Abuse, false accusations and a new website

Readers of these blogs will know that over the last year I have been concerned with the increase in the number of complaints that our  current arrangements for criminal justice are resulting in more people (usually men) being charged, convicted and imprisoned – with all the accompanying social stigma – for offences of sexual abuse they are adamant they did not commit. I have recently grouped what I have written about this under a new heading “False Accusations”.  It includes my review of n excellent new book on the topic.

Of course we should welcome the fact that the number of successful prosecutions has soared now that the police and prosecution authorities are learning how to handle these cases with greater sensitivity.  But we must always be vigilant about the risks created by false allegations, and to ensure that the criminal justice system is much better equipped, through training and procedural reform, and if necessary through law reform, to identify these cases and to ensure that this flow of unjust convictions is reversed. All too often I worry that over-enthusiastic campaigners forget Sir William Blackstone’s adage

It is better that ten guilty persons escape than that one innocent suffer“.

In recent months the report of Sir Richard Henriques into Metropolitan police practice in some of these cases, together with the blistering criticisms contained in the joint report of the Police and CPS Inspectorates about service failings in the disclosure of unused evidence to the defence in Crown Court cases, suggest that some of these worries are now being taken seriously, but there is a lot more to do. I still receive a steady flow of complaints from members of the public. Often there is little I can do but sympathise.

This is why I was so pleased when Jane wrote to me out of the blue the other day. She has had experience as a primary school teacher both in this country and in the United States (where she is now based), and she told me that a large part of her work used to involve looking after the welfare of her students. This led her to become involved with cases in which students were being abused (in one way or another) outside school hours, and she quickly realised just how serious this could be. She also learned, first as a teacher and then as a counsellor, how she could help children passing though such a difficult time.

Jane is clearly not one to walk by on the other side. She is now working as the Content Manager for “On the Wagon”,  a small substance abuse campaign site. They are determined to help victims of drug abuse, and to prevent new ones, which is why she believes it is important the site covers many different aspects of the topic, including the effects of child abuse and domestic violence.  It provides information in clear, well-written terms, on the warning signs to look out for, the different types of drug abuse, and the resources available for victims and the relatives of victims.

She was keen that I should draw attention to the work she is doing, and I am happy to do so. On the basis of her experience on each side of the Atlantic she volunteered to write a piece about the effect of false accusations. Here it is. It is well worth a read.

Domestic Violence – The Detrimental Effects of False Accusation

There has been a 31% increase in reporting domestic abuse related crimes in England and Wales between 2013-2015. Anyone making false allegations of rape or domestic abuse could be charged with two offences: perverting the course of justice and wasting police time. However, prosecution for these offences is extremely rare. There is lifelong anonymity for the accuser but those on the other side face naming and shaming on every social media outlet possible. Lives are destroyed and they are left with a stigma they may never wash away.

Accusers don’t need evidence. They often don’t even have to be physically present in court. It is literally one person’s word against another and there are unfortunately many stories of injustice.

The motivation behind falsely accusing someone is of no importance. The majority of domestic violence cases being reported come from low to mid-income households. There are many who cannot afford good defence lawyers, further hindering the little chance they have to prove their innocence.

Guilty until proven innocent

The Justice system was set up so everyone remains innocent until proven guilty. With domestic violence cases, though, it seems to be the other way around. Dealing with such life changing circumstances, having to constantly defend oneself and tolerate the abuse from outsiders takes a huge toll on one’s health.

As it is, 75-90% of doctor’s visits are stress-related.  Short and long-term effects of stress include anything from losing hair, developing high blood pressure and sleeplessness; but more seriously chronic stress can result in mental health issues, heart disease and even cancer. Not to mention the high possibility of becoming suicidal just out of sheer helplessness.

Lifelong suspicion

Being wrongly accused affects the life of anyone. However, the impact on those in the trusted care profession, such as teachers, is magnified by parents going frantic, social media feeds getting out of hand, and the prospect of having to appear on national television. Their livelihood disappears. They will never be able to work in their profession. Once someone is accused, even if the court decides in their favour, the suspicion will linger on forever.

Finding a support network

There are many support groups helping those wrongly accused to find counselling and advice. Various campaigns are also going on to try and influence a change in the current legislation and have more protection for the falsely accused as well as to improve the lives of those already suffering. Campaigners believe there should be lifelong anonymity unless proven guilty.

The integrity of the police and the Crown Prosecution Service have also been questioned before. Some people wonder whether they pursue certain convictions only to enhance their target rates.

This is not to say that true victims of domestic violence and child abuse should think twice before reporting the incident to the police. No. These are serious offences and those committing such acts need to be brought to justice. It is, however, important to remember that such allegations are not to be taken lightly and false accusation is a punishable crime in itself.

 

So much of this provides an echo to the opening statement on the website of FACT, the excellent campaigning organisation which represents the interests of “Falsely Accused Carers and Teachers” over here:

 

If you have just been wrongfully accused read ‘I have been falsely accused, what happens next?’ and phone our HELPLINE on 0843 289 2016

FACT abhors abuse of children and adults whether sexual, physical or emotional. However not all allegations of abuse are true, wrongful allegations may be made for a variety of reasons and are not necessarily made maliciously. Wrongful allegations have a devastating effect on the wrongfully accused and their families. The accused can lose their reputations, their careers, their health and even their freedom. When an allegation of child abuse is made there is always a victim, either the complainant or the accused.

‘I have never visited the GP so many times in my life. I went into a state of shock for some weeks after my arrest… I suffered from depression, suicidal thoughts, self-harming, fear, immense anger against the police and my accuser and anger at the lack of support from anyone in authority … I suffer stress-related physical pain and shaking. Nightmares. I was very close to suicide on at least three occasions.’
From The Impact of Being Wrongly Accused of Abuse in Occupations of Trust: Victims’ Voices

 

 

People like this must be confident that we have a criminal justice system which will protect them from being convicted of offences they never committed.  Many of them do not have that confidence today.

 

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The last Canadian case in the Privy Council

Laycraft

 

James Herbert (Herb) Laycraft, a former Chief Justice of the Alberta Court of Appeal, died in August 2015 at the age of 91. The Calgary Herald, announcing his death, wrote:

It’s hard to fathom how different the legal profession might be today for Albertans and the rest of Canadians, for that matter, if not for the gigantic footprints left behind by James Herbert (Herb) Laycraft over a momentous four-decade career as a litigator and judge.

Nearly a year later the current holder of that , Catherine Fraser (who greeted me on my only visit to her province in 2001 with the gift of a bowl of fruit) unveiled this bust at the Cavalry Courts Centre (which I did not visit: I remember that Calgary was full of multi-coloured sculpted cows when I was there).

She said that Chief Justice Laycraft was

“a mixture of the practitioner, the scholar, the reformer, the mentor and the administrator. [He] was instrumental in helping shape the post-Charter world in which we now live. An elegant and compelling writer, Herb wrote a number of the leading judgments of his era. He combined a true talent for precise analytical reasoning with unfailing courtesy and fairness. His respect and consideration for others were exhibited in his sensitive and balanced approach to the law.”

Jim Laycraft told the Calgary Herald that in 1959 his father had been lucky enough to go on the last Canadian case that went to the Privy Council in Britain, in a case that had dragged on for a decade after changes to the Privy Council in 1949.

This blog contains his father’s memory of that case, as recounted to my indefatigable Canadian friend John de P Wright – and by him to me.

The name of the case was Ponoka-Calmar Oils ltd v Earl F. Wakefield Co. The point at issue was whether the appellants’ mechanics’ lien (which came into existence after they had been unpaid for some oil-drilling work they had done) followed the proceeds of sale after a Receiver had sold the oil and gas which were subject to the lien and paid the proceeds of sale into court to await further order. The Privy Council upheld the Supreme Court of Canada in giving the answer “yes” to this question.

At that time Herb Laycraft was 35. He was one of five counsel who signed the Respondents’ case. Another was Percy Grieve QC, MP, the father of Dominic Grieve QC MP (who was our Attorney-General until 2014). Godfrey LeQuesne, who became a giant of Privy Council practice – I remember him on the other side in the first case in which I appeared before the Privy Council[1]) – was junior counsel for the appellants.

Herb had three memories of this case:

 “One point of interest, is the process of renting a wig in London.  I was dispatched by our London agents to see a most impressive gentleman in a wig shop near Gray’s Inn  He took a wooden device with many spokes going inside a square frame which he put around my head.  Then he pushed in the spokes until they all touched my head.in a dozen or so places.  I present some challenge in that respect.  But he showed no sign of despondency as he placed the spokes against the various planes, points, knobs and angles of my head.  He went away and a few moments later arrived with a wig with the strings inside all adjusted and dropped it on my head; it was a perfect fit.  Fortunately I didn’t offer money; I gave him my card with the London Agent’s name written on the back.  Gentlemen don’t discuss money.

When everyone had his wig, Bill Morrow produced a photographer who was singularly lacking in talent.  The photograph he took now hangs in the Court House at Calgary.  We all look like we had had bad clams for lunch.”

 

“On the opening day it was necessary to arrive early for rehearsal on how to enter the room to appear before the Judicial Committee.  That was a very formal process and the Registrar was plainly dubious that we had the wit to master it.  The process started with all the Judicial Committee seated at their table in the room and all counsel outside in the hall.  You then entered one at a time, in strict order of seniority.  You took ten steps into the room to a point where a brass plate was inset into the floor.  You stopped and bowed.  Then you took another ten steps to a second brass plate, bowed again and then turned left, if an appellant, and right, if a respondent, and went to your seat.

The argument commenced with Viscount Simonds pointing out that they did not have a mechanic’s lien statute in England and so ‘let us read through this one’.  Bill Morrow commenced to highlight it but was quickly made aware that they meant what they said.  Read it through clause by clause.  He spent most of the first day doing just that.  At the conclusion, Lord Denning remarked: ‘a most enlightened statute’.

 

I have one other bit of trivia.  A prerogative of counsel appearing before the Privy Council was to have lunch in the House of Lords dining room if special arrangements were made.  Our London agents arranged that for us but, of course, a certain protocol had to be observed.  On the appointed day, we left the Privy Council Building (No. 14, Downing Street) and proceeded fully robed and wearing wigs in single file across 6 or 8 lanes of traffic to the House of Lords across the street.  The traffic constable stopped all traffic for our stately march while tourist cameras whirred and clicked.  We arrived at the House of Lords where we were served a meal that has my nomination for the title

“Worst since the Invention of Cooking Over Fire”.

Again, of course, money was not discussed but I have often wondered what our London agents paid for that meal.

[1] Guiana Industrial & Commercial Investments Ltd v Inland Revenue Commissioners [No 2) [1971] AC 841. I appeared there as counsel on only one other occasion before I sat there occasionally as a judge following my retirement from the Court of Appeal. That was an appeal as of right from the Court of Appeal in Fiji in a fatal accidents case which arose after a car had collided with a steam engine puffing its way through a sugar cane plantation. The only issue was apportionment of liability. Once again, I was on the losing side. See  Santlal v South Pacific Sugar Mills Ltd (Judgment No 11 of 1974).

The Bach Report: (2) My article for the Gazette

Procrustes

 

Once upon a time the traveller from Athens to Eleusis was at risk of capture by a B & B proprietor with marked anti-social tendencies. If you were too long for his bed, he would cut you down to size. If too short, he would stretch you out on his do-it-yourself home body rack.

This is how I started a piece about the Bach Report yesterday which the Law Society Guardian Gazette was good enough to publish today under the heading:

Justice is too precious for political football

My pleas continue to be:

  • No kneejerk reactions, please
  • Justice is too precious to be a party political football
  • Read,mark, learn & inwardly digest, before you form an opinion
  • And this includes the all-important Appendices 5 and 7.

 

Here is the rest of the article:

Over the last 15 years I was often reminded of Procrustes as I watched successive Governments try to control legal aid expenditure. The rack was never needed. The axe – or the saw – was in constant use, but never with any sensible over-arching plan. The Labour Government nibbled away at the edges as 30 consultation papers fluttered around. The Coalition Government preferred old-fashioned butchery. The 25% cuts it inflicted at one fell swoop were dictated by a political priority that left justice among the also rans. I spent the eighth decade of my life comforting the walking wounded.

 

This is why I was pleased to accept Lord Bach’s invitation to join his commission on access to justice. Although the Labour Party was sponsoring this enterprise, he said that he wanted us to go back to first principles, to study the problems in depth, and to come up with solutions that might appeal across the political spectrum. Justice was too precious to be the plaything of the party game.

 

Now, two years later, what have we achieved? We have assembled – and will be publishing – a detailed body of evidence that will leave those who are interested in these things drooling with delight for years to come. The task of organising this material was largely left to me. The analysis which forms an appendix to our report provides the factual underpinnings for the stark messages the report contains. Another appendix tells the story of the first 70 years of legal aid.

 

The report itself falls into two parts, one visionary, the other down to earth. In the visionary bit we propose that everyone subject to our laws should have a statutory right to justice, and we explain what this means. And with lord chancellors and legal aid ministers following each other to the exit door in rapid succession – there have been five of each since 2012 – we propose a new justice commission, probably headed by a very senior judge or ex-judge, to be the future guardians of the people’s new statutory right.

 

In Part Two we identify those areas, particularly in the field of public legal education and early legal help, which call for action at an early date. Far more use should be made of modern technology, but not at the expense of face to face advice when this is needed. We remind ourselves that in today’s prices the government is now underspending £0.5 billion a year against their budget when the cuts were made. And we recall that every reputable cost-benefit analysis we have ever seen shows that money spent on early legal help much more than pays its way in terms of future economic benefits for the exchequer. If you know your rights, you are less likely to succumb to ill-health, problems at work, or relationship breakdown, with all the costs they involve. Ideally, a legal aid lawyer should be part of the team on call at every general practitioner’s clinic.

 

In family law the cuts were greatest. Judges despair of achieving justice when the parties so often lack sensible professional help. A small amount of early legal help at the time of relationship breakdown is vital: it will lead to many more mediated solutions, as opposed to arms’ length battles between litigants in person. We also suggest six ways of improving things: legal representation when the primary care of a child is in dispute, or when there is an application to remove a child from the jurisdiction, for instance. We also envisage the new Commission drawing up a flexible code, which it can alter as time goes on without having to wait endlessly for primary legislation to alter it.

 

But we cannot think of everything, and while we expose the inadequacy of the exceptional case funding scheme, we show how the new right of access to justice may lead to a judge certifying that a grant of legal aid is necessary in the interests of justice. And if this certificate does not bear fruit, judicial review may lie against the new, independent body that will be running the legal aid scheme at arm’s length from government.

 

There will be plenty to discuss. This is an outline design, not a blueprint.    Everyone recognises that there were faults in the earlier regimes, and some of these faults unscrupulous lawyers were not slow to exploit. In every opinion poll, however, the consumer votes for justice, and our proposals put the interests of the consumer first.