No justice system for old men

During 2013, a number of men, ranging in age from around 60 to 80 years old, have been convicted in historic child-abuse cases and many have been given custodial sentences. Former TV presenter Stuart Hall is the most famous of these. Aged 83, Hall was convicted on 17 June for 14 offences, the earliest from around late 1967 or early 1968, and sentenced to 15 months in prison. (Earlier this month, it was announced that Hall’s sentence would be reviewed to see if it was too lenient.) There has been plenty of media coverage of the other famous old men who have been arrested under Operation Yewtree this year.

Yet it is not just the famous who are attracting the attention of the authorities. Many other non-famous old men have recently been convicted of offences which happened many years ago.

For example, a record was broken for UK historic child-abuse prosecutions in October 2012 when Reginald Davies, aged 79, was sentenced to 11 years in prison for one count of rape and four of indecent assault, with the first crime being committed 64 years ago when Davies was still a teenager. He pleaded not guilty and has since been given leave to appeal. Father Keith Wilkie Denford, aged 78, was jailed for 18 months for indecently assaulting two teenage boys. The offences took place between 23 and 26 years ago.

Anglican clergyman, Gordon Rideout, aged 74, was sentenced to 10 years for 34 counts of indecent assault and two of attempted rape between 1962 and 1973. Michael Brewer, age 68, was jailed for six years for abusing Frances Andrade, between 31 and 35 years ago. Patrick Ryan, aged 64, was jailed for 12 years for sexually assaulting two girls 40 years ago. Ian St Clair, aged 57, was given an eight-year jail sentence for 16 offences taking place between 20 and 34 years ago. Michael Kannan, aged 61, was sentenced to nine years in prison for indecent assaults dating back to 1972. John Yallop, 65, an ex-vicar, was jailed for three years for six counts of indecent assault 26 years ago. Rather more famously, the artist Graham Ovenden, aged 70, was given a suspended 12-month sentence for six counts of indecency and one of indecent assault for offences that dated back about 40 years.

The purpose of prosecution

One of the striking things about these cases is the number of years during which no offences have taken place. It is worth asking what custodial sentences achieve for us as a society in these circumstances. Locking up these old men will not deter them from committing further offences or serve as a process to reform them away from such behaviour. They have already stopped the offending, perhaps for decades, and in doing so, reformed themselves. So, two of the main outcomes society could have hoped to achieve by catching child abusers and locking them up earlier – preventing further crime and reforming them away from reoffending – don’t apply to these cases.

We should also consider whether these sentences are supposed to deter others, if at all. None of these men have been caught at the peak of their offending. Their age and the fact that often they have health problems seems to suggest that ours is a justice system that is better at catching the feeble. Is that a reputation that serves either the system or the victims of abuse well?

We have not had a proper debate about the reasons for applying custodial sentences in these cases. As it stands, the main reasons look to be punishment and revenge. Unfortunately, this changing understanding of criminal justice has crept in unnoticed and largely unchallenged.

Judging cases, but not characters

Things may be about to get worse. The director of public prosecutions, Keir Starmer, has ordered a review of the handling of recent child-abuse allegations, resulting in interim guidelines for the prosecution of child sexual-abuse cases. As the review is a response to Operation Yewtree as well as the Rochdale case, which resulted in convictions for acts of child sexual abuse, rape and trafficking for sexual exploitation taking place in 2008 and 2009, it covers historic as well as recent sexual abuse.

The guidelines, currently the focus of a consultation exercise, do at least advise the police against trawling for victims by approaching those who were, for example, living at a particular children’s home or attending a particular school. In such circumstances, the guidelines acknowledge, there is the risk of false allegations. However, in certain circumstances, the guidelines support complainants being told that other allegations have been made, on the grounds of ‘strengthening their resolve to continue their engagement with the criminal process’. Even though the guidelines are clear that the details of the allegations can’t be revealed, this approach is part of a clear instruction for the police to move away from considering complainant credibility towards considering the credibility of the allegations.

The guidelines assert that there should not be too much focus on the character of the complainant. Instead, complainants must be treated like those complaining of other, non-sexual crimes. But it is dangerous to shift the focus away from personal credibility to this extent when it comes to historic child-abuse cases. There are incentives within compensation law that could mean complainants make false allegations, particularly where they want to show the abuse has had a long-lasting effect. Even though some of these incentives have been curbed recently through the changes to the Criminal Injuries Compensation Scheme, for instance, the scheme is still more generous on this issue than with regard to many other areas of crime.

The guidelines go on to suggest that unreliable or bad behaviour on the part of the person making the allegations could be linked to having been sexually abused. In the topsy-turvy world of the child-abuse case, criminal offending, drug abuse, lying and inconsistency – the kinds of things that might be attributed to bad character on the part of a defendant – can be presented as the result of child abuse. Of course, the police should not dismiss an allegation solely on the base of suspected, or obvious, character defects. But the credibility of complainants should still be critically considered.

A problem for victims, too

If we are really serious about wanting to focus more on allegation credibility rather than character credibility, we could start by removing compensation incentives. The apparent indulgence by institutions of bad behaviour by a complainant, because it can be attributed to the child abuse, also creates wider problems. If people don’t want to acknowledge their responsibility for bad behaviour or its consequences, they can use historic abuse as an excuse. And it also undermines the idea that people can be reformed.

Victims of abuse should question the approach recommended, too. Cases where the prosecution feels gung-ho about pursuing initially, because now it’s harder to challenge complainant credibility, may be those cases that are easier to pick apart later. It seems unfair to ask people to go through the court process if the chance of success is not high. If a lower standard of behaviour is being set for complainants – that is, they are given leave, if not encouragement, to attribute their bad behaviour to the fact that being a victim of sexual abuse caused them to misbehave – then this approach can surely be used more frequently by defendants. The person in the dock, just as much as the one in the witness box, can claim they are helplessly caught in a ‘cycle of abuse’. This can only lead to a chain reaction of victims and defendants blaming external factors for their behaviour, so avoiding the need to take personal responsibility.

Under the interim guidelines, prosecutors may now be ‘actively challenging any misconceptions a jury might have’. But simply saying longer and louder that complainants are now to be accepted as trustworthy, and are not likely to make anything up, make a mistake or misremember, doesn’t make a case any more convincing.

It seems that the justice system is happy to err towards believing complainants in sexual-abuse cases. But locking up old men who stopped offending years ago and suggesting that this is a victory in the war against child abuse, while dangerously unbalancing the approach to these kinds of allegations towards believing everything that is said, is a sign of weakness and not strength. A justice system that was really sure of itself would not need to do this. Rather, it would focus its energies on those offenders currently offending, through a robust, defensible and fair process.

Rosamund Cuckston helps organise and run the Birmingham Salon.