The new injustices
JUST OVER A WEEK ago, on Tuesday 15 January, the pavements outside the Royal Courts of Justice in the Strand were thronged with newspaper photographers and television crews as one of the longest miscarriages of justice in British legal history was brought to an end by three judges in the Court of Appeal. Stephen Downing had served 27 years for a murder which he did not commit. What made his case especially significant is that it was the product of a systematic form of injustice, in which the failure to protect suspects against oppressive police questioning led repeatedly to trials where innocent men were convicted on the basis of confessions which were false.
The problem of false confessions only came to wide public attention in 1972 when firemen were called to a burning house in Catford, South London, where they discovered the body of a strangled male prostitute, Maxwell Confait. Three youths were quickly arrested. One was 14, one, though 18, had a mental age of 8; the third was of low IQ. They confessed under police questioning and were convicted of arson, manslaughter and murder.
It later became apparent that their confessions were untrue and that they had been extracted by improper police pressure. After a successful appeal court hearing, the publication of a book, The Confait Confessions by Christopher Price and Jonathan Caplan, and the setting up of two major inquiries, some of the most radical reforms of the prosecution process ever to have taken place were instituted.
On the one hand the Police and Criminal Evidence Act of 1984 gave new rights to police suspects and made the tape-recording of police interviews compulsory. On the other hand the Phillips Commission, which reported in 1981, proposed a national prosecution service, one of whose aims would be to attempt to ensure that prosecution evidence was properly scrutinised, and that weak cases such as the one relating to the murder of Confait would not even reach the courts. The Crown Prosecution Service, which eventually came into being in 1986, was thus (in part at least) the indirect product of a grave systematic injustice.
The Stephen Downing case will certainly not be the last of its kind but it might well be seen by future historians as marking the end of one era of injustice and signalling the opening of another. This is largely because, by a curious coincidence, the Home Affairs Select Committee chose the day after Downing’s successful appeal, Wednesday 16 January, to announce the launch of an inquiry into a new form of systematic injustice. This, according to some observers, has already led to more than a hundred grave miscarriages of justice, and will, if unchecked, lead to many more.
Addressing precisely the areas which critics of police trawling have repeatedly pointed to, the committee, under the chairmanship of Chris Mullin MP, will ask whether police trawling methods involve a disproportionate use of resources which only succeed in producing unreliable allegations. It will also ask whether the Crown Prosecution Service ‘is drawing a sensible line about which cases should be prosecuted’. In effect it will consider whether one of the major reforms to grow out of the Confait case has failed to supply the safeguards which were so clearly needed. It will also consider the radical question, until recently almost unthinkable, of whether there should be a time limit on the prosecution of cases of child abuse.
It will further ask
whether the prospect of compensation in child abuse cases ‘encourages
people to come forward with fabricated allegations’. Finally, and perhaps
most radically of all, it will address possible deficiencies in the law
itself, especially the erosion of ‘similar fact’ law. This used to make it difficult for the
Crown, when prosecuting one offence, to introduce evidence that defendants
had committed other similar offences. Its erosion has allowed the
courts to adopt the principle of ‘corroboration by volume’ and enables the
police to send innocent men to prison simply by collecting a large number
of allegations against them, all of which may be false.
Behind what promises to
be one of the most radical inquiries ever held by the Home Affairs
Committee there lies the astonishing spread of trawling operations over
the last ten years. Since the launch of the North Wales investigation in
1991 practically the entire country has, at a cost of hundreds of
millions of pounds, been covered by a trawling
The neighbouring South Wales Police force once had as many as sixty officers dedicated to Operation Goldfinch. More than 80 homes have by now been the subject of investigation. Detectives say they have identified some 600 suspects. Over a dozen have already been convicted and have received a total of more than 100 years imprisonment.
Last December, in the very same month that the Lord Chief Justice, Lord Woolf, publicly acknowledged that trawling operations and the lure of compensation may have led to ‘dozens’ of miscarriages of justice, yet another South Wales care worker, Tony Burke, was convicted and sentenced to 8½ years imprisonment. Facing allegations relating to events which supposedly took place thirty years ago, Burke was unable to defend himself because crucial documents had been destroyed and key witnesses were dead. Denied an application to the judge to have his trial halted as an abuse of process because of the delay, Burke eventually found himself listening in disbelief to the same judge as he effectively dismissed the evidence of his chief character witness, apparently on the grounds that he did not know him in 1971.
The witness in question was none other than John Jevons, formerly the Director of Social Services for Clwyd and, latterly, for Cardiff. Jevons was the very man who had called in the police in North Wales in 1991 and who subsequently called them in again in South Wales in order to investigate an alleged paedophile ring. Now he had come to court to testify to his belief that Tony Burke, a man who had become his friend, was innocent of the charges which he now faced. His testimony was ignored and Tony’s wife, social worker Claire Burke, is now left to look after their three young children on her own. Asked how she feels, she says that she is angry: ‘The more I heard the less I could believe that anyone could have come to the conclusion that they did, because there just wasn’t any evidence.’ It is little comfort to her that the judge was so impressed by her own evidence and so convinced that Tony Burke is now a happily married man with a normal heterosexual disposition, that he halved the sentence he might otherwise have given for offences which, in theory, can still lead to life imprisonment.
Meanwhile on Merseyside, Operation Care, whose officers attempted to secure the conviction of soccer manager David Jones (who was acquitted in December 2000 after his trial collapsed amidst mounting evidence of false allegations), has investigated more than 80 homes, securing some 30 convictions for physical or sexual assault. Some of the early convictions were clearly sound but, as Operation Care has developed, the number of false allegations appears to have risen alarmingly. The home where David Jones worked, St George’s, has become a particular target and the police have trawled allegations against no less than 90 of his former colleagues. Although there is no reliable evidence that any sexual abuse ever took place at St George’s, four of Jones’s former colleagues have already been convicted in relation to such offences. They continue to protest their innocence from their prison cells.
Operations ‘Flight’, ‘Goldfinch’ and ‘Care’ are but three of some eighty trawling investigations which are now in progress in England and Wales alone. Given the scale of what is happening it is perhaps not surprising that grass roots movements of care workers and their supporters have sprung up all over the country to fight for justice.
Friends of Derek Brushett (FoBD) is led by former French teacher Gail Saunders who explains that one of the group’s aims is to raise public awareness: ‘We’ve been horrified at how ignorant the public is about how these men are being convicted,’ she says. Soon after it was founded members of the group held a silent demonstration during which they walked fourteen times around the village green, once for every year of Derek Brushett’s prison sentence. The group has since successfully lobbied MPs and local politicians and intends to continue its campaign until Brushett’s conviction is overturned.
On Merseyside, an even larger organisation has come into being. Formed some three years ago when seven people met in the kitchen of former care worker Liz Mills, FACT (Falsely Accused Careworkers and Teachers) has grown into a national organisation with its own website and a concerted campaign to halt trawling operations. It is no coincidence that FACT has its roots in Formby, the prosperous commuter town where David Jones once worked at St George’s and where, according to one local resident quoted in the Formby Times, ‘Anyone who has worked in care is waiting for that knock on the door and living in fear.’
In a rare example of real democracy at work, the cause has been taken up by local Crosby MP Claire Curtis-Thomas. Initially uncertain of how to respond to the burgeoning movement of protest within her own constituency, she has now become a fierce and formidable critic of police trawling methods. With help from former Crosby MP, Baroness Shirley Williams, she has set up, and now chairs, an all party parliamentary group with more than fifty members to scrutinise sexual abuse investigations and to question the validity of the process whereby ‘individuals are convicted on verbal testimony alone without any corroborating evidence’.
Although the all party committee has a broader brief than the recently announced Home Affairs Committee inquiry, Claire Curtis-Thomas remains deeply concerned by police trawling. She has warned about the huge danger that, whether deliberately or not, ‘the police will plant suggestions, producing narratives that fit their case, rather than the truth. What happens is a kind of indirect collusion, which develops through witnesses’ unrecorded contact with members of the same police team. Often they’re very vulnerable, because they’re interviewed in prison. Some of them are being exploited in exactly the way suspects were 20 years ago, before suspect interrogations were taped.’
Prominent legal authorities such as Professor Colin Tapper have already warned that the erosion of the ‘similar fact’ principle has allowed prosecuting barristers to place before juries highly prejudicial evidence of the most dangerous and unreliable kind. Ultimately, if current injustices are to be halted, it is not simply the Home Affairs Committee, but the House of Lords itself which must address this issue.
It might seem that, with two parliamentary committees now addressing the problem, and with the Lord Chief Justice himself apparently sharing their misgivings about police trawling, it is time for FACT, FoDB and the twenty or so other grass-roots organisations which have grown up to combat false allegations, to wind down their operations. However, this is not the case. For these groups now face the most difficult task of all, as the case of Stephen Downing itself should remind us.
The greatest tragedy of the Downing case is that, while the causes of the particular form of injustice which led to his conviction were addressed and at least partly cured some twenty years ago, Stephen Downing himself remained in prison, forgotten and all but abandoned. The challenge which faces the campaigning groups now is not simply to prevent police trawling leading to any more miscarriages of justice. It is to ensure that those innocent care workers and teachers who have already been convicted are released sooner rather than later, and that the hundred or so innocent victims of police trawling who are already in prison do not become the Stephen Downings of tomorrow.
A shorter version of this article appeared in the
New Statesman, 28 January
© Richard Webster, 2002