Is this justice, or naming and shaming?

Following the arrest of Jimmy Tarbuck on 26 April, it is clear that Operation Yewtree, the operation established to investigate historical allegations of sexual offending against Jimmy Savile and ‘others’, has the potential to be more far reaching than first thought.

The operation was initially established to investigate allegations in three categories: allegations against Savile acting alone; allegations against Savile acting with others; and allegations against ‘others’. This third category has led to the arrest of six individuals since November 2011. These have included William De’Ath, a former BBC producer, although the police have since announced that no further charges will be brought against him. On 19 April, it was revealed that last year Rolf Harris had been arrested and interviewed in relation to the third category of offending. Operation Yewtree has led to the arrest of 13 men in all. Two have been charged: PR agent Max Clifford, and ex-BBC driver David Smith.

The arrest of Tarbuck is a first for the operation, because it was the first made simply on the basis of ‘information provided by Operation Yewtree’. This ‘information’ has led to an entirely separate criminal investigation by North Yorkshire Police.

Making an arrest is no indication of the success of an investigation. An arrest is the starting point of a criminal investigation, and can only be made if questions are to be asked in an interview which can advance the investigation in some way. While the arrests made in the course of Yewtree may give the impression that the operation is successfully sweeping up a generation of paedophilic entertainers, it may equally turn out that the investigation has led to the naming and shaming of many completely innocent people.

In order to charge any of the arrested individuals with criminal offences, the Crown Prosecution Service, which instigates all prosecutions in England and Wales, will have to determine two things: whether there is sufficient evidence and whether it is in the public interest to prosecute. This is what is known as the ‘full code test’. The ‘public interest’ aspect of this test is supposed to introduce a number of factors into the decision to charge: did the offending have any impact on the community in which the offending took place? How serious was the offence? And, perhaps most importantly, is prosecution a proportionate response to the offending?

The first point to note is that many of the arrests have been made for what are, on the face of it, highly ambiguous offences. A number of the arrests, including that of Rolf Harris, have been made following allegations of ‘sexual assault’. A sexual assault can be anything from a pat on the rear to non-penile penetration. It is yet to be seen whether any of the offences are sufficiently serious to warrant an arrest so long after the fact. Given the delay, one would imagine that a sexual assault would have to be quite heinous for it to be in the ‘public interest’ to prosecute.

Assuming the assault was heinous, what then? Even if a case is brought to trial, the Crown Court will have an inherent jurisdiction to decide whether to try a case where the accused cannot receive a fair trial due to the passage of time. This is what is known as the ‘abuse of process’ doctrine. There is no hard and fast law as to when cases can and cannot be prosecuted in the UK, but if the delay has caused a significant prejudice to the defendant, then the case is likely to be thrown out at trial.

In March, the head of the Crown Prosecution Service, Keir Starmer, made a speech which reveals much of the impetus behind Operation Yewtree. It is clear on reading Starmer’s account of the CPS’s treatment of Yewtree’s findings that its roots lay not with Savile or any of the individuals associated with him – the elusive ‘others’ – but with the botched child-sex investigation which became known as the ‘Rochdale case’.

The Rochdale case involved the systematic abuse of underage girls by Pakistani men in Manchester. The original lawyer for the Crown had decided that the complainant would not be seen as reliable by a jury, and so the original complaint was dropped. When the extent of the abuse was uncovered, and nine men were convicted of various offences ranging from rape to sexual assault, the operation was seen as a catastrophic failure on behalf of the Crown to deal properly with complaints made by young women.

Starmer set up a panel to investigate the failings in the Rochdale case. This was at the same time that he asked Alison Levitt, his chief legal adviser, to re-examine complaints made against Savile following the broadcasting of an ITV documentary, and also to investigate historic claims against the Liberal MP Cyril Smith. The decision to reinvestigate the complaints against Smith was unprecedented, given that Smith was dead and the complaints were 30 years old. Never before had the Crown Prosecution Service undertaken a review of a decision which would have no practical consequence.

The investigation of the Cyril Smith case led to a public apology by Greater Manchester Police and the Crown Prosecution Service for failing to prosecute Smith while he was alive. In relation to Savile, Yewtree resulted in a Metropolitan Police report into the investigation called ‘Giving Victims a Voice’, and a further report produced by Alison Levitt at the Crown Prosecution Service. The Levitt report suggested that while there was no ‘improper motive’ driving the decision not to prosecute Saville while he was alive, had the police taken a different approach, a prosecution ‘might have been possible’.

In Starmer’s own words, the purpose of publishing a CPS report into the Savile case was to ‘explore how the police and other bodies can learn to be more effective in the resolution and prevention of serious sexual offending’. In other words, from the perspective of the Crown Prosecution Service and the Metropolitan Police, Yewtree and the investigation of other historic offences like those alleged against Cyril Smith, were about publicly demonstrating a change in attitude to the way sex cases are prosecuted. Of course, it is too early to tell in relation to those arrested in the course of Yewtree whether or not the allegations against them stand up to scrutiny. But it is vital to recognise that every arrest without a conviction represents the arrest and unnecessary shaming of a completely innocent individual.

Of course, if all or even some of those arrested are successfully tried and convicted of serious offences it may well not matter what the impetus behind these arrests are. But if those arrested in the course of Yewtree, or ‘on the basis of information provided by Operation Yewtree’, were shown to be innocent, it should be recognised as a catastrophic prosecutorial failing. Equal, perhaps, to those prosecutorial failings these arrests sought to correct.

Luke Gittos is a paralegal working in criminal law and convenor of the London Legal Salon.