By Det. Sgt. Darren Bruce
Complaints of historic sexual assault cases are often associated with a public and media stigma principally due to the time lapse between commission and reporting of the offence which, in some cases can be decades after it has been since the incident has happened. Investigation of a historic sex crime, generally a complaint from an adult relating to their childhood, and a recent complaint from a child victim are vastly different with the former presenting unique challenges to the investigating officers.
If a crime of sexual assault on a child is recent then the victim will be seen by a Paediatrician and any injuries examined and documented. Scenes of Crime officers will gather valuable forensic evidence from the subject and any relevant scenes. The recipient of first disclosure will be statemented along with any other witnesses. The child will be video interviewed by specially trained officers to gain an account to form the basis of the investigation.
Consideration will be given in conjunction with the SOCO Crime Scene Manager as to what samples will be sent for forensic examination at the lab for potential DNA. The suspect will be arrested and the same forensic considerations taken with regards to clothing and samples. Joint agency meetings will take place to ensure the welfare not only of the child involved, but to safeguard any children who may be at risk from the suspect. These are all vital factors in any case of this nature.
In historic sex assault cases the approach to the investigation has to be tailored to the evidence which is to be targeted. Challenges are predominantly a lack of forensic evidence, time of first disclosure and the availability of supporting evidence and witnesses. In the main, these crimes are committed when the complainant is alone with the defendant and it invariably means the word of one person against the other where the suspect uses an “I didn’t do it” defence.
Over the years historic cases of this nature have gained major press coverage, on occasion when a serial offender has been exposed by a victim leading to multiple victims coming forwards to give evidence. Unfortunately, there have also been cases where the defendant has undergone months, if not years of trauma awaiting trial for it to then be found to be an elaborate fantasised complaint.
This has led to varying judgements from the Court of Appeal designed to ensure that cases are brought not only correctly but with fairness to all parties ensuring that, where the evidence is such that it cannot be left to a jury to give a verdict, and this the verdict is directed by the trial Judge. In previous years stays in historic sex cases were a rarity but it is now the responsibility of the trial Judge to make the important decision as to whether a verdict can safely be reached by a jury even with clear direction.
I recently dealt with case where the offences had been committed some thirty years previously. First disclosure was to friends and family eight years after the offences but no police action was sought. This was often the case in the 1980’s due to the way cases were dealt with at the time. There were no specialist departments and no joint working agreements with other agencies.
The first recorded complaint to police in 2010 resulted in an investigation being undertaken and the suspect being arrested, interviewed and charged. This may sound simple but the procedure from beginning to end is complex. The complainant is interviewed and then their account is reviewed to identify what evidence is available in the form of witnesses and records.
Invariably there will be no forensic or medical evidence and so the first obstacle is to identify when the first disclosure was made and then trace potential witnesses. These witnesses will be asked to recall events possibly long forgotten for their relevance remembering that to them the events are not “personal” issues. This leads to the important and most problematic issue in presenting a case of this nature to the court: the passage of time. It can mean that essential witnesses may now be deceased and records have been destroyed due to local or national policies. Most importantly in this type of case, the memory and recall of the complainant is open to question.
The complainant may be able to give strong, passionate evidence recounting events and they may be able to call upon those who, years later, were the recipients of initial disclosure. Yet, with all of this, it will still be the victims word against that of the defendant who may be a person of good character, holding a responsible position of work and maybe married with a family of their own.
The investigation may result in attempts to trace associates of both sides from around the UK and, in this case, as far as North America. Police records, if a complaint had been made in any form, may have been lost. The way investigations into this kind of offence were dealt with historically may mean they were effectively ‘brushed under the carpet’ by parents on advice as the mindset and safeguarding was an era away from how it would be dealt with had the complaint been recent and made today.
On arrest a search should be conducted of their suspect’s premises. Police will search not only for evidence of the offence but also any recent offending. Whether the suspect has a family, a computer or internet access are all evidential matters to be considered. Safeguards have to be reviewed and put in place if the suspect has access to children or is in a position of trust. The suspect may be suspended from their place of work whilst the investigation continues and their welfare in light of their arrest also is a matter to be considered.
Once all available witnesses have been traced and interviewed the evidence is reviewed before it is presented to a CPS charging lawyer for a decision. Strong questions have to be asked and continuity of the evidence considered in light of the problems mentioned. Whilst the investigating officer may have no doubts as to the credibility of the complainant it is the balance of the evidence and the likelihood of a successful prosecution that needs to be borne in mind by the lawyer.
At this stage there may be sufficient evidence to charge and from here further work to support the case is discussed. What is contained in GP notes which go back to childhood? Is there any mention of something that could raise concerns or be supportive? If the Defence engages an expert, as is generally the case, then one must be obtained to not only review the defence report but also form a basis of independent argument which may assist or even in some cases mean that CPS will have to discontinue the case on the basis of it.
The next stage is a meeting between the complainant and prosecuting Counsel. This is not only to allow them a chance to meet and discuss how a trial may proceed but more importantly for Counsel to gain a personal view of the witness. How do they present and come across? Is there a need for special measures to be applied for, such as video link, screens etc.?
Whilst the Prosecution work is undergone the investigation work continues. Police are bound to look at not only what they are told by the complainant and witnesses but also look into any account provided in interview by the suspect. Are there records or witnesses that may affect the case from this perspective? These lines of enquiry need to be followed up. A Defence Case Statement (DCS) should, be given to the Prosecution way before any trial date, normally at the time set by the Judge at PCMH or court mentions. This often does not happen and I have had cases where the first time I get to see the DCS is the day of the trial. If this does happen there is no chance of testing the Defendant’s evidence and all that can normally be undertaken are the ‘usual’ police checks to see if they have any relevant convictions.
It is often not until a year or so after the matter is brought by the complainant to the police that the case may get to the trial
Part 2, which concludes Investigating Historic Sexual Assault Cases
Getting a case of this nature to court is the first major hurdle but if the offence is over twenty years old then recent judgements have provided trial Judges with guidance on jury verdicts and the safeguards they must consider such as whether they should issue a stay of proceedings or can safely give clear directions.
In the recent case I have written on, experts on the mind, both eminent academics and professionals in their respective fields were called by the Defence and Prosecution to discuss memory, recall and reliability. In essence it depends, from a layman’s point of view, which research paper or study you wish to adopt and base your verdict on. The mind is not an exact science and for every paper giving one opinion, a contrary one can be found.
The Court of Appeal Judgement in Regina v F (Case no:D1/201002010) is the latest to give guidance to trial judges and is of great importance to both the police and legal professionals on reviewing new cases to be put before the court.
At the end of that case, which dated back to events in 1970’s, the Appellant applied to the trial Judge to stay the proceedings on the grounds that, after such a long delay, a fair trial was not possible. A vital witness was no longer alive, records had been destroyed and there was no supporting medical evidence. The trial Judge’s decision was that he could compensate for this by giving appropriate directions in summing up and rejected the application for a stay. The Appellant was found guilty and sentenced to fourteen years and appealed to the Court of Appeal on two grounds:
I. The proceedings ought to have been stayed because of the long delay between the alleged offences and the date of trial; and
II. There were defects in the summing up.
Amongst the cited cases which form the basis for the judge on whether they allow a jury to give a verdict or make the decision to discontinue are R v J.A.K.(1992) Crim LR 30, R v Jenkins (1998) Crim LR 411 and the following:
In R v B (2003) EWCA (Crim) 319; 2 Cr App R 13 the Appellant stood trial for sexually abusing his step-daughter between 1968 and 1972. An application was made before the start that the proceedings should be stayed as an abuse of process by reason of delay. In that case the Appellant was severely prejudiced by the delay. The complainant’s mother had died and she might have been able to give useful evidence. The public house in which the mother had worked no longer existed and the Appellant’s work records no longer existed. Those records might have enabled him to prove that he was away from home when certain of the incidents were alleged to have occurred. Lord Woolf pointed out that at the end of the day the issue boiled down to who the jury believed. At paragraph 28 Lord Woolf provided:
“In this case it has to be recognised that because of the delay that occurred, in our judgement the appellant was put in an impossible position to defend himself. He was not, as Mr Jenkins [defence counsel] says with force, able to conduct any proper cross examination of the complainant. There was no material he could put to the complainant to suggest that she had said that something had happened on one occasion which could be established to be incorrect. There was no material in the form of notes that were given to the doctors which showed that she had changed her account. All that the appellant could do was to say that he had not committed the acts alleged against him. Mr Jenkins says that to say to a jury, when faced with allegations of the sort that were made here, ‘I have not done it’ is virtually no defence at all.”
In all the circumstances of that case the Court concluded that the Appellant’s conviction was unsafe.
A major factor in the case I dealt with was the case of R v Smolinski (2004) 2 Cr App R 40. In this case the Appellant was charged with offences of indecent assault upon two females aged six and seven. The offences were first reported to the police some 20 years later. The Appellant denied that he had been guilty of the conduct alleged. An application was made on his behalf to stay the proceedings for abuse of process. The submission was made that he could not receive a fair trial as a result of delay and that he would be prejudiced by lack of memory because of the time that had elapsed. The trial Judge came to the conclusion that, on the balance of probabilities, it had not been shown that a fair trial was impossible.
The appellant was convicted and appealed. The Court of Appeal quashed the Appellant’s conviction. Lord Woolf CJ, giving the Judgement of the Court, again stressed that in cases such as this application to stay for abuse of process should not generally be made before trial. At paragraph 9 Lord Woolf provided:
“If an application is to be made to a Judge, the best time for doing so is after any evidence has been called. That means that on the one hand the court has had an opportunity of seeing the witnesses, and, on the other hand the complainants have had to go through the ordeal of giving evidence. However, despite the latter point, which obviously is one of importance, it seems to us that on the whole it is preferable for the evidence to be called and for a judge then to make his decision as to whether the trial should proceed or whether the evidence is such that it would not be safe for a jury to convict. That is a particularly helpful course if there is a danger of inconsistencies between the witnesses – – inconsistencies of the sort that it is common ground occurred here.”
Lord Woolf went on to note some discrepancies in the evidence. In explaining the court’s conclusion at the end of his judgement, Lord Woolf provided:
“11..We do not think it is right for this court to lay down the principle that because of the period which has elapsed (twenty years) when the complainant has given a reason for the delay, it is inevitably the case that the convictions will be unsafe. However, where there has been a long period of delay such as existed in this case, and where the complainants are young, as they were here (6 and 7 respectively at the time matters happened), this court should scrutinise convictions with particular care. Likewise, we consider that trial judges should scrutinise the evidence with particular care and come to a conclusion whether or not it is safe for the matter to be left to the jury.”
The appeal was allowed.
The approved Judgement goes on to cite other cases but the crux of the matter is that in cases such as these, there is inevitably a problem with recovery of paper records which have been destroyed due to the passage of time. This could be employment or school records and may provide the basis for a successful cross examination. As a result of the passage of time much of the evidence the defendant could reasonably rely on may no longer be available.
Passage of time will also be stated as affecting complainants, and other witnesses’ memory and effectively the reliability of their evidence. In many cases of historic sexual abuse there is justification for the delay in bringing criminal proceedings. In certain cases, no direction given by the Judge to the jury could compensate the defendant for the prejudice suffered by reason of the long delay. Essentially, the jury were left with the complainants’ evidence that the offences occurred and the defendant’s denial of the allegation.
In my case a stay was requested by the defence for an abuse of process and no case to answer. There were inconsistencies in the evidence from the complainant and that of the first disclosure witnesses. This is to be expected after nearly thirty years and I would have been concerned if all had told exactly the same story.
The two experts cited research papers, studies and various esteemed journals along with their experience and qualifications in their various fields. It was clear from the reactions of the jury and the comments of the trial Judge that it was opinion that could be viewed from both sides of the argument and essentially was not helpful to either side. One expert commented that consistency of recalled memory would give rise to concern if too detailed and the other if the memory was inconsistent and fragmented then it was more likely to be genuine.
The matter of Regina v F formed the basis of the legal argument and centred on the cases outlined above. In cases of this nature the evidence in chief and opinions of any experts is to be heard prior to any legal argument. This is to enable a Judge and jury to hear the evidence and note any inconsistencies before a Judge makes his decision on how the matter is to proceed. It is then for the trial Judge to carefully scrutinise the evidence heard and decide if this is a case that can safely be left to a jury decision with suitable directions or if proceedings should be stopped at that point.
In the case I am discussing, it was because of the inconsistency of the evidence in chief and the fact that due to the passage of time counselling notes and school records had been destroyed that the Judge ruled a “not guilty” verdict to be given as he believed the jury could not safely give a verdict on the evidence presented. This does not in any way mean that the testimony presented by the victim is not believed or the case has been brought falsely. It is matter of law.
The victim at this point invariably will feel let down and frustrated that following the trauma of the whole process and giving evidence at court the jury is not allowed to give their own verdict. The victim should have been prepared by the Police and Prosecution, as best as can be, for all possible outcomes and this was the case during this particular trial. Expectations should be kept in proportion but these are highly emotional matters and the further a case progresses the more the complainant’s expectations will inevitably rise.
The factors I have sought to describe have and will continue to be considerations in historic sex assault cases. Each must be taken on its own merits and the evidence weighed up against this latest ruling. If it is apparent that there is no medical, forensic or recorded evidence to support the allegation and it boils down to one word against the other, then a Judge will carefully and rightly scrutinise the evidence presented, and decide if a stay of proceedings is the correct course of action to prevent a potential miscarriage of justice for unsafe conviction.
Within my introduction to my first blog I mentioned the stigma attached to these cases – the perception that late complaint invalidates the ‘rights’ of the complainant. In my recent case unhelpful comments from local media gave the impression that the “not guilty” verdict meant that the complainant was a liar and that she had unfairly accused the defendant.
Complaint was made about the “cost” to society of bringing such a claim, suggestions made that the victim should be prosecuted for “wasting Police time” and comments that the Police and the CPS had been irresponsible and wasteful in allowing the accusation to reach the point of trial. Other than a cursory comment no attempt was made by local media to explain how the verdict had come about. My victim became a victim for a second time – this time round the victim of misinformed judgements.
A fear of this stigma should not stop or discourage the Police or CPS from attempting to bring such cases to trial, and support of the victim is paramount to encouraging others to come forward.
(c) Darren Bruce, 2011