The work of the Criminal Cases Review Commission - Justice Committee Contents


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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