Historical Child Sex Abuse

Lord Judge Excerpts

Thursday 30th June 2016 Lords Chamber

[Lord Judge (CB)]

My Lords, what a pleasant story to lighten up rather a gloomy morning.

I do not want to discuss any individual case. I share the anxiety of the noble Lord, Lord Lexden, about the number of cases where disquieting situations have been identified. Perhaps I will begin by saying that the presumption of innocence survives death.

I hope it will be of interest to the House if I discuss briefly the context in which we have arrived at where we are, in which the Crown Court is packed, day by day, with cases alleging sexual abuse going back many years. It starts from this: when I was called to the Bar, the general assumption was that a child’s evidence really should not be heard. The obstructions were huge and, when you did get to court, there were further obstructions. Let me start with the ones at court, because there is not time to deal with them all.

Something that the noble and right reverend Lord, Lord Carey, said reminded me of this. In 1958, Lord Goddard made it absolutely plain that it was ridiculous to suppose that the jury would attach any value to the supposed evidence of a child of five years old. Notice the word “ridiculous”—it is not moderate. That sounds like the five year-old girl spoken of as Carole. I do not know anything about what she did, but the reason I am describing this is that it exemplifies the then broad attitude to complaints made by children.

There was a competency test if a child came to give evidence. The judge solemnly asked questions about whether the child believed in God and hell-fire. Depending on the judgment that the judge made, the child could be sworn—or not. If the child was not sworn, there could be no conviction without corroboration, to which I will come. Five small boys or girls saying, on separate occasions, “The history master touched me on my bottom”, if they were all unsworn, could not provide support for each other. There could be no corroboration, although five little children happened to say that the history master happened to be doing this thing to them. As to the rules of corroboration, you have to imagine that only a legal technician could invent them.

Let us take the issue of distress. Distress is sometimes a sign that something has gone wrong, is it not? But the jury had to be directed: “Well, distress, members of the jury … Well, children often do suffer distress, so there may not be anything specific about it. Anyway, distress can be easily feigned, as you know”. Of course, it is true. We were treating children as though they were more likely to lie and make things up than adults. I regret to say that adults make things up and lie just as often as children. We then got to the solemn warnings to the jury, assuming the evidence got to the jury: “Now, you may think that little boy or little girl was a very impressive witness, but I must direct you on the dangers of convicting on the evidence of a child. And if it is a sexual offence, it is doubly dangerous to convict on the evidence of a child”. As to the courts’ arrangements, I still remember a stepfather coming into the court—it was not Crown Court; it was the Court of Session—bringing with him the 13 year-old stepdaughter he was alleged to have indecently assaulted. What kind of start to giving evidence against your stepfather would that be? The other problem was that a statement taken from a child could not be used in evidence, so six or nine months after the event the child had described in the witness statement, nobody said, “Have a look at your statement”. Six to nine months later, much of the periphery will have disappeared from the memory of a child, but of course the periphery is not what the issue is.

The whole process in court made life difficult and, although I am talking about courts, they simply reflected public views on these issues. Children invented allegations. History masters did not do dirty things. It was very easy for the child to invent and their allegations could not be true. Some of your Lordships will remember Esther Rantzen’s great efforts to heighten this issue on a television programme and I wonder whether your Lordships will be true to their consciences and remember wondering at the time whether she was exaggerating. I bet that, if you are true to your consciences, you will say, “That is what I thought”. We are now reaping the whirlwind consequent on silencing children who had complaints of serious sexual crime to make. The whirlwind is no place for calm justice, and that is part of our problem.

Another part of our problem is how we address the issue. Put simply, let us have no more historical sexual abuse cases, by which I do not mean today but that in 2035 we are not examining allegations made in 2001, 2002, 2003, 2004 or 2005. The process of reforming our system has been amazing when I compare the world that I was brought up in at the Bar—and it was the whole of my time at the Bar right until I left it in 1988—with where we are now. It is much better. But the processes still move with the alacrity of a disenchanted snail. His Honour Tom Pigot, the former Common Serjeant of London—he is not with us now—produced a report in 1989 which just about everybody who has read it thinks is a strong way forward to enable justice to be done: not to convict the innocent but to enable the matter to be properly looked at. In 1991, there were some small changes; in 1994, there were some small changes. In 1999, we had the Youth Justice and Criminal Evidence Act, which allowed for a pre-recording of the evidence of the child to be taken as the evidence, so the child would be interviewed and there would be the child’s story. Tom Pigot recommended that the cross-examination, too, should be pre-recorded—in 1989, mark you. In 1992, Western Australia introduced the system that Judge Pigot and his committee had recommended to us in 1989. In 2010, some marvellous research in Australia demonstrated that this process was not inimical to justice. There was no suggestion that there had been an increase in the miscarriages of justice—nothing like that.

Where are we in our jurisdiction? We now have a pilot scheme in Leeds, Kingston and Liverpool. Judges I have heard about think it is admirable, that the process is very good. Let us take one simple advantage. If the child is giving evidence of assaults in which he or she has been involved or been a witness to involving a number of defendants, the trial may be split for obvious reasons. This way round, you have the child’s evidence-in-chief and the child’s evidence in cross-examination. The child does not have to go through the process four times even though there will be four trials. It is admirable. You have the child’s evidence as it is, fresh. It is of course open to objection and to cross-examination—the processes have not changed.

There is one more plus, which I emphasise because it goes to the heart of whether there will be allegations in 30 years’ time of sexual abuse now which have been silenced. Once you have all the child’s evidence, you can then decide whether the child should have treatment. If the child has to be cross-examined it is difficult to arrange for treatment, if it is necessary, because by the time of the trial the child will be slightly confused, inevitably, about what was treatment, what the treatment was and whether the reiteration of the story to the psychiatrist, psychologist or whoever has changed the story. There is a great tendency in the system to say, “No, don’t let us have treatment until the process is complete”. However, once the evidence is there, you can get on with whatever is needed for the child.

Please do not misunderstand me. I am not saying that every allegation is true, that false allegations are not made or that mistakes will not be made. We must bring Pigot to the cross-examination issue and pre-recorded testimony into effect as soon as possible. It has been waiting since 1989. I cannot say more than that. The longer it goes on, the longer we will have the process I have outlined, with the difficulties in relation to treatment and getting a contemporaneous story, which is more likely to be true than a non-contemporaneous story, and so on.

One day it will happen. One day—this is not in Pigot’s report—I hope it will be quite unnecessary for a child ever to go to court to give evidence in the physical surroundings of the court building because the evidence will be there. The child will not be needed. Of course you build in discretion for the judge to say, “Yes, this is a case where, I am afraid, we must have the child here”, but it is not necessary once you have it all on tape.

These disquieting situations involving the historical sexual abuse of children which have been referred to have produced the whirlwind that puts us where we are. The presumption of innocence remains. The need to investigate modern, ancient or middle-aged allegations of sexual crime with assiduous fairness remains. There is no presumption. What is needed is an open mind and for us to bring our own system in the court up to date.