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The continuing preoccupation with historical child sexual abuse cases has focused attention on a number of associated issues. An issue central to this book and the focus of this chapter is the nature of allegations/false allegations. In looking into the way in which allegations of sexual abuse are dealt with, the chapter will explore the nature, importance and significance of allegations in the criminal justice process and the ways in which ‘credibility’ and ‘truth’ are examined and evidenced.

On 22 July 2019, Carl Beech was found guilty by a jury at Newcastle Crown Court of 12 counts of perverting the course of justice and one count of fraud. Mr Justice Goss sentenced Beech to a total of 18 years’ imprisonment (R v Beech, Sentencing Remarks, Unreported, Newcastle Crown Court, 26 July 2019). Between December 2012 and March 2016, Carl Beech (referred to as ‘Nick’) had made a series of allegations of murder and child sexual abuse against a number of public figures. These included some particularly serious allegations about the abuse of boys on the Dolphin Square estate in Pimlico in London. The names of several of the prominent individuals against whom allegations were made were reported in the press. They included the former Conservative Home Secretary, Lord Brittan, the former Chief of the Defence Staff, Field Marshall Lord Bramall, the former Prime Minister, Edward Heath, and the former Labour MP, Greville Janner (Daily Telegraph, 2015).

Beech had first contacted the police with allegations of child sexual abuse in the autumn of 2012 after the broadcast of a documentary about the life of the media personality, Jimmy Savile, and the launch of Operation Yewtree.

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Frequently regarded as the most unequivocal evidence of guilt, a confession relieves doubts in the minds of judges and jurors more than any other evidence. In criminal law, the confession evidence is considered to be the most damaging form of evidence produced at trial and a prosecutor’s most potent weapon. (Conti, 1999, p 14)

Some individuals express an overwhelming need to admit to their misconduct. Others have little choice but to do so when faced with overwhelming incriminating evidence. In both cases, the truth can be arrived at in an expedient manner and with minimal involvement from the criminal justice system – most suspects who confess to the police will not seek to retract their confession later but will admit guilt again prior to the trial by entering a plea of guilty. Assuming factual accuracy and a lack of coercion, a confession can be viewed as an optimum criminal justice outcome. Prosecutors are not faced with the task of determining whether the evidence suggests that conviction is a realistic prospect or in the public interest. Trial uncertainty is avoided. Limited state resources can be diverted to other cases, with the possibility that the additional resource secures the conviction of other offenders. The benefits of a confession go beyond the financial as victims, witnesses and defendants are spared the inconvenience and distress of attending court. All of these benefits are considerable.

Confessions are an incredibly powerful indicator of guilt in the eyes of jurors (Kassim, 1997; Watson et al, 2010; Garrett, 2011). Why someone may admit criminality is therefore important.

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Before a prosecution is brought, the Crown Prosecution Service (CPS) needs to be satisfied that there is sufficient evidence to provide a realistic prospect of securing a conviction against the suspect(s). In assessing the evidence, the CPS needs to consider the admissibility of the evidence and this is considered in more detail in Chapter 5. It must also consider the reliability and credibility of the evidence. In order to do so, it must consider whether there are any reasons to question the accuracy and integrity of the evidence. Very often this will involve making judgments on the veracity, integrity and credibility of witnesses who may be called upon to give their testimony in court. Andrew Choo sets out the traditional view on how the criminal trial can make assessments of witness reliability:

Any statement may be unreliable because of defects in the perception, memory, sincerity, or ability to narrate clearly, of the maker of the statement. Suppose that a witness, W, states in his or her testimony that ‘The car I saw driving away was red’. This statement may be unreliable because (1) W may have perceived the car to be red when it was in reality of some other colour; (2) W may have genuinely forgotten that the car was of some other colour; (3) W may be lying; or (4) W may be trying to say that the car was of some other colour, but be lacking in the ability to narrate this clearly. In this situation, because the statement has been made in court by the person who witnessed the event, it will have been possible to observe his or her demeanour at the time of making the statement.

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Procedural rules prescribe the ways in which law enforcement agencies can obtain evidence that can be used in a subsequent prosecution. Inevitably, these rules are sometimes broken. Sometimes, though, the evidence found remains highly probative and potentially indicative of guilt. This presents an evident dilemma. If establishing truth is paramount, excluding relevant evidence is counterproductive. Worse, it would appear that such a stance would increase the potential for a wrongful conclusion to be drawn, which could result in a miscarriage of justice, even though this is more likely to be an undeserved acquittal than a suspect conviction. However, all rules of procedure have a purpose. They have been drafted so as to ensure (at least theoretically) that individuals are not put in situations where they have to provide samples, be searched or allow law enforcement officers to search their property without good cause. A lax approach when the rules are breached would provide little incentive for compliance on the part of law enforcement personnel. The issue may not appear so pressing if, say, an illegal search reveals that the suspect was handling stolen goods. But a failure to provide an effective remedy also has the potential to facilitate (as opposed to legitimate) unlawful searches that yield nothing. How such evidence is treated poses a challenge: there is an obvious temptation to admit that which might aid a deserved finding of guilt, but with a reservation that, in so doing, the state would benefit from breaking the law.

This chapter will start with an account of the English common law position, which generally holds that illegally, improperly or unfairly obtained evidence remains admissible at trial, save in exceptional cases.

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In the public imagination, the criminal trial is the culmination of the criminal justice process, the overriding purpose of which is to acquit the innocent and convict the guilty. As Michael Naughton writes:

If you were to ask the ‘person in the street’ what he or she wants from the criminal justice system, the reply is more than likely going to be that it should convict the guilty and acquit the innocent; and, if it should happen that an innocent person is convicted in ‘error’, then most people would probably think that the appeals system should operate to overturn the conviction in a speedy fashion to reduce the harm that was caused to the victim and his or her family and friends and restore the legitimacy of the criminal justice system. The idea that the criminal justice system should be about convicting the guilty and acquitting the innocent is reflected in political statements about how the system should function and it is transmitted in portrayals of wrongful convictions and wrongful acquittals in the media. (Naughton, 2009, p 17)

The process starts with the allegation or discovery of a potential criminal act and proceeds through investigation and the gathering of evidence. Along the road to the criminal trial is a series of decisions to be made, gates through which the defendant must pass: Has a crime occurred? Is there justification for an arrest? Is there a basis to press charges? Is the decision to prosecute justified?

Gottfredson and Gottfredson (1988) argued that there are two types of decisions – those made by individuals and ‘agency or institutional decisions’ – although many individual decisions are informed by agency/institutional policy.

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Considering the centrality of the contested criminal trial in the popular imagination, there is a surprising lack of academic research into how contested trials operate. By design, alternative narratives are constructed and presented to the court to enable it to assess the factual and legal culpability of the accused. The rules of engagement are strict. Evidence that juries may find of relevance may sometimes be withheld – for example, evidence of previous bad character relating to an accused, or evidence of a complainant’s sexual history in a rape case. This suggests that juries may attach disproportionate weight to evidence, jeopardizing the fairness of the trial. Issues also surround the use of expert witnesses. The presentation of complex evidence can lead to misunderstanding on the part of lay people and can also mask the fact that there can be scientific disagreement over the interpretation of evidence.

It is perhaps a common public perception that criminal trials will turn on questions of law. Legal practitioners spend approximately four years studying the law prior to qualification. In practice, however, few criminal cases are primarily about questions of law. In the overwhelming majority of criminal trials it is the facts that are disputed and in issue. The court will have to decide whether the necessary facts have been proved to a sufficient standard to meet the legal elements of the offence charged. As Susan Blake points out:

For the litigation lawyer a case will often be concerned with the sorts of questions of fact a journalist asks—who, what, where, when, and how? Effective litigation requires close attention to establishing and analysing the facts relevant to a case, and an ability to understand and address the problems that dealing with facts can present.

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The contested trial, and the search for truth that takes places in that forum, may be central to popular perceptions of justice. For reasons documented elsewhere in this book, though, an adversarial trial has many deficiencies as a means for discerning the truth surrounding a criminal event. It has also been seen that the trial process is concerned with more than truth-finding and that this function may, on occasion, be subordinated to potentially competing values, for example by excluding potentially incriminating evidence that has been obtained unlawfully (see Chapter 5). The popular belief that a contested trial is the normal means of determining whether an offence occurred and, if so, who bears responsibility, is incorrect. Contested trials are rare. In England and Wales, the majority of offenders admit guilt pre-trial. In most cases, the only thing to be determined in court is the appropriate sentence. This might suggest that factfinding is of limited relevance in the daily life of the criminal courts. Questions of fact, however, remain vital even when a plea of guilty is tendered. An initial task for the court is to determine what precisely the offender is admitting to. This is a factual question (what does the individual accept responsibility for?) as much as it is a legal one (the offence admitted to may not reflect the real gravity of the actual conduct and/or may misrepresent their culpability at the time).

Also of potential relevance are the circumstances surrounding a guilty plea. A court might, for example, seek supporting evidence in order to stop a potential miscarriage of justice.

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Earlier chapters have cast doubt on the ability of adversarial justice systems, including that in operation in England and Wales, to arrive at the truth despite procedural rules and safeguards designed explicitly to facilitate factfinding by discriminating between probative evidence and evidence likely to lead to inappropriate (though not necessarily false) conclusions. There is frustration that the current rules can hamper the search for truth, as well as a realization that the supposed due process protections may be overstated or illusory. To some writers, though, the failure is more profound: despite vast expenditure on the apparatus of a justice system, few criminals are held to account and, even when a culprit is convicted, the trial process causes victim dissatisfaction and current forms of punishment seem more adept at entrenching criminal behaviour than aiding desistance (Mitchell et al, 2017; Ministry of Justice, 2019). As the factually guilty usually avoid detection (and hence possible prosecution, conviction and punishment), the truth only emerges sporadically and arbitrarily. Moreover, even if one could design a system which ensured that only the factually guilty were convicted, the penal response is unsatisfactory. Critics point to the mass of empirical evidence which demonstrates that those punished are seldom deterred by the experience (Nagin, 2013a, 2013b; Chalfin and McCrary, 2017).

This is an account of systemic failure. Consequently, it should come as no surprise that these critics advocate for a radical recasting of how society conceptualizes and reacts to harm and to those who cause it. Part of this critique, at both a macro and a micro level, is how an event should be constructed.

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In a previous book (Dingwall and Hillier, 2016) we discussed the role of blame in the criminal process, arguing that blame and the identification of who is to blame is a central aspect of the criminal justice system. We sought to argue that ‘over the last 35 years we have moved to a more judgmental, less sympathetic, and more punitive society. This change is reflected in the growth of criminalization. Central to the change is blame’ (Dingwall and Hillier, 2016, p 23).

In Chapter 1 of this present book we made reference to the case of Jones v National Coal Board [1957] 2 QB 55, which concerned the death of a mineworker in a mining accident. We remarked on the fact that if the event had occurred today it may well have led to a prosecution for corporate manslaughter. There has been a large increase in the number of criminal offences in recent years. In 2015, the Criminal Justice and Courts Act created a new offence for an ‘individual who has the care of another individual by virtue of being a care worker to ill-treat or wilfully to neglect that individual’ (Criminal Justice and Courts Act 2015, section 20). The legislation was passed following the publication of a report produced by a government-initiated inquiry into patient care. The inquiry, chaired by Professor Don Berwick, had, in fact, emphasized the need to learn from the no-blame culture that had successfully reduced accidents in the aviation industry (Department of Health, 2013).

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Allocating blame in the criminal justice process

Available Open Access under CC-BY-NC-ND licence

We live in a society that is increasingly preoccupied with allocating blame: when something goes wrong someone must be to blame. Bringing together philosophical, psychological, and sociological accounts of blame, this is the first detailed criminological account of the role of blame in which the authors present a novel study of the legal process of blame attribution, set in the context of criminalisation as a social and political process. This timely and topical book will be essential reading for anyone working or researching in the criminal justice field. It will also be of wider interest to anyone wishing to discover the role of blame in modern society.

Open access