Thoughts On The Scope of Justice

"We are clear that the yardsticks for testing the credibility and reliability of victims in sexual abuse cases do not serve the police or prosecutors well and risk leaving an identifiable group of vulnerable victims unprotected by the criminal law." (Keir Starmer QC, Director of Public Prosecutions).

There are some interesting developments in England regarding sex abuse cases. The fall-out from the Jimmy Saville case has led to the position where the Director of Public Prosecutions has indicated that hundreds of cases could be re-visited, and the overall procedures by which evidential tests are applied is also to be reviewed:

Keir Starmer QC is due to set out a series of reforms in the wake of the  Jimmy Savile scandal as well as revelations about gang-led grooming of girls. Mr Starmer said that prosecutors had been overcautious about proceeding with sex abuse cases, and that changes were needed to prevent "another Savile".  New guidelines on prosecuting such cases will be drafted in the coming months while past cases will also be reviewed.(1)

On BBC Radio 4's Today programme, the DPP explained that ""What we are proposing is a scoping panel to look at cases where people have previously come forward but their case hasn't been proceeded with." The idea is that police and alleged victims would be able to bring cases to the panel, and see if they "deserve a second look". Mr Starmer thinks, however, that the numbers involved were "more likely to be hundreds than thousands". "What we need to ensure is that the investigation and prosecution is as thorough as it should be in these cases, but fair to both sides," Mr Starmer told Today.

Mr Starmer warned 'the pendulum has swung too far against the child', meaning police are now inclined not to believe children reporting abuse. He said that in future prosecutors and police will be expected 'explore patterns of behaviour and links to other cases' instead of just focusing on the account of the victim. He said: 'We have got to clear the decks and craft the way we prosecute cases. Anyone who has ever prosecuted any of these cases will know they are extremely difficult.' He added: 'We are clear that the yardsticks for testing the credibility and reliability of victims in sexual abuse cases do not serve the police or prosecutors well and risk leaving an identifiable group of vulnerable victims unprotected by the criminal law.' (2)

Reforms are at an early stage of discussion, and this could include widening the scope of review, so that experts could help determine whether cases could go ahead. Such decisions, said Mr Starmer, may not be "solely for the police and prosecutors to determine".

According to the newly devised plans, a panel will be established to review historical child sexual abuse cases where investigations into alleged abuse have not been pursued.

Mr. Starmer said: "What we are proposing is a scoping panel to look at cases where people have previously come forward but their case has not been proceeded with. The panel will advise chief constables on whether the case should be reopened. This is really to put some formality around the process by which either the police or victims could bring a case to the panel and say, 'do you think this one deserves a second look?'. I think it's more likely to be hundreds than thousands (of cases) but we'll have to feel our way through it." (3)

"We need to settle this," Starmer said. "Ten years or so ago, it was thought that police and prosecutors were over-enthusiastic or over-eager in pursuing [such] cases. Now it is thought they are over-cautious. I don't think we can go on like this."

Starmer called for an approach that was fair to innocent suspects but equally fair to victims. The test for bringing a case - whether there is a realistic prospect of bringing a conviction - must not change but the justice system must look more carefully at the way it assessed credibility, he said. At the moment, there is a great deal of focus on whether the victim is telling the truth. We need to look equally carefully at the account the suspect is giving, look at the context, look at the pattern of behaviour,  make the necessary links and think about how a case can be be built." (3)

He added: "We are clear that the yardsticks for testing the credibility and reliability of victims in sexual abuse cases do not serve the police or prosecutors well and risk leaving an identifiable group of vulnerable victims unprotected by the criminal law."

The CPS and ACPO (the Association of Chief Police Officers) have agreed that a new overarching approach to investigation and prosecution of sexual offences will be drawn up, will be applicable to all police forces and agreed by the CPS. New guidance to ensure consistent best practice will be drafted by the CPS, which will be open to public consultation. It remains to be seen whether Jersey is going to take part in these discussions and consultation in any official capacity, but it would seem that the Island will find itself out on a limb if it does not.

The Association of Chief Police Officers' lead on violence and public protection, Chief Constable David Whatton said: "By working shoulder to shoulder with the Crown Prosecution Service and the College of Policing, ACPO is keen to ensure that we continue to build on progress in the area of sex offence investigation. We have proposed a package of measures, including a rationalisation of guidance, training and consideration of a review panel mechanism to ensure we have truly learned from the lessons of the past."

The CPS and ACPO have agreed:

* A clearing of the decks in relation to policy and guidance. All existing policy will be decommissioned, with one overarching and agreed approach to investigation and prosecution of sexual offences to be applicable in all police forces and agreed by the CPS. The CPS will also draft new guidance to ensure consistent best practice, which will be open to public consultation.

* Training will ensure there is no gap between policy and practice. The training will be hands on and provide practical advice to police and prosecutors about when a complainant can and should be told about other complaints, among other things.

* To propose the formation of a national "scoping panel", which will review complaints made in the past which were not pursued by police and
prosecutors, if requested.

Mr Starmer said: "There is an urgent need for an informed national debate about the proper approach to the investigation and prosecution of sexual offences. That debate needs to extend well beyond the CPS and the police. Above all, a national consensus needs to be reached on the issues."

The ACPO website has more details on the proposals:

To this end, ACPO and the CPS will host a series of roundtables with bodies and individuals with responsibility, interest or expertise in the field in order to explore and road test the revised guidance on investigating and prosecuting sexual assault cases.

Roundtables will convene in the coming weeks with judges; front line investigators; health and social services representatives; statutory bodies such as the Victim Commissioner and the Children's Commissioner; support and campaigning bodies such as the NSPCC, Refuge and CAADA; expert lawyers; and expert academics.

Mr Starmer added: "If the criteria for testing their credibility match the characteristics that make them vulnerable in the first place, we have a fundamental flaw in the approach to credibility.

"This has to change. But to over steer and remove any meaningful filter in these cases would be a great injustice to innocent suspects. My own view is that by changing the focus from one that is solely victim-specific to one that more critically tests the suspect as well, while at the same time working harder to explore patterns of behaviour and, where appropriate, links to other cases, we could find an answer."(4)

The passing of wide terms of Reference for the Historical Child Abuse Inquiry will ensure that locally cases that have not come to prosecution can be heard, and while the Inquiry is not a court of law, and cannot bring any prosecutions, it is to be hoped that it might also review policing and judicial decisions taken not to prosecute, and determine if procedures and evidential tests were insufficiently robust.

It would, of course, be up to the Crown Officers to determine whether a case might "deserve a second look", but the position taken by the Director of Public Prosecutions in England suggests that it would be a mistake to rule that out. If the DPP can suggest that some cases should be reconsidered, then clearly there is no absolute principle against doing so.

That the Inquiry will take place along the same time as this wide ranging review in the UK is all to the good, as it will also be able to keep an eye on how the reforms of practice regarding investigation and prosecution are being developed by the DPP and ACPO and the public consultation.

It is also to be hoped that what emerges from the debate in England will be much more robust guidelines to ensure that cases of child abuse do not slip through the net as often they have done in the past. As Keir Starmer has noted, the pendulum has been swinging from over-enthusiastic which could lead to innocent people being arrested, and children taken from their homes (for example, at South Ronaldsay in Orkney) to overcautious, which is where he sees the current position.

Despite the best efforts of the judiciary, it is hardly likely that Jersey has been entirely free of the same culture of over-caution described by Starmer, especially as it has taken legal advice from UK lawyers, and lawyers over here have trained in the UK. Is our system fair to innocent suspects but equally fair to victims? Starmer thinks that England has at present some significant weaknesses in fairness to victims at present, and it would be remarkable if Jersey was a compete outlier. There is a certain element of subjectivity in assessing whether a case should be brought to trial, and Starmer is well aware of that.

Rather than simply another swing of the pendulum, he is calling for a vast improvement in how things are done. This is a sea-change that Jersey's judiciary and police must engage with, a conversation they must be part of, and they should also be able to take upon the new revised and consistent best practice that will emerge. When a new overarching approach to investigation and prosecution of sexual offences is be drawn up, it should be applicable locally as well.

At present it is early days regarding the historical abuse enquiry. Will Jersey need a "scoping panel"? It is something which may well need to be considered in the future.

Links
(1) http://www.telegraph.co.uk/news/uknews/crime/9912039/Hundreds-of-dropped-sex-abuse-cases-to-be-reviewed-amid-prosecution-overhaul.html
(2) http://www.dailymail.co.uk/news/article-2288836/Jimmy-Savile-Britains-prosecutor-vows-prevent-Savile-plans-review-hundreds-dropped-child-sex-abuse-cases.html
(3) http://www.oyetimes.com/news/england/37490-jimmy-saville-scandal-leads-to-reopening-of-dropped-child-sexual-abuse-cases
(4) http://www.acpo.presscentre.com/Press-Releases/-The-criminal-justice-response-to-child-sexual-abuse-time-for-a-national-consensus-1fc.aspx