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False Allegations - Mark Newby Delivers Richard Webster Memorial Lecture

on 13th October Mark Newby , QS Jordans Delivered a Speech at the Richard Webster Memorial Lecture on the Danger of False Allegations in Society and their impact .

This Edited version of the Speech sets out the issues and concerns that False Allegations can bring and builds upon the considerable work Mark has done in this field .

“False Accusations their impact on the Individual, the Family and Society “

Thank you for inviting me to be speaking at this Memorial Lecture on the spectre of false allegations and the effects that they bring upon society.

Of course no-one expressed the inherent dangers more eloquently that Richard Webster, Richard took up the cudgels of the dangers of false allegations and their consequences using his great analytical and academic skills and like all those who came to the arena a fresh was able to stand aside from being an interested party and identify what has seriously gone wrong with false allegations and the way in which such allegations can cause so much damage in our society.

The Great Children Homes Panic and the Secret of Bryn Esteyn remain a “tour de force” of what has gone so badly wrong.

As the subject matter of this lecture make clear false allegations have had a detrimental effect not only on those who face false allegations but also the families affected and society as a whole.

Of Course the danger of false allegations has arisen for as long as human beings have lived together on this planet. Whilst I am no Bible basher it is worth that remembering that in Exodus 20:16 it was said:

“ You shall not bear false testimony against your neighbor “

If the idea is not new what we have seen over the last 30 or so years is a dangerous and harmful increase in false allegations where the state machinery has effectively become blinder to the dangers of false allegations.

Only latterly have we seen a spate of cases seeking to reverse the trend to which I will come to later.

Let us turn firstly to keep focused on the subject matter of this talk to the impact of false allegations on society and the current state of affairs we find ourselves in.

We have today a substantial imbalance in Society and the Spectre of Sexual Allegations has become nothing short of frenzy. Cases such as Savile and the Rochdale Abuse Cases feed into creating an atmosphere where all abuse allegations are almost assumed to be true without question.

The reality is that in modern society Salacious Sexual Allegations sell newspapers, they get Politicians votes, the allegations support a whole industry that has built up supporting the investigation and compensation of “victims of abuse”.

The perverse nature of the spectacle means that often the falsely accused and the genuine victim can become lost in the middle.

The Criminal Justice System itself has been wholly skewed in favour of the Victim and operated to place an accused person at a serious disadvantage.

• The Bad Character Provisions introduced by the 2003 Criminal Justice Act

• The New Hearsay Provisions which allow the admission of documents and statements.

• The extensive extension of special measures to every sexual allegation case.

• The extended directions in sexual allegations cases to dictate why a complainant did not report earlier rather than leaving it to the jury to reach its own conclusions unfettered.

• The speedy justice provisions and fast tracking of cases right down to limiting the amount of time to cross-examine a witness.

This leads to a nightmare scenario for a person now facing allegations in which they are fast tracked through a court system, which starts, from a proposition that they are guilty before they even start.

We have seen a large number of cases brought on the basis of a past conviction even if that conviction may also be false.

We have seen cases as perverse as a Full Trial based upon a deceased Victims statement so that the accused never even has the chance to cross examine the witnesses.

And of course the balancing of a case with directions and rulings wholly in favour of the Crown is a regular feature.

Place of course this is context of the proposition in any event that the jury hearing that an accused is facing sexual allegations will start from a position of assuming guilt although how they will respond thereafter of course depends on the quality of the trial process they then become engaged in.

We have seen numerous cases particularly in the context of historical care homes where the prejudice of multiple allegation cases has led to perceived injustices where for example an accused can prove that a particular complainant was not even there at the relevant time the accused worked at the institution and yet the Jury have still proceeded to return guilty verdicts.

The danger of similar fact looms and hangs heavy over these cases.

And for Society then how far does the Trial Process meet anyone’s expectations. It certainly falls far short of the mark for the accused but arguably it doesn’t do much better for those who allege they were sexually abused.

It’s questionable whether bringing investigations so many decades after the events does justice to any participant in the process.

There are those who argue of course that the Criminal Process is ill equipped to deal with these cases as a whole and seek some other vehicle for allegations. “Truth Commissions “ are often given great lip service but the results around the world are less that satisfactory in providing a fair and safe process.

That may be a step too far however for the system. There is probably no principal objection to a prosecution going back several decades but equally there should be no presumption that all such prosecutions can be fairly conducted.

Perhaps calls that question the intervention of the Criminal Courts into very old cases might be less well founded if the Court took the opportunity of concerns over such cases by rebalancing its approach in terms of fairness to the trial process rather than succumbing to societal pressure to further erode the liberty of those accused.

However rather than move further along that line we currently have a Court of Appeal which gives the impression of being highly conservative and one which is actively supporting further erosion of liberties.

These false allegation cases demonstrate the very worst in the police service as well. With police officers becoming heavily involved with the cases losing perspective and approaching what should be an independent search for the truth and converting it to a sift for additional prosecution evidence.

The consequential trawling and contamination of evidence that inevitably follows only compounds the danger of false allegations.

So when police officers tell you they believe the allegations or with this many allegations there is “no smoke without fire” you should approach these investigations with a great sense of caution because you know that the investigation is hopelessly flawed before it even got started.

False allegations thrive in the mire of the police investigation. There remains little protection for the falsely accused during the investigation process although a recent amendment granting anonymity to current teachers is at least a first step but will not adequately address the issues of those no longer in the profession facing historical allegations.

But even when society pigeonholes an accused person through the system to a conviction the consequences of false allegations pervade.

The Prison system is ill equipped to deal with those who maintain their innocence and the Parole Board is completely lost to find a consistent and comprehensive approach to management of risk for those who have demonstrated many decades after the event that they represented no risk to the public at all.

Then there are the financial costs of the Complainants who bring financial claims and the on going drain on the state and its resources by complainants, who will have convinced themselves that their allegations are true, diverting the resources away from those who have been genuinely abused and need continued support.

Whilst no one has ultimately undertaken a detailed assessment of the financial costs one might assume they are considerable consider for example the recent impact assessment over the Sex offenders Notification requirements costs alone which amplified the extensive costs to the Court Service and Prison Service of a straightforward prosecution and short custodial sentence for breaches of this regime.   [See Forthcoming Article on Website on Challenges to the Sex Offenders Notification Requirements]

If those are the implications for society we can guess what the consequences are for the Individual and the family.

As a lawyer dealing with these cases we see the misery that these cases bring but it is still hard to imagine what everyone has had to endure.

The start is a common feature – invariably the knock on the door.

The imbalance then commences immediately as the investigation will already have advanced to a certain level yet little of that material will be disclosed prior to interview.
After the first account the trawl will then commence almost uniformly. If the HASC felt per se nothing was wrong with the trawl it misconceived the extent of damage the investigation can do to the perpetuation of false allegations.

The witnesses will find themselves appointed a Liaison officer who will also act as a conduit for information they should not receive.

Most significantly the evidence of one complainant will be introduced into the evidence of the next either in a purposeful action but most probably by innocent contamination.

Think about it if one officer is told a sexual offence took place in a certain way it is almost human nature when he or sees another witness to enquire or direct the questioning to see if the same happened to this person. The act of contamination has been committed and is then perpetuated as the enquiry continues. 

We then arrive at the point where in Court the Crown is able to crow about a number of complainants all sharing common features – leaving the Judge to make those sort of comments we have all heard to the jury suggesting that it is implausible that all could come up with allegations which share features.

The Spectre of Similar Fact as I have said plays a significant feature in these cases and unfortunately the Courts approach to the issue has not been uniform.

We have certainly seen many attempts to dissapply similar fact by both the Courts and the Criminal Cases Review Commission when it comes to applying the issue in favour of appellants.

Yet on the other hand we have seen some important interventions where the Court has accepted the principle does apply namely the cases of Sheikh [2004] and Frank Joynson particularly in [2008].

Perhaps determinatively this issue will now be addressed in a forthcoming Historical Care Home Review by the CCRC (one of its rare few), which will address the issue of similar fact and a strong argument that the convictions as a whole should be quashed.

But even though we hope for success winning an appeal case isn’t enough. It’s a matter of driving forward that case into the ground level of the Crown Court to try to ensure that cases as first instance of false allegations are stopped before they get started.

Some past appeal cases have achieved that and the opportunity cases certainly for some time helped remove a batch of cases from going all the way to final trial.

Lost documents cases still help stop certain false allegation cases where documents have wholly prejudiced a fair trial and we’ve managed to stop cases before a jury has been sworn.

But again the Court is not slow to react to plug the gap and last year the Lord Chief Justice delivered R v F that has sought to refocus the test for stopping cases back to the classic starting point. It hasn’t completely washed over all the legal work done over the last decade but it has certainly made it harder to mount those applications at trial.

F isn’t the only illustration of the issue and we have recently been on the tail end of a series of memory cases based on childhood amnesia. In Anderson the Court has finally again sought to put a stop to challenges based on these issues.

It’s irrefutable that memory issues do contribute to false allegations and whilst memory remains a real challenge for the criminal court it’s an issue that mustn’t be let go of. Of course the decisions of the Court must be respected but that does not mean that we should not seek to overturn those decisions if new arguments emerge . The issue of Childhood amnesia and expert evidence of it might be a dead issue for the Court of Appeal currently but memory certainly isn’t and we now look to other ways to advance the arguments. 
The Court in an administrative decision [Nunn] has also recently watered down the obligation of the Crown to offer assistance and provide material after conviction although this goes to the Supreme Court in due course.

The danger of this is great for the individual fighting an offence he says he never committed in not being able to access material to pursue his or her appeal. In another CCRC Referral to be heard shortly we will advance before the Court of Appeal evidence that DNA exhibits were never examined before Trial in an attempted rape case. The Court were misinformed and the reality 16 years later is that there is DNA on the clothing of the victim in intimate areas but it relates to another man and not Victor Nealon. This case could never have been brought if disclosure of forensic material was restricted in the way Nunn suggests. 

And for the individual if all goes wrong and he is convicted what then when his conviction is quashed surely that’s an end to the nightmare. Probably not.

He or she is unlikely to achieve compensation unless it can be proved that the evidence which led to conviction means that he can prove innocence or at least demonstrate that no reasonable jury properly directed could convict him or her. Where Judges have been biased or simply misdirected a jury no compensation claim will be achievable [There are test cases currently awaiting judgment see the forthcoming article on] .

The extended CRB checks will also ensure that no one who has their conviction quashed will ever be able to go back to their pre conviction situation. A prospective employer will know they were prosecuted and convicted. They will not achieve employment.

Those concerned will also face attempts to restrict their ability to return to work or undertake any work with children or vulnerable adults in accordance with the ISA Safeguarding Provisions. Those subject to these provisions will often have to challenge these decisions.

The effect of false allegations is as a result draconian and the court system remains wholly ill equipped to deal with them. The HASC report proved to be a lone voice in the wilderness, which did some good but it, seems has been quickly forgotten by many including those who sat on the committee.

Isolated cases or notorious appeals will seek to focus the publics mind but the need for a continued campaign and public voice over false allegations has never been more necessary.

We have seen a number of recent high profile sexual abuse cases and the danger of such cases is that they feed the frenzy and only in turn create the danger of more false allegations. 

There has never been a better time to do Richard Webster justice by taking the challenge, highlighting the dangers of false allegations in the careful and methodical way that Richard approached the subject matter. We must learn the lessons of the past and ensure that these cases do not continue to be a spectre for newer generations to come.
It will not be an easy or popular path to take but one that must be taken as Martin Luther King Jr said:

“Human progress is neither automatic nor inevitable... Every step toward the goal of justice requires sacrifice, suffering, and struggle; the tireless exertions and passionate concern of dedicated individuals “

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