F.A.C.T.

Falsely Accused Carers and Teachers

Fighting injustice – lobbying for change

THE CODE FOR CROWN PROSECUTORS

Is it being applied fairly ?
An article by George Jensen

I have recently obtained copies of the Crown Prosecution Service Code for Crown
Prosecutors. It makes interesting reading . The code states that …

“Crown Prosecutors must be fair, independent and objective. It is the duty of

the Crown Prosecutors to review, advise on and prosecute cases, ensuring
that the law is properly applied, that all relevant evidence is put before the
court and that obligations of disclosure are complied with, in accordance with
the principles set out in this code”

Before a prosecution can take place two test have to be met. These are referred to as
the evidential test and the public interest test.
The first stage is consideration of the evidence. If the case does not pass the evidential
stage it must not go ahead no matter how important or serious it may be. If the case
does pass the evidential stage, Crown Prosecutors must proceed to the second stage and
decide if a prosecution is needed in the public interest.

The Evidential Test

Crown Prosecutors must be satisfied that there is enough evidence to provide a ‘realistic
prospect of conviction’ against each defendant on each charge. They must consider what
the defence case may be, and how that is likely to affect the prosecution case.
A realistic prospect of conviction is an objective test. It means that a jury or bench of
magistrates or judge hearing a case alone, properly directed in accordance with the law,
is more likely than not to convict the defendant of the charge alleged. This is a separate
test from the one that the criminal courts themselves must apply. A court should only
convict if satisfied so that it is sure of a defendant’s guilt.
When deciding whether there is enough evidence to prosecute, Crown Prosecutors must
consider whether the evidence can be used and is reliable.

“Crown Prosecutors must consider whether the evidence can be

used and is reliable; is the witness’s background likely to weaken
the prosecution case? For example, does the witness have any
motive that may affect his or her attitude to the case, or a relevant
previous conviction? Are there concerns over the accuracy or
credibility of a witness? Are those concerns based on evidence or
simply information with nothing to support it? Is there further

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 evidence which the police should be asked to seek out which may
support or detract from the account of the witness? (para 5.4)

The Public Interest Test.

The section on public interest test begins with a warning -

In 1951, Lord Shawcross, who was then Attorney General, made the classic
statement on public interest, which has been supported by Attorneys General
ever since: “It has never been the rule in this country — I hope it never will
be — that suspected criminal offences must automatically be the subject of
prosecution”. (House of Commons Debates, volume 483,column 681, 29
January 1951.)

It goes on to say …

The public interest [test] must be considered in each case[and in respect of

each alleged offence] where there is enough evidence to provide a realistic
prospect of conviction. Although there may be public interest factors against
prosecution in a particular case, often the prosecution should go ahead and
those factors should be put to the court for consideration when sentence is
being passed. A prosecution will usually take place unless there are public
interest factors tending against prosecution which clearly outweigh those
tending in favour, or it appears more appropriate in all the circumstances of
the case to divert the person from prosecution (Para 5.7).

Crown Prosecutors must balance factors for and against prosecution

carefully and fairly. Public interest factors that can affect the decision to
prosecute usually depend on the seriousness of the offence or the
circumstances of the suspect. Some factors may increase the need to
prosecute but others may suggest that another course of action would be
better. (Para 5.8).
It is almost always held to be in the public interest for a public official or a person in a
position of trust to be prosecuted when the evidential test is met.
Given the code’s statutory status and the importance attached to it one would expect
the CPS to ensure that the evidential test is applied rigorously in all cases. My
experience based on Court transcripts and documentary evidence suggest that this is
not the case as the following examples, which are typical of the vast majority of so
called historical child abuse that have been brought before the courts over the past ten
years, and for which many men are serving long prison sentences.

Example 1
During Operation Goldfinch in South Wales one individual was originally charged with 98
offences, by the time the case came to court the list had been reduced to 40. The trial
was halted by the Judge Mr Justice Curtis when he threw out two thirds of the remaining
charges referring to the complainant as “a fantasist “and “quick to make serious
allegations that could not possibly be true”
Finally the prosecution conceded that they had no case to answer and withdrew all
remaining charges.

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How does this relate to the statement by Government that sufficiently robust reviews are
carried out in order to avoid weak cases reaching court? How does it satisfy the
Evidential Test above? Was this reliable evidence? Was this a credible witness?

Example 2
In another case in the same operation by South Wales police three complainants were
alleging abuse by one person consisting of 17 charges. The CPS dropped two of the
complainants and proceeded with the one but when the case went to court it was part of
a case involving two other persons, presumably in the hope that numbers would suffice.
It has been argued that such a course of action is intended to reduce cost. It may also be
seen as an attempt to create a more complex set of circumstances for the jury to decide
upon. The possibility being that the individual jury members might be persuaded by the
fact that there appears to be a group of offenders, rather than a number of individuals
against whom a small number of allegations have been made. This practice has been
commented upon unfavourably by judges sitting in such cases. How this square with the
concept of fairness as stated in the Code for Prosecutors?
Dealing with operation Goldfinch, after a court hearing lasting three weeks the jury
returned their not guilty verdict after some thirty minutes. The judge stated …

“Where positive checks could have been made claims could have been
proved to be false” ... It has been proved positively that allegations could not
have happened” . [The explanations given(in the witness box] fly in the face
of common sense” … evidence wholly nonsensical” … “evidence is tenuous –
not capable of belief”.

How does one relate these comments to the requirement for reliable evidence and
robust review , the evidential tests and the credibility of witnesses?

Example 3
In a case brought before the Crown Court in Cardiff the defendant was originally charged
with a series of serious sexual offences against boys, in what was then an Approved
School. The CPS withdrew all charges of a sexual nature when it was made clear to them
that they would be vigorously defended. Finally the case was reduced to three charges of
Child Cruelty, the most serious of which was hitting a boy on the posterior with a
plimsoll.
Despite the acceptance by at least one of the complainants that they had deserved to be
punished and the fact that the incident which took place forty years previously had not
been an offence at that time, the CPS proceeded with the case. The Judge, Judge Wynn
Morgan, in his passing sentence said

“A conditional discharge is suggested. You have committed no other offence

in your life and you are extremely unlikely to do so now ….to have to live
with allegations of this nature at all and certainly for the period of time that
you have, has been a savage punishment, far in excess of that appropriate
for the offences that you have actually committed. For these reasons you will
be discharged.”

This case flies in the face of just about every element of the Code for Prosecutors and
must surely cause very considerable disquiet within the CPS. Furthermore it is clear that
this individual was being tried under contemporary legislation for something which was
not an offence when the incident occurred.

Some concluding thoughts

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In answer to a parliamentary question the police supplied statistics relating to the
number of allegations, arrests, convictions etc, for all forces in the U.K (details supplied
by ACPO; 2001 ). In this document all complainants were referred to as ‘victims’.
In many other instances police refer to ‘victims’ when in fact they are identifying persons
making unproven allegations. An allegation of abuse or any other happening does not
confer the role of victim on the complainant and is indicative of a predisposition to find
guilt using emotive language, with a conviction in mind. Under normal investigative
procedures, the police would give little credence to the ‘evidence’ of people who, in the
majority of cases, have long histories of criminal careers. Yet during the investigation of
alleged abuse cases the police are known to have informed such persons during
interviews of the identity of others they have arrested and the reason why. In some
cases they have also made it plain that there could be considerable financial reward
available to the ‘victims’ in the form of compensation for the alleged abuse.
The police vigorously deny such accusations but there is ample evidence to support the
complaint.

“These investigations are the reverse of normal police investigative

procedures”

This statement refers to the procedures adopted by the police in their investigation into
allegations of historical child abuse. The statement was made during an interview in
1996 by Detective Superintendent John Robbins, Head of Operation Care on Merseyside.
He was commenting on the fact that it was the police who decided that a crime had
been committed; they then set out to find ‘evidence’ of a ‘victim’ and an offender.
The normal process would be that a crime would be reported to the police who would
then attempt to discover the perpetrator through thorough investigation. (Robbins, upon
his retirement, was employed by Solicitors Abney, Garsden, and Mc Donald and is
concerned with persons claiming compensation for alleged abuse whilst resident in
children's establishments. It is therefore probable that some of the people he will be
assisting to claim compensation are those known to whom from his days as senior
investigating officer with Merseyside police.
Another of his dubious activities was to advise persons making allegations of abuse not
to make any claim for compensation until after the court case was concluded thus
making a ‘successful prosecution’ more likely. It is reasonable to assume the Liverpool
C.P.S were aware of this and yet appear not to have taken any action to stop it. Where
then is the concept of fairness and objectivity in these particular cases presented by the
CPS to the Liverpool courts?
The entire judicial system continues to operate on the assumption that the cases
involving multiple allegations are the product of traditional methods of investigation.
Allegations which are in fact the product of ‘trawling’ are treated as though they have
been made spontaneously by unrelated individuals. In the vast majority of cases the
individuals making allegations are linked by one crucial fact … they have all been visited
by police officers before making any complaint. Judge Jonathon Crabtree, sitting at York
Crown Court, June 1999

“The courts must draw the line somewhere”

Is every teacher in England to lie awake at night wondering which child they have
offended twenty years ago might suddenly decide to go to the police and complain?
Anyone who is in charge of children is vulnerable to allegations of assault from any
dissatisfied or angry child, and if no complaint is made for months or years how can any
teacher, carer, social worker or anyone be expected to be able to prove his or her
innocence after so much time has passed? Yet even to this day such cases are still being

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brought before the courts based on nothing stronger than an allegation or multiple
allegations, not evidence.
The accusers are frequently persons with very long histories of criminal activity, whilst
the defendants are individuals who have never been before a court on any criminal
charge. The various police forces throughout the country have produced their own code
of conduct for the investigation of cases of historical child abuse allegations; these are
not infrequently either ignored or paid lip-service.

Such incidents were referred to in the following instance:-

The then South Wales Police Chief Constable, Mr A Burden, received a four page letter
referring to a court case, held at Cardiff Crown Court before His Honour J Curtis, alleging
amongst other matters, perjury by at least one of his officers and at least two
complainants. His reply was to the effect that there was no evidence to support the
allegation [of perjury], despite the fact that all the allegations could have been
investigated by the use of the court transcripts. The CPS has not as far as I am aware
investigated this extremely serious complaint.
It would be interesting to know why the CPS decides to prosecute in cases based on
unfounded allegations, often many years after an offence is said to have occurred and
for which there cannot possibly be a shred of evidence. Conversely, when faced with a
contemporary allegation which can be easily verified or has reliable witnesses to support
it, refuses to take any action claiming a lack of credible evidence.
Mr Peter Jacobs, sitting at Cardiff Crown Court in February 2001 stated in his summing
up

“A crucial part of the evidence is that part played by the police in gathering
evidence and you the jury need to consider that.”

He was referring to evidence given by a detective that he had interviewed complainants

up to a dozen times - contrary to the police code of practice. Contamination could
therefore have taken place. Indeed one prepared
statement contained ‘facts’ that had not been said by the complainant.
Mr Justice Curtis sitting at Cardiff Crown Court No 5 made the comment that much of the
evidence presented to the court could easily have been disproved, there were checkable
facts which the police could have looked into, ‘ It was unsafe to proceed’ given the many
inconsistencies in the evidence presented.
It is frequently stated that those who are guilty of sexual abuse would be expected to
refute such allegations. This is a double jeopardy syndrome; you are damned if you do
refute such claims and damned if you do not. Protesting one’s innocence does not
automatically make one a liar. It is not the accused who is in denial but the prosecutors.
Another example of the quality of evidence which is placed before the courts by the
Crown Prosecution Service can be gained from the comments expressed by Mr Justice
Curtis. In one case he stated that the Crown Prosecution Service

“…had proceeded with these charges knowing that the evidence upon which
they were based was (a) tainted (b)unreliable; (c) unrealistic; (d) false, and
could have been seen to be so by the expedience of a proper investigation.
Yet upon such evidence the liberty of men is brought under real threat”.

Given the present circumstances, it appears that the presumption of innocence is

discontinued in retrospective cases of alleged abuse and that the law now requires proof
of innocence.

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During the Merseyside Operation ‘Care’ at one establishment virtually every male
member of staff who had been employed at the school over a lengthy period was
arrested and charged. This was later thought to be a police ploy, in order to make it
difficult for people who had been arrested to give character references to those
appearing before the court. Once the particular trial was over the police decided not to
proceed with the vast majority of cases.
In South Wales in the case of Derek Brushett, 68% of the staff was arrested. Allowing
that a number of staff were female that must indicate that something approaching 100%
of male staff were accused of sexual offences. Between them the Merseyside and South
Wales police investigated 189 establishments (statistics provided by the ASPO) in the
light of their claim that they only investigated complaints made to them, can they
produce the evidence of 189 complainants willingly making spontaneous allegations?
In Cardiff Crown Court one complainant alleged that a member of staff had during a trip
to the beach murdered a boy and no-one had ever queried his absence. Presumably the
CPS was satisfied with this piece of evidence.
At Chester Crown Court a complainant stated that the defendant had forced a crowbar
up his anus and twisted it round but he did not need medical treatment. In order that
there should be no confusion over the claim the barrister produced a crowbar and the
complainant agreed that that was what he was talking about. Presumably the CPS was
satisfied with this piece of evidence.
When considering the attitude and investigatory processes adopted by the various police
forces throughout the country it is useful to remember the findings of the Baldwin study
(included in the Royal Commission Report) into the approach adopted by the police
during interviews. The study undertaken after the introduction of PACE found that the
police enter the interview room with their mind made up and treated the subject with an
unjustified scepticism and often unfair inducements to confess.
Finally it should be recognised as a fundamental factor that no matter how many
allegations are produced they are not evidence. The number of complainants does not
equate to guilt; indeed the concept of guilt by volume is unacceptable in any reasonable
mind.
Such a concept should easily be confounded by acceptance of the equally valid term
“innocence by volume”, were the police to disclose every person they had interviewed
who had not made an allegation.
If the particular incidents I have identified, and they are only a minute example of the
totality of the problem, are considered against the Government’s statements and the
CPS code it must be a cause for grave concern.
It is however pleasing to note that the number of successful appeals are increasing,
allied to some pertinent criticisms from the Appeal Court. It is to be hoped that if such
happenings continue, the whole sorry debacle will be called into question and a
thorough, independent and all-encompassing inquiry will ensue.

G.A.Jensen

November 2004

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