MEMORANDUM 74
Submitted by Bob Woffinden (CA 144)
Do police methods of trawling produce unreliable evidence?
When it was introduced just over 10 years ago, the police practice of trawling for possible victims of sex abuse crimes among those who had been in residential care was a completely fresh development within the criminal justice system.
Traditionally, the police know of crimes and search for suspects. In trawling cases, the reverse applies; they know of suspects and search for crimes. Whereas their routine investigative work is necessarily reactive, in trawling cases they are conducting a proactive search for crimes.
This shift in the focus of an investigation was so fundamental that it would have been desirable if the full implications had been thought through before the practice of trawling was adopted wholesale by police forces throughout England and Wales.
The criminal justice system was already known to be susceptible to failure, and to lead to the creation of miscarriages of justice. However, this problem has been addressed only through the implementation of shutting-the-stable-door legislation—specifically, through the creation of the Criminal Cases Review Commission. Nothing has been done to address the underlying issue, and prevent miscarriages of justice before they can happen.
We now know that in past decades one cause of miscarriages of justice was false confessions by suspects in police interviews. This specific problem was recognised, and the 1984 Police and Criminal Evidence Act was brought in to remedy it.
However, what happened in these "false confession" cases? There are only two possibilities. Either (a) the police knew they had extracted false confessions under emotional or psychological duress and had imprisoned innocent men; or (b) their interviewing techniques had been so "successful" that they had deceived even the interviewing officers themselves.
Assuming that it was (b), why has this propensity of the system to produce seriously misleading impressions—so that those conducting the investigations are themselves misled—not been properly considered? It should have been; because it is probable that the same kind of persuasive interviewing techniques that once led to false confessions, today produces false allegations of abuse.
Moreover, what was the incentive for people to make false confessions? Obviously, there wasn't one (other than the desire to put an end to the questioning).
Conversely, there may be many incentives to make false allegations. Among these are the emotional (people trying to make sense of, and shirk personal responsibility for, messed-up lives) and the pecuniary (the prospect of substantial compensation from the Criminal Injuries Compensation Authority and, possibly, other sources like the media).
Also, prospective complainants may be told by interviewers that their evidence could help to put behind bars a very dangerous man. From this perspective, complainants could imagine that their false evidence was being given in an altruistic cause.
But while any kind of trawling operation in criminal cases is intrinsically dangerous, two factors make it especially dangerous in these circumstances. The first is the pool of prospective complainants; almost all of those who had been in care homes would have had emotionally disturbed upbringings.
Secondly, theories about how to replace the parental affection denied to children in care have changed over the decades. In the 1970s and 1980s, some of those in charge of children's homes felt it incumbent on them to assume the parental role as completely as possible—for example, by tucking the children up in bed and kissing them goodnight. In the changed circumstances of recent years, such conduct is now construed differently, both by police teams and former residents.
Where careworkers had developed close emotional ties with the residents, then the latter would naturally feel betrayed upon being told, years later, that such quasi-parental concern had had an ulterior motive. It is not even necessary for the former residents to be told this; they would naturally assume it from the mere fact that an investigation was under way. A perceived sense of betrayal is another explanation for the emergence of false allegations.
Publicity about an ongoing investigation will be deeply damaging for the suspect (irrespective of whether charges ultimately ensue). Certainly, prospective complainants will be alerted to the possibility of financial reward for allegations. The current legal situation makes it possible for false allegations to be brought forward by former residents of care homes with complete impunity.
Some suggested remedies
(a) [i] The Crown Prosecution Service currently uses two criteria to consider whether cases should go forward: whether there is a greater than 50 per cent chance of a conviction; and whether a prosecution is in the public interest. There should be a third criterion: that there is firm evidence that a crime has been committed.
[ii] The role of the CPS should be changed, as should its name (to something like, the Crown Courts Service). It should be committed, in an adversarial system, to holding the ring between the adversaries. It should come under the Lord Chancellor's department.
(b) At present, once an allegation has been made, the whole criminal justice system is geared to supporting the complainant. He or she becomes the "victim" and the allegation a "disclosure".
Clearly, such terminology pre-judges the issue of whether or not a sexual assault has taken place. Even some government legislation mistakenly refers to "victim" when it means "complainant".
Words like "victim" and "disclosure" (meaning an allegation of sexual abuse) should not be used at any stage of the process prior to a conviction. (Victim support units should be re-named witness support units, etc.)
(c) A time-limit should be placed on the bringing of complaints of sexual abuse. I would suggest three years from the time of the alleged offence, or the age of 24 if the complainant was a minor at the time of the alleged offence.
(d) There should be a time-limit on the promise of anonymity to complainants in sexual abuse cases, of three years from the time the complaint is first made.
(e) The sub judice rules should be amended, to prohibit the reporting of ongoing investigations into abuse allegations, and the naming of those being targeted in such investigations.
February 2002
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