Examination of Witnesses (Questions 220-239)
MR CHRIS SALTRESE, MS LINZI MCDONALD, and MR NEIL O'MAY
TUESDAY 21 MAY 2002
220. Do you have any view with regard to the way the judges in general advise juries after these types of cases where there is a long period, not much evidence and nothing tangible?
(Mr O'May) No, I do not think I have a particular view about it. Judges vary enormously in their attitude to these cases. Judges who have not come across them before have a particular stance. Famously for me anyway in the case of Dr Reeves, who faced, I think, at one stage 38 counts, the judge who first got the case papers said to Dr Reeves when he was in the dock "Which of these are you going to plead guilty to" and expressed surprise that he was not pleading guilty to all if not some of them. Another judge in that same case took a very different view. Certainly I think Chris has experience of when judges, if you like, become more experienced in the cases their attitudes change dramatically.
(Mr Saltrese) Just following on from Neil's point, I think with the best will in the world, even the most exemplary directions in a judge's summing up cannot cure what has happened in the trial process where you have ten or 15 complainants, the burden of proof is actually reversed and it is the defendant who has to establish his innocence rather than the prosecution his guilt. Very often a judge will give a direction in the summing up on similar fact that the jury should consider the allegations individually and they should not look for support from one allegation to the other and of course it is extremely difficult for a juror to do because that juror has seen the evidence of 15 complainants. It is very difficult to compartmentalise that. I think it is extremely difficult. Just touching on Neil's point on the CPS. I think at present they have got a two limbed test when they are considering a prosecution. Firstly, is it in the public interest? Well, it will always be in the public interest to prosecute an alleged paedophile. Secondly, is a conviction likely? The track record would suggest if there are several complainants a conviction will be brought in. The CPS by and large are rubber stamping police operations.
(Ms McDonald) Perhaps if I could just raise one other point and endorse Neil's suggestion that perhaps an independent prosecutor could be overseeing the investigation because what you will find a lot in these cases is that you will have dedicated police teams investigating the abuse in children's homes and you will have a dedicated CPS, case workers and lawyers as well. Often if they are on these types of cases, for years in some cases, they can become very blinkered and the objectivity I think is lost. Perhaps if you have a different prosecutor who is not working on these cases long term to oversee the investigations, and I think the CPS can be much more active in directing the investigation, I do not think that is happening at the moment.
221. Mr Saltrese, you said the Crown Prosecution Service rubber stamp the police case, can I put it to you that the CPS has often been criticised and sharply criticised, not in these particular cases but on other cases, for not pursuing the matter and laying prosecution charges. The CPS gets it in the neck either way.
(Mr Saltrese) When I say the CPS are rubber stamping, it is not a criticism of the CPS.
222. Certainly it seemed like it.
(Mr Saltrese) I do not think it is the CPS's job to investigate what the police are doing. The police are the investigators, the CPS decide whether a prosecution should go ahead. I think the CPS are in an extremely difficult position. What do you do if this lot lands on your desk?
223. In the form of a question to you, if there are these serious allegations of child abuse and such a feeling that those responsible should be brought to justice, and the CPS take no action then, of course, there will be criticism undoubtedly, not least from me.
(Mr Saltrese) I accept that but it is interesting that you used the phrase "serious allegations". It is still an allegation, serious or not.
224. Of course. It must remain an allegation until the case comes before the court.
(Mr Saltrese) Yes.
225. Everybody is innocent until proven guilty, hopefully.
(Mr Saltrese) I think if you look at the history of similar fact evidence it is very interesting. Originally it was thought by lawyers that to use evidence of a defendant committing crime should not be used in the same trial as evidence that he committed another. Now it is based on common sense because it is extremely prejudicial. The evolvement of similar fact evidence is interesting. If you look at some of the earlier cases, there is actually hard evidence that the crime has been produced, for example, in the case of Smith, I think the brides in the bath case, where the defendant had married three women who had died in the bath and the defendant had inherited under the wills of the three deceased persons. There are common sense reasons for having that evidence admitted in one trial. There is a distinction between that and what is happening here. What the police are doing is gathering allegations, the facts of which are disputed. There is no dead body, there is no blown safe, there is no blood on the carpet, we are talking about allegations, that is all they are.
226. I wonder if I can putwith the Chairman's permissionanother aspect of the matter. We heard earlier from the previous witnesses about a firm of solicitors inviting victims, or those who claimed to be victims, to a meeting which was held in the southern part of England, and in effect inviting claims to be made. If there was any substance in what we were told, and quite likely there is, would you not agree that such conduct brings into question that particular firm of solicitors?
(Mr Saltrese) I would absolutely.
227. Did you know about that? You were listening earlier on presumably?
(Mr Saltrese) I was listening earlier on but I do not have any first hand knowledge of that.
228. You have not heard of that allegation against a firm of solicitors previously?
(Mr Saltrese) I had heard, I think it was in relation to Forde Park perhaps, that a firm of solicitors had organised a meeting of former residents.
229. That is what we heard today.
(Mr Saltrese) I do not have any first hand knowledge of it.
230. A point on similar fact, before I go into the rest of my questions. Are you saying here what the police are doing and the law is allowing is a collection of similar allegations to create a fact and then they become almost similar facts?
(Mr Saltrese) The similar allegations are not creating a fact but they remain allegations because there are no undisputed facts, facts that the prosecution and defence do not dispute, for example a dead body. There is no evidence a crime has been committed. What has happened, as Neil said earlier on, is the law on similar fact evidence has been eroded steadily over the past 20 years starting in 1991 with the DPP v P case which did away with the requirement for striking similarity in the evidence. Evidence can be admitted now on mere similarity. Secondly you have an important House of Lords case in 1995, R v H. Now, before I discuss that, there was a formula which said that similar fact evidence should be admitted if the probative value of that evidence outweighed the prejudicial effect. I think that was in Boardman. That was a very important safeguard, in 1995 that was removed. The House of Lords in effect said the trial judge should treat the allegations as being true and they should go to the jury. In effect that has done away with the trial judge's role as the guardian of the admissibility of the evidence, it goes straight to the jury.
(Mr O'May) I think, Mr Singh, you have hit on the point. Is it right that the point that you are making is do the police create the similarity of allegations that allows the similar fact evidence to go in and I think the answer is yes. Once the threshold was lowered, initiating trawling, trawling then created, by its contamination, similar allegations which then reached the threshold which then created the case. You are absolutely right, it is a circular way of dealing with the evidence.
231. As solicitors you mentioned the difficulties of defending such cases, how do you begin to approach your evidence? What strategies can you adopt and what weapons do you have in your armoury, if any?
(Mr Saltrese) It is extremely difficult. I would say that it depends on the number of complainants. I think if there are one or two complainants it is perhaps not necessary to educate the jury on trawling operations and you can meet the complainants head to head. If your client is facing allegations though from 15, or in a case I did last year it started off with 19 complainants, basically the jury has a choice here, somebody is lying. It is either this one guy or 19 of them. You have to explain to the jury why 19 people might be saying something which is totally false about your client. I think the only way you can do that is to explain to the jury the methodology of a trawling operation and hope they accept it. Having said that, I do not think any solicitor should be in that position. I just think it is wrong that any defendant should face complaints from more than one complainant in a single trial.
(Ms McDonald) One of the difficulties we found in the Dave Jones case was getting access to third party material, this is material held by social services departments. Obviously when these children were in care a number of departmentseducation departments, social services departments, etcheld files on them. They could contain anything from social workers' reports, psychiatric reports, school reports, etc. With these types of cases, certainly when you have got a number of complainants, it can be extremely important to obtain access to those documents because material held in that documentation can go to the complainant's credibility. The difficulty we have as defence lawyers, and Neil has touched upon it already, is getting access to that material. As a defence lawyer you must adopt a very dogged approach in trying to obtain that material and start very early because it can take a very long time. Social services departmentsand I have every sympathy for themhave to pay for coming to court and having barristers represent them. They can have truck loads of material which must be brought to court and for a judge to go through before the material has been looked at and can go to the defence. You have to be very organised, particularly if you have a number of complainants against you.
232. Would you like to add to that, Mr O'May?
(Mr O'May) I think that bar terrorism cases these are the most difficult to defend because of the enormous prejudice against the defendant. You do not prove that they are not guilty, you have to prove that they are innocent and you start from that position. To paint the picture of innocence is extremely difficult evidentially because you have very little to work on from the complainant and, as Linzi says, you are constantly prevented from accessing evidence and witnesses and documents which would help. I think that of all the cases that I deal with, these are the ones that my heart sinks at the prospect of an acquittal.
233. Can you go to the judge to stay the prosecution because of an abuse of process? Can you ask the judge to give directions on the effects the delay may have?
(Mr O'May) You can, and it is done. The law on abuse of process is being very heavily restricted, certainly in the last four years, and is becoming even more difficult. The culturewhich has been touched onwhich is that "this was going on an awful lot a lot of years ago" drives these cases.
234. If defending is so difficult, what are the chances at appeal?
(Mr Saltrese) Zero.
235. You are saying basically that if there is conviction here, it is very difficult to appeal?
(Mr Saltrese) It is very difficult because the Court of Appeal is only going to overturn a conviction if they regard it as being unsafe. Either you need new evidence or a substantial misdirection by the judge. Judges do not normally get things wrong and there is going to be no new evidence because these defendants are saying these things did not happen. It is not as if the police have got the wrong guy for the crime, they are saying there was no crime so there will be no new evidence.
236. Could I just intervene there. If the credibility of a witness was destroyed in a subsequent case that would be grounds for appeal.
(Mr Saltrese) Accepted, that would.
237. Or if other witnesses who had not been available at first trial came forward and said the opposite to what previous witnesses had said.
(Mr Saltrese) I agree. You would have to convince the Court of Appeal that there were pretty cogent reasons for that witness not coming to give evidence at the trial in the first instance.
238. If a witness had subsequently made a compensation claim and discussed with a third party the fact that he had been motivated by compensation, that would be grounds for an appeal.
(Mr Saltrese) That may not be enough because in these cases very often the defendant is facing convictions against five or six complainants. If you can obtain evidence that one of those complainants is lying that is not necessarily sufficient to overturn the other convictions.
239. Not zero.
(Mr Saltrese) Sorry, it is not zero, I was being slightly flippant.
(Mr O'May) If the same complainant in a later trial is discredited, would that allow an appeal? I think the answer is probably no because it is very difficult to show that a witness has been so destroyed in one case that nothing he said in the other case of a similar nature perhaps could be relied upon. I would like to see it tested in the Court of Appeal but I cannot imagine getting there. I think the other difficulty is, if you like, the resources and interest of solicitors. It is very difficult to get an appeal going, even through the CCRC, once you have got a conviction with three or four years down the line to the Court of Appeal. It is very difficult not only to fund solicitors but for them to have the motivation about it, and I think that is a real difficulty. To be honest, I do not know if it should get to the Court of Appeal, I think there are ways and means of adjusting the trial process and the prosecution process which should prevent the number of miscarriages of justices that this particular sort of case generates and bring it down to the norm.
Chairman: Let us move on to what we can do for the future. Mrs Dean?