Memorandum submitted by F.A.C.T. (Falsely
Accused Carers and Teachers)
Review of the report of work of the Criminal
Cases Review Commission in relation to cases of alleged historical
child abuse following the Home Affairs Select Committee's Report
The Conduct of Investigations Into Past Cases of Abuse in Children's
Homes [HC 836-1 2002].
1. We understand that the Justice Select
Committee have asked for the Office for Criminal Justice Reform
(OCJR) for an update on developments since its initial response
to the Home Affairs Committee report (Home Affairs Committee report:
conduct of investigations into past cases of abuse in children's
homes, 31 October 2002, HC 836, 2001-02 Government reply: April
2003, Cm 5799).
2. F.A.C.T. provided evidence to the Home
Affairs Select Committee and was very disappointed with the Government's
response and failure to accept that a "a new genre of miscarriages
of justice" has arisen from what the HASC called "the
over-enthusiastic pursuit" of abuse allegations in children's
homes.
3. We also understand that the HASC may,
unwittingly, have been misled by the evidence of the Association
of Chief Police Officers which implied that there was a nationally
agreed investigative model for dealing with such cases.
4. Whilst it is fair to say that there has
been a reduction in the number of historical investigations into
care home cases care workers are still vulnerable to a cultural
perception that the allegations made against them must be true.
This presumption of guilt is very evident in the investigative
stages and some times (but not always) permeates right through
to the jury room where all too often, it seems, prejudice and
emotion rather than the evidence, holds sway.
5. The position with teachers is perhaps
a bit more encouraging. The general public at least beginning
to understand that teachers are especially vulnerable to false
allegations. Teachers also have also received considerably Parliamentary
support, including from Mr Barry Sheerman MP (Chairman of the
Children, Schools and Families Select Committee), who recently
highlighted the impact false allegations have on recruitment,
morale and the whole school environment.
6. In general it is only when an appellant's
conviction is quashed by the Court of Appeal, often after years
of torment, that society becomes aware of miscarriages of justice.
7. Our organisation seeks justice for almost
one hundred teachers and carers who have been imprisoned, or are
still in prison, for sexual crimes against children, who maintain
they are factually innocent of the crimes for which they have
been convicted. In most cases the accusations relate to events
said to have taken place decades previously when the complainant
resided in residential settings.
8. The House of Commons Home Affairs Committee
(HASC) examined the conduct of investigations into past cases
of abuse in children's home in its 2001-02 session and produced
a report (HC 836) in which it states "We share the general
view that a significant number of miscarriages of justice have
occurred" (page 40). In its conclusion the committee recommends
that "the Criminal Cases Review Commission (CCRC) and the
Appeal Court take a robust approach to the review of suspected
wrongful convictions" (page 41).
9. The Criminal Cases Review Commission
(CCRC) has an important role to play in ensuring that unsafe convictions
are referred to the Court of Appeal in order to redress these
injustices. F.A.C.T. has supported a number of cases which have
been referred to the CCRC. Although some cases have been successfully
referred to the Appeal Court, there remains a large number of
cases involving convicted teachers and carers whose cases do not
progress this far.
10. Cases are only recommended for referral
to the Appeal Court if it can be shown, either that there is new
evidence, or that there was a substantial misdirection by the
judge at the original trial. The HASC concluded that this test
is too narrow and they recommended bringing it in line with that
of the Scottish Criminal Cases Review Commission, which can refer
a case if it believes that a miscarriage of justice may have occurred.
In Ireland, the USA and other jurisdictions, the appeal process
takes the form of a review of all the evidence that was presented
at the original trial.
11. The need for fresh evidence is paradoxical
in many of the cases supported by F.A.C.T, since the defendants
claim the alleged events did not take place at all.
12. For many wrongly accused people advances
in science, particularly in relation to DNA evidence, offer some
hope that justice will prevail. DNA evidence is not likely to
be much help to carers and teachers when the allegation made against
them amounts to one person's word against another, and occurred
so far back in time that the accused can have no real hope of
being able to realistically defend themselves against an allegation
where, typically, there is no evidence as such, let alone corroboration.
13. We feel very strongly that one of the
measures of a civilised society is how it defines justice and
how it responds to miscarriages of justice. In recent years justice
has come to mean vengeance rather than "moral rightness".
It has negative connotations.
14. The increasing number of high profile
cases where justice has miscarried even though prior applications
have been made to the Appeal Court, serves as a clear reminder
of the need for a strong CCRC.
15. We acknowledge the importance of the
work of the CCRC and recognise that there are legal and financial
constraints which prevent the Commission from delivering the service
it would wish to see in place.
16. We firmly believe that consideration
should be given to widening the scope of the CCRC and revisiting
some of the justice issues which the HASC commented upon in its
report in 2002.
SCOPE
17. The Commission can only operate within
its own legal parameters. At present it can only review and investigate
possible miscarriages of justice and refer cases to an Appeal
Court where there is a real possibility that the conviction, finding,
verdict, or sentence will not be upheld. This is in contrast to
the test applied in the Scottish Courts (not an issue for this
Committee) which is to review and investigate cases where it is
alleged that a miscarriage of justice may have occurred in relation
to conviction, sentence or both. It seems paradoxical that there
should be two quite different standards, especially as both jurisdictions
are required to operate within a single European Human Rights
framework.
18. We acknowledge the CCRC has made great
strides in reducing waiting times before cases can be allocated.
However any delay has a disproportionate effect upon prisoners
of advancing years. Sadly, some of our members have died in prison
or before their cases have been reviewed. Whilst the Commission
rightly gives priority to applications from serving prisoners
they should, in our view, fast track cases from prisoners who
are seventy years or older, or otherwise have limited life expectancy.
19. We also strongly believe that, when
necessary, the CCRC should be given scope to comment generally
on issues which potentially give rise to miscarriages of justice.
OUTSTANDING JUSTICE
ISSUES FROM
THE HASC REPORT
2002
20. The HASC rightly identified that the
factors leading to a miscarriage of justice (in so far as they
affect those accused of historical abuse) start accumulating from
the very first day of the police investigations, and continue
through the prosecution, disclosure and trial process. It is essential
that the CCRC examine the integrity of the process at every stage.
21. We also think the CCRC needs to be more
proactive in assessing and commenting upon the risks associated
with evidence gathering and the way in which multiple complaints
are garnered in cases of alleged historical abuse. (In the HASC
report serious criticisms were made of the intelligence gathering
by the police and by compensation solicitors).
22. We urge the CCRC to take a more robust
approach in cases where there has been an identified failure to
disclose prosecution evidence to the defence.
23. We urge the CCRC to take a more robust
approach in recognising that justice is more likely to miscarry
in those cases where a person is accused of historical abuse on
"similar fact" evidence which has accrued as a result
of:
(a) investigative malpractice; or
(b) the complainant(s) having been given the
prospect of future compensation.
24. Particular difficulties are faced by
the accused in defending events said to have occurred decades
previously. We draw attention to recent case law (R v Anver
Sheikh [EWCA] Crim 2625 2006) where the original convictions
were deemed unsafe because documents which could potentially have
established innocence were missing. This is a welcome development.
However we are surprised that this appears not to have caused
the CCRC to review other cases where similar conditions apply.
OTHER MATTERS
25. We understand that the CCRC agreed to
conduct research into the convictions of those accused of historical
child abuse, as they are especially vulnerable to a miscarriage
of justice. We do not know if this research has been undertaken.
If not we hope that appropriate funding will be forthcoming, even
in the current financial climate.
26. F.A.C.T. accepts that some teachers
and care workers have abused children and have rightfully been
punished for this. However, we also believe in the principle of
"justice for all" and are concerned that the fact that
an allegation has been made, is now routinely recorded as a "criminal"
record, and therefore appears on any enhanced certificate of disclosure
issued to current or prospective employers by the Criminal Records
Bureau—even when the accused has been cleared of wrong doing.
We very much hope that the Justice Select Committee will find
time in the future to examine the injustice which arises from
this practice.
27. We also firmly believe there is now
a very strong case that carers, teachers, (and others) should
be afforded anonymity until the point of conviction.
28. We recognise that the CCRC has many
claims on its time and has to respond to emerging needs, including
increasing pressure to re-examine murder cases where DNA evidence
is crucial (as in the recent Hodgson case). Whilst we do
not wish to see justice denied or delayed to any person, we very
much hope this will not displace care workers' appeals to the
back of the queue.
Claire Reeves
March 2009
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