The new injustices
RICHARD WEBSTER
……………………………………………………… New Statesman
28 January 2002
………………………………………………………
Richard Webster reports that, as Stephen Downing is set free, hundreds more innocent people - this time ex-workers in children's homes - face prison
JUST OVER A WEEK AGO, on Tuesday 15
January, the pavements outside the Royal Courts of Justice in the Strand
were thronged with newspaper photographers and television crews as one of
the longest miscarriages of justice in British legal history was brought
to an end by three judges in the Court of Appeal. Stephen Downing had
served 27 years for a murder which he did not commit. What made his case
especially significant is that it was the product of a systematic form of
injustice, in which the failure to protect suspects against oppressive
police questioning led repeatedly to trials where innocent men were
convicted on the basis of confessions which were false.
The problem of false confessions only came to wide
public attention in 1972 when firemen were called to a burning house in
Catford, South London, where they discovered the body of a strangled male
prostitute, Maxwell Confait. Three youths were quickly
arrested. One was 14, one, though 18, had a mental
age of 8; the third was of low IQ. They confessed under police questioning and were convicted of
arson, manslaughter and murder.
It later became apparent that their confessions were
untrue and that they had been extracted by improper police pressure. After
a successful appeal court hearing, the publication of a book, The
Confait Confessions by Christopher Price and Jonathan Caplan, and the
setting up of two major inquiries, some of the most radical reforms of the
prosecution process ever to have taken place were instituted.
On the one hand the Police and Criminal Evidence Act of
1984 gave new rights to police suspects and made the tape-recording of
police interviews compulsory. On the other hand the Phillips Commission,
which reported in 1981, proposed a national prosecution service, one of
whose aims would be to attempt to ensure that prosecution evidence was
properly scrutinised, and that weak cases such as the one relating to the
murder of Confait would not even reach the courts. The Crown
Prosecution Service, which eventually came into being in 1986, was thus
(in part at least) the indirect product of a grave systematic injustice.
The Stephen Downing case will certainly not be the last
of its kind but it might well be seen by future historians as marking the
end of one era of injustice and signalling the opening of another. This is
largely because, by a curious coincidence, the Home Affairs Select
Committee chose the day after Downing’s successful appeal, Wednesday 16
January, to announce the launch of an inquiry into a new form of
systematic injustice. This, according to some observers, has already led
to more than a hundred grave miscarriages of justice, and will, if
unchecked, lead to many more.
AT THE HEART OF the inquiry are the thousands of
allegations of sexual abuse relating to children’s homes which have been
collected by what is perhaps the most dangerous form of police
investigation ever devised – the trawling operation. In such operations,
which have already been the subject of critical articles in the New
Statesman, police forces deliberately set out to collect allegations
by contacting adult men and women who spent time in care between ten and
thirty years ago.
Addressing precisely the areas which critics of police
trawling have repeatedly pointed to, the committee, under the chairmanship
of Chris Mullin MP, will ask whether police trawling methods involve a
disproportionate use of resources which only succeed in producing
unreliable allegations. It will also ask whether the Crown Prosecution
Service ‘is drawing a sensible line about which cases should be
prosecuted’. In effect it will consider whether one of the major reforms
to grow out of the Confait case has failed to supply the safeguards which
were so clearly needed. It will also consider the radical question, until
recently almost unthinkable, of whether there should be a time limit on
the prosecution of cases of child abuse.
It will further ask
whether the prospect of compensation in child abuse cases ‘encourages
people to come forward with fabricated allegations’. Finally, and perhaps
most radically of all, it will address possible deficiencies in the law
itself, especially the erosion of ‘similar fact’ law. This used to make it difficult for the
Crown, when prosecuting one offence, to introduce evidence that defendants
had committed other similar offences. Its erosion has allowed the
courts to adopt the principle of ‘corroboration by volume’ and enables the
police to send innocent men to prison simply by collecting a large number
of allegations against them, all of which may be false.
‘This inquiry,’ said Chris
Mullin, ‘raises difficult and sensitive issues. It has been suggested that
a whole new genre of miscarriages of justice has arisen from the
over-enthusiastic pursuit of allegations about abuse of children in
institutions many years ago . . . We shall be looking at the methods by
which convictions have been achieved and whether there are adequate
safeguards.’
Behind what promises to
be one of the most radical inquiries ever held by the Home Affairs
Committee there lies the astonishing spread of trawling operations over
the last ten years. Since the launch of the North Wales investigation in
1991 practically the entire country has, at a cost of hundreds of
millions of pounds, been covered by a trawling
net.
IN GWENT ‘Operation
Flight’, a trawl of the former residents of a single home, Ty Mawr, was
launched in 1998. There are 7000 former residents of the home and the
Gwent Police are planning to interview as many of these as they can trace.
So far they have interviewed more than 3000 and have already collected
allegations of physical or sexual abuse against more than 100 former
members of staff. This is in relation to a home which, in 1991, was
the subject of an extensive inquiry conducted by Lord Williams of Mostyn,
later to become Attorney General, who made criticisms but found no
evidence of physical or sexual abuse which would lead to
prosecutions.
The neighbouring South
Wales Police force once had as many as sixty officers dedicated to
Operation Goldfinch. More than 80 homes have by now been the subject of
investigation. Detectives say they have identified some 600 suspects. Over
a dozen have already been convicted and have received a total of more than
100 years imprisonment.
Last December, in the
very same month that the Lord Chief Justice, Lord Woolf, publicly
acknowledged that trawling operations and the lure of compensation may
have led to ‘dozens’ of miscarriages of justice, yet another South Wales
care worker, Tony Burke, was convicted and sentenced to 8½ years
imprisonment. Facing allegations relating to events which supposedly took
place thirty years ago, Burke was unable to defend himself because crucial
documents had been destroyed and key witnesses were dead. Denied an
application to the judge to have his trial halted as an abuse of process
because of the delay, Burke eventually found himself listening in
disbelief to the same judge as he effectively dismissed the evidence of
his chief character witness, apparently on the grounds that he did not
know him in 1971.
The witness in question
was none other than John Jevons, formerly the Director of Social Services
for Clwyd and, latterly, for Cardiff. Jevons was the very man who had
called in the police in North Wales in 1991 and who subsequently called
them in again in South Wales in order to investigate an alleged paedophile
ring. Now he had come to court to testify to his belief that Tony Burke, a
man who had become his friend, was innocent of the charges which he now
faced. His testimony was ignored and Tony’s wife, social worker
Claire Burke, is now left to look after their three young children on her
own. Asked how she feels, she says that she is angry: ‘The more I heard
the less I could believe that anyone could have come to the conclusion
that they did, because there just wasn’t any evidence.’ It is little
comfort to her that the judge was so impressed by her own evidence and so
convinced that Tony Burke is now a happily married man with a normal
heterosexual disposition, that he halved the sentence he might otherwise
have given for offences which, in theory, can still lead to life
imprisonment.
Meanwhile on
Merseyside, Operation Care, whose officers attempted to secure the
conviction of soccer manager David Jones (who was acquitted in December
2000 after his trial collapsed amidst mounting evidence of false
allegations), has investigated more than 80 homes, securing some 30
convictions for physical or sexual assault. Some of the early convictions
were clearly sound but, as Operation Care has developed, the number of
false allegations appears to have risen alarmingly. The home where David
Jones worked, St George’s, has become a particular target and the police
have trawled allegations against no less than 90 of his former colleagues.
Although there is no reliable evidence that any sexual abuse ever took
place at St George’s, four of Jones’s former colleagues have already been
convicted in relation to such offences. They continue to protest their
innocence from their prison cells.
Operations ‘Flight’,
‘Goldfinch’ and ‘Care’ are but three of some eighty trawling
investigations which are now in progress in England and Wales alone. Given
the scale of what is happening it is perhaps not surprising that grass
roots movements of care workers and their supporters have sprung up all
over the country to fight for justice.
IN THE VILLAGE OF Dinas
Powys, on the outskirts of Cardiff, some three hundred people, including
teachers, lecturers, businessmen, a hospital consultant and all four local
GPs, have banded together to oppose trawling operations and to fight for
justice. The group was formed to campaign on behalf of former Welsh Office
inspector Derek Brushett. In 1999 Brushett was sentenced to 14 years in
prison after police had trawled 44 allegations against him made by 26
complainants.
Friends of Derek
Brushett (FoBD) is led by former French teacher Gail Saunders who explains
that one of the group’s aims is to raise public awareness: ‘We’ve been
horrified at how ignorant the public is about how these men are being
convicted,’ she says. Soon after it was founded members of the group
held a silent demonstration during which they walked fourteen times around
the village green, once for every year of Derek Brushett’s prison
sentence. The group has since successfully lobbied MPs and local
politicians and intends to continue its campaign until Brushett’s
conviction is overturned.
On Merseyside, an even
larger organisation has come into being. Formed some three years ago when
seven people met in the kitchen of former care worker Liz Mills, FACT
(Falsely Accused Careworkers and Teachers) has grown into a national
organisation with its own website and a concerted campaign to halt
trawling operations. It is no coincidence that FACT has its roots in
Formby, the prosperous commuter town where David Jones once worked at St
George’s and where, according to one local resident quoted in the
Formby Times, ‘Anyone who has worked in care is waiting for that
knock on the door and living in fear.’
In a rare example of
real democracy at work, the cause has been taken up by local Crosby MP
Claire Curtis-Thomas. Initially uncertain of how to respond to the
burgeoning movement of protest within her own constituency, she has now
become a fierce and formidable critic of police trawling methods. With
help from former Crosby MP, Baroness Shirley Williams, she has set up, and
now chairs, an all party parliamentary group with more than fifty members
to scrutinise sexual abuse investigations and to question the validity of
the process whereby ‘individuals are
convicted on verbal testimony alone without any corroborating
evidence’.
Although the all party
committee has a broader brief than the recently announced Home Affairs
Committee inquiry, Claire Curtis-Thomas remains deeply concerned by police
trawling. She has warned about the huge danger that, whether deliberately
or not, ‘the police will plant
suggestions, producing narratives that fit their case, rather than the
truth. What happens is a kind of indirect collusion, which develops
through witnesses’ unrecorded contact with members of the same police
team. Often they’re very vulnerable, because they’re interviewed in
prison. Some of them are being exploited in exactly the way suspects were
20 years ago, before suspect interrogations were taped.’
THE COMPARISON which
Curtis-Thomas draws here with the kind of injustices which arose from
oppressive questioning of suspects is an apt one. But the roots of the
current injustices go deeper. Although extending mandatory tape-recording
to include witness interviews would undoubtedly help, it cannot in itself
cure the problem. For the real causes of the current crisis, as the terms
of reference of the Home Affairs Committee implicitly recognise, lie in
the ready availability of compensation for those who complain, the failure
of the CPS to properly scrutinise evidence, and the current state of the
law itself.
Prominent legal
authorities such as Professor Colin Tapper have already warned that the
erosion of the ‘similar fact’ principle has allowed prosecuting barristers
to place before juries highly prejudicial evidence of the most dangerous
and unreliable kind. Ultimately, if current injustices are to be halted,
it is not simply the Home Affairs Committee, but the House of Lords itself
which must address this issue.
It might seem that,
with two parliamentary committees now addressing the problem, and with the
Lord Chief Justice himself apparently sharing their misgivings about
police trawling, it is time for FACT, FoDB and the twenty or so other
grass-roots organisations which have grown up to combat false allegations,
to wind down their operations. However, this is not the case. For
these groups now face the most difficult task of all, as the case of
Stephen Downing itself should remind us.
The greatest tragedy of
the Downing case is that, while the causes of the particular form of
injustice which led to his conviction were addressed and at least partly
cured some twenty years ago, Stephen Downing himself remained in prison,
forgotten and all but abandoned. The challenge which faces the campaigning
groups now is not simply to prevent police trawling leading to any more
miscarriages of justice. It is to ensure that those innocent care workers
and teachers who have already been convicted are released sooner rather
than later, and that the hundred or so innocent victims of police trawling
who are already in prison do not become the Stephen Downings of
tomorrow.
A shorter version of this article appeared in the
New Statesman, 28 January 2002
