Select Committee on Home Affairs Memoranda


Submitted by Sir David Calvert Smith, QC, Director of Public Prosecutions (CA 218)

Do police methods of "trawling" for evidence involve a disproportionate use of resources and produce unreliable evidence for prosecution?

  The question of resources is an operational police matter and it is not something on which I would like to comment. As I said when giving evidence, the police have a duty to follow all reasonable avenues of investigation and in this type of case it is likely that the inquiry will have to extend beyond the individual complaint.

  So far as the reliability of the evidence produced by "trawling" techniques is concerned, I would repeat the points that I made when giving evidence to the Committee:

  1.  it is essential that the police adopt investigative and interview techniques that avoid the risk of coaching or contamination of evidence.

  2.  there is a strong argument for some form of recording of contact with potential witnesses in order to be able to establish independently what was said between the police officer and the witness.

  In addition I would add that we would encourage the police to contact us at an early stage of an investigation in order that we can provide advice about the legal or evidential implications of issues arising during an investigation. This is confirmed in the recently issued Home Office guidance on complex child abuse investigations, which stresses that it is important that there is continuous advice and interaction between each agency throughout the investigation and any resulting prosecution. As you may be aware, this ties in with the recent moves to involve the CPS in advising the police on general criminal cases pre-charge.

Is the CPS drawing a sensible line about which cases should be prosecuted?

  We do not monitor cases involving child abuse, however, in 1998 the CPS inspectorate conducted a thematic review of cases involving child witnesses. At the conclusion of the Report, the Inspectorate said that overall they felt "able to provide the Director of Public Prosecutions with an assurance that the quality of decision-making in the CPS in child witness cases is good". Of course I appreciate that the majority of cases with which the Committee is concerned deal with witnesses who are adults by the time they make their complaint.

  As I stated when giving evidence to the Committee, figures collated by ACPO reveal that between 1997 and 2000 we rejected 79 per cent of cases of institutional child abuse referred to us by the police. In those cases that we prosecuted, convictions were achieved in 83 per cent of cases.

  The Committee has already been provided with figures for Operation Goldfinch (South Wales) and Operation Care (Merseyside). In both inquiries the figures reveal that the vast majority of cases are referred to the CPS for advice rather than charge, and that there is a rejection rate of between 60 and 65 per cent in relation to advice files. So far as Care is concerned, out of 53 cases concluded, 30 have pleaded guilty or been found guilty after trial. Eleven are awaiting trial and one is pending charge.

  This bears out my assertion before the Committee that prosecutors are applying a fairly severe filter in these types of case in comparison with a general discontinuance rate of 13 per cent. While I cannot provide you with any detail as to the reasons for cases being rejected, this is usually because there is insufficient evidence to give a realistic prospect of conviction.

Should there be a time limit—in terms of number of years since the alleged offence took place—on the prosecution of cases of child abuse?

  Generally in English law, indictable offences are not subject to time limitation as regards the bringing of a prosecution, although other common law and European jurisdictions do have statutes of limitations. There are arguments for and against the respective approaches:

    —  The advantages of statutory time limits to prosecution are that they provide for a degree of finality and prevent the bringing of prosecutions years after the alleged commission of offences when memories have faded and evidence is no longer available. They may act to encourage complainants to come forward sooner rather than later and lessen the danger of an accused being wrongly convicted.

    —  The disadvantage, in general terms, is that those against whom a case could properly be brought become immune from prosecution purely because of the passage of time, despite the fact that there may be strong evidence available. In this sense time limits operate in an arbitrary manner without allowing a prosecution to be viewed on its own merits as regards fairness.

  In evidence before the Committee, I stated that this is not something on which the Crown Prosecution Service has a view; we simply apply the law as it stands. Nevertheless, when considering statutory time limits, account should be taken of why complaints of child sexual abuse often come to light many years after they are alleged to have occurred.

  It seems to be generally accepted that there can be good reasons why those abused do not always report the offences earlier, especially if the abuse took place within the family; many wish to put it behind them; others may feel some sense of loyalty to the person who abused them; some will blame themselves or feel they won't be believed. Furthermore the world was a very different place in the seventies and early eighties; child protection was not the concern that it is today. It is not perhaps very surprising that these complainants did not come forward at the time.

  In any event, assuming for a moment that it is accepted that there are legitimate explanations for the late reporting of abuse, and that abuse did take place, to impose a statutory time limit on the prosecution of such offences would result in numerous abusers escaping justice. One undesirable consequence could be that victims or families of victims would decide to take the law into their own hands when faced with public authorities powerless to act.

  The lack of a statutory time limit does not mean that a prosecution can or should proceed without question. There will be cases where the prosecutor will take the view that the passage of time is such that, having regard to the evidence in the particular case, there would not be a realistic prospect of conviction. Even if the evidence is sufficient, it may not be in the public interest to pursue a prosecution because of the age of the case.

  Even where the prosecutor considers that the case should proceed, the trial court has the power to stay proceedings on the ground that to allow the prosecution to proceed would amount to an abuse of process. One of the grounds for finding an abuse of process is that the defendant cannot receive a fair trial—while the age of the allegation is not in itself sufficient to establish an abuse, the fact that, for example, crucial witnesses may have died or documents have been destroyed may be sufficient for a defendant to persuade a judge that on the balance of probabilities he would not receive a fair trial. Indeed, prosecutors sometimes stop or decline to bring cases because it is clear that the defendant or the proposed defendant cannot have a fair trial.

Is there a risk that the advertisement of prospective awards of compensation in child abuse cases encourages people to come forward with fabricated allegations?

  I cannot really comment on this aspect apart from making some general observations. Firstly, there is no obvious reason why genuine victims of institutional abuse should not be entitled, like any other victim of crime, to claim compensation. I accept there must be a risk that some people may come forward with fabricated allegations in order to obtain compensation. However, one questions whether the genuine victims should have their right to compensation removed because of the potential behaviour of others. There may also be a human rights issue to consider. The current Victim's Charter informs victims of their right to apply for compensation from the CICA and the court.

  So far as the prosecution process is concerned, if police officers were suggesting that potential witnesses could claim compensation as an incentive to make a statement, this would undoubtedly weaken a case and would be something that a prosecutor would consider very seriously when reviewing a case.

  Where prosecutors are aware that a claim for compensation has been made, this fact is disclosed to the defence.

Is there a weakness in the current law on "similar fact" evidence?

  I have expressed my views on similar fact evidence at some length, but it may help if I set out the law as I understand it to be as well as making some observations on how it works in practice.

  This is part of the law of evidence that governs the admissibility of evidence that does not directly implicate the accused in the offence charged, but which suggests, directly or indirectly, that he has committed one or more other offences. Until 1991 it tended to be argued that there had to be a striking similarity for the evidence to be admitted.

  The leading case on the law of similar fact evidence is DPP v P (1991) 2 A.C. 447. The essential feature of evidence to be admitted under the "similar fact" rule is that its probative force in support of the allegation being tried is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime. The similarity need not be striking; the degree of similarity required will vary according to the case and the nature of the other evidence.

  The principle expounded above can reasonably be distilled into the following statement: evidence will be admissible under the similar fact rule if explanation of it on the basis of coincidence would be an "affront to common sense", or would be "against all probabilities". In other words it must do more than raise the suspicion that the accused committed the crime with which he is charged; it must invoke some identifiable common feature or features constituting a significant connection and going beyond mere propensity or coincidence.

  There are three categories of case in which the question of admitting similar fact evidence will probably arise. In the first, it may be clear that a crime has been committed and the only issue for the jury to determine will be whether the defendant did it. In the second category are those cases where the acts are admitted but the accused maintains they were accidental or he was acting under a mistake of fact. The third—and in the context of child abuse, relevant—category is where the accused is identified as the person who did the act but he denies the act and maintains that the witness is lying or mistaken.

  The argument in favour of admitting evidence coming into the third category is that two or more people are unlikely to make up, or mistakenly make, similar allegations against the same person independently of each other. The obvious danger is that if collusion has taken place between the witnesses, the argument based on similar fact loses its force. The current position is that the judge should work on the assumption that the similar fact evidence is true, since the credibility of a witness is a matter for the jury (R v H (1995) 2 A.C. 596).

  The judgment in DPP v P had a significant effect in that it put an end to the commonly held view that the similarity had to be striking for the evidence to be admissible. As a result, prosecutors were more confident about applying for similar fact evidence in the third category of case to be admitted. The area in which this had the greatest impact was child abuse, where it was not uncommon for a number of children to allege that an accused had abused them sexually or physically in some way, especially in the context of a family. The case of R v H gave more support to prosecutors who wanted to introduce similar fact evidence when it held that no particular degree of similarity was required and reversed the authorities that had previously held that where there was a real risk of contamination, similar fact evidence should not be admitted.

  In practical terms, indictments were drawn with counts relating to more than one complainant and judges, applying the principles of DPP v P and R v H, were much less likely to accede to defence applications to sever the indictments.

  There are advantages and disadvantages to the current legal position as regards similar fact evidence in those cases where the accused maintains that the complainant is lying or mistaken. The relative strengths of the arguments rather depend on whether one is defending or prosecuting. However, it is submitted that there is a powerful argument for saying that two or more people independently making the same allegation are unlikely to be lying or mistaken.

  The counter argument is that there are not sufficient safeguards to ensure that there has not been collusion or contamination of some kind. One of the problems inherent in "trawling" for complainants in children's homes is that complainants may become aware of the existence of other allegations before they make a complaint. Others who have given evidence to the Committee have suggested that police officers may—wittingly or unwittingly—contaminate evidence by referring to other complainants' statements when speaking to potential complainants. I cannot comment on whether that is in fact the case, but the possibility of it occurring is clearly something that has caused concern. A further problem, given the age of the allegations, is that complainants may be able to argue that vague evidence is all they can provide due to the passage of time; as a result of R v H, no particular degree of similarity with the evidence of other witnesses is required. It may, therefore, be more likely for a witness who is lying to be able to convince the court that he is telling the truth in this type of case.

  In answer to this, it is still open to the judge to sever the indictment and order separate trials if he considers that the evidence does not come within the definition of similar fact. If it becomes apparent during the trial that collusion or contamination of the evidence has occurred, again the judge can direct the jury on the point or, if necessary, order that a not guilty verdict be entered. Moreover, the defence will have ample opportunity to cross-examine the witnesses during the course of the trial on the question of collusion or contamination as well as addressing the jury to that effect. As I stated when giving evidence to the Committee, I believe that the courts have been rigorous over the years to try and balance those cases where the similarity can only be explained away by coincidence and those where the evidence shows no more than propensity to commit an offence.

  In summary, so far as abuse in children's homes is concerned, any arguments against the introduction of similar fact evidence centre not on the basic legal principle of its admissibility, about which I have no significant concerns, but the risk that the evidence has been contaminated. This is a legitimate concern that could be addressed in the following ways to place both the judge and the jury in a better position to make decisions about contamination or collusion:

  By ensuring that those responsible for investigations keep detailed records of when allegations came to the attention of the authorities and why they were made when they were.

  I indicated to the committee that recorded interviews with complainants would make our lives as prosecutors much easier, but I did not go into any detail as to why that would be the case. I should like to expand on my earlier comments. There has been concern that when police officers interview witnesses in these types of enquiry, they reveal evidence of other witnesses to that witness, thus contaminating the evidence of the later witness. There has also been concern that when the written statement is taken, there is no way of knowing whether or not the witness was led by the officer to state what he/she put in the statement. At present there is no independent means of establishing whether this is the case. Two potential consequences flow from this: firstly, where the witness's evidence has been contaminated, it is difficult for the defence to establish this to be so and, secondly, where the witness's evidence has not been contaminated the accusation can still be made to discredit it.

  While suggestions that the evidence had been contaminated could still be made in relation to contact that had not been recorded (and I fail to see how that could ever be ruled out; even if the police stated that they had recorded every contact, the defence could always suggest otherwise), I believe this type of cross-examination would be less likely to take place if the interview/taking of the statement were to be recorded, (in much the same way that tape-recorded interviews with suspects more or less putting an end to cross-examination based on "verballing"). From the prosecutor's point of view an additional benefit of video (as opposed to audio) recording the interview/taking of the statement would be to provide him/her with an opportunity of assessing the quality of the witness.

  If the witness is vulnerable (or in due course intimidated) according to the criteria of the Youth Justice and Criminal Evidence Act 1999, his or her evidence in chief can be given by way of a video (or DVD) recording so we are already going down the road suggested. However, not all witnesses in cases of alleged institutional abuse will come into either category, so consideration still needs to be given to what form the recording will take.

  It seems to me that there are two options that the Committee might consider: Firstly, the statement would be taken in the normal way, that is to say in written form, but the process of taking the statement would be recorded. Secondly, and in my view preferably, in the long term, the interview with the witness would be visually recorded and the recording would become the statement.

  Some have suggested that all contact between the police and a witness should be recorded. I would have no objection to that course of action in principle, although the practical and legal implications would need to be thought through and, as I indicated earlier, one could never be certain that unrecorded contact had not taken place.

  I must add the inevitable caveat that if the Committee were to recommend recording of meetings/interviews, it would have significant resource implications, both for the police and for the Crown Prosecution Service.

Should there be a third Code test?

  In relation to prosecuting cases of child sexual abuse, prosecutors will, as in all cases, apply the tests laid down in the Code for Crown Prosecutors. Prosecutors have to decide firstly whether or not there is sufficient evidence for a realistic prospect of conviction and, if there is sufficient evidence, go on to consider whether or not it is in the public interest to prosecute.

  It is important to recognise that "realistic prospect of conviction" means that a jury or bench of magistrates, properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged.

  When considering whether or not there is sufficient evidence to provide a realistic prospect of conviction, prosecutors must consider whether the evidence can be used in court and whether the evidence is reliable. This will include whether or not the background of a witness is likely to weaken the prosecution case. For example, does the witness have any motive that may affect his attitude to the case—this would include whether or not he has a financial motive in pursuing the complaint. Are there concerns over the accuracy or credibility of a witness? Is there further evidence that the police should be asked to seek out which may support or detract from the account of the witness?

  So far as the public interest test is concerned, generally speaking the more serious the offence, the more likely it is that a prosecution will be needed in the public interest. The Code states that a prosecution is likely to be needed if inter alia a conviction is likely to result in a significant sentence or the defendant was in a position of authority or trust. While delay between the date of the offence and trial can be a factor against prosecution, this will have less significance if the offence is serious or the offence has only recently come to light.

  During the course of your Inquiry, others have suggested that our review process be made subject to a third test, namely something along the lines of "has a crime occurred?" This seems to me to be superfluous; our concern must be to consider whether or not there is sufficient evidence for a realistic prospect of conviction. The question of whether or not a crime was committed must be an integral part of the intellectual process applied by the prosecutor reviewing the evidence in accordance with the Code test. If there is a reasonable doubt that the offence occurred, ipso facto there must be reasonable doubt that the defendant is guilty.

  Mr Woffinden suggests that the test might be that there should be a "firm belief that a crime had actually occurred". The important words are "firm belief". This seems to me to set the test too high and too subjectively. Our current test, of a realistic prospect of conviction, is set at such a level as to allow prosecutors to weed out weaker cases while acknowledging that the judgment in stronger cases ought to remain the province of the court which is in a position to hear the evidence tested. For the CPS to adopt such a test would tend to usurp the role of the magistrates or the jury.

  There is also a public confidence issue related to setting a very high prosecution threshold. I am sure that there would be a concern on the part of the public that their central role in the trial process had been largely replaced by the State.

  Clearly there have been many cases of institutional abuse in which prosecutors have looked at the evidence and decided that there is insufficient evidence for a realistic prospect of conviction; in many if not most of these cases there must have been some doubt as to whether the offence was committed at all. On the other hand, there have been cases where prosecutors have considered that there was a realistic prospect of conviction and in the majority of those cases the defendants have pleaded or been found guilty.

  If one replaces the words "firm belief" with say "a realistic prospect that a jury would find that a crime had actually occurred" we are back at the current Code test, since no reasonable prosecutor would proceed with a prosecution if he/she did not believe that there was a realistic prospect of a jury so finding.

August 2002


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