Two months ago I was sent a complimentary copy of a new book, Wrongful Allegations of Sexual and Child Abuse.[1]  I have now read it.  It is a very important academic contribution to an increasingly worrying contemporary debate.

Nobody doubts that in recent years many people – predominantly men – have been rightly convicted of serious offences of sexual abuse, often going back many years.  But there are increasing indications that the relaxations of relevant rules of criminal evidence, coupled with a culture which has demanded that those who make these allegations should be presumed to be telling the truth, has led to an increasing number of unjust allegations being pursued through the courts, from time to time – and nobody can say how often – culminating in the conviction of innocent defendants of crimes they did not commit.

In this book Dr Ros Burnett, of Oxford University’s Centre for Criminology, has brought together different strands of scholarly research – and other well-informed evidence – which, as Professor Andrew Ashworth[2] says in his Foreword, demonstrate

“the wide range of issues that need urgent resolution”.

The more so now, following Sir Richard Henriques’ damning report[3] into the ways in which the Metropolitan Police carried out their inquiries in cases of this kind in recent years.  As Professor Ashworth says,

“This book should be essential reading for all involved.”

Relaxing the laws of evidence

When I was taught the law of criminal evidence more than 50 years ago, I learned that the prosecution had stiff hurdles to cross if they wanted to introduce into a criminal trial evidence about something the accused was said to have done on a different occasion.

Such “similar fact” evidence was only admissible if it could be used to determine whether the acts which constituted the criminal charge were done deliberately, or to rebut a defence that could have been available to the accused.  The example we all learned about was the “Brides in the Bath” case in which three newly married ladies had met their fate in such an unusual way that it could not be attributed readily to coincidence.[4]

In the leading case on this topic a husband and wife were accused of murdering a baby they had fostered, and evidence was tendered of a number of other murders they had apparently committed.  The admissibility of the similar fact evidence in that case turned on the improbability of there being any innocent explanation for the presence of the bodies of 12 other fostered infants buried in the gardens of premises they had previously occupied.

In 1975 the House of Lords reformulated the governing rule by saying that in order to be admissible, similar facts (which might take the form of allegations rather than undisputed facts) must bear a striking similarity to the facts of the case currently before the court.[5] This test was expressed in different ways:

There must be “a strong degree of probative force” based on the “striking similarity” of the material facts.

It must be “evidence which would point so strongly to [the guilt of the accused] that only an ultra-cautious jury, if they accepted it as true, would acquit in face of it.”

The similarity would have to be so unique or striking that common sense made it inexplicable on the basis of coincidence.

At the same time some of the law lords drew attention to the grave dangers that might follow from this change in the law. One of them observed that that there was a marked difference between cases which involved allegations and cases which involved counts of murder and undisputed evidence of previous deaths. In the original cases there was

“no question of any witness for the prosecution telling lies”.

Where the similar fact evidence was disputed and a series of allegations were all denied by the accused,

“in such circumstances the first question which arises is obviously whether his accusers may not have put their heads together to concoct false evidence and if there is any real chance of this having occurred the similar fact evidence must be excluded.”

Another law lord said that the courts should be on their guard against the possibility that a series of false allegations might arise either from collusion or from a process of contamination.  If there was any real possibility of this having occurred there should be no question of the similar fact evidence being admitted.  Instead, the judge should order separate trials.  In addition, when deciding the question of admissibility, the judge should weigh the probative value of the evidence against its prejudicial effect.  If the similar fact evidence was so weak, so unreliable or so contaminated that its probative value was outweighed by its capacity to prejudice a jury, then it must be excluded.

In general, English common law made hearsay evidence inadmissible in a criminal trial. One exception to this rule was “evidence of recent complaint”, whereby in a sexual case the court could hear the terms in which the alleged victim originally complained, provided he or she did so spontaneously and at the first reasonable opportunity.  This evidence was admissible in order to rebut a defence that the complainant’s case had been recently fabricated and was not a true bill. It supported his/her credibility, but it could not stand as evidence of the absence of consent in its own right.

A third longstanding rule of the law of evidence was that before an accused person could be convicted of a sexual offence in a case where there was no evidence to support the complainant’s story, the judge had to warn the jury that it would be dangerous to convict, but that they would be at liberty to do so if they were sure that the offence had been committed, notwithstanding the absence of any corroboration.

In the last thirty years most of these safeguards for the accused have either been whittled down or totally dispensed with.  Blackstone told us 250 years ago that the law holds that it is better that ten guilty persons escape, than that one innocent suffers.  Today there has been a countervailing concern that too few sexual assault charges culminated in a conviction, and a belief that juries can be trusted to arrive at the correct result without being molly-coddled by restrictive rules of evidence that may prevent them from arriving at the truth.  The inevitable result has been that a growing number of defendants have been convicted of such crimes when they, and their families, and all who know them, loudly protest their innocence.

At the start of the new book Dr Burnett writes:

“For an innocent person who has led a law-abiding and decent life, it is hard to imagine a ‘crueller tyranny’ than being found guilty of child sexual abuse and sentenced to perhaps decades in prison, with lifelong registration as a sex offender and restricted access to children in his or her family – and having ‘every good that [they] put into the world turned around for bad’.”

The contemporary problem

A few months ago I published on my blogsite[6] a description of one such case which took the form of an open letter to the former Prime Minister.  It had found its way into the pages of Inside Time, the journal for prisoners published under the auspices of the New Bridge Foundation.  This was followed by a large group of similar stories that appeared in the next edition, and ever since then I have been receiving similar stories, of blighted lives and of total despair that the justice system has let their families down[7].  I have been asked to review the trial transcripts and other case papers in two of these cases, and it has been clear to me that if different arguments had been used at the trial the results might well have been very different – but whether it is now too late to put things right is a different matter.

At the heart of the problem is the dilemma that when faced with apparently credible evidence of incidents that happened long ago, when there is no requirement for corroborative evidence, and when evidence of similar allegations may be adduced without the safeguards that concerned the House of Lords so much 40 years ago, it is not easy for a jury to doubt the veracity of the complainant’s evidence when they have had no previous experience of a world in which false allegations are not at all unknown.  The value of this new book is that it illuminates, from a number of different perspectives – and from different international angles – the development of this phenomenon in recent years. It confines itself to cases where the allegation was dismissed at a trial, or where it was totally clear that the incident complained of never happened.  Where there is a subsisting conviction, however hotly disputed, the case falls outside the scope of the book.

The new book: Wrongful Allegations of Sexual and Child Abuse

I found the book particularly helpful not only in casting light on well-known cases that demonstrate clearly that there is something here to worry about, but also in explaining why some complainants persist with stories that are manifestly untrue (whether or not they know that they are untrue).

An early chapter gives six first-hand accounts of the experiences of people who were falsely accused. Dr Burnett comments that among the recurring themes in these accounts, two that stand out are

“the abiding sense of injustice and the inability of the accused to get ‘closure’ … even if cleared or never charged.”

The dreadful early story of the McMartin Preschool case[8] sets the scene.  There follows a chapter on the dangers of crusading by moral entrepreneurs who argue that society has a duty to believe the victim[9].  The plight of Lord McAlpine, the end of whose life was ruined by the publicity given to a single unsubstantiated allegation of abuse (which was then unthinkingly recycled), catches the eye here.  And then there is a worrying chapter devoted to a panic about institutional abuse in residential child case establishments,[10] whose author suggests that the real atrocity in the cases he describes is the over-zealous persecution of residential care workers.  One of those who have written to me described a situation similar to those set out in this chapter.

From these early scene-setting pieces there follow a number of different descriptions of the forces that may be at work.  “Why would anyone make a false accusation?” is the challenging sub-title to Part III of the book.  Felicity Goodyear-Smith’s essay on “Why and How False Allegations of Abuse occur:  An Overview” should be compulsory reading in this context.

Revenge or retribution; the need for sympathy or attention; a false story which provides a useful alibi; the desire for financial gain. These are all possible reasons for a complainant sticking to a false story, but in courts judges do not run through these possibilities in the same way as they give their juries standard directions on possible reasons why complaints were first made so long after the event, or why it may be understandable that a lot of the details in the complainant’s account have become confused over the years without affecting his or her basic trustworthiness.

In their chapter on “Beliefs about memory, childhood abuse and hypnosis among clinicians, legal professionals and the general public” the English psychologists Christopher French and James Ost helpfully list 11 findings that are generally accepted by memory experts and supported by strong empirical evidence. In the present context, the last five of these findings are particularly compelling:

(7) Entirely false memories of events that never took place at all can arise spontaneously or as a result of the actions of third parties (such as inappropriate interviewing techniques, deliberate experimental manipulations etc.);

(8) Such false memories can be as detailed and subjectively compelling as memories of real events;

(9) Memory is a constructive process that does not work like a video camera, accurately recording all details of experiences;

(10) Neither the confidence of witnesses nor the amount of detail in eyewitness reports provide reliable guides to the veracity of testimony; and

(11) It is not possible to recall accurate and detailed memories from the first years of life (a phenomenon known as ‘childhood, or infantile, amnesia’).

Given the growing concern about wrongful convictions that turn on the evidence of a single witness about events said to have happened a very long time ago, it is unsurprising that the chapter ends with a clarion call to legal professionals to understand the very latest insights from memory research and to receive training about them.

David Rose’s description of his involvement as a journalist in a number of cases during the last 15 years that cast light on the risks created by false allegations of sexual abuse[11] has now been supplemented by the robust terms in which Sir Richard Henriques swept aside a suggestion that only 0.1% of all complaints may be false. He said[12]:

“That assessment bears no relation to my own experience over a lifetime in the courts nor to my assessment of several complaints during this review.   In fact nobody knows, nor can ever know, the extent of false complaints.”

Later in his report he described the way in which a different study had reported that a focus group of first response officers believed that there was a high level of false allegations seemingly made by individuals for their own ends:

“One focus group accepted that people sometimes make up something to explain things.  They identified an important category of complainant, distinct from the deliberately untruthful, namely troubled people often have something that happened in life, even if it is not what they have reported. It could be a flash back or something that happened years ago.”

Part IV of the book is entitled “Interrogation, Prosecution, Conviction, Appeal: How could the justice system get it so wrong”. Although two of the four contributors come from US academies, they all go to the heart of the problem which should worry us so much today.

Professor Michael Zander QC, a member of the last Royal Commission on Criminal Justice, revisits[13] the great reluctance of the Court of Appeal’s Criminal Division to set aside a jury verdict in cases in which, in Lord Bingham’s words, the appellate judges entertain real doubts whether the appellant was truly guilty of the offence.  He rightly attributes this reluctance to the realistic fear that if it were abandoned there would be a large increase in the workload of a court which is already seriously overburdened.  But if the evidence of the number of wrongful convictions grows and grows, this nettle has got to be grasped sooner or later.

Part V is called “Finding Ways Forward: What’s To be Done?”  Steve Herman’s chapter[14] starts with this blunt statement of fact:

“Criminal prosecutions based on false allegations of child sexual abuse [CSA] have sent innocent people to prison for many years, resulted in the suicide of wrongly accused adults and caused irreparable harm to non-abused children.”

He says the time has come for legal decision-makers and policymakers to follow the lead of the US and Oregon Supreme Courts and the Californian State Legislature to raise the evidentiary bars for the substantiation of CSA allegations (such as the requirement for corroborative evidence) in prosecutions based on those allegations. He writes:

“If the raising of evidentiary thresholds is combined with reforms designed to refocus CSA investigations on the collection and elicitation of corroboration, and away from a focus on children’s believability, then it might be possible to significantly reduce false positives without any corresponding increase in false negatives.”

Nobody could read this book, which ends with Dr Burnett’s valuable summary[15] of some of the main conclusions her authors have reached, without being extremely uneasy about the present condition of our criminal law as a quality assured vehicle for ensuring that so much public and political discussion of the evils of sexual abuse has not led, paradoxically, to the creation of a new category of victims.   And to be convicted of a serious sexual offence – or series of offences – which you did not commit, and then sentenced to a substantial term of imprisonment as a sexual offender (with all the other indignities that now accompany that status), is not a fate most of us would wish to be visited on anyone.

 

[1] Wrongful Allegations of Sexual and Child Abuse, edited by Ros Burnett, Oxford University Press (2016).

[2] Professor Andrew Ashworth CBE, QC (Hon), Emeritus Vinerian Professor of Law at the University of Oxford.

[3] In his Independent Review of the Metropolitan Police Service’s handling of non-recent sexual offences (31^st October 2016).

[4] R v Smith (George Joseph) (1915) 11 Cr App R 229. See also Makin -v- Attorney-General for New South Wales PC [1894] AC 57.

[5] R v Boardman [1975] AC 421.

[6] https://sirhenrybrooke.me/2016/07/04/stories-of-injustice-4-laspo-and-the-cuts/

[7] https://sirhenrybrooke.me/2016/08/21/stories-of-injustice-19/ . See also https://sirhenrybrooke.me/2016/08/23/some-comments-on-my-last-blog-stories-of-injustice-no-19/ and https://sirhenrybrooke.me/2016/08/29/further-comments-on-stories-of-injustice-no-19/

[8] In which more than 350 children were identified as victims of satanic ritual abuse at a popular family-owned preschool establishment in southern California, only for the prosecution to fail to achieve the conviction of any of the seven staff members. See Chapter 3 “Demons, Devils and Ritual Abuse: Interdisciplinary Perspectives”, by Mary de Young, which contains other stories of comparable moral panic.

[9] Chapter 4: Moral Crusades, Child Protection, celebrities and the duty to believe, by Frank Fureli.

[10] Chapter 5: Adults’ retrospective narratives of abuse in residential child care, by Mark Smith.

[11] Chapter 12: To Catch a Sex Offender: Police, Trawls, and Personal Injury Solicitors, by David Rose.

[12] See note 3 above.

[13] In Chapter 16: When Juries Find Innocent People Guilty: strengths and Limitations of the Appellate System in England and Wales, by Michael Zander QC.

[14] Chapter 17: Reducing Harm from False Allegations of Child Sexual Abuse: The Importance of Corroboration, by Steve Herman.

[15] In Chapter 21: Reducing the Incidence and Harms of Wrongful Allegations of Abuse, by Ros Burnett.