MEMORANDUM 34
Submitted by Lancashire County Council Social Services Directorate (CA 157)
Residential establishments in the Lancashire area have featured in two major investigations in recent years. Operation Care is led by Merseyside Police Authority and began over five years ago.
Operation Nevada was instigated by Lancashire Police in July 2000. Lancashire Social Services has provided social work members of the investigation teams in both instances. The latter investigation followed allegations during a separate investigation. The framework for Operation Nevada is to:
— seek, investigate and pursue allegations of sexual abuse in children's homes, schools and care establishments against people who still pose significant risk to children;
— investigate and pursue allegations of sexual abuse in children's homes, schools and care establishments; and
— refer, in line with current child protection procedures allegations of physical abuse/cruelty where the suspect is still employed and has access to children.
Prior to the launch of Operation Nevada a strategic steering group was established comprising Police, Social Services, Education, the voluntary sector and the Crown Prosecution Services. The terms of reference for this group are as follows:
— to provide quality assurance in the investigative process, offering advice and guidance where necessary;
— to assist in formulation of future investigative strategies;
— to ensure that the investigation is conducted within the agreed investigative parameters; and
— to monitor the effectiveness of joint working.
Responses to your specific questions take account of views of several steering group members.
1. Do Police methods of trawling for evidence involve a disproportionate use of resources and produce unreliable evidence for prosecutions?
The Police method of trawling for evidence by sending letters out to groups of former residents has uncovered allegations. It also probably saves Police time.
Those who respond to trawls require skilful interviewing. Some allegations are so serious that supporting evidence is required. Documentation can be particularly difficult for allegation cases pre-1980s.
Collusion is always a possibility with letter trawls, though the older the allegations the less likely this seems to be.
Generally it seems trawling is not worthwhile for allegations going back over 25 years.
Lancashire's experience of Operation Care indicates Police did not pursue proceedings against many people though there have been civil proceedings for compensation. The reasons for non-prosecution are not always clear.
2. Is the Crown Prosecution Service drawing a sensible line about which cases should be prosecuted?
In Operation Nevada the Crown Prosecution Service and the Police made policy decisions at the outset about what would be investigated. Broadly, this was as follows.
All sexual abuse should be thoroughly investigated. The Crown Prosecution Service and the Police would concentrate on the abuse that occurred over the last 25 to 30 years. Priority must be given where the alleged abuser is employed within the child care system or has access to children. Evidence or indications of serial abuse by paedophile rings would be a focus.
No investigation of physical abuse unless it was serious and injurious to the long-term health of the victim. Context ie the norm in residential care at the relevant time would be considered.
3. Should there be a time limit in terms of the number of year since the alleged offence took place on prosecutions of cases of child abuse?
Young people looked after by a Local Authority should expect their basic civil rights to be protected. Sexual abuse can have far-reaching effects and circumstances should be considered in each instance.
Some alleged perpetrators may have continued in their abuse and be a risk now.
Guidelines on time limits may be helpful.
4. Is there a risk that the advertisement of prospective awards of compensation in child abuse cases encourages people to come forward with fabricated allegations?
This can be a risk. A recent advertisement indicating a deadline for issue of proceedings for claims produced a "flurry" of new allegations.
For a victim, disclosure of abuse can be uncomfortable and embarrassing. It would not be taken lightly by most people and the process itself would probably discourage the majority of fabricated allegations.
5. Is there a weakness in the current law on similar fact evidence?
The basic rule is that evidence of the character or of the previous misconduct of the defendant adduced to show the defendant's bad disposition, is inadmissible unless it is so highly probative of the issues in the case as to outweigh the prejudice it caused. The rule is thought to be necessary because, if a jury were to hear evidence of, for example, the defendant's criminal record, this would outweigh any other evidence that they were presented with.
The rule has proved difficult to apply. It is necessary for the Courts to balance "probative force" of the evidence with prejudicial effect. One problem, which was put forward in DPP v Boardman (H;—1975), is that the rule depends on questions of degree and weight but that these must be decided by the Judge and not by the jury.
No real guidelines have been laid down as to the application of the rule and it would be hard to find common criterion. To a large extent, the balancing seems to fall to the Judge's discretion. The Judge should decide the matter's admissibility at the beginning of the trial, but developments may mean that he/she has to revise his/her opinion and either allow the evidence in later or order the jury to disregard evidence previously admitted. In the most serious cases, there may be a need to discharge the jury and order a retrial.
The Law Commission has examined this issue, in the context of evidence of previous convictions. The Commission recommended that such evidence should be admitted only if it is relevant to a specific issue and the probative value outweighs the prejudicial effect and any other factors militating against admission. This would include such matters as being a distraction of the jury or waste of time. The report makes it clear that this would still be a balancing exercise. However, it was felt that at present Judges have too much discretion. It, therefore, recommended that guidelines be laid down for Judges to take into account such as the kind of events the evidence is about, how many events there are, when these events took place, and the similarities and dissimilarities between the events. These recommendations have not yet been implemented.
CONCLUSION
In Lancashire, we have learned a great deal from our involvement with Operation Nevada and to a lesser extent, with Operation Care. The issues are very sensitive and generally the victims are vulnerable adults. It is, therefore, important that when the care system has not protected these individuals as children they have the right to seek justice and compensation. If this is to be achieved, it is essential that all agencies work together to protect the interests of the victim and the alleged perpetrator.
February 2002
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