Supplementary memorandum submitted by
the Ministry of Justice
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
PROGRESS/UPDATE ON RECOMMENDATIONS RELATING
TO CURRENT MOJ RESPONSIBILITIES
We believe there is a strong argument, in cases
of this kind, for introducing a general requirement to record
police interviews of complainants and other significant witnesses
on video or audio tape. Where a video-recording is impracticable,
we recommend that the interview be recorded on audio tape, as
a mandatory requirement (paragraph 45).
We recommend, that the Home Office issues a
code of practice for the audio and visual recording of police
interviews with complainants and other significant witnesses in
cases of historical child abuse (paragraph 47).
The Government was not persuaded outright but
undertook to discuss the issues raised with ACPO.
Q What were the outcomes of promised discussions
The Government recognises the importance of
ensuring that investigations into historic child sex abuse cases
are conducted in a transparent manner and is glad to report that
the recording of police interviews with significant witnesses
in child abuse cases is now recommended best police practice.
Under Section 4.5 of the 2009 Guidance on Investigating
Complex Child Abuse the Senior Investigating Officer is advised
to ensure that significant witnesses are spoken to on video or
tape and that the statement taking process is recorded. The interviewing
officer, based on this initial interview should prepare a written
statement. This officer will go through it with the witness (again
on video or tape) who will be invited to make any alterations
before signing it. The statement will be used in courtthe
tape/video record ensures the integrity of the statement taking
process so refuting any suggestions of coaching or prompting of
the witness. Treating all significant witnesses in the enquiry
in this way may prevent any suggestions that the investigating
officer is coaching a witness. All subsequent contact with the
witness should also be recorded in a dedicated witness liaison
In addition, current police practice is to audio
or video record statements made by significant witnesses in indictable
only offences. Guidance on the recording of witness interviews
with significant witnesses in general is contained in the second
edition of the Achieving Best Evidence in Criminal Proceedings
(ABE) guidance issued by the Office for Criminal Justice Reform
More generally, the Government recognises the
value of recording witness statements and has legislated to provide
for such statements to be admitted as evidence in chief in certain
Section 27 of the Youth Justice and Criminal
Evidence Act ("the Act") 1999, enables vulnerable and
intimidated witnesses to have video-recorded statements played
in court as their evidence-in-chief, subject to the approval of
the court. Considerable resources are involved in providing verbatim
transcripts of the video recording which the courts require for
contested trials. The practice of recording witness statements
also has substantial resource implications for the police including
the costs of equipment and training. Priority is therefore being
given to the video recording of all child witnesses and vulnerable
adults and also complainants in sex offence cases in the Crown
Court. Complainants in sexual offences are automatically eligible
for special measures under the 1999 Act, including video recorded
statements, unless they choose to opt out. Provisions in the Coroners
and Justice Bill, currently before Parliament, will make video
recorded statements by sex offence complainants automatically
admissible as evidence unless the court determines that the use
of the video will not maximise the quality of the complainant's
Section 137 of the Criminal Justice Act 2003
provides that in certain specified circumstances video recorded
statements of significant witnesses in indictable only and either
way criminal offence cases may be played in court as their evidence-in-chief.
This provision has not yet been implemented because we are giving
priority to the video recording of statements made by vulnerable
and intimidated witnesses.
We note that failure to disclose evidence inconvenient
to the prosecution case was a factor in manyif not mostproven
miscarriages of justice and we express the hope that the recommendations
made by these various studies are acted upon without delay. We
look forward to hearing from the Home Office on this point (paragraph
Q1 What steps were taken in the event and
what evaluation of changes / reforms has been undertaken, with
The Government continues to recognise the importance
of effective prosecution disclosure of unused material to the
defence. As indicated in the Government response to the Committee's
report, amendments to the disclosure scheme were introduced by
what became the Criminal Justice Act 2003, which received Royal
Assent on 20 November 2003. The Act introduced a number of changes,
including a new single prosecution disclosure test that requires
the prosecution to disclose to the defence unused material that
might reasonably be considered capable of undermining the case
for the prosecution against the accused or of assisting the case
for the defence. The disclosure provisions were implemented on
4 April 2005 and apply to investigations begun on or after that
The implementation process involved a number
of initiatives including:
the issue of a new code of practice under
the Criminal Procedure and Investigations Act 1996 on the recording,
retaining and revelation to the prosecutor of relevant material
obtained in a criminal investigation;
a new edition of the Attorney General's
guidelines on disclosure, and
a new Disclosure Manual replacing the
former ACPO-CPS Joint Operational Instructions on the Disclosure
of Unused Material (JOPI).
National CPS training on the revised disclosure
requirements began in April 2003. Training on disclosure is available
on an ongoing basis.
An important development in disclosure practice
in recent years has been the Attorney General's initiative to
require the prosecutors superintended by her to undertake strict
compliance with the disclosure legislation. This approach is based
on the prosecutor considering relevant unused material and applying
the statutory disclosure tests rigorously, which has not always
been the case. The approach requires a more hands-on approach
by the prosecutor to unused material, to ensure that the police
have revealed all relevant material and that cases where this
appears not to be the case are challenged.
Also important is the publication of the judiciary's
"Disclosure: A Protocol for the Control and Management of
Unused Material in the Crown Court", issued in February 2006.
The Government greatly welcomed the protocol. The document underlines
the judiciary's commitment to active judicial management of both
prosecution and defence disclosure to ensure disclosure is used
properly, and to prevent justice being obstructed.
A further item that should be mentioned is the
ACPO-CPS "Guidance Booklet for Experts" ("Disclosure:
Experts' Evidence and Unused Material") issued in March 2006
and now part of the Disclosure Manual. The Guidance was developed
in response to concerns that experts, as third parties to the
disclosure process, were not subject to the same duty of full
revelation to the prosecutor as the police.
The operation of prosecution disclosure in practice
has been evaluated recently in detail in the second HMCPSI thematic
review of the duties of disclosure of unused material undertaken
by the Crown Prosecution Service, issued in May 2008. The Committee
is already aware of the first HMCPSI disclosure thematic, issued
in 2000. The second report stressed that since the 2000 report,
inspectors had noted incremental improvements in the prosecution's
handling of disclosure. Nevertheless, there remained a variety
of criticisms directed both at the structure of the regime and
how disclosure was undertaken by the CPS in a number of cases.
The latest report included a number of detailed recommendations
which are being actioned.
We welcome the proposal for a national protocol
for the disclosure of third party material and hope to see its
speedy delivery. In the longer term, we support Lord Justice Auld's
recommendation for a new statutory scheme for third party disclosure,
"to operate alongside and more consistently with the general
provisions for disclosure of unused material". We again look
forward to hearing what plans there are to implement Lord Justice
Auld's recommendations on disclosure (paragraph 74).
Q2 Was a draft model protocol produced and
what action has since been taken on LJ Auld's recommendations
We can confirm that the CPS published the model
protocol on the exchange of information in the investigation and
prosecution in child abuse cases in October 2003.
Sir Robin Auld's "Review of the Criminal
Courts of England and Wales" recommended a consideration
of a new statutory scheme for third party disclosure and an interdepartmental
working group was established in late 2005 to take forward this
recommendation. The objective of the review was to devise ways
of improving the efficiency and effectiveness of criminal investigations,
prosecutions, and investigations by the Criminal Cases Review
Commission (CCRC) whilst ensuring that this was balanced with
the interests of the third party and the subject of the data.
A final report was agreed in late 2007 and the working group's
findings are under consideration with a view to a possible public
Whilst we accept that the criminal justice system
needs to be more sensitive to the needs of victims and witnesses,
we are concerned that the proposed removal of safeguards for the
defendant, set out in Justice for All, may further prejudice
the defendant in historical child abuse trials. We are particularly
concerned about the proposed relaxation of the rules of evidence,
which may allow for greater admission of "similar fact"
evidence. In our view, given the sensitive and difficult nature
of investigating allegations of historical child abuse, there
is a strong case for establishing special or additional safeguards
for the exclusion of prejudicial evidence and/or severance of
multiple abuse charges (paragraph 83).
We, recommend that the law of similar fact evidence
is reformed to require a "striking similarity" in historical
child abuse cases. We suggest that the law of severance is also
reformed, to introduce a presumption in favour of severance in
cases where the similar allegations are inadmissible on a similar
fact basis (paragraph 97).
Q3 The Government rejected these recommendations.
Has there since been any change in policy in this area?
As the Government explained in its response
in April 2003 (Cm 5799), our approach is to enable juries and
magistrates to hear the widest range of relevant evidence, but
combined with the necessary safeguards to ensure that trials are
fair. At the time of the Government response to the Committee's
report legislation was before Parliament to reform the law on
the admissibility of bad character evidence.
Part 11 of the 2003 Criminal Justice Act came
into force in late 2004, providing a wholly statutory framework
for the consideration of bad character evidence and replacing
the previous mixture of statutory and common law provisions. The
legislation makes it easier to admit evidence of a defendant's
bad character, while at the same time containing appropriate safeguards
to ensure that a defendant's right to a fair trial is upheld.
For example, bad character evidence is not automatically admissible
and can only be admitted if it meets one of the following criteria:
It is relevant to an important matter
It is important explanatory evidence.
It has substantial probative value on
an important matter at issue in the case.
Its admission is agreed between prosecution
Its admission occurs when the defendant
has made an attack on another's character.
Its admission corrects a false impression
given by the defendant.
Other reasons such as in the interests
Furthermore, under Section 101 of the 2003 Act,
the court also has an over-arching obligation to exclude evidence
that would have such an adverse affect on the fairness of proceedings
that it should be excluded.
The Ministry of Justice commissioned research
on the effect of the changes to the law on bad character that
were introduced by the 2003 Act. The research report was published
on 9 March 2009 and is available on www.justice.gov.uk/publications/bad-character-research.
The research tracked bad character applications received in six
court centres over eight months in 2006, and key practitioners
were also interviewed. Overall the study found that the new law
has had a beneficial impact on criminal trials without fundamentally
changing their nature.
The Government has no present plans to amend
the law on bad character evidence.
We suggest that the statutory reporting restrictions,
which preserve the anonymity of victims of sexual offences, are
extended to persons accused of historical child abuse. We believe
that the restrictions should operate to protect the accused until
the date of conviction, with provision to lift the restrictions
by court order. Although there is a case for extending this recommendation
to all sexual offences, for which the victim is granted anonymity,
this goes beyond our remit for this inquiry (paragraph 99).
Q4 What representations have been received
on this matter since publication of the Government's reply, and
whether there has been any change in policy?
The Unit within the Office for Criminal Justice
Reform that has responsibility for this policy subject has records
which show that since 2003 they received a total of 81 letters
where the sole subject of the correspondence was defendant anonymity
in sex offence cases. These comprised 44 letters from members
of Parliament and 37 from members of the public. Unfortunately,
it is not possible to distinguish which of these letters referred
to cases of historic child abuse or to identify those letters
where this subject was raised in addition other matters. It is
also not possible to identify correspondence relating to this
subject that was allocated to other parts of the Department.
We have also identified three Parliamentary
Questions relating to defendant anonymity in historic child sexual
abuse cases and seven questions about defendant anonymity in sexual
abuse cases in general.
There has been no change of Government policy
on defendant anonymity. The Government supports the conduct of
investigations into allegations of sex offences without publicity
before charge but considers that this is best achieved through
guidance. Guidance has been issued by the Association of Chief
Police Officers and the Press Complaints Commission (PCC) and
its impact was reviewed in 2006 by the Interdepartmental Ministerial
Group on Sexual Offending. It was found that neither the police
nor the PCC had received any complaints about breaches of those
pieces of guidance.
We are concerned that neither the internal police
guidance, nor the Government guidance, on historical child abuse
investigations, give any specific direction on the proper relationship
between the police and personal injury solicitors. We recommend
that the Home Office issues guidelines, which prescribe the elements
of a "model relationship". We suggest that the Home
Office act in consultation with the Association of Chief Police
Officers to ensure consistency between the various guidance documents
Q5 What representations have been received
on this matterincluding on specific problemssince
publication of the Government's reply, and whether there has been
any change in policy?
This falls within the Home Office area of responsibility
and will be included in the Home Office memorandum to the Committee
We recommend that the Criminal Injuries Compensation
Authority conduct a review of its Scheme, with a view to ensuring
that it is sufficiently user-friendly and attractive to victims
of past institutional child abuse (paragraph 115).
Q6 What relevant reforms of the CICS have
taken place since the Government's reply?
Since 2003, a number of reforms have taken place
both to the structure of the Criminal Injuries Compensation Authority,
as well as organizational reform of the Authority. This includes
revised guidance on those claiming in respect of injuries incurred
as a result of physical or sexual abuse.
In November 2008, the Criminal Injuries Compensation
Scheme 2008 was introduced, replacing the 2001 Scheme. Amongst
other things, the new Scheme changed some injury descriptions
to reflect terminology from the Sexual Offenders Act 2003, inserted
some new categories and made other minor changes to rectify inconsistencies.
The Scheme operates within two legal jurisdictions (England and
Wales, and Scotland) where terminology to describe offences differs,
therefore a form of words has been used which will be recognised
in either jurisdiction.
A Major Incident Team (MIT) was set up as part
of restructuring within the CICA. The aim to pay victims of major
incidents promptly through the adaptation and enhancement of standard
A Corporate Literature Review Project was set
up to review all corporate literature and ensure it is fit for
purpose. Some documents considered within the project are the
guide, application forms and leaflets to stakeholders.
A revised guide on abuse and the CICA was published
on November 2008 and provides additional guidance to people who
are applying on their own behalf, or on behalf of children, for
injuries suffered as a result of physical or sexual abuse.
A Review Project of the Service Level Agreement
between England and Wales, and Scotland Police Forces was set
up. The aims are to reach agreement on processes to deliver clear
and consistent decisions to victims, efficient processing of cases
and good relationships between all relevant parties.
In 2006 a major reform programme was initiated
by the Authority, which led to the introduction of an interim
management team who reviewed the case working processes and implemented
a number of changes before a new management team were appointed
in 2007, who continued to progress with the reform. In July 2008
they introduced geographically based teams, which enabled consistency
and therefore better relations with the same police forces within
the area. At the same time it provided a new in-house telephone
support service putting an end to its outsourced contract. The
Authority also developed a new case working model which placed
greater emphasis on applicant support placing more of its resource
at the front end of the case working process to ensure that all
calls are answered by fully trained staff.