Saturday, 19 November 2016

A Great Injustice & Rules of Evidence

by Les May
AN apology to Mr Harvey Proctor from the Commissioner of the Metropolitan Police may be something of a moral victory for him, but it will do little to help him take up the threads of his life again.  The clock cannot be put back to a time before he was suddenly thrust into the limelight by what can only be described as somewhat bizarre allegations against him.  

But it is all too easy to simply blame the police for what happened and ignore the fact that to some degree we have all contributed to the context in which this kind of misguided approach to investigating serious allegations could happen.  It’s a context in which Harvey Proctor, Paul Gambaccini, Cliff Richard and others, are seen as no more than ‘collateral damage’.

The ending of the 2015-2016 session of Parliament meant that Sir Keir Starmer’s Private Members Victims of Crime Etc (Rights, Entitlements and Related Matters) Bill never got further than its first reading.  Had it passed into law it would have further weakened the rights of an accused.  A victim would have been defined as a person who has suffered harm which was directly caused by a criminal offence or in some cases even a close relative would be treated as a victim.

‘As stipulated in the Bill, no complaint need be made or determination of guilt found in order for a “victim” to exist.  Most obviously, the question arises as to how a criminal offence can have occurred without the matter having been proved in court?  

Lord Macdonald, QC, the Director of Public Prosecutions from 2003 to 2008, took issue with the philosophy underpinning the Bill.  Speaking to the Today programme, he said:

'… the worst miscarriages of justice I have seen in my career have resulted from blinkered investigations in which the police [have] believed a theory at the start of the case and then gone on to 'prove' that theory.  This supposedly pro-victims' rights stance of saying we believe the victims at the outset is precisely what we don't want.  We don't want the police deciding what the truth is before the investigation starts …  Not everyone who tells the police that they have been a victim of crime is telling the truth, it leads to the police believing people who are telling lies.'

He went on to say: 'The victims’ rights movement was born from the best of reasons, but it is now leading to an imbalance in the justice system that threatens basic fairness.'

And ‘basic fairness’ is an issue in the Harvey Proctor case because Starmer had already issued guidelines in 2013 which were supposed ‘to be applied to all cases where a sexual offence has been committed against a child or young person’.  (Note this interesting distinction between a ‘child’ and a ‘young person’.)

These include, ‘Arrangements for early consultation and joint work between police and prosecutors to agree a case strategy and address evidential issues head on.’

Were these guidelines followed?  Did the police and prosecutors agree a case strategy?  Were evidential issues addressed head on?

If so why is it only the police that are ‘in the dock’?  Why are we not seeing a similar apology from the CPS?  Or is it that the police chose to ignore Starmer’s 2013 guidelines about consulting with prosecutors at an early stage and fell into the very trap which Lord Macdonald so clearly sees as a likely outcome of Starmer’s more recent intervention?

But ranged against Lord Macdonald’s careful assessment we have assorted pressure groups determined to resist any change away from the present ‘believe the victim’ mentality and even hitch a ride on the bandwagon, though their link with the substantive issue of sexual abuse of children is tenuous.

A month ago Paul Gambaccini and Sir Cliff Richard went to the House of Lords to lobby for a change in the law so that those who are accused of sexual abuse are guaranteed anonymity until and unless they are charged.  Lord Paddick, who was previously the Deputy Assistant Commissioner at the Metropolitan Police, backs this change.

Two days later the writer Yasmin Alibhai-Brown wrote an article arguing against this change.  She quoted the lawyer Richard Scorer as saying ‘We have seen countless times how perpetrators isolate their victims and make them feel no one will believe them’.  But this is just an anecdote, an assertion which he feels no need to substantiate with quantitative evidence.  It’s  ‘Believe me I’m a lawyer!’

Alibhai-Brown describes him as a ‘specialist in this area’.  But if you probe just a little deeper you find that Scorer works at Pannones, part of Slater & Gordon, and co-authored the book ‘Child Abuse Compensation Claims’.  In other words his specialism is, broadly defined, in personal injury claims, which isn’t quite the same as being a specialist in preparing criminal proceedings against people accused of child abuse.

What Scorer does not mention is whether anonymity for people accused, but not charged, would have any impact upon his business as it would prevent lawyers signing up the people who made the allegation, as a client in a civil compensation case and prevent them ‘trawling’ for further clients who had not yet made a complaint.  Put this way it suggests that the present system is open to abuse by people seeking financial compensation.

Incidentally, if you check out the Slater and Gordon website you’ll find they are still running their April 2014 advert touting for business arising from claims of abuse at Knowl View school even though when these were investigated by the Greater Manchester Police in Operation Jaguar there was insufficient evidence to mount a prosecution.

In arguing that naming people accused but not charged ensures that those claiming to have been abused have the confidence to come forward Alibhai-Brown ignores the 2013 guidance from the CPS about how such cases should be handled, which was designed to ensure that the police would take seriously every complaint of abuse.

For Alibhai-Brown, Harvey Proctor, Paul Gambaccini, Cliff Richard and others are just ‘collateral damage’.  As she puts it ‘We should be far more concerned about those who never dare tell than about the small number falsely accused.’  In other words she wants to prioritise the unknown and unknowable number of people who might be inhibited from coming forward, over people who we know will suffer greatly from being falsely accused.  Should people like Alibhai-Brown be allowed to have the last word on the question of naming suspects or is someone else going to speak out?

Is it possible that what we have seen in Operation Midland is what some people call ‘The Law of  Unintended Consequences’?  The 2013 guidelines were intended to reassure those who complained about abuse that their allegations would be taken seriously and properly investigated.  There is no obligation to call complainants ‘victims’ or ‘survivors’.  Did the journalists and pressure groups simply appropriate the terms because it suited their agenda to do so?   Did the police simply follow suit in an effort to appear ‘victim friendly’?  If they did the this lack of judgement has spectacularly backfired with Hogan-Howe’s apology.

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