On 17 October 2013, the Crown Prosecution Service (“CPS”) published new guidance on the prosecution of child sexual abuse cases. The DPP said it marks “the biggest shift in attitudes in a generation” in terms of the prosecution of child sexual abuse cases. He also said that it demonstrates that the CPS – and the criminal justice system (“CJS”) – is changing for the better and complainants will be supported and treated, well, like complainants should. Not vilified, not treated as though they are ancillary to proceedings and not treated as an afterthought. In fact, the statement and guideline was remarkably (who’d have thought it) on message with the latest Ministry of Justice and Labour justice policies on making the victim central to criminal proceedings.
So, is it a new approach, that victims can hail as progress? Will it allow for balanced prosecutions and prioritise conviction of the guilty rather than targeting the innocent or is this just slick PR?
The overall test
It must be remembered that these guidelines are not for victims to follow when they consider reporting a complaint. The decision to prosecute or not remains with the CPS lawyer who assesses the evidence and considers the public interest. The guidelines set out the approach that prosecutors should take when dealing with child sexual abuse cases. It follows that the guidelines should be read on the basis that evidence and public interest are still the priority. The introduction states:
‘The guidelines are intended to be inclusive and should be applied to cases where a sexual offence has been committed against a child or young person, unless there are good reasons why not in a particular case and these reasons are noted clearly by the prosecutor. The guidelines also include cases of adult victims of sexual abuse in childhood’.
The scope is wide, encompassing all cases where a sexual offence has been committed against a child (including adult victims of sexual abuse in childhood). It is a shocking indictment of society and perhaps of the legislative draftsmen that there are so many potential ways of offending against children in a sexual way. Unlike some European countries, UK legislation breaks down every single allegation into separate and distinct offences. The element of each offence must be proved and this depends on the evidence of the child concerned.
The use of language
All allegations from now on are to be treated as true. The language is presumptive “offence has been committed” as opposed to “allegation that…”. By giving priority to the complaint, the presumption that a person is innocent until proven guilty no longer appears to apply. Of course, like any allegation of any crime, a sexual allegation should be taken seriously and victims treated as truthful unless there is good evidence to suggest otherwise. In no other field of law is there so much scepticism about a complaint. If someone says they have been burgled they are rarely disbelieved. If someone says they have been raped, unfortunately there are still those who are inclined to look for another explanation e.g.she is regretting sex and ‘crying rape’. It is these myths that the guidelines are intended to address but, the choice of language does indicate an imbalance. It is to be hoped that this imbalance is not exploited by those who promulgate the myth that all complaints are false.
The guidelines state that they should be applied in all cases, save the exceptional where there is ‘good reason’ not to. Interestingly, there is no guidance as to what that good reason might be.
Cooperation between agencies
Largely, the document is a restatement of good practice and common sense. Part 1 states ‘[i]n large or complex child sexual abuse cases there should be early consultation between the police and the CPS.’ It is obvious that such a procedure should be followed. It is very worrying that it needs to be stated. In a world where victims now have the right to review CPS decisions, it is clearly important to publicly state what the good practice is intended to be from both investigators and prosecutors.
Context and circumstances
Part 2 states ‘[c]hild sexual abuse covers a range of offending behaviour and types of offenders (which is defined in more detail in Annex B). It is therefore important that prosecutors have regard to the context and circumstances in which the offending is alleged to have taken place, as this will determine how the evidential case should be built and what are relevant lines of enquiry.’ This simply appears to be an elucidation of part of the role of a prosecutor, rather than a shift in attitudes towards prosecuting such offences. Again, the guidelines state the obvious. Suggestions in certain cases that the CPS has been ignoring the context and circumstances of CSA allegations are extremely serious. Headlines in the fallout from the recent Le Vell trial effectively accused high ranking members of the CPS of improper decision-making. It is plainly with such cases in mind that the new guidelines are intended to ensure that it is publicly known that their lawyers are doing their best in very difficult and challenging times. Not to take into account the context and circumstances of an allegation would be professionally negligent and an absurd way to prosecute such cases.
It is on issues of credibility and reliability of witnesses that most child abuse prosecutions turn. Defendants generally argue that allegations are fabricated. In most cases, where the child is a victim, consent is no defence. Part 7 states that ‘[w]hen assessing the credibility of a child or young person, police and prosecutors should focus on the credibility of the allegation, rather than focusing solely on the victim’. This appears to be another change in focus – can the allegation be believed rather than can the person complaining be believed? Such questions can only be answered by a thorough investigation focusing, where possible, on what has been said not who has said it. To ignore the credibility of the allegation would be to derogate from responsibilities as a prosecutor. To identify any supporting evidence might demonstrate that a vulnerable victim is a truthful witness although that can only be properly tested in a fair trial where the defendant is given a fair opportunity to test the evidence. The question remains whether the allegation can be considered separately from the person making it.
Keeping victims informed
Part 3 deals with supporting victims and witnesses and states that they should be made aware of what is expected of them from the outset. Part 4 makes it clear that counselling and therapy is not prohibited and Part 6 states that there is no rule against informing a complainant of other allegations made about the same suspect. Plainly it is a ‘no-brainer’ that the vital most witness in a case needs to be supported and kept informed of the progress of the case. Sadly, since the separation of witness care procedures from CPS responsibilities, this is not always achieved. The new guidelines appear to put that responsibility squarely back on the CPS lawyers. It will be interesting to see whether witnesses feel any better informed or cared for as a result.
It is sad that the guidelines needed to be issued at all, but to do so demonstrates the commitment of the CPS to proper prosecutions based on reasoned decisions. Whilst ‘the public interest’ has always weighed in favour of prosecuting child sex offences (despite some of the decisions made in the past), the public themselves are currently very interested. Outrage at the failures of certain agencies in Rochdale and Oxfordshire concerning paedophile rings and the furore caused by a prosecutor and judge recently describing a victim of child sexual abuse as “predatory” has brought this to the fore. The anger of the public has at times been almost palpable and the popular press have used this as a very large stick with which to attempt to beat the DPP. Victims’ groups and children’s charities have long been saying that attitudes need to change and this has now been echoed in the press. It really followed that the DPP and the CPS needed some good PR, and the public needed to be reassured that prosecutors will do their best. It is a tall order to expect CPS guidelines to ‘shift attitudes’ and with rumours of case-overload and failing administration (linked to the recent savage cuts in staffing at the CPS), the ability of the CPS to implement these guidelines is yet to be tested. We will be watching the outcome with interest.
Felicity Gerry and Lyndon Harris