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THE GOVERNMENT REPLY TO THE
FOURTH REPORT FROM THE
HOME AFFAIRS COMMITTEE
SESSION
2001-2002 HC 836
The Conduct of
Investigations into Past
Cases of Abuse in
Children’s Homes
Presented to Parliament by the Secretary of State
for the Home Department
by Command of Her Majesty
April 2003
Cm 5799
INTRODUCTION
1. There has been extensive debate about investigations into historical cases
of child abuse in recent years. Much is at stake, given the necessity for the police
to investigate thoroughly all complaints that are made to them, some of which
relate to extremely serious crimes.
2. Justice for the victims of past incidents of sexual abuse is vital. Some of
the victims in these crimes have experienced horrendous ordeals that were
committed against them when they were at their most vulnerable, as children in
the care of local authorities or institutions. The Government has a clear duty to
ensure that the balance of justice reflects the severity of these offences, and takes
account of the difficulty faced by victims who wish to come forward, sometimes
many years after they have been abused. Victims must feel that the Criminal
Justice System will take their complaints seriously, and that they will receive a
fair hearing.
3. Objections have been raised, not least by those convicted of offences,
to
the methods employed by the police in their investigation of these cases. The
argument is that either deliberate impropriety, or mistakes induced by flawed
techniques have contributed to miscarriages of justice occurring.
4. In addition, further claims are made that many complaints are unfounded
and motivated either by the prospect of financial reward through criminal or
civil compensation, or the offer of preferential treatment in some form or other
to those who are in custody or otherwise involved in the criminal justice system.
5. The passage of time and the damage done so frequently by the
experiences of victims means that proper safeguards must be observed in the
chain of evidence gathering. In particular, an accurate and proper record should
be kept of the initial approaches by the police to witnesses, to enable the jury to
have the full picture of the procedure followed.
6. The Government therefore welcomes the Committee’s report. We are
acutely aware of the very sensitive nature of these investigations and the deep
dissatisfaction and frustration voiced by those who are concerned that justice
has not been done.
7. Both the Government and the Association of Chief Police Officers
published guidance in 2002 for police, social workers and other professionals
involved in these types of investigation. The views of those concerned about the
impact of investigations on suspects were taken on board. Both sets of guidance
were drafted to include consideration for people accused of these crimes, and
who may have to undergo an investigation that could seriously affect their
personal and professional lives.
8. The Government guidance describes the role of the inter-agency Strategic
Management Group as a steering group for investigations. One of the key tasks
of the Strategic Management Group is to “ensure that there are safeguards in
place to guarantee the integrity of the investigation, taking into account the need
to exercise particular care to guard against the risk of eliciting false allegations
against innocent people” (Section 3.2, paragraph g, p6).
9. The Government are in agreement with the Committee when it says that
these cases represent an “immensely difficult” area of criminal prosecution, and
we believe that the only way to proceed is to adopt a cautious and prudent
approach, firmly based on objective fact.
10. The Government therefore respects the views of the Committee, but does
not share its belief in the existence of large numbers of miscarriages of justice.
The Committee’s conclusions would appear partly to have arisen from a
combination of
assumptions, which include:
-
Significant
numbers of complainants make fabricated complaints for dishonest
motives;
-
They conspire
to do so;
-
These
fabrications remain undetected throughout lengthy inquiries;
- A range of agencies, from the police and CPS to personal injury solicitors, are both unaware of these deceptions and/or unwittingly assist them; or are complicit in their fabrications;
- Significant numbers of complainants are either serving prisoners or ex-offenders;
-
They are therefore more likely to be dishonest when
making complaints of abuse, (although a different standard is applied
and their word is relied upon as significant evidence when they are
disclosing details of alleged impropriety in the conduct of
investigations); and
- “False allegations” are assumed to have occurred in a whole range of circumstances, from acquittals and cases that do not proceed to occasions when their existence is claimed by either those who claim to have made them or their associates. Rarely is there clear substantiation that these allegations have indeed been deceptions.
11. The Government sees no evidence to support these assumptions and notes
that the Committee have themselves recorded their own reservations in this
respect. We are concerned that they have nonetheless relied upon them
significantly, without the weight of significant and consistent substantiation to
back them up.
12. The Government feels that there is lack of clarity surrounding the use of
the term “miscarriages of justice”, and what specifically is being referred to. If
the concerns relate to the criminal justice processes, we feel that they have not
produced evidence that such cases exist.
13. The Government recognises that this is an area where solid facts can be
difficult to identify, however we feel that the weight given by the Committee to
the views of those who believe in the existence of miscarriages of justice,
including those who claim to be the victims themselves of such cases, is
disproportionate. The consideration for the views of abuse survivors, such as
those represented in the submission to the Committee from Fire In Ice, and
whom we can reasonably assume lack motive to fabricate their claims, point
towards a wholly different view of these issues. The Government feels that
consideration of this issue must be balanced and must rely as far as possible on
established facts.
14. The inquiry’s terms of reference addressed five separate issues in its
consideration of the existence of possible miscarriages of justice. None of the
answers to these questions result in any substantive evidence that a problem
exists. In fact, the Committee satisfies itself on at least three of these points that
there is not a significant cause for concern.
15. Despite the Government’s disagreement with the Committee’s view on
miscarriages of justice, we feel that there have been some potentially useful
ideas discussed in the inquiry. We are open to the possibility of further
improving guidance and taking steps to ensure that where it is sensible to
develop or improve investigative processes, this action is taken.
SUPPORTING FACTS
16. A summary of judicial outcomes in historical child abuse cases was
submitted as evidence to the Committee (Memorandum 2, Appendix D) by
Terence Grange of the Association of Chief Police Officers (ACPO). It was
based on internal research conducted by ACPO of cases between 1997-2000.
17. This summary showed that, of the cases examined, 55 out of 163 cases
(34%) where a plea was entered pleaded guilty. Of the total of 189 cases that
were finalised in court, 3 resulted in appeals going to the Criminal Cases Review
Commission (CCRC), although obviously further appeals may have been made
since this data was collected.
18. More recently, the CCRC have confirmed that there have been 24
applications of cases of historical abuse between 1997 and the present day. Of
these cases, 7 are now closed and none of them were referred to the Court of
Appeal. The remaining 17 cases are still being dealt with.
19. Although the CCRC look at cases on an individual basis, a recently
introduced case management system will enable comparison of historical abuse
cases and the identification of common links of relevance.
20. A recent Court of Appeal judgment has resulted in the convictions of two
men imprisoned for historical child abuse being found unsafe. The original
convictions were challenged by new evidence from witnesses who had not given
evidence at the original trials.
13. The Government recognises that this is an area where solid facts can be
difficult to identify, however we feel that the weight given by the Committee to
the views of those who believe in the existence of miscarriages of justice,
including those who claim to be the victims themselves of such cases, is
disproportionate. The consideration for the views of abuse survivors, such as
those represented in the submission to the Committee from Fire In Ice, and
whom we can reasonably assume lack motive to fabricate their claims, point
towards a wholly different view of these issues. The Government feels that
consideration of this issue must be balanced and must rely as far as possible on
established facts.
14. The inquiry’s terms of reference addressed five separate issues in its
consideration of the existence of possible miscarriages of justice. None of the
answers to these questions result in any substantive evidence that a problem
exists. In fact, the Committee satisfies itself on at least three of these points that
there is not a significant cause for concern.
15. Despite the Government’s disagreement with the Committee’s view on
miscarriages of justice, we feel that there have been some potentially useful
ideas discussed in the inquiry. We are open to the possibility of further
improving guidance and taking steps to ensure that where it is sensible to
develop or improve investigative processes, this action is taken.
SUPPORTING FACTS
16. A summary of judicial outcomes in historical child abuse cases was
submitted as evidence to the Committee (Memorandum 2, Appendix D) by
Terence Grange of the Association of Chief Police Officers (ACPO). It was
based on internal research conducted by ACPO of cases between 1997-2000.
17. This summary showed that, of the cases examined, 55 out of 163 cases
(34%) where a plea was entered pleaded guilty. Of the total of 189 cases that
were finalised in court, 3 resulted in appeals going to the Criminal Cases Review
Commission (CCRC), although obviously further appeals may have been made
since this data was collected.
18. More recently, the CCRC have confirmed that there have been 24
applications of cases of historical abuse between 1997 and the present day. Of
these cases, 7 are now closed and none of them were referred to the Court of
Appeal. The remaining 17 cases are still being dealt with.
19. Although the CCRC look at cases on an individual basis, a recently
introduced case management system will enable comparison of historical abuse
cases and the identification of common links of relevance.
20. A recent Court of Appeal judgment has resulted in the convictions of two
men imprisoned for historical child abuse being found unsafe. The original
convictions were challenged by new evidence from witnesses who had not given
evidence at the original trials.
21. Clearly, the circumstances of these cases do not imply that other
convictions are unsafe. The fact that evidence emerged at a later date which
challenged witness accounts that may have led to convictions does not mean that
other
convictions are doubtful.
22. Nonetheless, the Government will watch with interest the progress of any
future appeals in historical abuse cases, as well as work with the CCRC, to
identify any
relevant trends that would indicate systematic problems.
DETAILED RESPONSE TO KEY CONCLUSIONS AND
RECOMMENDATIONS:
The Conduct of Police Investigations
23. (Recommendation 1) Although we hold some reservations about the
conduct of police trawls, we do not accept that trawling should be
prohibited. The police have a statutory duty to investigate allegations of
child abuse, regardless of whether they relate to contemporary or past
events. In general, the longer the delay between the alleged offence and the
allegation being made, the more difficult the investigation. We believe that
senior officers should retain their discretion to determine the nature and
scale of an investigation, particularly in complex investigations into past
institutional abuse. In every case, however, there should be clear
justification for the decision to launch a trawl (paragraph 26).
24. (Recommendation 2) We take the view that any initial approach by
the police to former residents, should—so far as possible—go no further
than a general invitation to provide information to the investigation team.
We invite the Association of Chief Police Officers to revise the internal
police handbook for senior investigating officers, in order to set out clearly
the terms of an initial approach to potential witnesses (paragraph 34).
25. The Committee uses the term “trawling” for the sake of convenience. The
Government considers that accuracy is just as important a consideration when
selecting a term that best describes the practice referred to. We are disappointed
to see this term favoured, particularly given the Committee’s acknowledgement
of its negative connotations. “Trawling” implies an undiscriminating approach,
with a pre-determined outcome in mind. The suggestion is that the police are
looking for allegations, and focus their activities to this end. “Dip sampling” is
a more accurate and neutral term and we encourage its use.
26. The Committee heard detailed evidence from the police about this
practice, that it is an entirely necessary response to the duty of the police to
investigate serious criminal allegations. The Committee rightly acknowledges
the police’s statutory duty and the difficulties they face when complaints of
historical abuse are made.
27. We are therefore pleased to see that in this case the Committee, although
they make reservations, do not agree that this practice is flawed. Clear
justification for a dip sample would of course be recorded as a matter of routine
in the Senior Investigating Officer (SIO)’s policy file, and this is already made
clear in the Association of Chief Police Officer’s Handbook for Senior
Investigating Officers.
28. The Government agrees that the implementation of recommendation 2
would help to ensure that dip samples follow best practice.
Interviewing potential complainants and other witnesses
29. (Recommendation 3) 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).
30. (Recommendation 4) 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).
31. The evidence presented to justify the need for mandatory recording of
interviews is not entirely persuasive, being as it is largely anecdotal and
disputed. However, this does not mean that there is not a case for recording
interviews.
32. The evidence given to the Committee by police officers suggests that there
is a well established sensitivity in this area, and that it is routine practice for
senior officers to provide detailed briefing to interviewing officers (QQ 651-
658), to ensure that they do not influence the responses of the witness.
33. If implemented, these recommendations would place complainants in a
unique category of crime victims, in that extra precautions would be taken to
ensure the validity of their evidence. This policy could act as a disincentive to
victims of these crimes, who may feel they are being stigmatised by this
approach. However, if it were explained to a witness that the recording may
prevent cross-examination to the effect that, for example, the officer led the
witness, they may themselves see the advantage in this approach.
34. Although we feel that these recommendations are not fully justified, we
are not closed to the possibility that there could be an argument for introducing
audio or video tape recording, if it can be established that there is clear
justification for the resources that would be necessary, and if it could be fairly
defined which cases it should apply to. Improving the quality of witness
evidence is clearly something that the Government supports, and recording
could be of significant value in improving the quality of prosecution decisions.
35. At the very least, the Government considers that there would be a clear
benefit in ensuring that a documented and accurate record is kept, including in
some cases tape or video recording, of all approaches to witnesses and will
discuss with ACPO how this can be implemented.
36. (Recommendation 5) We recommend that resources are channelled
into researching and piloting the use of "statement validity analysis" as a
tool for evaluating the credibility of witness testimony in complex historical
child abuse
cases (paragraph 50).
37.
The use of statement validity analysis (SVA) to establish the credibility
of
statements from child witnesses/victims of sexual abuse has been validated
through many research studies (e.g. Stella and Kohnken, 1989; Raskin and
Esplin, 1991). Its application to statements from adult witnesses/victims of
sexual abuse (including those cases of historical child sexual abuse cases where
the offence took place as a child but is not reported until adulthood) has not
undergone such validation. There have been very few research studies
conducted in this area and the findings from these studies have not been wholly
convincing. Consequently, further research is required and as such, the
recommendation can be supported. However, it is important to note that SVA is
one of a range of techniques (e.g. SCAN) that could be applied to this area and
the
applicability of all relevant techniques should be explored.
38. The Government also notes that although SVA may be a useful tool for
evaluating the credibility of witnesses, the report has not produced any evidence
to the effect that it would assist in preventing false testimony.
39. The ACPO Investigative Interviewing Group, which aims to develop and
assist the implementation of a national investigative interview strategy, are
currently producing advice to forces on the use of a number of techniques,
including SVA,
that claim to detect instances of potential deception.
The Senior Investigating Officers’ Handbook
40. (Recommendation 6) We would, encourage the Association of Chief
Police Officers to distil the core recommended practices and procedures
into a prescriptive list, to be included in the police handbook for senior
investigating officers (paragraph 59).
41. The Government has doubts that a prescriptive list would be of
benefit,
and fears that such a step could prove counter-productive in ensuring that these
complex investigations are pursued as efficiently and effectively as possible. We
believe that the approach advocated in the Government’s inter-agency guidance,
whereby the Strategic Management Group must apply rigorous scrutiny to the
“overall process for gathering corroborative and additional evidence” (Section
3.2, paragraph g) achieves the same end, while allowing each investigation the
necessary flexibility to respond appropriately to its own particular
circumstances.
Victim Support Services
42. (Recommendation 7) We endorse the view that, where a trawl is
conducted, complainants should be offered appropriate victim support
services, such as counselling, from an early stage of their involvement in the
investigation (paragraph 61).
43. We are pleased that the Committee has recognised the importance of
supporting victims from an early stage in the investigation, a matter that is
addressed in the Government guidance on Complex Child Abuse Investigations:
Inter-Agency Issues.
The role of the Crown Prosecution Service
44. (Recommendation 8) In our view, the Crown Prosecution Service is
presently faced with a difficult task when reviewing past cases of
institutional child abuse. However, the sheer volume of such cases which are
rejected by the CPS, seems to indicate that it is applying a sufficiently
robust review to sift out weak cases. We are not persuaded that there should
be a new test for Crown Prosecutors (in addition to the evidential and
public interest tests) to require firm evidence, or a firm belief, that a crime
has been committed for the prosecution to proceed. We, therefore, decline
to recommend any changes to the Code for Crown Prosecutors (paragraph
70).
45. We welcome the conclusion that the existing CPS tests are considered
robust and sufficient to prevent weak cases from reaching court, and the
conclusion, as expressed by the Director of Public Prosecutions, that any
potential third test would be “superfluous”.
Disclosure
46. (Recommendation 9) We note that failure to disclose evidence
inconvenient to the prosecution case was a factor in many—if not most—
proven 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 72).
47. The police and CPS have been taking action to improve prosecution
disclosure in the form of a joint project. This has taken forward
recommendations made by the CPS Inspectorate in their thematic review of
disclosure, published in March 2000, the Attorney General's Guidelines, issued
in November 2000 and the Home Office commissioned research published in
December 2001. Revised joint operational instructions on disclosure have been
approved and issued to the police and CPS in December 2002. Police and CPS
training based on the new instructions will begin in April 2003, with a view to
full implementation in early summer.
48. Improvements in prosecution disclosure will also be assisted by closer co-operation
between the police and the CPS. This is taking place in the course of
the pilots for new charging procedures, which are being placed on a statutory
basis in the Criminal Justice Bill that is being considered by Parliament. In
addition, joint working is taking place in police/CPS criminal justice units, as
recommended by Sir Iain Glidewell in his Review of the Crown Prosecution
Service published in June 1998.
49. The Criminal Justice Bill will introduce a single disclosure test to replace
the present two tests. This should simplify the process and contribute to the
work outlined above to improve prosecution disclosure.
50. (Recommendation 10) 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).
51. A draft model protocol between the CPS, police and local authorities on
the exchange of information in the investigation and prosecution of child abuse
cases is being developed by an inter-agency working group led by the CPS. It is
hoped that the model protocol will be issued to the CPS, police and local
authorities by early summer 2003 when local areas will be encouraged to draw
up their own protocols based on the model.
52. In the Annex to the White Paper 'Justice for All', the Government
indicated that it wished to consider further Sir Robin Auld's recommendation
that consideration should be given to a new statutory scheme for third party
disclosure. The Government wishes to take account of the work on developing
the model protocol before reaching a view on the best way to proceed.
Similar fact evidence
53. (Recommendation 11) 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).
54. (Recommendation 14) 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).
55. The Committee’s recommendation would return the law on similar fact
evidence (for these cases) to the position that applied following the case of
Boardman in 1975. However, the test for admitting such evidence has developed
since then to recognise that its value is not limited to cases of “striking
similarity”. For example, multiple accusations against an offender have a
significance that derives from the unlikelihood that a person will be
independently falsely accused of offences of a like nature, whether or not there
is a particular degree of similarity. Whilst such accusations do not establish that
an incident is true, and issues of collusion need to be considered carefully (as
they would if the threshold were “strikingly similar”), such evidence is certainly
relevant to assessing the cogency of a witness’s account. Evidence of other
incidents might also be relevant when considering an innocent explanation put
forward by the defendant - what might credibly be explained as a mistake on one
occasion becomes much less so in respect of repeated incidents. Here, too, the
relevance of the other allegations does not depend on establishing a particular
level of
similarity between the events.
56. The Government is therefore concerned that reverting to the “strikingly
similar” test would risk denying juries and magistrates a range of potentially
highly relevant evidence. Our approach, as embodied in our proposals for
reforming the law on evidence of bad character in the Criminal Justice Bill
currently before Parliament, is to enable juries and magistrates to hear the
widest range of relevant evidence that will assist them to reach a fair verdict.
The admissibility of bad character evidence should therefore depend on its
relevance to the issues in the case, rather than on a particular degree of
similarity.
57. We are not, however, complacent that dangers cannot arise where
evidence is admitted in these circumstances. However, there are safeguards to
ensure that trials are fair. For example, in determining whether to admit the
evidence, the courts must consider whether it would be more prejudicial than
probative. The judge will therefore be able to direct that the charges be
considered evidentially separate if necessary. And where this might not be
sufficient to secure a fair trial, the judge can order that the various charges are
tried separately, ensuring that the jury in each case is not aware of the evidence
in the others. The Criminal Justice Bill also proposes that judges should be
under a duty to withdraw a case from the jury where it becomes clear that
seemingly independent allegations are in fact the result of collusion or other
distortion and a conviction would be unsafe.
58. The Committee also recommends a presumption in favour of ordering
separate trials where allegations cannot be heard as evidence in support of each
other on a similar fact basis. In their judgement in the case of Christou (1997),
dealing with the severance of charges for sexual offences, the House of Lords
held that a trial judge should exercise his discretion to sever to achieve a fair
resolution of the issues. This is buttressed by the Human Rights Act 1998, which
makes it clear that the courts must act in a way that is compatible with the
European Convention on Human Rights including ensuring a fair trial. Given the
centrality of fairness to the issue of severance, it is not clear what the proposed
presumption would substantively add. The Committee is concerned that “sexual
offences tend to engender greater prejudice than non-sexual offences”
(paragraph 96). However, we do not agree that this warrants a special rule to
deal with historic child abuse cases: the issue of prejudice will clearly be an
important aspect of deciding whether severance is required and to the extent that
there is a greater risk of prejudice in any particular case, whether of historic
child abuse or any other, the argument in favour of severance will clearly be
stronger.
A time limit on prosecutions of offences relating to child abuse
59. (Recommendation 12) We are inclined to agree that the prosecution
of offences relating to child abuse should not be time-barred. In our view,
prosecution decisions should continue to be based on the merits of the case,
having regard to public interest factors, such as delay. Whilst a limitation
provision may protect innocent defendants from fabricated allegations that
are difficult to refute, it may also prevent guilty defendants from being
brought to justice. For these reasons, we decline to recommend the
introduction of a statutory limitation period (paragraph 89).
60. Recommendation 20 of Setting the Boundaries said that "there should be
no time limit on prosecution for the proposed new offence of adult sexual abuse
of a child ". The government has accepted this recommendation on the basis that
although concerns have been raised about false allegations, there is no logical
reason why this offence alone (or indeed sex offences in general) should be
singled out for a time limit. Under existing legislation, prosecution for the
offence of unlawful sexual intercourse with a girl under 16 cannot be
commenced more than 12 months after the offence took place. This provision
will be repealed along with the offence when the new Sexual Offences Act is
introduced. There are no time limitations attached to any of the offences in the
Bill.
Safeguards against abuse of process
61. (Recommendation 13) We recommend that the prosecution of
offences relating to child abuse, which is alleged to have occurred over ten
years since the date of the offence, should only proceed with the court's
permission. We suggest that the time period does not begin to run until the
complainant has reached age 21 (paragraph 92).
62. We are not persuaded by this recommendation. It is the role of the CPS as
the prosecuting authority to consider, on a case by case basis, whether there is
sufficient evidence for a realistic prospect of conviction, and if so whether it is
in the public interest to bring a prosecution. We see no reason to interfere with
this role. When reaching a prosecution decision, one of the factors for
consideration to which the prosecutor will have regard is any delay in reporting
an allegation and the reasons for that delay.
Extension of anonymity to the accused
63. (Recommendation 15) 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).
64. The Government believes that the law presently strikes a proper balance
between the principle of open justice, in which the public has the wider interest,
and the very important need to ensure that victims of sexual offences are
encouraged to report such crimes. The rationale for protecting victims alone is
not only to protect them from hurtful publicity, but to encourage other victims
to report offences and co-operate with the prosecution. These arguments do not
apply to the accused.
65. Historical child abuse cases cover a wide range of offences (both sexual
and non-sexual) which may have occurred over a period of time. There would
be definitional difficulties in determining which defendants in historical child
abuse cases should be granted anonymity.
66. The Government is presently minded to retain the existing format in
regard to anonymity for defendants as no other category of offence is dealt with
in this way, but it will continue to listen to the arguments of those who feel
strongly on the matter.
The working relationship between personal injury solicitors and the police
67. (Recommendation 16) 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 (paragraph 108).
68. The Government does not think that the existence of a problematic
relationship between police forces and firms of solicitors has been substantiated,
and therefore specific guidelines are not justified. The assumptions that civil
compensation claims have driven false allegations, or that impropriety has
existed in relationships between police forces and firms of solicitors is not
supported by any evidence.
69. We agree that some guidance for police officers and other professionals
involved in an investigation is useful. The Government’s Complex Child Abuse
Investigations: Inter-Agency Issues paragraphs 6.4 to 6.6 refers specifically to
matters relevant to the disclosure of information to solicitors. We feel that this
provides sufficient guidance to ensure that the balance of all interests are met.
The explicit reference to the potential dangers of compensation being seen as a
possible inducement for co-operating in an investigation is an adequate
safeguard in this context. The Government is prepared to amend this guidance
if it is shown
that specific problems need to be addressed.
Civil compensation and the Criminal Injuries Compensation Scheme
70. (Recommendation 17) 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).
71. The Criminal Injuries Compensation Scheme, and any amendments to it,
are made, not by the Criminal Injuries Compensation Authority, but by the
Secretary of State, with the consent of both Houses of Parliament. The tariff-based
compensation scheme was introduced in April 1996. It was
comprehensively reviewed during 1999-2000 following a public consultation
exercise launched by the issue in 1999 of a consultation document entitled
"Compensation for Victims of Violent Crime: Possible Changes to the Criminal
Injuries Compensation Scheme".
72. Following that public consultation exercise a number of substantial
improvements were made to the Scheme with effect from 1 April 2001.
Additional injury descriptions were included in the tariff of injuries listed in the
Scheme, and the descriptions relating to sexual assault and child abuse were
redefined, re-ordered and expanded to make them both more comprehensive and
easier for potential claimants to understand. The compensation awards for most
such injuries were increased at the same time. The Scheme is kept under review
on a continuing basis.
Vicarious liability
73. (Recommendation 18) We would like to see a return to the legal
position, pre-2001, when employers were not generally regarded as liable
for sexual assaults committed by their employees, unless the employer was
also at fault through his own negligence. To go back to this position would
not, in any way, affect the liability of employers who were found to be
negligent, nor would it prevent complainants from suing the alleged abuser
directly, or from claiming compensation from the Criminal Injuries
Compensation Authority. For these reasons, we recommend that the
Government gives serious consideration to the introduction of legislation to
overturn the House of Lords' decision in Lister v. Hesley Hall Ltd, which—
in our view—has broadened the scope of 'no-fault' (vicarious) liability too
far (paragraph 121).
74. The Government does not propose to change the law in this area. The law
on vicarious liability is wholly common law based, and has been developed by
the courts over many years. There is a wide range of case law in which the courts
have considered the basic principles which should govern the extent to which
employers should be responsible for the acts or omissions of their employees
and their applicability in the circumstances of individual cases. It is a matter for
the court to decide whether an employer is vicariously liable in the light of all
the circumstances of the case.
75. It would not be desirable or practicable to replace the common law by
statute in one particular set of circumstances in which vicarious liability may be
held to apply. It would be very difficult to specify precisely the circumstances in
which the new provision should and should not apply, and thus any change
could have the effect of preventing legitimate claims. In addition, a change in
one area would inevitably have substantial repercussions on the law on vicarious
liability as a whole.
76. It is therefore preferable that the courts should continue to have the
flexibility to consider all the circumstances of the individual case in reaching a
decision as to whether vicarious liability should apply.
77. The Lister judgment does not go so far as to say that an employer will
always be vicariously liable for any sexual assault committed by an employee at
work. Therefore, it is not quite accurate to refer as the Committee do at
paragraph 119 of the report to an employer knowing that “he will be liable for
the abuse, regardless of his efforts to tighten management procedures.”
78. Furthermore, there is no evidence that child protection safeguards have
become more lax since the Lister judgment.
79. There are, of course, some safeguards that ought to be in place
irrespective of concerns about vicarious liability. For example, children’s
homes, fostering services and care homes (that may provide accommodation to
children), all fall within the Care Standards Act 2000 regime. Providers of these
services are subject under the Care Standards Act to requirements (amongst
other things) about fitness of providers, managers and staff. These include
obtaining satisfactory information about past employment and Criminal
Records Bureau checks. A breach of these requirements is a criminal offence.
From 1st April residential family centres and from 30th April adoption services
will also fall within the Care Standards Act.
80. In the particular context of children’s homes, the Children’s Homes
Regulations 2001, make provision for the protection of children and the
promotion of their welfare. In addition, the provider of a children’s home has a
duty of care towards a child accommodated in the home. This includes having
adequate measures in place to protect him from harm. Failure to do so may
result in a quite separate claim against the provider.
81. There are also the general duties under section 22 of the Children Act
1989, of local authorities to safeguard and promote the welfare of children in
their care or to whom they provide accommodation.
82. With regard to the potential for unscrupulous claims, the evidence is
lacking that the
Lister judgment has had any effect in this regard.
Public funding
83. (Recommendation 19) We are not persuaded that personal injury
actions arising from historical child abuse should be excluded from public
funding (paragraph 126).
84. The Government agrees with this recommendation.
Other factors
85. (Recommendation 20) We would invite the Association of Chief Police
Officers to further revise the internal police handbook for senior
investigating officers, with a view to minimising the risks of inducing false
or exaggerated allegations. First and foremost, we believe that any practice
by the police of offering, or acceding to requests for, mitigation in exchange
for evidence against suspected child abusers in historical cases should be
prohibited (paragraph 129).
86. The Government believes that there is value in the consistent promotion
of good practice, and will therefore discuss with ACPO the possibility of
revising and developing the Guidance to further minimise the potential for
inducing false allegations.
87. Both the Government and the Association of Chief Police Officers firmly
agree that the practices suggested in this recommendation are wholly
inappropriate. However the report has not presented any information to the
effect that they do happen. Nor does the unpublished memoranda held at the
House of Lords reveal any information to this effect.
The Criminal Cases Review Commission
88. (Recommendation 21) We conclude—and this is a point that goes
wider than simply historical child abuse cases—that the Commission's test
for referral to the Court of Appeal is too narrow. We believe that the test
should be broadened, to bring it into line with the test applied by the
Scottish Criminal Cases Review Commission. We, therefore, recommend
that the test is revised to allow the Commission to make a referral where
they believe that a miscarriage of justice may have occurred and that it is
in the interests of justice that a reference should be made (paragraph 137).
89. The Royal Commission on Criminal Justice recommended the test that “a
miscarriage of justice may have occurred”. But it was accepted during the
passage of the Criminal Appeal Act 1995, which established the CCRC, that
there was a need to go further than this. It was argued that in the absence of
anything new, the implication would be that the CCRC, which had referred the
case, disagreed with the previous finding on appeal. This would place both the
CCRC and the appellate court in a most invidious position. There would also be
no real purpose in such a reference, since the appellate courts cannot be
expected to alter their previous judgements unless there is some substantial new
point on which to focus. The Court’s test is whether a conviction is "unsafe" and
the CCRC's test is derivative. It would not seem sensible for the Commission to
work to a different formula than the court. To do so could cause friction between
these two bodies.
90. The Scottish CCRC was established following the recommendations of
the Sutherland Committee (The Committee of Criminal Appeals and
Miscarriages of Justice procedures). Prior to the setting up of the SCCRC the
Secretary for State for Scotland under s124 of the Criminal Procedures
(Scotland) Act 1995 could refer a conviction or sentence to the High Court with
no form of words to circumscribe his discretion. The Sutherland Committee,
however, noted that the Secretary of State’s practice had been to intervene only
where fresh evidence or new considerations of substance which had not been
before the Courts, suggested a miscarriage of justice might have taken place.
The Crime and Punishment (Scotland) Act 1997 (which set up the SCCRC)
reflects the test under the 1995 Act and bears with it the proposition that a
reference should only be made on the basis of fresh evidence or argument. It
seems unlikely that the Sutherland Committee envisaged that the Court would
quash a conviction in the absence of new evidence or argument. Indeed, the
Committee specifically addressed the question of what should happen in a case
where the SCCRC believed there to have been a miscarriage of justice but for
want of new evidence or argument the High Court would be unable to consider
the case. They recommended that the SCCRC be empowered to refer such cases
to the Secretary of State with a view to the exercise of the Royal Prerogative.
91. We have consulted the CCRC who are opposed to the proposal. Their
view is that the existing formula is broad. They commented: “The test now
comprehends not only cases where the conviction is flawed factually but also
cases in which, for want of due process, the conviction cannot be upheld without
compromising the integrity of the criminal justice system. In cases where
relevant and credible new evidence appears the test may be satisfied provided
that the CCRC considers that the Court will conclude that it cannot be certain
what the result of the trial would have been had the jury heard fresh evidence.
The current test preserves the position of the jury or magistrates as finders of
fact whilst giving considerable latitude to the CCRC where new evidence or
argument appears.”
92. The more fundamental consideration is whether the existing formula
leaves miscarriages of justice unredressed and whether adoption of the Scottish
formula would allow the CCRC to address these. The CCRC are unable to
conclude that a change to the Scottish formula would produce any change in
practice.
93. The CCRC has, furthermore, a flexible head of power that allows them to
review cases that don't meet the criteria, but appear to be obvious miscarriages
of justice. Section 13(2) of the Criminal Appeal Act 1995 provides the CCRC
with a power to exercise a wider criterion based on “exceptional circumstances”.
This is irrespective of the terms of section 13(1)(a) and (c) (i.e. such a referral
does not require a real possibility, and new evidence, or new argument on a point
of law). The Commission has used these powers. Additionally the Commission
has the power under s16 (2) of the 1995 Act where they are of the opinion that
the Secretary of State should consider the exercise of Her Majesty's prerogative
of mercy to refer such a case to him. This power could be used in cases where
no new facts or evidence are available.
94. The CCRC has powers to allow them to consider and deal with cases
where new evidence or argument is not available and to widen their criteria
could dull their focus which could result in numbers of less convincing cases
getting in the way of more worthy ones. The Government is not convinced
therefore that this recommendation would produce any change or benefits in
practice.
NOTE: This document has been downloaded directly from the Home Office website where it is available only in PDF format. It is presented in this format for ease of access.
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