Behind this set-up lies the presumption of innocence. Whatever the evidence might suggest, the suspect is innocent until proven otherwise, and the impartiality of the police, even in adversarialism, is integral to that principle.
But in late 2014, faced with Nick’s account, the police took a different approach. They instantly believed it. At the launching of Operation Midland in December 2014, Detective Sergeant Kenny McDonald told a press conference: ‘[My colleagues] and I believe what Nick is saying is credible and true.’
The police did not merely say, as they would have been right to say, that they were treating grave allegations seriously and investigating thoroughly. Instead they started from the position that the men accused, whose names were flung around the media and whose lives were publicly upended, their homes searched and their reputations obliterated, were guilty.
The fire took hold. Politicians boarded the bandwagon, with MPs lining up to repeat the accusations against the wrongly accused, elderly men. Tom Watson, who would later become deputy leader of the Labour Party, met Nick in person and publicly denounced one of the innocent men as ‘close to evil’. Zac Goldsmith made similar allegations against the same individual. John Mann jubilantly tweeted that the apprehension of one of the accused was ‘the first of many’.20
Fortunately, no charges were ultimately brought, as Nick’s credibility unwound beyond restoration, and sixteen months and £2.5 million later the investigation was closed. But the damage to the lives of the accused men and their families had been done. The post-mortem into Operation Midland, conducted by retired High Court Judge Sir Richard Henriques, was brutal.
Why had the police been so quick to believe Nick, and to find him ‘credible and true’? The answer, it emerged, was because they had been told to. Since 2002, the College of Policing’s strategy had been expressed thus: ‘It is the policy of the [police] to accept allegations made by the victim in the first instance as being truthful. An allegation will only be considered as falling short of a substantiated allegation after a full and thorough investigation.’21
A 2014 report on police crime-reporting by HM Inspectorate of Constabulary went further, recommending that: ‘The presumption that the victim should always be believed should be institutionalized.’22
The use of the word ‘victim’ as a substitute for the neutral, court-approved term ‘complainant’ was conscious. Under the strategy, any complainant immediately inherited the established status of ‘victim’.23 To do otherwise, the police claimed, would have a ‘significant detrimental effect on the trust victims now have in authorities’.24
This overcorrection to the unforgivable failings of the past is politically entirely understandable. But in practical, legal and philosophical terms, it is unspeakably dangerous. That the policy passed under the radar at the time of its adoption without attracting greater attention is a failing that falls partly on us in the system. For it shamelessly inverts the burden of proof. Stage one of the investigative process – has a crime been committed? – is rendered redundant. Whereas for the children of Rochdale or Savile, the default conclusion of the police was always ‘No’, the equally unsatisfactory default under this model is ‘Yes’. The box is already ticked, no questions asked. Only if the police are satisfied of the opposite will it ever be unticked.
I can do no better than directly quote Sir Richard: this policy ‘perverts our system of justice and attempts to impose upon a thinking investigator an artificial and false state of mind’.25 It ‘has and will generate miscarriages of justice on a considerable scale’.26
The report on Operation Midland laid bare the toxic consequences of the Met’s approach. In the culture of belief, nonsensical allegations are not properly challenged or tested until far too late. Conspiracy-laden ramblings are treated as immutable, protected from the same rigorous examination as the police apply to the denials of guilt by the falsely accused. Evidence tending to contradict the truth of a complaint gets underplayed, confirmation bias prioritizing that which might support what the police have been mandated to believe.
And, as sure as night follows day, the culture of belief led to the police in Operation Midland bending the rules. Sir Richard found an extraordinary forty-three separate failings in the investigation. Police officers misled a judge in order to secure the search warrants that permitted them to make highly publicized ‘raids’ on the addresses of elderly, frail suspects, despite there being ‘no reasonable grounds to believe an indictable offence had been committed’. Officers helped Nick complete claims for compensation.27 Partiality superseded logic and rationality, causing the investigation – and the pain to the accused – to be dragged out for far longer than was justified. As a result of the report’s findings, four detectives and a deputy assistant commissioner were referred to the IPCC.
I repeat the earlier caveat: my reliance on Nick and Susan must not be misconstrued as suggesting that most, or a significant proportion, of sexual complaints are malicious. But some are. And the uncomfortable question follows: how many Nicks, or Susans, presented to the police in those fourteen years where the culture of belief prevailed and found themselves not respectfully challenged on the oddities of their stories, but immediately confirmed as survivors of atrocious abuse?
How narrowed was the scope of those investigations? How many leads were not chased up? How many concerns about a complainant’s credibility were suppressed? How many disclosable documents went unscheduled, or undiscovered, due to their apparent irrelevance to the certainty invested in the complainant’s word? And how many innocents are now locked up and branded, like Warren Blackwell, sexual predators of the foulest kind, due to the displacement of cool, legally imposed investigative neutrality with political doctrine?
And if there are – and we must concede the possibility – innocent people deprived of their liberty due to this culture of belief, this was a culture not of the law’s making, but of politics’. And while adversarialism is of course no panacea to this problem, inquisitorialism’s vulnerabilities to unchecked political influence are cast into stark relief. Loading the entirety of the evidence-gathering process onto a state agency so readily impregnable by dogma antithetical to fairness, truth-seeking and even the letter of the law, to my mind stores up more scope for injustice than can be tolerated. Under adversarialism, at least the fancies of false accusers, or the malfeasance of the police, are guaranteed the energetic challenge at trial, under cross-examination, that the politics of the investigator may lay asunder.
For me, the lesson of history is that the state alone cannot be trusted to find the truth. Whether it’s incompetence or politics, stumbling blocks spring up. And if that concession is permitted, it strikes me that the only meaningful safeguard is an independent, non-state actor to put forward the defence case, with the same force, skill and dedication as the prosecution, and to challenge the prosecution’s assumptions with equal vigour. And for the parties to invite an independent tribunal to consider whether the allegation is proved to the necessarily high criminal standard. Which brings us round to some form of adversarialism.
And from that, the rest falls into place. It follows, I think, that there should be quality controls on the evidence that goes before the independent finder of fact, whether it’s a jury or professional judge. Relevance cannot be the sole litmus; a realistic and humane system must recognize inherent human weaknesses and cognitive biases, and shield the tribunal of fact from material which is likely to distract from, rather than assist, its assessment of the evidence. Knowing that the defendant accused of stealing a bike was once convicted of flashing at schoolgirls may well be interesting, and may well say something about his general character; but does it really offend the object of justice to withhold this information from a jury? Or does it ensure fairness by making sure his guilt isn’t determined by prejudicial, irrelevant details unrelated to the evidence?
If a confession is obtained by oppression or in circumstances where its reliability is compromised, surely it is right th
at the state not be rewarded for the abuse of its power, and that the prejudicial evidence be kept out of the evidential ‘pot’? If Nick had been able to bolster his fantastical allegations by adducing evidence from someone to say, ‘I heard tell of similar stories back in the day,’ would striking that hearsay out of the evidential matrix be wrong, or in so doing would we be maximizing the calibre of evidence that the tribunal will take into account, avoiding unfairly boosting a weak prosecution case? Given what is known about the proven and inherent unreliability of identification evidence, and of the countless miscarriages of justice that have arisen due to honest, convincing and mistaken witness identifications, is it not only proper to ensure that, where such evidence is allowed, the tribunal is directed – as juries are – to examine it carefully and to be alert to the weaknesses?
The answers to those questions, for me, justify the principle of exclusionary rules of evidence, and the corollary rules that govern the use to which evidence can be put, and which set down guidance and warnings for fact-finders. How and where the boundaries of such rules are drawn are matters of debate for weightier, specialist texts, but the principle of filtering evidence to remove impurities, and to minimize the likelihood of wrongful convictions, is perhaps not as far from truth-seeking as might be asserted. It could even, tentatively, be suggested that by so doing we are increasing the chances of the fact-finder reaching a logical and reasoned decision.
Or, if I am overreaching in suggesting that exclusionary rules aid truth-seeking, perhaps I can swivel in this way: truth-seeking, in the way that advocates of inquisitorialism envision it, is not – and should not – be the purpose of criminal justice systems in any event. It is too much. In many cases, it cannot be done. This is not a lazy appeal to postmodernism; just practical reality. There are too many variables, too many unknowns lying outside the scope of reasonable and proportionate investigation, and too many competing truths – such as two men each truly believing the other to be the aggressor – for us to be able to assert with any confidence that we have uncovered the singular ‘truth’ of a scenario.
How on earth, for example, can any investigator, however well resourced, uncover the full truth of what happened twenty years ago, in the darkened bedrooms of a three-bed suburban terrace, when Jay’s daughters got ready for bed? How is a jury, decades on, expected to resolve every question that would need to be resolved to arrive at a full exposition of that family’s sad history? I don’t think it reasonably can be. I think the best we can hope for is that the jury can determine enough from the evidence to answer the question, on the evidence, are we sure that the defendant is guilty of this criminal offence? To ask more than that of the criminal process, to suggest that by reconfiguring the system and restacking the deck in favour of the state we will more easily arrive at a neatly rounded, objective truth, is beyond ambitious. It is a pretence.
This is perhaps why, in the evolution of our legal system, we have never explicitly heralded truth as our guiding light. The progression from confrontation trial, where a citizen prosecutor helped by Marian magistrates was pitted against an unrepresented accused, to adversarial combat between two legally qualified proxies, was never premised on improving the likelihood of discovering the truth of a quarrel. Instead, each increment – from the right to be represented by defence counsel for arguments of law, to the right of counsel to examine witnesses and address the jury, to counsel-led exclusionary rules of evidence, to the right to legal aid – had as its aim the redressing of imbalance, tilting the scales away from the state and towards the individual.
And while seeking universal truths is, for me, an ambition too far, protecting individual liberty is something that I think our system, when it operates correctly, has done quite well. In impliedly acknowledging the limitations of criminal inquiry, and settling instead for a mechanical process designed to spit out a verdict which, due to the agreed fairness of the system, we are content to term justice, we display pragmatism, rather than defeatism.
I do not suggest for a moment that the system in its present form is beyond reproach. There is vast scope for improvement. The obsession with witnesses giving oral evidence-in-chief, for example, is for me an anachronism better suited to an age when a witness would not have to wait months, if not years, for a trial date. In civil proceedings, witnesses give a full witness statement, which stands as their evidence-in-chief, and attend trial solely to be cross-examined on its contents. This, to me, appears an uncontentious compromise, allowing the ‘freshest’ version of events to be their primary evidence. Complainants in sex trials will usually have their contemporaneous video interview with the police stand as their evidence-in-chief; extending similar measures to all witnesses may avoid unfairness arising from fading memories being exploited by either side.
Given a soapbox, I would also require juries to give reasons for their verdicts; to set out clearly their findings of fact, with reasons in support of those findings, and how the law applies to them. Magistrates and District Judges already give reasons for verdicts, as do juries in inquests. In Spain, juries deliver verdicts in five parts: a list of facts held to be established; a list of facts held to be not established; a declaration of guilty or not guilty; a succinct statement of reasons for the verdict, indicating the evidence on which it is based and the reasons supporting the establishment (or not) of relevant facts and a record of all events that took place during discussions, avoiding any identification that might infringe the secrecy of the deliberations.28 Not every issue would have to be decided; I would not be insisting upon an inquisitorially delivered narrative of truth. Rather, as currently directed, juries would continue to decide only the issues that they consider necessary and relevant to reaching a verdict. But it would offer a compromise; it would give all concerned – defendants, victims and public – an insight, and an ability to pinpoint any flaws or errors in the jury’s reasoning; rather than relying on the Court of Appeal to somehow divine what the jurors were thinking.
And there are many other areas where I could, and would, propose technical reform to the operation of the adversarial jury system. However, remodelling it in the image of a doomed pursuit of an elusive, undefined ‘truth’ would not be in my manifesto.
So if I am content to abandon truth as a necessary component of justice, then what of human dignity? What about the impact of adversarial trial combat on witnesses? On complainants? On genuine victims? Those who are victimized not once but repeatedly by the brutality of cross-examination?
Again, after much consideration, I don’t think I can offer a solution. Some of the misery can be mitigated; cross-examination can, and usually is, delivered calmly and sensitively, with most advocates aware that it is often easier to draw out inconsistencies and undermine credibility behind a facade of softness. The image of an overbearing wigged professional hounding a weeping witness is rarely attractive, and for tactical reasons I try to avoid it. Judges are increasingly quick to stop advocates verbally pummelling a witness once the point has been made. And the protections in place for vulnerable categories of witness are being ever-expanded and reformulated, as we considered earlier.
But there will be cases where there is simply no other approach than to firmly and clearly put to a witness: you are lying. And to make them relive every second of the events they describe so that you can clinically and decisively shred every sentence they deliver, building to a closing speech where you publicly implore a jury to reject the complainant as a liar. Because where a defendant gives those instructions – this is a malicious fantasy – it is not for the system, less still for the advocate, to proceed on the assumption that the witness is telling the truth. To do so, to embrace the philosophy of Operation Midland is to protect the Nicks and condemn the Warren Blackwells. Had the defence advocate in Warren Blackwell’s trial been given a sniff of the disclosure that demonstrated the complainant’s proclivity for fantasy, no doubt that trial would have exhibited the robust cross-examination of an ostensibly distraught ‘victim’. And
that would, we know in retrospect, have been only right and proper.
The problem, of course, is that it is impossible to predetermine the genuine complaints from the Susans. Which leaves us with only two options – err in favour of the defendant, and risk a guilty defendant evading justice. Or err in favour of the complainant, and risk imprisoning an innocent.
To the victim swallowing a not guilty verdict and watching their tormentor walk free from court, the formulation of William Blackstone – It is better that ten guilty persons escape than one innocent suffer – must ring as the kind of vapid philosophical cliché that is easy to embrace when you’ve never been the casualty of one of those ten. When I speak to sobbing complainants and their families at court after an unsuccessful prosecution trial, the idea that they would find comfort in me reminding them that their pain is worth only one tenth of the wrongfully convicted is unthinkable. How do you begin to quantify injustice?
But it perhaps, possibly, becomes clearer with distance. When we ask what sort of society we want, can we tolerate imposing the ultimate coercive sanction – permanent deprivation of liberty – upon people who we agree may reasonably be entirely blameless? How much scope for abuse would it give the state to create criminal offences carrying terms of life imprisonment, knowing that any citizen can be convicted on the basis of ‘might have done it’ rather than ‘sure he done it’?
The Secret Barrister Page 27
