Presumptions of innocence
The presumption of innocence is not simply a legal principle: it is the basis of social life
This is the text of an address made to a conference organised by FACT (False Allegations against Carers and Teachers) at the village of Dinas Powys on the outskirts of Cardiff. This was the place where, in 2000, some three hundred people, including teachers, lecturers, businessmen, a hospital consultant and all four local GPs, banded together to oppose police trawling operations and to fight for justice. The group was formed to campaign on behalf of former Welsh Office social services inspector Derek Brushett. Twenty years earlier, from 1974 to 1980, Brushett had been the widely respected head of the Bryn-y-don residential school, an establishment for difficult adolescent boys. In the late 1990s, however, after a single allegation made against him during the course of the North Wales trawling operation, the South Wales police embarked on an ‘investigation’. By using dangerous trawling techniques including suggestive questioning of a pool of witnesses who were all eligible for compensation payouts, and many of whom had long criminal records, they managed to collect – or generate – 44 allegations against Derek Brushett made by 26 different complainants. In 1999 he was sentenced to 14 years imprisonment. The text which follows has been revised in some minor respects for publication on this website.
When I picked up the phone about three-and-a-half years ago to make contact for the first time with a man whose name I had read in the newspapers but about whose case I knew very little – and I am referring here to Derek Brushett – I most certainly did not realise that a single phone call would eventually lead, and not really as a result of any actions of my own, to my addressing a hall thronged with people as this one is today. I know that Derek himself never dreamed that he would enjoy the kind of support that is visible here today. At first he simply didn’t understand the fate that had overtaken him and was clearly embarrassed by the warmth of the response to his plight.
To those who did not know Derek and who read about him only in sensational headlines he was the sadistic headmaster whose cruelty and perverted lusts had terrorised a generation disadvantaged young boys. That was why at his trial he had faced 44 counts of physical and sexual assault against boys as young. To those who did know him, however, this portrait of a monster belonged to the realms of higher fantasy. And it is, of course, because so many of you hold that view that this hall is filled today as full as it is.
To those on the outside, however, who never did meet Derek, the nagging doubts almost inevitably remain. Forty-four counts of physical and sexual abuse? Can anybody who faces that many allegations really be innocent? The answer to that question is very simple. Yes they can. Yet if we try to impart this view to the average jury – or even the average judge – things become much more difficult.
I am reminded of an article Bob Woffinden wrote two or three years ago with which some of you may be familiar. The title of the article was actually a question and it was in quotation marks: ‘Not Guilty to them all?’ In the article Bob related the story of one of the pre-trial hearings for Robin Reeves the psychotherapist and former head of a school for troubled children near Oxford. He was facing at that point 21 counts of sexual abuse. The judge started to go through them one by one asking the defendant in each case whether he wished to plead guilty or not guilty. After a few moments Robin Reeves’s solicitor Neil O’May rose to his feet. ‘Your Honour,’ he said, ‘there is no need to go through all the counts one by one. My client is pleading not guilty to them all.’ A look of astonishment came over the judge’s face. He leant forwards, moved his spectacles a little further down his nose, and peered over the top of them at the solicitor. In a tone of incredulity he said ‘Not guilty to them all?’
That case, as some of you will know, did not result in a conviction. Robin Reeves stood trial in Oxford Crown Court and was found not guilty on all counts at the direction of the judge. But the point of the story which Bob relates about the judge in the earlier hearing remains. The fact is that we have a judicial system which simply does not understand that, over the past ten or fifteen years, there has been a revolution in investigative methods. Simply because investigative techniques have grown up whose function in practice is not simply to collect but actually to generate as many allegations as possible against an individual suspect, it is now common (as we all know) for completely innocent men – or indeed – women, to face multiple allegations all of which are false.
One of the great problems that we have is that an entire generation of judges, barristers and solicitors has not caught up with this development. They are fixed in a habit of mind which belongs to another era – the era where allegations were complaints that individuals spontaneously made. That is a very dangerous habit of mind. Because habits of mind cannot be easily changed. They are wired into the very structure of people’s brains. And it is my experience that many solicitors and many barristers (not to speak of judges) actually find it physiologically difficult to overturn old assumptions and learn new ways of thinking about criminal prosecutions.
Fortunately, however, this is not always the case. Very recently I have had the experience of observing at close-quarters the way in which a single judge in a libel court was able to deal with a very large number of sexual allegations and to find, quite correctly, that the two people against whom they were made were not guilty of them all. I refer, of course, to the Shieldfield libel case and to the two wrongly accused nursery nurses, Dawn Reed and Chris Lillie. That case which, for almost four years has been an integral part of my life, has rightly been seen as a triumph for British justice. But those of you who have come here today have almost certainly not come because your faith in British justice has been entirely restored. The cruel injustices which have been perpetrated by the courts in this field over the last ten years remain as cruel and as terrible as ever. In the circumstances our task should not be to celebrate what happened in the Shieldfield libel trial but to try and learn its lessons.
How did this tragic case come about in the first place? How did a single visit by an anxious mother to a police station in Newcastle – a mother who desperately needed to be reassured that her anxieties rested on no firm foundations at all ¬– turn into a massive child abuse investigation and a case which would be described by Esther Rantzen as ‘one of the worst cases of mass child abuse ever seen in this country’? And how did it eventually happen, after nine long years, that a single judge in a libel court, faced by allegations supposedly made by no fewer than 27 different children, was able to successfully overcome the massive psychological potency of such allegations and to establish the truth?
Now I will leave the second of these questions if I may to any time which may be left for questions, Because I want to focus this afternoon on the first question.
In one respect she had every reason to be anxious since during that very week a student nursery nurse, Jason Dabbs, had pleaded guilty to indecently assaulting a number of children in another Newcastle nursery.
One of the remarkable features of the story is that it would appear that, at this stage the child himself had not said anything at all about Chris. The mother said that when she had mentioned Chris he had ‘indicated’ his genitals. The child had not made an allegation. The mother had observed (or said she had observed) a wordless gesture and had interpreted it in her own way.
This then was the beginning of the case. It should also have been the end. The initial reason why it was taken further is that in the last ten or twenty or thirty years we have destroyed what I will call the ordinary presumption of innocence according to which most people live their lives.
Let me make it clear, then, that I am not talking here about the presumption of innocence which is part of our legal system. I am talking about something which is, or at least always has been in the past, part of the basic grammar of our social relations one with another.
How do we know that the people to whom we entrust our children are not child abusers? The answer is of course that, even if the Criminal Records Bureau have completed their all their checks, that we don’t know. We make an assumption. As parents we presume that the teachers and nursery nurses (and spouses, and grandparents) to whom we entrust our children are not in fact abusing them and are on the contrary treating them properly. In our ordinary social lives we thus operate something which is akin to the presumption of innocence in a court of law. And in our ordinary social lives, as in the realm of the law, that presumption is an immensely valuable protective mantle which we should not strip from people without good reason.
The same kind of presumption is generally operated about matters of fidelity and infidelity within marriage. The fact that wives and husbands are rarely in a position to furnish proof that their partners are being sexually faithful to them does not generally mean that they constantly suspect one another of sexual infidelity. The fact that a man occasionally comes home late in the evening saying that he has been working, would not generally be considered grounds for accusing him of engaging in an adulterous sexual affair with his secretary. However, if he comes home with lipstick on his shirt and his wife finds in his pockets the stubs of two theatre tickets for a performance that night, it would be generally felt that she had reasonable grounds for voicing the suspicion which she may previously have felt.
In a court of law there is an evidential burden which must be met. What this means is that the prosecution has an obligation to show, when called upon to do so, that there is sufficient evidence to warrant a particular issue being brought before a jury. There must, in other words, be sufficient evidence to warrant attacking the presumption we have about the defendant’s innocence, and attempting to destroy that presumption. However this does not only apply to the realm of the law. As a matter of course, in our ordinary social relations, we impose an informal evidential burden upon each other and upon ourselves. We may occasionally have flickers of suspicion about the fidelity of our spouses, or even about the probity of our greengrocer. But unless we have strong and reasonable grounds for doing so we do not generally accuse our spouses of committing adultery or our greengrocer of short-changing us.
The reason that all this is so important is that when Jane Wilson walked into her local police station in Newcastle nine years ago, she confronted the police and above all the social services department, with a dilemma which they resolved, as we now know with hindsight, in entirely the wrong way. The question which the social services department appears to have asked itself was whether it could prove that Chris Lillie had not abused the child in question.
That kind of question is the most dangerous you can possibly ask. Since nobody could prove that Stephen Wilson, the child in question, had not been sexually abused by his mother or his father or his uncle or his aunt (or even his family doctor), it would be unreasonable to expect to prove the same kind of negative in relation to Chris Lillie. The question which should have been addressed was whether the child’s mother, Mrs Wilson, was ever in possession of sufficient evidence to be able to meet the informal but vitally important evidential burden which, as a condition of the most basic form of social morality, falls upon anyone who makes such a grave accusation.
The further question was whether, given that Mrs Young did voice her suspicions by going to the police station, the totality of the evidence surrounding her complaint made it reasonable in the circumstances for the social services department to effectively to amplify and publicise her complaint by alerting other parents to the fact that it had been made.
This question can only be answered by bearing in mind that, while any social service department has a fundamental obligation to protect children against possible abuse, it also has an equally important duty to protect both the community, and the children in its care, against the immense damage which can be caused by unfounded complaints made by those who may be unreliable, unbalanced or psychiatrically disturbed.
Any dispassionate analysis of this initial complaint would be bound to come to the conclusion which was in fact reached early on by one junior police officer – that there was simply no evidence of any wrong-doing. The complaint did not reach, or even begin to approach, the evidential threshold which needed to be reached before the ordinary presumption about Chris Lillie’s innocence could justifiably be attacked. At this very early point the entire matter should have been quietly and firmly put to rest.
But in the culture of suspicion which, by 1993, had already been created nationally with regard to child abuse, and in the heightened anxiety generated by the Jason Dabbs case, the social services department followed exactly the opposite path. First they suspended Chris Lillie. Then they held meetings of parents in which they effectively disseminated the original anxiety and the allegation. When Bob Woffinden and I first met Dawn Reed at a secret rendezvous in Kent I will always remember not only her terror and the fact that she was literally shaking as she began to speak to us, but also some of her words. Of the parents who attended that first parent’s meeting, she said: ‘It was as though you’d put them on a turntable and wound it up.’
Gradually, as anxious parents began to interrogate very young and suggestible young children, allegations – or childish utterances which were construed as allegations – began to be made. But even then it took a long time for the case really to gather momentum.
Soon after Dawn Reed was suspended on 12 May, almost exactly a month after Mrs Wilson’s visit to the police station. Dawn Reed received a card from one of the mothers. It contained the following message:
And then she signed the card with her name and the name of her son.
But that was not the end of the story as far as this mother and her son were concerned. On 16 August 1993, a policewoman and a social worker called at her home:
And so she played the nice-and-nasty game with her young son and soon convinced herself that he thought Chris was nasty. Then she used a Sooty glove puppet to talk to him and convinced herself that her son was tugging at an imaginary penis. The social workers were called back in, her child was interviewed on video and in a matter of weeks he had become one of the prospective witnesses in the criminal trail which was to be held in 1994.
I tell this particular story to illustrate the power of the kind of collective belief which gradually took hold of the small number of parents – and social workers and police officers – who formed the core of the Shieldfield prosecution,
Interestingly when the same mother gave evidence in the libel trial she described how some of the other parents had initially characterised her as an ‘unbeliever’. What this should alert us to I believe, is that there are very strong parallels between certain kinds of child abuse investigations and religious movements – or churches.
What exactly is a church? Some people might say that a church is a group of people who are united by a strong belief. I hope I won’t offend anyone if I make an alternative suggestion. I would suggest that a church can be, and very often is, a group of people who unite together in order to preserve beliefs which, simply because they are not founded on any solid, visible evidence, are not held strongly enough to be sustained without the constant reassurance which is provided by communing with other people who share those beliefs – or indeed by converting unbelievers so that they too come to share those beliefs.
Whether or not that view of churches is accepted, there is no doubt in my mind that the Shieldfield story grew to the massive proportions it did because a small number of people – and these included the paediatrician Camille San Lazaro – dedicated themselves to the cause of identifying more and more supposed victims with a zeal which was not almost religious, but actually religious. The engine of their progress, as is perhaps the case with all evangelical religious movements, was not so much faith but uncertainty. They needed desperately to believe that they had uncovered a great evil and in order to reassure themselves that this was in fact the case they needed at the same time to convert other people to this belief. And they were successful. Before long a single complaint, which was not actually made by a child at all but by a mother, had grown into a massive investigation in which literally hundreds of children were identified either as victims or possible victims. And as the number of alleged victims grew, so the fantastic mythology of the supposed evil conspiracy of paedophiles headed up by Dawn Reed and Chris Lillie grew with it. Eventually, by the time the four members of the Review Team had done their work, this collective delusion (for that is what it was) was accepted, or half-accepted, not only by Newcastle social workers and councillors, but by national newspaper editors, members of parliament and even, it would seem, the Prime Minister’s wife.
Why? Why are we so susceptible to such mass-delusions? Why at the beginning of the twenty-first century do we still seem to need to imagine ourselves battling against an evil and demonic conspiracy?
The one thing we can say with certainty about those who battle against what they perceive as the forces of evil is that they feel as a result not only filled with purpose, but also righteous and good. Such feelings are immensely powerful. We are still susceptible to them. Some people would say that the more rational we become the less we are likely to be susceptible to them. Anyone who has visited my website will know that I do not share that view. On the contrary I would suggest that the more rational we become, or try to become, the more powerfully we are likely to be driven to locate our own darker sexual or sadistic impulses outside ourselves. When we conduct crusades against imaginary evils that is precisely what we do. It is not irrational societies who conduct the most destructive kinds of witch-hunts. It is societies who are trying to convince themselves of their own supreme rationality. I believe that precisely because of our vaunted rationalism, our own age is more vulnerable to the witch-hunting mentality than practically any other.
Here in Dinas Powys of all places I should not need to explain why the process of demonisation to which Dawn Reed and Chris Lillie were subjected in Newcastle is so dangerous and so destructive. For a few years ago Derek Brushett was subjected to just that kind of demonisation. His case had its origins in an allegation which did not seem to pass the threshold test any more than Mrs Wilson’s Easter complaint should have done. The North Wales Police perhaps indicated as much by letting it lie in their files uninvestigated for more than two years. But eventually, as in Newcastle, it was decided to pursue it. The very weakness of the evidence contained in the original allegation made it imperative, if a prosecution were to be successful, to bolster it with more allegations. And as the South Wales Police force came to believe in the evil of the monster that they had themselves created they were impelled to find yet more weak allegations, until Derek Brushett faced the 44 counts which formed the basis of his trial.
What lessons then can be taken from the Shieldfield case and reapplied to the practice of trawling? There are many but the point I want to stress, to the exclusion of practically everything else, is the importance of a thorough investigation and assessment of the first allegation. The problem with police forces engaged in trawling operations up and down the country is that they have developed a mindset in which the first allegation is only ever seen as the beginning of an investigation and never recognised as what it may very well be – its end. The single most important lesson that Shieldfield can teach us is that those who make allegations of abuse against anyone are taking upon themselves, or ought to be seen as taking upon themselves, an awesome responsibility. Their allegation should certainly be taken seriously and investigated. But if it does not meet the evidential threshold which makes further investigation imperative it is absolutely vital that further investigation is actively ruled out, and ruled out as an option which might, were it to be wrongly taken, actually endanger the lives of innocent men and women.
Now I am all too aware that introducing or re-introducing a reasonable evidential threshold which must be met in relation to a single allegation before any investigation is carried further is more easily said than it I done. But I believe that we must stress this point and indeed that the Home Affairs Select Committee should be asked to stress it when they report on their inquiry.
I would suggest that, behind our failure as a society to recognise the importance of such an evidential threshold there lies our failure to understand the dangers of making allegations and the responsibilities which are incurred – or which should be incurred – by those who do make them.
And so I am going to close simply by drawing to your attention an aspect of legal history which is frequently forgotten. I have in mind the ancient form of law on which we once relied in this country. In this – the accusatory procedure – criminal cases were instigated by individual citizens rather than by the crown. Under the talion approach to justice, where the punishment for a crime matches the crime itself, this procedure tended to favour the accused rather than the accuser. It did so not least because if the accuser, who was obliged to conduct the case himself or herself, failed to convince the judge that the crime alleged had been committed, then the accuser would suffer as heavy a penalty as would have been visited upon the accused had he or she been convicted. The intention behind this particular form of talion law was to discourage malicious or frivolous accusations.
According to the law, if you accused your neighbour of murder and then failed to produce proof that your accusation was well-founded, then it would be you, and not your neighbour, who would be hanged. That of course is a very draconian form of law. I am not for one moment suggesting that that we should reintroduce it today. There can indeed, be little doubt that, during the middle ages, the scales of justice were tipped too far in favour of the accused and against those who made allegations. What I am suggesting, however, is that one of the lessons which should learn from Shieldfield is that we would do well as a society to remember that this form of law once existed and to recall the reasons why.
We should also constantly bear in mind that a presumption of innocence does not simply underlie our legal system. For a presumption of innocence forms the basis of our ordinary social lives.
Whenever we abandon such a presumption either in our courts or in our day-to-day social relations, we place society itself in peril. This is what happened during the developments which led up to the great European witch-hunt of the sixteenth and seventeenth centuries. It happened again during the closing years of the twentieth century. And for the most part our ‘rational’ society has not even begun to register this fact.