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.