Submitted by the British False Memory Society (BFMS) (CA 98)
This submission is made by Margaret Jervis, Legal Affairs Adviser, of the British False Memory Society (BFMS). The BFMS is a registered charity with a scientific advisory board. Founded in 1993 at the height of therapeutically induced false "recovered memory" claims, the BFMS aims to promote accurate differentiation between true and false allegations of abuse.
Margaret Jervis is a former journalist with 15 years of specialist research in the field of contested allegations of sexual abuse including retrospective care home cases.
Should there be a time limitin terms of years since the alleged offence took placeon prosecution of child abuse cases?
There is no time limit for the prosecution of reports of sexual crimes in English law. This is the case whether or not the evidence is capable of corroboration. Contrary to popular belief, corroboration of adult sworn oral testimony in sexual crimes has never been a requirement of English law. Rather a mandatory warning regarding the absence of corroboration existed in common law until its statutory abolition in the Criminal Justice and Public Order Act 1994.
The corroboration warning served two major functions:
(1) it reminded juries that people do make false allegations of sexual crimes and that it is dangerous to convict unless corroboration is present
(2) it concentrated the trial process, including the prosecution gate-keeping, on the quality and testability of the prosecution evidence.
It is submitted that through separate but related judicial reasoning, these important functions have been eroded in ways that are prejudicial to the defendant. This is in contravention of Article 6(1) of the European Convention on Human Rights and has resulted in, at the very least, hundreds of questionable prosecutions and convictions. Some of these are the result of institutional police "trawls" while others relied on unproven psychological processes. However the current situation with regard to care home cases is a subset of a much wider question of justice.
In the late 1980s, whilst the corroboration warning was still mandatory, adults suddenly reporting a history of childhood sexual abuse proliferated. These long delayed accusations began to be prosecuted. These developments did not stand in isolation. Rather they followed the rise in popularity of psychological theories linking adult problems with "post traumatic stress disorder" hypothetically caused by sexual abuse. It was sometimes alleged that the memory of the abuse was likely to be hidden to the consciousness of the accuser until recalled with the help of counselling or therapy. In the pursuit of justice, welfare and criminal justice professionals began to highlight the availability of criminal injuries compensation awards for reported sexual abuse offences.
The first judicial ruling on "delayed" prosecutions of childhood abuse was in 1990 in LPB.1 It concerned an abuse of process application to stay an indictment of alleged childhood sexual offences committed by a step-father against a now adult woman. This key judgment recognised that there were two forms of delay in criminal cases:
Type 1between the investigation and trial of an offence
Type 2between the commission of an offence and its report by the complainant.
The then Mr Justice Judge discriminated in favour of the prosecution of late reports of offences in the case of sexual crimes against children regardless of whether there was evidence capable of corroborating the offences. The judge stated that delay in reporting child sexual offences was "understandable and justifiable" because "delay (is) directly connected with and may be a consequence of the offences." He could therefore conceive of no instance where a delay, however long, in the reporting of child sexual offences should result in a stay of the proceedings2.
Subsequent rulings in the higher courts3 overruled this judgment and confirmed that the basis for a stay on the grounds of delay was the ability of the defendant to receive a fair trial. The defendant had to prove on the balance of probabilities that it was impossible for him to receive a fair trial. However by conflating Type one and two cases, the law has overlooked the fact that in the bulk of retrospective prosecutions for sexual abuse, it is first necessary to establish that an offence has been committed. It is for the prosecution to prove that there has, in fact, been a delay. If the allegations have been fabricated in the recent past, no delay has occurred.
Thus the current position in relation to retrospective sexual abuse trials includes two hidden assumptions prejudicial to the defence. Firstly the defendant may be seriously prejudiced by the presumption of delay. Secondly, the legacy of LPB has meant that unproven psychological theories about the "special" nature of sexual abuse memory and disclosure have been automatically incorporated into the trial process.
These developments, combined with the House of Lords rulings on similar fact evidence and contamination4, and the abolition of the mandatory corroboration warning, contributed to a mushrooming of retrospective prosecutions for alleged abuse. As more people were convicted, the evidential test became weighted towards the prosecution regardless of the quality of the evidence.
If it is correct that the rules of evidence in relation to historic cases are unfair, then some means must be formulated which balances the public interest in prosecuting sexual abuse cases with the protection of the defendant from oppression and unfairness.
This raises a number of questions:
(1) Are the current rules of evidence in relation to Type two cases compatible with Article 6(1) of the ECHR?
(2) Should the burden of proof in abuse of process arguments in Type two cases be reversed to rest on the prosecution to prove beyond reasonable doubt that a fair trial is possible?
(3) Should there be a statutory limitation period for the prosecution of uncorroborated sexual offences?
(4) Should there be a statutory limitation period subject to discretionary waiver with or without a long-stop period?
(5) Should the overriding principle in all cases be whether the evidence can be objectively tested with the re-instatement of a mandatory corroboration warning (bearing in mind that the current similar fact rules would need amending).
Statutory limitation periods in civil law are currently under review. The Law Commission has recommended the ending of the current six year limit between the commission of the offences, or after the age of majority, in trespass to the person cases, to a uniform three year limit subject to the discretionary waiver as currently exists in personal injury cases.5
A similar reform in criminal law might appear to be attractive. However, personal injury law cannot be easily translated into criminal law. For, as has been argued in leading cases6, while action in personal injury may rest on delayed effects or the recognition of the connection between cause and effect, a similar proposition has no place in criminal law which rests on the fact of the crime.
However, where there is a burden of proof on the prosecution to justify a historic report of uncorroborated abuse, the two presumptions implicit under current rules would be made explicit and the evidence, and its production, would be open to critical and scientific scrutiny.
2. He limited his comments to domestic cases but the principle has subsequently been applied to any adult in authority.
3. R v Telford Justices ex parte Badhan  2 QB 78, 93 Cr.App.R.171.
AG Ref. No 1 of 1990QB 630, 95 Cr.App..R.296.
R v JAK  Crim.L.R.30
4. DPP v P  2 AC 447.
R v H  1 WLR 809
5. Limitation of Actions (Law Com 270) London: The Stationery Office.
6. Stubbings v Webb  2WLR 120.