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In the matter of the late Jimmy Savile

Report to the Director of Public Prosecutions

by Alison Levitt Q.C.

EXECUTIVE SUMMARY

(anonymised for publication)

Summary

This case concerns four allegations that the late Jimmy Savile indecently assaulted girls and young women in the 1970s [see footnote 1].

During 2007 and 2008 Surrey Police investigated three complaints that he had engaged in sexual behaviour with young girls; during the same period Sussex Police were investigating a similar, but apparently unrelated, complaint. No prosecution was brought in relation to any of the four, on the grounds that none of the victims [see footnote 2] was "prepared to support any police action," [see footnote 3]. I have been asked by the Director of Public Prosecutions [see footnote 4] to consider whether these decisions were correct.

The records from 2007 to 2009 are in parts either incomplete or contain internal inconsistencies and this has made it at points difficult to assess what happened at the time.

I have sent the relevant sections of my report to the two police forces in question in order that they could comment on any issues of fact; they have provided me with their observations. In addition, following the preparation of my draft report, I met three of the four victims [see footnote 5], one of the witnesses, and the CPS lawyer.

Where I have felt it useful or appropriate to do so I have reflected the comments of those with whom I have had contact.

The police investigations have been the subject of internal reviews and are, in addition, being considered by Her Majesty's Inspectorate of Constabulary. Despite this, I have concluded that it would give an incomplete picture were I not to reflect the fact that I have a number of concerns about the approach taken by both police forces.

Drawing the threads together, the principal conclusions I have reached are as follows.

  • i. I have seen nothing to suggest that the decisions not to prosecute were consciously influenced by any improper motive on the part of either police or prosecutors.
  • ii. That having been said, I have reservations about the way in which the prosecutor reached his decision.
  • iii. On the face of it, the allegations made were both serious and credible; the prosecutor should have recognised this and sought to "build" a prosecution. In particular, there were aspects of what he was told by the police as to the reasons that the victims did not want to give evidence which should have caused him to ask further questions. Instead, he appears to have treated the obstacles as fatal to the prospects of a prosecution taking place.
  • iv. Looked at objectively, there was nothing to suggest that the alleged victims had colluded in their accounts, nor that they were in any way inherently less reliable than, say, a victim of a burglary or a road traffic accident. Despite this, the police treated them and the accounts they gave with a degree of caution which was neither justified nor required.
  • v. Most of the victims continue to speak warmly of the individual officers with whom they had contact. However, each of those to whom I have spoken has said that had she been given more information by the police at the time of the investigation, and in particular had she been told that she was not the only woman to have complained, she would probably have been prepared to give evidence [see footnote 6].
  • vi. Having spoken to the victims I have been driven to conclude that had the police and prosecutors taken a different approach a prosecution might have been possible.

The Facts

The Surrey Police investigation began in May 2007 with a report made by a woman whom I have called Ms B, which was to the effect that in the late 1970s, she had witnessed Jimmy Savile indecently assault a teenage girl.

Ms B is now in her late forties. Between the ages of thirteen and fifteen she was a resident of the Duncroft Children's Home which was frequently visited by Jimmy Savile; it is of relevance to Ms B's account that she said that he was held in very high esteem by the staff, who valued his visits and trusted him sufficiently to allow him to spend time unsupervised with the girls.

The view the girls took of Jimmy Savile seems to have been rather different. According to Ms B, it was common knowledge that he would make "advances" to some of the girls, but although they thought he was "creepy" and would try to avoid him by hiding in the bathrooms, it was in the main something which they thought was funny.

Ms B said that she witnessed an incident, which - based on the age she was at the time - she believed had taken place between 1978 and 1979 [see footnote 7].

There was a girl at the Home whose name was Ms C, whom she believed to have been about fourteen, who told her that Jimmy Savile had been "making advances". They agreed a code word which Ms C would use if he did it again so that Ms B could see what was happening. At this time there was an advertisement on the television for Vesta curry, and the actress had a catchphrase: "Oooh.... beef biryani!", which was said in a silly voice. Ms B says that they chose this because the girls said it so frequently to one another that it would not attract attention.

On the evening in question, they were in the television room; they sat in rows on chairs which had backs but no arms. Ms B described how she was sitting next to Ms C, and that Jimmy Savile was on Ms C's right hand side. As usual, the lights were off whilst they watched television. Suddenly she heard Ms C say "oooh, beef biryani"; she looked to her right and saw Jimmy Savile take Ms C's hand and put it over his crotch area.

Ms B is certain that she saw this incident clearly, with her own eyes. She believed that similar things were happening to other girls but the only other incidents she actually witnessed were the arrival of large boxes of chocolates sent by Jimmy Savile to particular girls whom he liked; she believed this happened on about three occasions.

When asked why nothing had been said to the staff about the "advances" he made, she said that there were a number of reasons. One was that the staff admired him greatly because of his wealth, his charity work and the fact that he was on the television a great deal; the girls were frequently told how lucky they were that he chose to visit them. Ms B said "we could not have said anything against him". The other was that many of the girls craved attention and did not have the emotional maturity to differentiate between that which was appropriate and that which was not. At worst they regarded what he was doing as a laugh or a bit creepy.

Ms B said that she had reported this to the police because Jimmy Savile was once again appearing frequently on television; as the years had passed she had thought about how vulnerable the girls were and had become increasingly angry about what had happened. She worried that he would die and be remembered as some kind of national hero.

Ms B was always prepared to give evidence.

In October 2007, some weeks after they had spoken to Ms B, the police managed to find Ms C, the alleged victim. The officer, DC S, was extremely careful not to suggest to her (or indeed any of the potential witnesses) that they were interested in Jimmy Savile. All initial contact was by means of a letter which merely said that the police were investigating an incident which had allegedly taken place at Duncroft in the late 1970s.

When she was spoken to by telephone, Ms C said to DC S [see footnote 8] that she had been thinking about things ever since she had received the letter, and that one person had come to mind. She asked whether the investigation involved a famous person; the officer did not confirm or deny this, but asked her who she had in mind. She replied "Jimmy Savile". Ms C told DC S that when she was about fifteen, there had been an incident in the television room at Duncroft when Jimmy Savile had been friendly and snuggling up to her, and had taken her hand and put it on his groin, moved it around and made himself "aroused". She had been wrapped in a blanket at the time having just got out of hospital, and there had been other girls in the room. He asked her to go for a ride in his car; she refused and then two days later he sent her an enormous box of chocolates. This had only happened once and she never saw him again. She told the officer [see footnote 9] that she was at Duncroft for one year from the ages of 14 - 15, and that this incident had taken place in about 1978.

When asked what view she took, she said he was just a "dirty old pervert", she did not think much of what had happened, and if it were just about her, she did not want to make a statement. She did not remember a girl called Ms B, but thought she must have been one of the other girls who was present in the television room at the time it happened. 

As will be apparent, Ms C had not herself contacted the police to complain about Jimmy Savile and from the outset she expressed reluctance about participating in a possible prosecution. It remains unclear to me why it took many months for the officers to attempt to take a formal statement from her. What is plain is that as the months passed, although she was still prepared to talk to the police, her reluctance in relation to a possible prosecution became more marked. By 13th March 2008 she is recorded as having said that "she still does not want to get involved if it is just in relation to her" (emphasis added), but at this stage, the Surrey officers did not know of any other allegations.

However, in April 2008, the Surrey officers became aware of the Sussex investigation.

The Sussex allegation is the oldest in time. The complainant, Ms A, alleges that she was indecently assaulted by Jimmy Savile in 1970 when she was in her early twenties; she was in her sixties at the time she reported it to the police in 2008.

The circumstances are as follows. In about 1968, Ms A wrote to Jimmy Savile suggesting that he could stay at her mother's B&B, after she had seen him on television saying that he was in need of a holiday. Some time later she received a reply on his behalf, thanking her but saying that he was too busy to take her up on their offer.

One Saturday in about 1970 at about lunchtime a chauffeur driving a large Rolls Royce arrived unannounced at her house to take her to see Jimmy Savile. Ms A said that she was shocked but her husband encouraged her to go and she was taken to the local Town Hall. She and Jimmy Savile ended up in his caravan. He started saying things to her such as "you are lovely; I'd like to lock you up in a cupboard and you'd be with me all the time", and that he could get her a job on Top of the Pops.

She was then pushed down onto the bed, ending up on her back; he was lying next to her and started to touch her breasts over her clothes. He asked if she was on the pill and she replied "no, I don't do that sort of thing". He then called her something like a "little dolly bird" and took hold of one of her hands and placed it on his groin. His penis was erect; he moved her hand up and down until she pulled her hand away.

He then sat up, asked her whether she had her bus fare home and told her that she could choose something from the caravan as a memento. She picked a small crucifix with a deer at the foot, and he told her that he had been given it in Belgium. She still has it; indeed she brought it when we met so that I could see it.

Ms A told her husband and the girls with whom she worked what had happened. She said that she felt shocked and upset but did not want to report it because she felt stupid for having allowed herself to get into that situation. A short while afterwards, she and her husband emigrated.

After many years Ms A returned to live in the UK; she used to see Jimmy Savile on the television and it made her angry to see the high regard in which he was held when she knew what he was really like. In 2007 she decided she was going to do something about it, so she wrote a letter to The Sun newspaper. In November that year a female reporter asked to interview her. The reporter told her that "a lot of others" had been in a similar situation as her and some had "not been as fortunate"; that all it took was for one person to make a complaint and then others would follow. Ms A remained reluctant and told the reporter that she was not willing to go to the police.

On 3rd March 2008 the reporter reappeared at Ms A's door and asked her again whether she had considered reporting it. The journalist went on to tell her that she had some information that Jimmy Savile may have been connected to the infamous care home in Jersey [see footnote 10] but that she could do nothing about it unless Ms A were prepared to make a complaint. Ms A said that (at least in part) as a result of what she had been told by the journalist, she rang Sussex police to report what had happened to her.

It would appear that Ms A had no connection with the Duncroft Children's Home, nor with any of the other victims in this case. It seems to have been a coincidence that she made her allegation at about the same time (possibly prompted by the fact that Jimmy Savile seems frequently to have been on the television at around this time). It would seem that at this stage Ms A was at least open to the idea of there being a prosecution, not least because she had been told that Jimmy Savile may have been responsible for other offences but that someone needed to make the first complaint.

In her statement she says that she was visited that evening by DS O and DC T who explained "the information they would need to pursue an allegation". There is a contemporaneous memorandum written by DS O to his superior officer in which he described the conversation thus:
"When [T] and I attended we discussed the various options open to Ms A. These included making a formal allegation of indecent assault in which case we would fully investigate the matter. We advised it would involve contacting witnesses including her ex-husband and work friends from nearly 40 years ago. We discussed the fact that questioning Jimmy was not simply a case of allegation made and arrest but that the case would need fully investigating and the allegation corroborated / supported before Jimmy would ever be approached. Various other issues were discussed with [Ms A] and her partner [X], and I detailed a list of things we would require from her should she choose to make a formal allegation, including her ex-husband's contact details, work friends details, the contact she has had with Sun newspaper to name a few. [Ms A] requested time to consider these options and it was agreed we would re-contact her today." (emphasis added)

Ms A's statement says that after they had left, she texted the reporter from The Sun. She also talked to her partner and decided that she was not willing to support a police investigation. The reasons she gave were that it was a long time ago and she did "not have access to the information required by the police and it would be difficult to find". In addition, she would rather:

"let sleeping dogs lie, I don't want to be dragging it all up again and end up in court, I have decided I just want to get on with my life in a normal way without any more hassle" [see footnote 11]

Looking at the documents created in 2008 I found it difficult not to conclude that the officers had, even if unintentionally, dissuaded her from pursuing her allegation. When I met Ms A and her partner, both wanted to emphasise how much they had liked DS O and DC T, whom they felt had Ms A's best interests at heart. Ms A told me that she felt that DC T believed her and had said to her that he would leave "no stone unturned" if that was what she wanted. However, he had left her in no doubt as to how difficult it would be for a prosecution to take place because Jimmy Savile was a "big celebrity"; she said to me that the police had told her that no one would believe her. She remembered DC T telling her that because he had plenty of money, Jimmy Savile would have the best lawyers, it would all take place in a "big court in London" and his lawyers would make "mincemeat" of her. She also got the clear impression from the police that she would be publicly branded a liar and that her name would be all over the newspapers, particularly if she "lost the case".

I asked Ms A whether at any stage she had been told that there were other women who had made allegations to the police about Jimmy Savile; she said that she had not. I then asked Ms A whether it would have made a difference to her decision not to support a prosecution had she been told of the following:

  • That there were other women who had made allegations to the police of sexual assaults committed by Jimmy Savile;
  • That she would be entitled not to have her name published, whether Jimmy Savile was convicted or acquitted;
  • The existence of "special measures" to help her give her evidence; and
  • That there was no requirement in law that she would have to contact her former husband and work colleagues.

She and her partner both told me that she might have been prepared to give evidence had she known these things.

By April 2008 Sussex Police had made a decision that there should be no further action in relation to her complaint. It seems [see footnote 12] that the police took the view that the case did not reach the threshold required before it should be referred to the CPS for a decision; however, given that the complainant had been advised that "corroboration" would be needed (which is a legal concept), it might have been wise to confirm that the officers' view of the law was in fact correct. Certainly it would appear to be common ground that Sussex Police did not at that stage ask the CPS whether there was any more that could be done; however, in April 2008 they sent their crime report to Surrey Police [see footnote 13], together with, it would appear, a copy of Ms A's witness statement.

After Surrey police had spoken to Ms C (the victim from Duncroft), they attempted to contact other girls who had been at Duncroft at the relevant time. One of those contacted was Ms D [see footnote 14]. She too asked DC S whether the incident concerned Jimmy Savile, who she said was "acting dodgy" at Duncroft: "he got involved with underage girls and made an inappropriate play towards them". She told the officer that nothing had happened to her, but she might know of others to whom things had been done. A few days later she contacted DC S again, and said that one of those to whom she had been referring was in fact her older sister, Ms E, who had not been at Duncroft.

On 2nd June 2008, Surrey Police held a meeting at which they were told by a senior officer that in another high profile case there had been criticism of the police for approaching former residents of a children's home where the suspect had worked to see if any of them had been abused by him. The notes say that the police also considered whether it was appropriate to continue as Ms C did not want to make an allegation. It was resolved that a meeting should be held with the CPS "at an early stage". On 3rd June 2008 it was decided that no statements were to be taken from any of the former residents of Duncroft save Ms C and Ms E [see footnote 15] and that none of the alleged victims were to be told that there were others who had made complaints.

On 4th June 2008, a witness statement was taken from Ms E. She is now in her early fifties; as a teenager she had been a member of a Girls' Choir from a town north of London. On one occasion, when she was about fourteen [see footnote 16], the choir had performed at Stoke Mandeville Hospital, and Jimmy Savile had been there. Just as the choir was getting on to the coach, Jimmy Savile was "acting the clown, shimmying up and down a flag post on the left-hand side of the hospital". He called Ms E over and said "give us a kiss goodbye". She thought nothing of it and went over to him, expecting a kiss on the cheek; instead, he kissed her on the lips and put his tongue inside her mouth. Ms E said she was shocked; she sprang away from him and got onto the coach. She didn't know if anyone else saw, but she didn't discuss it with anyone except her sister (Ms D) because she was "mortified,".

As far as I am aware, Ms E does not know either Ms B or Ms C; the only connection is through her sister, Ms D, who was at Duncroft at the same time as them, but who appears to have had no contact with them since the 1970s. There is nothing to suggest that she has any connection with Ms A.

Ms E's witness statement concluded with the words: "I never considered going to the police about what happened. I thought it was so insignificant at the time. I think it would be a waste of police time. I'm happy to say what happened but no police or court action". As I have not spoken to Ms E I am unable to say whether that remains her view. However, I note that the reasons she gave were not dissimilar to those given by Ms C (see below); in my view it is therefore a possibility that had she known that others had been the subject of similar assaults she too might have taken a different view.

By 5th June 2008 when the officers finally decided to try and take a statement from Ms C, she refused, saying she "did not deem it necessary" [see footnote 17] She was, however, prepared to talk to DC S and to let her take notes. The manuscript notes read "not bothered about me".

When I met Ms C, I asked her if she had been told at any stage that there were other women who had told the police that they too had been sexually assaulted by Jimmy Savile [see footnote 18]; she said that not only had she not been told this, but that she could remember saying to DC S on that final occasion in June 2008 that "if you can find me other people I might change my mind [about giving evidence]". I asked Ms C whether being given more information would have made a difference to her decision; Ms C replied that it might have done and had the officer "pushed her" she might have "given in". She feels now that had she known of the existence of other victims she might have been prepared to go to court.

On 9th July 2008, DC S took a statement from Ms B (the witness to the incident in the television room at Duncroft). The conversation lasted for nearly two hours and was recorded on three tapes. No full transcript has been provided but the officer prepared a summary. It contains inaccuracies, most of which are not material but one of which was potentially significant, as it reads as though Ms B suggested that Jimmy Savile had an erection at the time (which would have supported what Ms C had said) when in fact Ms B had said she did not know whether he had or not.

It is also of note that Ms B said at one point [see footnote 19] that DC S had told her that hers was the only complaint, and this surprised her, because she would have thought there would have been many others. Whilst that may have been true when they first spoke, by this point DC S knew that there were at least two other complaints, yet she did not correct Ms B.On 15th July 2008 the police had a meeting with the CPS lawyer. His advice was recorded as:

"He did not feel there was a case to proceed as the incidents were relatively minor and they were so long ago there would be grounds for an abuse of process argument. He was happy to put this in writing".

For the reasons I give in the paragraphs which follow it is my view that this advice was wrong and should not have been given.

On 16th July 2008, DC S was contacted by Ms G. and on 30th July 2008, she was interviewed on tape. She is now in her mid-fifties and had gone to Duncroft after her fifteenth birthday. Ms G's account [see footnote 20] was that Jimmy Savile used frequently to come to Duncroft and would arrive in large and expensive cars, usually a different one on each occasion.

She talked about how much the staff were in awe of him and how the girls only got decent food when he was coming. She thought he visited every six to eight weeks. She said he liked to have his shoulders massaged and his hair combed, and he would produce a comb for the purpose. On one occasion the Headmistress had suggested that Ms G should make him tea. Jimmy Savile knew that she (Ms G) was training be a nurse and asked whether she had qualified yet. She said that

"he then shocked me by suggesting that if I performed a certain act on him he could guarantee a job when I qualified at Stoke Mandeville...I understand that the term is a 'blow job' .....I understand it to mean a woman taking a man's penis into her mouth and sucking it. He told me it wouldn't be hard for him, he could just slip down his tracksuit bottoms".

She said that they were alone, so she had made an excuse about having heard the kettle boil, and ran away and hid in the lavatories until he had gone. She had got into trouble for abandoning him. This was the only time he had suggested this to her, but she knew that he had suggested it to a girl called F, because F had told her so [see footnote 21]. She said that there was certainly more than one incident, involving both her and other people. When asked to develop this, she began to talk about being in the television room but then went off at a tangent and this was not explored further. When asked whether there was anything else of which she wanted to make DC S aware, she replied

"I just remember that if you were stupid enough to put yourself in a situation where there was an unmarried male on his own and you, it was your fault and it was always going to be your fault".

I did not know at the time I met her that Ms G had participated in a television programme, during which she made a number of allegations which go considerably further than those she made to DC S in 2008. When I met her she made reference to having given Jimmy Savile a "hand job" but said that she had refused to give him a "blow job". Although I did not ask her to explain the discrepancy, Ms G told me that DC S had set date parameters and that she was not interested in anything Ms G had to say that did not fall within those boundaries. I have seen nothing to suggest that this was the case; indeed the other alleged victim and the witness had spoken of DC S with great affection and described her diligence in conducting this investigation.

Ms G told me that she had never been asked whether she was prepared to give evidence but that she would certainly have done so. There is no record in any document of Ms G refusing to give evidence; she was not asked about this when she was interviewed on tape and she did not say. That having been said, Surrey Police have told me that it is the officer's "clear recollection" that Ms G was not prepared to "support a prosecution" and the reviewing lawyer was plainly under the impression that this was the case.

It appears that from the end of July 2008 the investigation rather stalled. On 24th October 2008 DC S requested advice from the CPS using a formal document called an MG3. In it, DC S described Ms B's evidence thus:

"The reporting witness is a [Ms B] who was aged 13-16 at the time and who witnessed the defendant James Savile (better known as Jimmy Savile) touched [sic] another girl aged about 14 sexually and got her to place his hand on her groin area over his clothing and rub his penis...... [Ms B] said that [Ms C] had previously told her that Jimmy would touch her over her clothing and get her to touch him. She had said that the next time he did it she would say the words "beef biryani" a phrase from a popular TV advert at the time to let her know it was happening. She heard [Ms C] say it and looked over and saw movement under a blanket" (emphasis added)

I have seen nothing elsewhere in the papers to suggest that either Ms B or Ms C had ever suggested that Ms B had seen Jimmy Savile touch Ms C sexually (as opposed to getting her to touch him). Further, DC S seems to have conflated the accounts of Ms C and Ms B: Ms C had never mentioned the "beef biryani" aspect, equally, Ms B had said nothing about a blanket.

When I first read these papers I was very concerned about the MG3 as it stated that rather than having seen the incident clearly (as I had understood to be the case), Ms B had only witnessed some movement under a blanket. If right, it would also mean that she had given two inconsistent accounts, which would affect her credibility. In order to resolve this I asked the police where I could find any reference to Ms B having seen movement under a blanket. I was told [see footnote 22] that

"regarding the reference to [Ms B] having seen a movement under the blanket I can clarify that [Ms B] mentioned that she see's [sic] a hand on top of another on top of Jimmy Savile's groin. She does not mention a blanket. However [Ms C] does say that there was a blanket and the touching was underneath this".

On the basis of all the material I have seen I am satisfied that Ms B has been consistent in her accounts and that the error in the MG3 is due to inaccuracy on the part of the police officer. As will be seen, this may have misled the CPS lawyer.

The MG3 continued:

"None of the victims are willing to support any police action which was brought to our attention by the witness Ms B. They are historic incidents and the women feel they have moved on from the past and it is a time they do not wish to remember (being in care). Copy of the Sussex report also attached although this involved a female fan over the age of 18".

This is a rather confusing statement. Far from all the victims having been in care, as it suggests, two of the four victims [see footnote 23] had not. Of the two who had, there is no record either of Ms G having said that she did not want to give evidence or the reasons she gave for not wanting to.

The MG3 concludes as follows:

"at this stage the defendant has not been interviewed or made aware of these allegations and advice is sought by CPS on how best to proceed with the information obtained and recorded within this file and associated documents".

On 19th November 2008, DC S recorded that the file was complete and had been reviewed by a senior officer and she was awaiting contact from the reviewing lawyer so that she could deliver the file to him. He was slow to get in touch and the file was finally handed to him on 22nd January 2009, at which point he advised that the police should read Jimmy Savile's autobiographies to see if any further victims could be found.

It appears that the next contact from the CPS was on 31st March 2009, when DC S met the lawyer and he: "advised that there would be no further action". However, he also advised that the "visit" to Jimmy Savile should be by a "senior officer of rank". This is puzzling, given that it seems that the decision had already been made that no prosecution would take place. The reviewing lawyer told me that he had understood from the police that Jimmy Savile was being spoken to, not in order to interview him under caution, but so that he could be given "words of advice". I am not entirely sure that I understand what this means, but this is a matter that I do not see it as necessary for me to resolve [see footnote 24].

On 2nd June 2009, the police sent a letter to Jimmy Savile to inform him of the allegations. The following day, Jimmy Savile called the police and an arrangement was made that he would meet the police next time he was in their area. On 22nd September 2009, he was sent a further letter inviting him for an interview and on 1st October 2009 he was interviewed under caution (but not arrested). During the interview, he was asked about the three Surrey allegations but the Sussex one was not mentioned.

In summary he said that all three allegations were invented, and he believed that the complainants were after money. He also said that this was not the first time this had happened and it was an occupational hazard for someone in his position. He told the officers that he had sued five newspapers in the past [see footnote 25] and they had all settled. He remembered Duncroft; it was a "posh borstal" for girls who had committed crimes and was an alternative to custody. He had not visited it very often, he had never been with the girls unsupervised nor had he watched television with them. He had never given them presents nor had he sent chocolates. He said that this was not the first time such suggestions had been made and that he had a "policy" for dealing with them. When asked about his "policy" he said the following:

"If this [these allegations] does not disappear then my policy will swing into action. I have an LLD, that's a Doctor of Laws, not an honorary one but a real one. That gives me friends. If I was going to sue anyone, we would not go to a local court, we would go to the Old Bailey 'cos my people can put time in the Old Bailey. So my legal people are ready and waiting. All we need is a name and an address and then the due process would start. I've never done anybody any harm in my entire life. I have no need to chase girls, there are thousands of them on Top of the Pops. I have no need to take liberties......the newspapers consider me to be very boring, I have no kinky carryings on. But because I take everything seriously I've alerted my legal team that they may be doing business and if we do, you ladies [the two female officers] will finish up at the Old Bailey as well because we will be wanting you there as witnesses. But nobody ever seems to want to go that far."

On 10th October 2009, a form MG3A was sent by DC S to the CPS. It summarised the interview with Jimmy Savile and concluded thus:"as previously advised this will be NFA and I will update all parties by letter and send a final report to West Yorkshire police once I have received the final written decision from you"

On 26th October 2009, the reviewing lawyer provided his written decision. In its entirety it reads as follows:

"It is alleged that in the period 1977-1979 this suspect, when visiting a children's home in Staines, indecently assaulted a girl aged around 14. The initial information came from a female who said that another girl, [Ms C], had told her that the suspect had touched her over her clothing and got her to touch his groin area over his clothing. It was arranged when this next occurred that [Ms C] would say a particular phrase and the female alleged that on a subsequent occasion, she heard this phrase and noticed a movement under a blanket over [Ms C's] lap. [Ms C] has orally confirmed she was indecently assaulted by the suspect but has declined to make a complaint. Other former residents described the suspect's behaviour as creepy and causing them to feel uneasy. Two further complaints related to the suspect's visits to Stoke Mandeville hospital - one by a visiting choir member who alleged French kissing and the other by a former resident who stated that the suspect asked her to massage his groin and give him oral sex. Finally, a female in Sussex also made a complaint that the suspect took her to his caravan and touched her breasts over her clothing. None of the alleged victims is prepared to support any police action. On 1st October last the suspect was interviewed. He denied all the allegations and suggested that such complaints were motivated by money and the type that a TV and radio personality attracted. However in this case the initial information came from a witness, not a victim and none of them want to support any police action. Nevertheless at the end of the day, on applying the evidential test in the absence of statements from victims [see footnote 26] there is clearly insufficient evidence to charge the suspect with any criminal offence" (emphasis added).

There are, as the emphasised sections demonstrate, some factual inaccuracies. The most serious relates to Ms B's evidence, which is described as though she had not witnessed and assault but had merely seen "movement under a blanket", when in fact she had consistently said that she had seen it with her own eyes. The significance of it is that if Ms B had witnessed the assault herself, it might in certain circumstances have been possible to prosecute without the victim's evidence. It does not seem that this had occurred either to the lawyer or to the officer. It is possible that the lawyer had been misled by the officer's description [see footnote 27], but given the ambiguities and inconsistencies in the MG3 I would have expected him to have sought clarification.

Taken as a whole, the lack of analysis is disappointing. There is no reference to the law. There is no reference to CPS Policy nor to seeing whether the case could be "built" in any way (see further below); whilst the outcome might have been the same, there is no suggestion from this document that it was even considered. The reluctance of the witnesses has been treated as determinative.

On 28th October 2009 DC S sent letters to Ms G, Ms C, Ms B and Ms E to say that "the CPS have decided no further police action on this case".

I asked the reviewing lawyer why it had taken nearly a year for him to reach a formal decision on this case. He told me that at the time he had a number of cases which required his attention, including a number of murders, and that he had simply had to prioritise.

Analysis

Prosecutions for sexual offences are brought on the same basis as any other: the reviewing lawyer must apply the test set out in the Code for Crown Prosecutors. This has two stages: the first requires that there should be sufficient evidence to provide a realistic prospect of conviction. Only once the evidential stage is satisfied may the prosecutor go on to consider the public interest. If there is no realistic prospect of conviction, no prosecution can be brought, irrespective of the public interest or the views of the victim. The final written decision in this case was made on the basis that there was insufficient evidence for a prosecution to take place, on the basis that the witnesses would not support the prosecution.

The evidence of Ms G [see footnote 28], taken at its highest, does not amount to an indecent assault because it consisted of an invitation to her to do something sexual to the suspect. Whilst section 1 of the Indecency with Children Act 1960 made it an offence for a person to incite a child to an act of gross indecency with him, for conduct which took place before 2001, the child had to have been aged under fourteen. The likelihood is that Ms G was sixteen or older at the time and she has now told me that she thinks she was seventeen. I am therefore of the view on the material I have seen that the behaviour complained of did not amount to an offence. It follows that the decision not to prosecute was correct, but for the wrong reason: Ms G's willingness or otherwise to give evidence was immaterial.

In any event, Ms G's evidence arguably would have been admissible in support of the other complaints. I have concluded that all four of these allegations were prima facie admissible in support of each other. That being the case, the prospects of a conviction for each of the three offences charged would be commensurately increased.

I am satisfied that if I ignore for the time being the question of whether the witnesses would give evidence, the case against Jimmy Savile was a strong one, consisting as it did of four apparently independent allegations of sexual behaviour towards young women and girls with whom he came into contact as a result of his fame and his charitable work. It is therefore to my mind unarguable but that had the witnesses been prepared to give evidence, there was on the evidence I have seen, a realistic prospect of conviction in relation to each of the three allegations which amounted to offences and thus were capable of being charged.

The CPS lawyer in this case was an extremely experienced "rape specialist". This means that he had been on a number of training courses and was expected to be familiar with CPS Policy and Guidance in this area, as well as the case law. Surrey Police have documented that they were given oral advice by him at an early stage to the effect that he would not be inclined to prosecute these cases because they were "relatively minor" and the delay meant that a prosecution could be an abuse of process.

Whilst there is plainly a spectrum of gravity, I would hope that any prosecutor would regard any sexual assault as being in and of itself serious. Be that as it may, in any event these particular assaults were far from trivial: they represented a course of conduct against vulnerable women and girls by a man who was in effect in a position of trust. When I spoke to the reviewing lawyer he told me that to the best of his recollection at that stage he had been asked to give an informal view, and that that is reinforced by the fact that he had not been provided with any papers. Having discussed the matter with him, I am satisfied that even were this his view at the outset, by the time he made the charging decision he (correctly) regarded these as serious offences.

The fact that the suspect might argue abuse of process does not in the circumstances of this case mean that there was no realistic prospect of conviction. Whilst it would have been inevitable that the defence would have pointed to the delay as having led to the loss of records and the difficulty for the defendant of establishing his whereabouts at the time these offences were said to have taken place, a competent prosecutor should have been able to persuade the court that, given the issue in the case, a jury would be capable of assessing the effect of delay. The issue was, in reality, the truthfulness of these complainants, as there was no room for error or mistake. I would therefore have expected a submission of abuse of process to have had no obviously greater prospect of success in 2009 than would one made today and on these facts I would not expect such a submission to succeed.

There is a distinction to be drawn between a victim who does not "support a prosecution" and one who refuses to give evidence. The Code for Crown Prosecutors makes it plain that whilst the views of victims are important, a prosecution is not a private matter between the complainant and a defendant, and so the victim's views cannot be determinative of whether a prosecution should or should not take place.

The lawyer said that for him the critical factor had been that he had been told by the police that the victims were "adamant" that they would not go to court, and in the case of one of them, that she would suffer even more if forced to take part in a prosecution. Given this, he took the view that there was no point in considering the matter further as there was nothing more that could be done. I asked the lawyer whether he had appreciated that Surrey police had made a decision not to tell any of the victims that there were others; he appeared surprised by this and told me that he was sure he had not been told, not least because had he known this he would have advised the police that there was no need for such caution and that the victims both could be and indeed should have been told in general terms about the others, in order to reassure them. 

Doing the best I can with the available records, it seems that Ms A's complaint was not in fact referred to the CPS by Sussex police for a charging decision. Despite this the reviewing lawyer confirmed to me that he believed that he was being asked to make a charging decision about her case as well as that of the other three. It is axiomatic therefore that he knew of Ms A's allegation (though it is less clear whether he had a copy of her witness statement and he can no longer remember). It is therefore a little difficult to assess whether the decision not to prosecute was a CPS decision or one made by Sussex Police.

Be that as it may, it is clear from the documentation that I have seen that Ms A had initially been supportive of the idea of a prosecution but changed her mind. Although there may have been other reasons, on the face of the papers it seems that her principal reason was that she was daunted by what the officers had told her, namely that corroboration was required and that as a result she would need to be able to put the police in touch with her former husband and work colleagues from forty years before. I would have expected the prosecutor to have realised that the advice the Sussex police appeared to have given was wrong, and that not only was corroboration not required, but there was in fact potential supporting evidence in the form of the other complaints (and that in turn her evidence was capable of supporting theirs). I would have hoped that he would have explained this to the officers and invited them to ask Ms A to reconsider whether she would be prepared to give evidence, and to have reassured her about, for example, the "anonymity provisions" and the special measures available. I asked the reviewing lawyer whether he had done this; his reply was that DC S had said that all the victims were adamant that they would not support a prosecution and that she had told him that there was nothing further that could be done.

I have concluded that had the reviewing lawyer advised, and as a result the police had given the correct information and suitable reassurance to Ms A, the outcome might have been different.

As far as Ms E and Ms C were concerned, as set out in the paragraphs above, a decision had been made by the police not to tell them that they were not the only people who had made allegations. This was plainly a well-intentioned strategy and one which made sense at the start of the investigation, as it is self-evident that allegations made by people who know nothing of those made by others have considerable probative force.

There came a point, however, at which this strategy should have been reviewed. Both Ms E and Ms C had told the police that they regarded what had happened to them as relatively insignificant and on that basis they were not prepared to go to court. In Ms E'scase she said that she regarded it as a waste of police time; in Ms C's case she said that she would not go to court if it were only about her. Plainly this leaves open the possibility that had each been told that she was not the only victim, and reassured about the support and protections that would be available, she might have taken a different view. Ms C feels that had this been done she would have been prepared to give evidence.

There is nothing I have seen which suggests that the reviewing lawyer gave any advice on the strategy of not telling the victims of the existence of the others. Indeed he is adamant that he was neither told that this was the police strategy nor the rationale for it; he says that had he known, he would have told them that in his view it was misconceived.

There is no rule which prevents victims being told that they are not the only ones to have made a complaint. Such a rule would mean that any victim who came forward having learned about offences committed against others could never pursue his or her own complaint, which is plainly not the law.

In the present case, given that the victims had already given their accounts, it is hard to see what damage could have been done by their being told of the fact that there were other complaints. In my view it would have been perfectly proper for each complainant to have been asked whether it would change her mind to be told that there were other victims and that her evidence might help to secure a conviction. After all, had the victims been the subjects of distraction burglaries and had said that they were disinclined to give a statement because it was "only them" and their insurance had compensated them, I would have expected the police to have told them without hesitation that in fact there had been a spate of such offences and the chances of getting a conviction would be greatly increased were they to give evidence. There can be no justification for applying a different standard to sexual offences.

The CPS Policy requirement that the case should be "built" rather then simply identifying the obstacles should have been followed in this case. For example, consideration could have been given to attempting to prosecute the assault on Ms C without relying on her own evidence, given that there was an eye-witness to what had taken place. In principle there is no requirement for the victim herself to give evidence, but were she not to do so, there would need to be evidence either that she was under sixteen at the time (for example by adducing as hearsay the evidence from Barnardo's of her age at the time she left Duncroft [see footnote 29]) or that the circumstances were such that the jury could safely infer that she did not consent to the assault on her. This was not considered.

Conclusions

Taken at face value, the decisions not to prosecute in the cases of Ms E and Ms A were not unreasonable, for these reasons:

  • There was insufficient other evidence to prosecute in the absence of the complainants' accounts;
  • an application to adduce their evidence under the hearsay provisions of Part 11 of the Criminal Justice Act 2003 would, in my view, have failed, [see footnote 30] and
  • issuing a witness summons against a reluctant witness in these sensitive cases must always be a matter of last resort.

However, consideration should have been given to the principles expressed in the CPS Policy for prosecuting cases of rape, which makes it clear that rather than merely identifying evidential obstacles, prosecutors should work with the police to "build" the case, by seeing for example whether the victim could be reassured to the extent that he or she might be prepared to give evidence, or by giving consideration to whether there is any way in which the evidence could be added to or improved so that his or her attendance would be unnecessary.

The prosecutor took the wrong starting point. Instead of treating the unwillingness of the complainants to give evidence as being determinative, he should have recognised that this was on its face a serious case involving apparently credible allegations, and should have worked with the police to see if a prosecution could have been brought.

I am satisfied that Surrey Police took the allegations seriously; it is clear that the investigation was overseen at a senior level. That having been said, the policy that no victim should be informed at any point that there were others who had made similar allegations was in my view unjustified. It was particularly misconceived at the stage at which the victims were variously saying that they felt intimidated by Jimmy Savile's fame and money and expressing concern about giving evidence saying that they did not want to be the "only one". It would have been proper to give each (at least once she had given her initial account) the reassurance of knowing she was not alone.

From what they now say, it appears that both Ms A and Ms C might have been prepared to give evidence had they received more information and appropriate reassurance. On the material I have seen, it is my view that there would then have been a realistic prospect of conviction in relation to both their allegations. In the case of Ms E I have been unable to discuss the matter with her and it is not possible to say whether it would have made any difference in her case.

Alison Levitt QC

Principal Legal Advisor to the Director of Public Prosecutions

11th January 2013

The full report can be found on the CPS website.

Footnotes

  1. I have not used the expression "historic" as many victims of sexual offences take exception to this, on the basis that it suggests that the offences committed against them are consigned to the past, when for many of them the consequences continue to affect their lives.
  2. The expression "complainant" is inappropriate in the circumstances of this case. Where I have described the women as "victims" this is for the sake of convenience; I of course acknowledge that these allegations have not been proved to the criminal standard.
  3. the phrase used by the CPS prosecutor in his charging decision.
  4. DPP.
  5. The fourth victim declined my invitation to meet, as is of course, her right.
  6. With the exception of Ms G, who says that she was always prepared to give evidence
  7. According to Ms B, Duncroft closed down in 1979, so she had left when she was fifteen rather than staying until she was sixteen
  8. The officer charged with much of the investigation
  9. on 5th May 2008
  10. a number of allegations had been made about the sexual abuse and murder of children at this home
  11. Witness statement
  12. Response from the Chief Constable of Sussex
  13. Because they had become aware that Surrey Police were also investigating Jimmy Savile
  14. Ms D was never invited to make a witness statement; her account is taken from DC S's notes of their conversations.
  15. Ms E of course not had not been a resident but was the sister of a former resident
  16. She thinks in about 1973
  17. See the crime report entry
  18. By this time Surrey Police knew of two more allegations, namely those made by Ms A and Ms E
  19. on the tape
  20. Taken from her taped interview
  21. I have been told that F has not been spoken to, but that may be because no attempts were made to trace her, the decision having been made by that time that no prosecution would take place.
  22. letter of 31st October 2012
  23. Ms B being a witness rather than an alleged victim
  24. This would have been an operational matter for Surrey Police to decide
  25. Presumably on the basis that they had made similar allegations
  26. In fact, only one refused to make a statement; the other three had made statements but had expressed unwillingness to go to court
  27. I asked him why he had written this; he replied that it must have been his understanding of what the police had told him.
  28. as recounted to the officer in 2008
  29. For example under section 117 as business documents
  30. Both in 2009/2010 and today

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