Wednesday, 6 February 2013

Prejudging Issues

"At the conclusion of its deliberations, a Committee of Inquiry reports back to the States Assembly. It does not, however, make any finding of guilt or innocence in a criminal sense nor does it determine a legal right."

"Neither the States nor a Committee of Inquiry can give directions to the effect that criminal proceedings should be brought in any particular case or give any direction relating to the investigative or prosecutorial process."

I've been looking at the Attorney-General's comments on the terms of reference for the Committee of Inquiry into Historical Child Abuse, and it states these comments are " to provide legal advice to members considering the Terms of Reference of the Committee of Inquiry into historical child abuse."

One of the more obvious questions which springs to mind is this: why do these comments come dated 31 January 2013, so late in the day. The Verita report on the terms of reference has already been given to the Council of Ministers some time ago, the Williamson report on the terms has also been given. These have been out in the public domain for some time as well. You would have thought that if there was going to be a legal comment, it would requested and been given earlier, and yet, here it is coming almost at the same time as the proposition itself.

If there had been legal matters arising from the terms of reference, why on earth wait until now to bring them to the States attention? This last minute introduction of extra material appertaining to States propositions was almost commonplace under the Council of Ministers of Chief Minister Terry Le Sueur, but I had hoped that was a failing of a previous regime. Sadly, it appears not.

Probably one of the most important sections concerns "Paragraph 6" which is to do with how evidence is heard. Clearly there should be an opportunity to respond to claims of abuse if they are mistaken or malicious, but the Attorney General sees this as descending into a kind of adversarial and drawn out action:

Comments on Paragraph 6 - Evidence of Abuse

"Paragraph 6 of the draft Terms of Reference anticipates that the Committee of Inquiry will hear evidence from witnesses who suffered abuse or believe that they suffered abuse as well as from staff who worked in the services together with other relevant witnesses. It is left to the Committee of Inquiry as to whether or not such evidence will be heard in public or in private. The Committee of Inquiry has a discretion in the interests of justice or in the public interest, to hear matters in private, although the presumption is that evidence before a Committee of Inquiry will be held and heard in public."

"The Terms of Reference presuppose that evidence will be given not only by people who have suffered abuse but by people who 'believe that they have suffered abuse'. It must accordingly be anticipated that not all allegations heard before the Committee of Inquiry will be well-founded, and there is nothing to prevent witnesses making ill-founded allegations which are mistaken or simply wrong. It seems equally likely that persons who make allegations that have suffered abuse will wish to name their alleged abusers. One must therefore anticipate that anyone so accused will wish to have the opportunity to challenge the accusations made against them and to defend themselves."

"If the Committee of Inquiry is to hear evidence at length, then it seems likely that the evidence-hearing stage will be preceded by an evidence-gathering stage, a disclosure stage and, possibly, a statement-taking stage, so that the lawyers advising the Inquiry can prepare for any hearings and persons will know if they are to be accused and accordingly prepare their defence. It may be that the statements, either in full or redacted, made to the police by complainants can be made available to the Inquiry if the complainants consent. It is difficult to anticipate how long that process of evidence gathering will take."

"It is accordingly not difficult to anticipate that paragraph 6 of the draft Terms of Reference might potentially result in an extended process with significant evidence being given and challenged. It would be difficult to anticipate a situation in which a robust challenge would properly be prevented by the Committee of Inquiry and accordingly the process of taking evidence may be confrontational and challenging for all concerned. Further, it may be anticipated that such a process will be very costly."

"An alternative method would be, should the Committee of Inquiry believe it appropriate to do so, for that evidence to be given in private with the Committee of Inquiry then determining the nature of the report that it should make back to the States Assembly. This may make it possible for the Committee of Inquiry to place more strictures about the way evidence may be given in private and the extent to which it may be challenged, which might obviate the need for the potentially confrontational approach mentioned in the preceding paragraphs."

"It may accordingly be appropriate that the Chairman of the Inquiry should be consulted at length on the correct process for dealing with paragraph 6 before any final decisions are made."

What this means in effect is that the Committee of Inquiry should collect evidence largely in private where any individuals who are still living may be named, and only more general findings be given back to the States. Effectively, it looks as if the Committee of Inquiry is being muzzled from the outset, rather than letting the Committee decide for itself. The reason for this becomes apparent further on.

And this brings us to the other comments:

Comments on Paragraph 10 - Prosecution Process and Decisions

As presently drafted, paragraph 10 seeks to establish the process by which prosecution decisions were taken arising out of the historical child abuse enquiry and to establish whether or not that process -
- enabled those responsible for deciding on which cases to prosecute to take a consistent and impartial approach;
- was free from any political influence or interference at any level.

and the comment which follows on this is as follows:

"It is legitimate to enquire into a process surrounding the taking of a prosecution decision, it would be wrong as a matter of principle to subject individual prosecution decisions to public scrutiny either by a political assembly or by a body set up by such an assembly. There is a fundamental principle that the prosecution process should be free from any political influence or interference in any way (see the answer of the Attorney General given in the States Assembly on 6th July 2010 attached as Appendix 2). In the light of the public statements concerning process attached as Appendix 1, it may be difficult to see how this question will be addressed practically by any Committee of Inquiry."

Now it is clear that there is a grey area which the Attorney General is not considering here or further down, when he considers the "evidential test" whether a prosecution should go ahead. There are three classes of people who may come before the Inquiry:

- Those who have been abused, and whose abuse is a matter of public record, as for example in the case of a successful prosecution
- Those who "believe that they have suffered abuse" where they may be mistaken or simply wrong (as in Comments on Paragraph 6)
- Those who suffered abuse, but where the case for prosecution has been turned down on legal grounds for failing the "evidential test"

This third class of people seems to have been forgotten in the comments on Paragraph 6, and yet William Bailhache, when Attorney-General, noted in reply to a question that this class of victims did exist. Taking about the "evidential test", he said that:

"The expression 'more likely than not' means that the test is applied on the balance of probability. These rules apply to all prosecutions whether for historic child abuse or for other cases. The assessments are judgment calls made on a professional, objective basis. It should be emphasised that any decision taken to the effect that a particular allegation should not result in charges does not mean that the allegation is rejected as untrue, nor does it mean that it is considered in some way not to be a serious allegation. All it means is that the prosecutor has reached the view that an acquittal is more likely than a conviction."

And yet in his comments on evidence given, Tim Le Cocq gives virtually no weight to this class of people. As he states ""The Terms of Reference presuppose that evidence will be given not only by people who have suffered abuse but by people who 'believe that they have suffered abuse'." Where are the people who have suffered abuse, but whose evidence was insufficiently strong to pass the evidential test? They seem to have vanished. They have effectively become non-persons, silent victims whose voice has been muted.

What seems to be the case in his comments on Paragraph 10 is that he doesn't want the Committee of Inquiry to judge in effect whether the failure to prosecute was justified or not, or whether the outcome be different today. He makes no mention of the most significant change in the law, which is with regard to what are termed "corroboration rules"

That law, on which Frank Walker's Council of Ministers refused to budge, and which Wendy Kinnard decided to resign on a matter of principle, gave the situation in which a warning must be given to a jury over uncorroborated evidence from certain types of witnesses - children, sexual assault victims and other defendants. It was only altered by the Criminal Justice (Miscellaneous Provisions) (No. 3) (Jersey) Law, which was lodged in 18 October 2011. Hence a number of cases which may have been dropped on the grounds that they would certainly fail might conceivably have proceeded to prosecution. The change in the law must surely change the position on "more likely than not".

The change in the law was voted on 17 January 2012, and became law in March 2012. It passed by 41 votes, with no abstentions, but a lot of absences from the sitting. Deputy Roy Le Hérissier asked if more convictions had come about as a result of the changed law in the UK and elsewhere, and Sir Philip Bailhache, acting as rapporteur for this order, replied that: "I am not sure that I can give Deputy Le Hérissier any specific information about the number of cases which have led to convictions in other jurisdictions as a result of the changes in the corroboration rules, but logic would suggest that the absence of the requirement for corroboration has made it easier to bring guilty men to justice and I cannot, I am afraid, say more than that."

Now the statement by from the former Attorney General, William Bailhache on the legal processes in the "Jersey Historical Abuse Investigation", which is an appendix to these comments by the current holder of the post, was dated 3rd June 2009, and so does not take this into account in its deliberations. Of course, changes in law cannot be applied retrospectively to cases considered, but they do mean that - as Sir Philip noted, that this change "has made it easier to bring guilty men to justice."

There is, of course, another factor which needs to be considered, and that is benefit of hindsight. The Jimmy Saville scandal in the UK has exposed cases where the CPS was over cautious in its application of the evidential test. In the UK, the Crown Prosecution Service published a review of a decision in 2009 not to charge Jimmy Savile with sexual offences in relation to four complaints made to police in Surrey and Sussex. It said further action might have been possible had "police and prosecutors taken a different approach", and the current director of public prosecutions Keir Starmer apologised on behalf of the CPS saying that the report represented a "watershed moment". As the BBC reported:

An internal review by the CPS, published on 11 January 2013, concluded that Savile could have been prosecuted while he was alive over three allegations of sexual offences if police and prosecutors had taken a "different approach". The director of public prosecutions, Keir Starmer, apologised for the shortcomings of the CPS, saying that while their inquiry found "no improper motive", the alleged victims had been treated with "a degree of caution which was neither justified or required". (1)

Reading between the lines, it is hard to not suspect that the approach taken by the Attorney General in his comments on the Terms of Inquiry is designed to head off any potentially embarrassing shortcomings in Jersey's Prosecution Service. Should the Attorney General really prejudge the issue and narrow the scope of the Terms of Reference, or should it be a matter for the Committee of Inquiry to decide for itself, without fear or favour whether there has perhaps also been in Jersey "a degree of caution which was neither justified or required".



Daniel said...

Thank you Tony, an extremely valuable contribution to the debate over the Terms of Reference, and the influence which the Law officers seem to be trying to wield

Anonymous said...

What are the Law Office so scared about Tony?

Anonymous said...

The Law Officers' Department is in such a position that it faces the possibility of sever critisism or worse.

Is it right that the AG should be giving an opinion and seeking to influence the Chamber on a subject where he and his department stand to lose so much? Is his position not seriously conflicted and so his opinion almost worthless?

Anonymous said...

Tony, it's a mighty read but the Executive Summary of the Mid Staffs public inquiry published today contains some excellent stuff on Terms of Reference, standards of proof, and differences between inquiries and court cases, etc.

Start at p10 of the Executive Summary here

I've only scan read it and can't point to any Eureka! paragraph but my overwhelming impression is that it was NOT written by anyone potentially interested in a cover up. Robert Francis QC and those he references seem to set the standard for public inquiries. Hope it is of interest to you, a man of great thoroughness!

TonyTheProf said...

I'm not suggesting the AG is trying for a cover up; I am suggesting that he seems to be pre-empting the scope of the inquiry where it might be critical of the Crown Officers.

A Crown Officer has recently been criticised by the Police Disciplinary Hearings regarding Curtis Warren, so that is possible. Whether justifiable cannot be ruled out a priori, which is what seems to be the case here.