The statue of Justice on the Old Bailey is depicted blindfolded for a good reason. Justice does not take sides. However, the NSPCC, a pressure group whose campaigning on child abuse has become increasingly dictatorial, thinks that our system of criminal justice should be engineered to make it easier to convict. It demands that no child accuser should ever have to come to court; that barristers and judges undergo mandatory ‘specialist training’; and that young witnesses should have a ‘trained communications expert’.
This ignores the fact that, in recent decades, the rules on evidence have been repeatedly amended in favour of complainants: for example, by abolishing the requirement that judges should warn juries of the dangers of convicting on uncorroborated evidence in sex cases; and by enabling complainants who are deemed ‘vulnerable’ to give evidence remotely by video link. Barristers and judges are regularly trained in dealing with vulnerable witnesses.
The NSPCC’s slogan is ‘No child-abuse victim should ever have to face their attacker in court’. But the case featured on its website of the five-year-old is one where the child did not face his father in court: he gave evidence from a separate room, by video link. This only goes to show how tenuous the basis for the NSPCC’s campaign is. There is a world of difference, anyway, between a very young child and a teenage complainant who is a week away from turning 18.
The key to any situation where a child is being abused is to remove the child from the abusive environment. In the absence of supportive forensic evidence, however, such as clear signs of injury whose cause can properly be said to be non-accidental, it is not always going to be possible to prove cases of suspected abuse beyond reasonable doubt. If cases fail in court, that raises the obvious question of whether they should have been tried in the first place. An uncritical approach on the part of investigators or prosecutors does no one any favours, least of all children.
By referring to ‘victim’ and ‘attacker’, the NSPCC – like the Crown Prosecution Service and the police nowadays – is continually conditioning the public to accept a presumption of guilt. It is in thrall to the dangerous and quixotic idea that complaints are all well-founded. Anyone with any experience of the criminal law knows this to be untrue. So do family lawyers.
Those concerned to maintain the integrity of the justice system have been battling such distorted thinking for some decades now. As a New Zealand academic, Dr (now Professor) Goodyear-Smith, writing in the 1990s, said:
‘This practice of advocacy for sexual-offence complainants, which has been adopted by those working in forensic roles, seriously undermines the impartiality of the investigation and trial procedures. Inherently believing all allegations are genuine means there is a presumption of guilt, and the police, doctors, counsellors and lawyers have therefore already effectively conducted the trial in their heads. The effects of confirmatory bias are well documented, and an initial belief in the guilt of the accused can colour how the police, the doctors and other professionals conduct their investigations and look for evidence which might demonstrate that the defendant is innocent.’
Professor Goodyear-Smith reported in the British Medical Journal in March this year just how bad things can get when professionals develop a shared idée fixe about the possibility of abuse. A 10-year-old immigrant from Zimbabwe was admitted to hospital unconscious, with untreated HIV. She developed sepsis and died. The treating clinicians were preoccupied with the idea that she had been anally raped and then suffocated. They failed to consider sepsis as a cause of death. Her adoptive uncle was put on trial for rape and murder, and was acquitted. The prosecution appealed all the way up to the Supreme Court, which ordered a retrial. He was retried, and acquitted again. But for the dogged efforts of his defence team, he would no doubt be serving life for crimes he did not commit. An international expert review of the case concluded that her death was in fact due to toxic shock syndrome, due to advanced AIDS.
The NSPCC’s obsession with victims to the exclusion of other considerations is harmful to the justice system in other respects. Like many advocacy groups campaigning against abuse, it is indifferent to the collateral damage that is done when innocent people are wrongly accused. It encourages those complaining of abuse to think that they should be believed, when the reality is that some complaints will not stand up to scrutiny in a court. And it seeks to prevent judges and lawyers from doing their jobs as they should. Make no mistake: the NSPCC’s proposals have very little to do with justice.
Barbara Hewson is a barrister. Her views here are personal.
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