The criminal justice response to child sexual abuse: time for a national consensus
Keir Starmer QC, Director of Public Prosecutions
In recent years, both the police and prosecutors have put a great deal of effort into improving the way we investigate and prosecute sexual offences, particularly those involving children. Many police forces now have specialist units to deal with these cases, staffed by specially trained officers. Strategies and techniques have improved and policy and guidance have been progressively tightened and improved.
The CPS has also introduced specially trained and accredited rape prosecutors, policy and guidance has been rewritten and soon every CPS Area will have a dedicated Rape and Serious Sexual Offences Unit embedded in its Crown Court team. Internal assurance mechanisms have also been improved; there are now specialist coordinators across the CPS not only for rape, but also for child sexual assault cases.
The results of the changes and improvements made by the police and prosecutors are encouraging. The number of cases being brought to court has increased; the conviction rates for sexual offending have improved - the conviction rate for rape is at a record high - and more defendants are pleading guilty, which is usually a good indicator that the cases being presented are well-prepared and strong.
Yet, despite all this, events over the last 12 months raise fundamental questions about the way in which we investigate and prosecute sexual offences, particularly those involving children.
On 6 May 2012, the CPS secured convictions in Operation Span in Rochdale, the first case to start a serious debate about grooming and sexual exploitation of young and vulnerable victims. The defendants in that case were found guilty of serious serial sexual abuse, including multiple rapes, and sentences as long as 19 years were imposed on the main protagonists. But the case only succeeded because an earlier decision not to proceed, taken in 2009, was re-examined and reversed.
When in September last year I convened a panel to review the whole case, including the reversed decision, it was clear that if the yardsticks traditionally used by prosecutors for evaluating the credibility and reliability of a victim in other cases were used without adaptation in cases of child sexual exploitation, the outcome could potentially be a category of vulnerable victims left unprotected by the criminal law. To take the obvious example, if the credibility and reliability of the victims of exploitation in Rochdale were tested solely by asking questions such as whether they reported their abuse swiftly, whether they returned to the perpetrators, whether they had ever told untruths in the past, and whether their accounts were unaffected by drink or drugs, the answers would almost always result in a decision not to prosecute.
Soon after the CPS review of the Rochdale grooming case, allegations of serial sexual abuse by Jimmy Savile began to circulate. As did other allegations. In November last year the CPS was asked for a view on whether a decision taken in 1970 by the then DPP, not to bring criminal proceedings against the late Cyril Smith MP withstood scrutiny; we found that it did not. In the same month, the Home Secretary asked the embryonic National Crime Agency to look again at allegations of sexual abuse in care homes in North Wales, following revelations on Newsnight, which were themselves to have serious consequences for the BBC.
In relation to the Jimmy Savile allegations, I asked my Principal Legal Advisor, Alison Levitt QC to examine the decisions taken by the CPS in 2009 not to prosecute three allegations made to Surrey Police and one allegation made to Sussex Police in 2007 and 2008. Ms Levitt's conclusions were telling. Although she concluded that there was nothing to suggest that the decisions not to prosecute were consciously influenced by any improper motive on the part either of the police of prosecutors, Ms Levitt concluded that, despite the fact that, looked at objectively, there was nothing to suggest that the complainants had colluded in their accounts, nor that they were in any way less reliable than complainants in other cases, the police and prosecutors treated them and the accounts they gave with a degree of caution which was neither justified or required. This manifested itself in different ways. Surrey Police decided not to tell each complainant that other complaints had been made; Sussex Police told the complainant that corroboration would be needed; for his part, the CPS prosecutor, when told by the police that the complainants did not support a prosecution, did not probe this or seek to 'build' a prosecution.
I published Ms Levitt's report into the Savile allegations in full, along with a frank apology to the victims on 11 January this year. At the same time, the Metropolitan Police and the NSPCC published a separate report detailing the several hundred allegations made against Jimmy Savile which were not reported at the time. This report made very uncomfortable reading. Since Operation Yewtree began on 5 October 2012, approximately 600 people have come forward to provide information to the investigation team, of which about 450 relate to Jimmy Savile. At the date of the report most but not all victims had been interviewed and 214 criminal offences had been formally recorded across 28 police force areas.
It is not just the scale of this offending that is disturbing. Equally concerning is that whilst the NSPCC Helpline was contacted by some people who had previously reported their concerns and wished to alert the authorities, the majority of victims had never spoken about their experiences to those authorities until now. The reasons cited for this were varied and included the fear of not being believed and a lack of trust in statutory agencies or feeling that the justice system would be ineffective in prosecuting the offender.
The purpose in publishing the Yewtree report went beyond providing a detailed analysis of Jimmy Savile's offending; it was also to explore how the police and other bodies can learn to be more effective in the resolution and prevention of serious sexual offending. As the report made clear, central to the many questions posed both by Savile's victims and others are: why did it happen and why was it not noticed and stopped by the police, health, education or social services professionals, people at the BBC or other media, parents or carers, politicians or even 'society' in general.
It is important to take stock of the findings of both Ms. Levitt's report and the Yewtree report. The latter indicates that despite the progress made by police and prosecutors in recent years, many victims still do not have the confidence to come forward and report the criminal offences committed against them to the police. The former indicates that, again despite the progress made by police and prosecutors in recent years, experienced and committed police officers and prosecuting lawyers are still, on occasion, adopting the wrong approach to cases of sexual assault involving children, even though acting in good faith and attempting to apply the correct principles.
When the two reports were published, I described it as a 'watershed' moment, calling for a robust response. In my view, we have to face up to the situation that confronts us. I support and admire the hard work that has gone into improving the criminal justice response to sexual offending in recent years. As Baroness Stern readily acknowledged in her report into how rape allegations are handled in England and Wales published in March 2011:
"... a substantial amount of change has been introduced in recent years by the public authorities that carry responsibilities in this area. Attitudes, policies and practices have changed, fundamentally and for the better."
But that should not tempt us to ignore the clear conclusions of Ms. Levitt and the Yewtree Report. Without jettisoning the progress already made, a clear line now needs to be drawn in the sand and we need to redouble our efforts to improve the criminal justice response to sexual offending.
To that end I have had frank and meaningful discussions with senior police colleagues, including David Whatton, the Chief Constable of Cheshire and the ACPO lead on violence and public protection, Peter Davies, the Chief Executive of CEOP, representatives of the College of Policing and the team leading the HMIC's work in this area. I am pleased to report that we have made progress and today ACPO and the CPS have announced a package of measures intended to change and improve the criminal justice response to sexual offending, particularly involving children. Before examining the details of the package, let us remind ourselves of the most important shortcomings identified to date.
First, the yardsticks for testing the credibility and reliability of victims in sexual abuse cases do not serve the police or prosecutors well and risk leaving an identifiable group of vulnerable victims unprotected by the criminal law. The details of the Rochdale grooming case are now in the public domain and there are other similar cases around the country. The evidence is clear. Many of the victims are vulnerable precisely because they are not only young, but they often display some or all of the following characteristics: they are unable easily to trust those in authority and still less able to report intimate details; they use alcohol; they return to the perpetrator of the offences against them; and, not infrequently, they self-harm. If the criteria for testing their credibility match the characteristics that make them vulnerable in the first place, we have a fundamental flaw in the approach to credibility. And it is clear from the other child sexual exploitation cases that have been brought since the Rochdale case, and from the work of journalists such as Andrew Norfolk at The Times, that the number of victims at risk may be considerably higher than previously thought.
Second, an overcautious approach has, on occasion, been adopted. In order to guard against false allegations, police and prosecutors have approached complaints of sexual offences with a degree of caution which is not generally justified. In doing so their concerns understandably reflect those of society at large, namely that there is a real and prevalent risk to suspects that someone will make a false allegation that they will find impossible to disprove. That concern should not be ignored, but it is important that it is kept in proper perspective. The risk, otherwise, is of sexual offences being subjected to a different and, in reality, more rigorous test than that applied to other victims.
Thirdly, despite the existence of good guidance on investigating and prosecuting sexual offences, the approach taken in practice is still too patchy and inconsistent. Again this was identified by Baroness Stern in her rape review, where she concluded that "The policies are not the problem. The failures are in the implementation".
Against that background, I have agreed with ACPO the following measures:
- There needs to be a radical clearing of the decks in relation to policy and guidance about investigations and prosecuting sexual offences, particularly in relation to offences against children. A swift review by ACPO of existing policies and procedures on child abuse investigation has revealed no less than 19 practice guidelines, dating between 2002 and 2013. Some of these are intended to be national policies, some are specifically for the police and partner agencies.
For its part, the CPS has policies covering rape and sexual offences, child abuse, safeguarding, child victims and witnesses, some of which are CPS specific and others of which are intended to be joint ACPO/CPS policy. Notably the CPS has no policy relating specifically to child sexual exploitation.
What is needed is one overarching and agreed approach to the investigation and prosecution of sexual offences, applicable in all police force areas and agreed by the CPS. All other existing policy then needs to be cancelled and made inaccessible. Both ACPO and the CPS agreed that this overarching policy should be promulgated by the newly established College of Policing and I am happy to report that the college has not only agreed to undertake the task, but has also undertaken to have draft policy ready for consultation in May this year. This is real progress and both David Whatton and I are very grateful to the College of Policing for their assistance on this matter.
For its part the CPS will draft new prosecution specific guidance on sexual offences concerning children within the same timeframe. By this means both ACPO and the CPS hope to introduce a scheme for consistent best practice across England and Wales.
- To ensure that there is no gap between policy and practice, I have agreed with ACPO that a training package should be prepared, delivering practical advice and guidance to front line police and prosecutors dealing with child sexual exploitation cases. There will be two elements to this training. First, specific training delivered by my Principal Legal Advisor, Alison Levitt QC, on the lessons to be learnt from the way the Savile allegations were dealt with. This will be delivered to both CPS and police specialists. Secondly, more general advice on the new overarching guidance that we are developing. This training needs to be practical and hands-on. For example, advising police officers and prosecutors to consider carefully whether one complainant should be told about other complaints is helpful, but advising them in practical terms precisely when a complainant can and should be told about other complaints, and how far they can go in providing detail, is far more useful.
- In addition, we have proposed the formation of a national scoping panel, which will review complaints made in the past which were not pursued by police and prosecutors, if requested. The proposal is subject to approval by Chief Constables later this week but it is envisaged that the panel will review cases where either the police or the CPS advised that no further action should be taken in the past and alleged perpetrator may pose a continuing risk to the complainant or others. Cases will be referred to the panel by individual police forces where complainants raise questions about past cases with them and the role of the panel will be to advise the relevant Chief Constable whether in the panels view the case should be reinvestigated. Panel membership is yet to be finally decided, but there will be high level representation from senior prosecutors from the CPS, either Chief Crown Prosecutors or Deputy Chief Crown Prosecutors and senior police officers at ACPO rank, and it is hoped that an independent third element can also be added.
Both ACPO and I hope that these three measures - overarching single guidance, specialist training and a national scoping panel - will go some way to reassuring victims, and the public more generally, that the CPS and the police have taken the challenges posed by recent cases and reports relating to children seriously, and that we are prepared to take swift and decisive action together where necessary.
But, let us be clear, on their own these measures are not enough.
For far too long the proper approach to the investigation and prosecution of sexual offending, particularly against children, has been seen as a problem for the CPS and the police to solve. It is not. Others have responsibilities, interests and expertise and, crucially, can provide invaluable advice, assistance and insight, about the proper approach to be adopted. For that reason, the police and I have agreed that the proposed overarching approach and guidance for the police and prosecutors should not be devised and promulgated by the police and the CPS in isolation, albeit working together.
There is an urgent need for an informed national debate about the proper approach to the investigation and prosecution of sexual offences. That debate needs to extend well beyond the CPS and the police. And, above all, a national consensus needs to be reached on the issues.
We cannot afford another Savile moment in five or ten years time. Whatever approach is now agreed it has to be fully informed, coherent, consistently applied across the country and able to withstand the test of time.
To take but one example, in April 2003, the Government replied to the Fourth Report from the Home Affairs Committee Session 2001-2002 about the conduct of investigations into past cases of abuse in children's homes. In doing so, the Government noted objections raised (not least by those convicted of offences) to methods then employed by the police in their investigation of these cases. It also noted the claims then widely in circulation, that many allegations of abuse were unfounded and/or motivated by the prospect of financial gain. The Committee had examined in some detail the initial approach by the police to victims and witnesses and made recommendations about what it termed as "trawling" for victims. The Government for its part distanced itself from the description of police practice as trawling for victims, preferring the term "dip sampling". But the Government did agree to a recommendation of the Committee that any initial approach by police to potential victims should - so far as possible - go no further than a general invitation to provide evidence to the investigation team. No doubt good advice, but it is interesting to note how far perceptions and expectations have changed. In 2003, the concern was that the police might have been over-eager in some cases, with the risk that false allegations might be made. Ten years later, post-Savile, the concern is that the police failed to give complainants more information, in particular to tell them that there were other complainants who might also be prepared to support a prosecution.
I have no doubt that both positions are right. The police should go no further than a general invitation to provide evidence to the investigation in any initial approach to victims or witnesses, but, in appropriate cases, it may be sensible and indeed necessary to inform one complainant that there are other complaints about the same alleged perpetrator. But it is obvious that in practice treading the right path between insufficiently robust investigation and compromising the case by going too far is not always easy.
A similar point can be made in shorter form in relation to the CPS. In 2003 the Home Affairs Committee was dealing with a concern that too many cases were being prosecuted without a sufficiently exacting review to sift out weak cases. A proposition on the table was that the Code for Crown Prosecutors should be changed to introduce a higher evidential threshold before child sexual assault charges were brought. Rightly, both the Committee and the Government in reply to the Committee rejected this on the basis that "the sheer volume of such cases which are rejected by the CPS seems to indicate that is it applying a sufficiently robust review to sift out weak cases". Ten years later, post Savile, the concern is that the police and the CPS have been overly cautious in their approach to such cases. Again, no doubt, both points are well made. A meaningful test is needed to test the evidence, but an overly cautious approach should not be adopted. But again, in practice, treading the right path through difficult cases is not easy.
Much of this is inevitable and, in my view, healthy in a modern democracy. The decisions of the police and prosecutors should be held up to the light and examined critically. And where there are shortcomings, these should be exposed. But it is important to bear in mind the history, context and environment in these cases as we embark on the task of settling the approach to the investigation and prosecution of cases of sexual abuse. If all that we achieve in a set of guidelines which are jettisoned in five years because of further critical reports, we will have achieved nothing and we will have let victims, and indeed suspects, down in a profound way.
And so I return to the theme of reaching a national consensus on the important issues. Whilst not everyone will ever agree with the approach taken by the police and the CPS in investigating and prosecuting sexual assault cases, I firmly believe that if the police and the CPS expose their own workings to greater public scrutiny, and recognise and accept the contribution that others can make in arriving at the right conclusions on crucial issues such as how to test the credibility of victims in these cases, any resulting guidelines will not only be better informed but also be more likely to be more generally accepted.
There are undoubtedly big questions to be addressed. It is one thing to say that the traditional tests of credibility do not work very well for certain categories of victim, but if we are to be bold and to place less and less reliance on questions such as whether a complainant delayed in reporting, has not been consistent in his or her account, returned to the perpetrator, told untruths about other things, or was affected by drink or drugs in testing credibility, we have to have an answer to the question, "what alternative test do you propose in their place?"
To over steer and remove any meaningful filter in these cases would be a great injustice to innocent suspects. I am not advocating any change to the threshold for bringing a prosecution, namely that there be a realistic prospect of a conviction and that a prosecution is required in the public interest. But I am advocating that when assessing credibility according to that test, we ask more questions and consider the answers more carefully, taking into account the context of vulnerability that often prevails. My own view is that by changing the focus from one that is solely victim-specific to one that more critically tests the suspect as well, while at the same time working harder to explore patterns of behaviour and, where appropriate, links to other cases, we could find an answer. But I would be the first to accept that this all needs careful thought and discussion.
The first step obviously falls to me and to ACPO. We need to conduct an open review of the approach taken in these cases and we have to ensure that the process is as fully informed as possible. To this end, the ACPO lead, David Whatton and I will host a series of roundtables with bodies and individuals with responsibility, interest or expertise in the field where we can explore and road test the revised guidance on investigating and prosecuting sexual assault cases. The full list of attendees is yet to be finalised, but we have already set up separate roundtables with judges; front line investigators; health and social services representatives; statutory bodies such as the Victim Commissioner and the Children's Commissioner; support and campaigning bodies such as the NSPCC, Refuge and CAADA; expert lawyers; and expert academics. These will begin on 21 March and run through to 17 April.
When the roundtable exercise is complete, ACPO, the College of Policing and the CPS will publish draft guidelines and then engage in an extensive public consultation exercise, before final guidelines are put in place. What we have to achieve by this process is an agreed and understood approach to the investigation and prosecution of sexual offences, particularly involving children: in short, a national consensus about the way forward.
To succeed in this task, we need everyone to play their part. If the Yewtree report is right in identifying the question, 'why was Savile's offending not noticed and stopped by so many individuals and bodies?', we need a collective response. The police and prosecutors must play their part; we must face up to our shortcomings and work through a new approach. But if this is to be a watershed moment, and if a firm line is going to be drawn in the sand, the approach adopted by police and prosecutors needs to be informed by the views of others, accepted and adopted consistently and to reflect as wide a consensus as it is possible to build.