Are Historic abuse trials reliable?
In April the BBC reported that experts have expressed concern that convictions for historic offending could be unsafe due to memory errors. Frank Joynson, whose case was discussed in File on 4, BBC Radio 4 on 29 March at 2000 told of his experiences of being convicted of historic sexual allegations where the Court of Appeal eventually held that the long delay in starting proceedings meant that a fair trial had not been possible, no jury direction could compensate him for the prejudice caused by the delay and his conviction should be quashed (R v Joynson (Frank) (2008) EWCA Crim 3049). He had maintained his innocence throughout and described his total shock at being accused after 40 years in an unblemished career looking after children in care. In his case, one accuser had claimed he was abused while being made to sit on his lap but his mother had told police at the time that the boy had complained about sitting on his headmaster's lap - a man previously convicted of abuse some years earlier.
There was no supporting evidence and records were unavailable. There is rising public concern in relation to false complaints or false memories which has to be balanced against the public interest in serious sexual allegations being tried whenever they occurred. I recently appeared in R v Hereworth [2011] EWCA Crim 74 where the Court of Appeal upheld convictions for rape and indecent assault against 2 siblings some 25 years after the events in question where witness evidence was compelling and partial records remained available. In that case, the court reiterated the important public interest in such cases being tried. There would be a public outcry if we prevented such victims from being heard when experience shows that through fear and embarrassment complaints are often delayed.
As with all criminal trials, allegations must be tried fairly. Problems arise in old cases where there is no supporting evidence for the sole evidence of the complainant. The statutory requirement to warn a jury not to convict a defendant on uncorroborated evidence was abolished by s34 CJA 1988 (in respect of children) and the CJPOA 1994), s32 (all cases). Defendants find themselves convicted on uncorroborated evidence about events many years ago and scientists start to question the value of evidence based on such memories. However, we should not assume an allegation is false just because there is no other evidence. What the BBC report perhaps failed to recognise was that all cases rely on memory. In my experience, in every historic case there is a suggestion that a memory is wrong. The trial process is designed to cater for such eventualities. Firstly, the Court retains the power to stay an indictment as an abuse of process if the defendant cannot receive a fair trial. In R v F [2011]EWCA Crim 726, decided as recently as 24th March 2011, the Court of Appeal quashed a conviction for historic sexual offences even where there was witness evidence that the child had been seen masturbating the defendant as, in the end, the evidence was contradictory and relevant records and witnesses were no longer available. Judges need to be robust in deciding which cases should be left to a jury and which cases should be withdrawn. Secondly, our adversarial system, which subjects witness evidence to rigorous cross examination, is designed to cater for human failures. Ask any old lady and she'll tell you that she can remember what happened 40 years ago as though it were yesterday. You know it's not true and by proper questioning you can establish what she can reliably recall and what she cannot be sure about. Advocates need to be skilled in their presentation of cases and questioning of witnesses. Thirdly, judicial direction can cure most concerns. The judge retains a discretion to warn the jury of the dangers of convicting on uncorroborated evidence where the circumstances make it appropriate to do so (R v Makanjuola (Oluwanfunso) [1995] 1 WLR 1348). This is generally used in historic cases where witnesses are obviously biased, have been impugned or are otherwise unreliable rather than those merely uncorroborated. The judge can also warn about the dangers of delay. Finally, we must have faith in the jury system. Juries know that memories fail over time. It is within their experience and, in most cases; they don’t need the assistance of expert evidence to deal with memory. If an expert gave their opinion on how memories develop or fade, the same expert would have to concede that different people lay down memories in different ways. If expert evidence were called, a victim might be required to undergo psychological testing which of itself might unfairly suggest they are unreliable. To routinely introduce expert evidence as to memory in a criminal trial would usurp the function of the jury as the inevitable question for the expert would be whether the witness could remember or not. After conviction in cases where the uncorroborated evidence of a victim has been accepted by a jury, advocates commonly find themselves advising that, unless and until there is fresh evidence to undermine a conviction, there are no grounds to appeal the conviction. Providing a trial has been conducted fairly and sufficient reliable evidence is available, this does not necessarily denote a miscarriage of justice and cases like Mr Joynson’s should be avoided
Felicity Gerry