Saturday 8 December 2012

Prosecution of Historical Child Abuse

Among the most difficult criminal cases to investigate and prosecute are those relating to allegations of historical child abuse.  Following the emergence of allegations against the late Jimmy Savile, a number of other cases have appeared as a result of Police investigations such as the Metropolitan Police's Operation Yewtree .

In October 2012, Commander Peter Spindler of the Metropolitan Police said:

"We are dealing with alleged abuse on an unprecedented scale. The profile of this operation has empowered a staggering number of victims to come forward to report the sexual exploitation which occurred during their childhood."

The investigation of such cases is complex, the decision for Crown Prosecutors as to whether to prosecute is very difficult and the conduct of a trial presents formidable difficulties in ensuring that, many years after the alleged events, the defendant receives a fair trial.

It is not appropriate to comment about any specific cases which may be likely to go to trial.  However, it is to be hoped that those involved in these cases have read the incredibly impressive study by Professor Penney Lewis - "Delayed Prosecution for Childhood Sexual Abuse."   The book is available for purchase - here

The book looks at the response of the criminal justice systems of common law jurisdictions to these challenging cases.  Matters considered include: the reasons why complainants may delay reporting abuse for many years; the debate over whether long-delayed criminal prosecutions should be brought; the common law remedy of abuse of process which can ensure that unfair or oppressive prosecutions do not proceed.

The book's focus then turns to the trial of delayed childhood sexual abuse allegations, considering the use which can be made by the prosecution and defence of evidence of complaint and delay in complaint, and the methods by which the jury can be informed of the reasons why complainants may delay. The role of warnings to the jury about the absence of corroboration and the forensic disadvantage or prejudice which the defendant may have suffered as a result of the complainant's delay in coming forward is scrutinised. Particular problems raised in cases involving recovered memories, and those involving multiple allegations are analysed. Finally, retrospective assessment of trial fairness and the safety of convictions is considered.

In 2009 the National Police Improvement Agency (NPIA) published Guidance on Investigating Child Abuse and Safeguarding Children

See also - Crown Prosecution Service - Prosecuting cases of child abuse and Safeguarding Children - Guidance on Children as Victims and Witnesses.  The CPS notes that, in relation to historical cases, the following issues may arise: loss or deliberate destruction of evidence; witnesses deceased or untraceable; previous indication that no prosecution would follow; delay in making a complaint; trawling; collusion; compensation; changes in legislation.

In 2002, the Home Affairs Committee published  Conduct of investigations into past cases of child abuse in children's homes  and the government's response (2003) is here.  

It is right that the book is not closed on such cases but it must also be right that investigations are conducted meticulously, prosecutions are only brought after the most thorough consideration and that trials are conducted by judges and lawyers well versed in this aspect of the criminal law.  Even the allegation can be damning for an individual and the consequences of conviction will be immensely serious.

Some cases from the Channel Islands are also of interest since, in 2009, a decision was taken not to prosecute certain of the cases.


  1. If one thing is more obvious than another in criminal justice it is that a person being prosecuted must be told what he is accused of doing, when, where and to whom in sufficient detail to allow him to defend the charge. If a complainant says "it was on a Saturday and I was seven" that gives 52 days to choose from - and if it is decades later there may be nothing for him to say except "No I did not" where if the charge had been made promptly he might have been able to show where he was on the date in question - and probably never have been charged.

    I seriously doubt whether the criminal justice system is capable of doing real justice in cases like that. I know it goes against the grain to let somebody, anybody, get away with appalling offences - but the civil law copes with limitation periods, there is limitation in summary cases, and perhaps there should be in indictable offences too.

    1. Re limitation periods - this was suggested by the Home Affairs Committee but rejected by the government - see government response (link above) at paras. 59-62. Decision whether to prosecute depends on the totality of the available evidence.

    2. A question from the Colonies…

      Does the law take into account things like False Memory Syndrome? I know that some of my most cherished childhood memories never happened — I've discovered that I've later constructed them out of several different events and even a memorable film I watched when young. (It was rather astonishing to watch the film as an adult, and realize that I was watching part of what I'd always assumed was a memorable holiday when I was six. Amazing how the mind works, and how little we still understand it…)

    3. Ed (not Bystander)11 December 2012 at 04:22

      I cannot imagine what type of mind would imagine which day of the week it was mattered in the prosecution of such an offence.

    4. False memory syndrome is extremely uncommon - I am sorry you experienced this yourself. Its rarity and unscientific basis is reflected in a lack of diagnostic code in the DSM-IV and ICD-10, and in the lack of proven documented cases (when compared to cases of convictions of genuine abuse). The False Memory Syndrome Foundation themselves can only come up with a few proven cases per year in the whole of the United States. Although the suffering of those who have had false memories should not be ignored, it should not dominate or discredit the argument of historical abuse cases because of its rarity and lack of scientific understanding on the topic. Besides, if someone were to have false memories, I think it would be difficult to prove them to be true in a court of law. Could you have proven your memories in court, if they were false?

  2. Let me help you, then, Ed. Complainants often say something like "It happened when Roger the lodger used to left to look after me on a Saturday night when my parents went out". If - remarkably - Rodger can prove that it was his invariable practice while he was the lodger to go to his sister for dinner on Saturday night and she says - and is believed - that he never, ever missed - bang goes the case.

    That is, no doubt, an extreme case. But the prosecution can properly be required to give as much detail as possible about "when and where" and the day of the week may be very important in telling the Defendant the case he has to meet.

    Does that explain what I meant?