What are these cases all about ?
Over the decades there has been considerable controversy over the care which individuals who found them placed in such institutions received and many individuals have now made allegations some going back many decades saying they were sexually or physically abused
Often the people who now make these allegations were placed into these institutions against their will usually due to a break up in their home life or due to juvenile criminality at the time which led the Courts in those days as part of a care order to remove them from home and place then into a care home or residential school .
Those who complain have often had a poor life which started before they were sent to these institutions and has continued ever since .
They will say that they were abused at the time and whatever has happened in their lives is attributable to the person they are accusing , the person accused will say that these things never happened .
You might easily be forgiven that this is a new scandal arising out of the fall out of the Saville Case where upon there was a renewed focus on historical cases but that is very far from the truth .
To place this matter fully into context it is worth visiting the 2002 Home Affairs Select Committee Report and the concerns that were raised at that time over these cases
Taking a further step back there had been a rumbling atmosphere of allegations which originally reached its peak in the early 1990’s , this led in turn to the Calling of the Waterhouse Inquiry Chaired by the Late Sir Ronald Waterhouse https://webarchive.nationalarchives.gov.uk/20130124064403/http:/www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/documents/digitalasset/dh_134777.pdf
This contributed to a wide spread investigation of former care homes across the UK as reflected in the HASC Report and included practices of trawling or dip sampling for potential complainants , a practice which has been heavily criticised . It was the very concerns over the scale and methods of investigating these cases that led to the formal HASC Investigation and the conclusions reached that there was potentially a new genre of miscarriage in these cases .
Appeal History post 2002
The Court of Appeal then started to receive a chain of Appeal cases related to convictions obtained against former carers and teachers . Most notably was the case of Basil Rigby Williams and Michael Lawson in 2003 http://news.bbc.co.uk/1/hi/england/2850909.stm
They had been prosecuted under Operation Care at Merseyside . There then followed another case in 2004 which gained considerable public traction the case of Anver Daud Sheikh https://www.telegraph.co.uk/news/uknews/1453560/Jailed-care-worker-has-child-abuse-conviction-overturned.html
This was a particularly shocking case where he was tried for a second time and had this conviciton quashed again by the Court of Appeal http://news.bbc.co.uk/1/hi/england/lincolnshire/6102630.stm
These cases now established a central principle of fairness namely that where documents were missing and where those records might have conclusively answered whether a former carer or teacher had the opportunity to commit the offence alleged it was unfair to proceed in their absence
The high watermark of the danger of these cases followed in the case of Frank Joynson featured in the BBC Radio File on 4 https://www.bbc.co.uk/news/uk-12881097
But things at this point were starting to change and the momentum obtained in a series of cases was starting to shift and this because evident in cases such as R v Mackreth where the Court sought to significantly limit the principles established in Sheikh and the Court then in 2011 gave its guidance in R v F which sought to further limit the prospects of obtaining a stay in such cases . By the time of Saville we had come full circle and the Pendulum has swung back placing the wrongfully accused in a precarious position .
The Current Atmosphere
Following the 2012 fall out we have spent the last few years in an atmosphere which has been particularly difficult , where the presumption has been that those who complain of being abused have not been believed and therefore every possible accommodation should be made in favour of those people at the expense of the accused .
Of course the fall out has demonstrated that there were clearly some individuals who were not given the voice they should have been and therefore an adjustment of the approach has been necessary . However even in this new environment it has become clear that there are those who have used this as an opportunity to perpetuate false allegations and it has not taken long for there to start to be an acceptance that the initial change of stance of simply believing every single allegation was a step too far .
There are now signs that the system is seeking once again to rebalance itself and on going cases might further drive that change .
We should and must end up with a system where those who have been genuinely abused do have a voice and can make their allegations , but one in which the Police do not then fall into the trap of taking sides , but rather dispassionately investigate the case putting the evidence to the Crown Prosecution Service so that an evidence based decision as to prosecution can take place .
In turn this will also require a rebalancing of the CACD approach once again so that where genuine unfairness has occurred the Court doesn’t do somersaults to try to find a way to uphold the conviciton but rather puts down clear markers as to when these cases are unsafe .
So If I am being prosecuted how can I defend myself after all of these years ?
As indicated representation by a Solicitor who has strong experience in these cases is essential . An experienced Solicitor in this field should know about how a police operation is undertaken in an institutional setting because it is how the institution operated and the records that were generated which will be vital to exposing those complainants who are making false allegations .
Pivotal Records will include :
- Day Books / Occurrence Records
- Staff Rota’s
- Educational Records
- Assessment Records
- Institution Medical Records
- Case Files
- Staff Files
- Absconsion Records
- Admissions and Discharge Records
- Post discharge medical records
- Independent Assessments and monitoring visits
- Compensation Lawyer involvement
- Social Media and digital contact between witnesses
- Complainants previous history
- Police Investigation Records
To name but a few ……..
False allegations are built on real facts and it is essential to assess each and every factual assertion against records available to expose where such an allegation is false .
An experienced advocate will know how to do this and how to construct your defence and case around these elements . It may be others have been prosecuted in the same Operation and the Crown may have adopted differing disclosure policies . There will also be likely a huge amount of supporting material for your defence hidden in the unused material not served and you need to know how to press the right buttons so that the Crown disclose this material .
Defending in one of these cases is far removed from “all you can say is you didn’t do it “
The cases are exceptionally complex and hugely challenging and it is vital that if you are accused you make contact with an experienced legal team ….you only get one chance at this and the consequences of getting this wrong are literally life changing .
Ask the legal team you are represented by what their actual experience is of defending these cases in an institutional setting .