Wednesday, 27 January 2016

Is Sir Philip's submission corroborated by the facts?

A former Jersey Bailiff and Attorney General has blamed "incompetence" for a 19 year delay in changes to the law which made prosecuting alleged child abusers easier. Until 2012, such cases of children making allegations needed corroboration of some sort. Sir Philip Bailhache today told the inquiry into historical abuse in the island's care system that he made recommendations to change that law in 1993 but it wasn't brought into effect until 2012. When asked if the delay was because of a lack of political will, he said: "No. The delay can be explained by incompetence probably."

He went on to tell the inquiry that during his time as Attorney General, the corroboration rule never got in the way of a prosecution.

If there were evidence that a crime had been committed one would be straining to bring a prosecution. I don't believe the requirement was a barrier that prevented us from prosecuting more cases of child abuse. I don't remember a case where I said to myself I wanted to prosecute this case but because of the requirements of corroboration I cannot do so. I do not recall any such case.

(Channel TV News)

What was the rule regarding corroboration? It meant the judge would give the jury suitable instructions along the following lines:

The standard direction on corroboration evidence in cases of sexual offences, with appropriate adaptations to suit the circumstances of each case, would be on the lines of: "Experience has shown that people who say that sexual offences have been committed against them sometimes, and for a variety of reasons, tell lies. Such false allegations are easy to make and frequently very difficult to challenge, even by an entirely innocent person. So it is dangerous to convict on the evidence of the complainant alone unless it is corroborated, that is independently confirmed, by other evidence . . ."

So how can we explain the delay? Is Sir Philip right to attribute it to incompetence rather than a lack of political will?

Well, let us start with the submission of Ben Shenton who was Minister for Health and Social Services in 2008. He states the following:

“Wendy Kinnard should not have had any involvement with the investigation as the Home Affairs Minister. Yet, whilst the investigation was ongoing and whilst she was still elected to the Council of Ministers, she made an application to amend the law with regard to the law of corroboration in Jersey. I do not know the exact details, but I believe according to the old corroboration rule, there could not be a successful conviction unless there were at least two independent sources of evidence to support a case. [redacted material] Discussion of the application took place in the Chamber on 16 and 21 October 2008, and the extracts of those minutes appear as my Exhibit 885.”

“As a member of the Council of Ministers I questioned the application to amend the corroboration rule. [redacted material] But I believe that eventually the application was successful in any event, and the corroboration rule was abolished; a Trial Judge no longer has to warn the Jury in cases of sexual offences of the need to look for corroboration of the evidence of the complainant.”

His reason for not supporting that proposition is that he didn’t think enough background paperwork had been provided for the application, and the Council of Ministers should take legal advice first.

If we look at the document he places as part of his evidence – the Minutes for the Council of Ministers for October 2008, it states this:

“The Council, with reference to its Minute No. B2 of 4th September 2008, received a report dated 20th August 2008, which had been prepared by the Assistant Minister for Home Affairs and considered advice from H.M. Attorney General in connexion with the issue of corroboration.”

“Senator W. Kinnard, having cited a conflict of interest, withdrew from the meeting for the duration of this item and was replaced by Deputy A.D. Lewis, Assistant Minister for Home Affairs, who remained present at the meeting for the duration of this item.”

“H.M. Attorney General observed as a matter of principle that the issue of corroboration might be significant in the context of individual cases. In this context he highlighted the current requirement in Jersey Law for a judge to give a corroboration warning to juries in cases where the evidence relied upon that of an accomplice, in sexual cases, and in cases where the complainant was a child. “

“He further observed that the position in Jersey replicated neither that of England and Wales nor that of Scotland. In England and Wales the position was that the rule of practice requiring a corroboration warning in sexual and accomplice cases had been abolished by Section 32 of the Criminal Justice and Public Order Act 1994. In contrast, the Scottish position was that there was a requirement for some corroborative evidence in all cases.”

“H.M. Attorney General, having given further detailed legal advice to the Council on the matter, invited the Council to consider whether to promote changes to existing legislation in order to ensure that judges could use discretion as to whether to give a corroboration warning, depending on the case, regarding the issues raised and the content and quality of evidence.”

“The Assistant Minister for Home Affairs submitted that it would be unethical not to promote changes to existing legislation which would allow a judge to use his discretion in the context of corroboration warnings notwithstanding the potential controversy that might result from the timing of any such change and which might be fuelled by a debate in the States Assembly. He further clarified that if the Council decided to support this small amendment to the legislation he would wish to consult the Education and Home Affairs Scrutiny Panel on the matter.”

“The Council concluded that there were advantages and disadvantages to the positions adopted in Scotland and in England and Wales. Ultimately the Council concluded that it was not able to determine a preferred course of action without further information. On that basis the Council recommended that the Chief Minister refer the issue to the Jersey Law Commission and invite the Commission to consider reporting on the matter expeditiously.”

“The Policy and Research Manager was authorized to take the necessary action.”

It is very important to notice that the Attorney-General – William Bailhache - stated that “that the issue of corroboration might be significant in the context of individual cases”, which does quite tally with Sir Philip’s statement that “the corroboration rule never got in the way of a prosecution”.

The outcome of this meeting - and the lack of action - was that Wendy Kinnard tendered her resignation citing it as a matter of conscience. The Minutes of the next meeting state this:

“The Committee with reference to its Minute No. A 1 of 21st October 2008, recalled that Senator W. Kinnard had made a statement in the States announcing her resignation as Minister for Home Affairs on the basis of an issue of moral conscience and principle, namely that at a recent meeting of the Council of Ministers, the Council had declined to accept a recommendation from her Department that an item of importance be taken forward immediately. “

“The Council reaffirmed the intention that the Chief Minister should make a statement to the States shortly and agreed an outline of the wording to be adopted, subject to finalisation by the Chief Minister.”

“H.M. Attorney General outlined the background to the desirability of promoting an amendment to existing Jersey legislation in order to ensure that judges could use discretion as to whether to give a corroboration warning to juries, depending on the case, regarding the issues raised and the content and quality of evidence. It was recognised that the referral of the issue to the Jersey Law Commission was unlikely to result in a speedy outcome, although the matter would undoubtedly be thoroughly examined and widely consulted upon.”

“Having considered the possible effect on forthcoming prosecutions of a change to Jersey legislation, the Council concluded that it would not be in the Island's interest to release details of any legal advice it might have received on the matter and decided, therefore, not to publish the relevant minutes of its meetings.”

So the end was result was delay – and that by a political decision which was not made clear at the time. There was a clear decision to delay and not make the reasons for delay public!

So who was party to this decision? All members were present, with the exception of Senator T.A. Le Sueur, Minister for Treasury and Resources, Senator P.F. Routier, Minister for Social Security and Senator F.E. Cohen, Minister for Planning and Environment, from whom apologies had been received.

Those present were Senator F.H. Walker, Chief Minister, Senator M.E. Vibert, Minister for Education, Sport and Culture, Senator P.F.C. Ozouf, Minister for Economic Development, Senator T.J. Le Main, Minister for Housing, Senator B.E. Shenton, Minister for Health and Social Services, Deputy G.W.J. de Faye, Minister for Transport and Technical Services

In attendance - Deputy A.D. Lewis, Assistant Minister for Home Affairs, Connétable K.P. Vibert of St. Ouen, Assistant to the Chief Minister, W.D. Ogley, Chief Executive, States of Jersey, W.J. Bailhache, Q.C., H.M. Attorney General

Ben Shenton, commenting to the inquiry why he thought it right to question the proposal by Wendy Kinnard stated this:

“We had no real sort of back-up as to why we were being asked this request, or why it was, you know, the right thing to do and I was quite vocal on it and actually led to it going off to the Law Commission, to look at and it and to come back with a properly researched paper as to why the law should be changed, and it was eventually changed.”

“But it all goes back to the point of view of how you act as a politician. Myself and none of the other Council of Ministers at that time had any legal background. We had a retired teacher, this, that and the other. We were at the height of the sort of furore about child protection issues and the problems that the department had been facing. And all of a sudden we get this request with no background. I think realistically, even if I was -- a request had come to me as chairman of a board anywhere, if you haven't got the back-up papers, and you are asking to do something, you want to question why you are doing it, and you want to make sure that you are doing the right thing.”

Of course, as the Minutes make clear, some of the background information as to why the request was important came from William Bailhache, who advised the Council on the law, explained how the rules worked, and told them how different practices applied in England and Scotland.

So it is not entirely correct to say there was no detail. Whether or not the reason was obvious was difficult to say, but obviously by that point it was clear there would be prosecutions from Operation Rectangle, even if Wendy Kinnard had not stated it so clearly. You do not need a lot of hindsight to see that!

How did the corroboration rule work in practice? Did it not make a jot of difference, as Sir Philip said, or did it raise the evidential bar for a successful prosecution?

Police woman Alison Fossey writing to Shaun Du Val, as noted in the inquiry transcript, stated:

"Laurence [ O'Donnell] was of the view, as am I, that a lot of cases were not proceeded with in the past due to working procedures between the Police and [the force legal advisor]. Many files were not even referred for legal advice and were written off by the [detective sergeant or detective inspector] at that time and also the corroboration rule prevented many cases being proceeded with. A major change in the law is required and we were successful in our law drafting bid for a new Sexual Offences Law this year."

[Laurence O'Donnell was a legal advisor from the States law officers department.]

There is also a memo from Mr Robert Bonney, who worked for the police between 1977 and 2005, to Advocate Whelan and it says the following about Leslie Hughes arrested in connection with multiple cases of sexual abuse of children at a Jersey group home:

"I seek your assistance and direction on the question of formulation of charges to be brought and against which girls. We have previously discussed the question of court appearances for such young victims and in light of that, I feel that no charges should be brought against Hughes, in respect of ...[redacted] ... not least because Hughes makes no clear admissions in respect of them, and on the whole they stand uncorroborated."

This was a case with the issue of the evidence being uncorroborated, and yet similar fact evidence existing – five individuals in a house over a span of time, all of whom individually say that they have been sexually assaulted by the same person, but no independent corroboration of each person's being singleley abused.

The inquiry asked: “Was corroboration such a significant hurdle?

Mr Bonney replied: “Absolutely it was and it was brought to the Crown, not that it needed to be brought to the Crown because the Crown would have been living with it for many many years

“And your understanding at the time was that there was a mandatory warning that needed to be given to the jury that it would be dangerous to convict on the 0 uncorroborated evidence of the victim; is that how you understood it to be?”

“My understanding was not necessarily that it was required in law, but whether it was required in practice and certainly it was my understanding that without corroboration the case would likely not succeed, in the absence of any other evidence.”

“Perhaps I should qualify that and say from my discussions with Laurence O'Donnell I knew that this would be the way the Crown -- this would be the evidence that the Crown would look for: corroboration. If we didn't have the corroboration we likely were not getting home.”

“I think Laurence had come to believe that a case of this nature would likely not be taken forward by the Crown for the reasons of non-corroboration.”

The inquiry also cites John Edmonds who submitted that:

"I cannot help feeling that the legal advisors over a period of many years having effectively been applying a test of mandatory corroboration rather than properly evaluating whether an uncorroborated victim would nonetheless be regarded as a witness of truth."”

They ask Mr Bonney: “Does that fairly summarise your view in 2004 of 195's case?”

Mr Bonney: “My understanding is that they knew very clearly about whether it was mandatory or required in practice and our discussions regularly went to that area, ahead of the decision-making coming out of the AG's office.”

And Mr Edmonds says -  looking at mandatory corroboration, that it was the critical hurdle "rather than properly evaluating whether an uncorroborated victim would nonetheless be regarded as a witness of truth."”

Ms Leslie asked Mr Bonney: “The last thing I want to ask you about is just a point of clarification. You have very helpfully explained in relation to the issue of corroboration that obviously the position in law is that where a jury is properly instructed by a judge, they may convict without sort of corroboration, but you have also identified that, as you said, it was clear that in practice this would never happen in Jersey. Where did that practice come from?”

Mr Bonney: “I think over the course of the years -- it settled on me that corroboration was huge and it needed to be obtained, it needed to be looked for, it was a significant hurdle and in practice you weren't getting home without it, whatever that corroboration may be.”

“I acquired this morning the Jersey Law Commission "Corroboration of evidence in criminal trials" and it was -- it's a local document, it's a consultation paper written about corroboration of evidence in criminal trials and it is dated -- it is produced by the Jersey Law Commission as a consultation paper. You may have it, in which case this will be superfluous, but that was produced in 2008 and that set out what my understanding of corroboration was when I was serving in the Police Force and in 2009 the findings of that consultation were reported upon and that was to remove the stringent corroboration requirement that I understand has been done.”

The consultation paper was produced by the Law Officers Department in December 2008 advocating scrapping the corroboration rules. They were efficient and quick, unlike the suggestion in the Council of Ministers minutes (quoted above), which appears to blame them for any future delays!

But it had to wait until Ian Le Marquand was Home Affairs Minister for a change to come about in 2012!

The Jersey Law Commission had done its job by December, but clearly the political will did not exist until 4 years later! Incompetence? I can see no evidence of that in the documented history. I can see plenty of a lack of political will to take the issue and run with it. It is interesting to note that the change in the law only took place after all the trials relating to Operation Rectangle had finished.

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 rather 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."

That rather contradicts what the Senator is telling the trial about it not making any difference!


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