For the fourth of my stories of injustice I am not drawing on a case study submitted to the Bach Commission but on an Open Letter to the Prime Minister which I was sent yeterday by the wife of a man convicted recently of historic sex abuse.
Although she gave her first name to me, I am anonymising the names in accordance with my usual practice.
The story of a criminal trial for historic sex abuse
Sharon and Nick are happily married. Nick was married before and his son Jake has been accepted as part of his new family.
The police contacted Nick out of the blue over allegations of sexual abuse that he was said to have committed eleven years ago. They then submitted him to questioning which led to him being charged with one or more serious offences. His family are upset because the police did not at the same time include the accuser’s sister or Sharon or Jake in their inquiries, since they believe that such interviews would have affected the decision to prosecute. The police have defended their actions by saying that they were guided in this respect by the Crown Prosecution Service who did not require them to interview these witnesses.
Nick accepted the “on call” solicitor whom the police recommended him to use. Because he qualified for legal aid, albeit subject to a substantial contribution, the solicitor instructed counsel to defend him at the Crown Court. The family had no confidence in either the solicitor and the barrister, and Sharon complains that neither of them possessed the specialised experience required for such a case. She says that she now knows that a legal aid barrister “is only required to do the bare minimum”, and that the solicitor “did not bother” to even attend the Crown Court once.
She also says that there was no corroborative evidence. Her husband’s accuser gave her evidence to the court through a video interview in which, Sharon claims, a police officer spoke the words and the witness just nodded her head. The witness was in some distress and on medication. Sharon complains that there was no qualified doctor present at the interview. A transcript of the video evidence was served on the defence before the trial, but no application seems to have been made for a copy of the video itself (or for any other pr-trial disclosure). Since the trial the police have refused to release the video in the absence of an order from a judge of the Court of Appeal, but Nick has been advised that an appeal would not succeed in the absence of new evidence, so that that route is not open.
In addition, a letter from the accuser’s sister was read to the court which, according to Sharon, had not been served on the defence beforehand. She also complains that social reports were given to their barrister on the morning of the trial which they had had no opportunity to investigate or challenge.
Nick was convicted and is now serving a prison sentence. His barrister told him “The system let you down.” That was the last contact he had with him.
Sharon has written an open letter to the Prime Minister, which has been republished in “Inside Time”, the magazine published under the auspices of the New Bridge Foundation which has a wide circulation among prisoners. She writes:
“Prior to this horrific incident, we brought up our family to be kind, caring, human beings and to have morals and to trust in the police and justice system. We were so wrong. The first time me and my family ever needed the police to protect us, they completely destroyed us, without a second thought or care for the consequences…
My innocent husband is now sitting in a cell, convicted of a crime that did not happen. Your justice system has destroyed our family. It has let us all down. We trusted your system. We brought our family up to believe in the police and the justice system. How wrong were we? Only the wealthy, those that can afford the best defence lawyers and barristers have a chance of being found innocent in these cases. Defendants have no chance with inexperienced legal aid lawyers and barristers…
In these historical sex abuse cases the burden of proof has for some reason been transferred to the defendant from the prosecutor. The accused is called a victim and the defendant is now presumed guilty as the accuser must be believed. Surely these trials are unfair trials as the European Convention on Human Rights states that everyone is entitled to a fair trial. The Government makes the laws, the judiciary follow their laws, which is why I am asking you for help.”
I do not know the extent to which Sharon’s complaints accurately mirrored what happened at the trial or whether her husband was, indeed, wrongly convicted. What is important is that the family felt that they had been let down badly by the criminal justice system – that they had been provided with defence lawyers on the cheap when the seriousness of the case warranted the services of lawyers with much greater experience, and that in this respect they had suffered injustice.
Sharon’s story contains features which find echoes in the evidence which the Bach Commission has received from experienced solicitors. The story also illustrates the risks inherent in some of the changes in the laws of criminal evidence and procedure in the years since I stopped practising at the Bar.
Here are some snippets of the evidence the Bach Commission has received on issues that are relevant to Sharon’s story:
“The demise of the role of the criminal solicitor in recent years is a matter of regret. The criminal justice system only works effectively and indeed efficiently, when what amounts to a two-person job is indeed undertaken by two people.”
“Having removed the payment for solicitors to attend at court and, to all intents and purposes, any investigative work by a solicitor to prepare a defence for trial whilst maintaining an economically viable practice, there is fast approaching limit to what any of us can do when forced to work solo and with caseloads that are unmanageable most of the time.”
“On the prosecution side far too many cases are being prepared for trial by paralegals with next to no court experience, leading to serious disclosure issues amongst other difficulties, which are surfacing in the appeal courts as miscarriages of justice.”
“The criminal legal aid system should reward efficiency and early preparation, rather than paying lip-service to the criminal procedure rules.”
“It is difficult to get a disk or a tape of an interview. If there are going to be further cuts in representation, whether a two-tier system is introduced or not, larger firms will be doing this work. They will be processing cases, and you don’t get paid for listening to tapes. This is only done by firms who are doing their job properly, but there is a danger that such firms will disappear.”
For the first 30 years during which I was concerned with criminal trials, first as defence counsel and then as a part-time or full-time judge, nobody could be convicted of a sexual offence unless the judge had given the jury a direction that it was dangerous for them to convict the defendant when there was no corroboration of the complainant’s evidence. This requirement of the common law was abolished in 1994, following a recommendation by the Law Commission, which considered that it would be safe to abolish the rule in the context of a trial in which the jury would both see and hear the witnesses and the judge would give whatever directions he or she thought appropriate given the absence of supporting evidence. The Commission did not contemplate a trial in which the sole prosecution witness did not attend court and gave her evidence-in-chief through a pre-recorded video interview.
When I was at the forefront of the movement to provide the courts with the benefits of modern technology, there were plenty of worries to the effect that evidence given over a videolink did not have the same immediacy as evidence given in court. I remember one experienced American trial judge once expressing concern that juries would no longer have the benefit of watching the face-to–face confrontation between accuser and defendant in court.
For all sorts of good reasons this requirement has been abolished where vulnerable witnesses are concerned, but when one combines the abolition of the need for oral evidence in court with the abolition of the corroboration rule and the inadequacy of the funding now available to legal aid defence lawyers (and, indeed, to the police and the prosecution service as well), one will have created a veritable smorgasbord of serious risks to justice which even the most herculean efforts by the trial judge may find difficult to mitigate.
Again, I ask the question: Is this justice?
 After the case was over Sharon repaid all the legal aid costs after being threatened that a charge would be placed on her property if she did not make immediate payment.