Examination of Witnesses (Questions 200-219)
MR CHRIS SALTRESE, MS LINZI MCDONALD, and MR NEIL O'MAY
TUESDAY 21 MAY 2002
200. Did the trawl produce corroborating evidence apart from the ex residents?
(Ms McDonald) Yes, there were one or two other witnesses, if you could call them proper corroborative witnesses, and they resulted from the trawl.
201. Mr O'May?
(Mr O'May) I think that one of the root problems is the law relating to similar fact, to joinder and severance. Essentially what that is about is the ability of a court to manage a case where there have been a number of different complainants all saying broadly similar things. The way the law has developed on similar fact has encouraged, indeed prompted trawling because where you have a single complainant who makes an uncorroborated allegation, it may be possible to corroborate that by finding another one who makes a broadly similar allegation. Since around about 1990 or thereabouts the threshold by which you can use stand alone complainants to corroborate themselves has been gradually diminished. The problem as well is in the law relating to joinder and severance, that is that similar fact allows a jury to prop up or convict a person by using other complainants. Joinder allows the Crown Prosecution Service to pull together lots of complainants, not necessarily to individually and evidentially prop up the case but simply to put them in a manageable package. Severance is the ability of a court to chop up that joined indictment to make the cases separate and discrete. What has happened over the last ten years is the pressure is to put everybody together on a huge indictment, what is called an overloaded indictment, and put that in front of the jury. That is the no smoke without fire philosophy of the prosecutors. What that allows is trawling and it directs trawling. I think also there are serious problems over the way in which the police interact with the Crown Prosecution Service and the ability of the Crown Prosecution Service not only to direct and advise on an investigation but also to stand back and take a proper view about whether something should go ahead or not. I think there is a cultural problem both in the police and in the CPS. I think, finally, sorry to go on, there are problems in the CCRC and the Court of Appeal for the future which means that those people who have been convicted wrongly are going to find it very difficult to have this whole process unwound.
202. To go back to the CPS, do you not think it is right and proper for the CPS to say to the police "This is the type of evidence we need for a successful prosecution"?
(Mr O'May) I think it is absolutely right and I think they should be more involved and objectively involved in the way in which that evidence is gathered. What happens, unfortunately, is that they are under resourced, they are over burdened and they do not take an active participation. The very easy cultural identification that occurs is "believe the child, let us get it into court and see what happens". Those two are overriding cultural problems within the police and CPS of which the CPS does not distance itself. I think the attitude of "Well, let us get it into court, see what the defence has to say, the court can decide" causes a great miscarriage of justice.
203. Mr Saltrese?
(Mr Saltrese) Yes. I would endorse what Neil says. I think with trawling police are actually creating the evidence themselves and that is leading to people going to prison for offences which they have not committed. I think Neil is right to look at similar fact evidence, we can discuss that more fully later on. I think with regard to the relationship between the CPS and the police, it should be understood that these operations are run by the police using pretty large budgets. I think it is very difficult for a CPS officer or lawyer to resist something that is chucked on his desk, £10 million spent on it, 10 or 15 complainants, it is then very difficult for a prosecuting lawyer to say "Hang on, this has not been done and that has not been done". They simply do not have the resources and the time to do that. They are very much police run operations. With regard to that, I think the police will do what the law permits them to do. At the moment the police are doing nothing which is illegal and I think we have to recognise there are enormous pressures on the police to obtain convictions. The police are thoroughly fed up with having a bad press, things like the Macpherson Report are not helpful. Now, gaining convictions of paedophiles is a very popular thing. The police are operating within the law and they will continue to do so.
204. We heard last week that the police, whether deliberately or not, sometimes plant suggestions of abuse in potential complainants' minds. Do you share that view and if you do is there any evidence to show that?
(Mr Saltrese) Certainly I do think the police lead witnesses. They suggest scenarios, they suggest names, they show photographs, undoubtedly that goes on. Having said that, it is extremely difficult for anybody investigating these type of allegations to remain completely objective.
(Ms McDonald) I would agree with what Chris has said. Certainly it goes on, whether it is consciously or unconsciously done by the police. The police get training, certainly, to some extent in interviewing suspects, perhaps they need to have further and better training when it comes to interviewing vulnerable people. Also, in the Dave Jones case, we had one witness who was willing to come to court to say that when he was interviewed by the police in relation to complaints against another care worker, he was encouragedand I will use the word encouragedto make allegations of abuse against Dave Jones, and he was willing to come to court to say that. Certainly it goes on, and sometimes deliberately so by certain police officers.
(Mr O'May) My experience is that the police adopt a number of different attitudes towards potential witnesses, some are extreme such as "We have got this nonce, this paedophile, are you going to help us get him" to simply reciting what one witness has said to another witness as the preliminary to obtaining a statement. As we have heard, in vulnerable witnesses that is very dangerous indeed. I think the problem is the idea that underneath it all there is a truth and that truth is "there are paedophiles in this home and we need to do everything to expose it". It is not healthy scepticism, it is a belief that there is a crime before they have evidence of it. I think the problem is, is it not, that trawling starts that? If somebody sits in a prison or in a home and receives a letter from a police officer saying "We are investigating something, can you tell us about it please", it is not going to get very far, in fact the whole process starts and the information comes across and people deliver what they have been asked to deliver.
205. Can I just check what we mean by trawling? Somebody comes forward and makes an allegation and they are asked "Who can corroborate that allegation" and they name four or five people, that is not trawling, is it, for police to go and contact those four or five people and ask them whether or not they corroborate it?
(Mr O'May) No, I do not think trawling has a technical term but that is not it.
206. That is legitimate?
(Mr O'May) Yes.
207. What we mean by trawling is when questionnaires are sent out to everybody who was in the home saying "We are looking at cases of abuse".
(Mr O'May) "You were here over a particular period, we are investigating something, we would like you to tell us about it". In fact it is something more than that, often they visit the person on the doorstep and the conversation starts. There has been no suggestion at all, even by the original complainant or by any other evidence, that a crime has been committed against that person or that person has witnessed a crime.
208. Now are we saying we are against that process under all circumstances or might there be circumstances in which it is legitimate?
(Mr O'May) I cannot think of any.
(Mr Saltrese) I cannot think of any circumstances in which trawling, as Neil has just described it then, can be legitimate.
(Ms McDonald) Neither can I.
209. Okay. A point to Mr O'May. You said there were going to be problems up the road for the CCRC. Can you tell us what they are? As far as I know most of these cases have not used the CCRC.
(Mr O'May) No and I think the CCRC has not got a huge number, I do not know. I think the enormous difficulty that the CCRC operates under is, firstly, that they generally require fresh evidence and, secondly, the terms on which they can refer to the Court of Appeal require them in effect to second guess what the Court of Appeal is about. I think the way the Court of Appeal has delivered its judgments on miscarriage cases over the last five years means that it is extremely difficult to discern exactly what cases are likely or might have their convictions quashed. If there were additional tests or a removal of the test of fresh evidence, that is that there was an unfair trial, there was a miscarriage of justice, the person was wrongly convicted, if that pressure could come from the CCRC or from legislation to change the Court of Appeal then I think the whole process would run much more smoothly. The trouble is when you have people convicted wrongly in custody everybody knows about it and it undermines the system. When people get knocked back on leave applications before the Court of Appeal or in the Court of Appeal or unceremoniously dismissed people know underneath it that is wrong and it brings the whole process into disrepute. I do not want to draft what the CCRC guidelines should be but I think the present ones are far too restrictive.
210. Ms McDonald, you have indicated that compensation was a driving factor in motivating some of the allegations against Dave Jones. Can you tell us how that came to light during the case?
(Ms McDonald) We had two witnesses willing to come forward who had conversations with two of the complainants whilst serving prisoners and their evidence would have been along the lines that whilst serving in a prison in a conversation or conversations with the complainants the complainants admitted they were making up the allegations of abuse and they were doing it in order to gain compensation and make a bit of a life for themselves when they get out of prison.
211. Were there any other factors which led to the collapse of the Dave Jones trial?
(Ms McDonald) The main one was that the original complainant in time was due to give evidence, he was the third prosecution witness. Whilst we were half way through the second complainant's evidence he indicated that he was unwilling to come to court. He said he stood by his statement but was unwilling to come. He was visited by the police that evening and still refused. The way the Crown had opened the case, they could not continue without this witness and therefore the case collapsed and they offered no evidence. They took the decision there would be no retrial of the four remaining complainants.
(Mr Saltrese) If I could come in on that point. I was instructed on an associated case, an Operation Care case, and as the Dave Jones case was collapsing, witnesses were falling away, the police were busy scurrying around prisons in Liverpool trying to draft further complainants in and that is extremely worrying.
212. Could I just move on more generally to your two colleagues, if I may. Have you seen any evidence to suggest that complainants either fabricate or exaggerate allegations with compensation in mind?
(Mr O'May) My own personal experience of that is in post conviction cases, that is not in trial cases, although that may just be my experience. Certainly I have hard evidence that statements were made with compensation very much in mind and, more importantly, that the issue of compensation as a factor, which might determine their credibility, was known to those witnesses and that they manoeuvred their applications to minimise the attack on credibility, that is that they waited until the conviction and then they put in the application.
(Mr Saltrese) Yes. Certainly I have taken statements from former residents of care homes who have said that they have spoken to mates of theirs who have made false allegations for the money. I think the people who best understand what is going on at the moment are former residents of care homes who are not making complaints. When I go and interview some of these guys I say "Well, I have got a statement here. Mr X says that he was buggered in a dorm by Mr Y, what do you say to that?" They say "Well, it is rubbish, it could not have happened". I say to them "Why do you think he is making that allegation?" and they look at me as if I am an idiot, they say "It is for the money, dummy", and that is really what it is about. I think there is a distinction to be drawn between care homes and, for example, the boarding school that Mr O'Brien was working at. I think the success or the abject failure of the investigation into Rory O'Brien's school where essentially you had a pool of honest witnesses who corrected an incorrect police narrative was instructive. In the care home situation what you have are a lot of essentially dishonest witnesses. The police go to them with an incorrect narrative and it is not in that witness's interest to correct the narrative very often.
213. Do you routinely seek disclosure of the claims to the Criminal Injuries Compensation Authority?
(Mr Saltrese) Yes, we do. I do, certainly.
(Mr O'May) My experience is that it is often quite difficult to get that information, certainly directly from the CICA. Certainly we ask for it. The problem, often, is that the conscious decision has been made not to apply then and there for retrial.
214. Are you aware of any other factors which might lead an individual to fabricate or exaggerate evidence of past abuse?
(Mr O'May) I think all the reasons were very well put previously. The vulnerability of a witness is an essential feature in that.
215. In your opinion do you think compensation is the number one feature?
(Mr O'May) In my own experience not the number one but an important feature. Others may have different views.
(Mr Saltrese) I would say that in care home cases the desire to claim undeserved financial compensation is the overriding motivation in making a false allegation. There are other factors. In some of the documents which were disclosed to me in a Cheshire case you had solicitors for complainants writing to the police inviting the police to produce letters in mitigation before the clients were sentenced. To my mind that is entirely wrong. The police were acquiescent.
216. I would like to return for a moment to the role of the Crown Prosecution Service. Mr O'May, you have been critical of the way they approached in particular Dr Reeves' case. Do I take it from your earlier remarks this morning that is a criticism of their approach to many other cases or was Dr Reeves exceptional?
(Mr O'May) No. I think it is endemic in the system. I think the Crown Prosecution Service is under-resourced and necessarily quite close to the teams of police who carry out these investigations. I think their ability to be objective and to apply different tests to the police is constrained by that. I think, for instance, in Dr Reeves' case that whilst even before charged there was close liaison between the CPS and the police, that the culture that I was speaking of before was quite apparent in both the CPS and the police, that is "believe these people, let's not investigate the alternative scenario, let's get it into court and wait to see what the defence do". That culture was there throughout and was given authenticity by the CPS. There may be an argument that in these kinds of cases a separate CPS lawyer should be the one who oversees the investigation who is not so close to the police as was the case in Dr Reeves' case and that they have particular training and special resources.
217. Can you suggest any other concrete suggestions for improvements, albeit within the present resources?
(Mr O'May) I think that the Attorney General's guidelines on disclosure are not being adhered to. I think the active investigation of an alternative scenario, the defence, or material that might undermine the prosecution witnesses is not taking place. It did not take place at all, shockingly so in Dr Reeves' case, it is continuing not to take place. I think that there should be resources committed to that and the ability to get third party material should be improved. There are legal hurdles to it and there are resource hurdles to it. The legal hurdles are the defence or the prosecution have to show that the documents are specific, particular, and they must themselves be admissible in evidence. That is very difficult and what everybody says is it is just a fishing expedition. If you get your fishing expedition wrong, horror of horrors, there is a wasted costs order against the lawyers. That is a huge disincentive. The other disincentive is that the poor old local authorities come to court with their heaving bundles, with their understandable confidentiality issues there and they have no ability to be paid for that. It is a useless system and in these kinds of cases it should be immediate and easily done and it is not.
218. To what extent should it be easier? Should it give you access to what you describe as a fishing exercise?
(Mr O'May) I think the Crown Prosecution Service should adopt the role that it ought to which is to direct investigations of all parts of the case and they should be able to have access and adopt the material if it is relevant and then to disclose it under the procedures which are available now. Alternatively, if it is so sensitive or there is an issue about it, perhaps a judge should look at the material. Certainly in my experience when you have got to the stage where your so-called fishing expedition has produced the material that a judge then looks at, it is always handed over because it is so obviously key to the case.
219. Finally, perhaps, from me anyway, what are the main obstacles to you mounting a defence against an accusation of an offence which took place many years ago? To the lay person one would have thought the biggest problem would be on the part of the prosecution, no forensic evidence, no medical evidence, the evidence we have got so far shows it is the defence which has the problem.
(Mr O'May) I think it is the defence that has the problem. In these kinds of cases often you get a very serious allegation, an allegation of buggery, which is contained in a statement which might cover two sides of a piece of paper with very little detail, very few lines of investigation that might be pursued to corroborate it but the underlying feeling that this goes on, this is one of those cases, here is somebody telling us about it, it was a long time ago so what you can expect is probably "supported" by similar allegations and "let us get it into court". The problem for the defence is to undermine it. When there is so little material to go on, in some cases the care home has been knocked down and converted into another building, it is enormously difficult.