Rebalancing the scales of justice

© iStockphoto/Tom Mc Nemar

Obtaining good quality witness testimony in historic sex cases is essential for vulnerable witnesses and suspects alike, say Pamela Radcliffe and Gisli H. Gudjonsson

The overriding objective contained within the Criminal Procedure Rules 2015 (1.1. (1-2)), declares ‘that criminal cases be dealt with justly’. 

It applies to all criminal trials, irrespective of charge, or the timeliness of the complaint. This objective neither derogates from, nor diminishes the core principle that accused persons are innocent until or unless found guilty. ‘Justly’ includes ‘dealing with the prosecution and the defence fairly’; it also recognises the rights of the defendant while equally respecting the interests of prosecution witnesses and victims.

Recent widely-reported criminal investigations and trials of historic sexual complaints have exposed the complex investigative issues involved and the difficulties that arise, especially concerning vulnerable witnesses. The latest Rotherham trial, (R v A Hussain et al, February 2016) revealed another egregious example of young and vulnerable victims being failed by the justice system.

The Operation Midland investigation into Lord Bramall has also dominated public discourse. Early morning arrests or searches, (even though the allegation is decades old and there is no risk to public safety), limited pre-interview disclosure, interviews ‘sprung’ upon the accused, in stressful circumstances that may impair a fair and coherent response, and incomplete, lengthy investigations, are not unusual in these cases. Some legal professionals are concerned that the scales of justice are now tilted unfairly against accused persons facing non-recent complaints. Mounting a proactive defence case where the criminal allegation is founded exclusively upon the complainant’s delayed, and uncorroborated account is very difficult. Forensic disadvantage and unsafe verdicts derived from the exclusive reliance upon long-term memory are real risks. Facilitating good quality, reliable witness testimony ensures fair charging decisions and safe verdicts. Understanding those factors that undermine or enhance good quality witness testimony is central to the fair evaluation and prosecution of non-recent sexual complaints.

Identifying non-recent complaints

There is no stereotypical historic allegation and no legislative or official definition of what constitutes a ‘historic’ complaint. The hallmark of these cases is that forensic or documentary material that may aid evaluation of the reliability of the witness testimony is fragmentary at best, or totally absent. Whether the complaint relates to an alleged course of conduct that occurred decades previously or a single event 12 months ago, the chief investigative issue is identical: to identify features that may undermine or contaminate witness recall and to facilitate the most accurate and reliable memory testimony.

The importance of an informed approach

Obtaining good quality, reliable witness testimony from witnesses, including the defendant, requires advanced interviewing training, skills and knowledge. Understanding individual witness strengths and vulnerabilities and their relevance is of paramount importance. For instance, cognitive deficits may impair memory of prior events, including the incident under complaint; investigator questioning may require modification to take into consideration witnesses’ and suspects’ vulnerabilities. Legal justice professionals require interdisciplinary knowledge to comprehend and evaluate the integrity of the investigative methodology and how this may have impacted upon resulting witness testimony. The prime issue of evidential concern in these cases is not witness credibility, that is, malicious false complaints, but unreliable memory testimony caused by genuinely held but false beliefs, faulty recollection or contaminated memory recall.

Witnesses in ‘cold’ sexual complaints may suffer from mental health issues, learning disabilities, physical or psychological infirmities. Research suggests investigators are still failing to identify vulnerable witnesses and suspects and to engage intermediaries and appropriate adults. In addition, investigator compliance with the Achieving Best Evidence interview guidance is inconsistent. Elderly and vulnerable defendants also require sensitive and fair treatment throughout the justice process. The defendant’s individual characteristics, including whether an expert medical or psychological assessment is appropriate should also be investigated expeditiously.

Understanding the psychological complexity of human memory

Relying upon ‘common sense’ beliefs about how memory operates, risks causing unfairness, or worse, unsafe verdicts. Scientific research data indicates that misbeliefs about how memory operates are commonplace among the lay public and professionals.

Awareness of psychological factors that may compromise reliable memory recall is important. Human memory is intrinsically fallible, irrespective of individual witness characteristics. Accurate recall depends upon the prevailing circumstances at the time of encoding and retrieval. How accurately the memory is encoded, stored or retrieved is influenced by diverse external contextual factors, such as, experiencing or witnessing a traumatic event, post-event information, investigative bias, and well-intended but poorly guided therapeutic intervention.

Conversely, internal factors may impair accurate recall, such as organic brain injury, functional impairments, consumption of alcohol or medication, hindsight bias (ie reconstructing memory recall for past events in the light of current events or emotions) or profound distrust of one’s memory. It is the combination and interaction of external (contextual) and internal factors that also needs to be considered.

Investigators and legal professionals may require expert psychological or psychiatric assistance to interpret the impact of surrounding contextual evidence upon the psychological functioning (‘risk factors’) of the witness. Charging decisions in these complex cases require careful deliberation.

Maintaining the correct mindset and a neutral approach

The starting point for investigators is to retain an open mind. Official guidance underscores this approach. The Criminal Procedure and Investigations Act 1996 Code of Practice, Pt II states: ‘In conducting an investigation, the investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect.’ The Attorney General’s Guidelines on Disclosure: For investigators, prosecutors and defence practitioners (December 2013) states: ‘Investigators and disclosure officers must be fair and objective,’ and that they ‘should approach their duties in a “thinking manner” and not as a box ticking exercise’. If investigators fail to conduct a neutral investigation, they risk compromising due process.

The importance of context, timely disclosure and a proactive defence team

Understanding context, for instance, whether memory recall for the complaint was always continuous, the reason given for the delayed complaint, the circumstances of the first official report, the interviewing methodology adopted, as well as external social circumstances proximate to the complaint, for instance, divorce, death, a child contact dispute or ill-health, may all be relevant to assessing memory reliability; the above list is not exhaustive. In cases concerning more recent (but non-contemporaneous) complaints (for instance, those made between one to five years since the event complained of) contextual documentary evidence that may assist or undermine the prosecution case, could still exist. However, investigators are not always aware of potentially relevant information. Defence legal representatives may alert investigators to appropriate third party records or potential witnesses if these come to their attention. Early inter-professional engagement during the investigative phase may assist investigators identify unreliable (albeit genuinely believed) complaints more speedily. Encouraging a working dialogue between investigators, prosecutors and defence representatives requires mutual trust, and may assist both parties identify the issues in the case much earlier. All parties will benefit from this.

Late or incomplete prosecution disclosure is still a common problem. It impacts on timely and fair preparation for the defence case. A Protocol Between the Police and Crown Prosecution Service in the Investigation and Prosecution of Allegations of Rape (2015) applies to all cases of alleged sexual penetration regardless of the victim’s age. It is considered good practice in other sexual offences, including non-penetrative child sexual abuse. It requires the police to be ‘proactive in identifying and seeking access to relevant third party material as early as possible at the pre-charge stage’. Hopefully more prosecutors will follow this guidance and, coupled with increased judicial case management, disclosure practice will improve.

Getting it right first time

Non-recent cases require all justice professionals to apply due diligence hand-in-hand with increased interdisciplinary awareness. These cases rank among the most complex, yet investigators and prosecutors are experiencing increasing public pressure and media scrutiny to reduce the attrition rate, improve conviction rates and believe the complainant. Responding to criticism of the police conduct in Lord Bramall’s case, Sir Bernard Hogan-Howe recently observed: ‘Investigating these cases is exceptionally difficult…[W]e must be clear about the principle of impartiality at the heart of criminal justice…[A] good investigator would test the accuracy of the allegations and the evidence with an open mind supporting the complainant through the process.’

Any legal system that is ambivalent to public concern ill-serves justice; however, prosecutors who ally themselves too closely to the barometer of conviction rates and public opinion risk causing further injustice. Prosecutors, investigators and defence professionals who uncritically believe or disbelieve victims or clients respectively, are susceptible to cognitive bias. The recent Rotherham case illustrates the risks that can arise. Complaints of sexual abuse made by young and vulnerable girls appear to have been disbelieved by professionals from the outset; consequently, fair investigations were thwarted. Ironically, the risks of believing the complainant may be equally catastrophic. In an unreported case, the police interviewer in a multi-defendant child sexual abuse investigation irretrievably contaminated the child’s witness testimony and rendered the video interview inadmissible. The child’s witness testimony was critical to the prosecution. Improper questioning of the child and non-compliance with interview guidance, most probably generated by the officer’s evident belief in the child, encouraged confabulation and fantasising. The trial was abandoned. Confirmation bias impairs logical and objective reasoning and compromises an ‘open’ mindset. It causes individuals to look for, or give more weight to, confirmatory material and consciously or subconsciously eliminate or avoid disconfirming information. Another contemporary case highlights the risks posed by biased defence professionals. Counsel received a ‘late return’ in a rape case containing serious aggravating features. Sentence on conviction would have entered double figures. Informal comments from solicitors suggested they believed their client was guilty. This mindset, that is, belief in guilt, may have contributed to poor case preparation. CCTV footage listed within the unused material schedule had neither been viewed nor obtained by the defence team. When finally viewed proximate to trial, the CCTV footage undermined the complainant’s credibility and supported the defendant’s interview account. The defendant was duly acquitted.

Fair evaluation of witness testimony requires neutral assessments of credibility, accuracy and reliability. The observations of Dame Elish Angiolini DBE QC (The Elish Review, 2015) upon the correct approach are salient. ‘Rather than labelling this approach as belief, it is suggested that it is more appropriate for criminal justice practitioners to remain utterly professional at all times and to demonstrate respect, impartiality, empathy and to maintain an open mind.’ This approach facilitates both fairness and justice. ●

Contributors Pamela Radcliffe is lead editor, and Gisli H. Gudjonsson CBE is co-editor, of Witness Testimony in Sexual Cases: Evidential, Investigative and Scientific Perspectives

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Author details: 
Pamela Radcliffe

Pamela Radcliffe was called to the Bar in 1979. Her practice has spanned both criminal (defending) and family jurisdictions. She is a visiting research fellow in the Department of Psychology at the University of Portsmouth

Gisli H. Gudjonsson CBE

Gisli H. Gudjonsson CBE, Emeritus Professor of Forensic Psychology, regularly gives expert evidence in cases involving witness testimony. He is author of The Psychology of Interrogations and Confessions.