Author Archives: SalemRedux

Victim-centered justice? (part 1 of 2)

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Here’’s how the prosecution system worked in England and Wales until at least 1994. (This applied to sexual offence cases and also to other kinds of offence based on a complaint.)

After a complaint a police inquiry would be initiated. The complainant was an important part of that process, but the police and CPS would be agnostic, for the moment, about whether s/he was reliable or telling the truth. After all, there could be any number of reasons for a complaint, some of them positive, others less so; and recall of events exists on a sliding scale of accuracy [1]. Of course, the whole point of the police inquiry was to test whether the complaint had any basis in fact and was evidence of a crime committed.

The police would follow up any number of relevant leads, and not just those supporting a prosecution. The aim was, in part, to assess the veracity and reliability of the evidence as the inquiry developed.

At a suitable juncture, a file would be sent to the CPS, and an assessment would be made on various criteria. On the evidence gathered, was a conviction more likely than not? Was it in the public interest to proceed to trial? At this point, instructions could be given to the police to make further inquiries to gather more evidence or to finesse that which they had already collected.

The key point here is this. The police and the CPS would together be acting independently. They were not agents of the complainant. They did not represent him or her in any way. Any trial would, importantly, be R [2] v John or Jane Doe, not Complainant A v John or Jane Doe. The complainant was a witness: a vital one, but nothing more. His or her evidence was to be evaluated like the evidence of any witness, for veracity and reliability.

Yes, this system could come over as a little aloof. Mostly because care would have been taken to treat the complainant as a witness and his or her evidence as just that: evidence, like any other. The task of police and CPS was to keep at arm’s length from the complainant and not to get sucked in to any agenda being worked out by him or her.

And then it all changed……

Luke Gittos sets out usefully what then happened.

In 1999, the New Labour government decided that [the] focus on objectivity and impartial judgement failed to do justice to the victims of crime. Jack Straw… said [3]: ‘”For too long, victims of crime have not been given a proper support and protection they deserve. This must change. I am determined to ensure that their needs are placed at the very heart of the criminal-justice system” [4].’….. The Youth Justice and Criminal Evidence Act 1999 allowed evidence from vulnerable witnesses to be given behind a screen or via a video link…. The Criminal Justice Act 2003 then extended these protection to all witnesses, whether considered vulnerable or not, as long as certain statutory criteria were met……

The intentions were no doubt commendable. There is every reason why complainants should be treated kindly and respectfully and their allegations should be taken seriously. The exercise of sensitivity towards a complainant is right and proper in itself. Apart from anything else, such care also helps ensure that complainants feel able to come forward in the first place.

But this should never be – and should never have been – at the expense of objectivity and impartiality……

[continued in the next post]


  1. As a hedge against this, the personal consent of the Director of Public Prosecutions used to be required for a wide range of sexual offence prosecutions. (Consent is still needed in a much narrower range of abuse cases.) Until 1994, corroboration (namely, some form of independent evidence confirming an element of the complainant’’s testimony) was also required by common law in certain cases.  ↩
  2. ‘‘R’’ = ‘’Regina’’, ‘”the Crown’’.  ↩
  3. ‘Partners Against Crime’, Victim Support Magazine, Summer 71, p 8. ↩
  4. There is an obvious problem with what Straw said here. He appears to assume that the complainant is axiomatically believable and reliable as a witness. But this is the very thing that any well-founded trial system is meant to determine – on the basis or evidence and nothing else. Should a complainant’s “needs” be placed “at the very heart of the criminal-justice system”? Not at the expense of a fair determination of guilt or innocence.  ↩


Fear, trust, cowardice: making the connections

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It’s now official: there is no trust left.

Politicians do not trust the public. Why otherwise would the government be rushing through, with cross-party support, a fairly draconian Data Retention and Investigatory Powers Bill (“DRIP”) (pdf)? (There is good comment on this bill here, here, here, and here.)

For certain, we do not trust the politicians. And we are probably right not to.

A principal aim of this blog is to chart the steady attrition of defendant’s rights in the criminal law of England and Wales and to try and work out why this particular tide has been going out over the last years. As we shall see later, questions of trust have to be to the forefront in that discussion. Trust between human beings. Trust towards institutions, and trust placed in the populace by such institutions. Mutual trust. The kind of trust which is now very much under threat in our society.

Andrew Rawnsley in The Observer makes the connection between trust, DRIP and the sexual offences environment explicit:-

It is a question of our age – arguably the question of our age – which links every story that is probably interesting you right now. It screams out of the allegations that a paedophile ring operated at Westminster. It is triggered again by the government’s desire to rush through emergency surveillance legislation in the name of combatting terrorism. It is at the heart of the debate about the future of the NHS. It bedevils the arguments over independence for Scotland. It will be up front and central and decisive at the next British general election. Whom do you trust?… Comes an answer that is as popular as it is succinct: trust no one.

It’s not good enough for governments to blame ‘activists’ or ‘abusers’ or the threat of ISIS, or indeed any one cause, for our current set of predicaments [1]. The present government’s instinct (as was that of the previous administration) is towards authoritarianism and repression. There are still Reds Under Every Bed, apparently, only now we call them paedophiles and potential insurgents. During the Cold War we at least knew who our enemy was supposed to be. But now, for government, it’s potentially… everybody.

Nor is it good enough for some of the media to blame the current scapegoats who they say are to blame for many of society’s ills. What’s needed in a more precise inquiry into the root causes of these issues. And we need a sense of proportion here, too. Otherwise we shall never have any hope of getting trust back, in any form.

As Rawnsley comments at the end of his piece:-

Trust no one is not a good motto for a happy life nor for a functioning democracy. Most of us intuit that. We mourn that we can’t trust our governing institutions and yearn to see some restoration. There’s a great prize here for someone in politics to win, if only any of them knew how to go about grasping it.

There is one other theme which emerges from the present discussion on these topic. That of cowardice. Ray Corrigan sets out the argument succinctly, Through the DRIP proposal and the government scare-mongering behind it, he links fear of terrorism and of sexual abuse together in one over-arching leitmotif:-

Our political leaders are scared… They are not scared of the terrorists… They are scared that the next time there is a terrorist attack they will be accused of having not done enough to prevent it.

Since Corrigan makes this brief connection in his piece between terrorism and child abuse, it’s fair to suggest that his scare-mongering point holds true for abuse issues too, even though he doesn’t make the connection quite explicitly. There is fear there, in government and in the public. It’s a fear of not been seen to have done enough to combat abusers. It’s a fear too in some segments of the populace which government can harness to further develop a Panopticon state.

It’s that intrusive, global surveillance regime – in which everything is seen and where all our (perfectly legal) activities, big or small, wise or unwise, are weighed and evaluated, secretly and more publicly if deemed necessary, for their propensity to harm – that we should be really fearing.

 

  1. Those ills are, arguably at least as much if not more about: rocketing house prices, pension issues, cost of living, voter apathy. Humdrum, unexciting, important stuff.  ↩

Aims and Principles

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The aim of Salem Redux is to explore the criminal law landscape, prosecution policy, and advocacy practice relating to the investigation, prosecution and trial of alleged sex offences in England and Wales.

Sex offence allegations are currently a vastly conflicted area of public culture in the UK. It is hard to think of an area of civic concern more open to knee-jerk reaction, scapegoating and name-calling.

Driven in part by an increasing obsession with sex abuse issues, huge changes have for some years been taking place in the criminal justice system of England and Wales. Those changes have damaged the rule of law and have taken place without adequate public awareness of their deeper consequences. Juries now regularly struggle, in sex offence trials, to find the wood for the trees, and are often left confused and bemused by the task before them.

Strong feelings are naturally unavoidable when it comes to alleged acts against children and young people. Everyone wants to preserve our young people from harm. But to allow emotionality to drive swings in policy, without comprehensive open debate, will build problems for society and individuals which may take decades to rectify – if indeed rectification ever takes place.

There is therefore a pressing need to conduct a proper public debate on the following topics:-

  • we need to discuss the corrosive effect on defendants’’ rights of the last twenty years of government policy decisions regarding admissibility of evidence generally in criminal cases, but particularly in connection with the prosecution of alleged sex offences.
  • we must identify and analyse the ideologies at work behind these policy decisions – both within the present government and the preceding one.
  • we must speak honestly about the yo-yo mood swings in public and media about sex offences in response to high-profile acquittals (Michael Le Vell, Nigel Evans) and then convictions (Stuart Hall, Max Clifford, Rolf Harris). We must honestly address the issues which lie behind that pendulum effect, and the ways in which governments have responded to those mood swings.
  • importantly, we must spot – and then critique – the prioritization (and almost canonization) of the ‘‘victim’’ complainant [1] within the criminal law – because this ‘’victim’’ mentality is leading to a gradual erosion of defendants’’ rights and a growing adoption of ‘’conviction success’’ ideology in the Crown Prosecution Service and police.

This is not in any way an anecdotal, existential or experiential blog. This blog tries to promote objective debate. Alongside that, it argues for an appreciation of the continuing value of centuries-old principles of criminal law in England and Wales, principles designed to balance justice with fairness.

Historically, English law has always argued that it is better, if it comes to it, to acquit a guilty person rather than convict an innocent one. That wise principle is now under attack as never before, and we must stop it from being further damaged.

The by-line to the blog, “”Judicial Barbarism?””, is taken from a Guardian ‘Comment is Free’ article by Simon Jenkins dated July 8, 2014, in which he writes:-

The case for finding new ways of detecting and treating [child abusers] is overwhelming, as is the case for helping their victims. That is where the state’s money should go. Yet we deal with sex crimes by licensing anonymous accusers and staging celebrity show trials, with lawyers in gladiatorial legal combat before juries. From the attendant publicity, no reputation survives. It is judicial barbarism.


  1. We put ‘’victim’’ in quotation marks because the matter is not as simple as it seems. Many complainants are no doubt telling the truth as they see it. Some are not. It is also arguable that, where a defendant is wrongly accused of a sex offence and is innocent, s/he is also a ‘victim’, if we are going to adopt that terminology. To speak of the ‘victim’’ so readily can mask the real issues, which are about justice and fairness – for all.  ↩