THE JUSTICE TRAP
The Carl Beech Case Reveals the Potential for Injustice with Historical Allegations of Abuse
Jon Robins on what the imprisonment of the fantasist known as ‘Nick’ shows about how false allegations can ruin lives.
What would have happened if Carl Beech had succeeded in persuading the prosecuting authorities that his bizarre and crazed imaginings were true?
How confident can we be that a jury would see ‘Nick’ as the mad and malicious fantasist that we now understand him to be?
Last week, Beech was sentenced to 18 year in prison, having been found guilty of making false allegations of child sexual abuse and murder against public figures.
Pausing briefly to note an absence of self-reflection in the press over the last week as to its role in giving credibility to such outlandish allegations, I can’t see any reason why our courts would be any less credulous than, say, the police officer who headed the ill-fated investigation.
In 2014, Detective Superintendent Kenny McDonald kicked off Operation Midland with his now infamous public appeal in which he blithely asserted that Nick’s account was both “credible and true”.
Yesterday, the former high court judge Sir Richard Henriques called for a criminal investigation to be launched into the conduct of the officers who worked on the case. He has claimed they used false evidence to search the suspects’ homes.
Sir Richard was the author of a coruscating review of eight investigations into historical abuse allegations published in 2016. It found 43 failings by the Metropolitan Police in relation to just Operation Midland. A report by Sir Richard described the madness at the heart of the investigation: “The policy of ‘believing victims’ strikes at the very core of the criminal justice process. It has and will generate miscarriages of justice on a considerable scale.”
In October 2012, the approach of our criminal justice agencies to historical allegations changed overnight. The ITV documentary Exposure: The Other Side of Jimmy Savile revealed that the former national treasure, whose funeral had been attended by 4,000 mourners, was a shell-suited sexual predator.
It was, as the then Metropolitan Police Commissioner Sir Bernard Hogan-Howe said at the time, a watershed moment. “A dam had burst,” he wrote. After years of ignoring the complaints of victims, the police needed to act. The number of child abuse reports had increased by 80% over the three previous years ending in 2017. It reached the point where the police were receiving an average of 112 complaints a day.
The fastest-growing section of our prison population are the over-60s. Of the more than 5,000 prisoners of that age and older, there are innocent men forced to spend the rest of their shattered and shortened lives behind bars.
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Abuse takes place behind closed doors and, more often than not, there are no witnesses and no physical evidence. That’s why abusers have all too often evaded justice and victims have been forced to live with their trauma for the remainder of their lives. But, false allegations also blight peoples’ lives.
There is a dangerous view that they are so infrequent as to not be worth bothering with. Chief Constable Simon Bailey, who was in charge of Operation Hydrant which was set up to share good practice between forces investigating historical abuse cases, told the Henriques inquiry that, in his view, 0.1% of all complaints might be false. Sir Richard, who has spent more than 40 years in the criminal courts as a barrister and a judge, said that such a claim “bore no relation” to his own experience.
If the absence of corroborating witnesses and evidence seems like an insurmountable hurdle for convictions that are supposed to be proved ‘beyond reasonable doubt’, it isn’t. In fact, as Professor Michael Zander QC recently wrote, historical sex abuse cases are “perhaps the category of case in which the jury is most likely to get it wrong”.
In April, I wrote for Byline Times about a 67-year-old man who had just spent his fifth Easter in HMP Wymott, Preston, as a result of allegations of rape made by a 16-year old girl. He and his wife Sharon (not her real name) have always protested his innocence, insisting that there is no evidence against him and that the jury never got to hear about the full extent of his accuser’s long history of mental illness.
Sharon had an email exchange with the late former Court of Appeal judge Sir Henry Brooke, who felt so moved by the man’s predicament that he decided to review all the paperwork. I have read it myself. Sir Henry, known for his “lifelong belief in the importance of doing the right thing“, went on to write an application on the family’s behalf to the miscarriage of justice watchdog, the Criminal Cases Review Commission (CCRC), in which he explained why he felt that the conviction was unsafe.
In that application, Sir Henry also explained why he felt our courts’ treatment of historic sexual abuse allegations can lead to wrongful convictions. He wrote: “During the last 25 years, Parliament has weakened so many of the protections which the common law put in place in this type of case to ensure that the innocent were not wrongly convicted that it is more important than ever that the CCRC and the Court of Appeal should be willing to intervene if a defendant can be shown to have been badly let down by one or more of his lawyers to the extent that he did not have a fair trial.”
Sir Henry did not detail what protections he felt had been weakened. No doubt the judge had in mind the change in the law which means that our courts no longer require corroboration of a complaint at the forefront of his thoughts.
The requirement for what used to be called the ‘corroboration warning’ was scrapped under the Criminal Justice and Public Order Act 1994. This was the notorious legislation in which Michael Howard, as Conservative Home Secretary, attempted to ban rave music (specifically, “sounds wholly or predominantly characterised by the emission of a succession of repetitive beats”); and in which he undermined the right to silence by allowing for “adverse inferences” to be drawn from suspect who gave “no comment”.
There is a long list of other protections that have been watered down. For example, Sir Henry would have been mindful of limits on the duty of the prosecution to disclose ‘relevant’ unused material, as well as the tightening of rules on cross-examination of complainants on sexual history in sex cases and the relaxation of rules on admission of bad character evidence.
Thanks to Matthew Scott for his help with the list. The barrister, who last week wrote a gripping account of the Operation Midland saga, also added “the slashing of legal aid”. “No-one can afford to spend the hours of preparation that serious cases always require,” he said.
I wrote abut two men wrongly convicted of abuse, Geoffrey Long and David Bryant, in my book, Guilty Until Proven Innocent. Both men are now out of prison having had their convictions overturned. Neither qualified for legal aid. Both were represented at trial by lawyers acting pro bono because they were so appalled by what happened.
That the two men are now free and attempting to get on with their lives after the trauma of prison is down to the devotion of their wives. The two women, Louise Long and Lynn Bryant, were left to reinvestigate the cases themselves to try and identify the new evidence required for a successful appeal.
Under a Freedom of Information Act request, Louise Long managed to recover 3,600 pages of previously undisclosed evidence, including copies of the investigating officer’s notebooks. She then spent £3,000 on getting hold of the original trial transcript. Both men’s wives were convinced that the accusations levelled against their husbands were demonstrably untrue. They were right. Tragically, Lynn Bryant died six months after her husband was freed. Her immune system was not able to fight off an infection and sepsis set. Her husband and friends are convinced that the trauma killed her.
Meanwhile, Sharon continues to fight to get her husband out of prison. Sadly, Sir Henry died last year. He saw this case as a potential test case which, if necessary, should go all the way to the Supreme Court. The case is now with the Criminal Cases Review Commission, the Birmingham-based watchdog which has virtually ground to a halt. The CCRC managed to refer just 13 cases back to the Court of Appeal last year out of almost 1,400 applications.
And so, despite the support of a former Lord Justice of Appeal, the family waits.