentioned that the CPS might like to consider as a third criteria for prosecution, that they are sure that a crime has been committed. I think at the moment they only have one test which is whether or not they are going to get a conviction. In these kind of cases they almost certainly are because of the nature of the evidence and the power of the accusation. The idea that it is in the public interest hardly serves as a proper test because if it is a case like this they are bound to take it forward. If, on the other hand they have a mass of evidence, some of which suggests there has been something taking place and a lot of which suggests something may not have been taking place, then that provides them with a different situation. We have also suggested that there should be a time limit on bringing complaints. One thing we have not covered, I do not think, is that I believe there should be a time limit on the promise of anonymity because what happens at the moment is that complainants/victims can bring forward complaints with total impunity because they know that nothing is ever going to happen, their name is not going to be revealed, whereas it seems to me there should be a time limit on the promise of anonymity, say three years again, and this could apply to rape victims and any kind of sexual assault case. If a case is three years old then the press is not going to be interested. On the other hand, if there is a reason for continuing interest then it is going to be because of public concern about that case. It strikes me that one should then be able to report what is happening properly, and it may be that there are complainants in these sort of care home cases who have made complaints in a number of cases against a number of care workers and one may wish to bring these together. Obviously the usual defamation laws will continue to apply.
(Mr Rose) I endorse everything Bob says. I just really want to add one thing which is, I have a sense that the tide is beginning to turn in this area, that what was an extremely lonely battle when Richard first got involved in the mid-1990s is now slightly less lonely, that there is, as the convening of this inquiry suggests, a broader appreciation that there may be a number of people who have been wrongfully convicted and important things have to be done to improve practice in this area. What concerns me is that if we do arrive at a situation where the way the police work is reformed and the law is changed so that the effects of the cases of P and H are reversed, that may still leave perhaps more than 50 people in prison wrongfully convicted with no obvious way of having their convictions overturned. I think that if, in the end, Parliament and other institutions which operate in this area do form a view that the process which did operate, particularly in the 1990s, has produced many flawed convictions and was inherently dangerous, some means must be devised to look again at those cases, and I think something beyond the usual reference to the CCRC. The CCRC is not a terribly well-resourced body; it staggers under a huge case load, and especially in cases where people may have come to the end of sentences, it does not go very quickly. I think there are a substantial number of men whose lives have been shattered, to an extent to which most of us find it very difficult to comprehend, and if we do succeed eventually in enacting the kind of reforms that we are talking about today, then they have to have some way of finding redress before they die.
104. I think the biggest single thing we can do is take compensation out of the equation.
(Mr Webster) I was going to raise that point, but I do not want to do so before agreeing absolutely with what David has just said. I think the really serious problem that we face nowwe have been talking a lot about the problems with police methods of investigation; we have talked a lot about the deficiencies of the Crown Courts who are finding people guiltyis that these convictions are extraordinarily difficult to overturn in the appeal court. What that means, as David is pointing out, is not simply that individuals have had their lives destroyed, but their families as well and an entire circle of friends. I think we should recogniseI think it is very important that this Committee should recognisethe degree of not simply alienation and disaffection, but total collapse of faith there is
105. You are going back to the problems again. I would like to focus on solutions.
(Mr Webster) Can I come back to compensation then. I think that we must not underestimate the extent to which the fuel of this machine for creating miscarriages of justice, or the lubricant, is compensation. Bob has already put on the table a proposal that the CPS should not take cases forward unless there is absolutely convincing evidence that a crime has taken place. The problem with the Criminal Injuries Compensation Authority is, of course, that they do pay out in cases where you cannot prove that a crime has taken place. I would question the wisdom altogether of the system where we have compensation. I believe I am right in saying that Professor Sidney Brandon of the Royal College of Psychiatrists, who once had an important role in ChildLine, opposed the introduction of compensation for allegations of abuse because, I believe, he foresaw that it would eventually lead to a situation where those who genuinely have been abused would be disbelieved because we have put too powerful incentives in place to encourage people to make false allegations.
106. You would remove compensation from this category of cases, would you?
(Mr Webster) I think that is something that we have got to consider. People may say that that is an extreme proposal. I would say, on the contrary. I think it is a very moderate proposal. You might say you are asking for the moon. What I would point out is that those who have campaigned to lower the threshold of evidence to get convictions have been asking for the moon for a very long time now, since the beginning of the 20th century and have very nearly succeeded in getting it. I think we need to realise the extreme situation which we have now got into, so that we need to consider seriously what I would characterise as a moderate proposal, namely that the CICA should not pay compensation on crimes whose reality cannot be proved.
107. Mr Rose?
(Mr Rose) On this compensation point, I think a problem bigger than the CICA problem is the question of civil actions, and the rewards are so much bigger, of course. Top whack, say you have been buggered in care, you might get £18,000 or £19,000 from the CICA. You could expect a sum five times as great, or even more, if you take a civil action against the authority or charity which ran the home. One of the features which makes the situation particularly pernicious is the way that these actions are run. They are run as class actions. They are defended usually by insurers. In fact, they are not defended at all. In the civil process there is no picking through of an individual's allegations' merits. The cases are considered in blocks of 30, 40 or, in the case of the North West, 700 at a time. Basically what the whole thing comes down to is an argument between highly paid lawyers as to exactly how this business is going to be settled. The facts just do not enter into it. We have already, in very different fields in this country, seen the growth of personal injury legal actions with, I would suggest, pernicious effects that are way beyond this Committee. But here they are perhaps seen at their most pernicious. If we are going to tackle this issue of compensation, we have to look at the way the class actions are run, the whole notion of class actions. I think perhaps it would be unjust to rule out compensation altogether. The genuine victim of abuse, one could cogently argue, deserves, if he feels that would make things better if you like, a degree of compensation. But, I think, what has to be established is that cases have to be fought on an individual basis, and the civil court has to consider the details of the allegations in each case.
108. Mr Woffinden, do you want to add to that?
(Mr Woffinden) I think I would agree with David, that it seems unjust to rule it out altogether.
109. Chairman, I want to say how compelling and powerful the evidence from all three witnesses has been. Personally I hope it does result in a change in law. I was then going to go on to ask what hope we could put out to the large number of probably innocent people languishing in jails. Mr Rose has given us a pointer in that direction. Do the other witnesses have any views specifically to help those wrongfully convicted and in jail at the moment? Or, at a lesser level, means of altering and reforming the appeals procedure to give them some hope?
(Mr Woffinden) This comes on to a little point of mine which is concerned with miscarriages of justice in general. Obviously we have a problem in this country because we are the only country which has set up a body to deal with things that go wrong in the judicial system. As you will be aware, the Criminal Cases Review Commission refers cases to appeal if there is a real possibility of the appeal court upholding the appeal. I think that is the wrong test; I have always thought that. What the Act should actually say is that there is a real possibility that justice has miscarried. At the moment we are in a rather daft situation where all the time the CCRC is having to second-guess what the appeal court thinks. I think, first of all, that is an absurd situation. Secondly, it is actually protecting the appeal court, which as we know, can reach some astonishing judgements in some cases. I do believe that a lot of cases are dismissed at appeal which should actually be upheld at appeal. If the CCRC had this better test, a real possibility that justice has miscarried, then at least we would know if there were things wrong that we should be looking at within the Court of Appeal. I agree that with the separation of powers it is perhaps not Parliament's function to do that, but certainly the country as a whole should be aware that maybe the appeal court is not quite the body we would like it to be.
110. Just briefly, there is another group of victims whose lives are shattered, and those are the people who are accused and found not guilty. The whole process takes so long that they are very rarely able to pick up their lives where they left off. They lose jobs, often homes, families break down, and they are equally victims in this as well.
(Mr Webster) On the question of appeals, I think one point which does need to be made is that of course we all know that in order to win an appeal, in order to overturn a conviction, you have to introduce new evidence. One of the problems about these casesI am looking at the moment into a case where allegations go back 30 years, where witnesses are dead, where there is no documentationis that it is peculiarly difficult to obtain new evidence. That means that we have actually handicapped the very people who most need to be advantaged in the appeal court system. I think that the appeal courts themselves need to recognise that. I would endorse David's suggestion that we need to have some body which can go beyond CCRC in looking at these cases and addressing the miscarriages of justice which have undoubtedly taken place.
111. It has taken years to get the CCRC set up and now you want another body.
(Mr Woffinden) If you had a different test, you see, it would be able to refer these cases that it was concerned about. The point is that at the moment it is not referring these cases, quite legitimately, because it knows the Court of Appeal is going to do nothing about it.
(Mr Webster) I do not want to suggest that it has achieved nothing. I think it is a very important achievement.
112. It has a 69 per cent success rate in cases which have been referred to it.
(Mr Webster) Yes, but the timetable is an extraordinarily difficult one because the waiting period in itself is incredibly slow.
113. I think we should just concentrate on reforming it and improving it, rather than setting up a new body.
(Mr Webster) That may be the solution. I think we have to recognise there is a problem, that is the important thing.
114. Like everyone else who sits on Select Committees, I hope I have an open mind, but you will appreciate that this is the first session of our inquiry and we will no doubt hear a very different version of events. I am sure you will bear that very much in mind.
(Mr Webster) I am sure we will bear it in mind.
115. Thank you very much for that gentlemen, it has really been a most helpful session and you really have succeeded in establishing very graphically the kind of issues we have to deal with in this case. I have one final matter I would like to pursue with Mr Rose, please. Mr Rose, have you seen the transcript of Sir David Phillip's appearance before this Committee on Thursday 7 February, and particularly the first page of the transcript?
(Mr Rose) I have, yes.
116. You will have noticed that I asked him whether he had ever asserted that people whose convictions were quashed in the Birmingham, Guildford and other cases were really all guilty, despite the findings of the courts. He could not recall ever having such conversation. He said he had talked about it in general terms but he could not recall ever having such a conversation. Can you help us with that?
(Mr Rose) Yes, he expressed such a view to me in the early part of 1996. I was invited to present a paper at an Association of Chief Police Officers conference at Warwick University. I stayed the night and attended the formal dinner there. I later joined Sir DavidMr Phillips as he then wasand some of his colleagues in the bar quite late in the evening. It was probably after midnight when I found myself talking to Mr Phillips alone at the bar. He launched what I can only describe as an intemperate tirade against journalists such as myself who had concerned themselves with investigating miscarriages of justice and expressed in very forthright terms his view that the Birmingham Six were all guilty. He added that as a detective with 25 years' experience in the North West he had never known a case where a confession by a suspect had been co-erced or in any other way improperly produced.
117. Did he suggest that any evidence that has not so far come to light in the Birmingham case existed? Of which he was aware and perhaps the outside world was not?
(Mr Rose) He did not produce any rabbit out of the hat of that kind, no. He just expressed that view very strongly.
118. Did you challenge it?
(Mr Rose) Yes, I challenged it very strongly and I said that it seemed to me that the Court of Appeal had rightly come to that conclusion and, indeed, Lord Lane's Court of Appeal should have done so in 1987 when it heard the appeal before. There was a wealth of evidence to suggest the Birmingham Six were innocent and, indeed, that other individuals were probably guilty. The same went for some of the other miscarriages of justice which he also alluded to.
119. Did he mention any other by name?
(Mr Rose) If my memory serves me, he alluded to Judith Ward, the M62 Coach Bomb case. He certainly alluded to the Tottenham Three case in which I personally played quite a substantial role. He expressed the view that Winston Silcott, once alleged to be the ring leader of the murder of PC Blakelock, had also been guilty.
120. Just to be clear, he was not suggesting that, as a result of his involvement in the Devon and Cornwall investigation, he knew things that the outside world did not?
(Mr Rose) If my memory serves me, he referred to his role in the Devon and Cornwall investigation, but in a very general way. It was not: "If you knew what I knew, I can tell you about witness X". It was more that he had formed that view as an officer in that constabulary.
Chairman: Thank you very much. The session is closed.