This post is intended to be incorporated as an additional chapter (Chapter 23) in my book An Exercise in Absolute Futility, but it can stand here on its own. It is controversial and contains some challenging ideas and adult language, so if you are of a timid disposition, don’t read it.
If we are to protect children from their sordid, sexual and diabolical grasp, we must bring in new laws to wipe witches off the face of the earth.
Geoffrey Dickens MP (Glasgow Herald, 1988).
The principle of ‘bad character evidence’ or ‘similar fact evidence’ allows the presentation of evidence regarding the accused’s past conduct if the judge is satisfied on the balance of probability that the corroborative value of the evidence outweighs its potential to prejudice the jury. Presenting ‘similar fact evidence’ is a technique often used in cases involving sexual assault, insider trading and burglary; the aim is to prejudice the jury’s opinion of the defendant’s character where there is insufficient evidence relating to the charge itself.
At the beginning of the 20th century similar fact evidence was limited to murder trials in which the facts introduced were undisputed and very close in character to the facts being tried. The classic cases are Makin v Attorney General for New South Wales  AC 57, in which the presence of 12 other infant corpses was adduced in evidence against a couple accused of murdering a fostered child, and R v Smith  11 Cr App R 229 (the ‘brides in the bath’ case), in which three different women had married the defendant, made financial arrangements beneficial to him and then ‘accidentally’ drowned in a bathtub shortly afterwards. George Joseph Smith was charged with only one murder, but the evidence of the other two was also offered.
In R v Sims  31 Cr App R 158, which dealt with allegations of buggery made by three different men, the future Lord Denning drafted a judgement in which the principle was extended to allegations, for no better reason than his own abhorrence of homosexuality. The principle was adopted by Lord Cross in DPP v Boardman  AC 421, in which three boys made allegations against their schoolmaster, though he warned there was a difference between the undisputed evidence in Makin and Smith and the uncorroborated allegations in Sims. The court established two safeguards to protect against Denning’s dangerous precedent: the court had to weigh the probative value of the allegations against their capacity to prejudice a jury and the evidence could not even be considered unless the similarities were ‘striking’.
In DPP v P  2 AC 447 however, Lord Mackay, the Lord Chancellor, dismissed the second safeguard, thus dramatically lowering the threshold and making false allegations more likely. Then in R v H  1 AC 596 he undermined the first safeguard, by ruling that where similar allegations were being considered the court should generally assume they were true, thus ensuring that unreliable and prejudicial evidence would henceforth regularly form the basis on which criminal proceedings were tried. Professor John Smith demonstrated the error of this approach,
But the judge has to weigh the probative value against the prejudicial effect. How can he assess the probative value of the statements without taking into account their reliability? If he has to assume that they are true for the purpose of this exercise, they will always be admissible because if they are true, they are conclusive proof of the defendant’s guilt – the probative value then obviously outweighs the prejudicial effect. [Yet] if the witnesses have put their heads together to concoct false stories the evidence is obviously worthless (Smith J. C., 1999).
The first recorded suggestion that a paedophile ring was supplying prominent politicians and others with boys from care homes emerged in 1980 regarding the Kincora hostel in Belfast. Three men were convicted, but no evidence was found of a prostitution ring. Over a dozen such rings have been alleged, but though some individual paedophiles have been identified and prosecuted, belief in organised rings has never been substantiated. Similar stories have arisen in Portugal, Nova Scotia, the US and Australia but have never been proven, indicating that this is a global delusion and not unique to the UK.
Spread of the myth has been facilitated by the demonization of the paedophile who has become the new bogeyman in popular culture: a figure to be feared and hated; there is not a drop of compassion for his affliction. Our understanding of paedophiles derives not from science but from press and TV which construct a primitive, archetypal narrative in which we, the public, are the ‘hero’, whose role is to protect the child ‘victim’ from the paedophile ‘monster’. In these stories the paedophile is always the outsider, a dangerous predator who cannot control his urges and whose every contact with a child is traumatising and irreparably harmful. The reality is different: paedophiles express a strange, almost mystical adoration of children,
I am also a pedophile and attracted to young boys. I also feel a deep love and tenderness for boys. What I think is the most beautiful about boys is their happiness, playfulness and spontaneity and the light in their eyes. I would hate to know that a boy had his life ruined because of something I did to him. This is a deep, true-felt love that I have never really felt for any category of people besides young boys (Mchale-Maughan, 2014).
Sexual arousal of adults by children is also more common than we might imagine (or feel comfortable with) and may affect 25% to 30% of men (Hall, Hirschman, & Oliver, 1995) and a similar number of women; violence only features in about 20% of illicit sexual contact with children (Baurmann, 1983) and in less than 1% of assaults on boys; paedophiles are no more nor less violent than ‘normal’ heterosexuals. Lasting harm is rare and far more often associated with sexual abuse within the family (Rind, Baurseman, & Tromovitch, 1998). The idea of paedophilia as an uncontrollable urge is also not supported: a meta-analysis found a reoffending rate after 5 years of only 12.7% (Hanson & Bussiere, 1998). The popular understanding of the paedophile is thus something of a fantasy, a nightmare to scare children made plausible by the fact that violent sexual predators of children do exist; we should bear this in mind as we read this chapter. Furthermore, if paedophilia is defined as the sexual desire for pre-pubescent children, we should note that most of the offences recorded in this chapter involve adolescents, and the offenders, though some may be profoundly abusive and unpleasant, are not paedophiles. The popular construct of the paedophile replaced the popular construct of the satanic ritual abuser in the 1980s and ‘90s, which replaced the 17th century construct of the witch, or the 19th century Jew: he is the scapegoat, the powerless threat to society, onto whom we can transfer all our self-loathing, moral confusion and fear of our own sexuality.
The new vulnerability in the law was exploited to win convictions which would never previously have been possible. A huge rise in police trawling expeditions resulted and the similar fact became the favoured strategy by which the prosecution could introduce prejudicial evidence. This was most dangerous in child sexual abuse trials where the presumption of innocence almost vanished. The case which gave legitimacy to this approach began in a children’s home in North Wales; the story is told by Richard Webster in his book The Secret of Bryn Estyn (Webster, 2005). In 1974 Bryn Estyn became a community home and its progressive head, Matt Arnold, began its transformation into a more caring and relaxed home, but it closed in 1984 before the process was complete.
In 1990 Stephen Norris, a worker at another home, had pleaded guilty to 5 counts of sexual abuse and was sentenced to three-and-a-half years; two other former employees had also been convicted of sexual offences in unconnected cases. These convictions demonstrate that there was a real problem, though none of it related to Bryn Estyn, social services, however, had suspected a paedophile ring involving many care homes in Clwyd and called in the police.
On 1st December 1991 the Independent on Sunday carried a story across the whole front page and all of page three. The journalist, Dean Nelson, accused the police of lagging in their investigation and of a cover-up, and quoted in support the leader of Clwyd County Council, Dennis Parry. The paper published a front page photograph of the former deputy head of Bryn Estyn, Peter Howarth, over a caption claiming he was alleged to have assaulted boys. Inside Howarth was referred to as a paedophile, despite the fact that police hadn’t even interviewed him. The paper made other allegations against the home and against other named members of staff; the allegations were backed by Alison Taylor, a former social worker who had been dismissed when she made allegations against colleagues. Further allegations were made against a police officer, Gordon Anglesea.
The following day the police combined their Clwyd investigation with another in Gwynedd to form the UK’s largest ever investigation into child abuse. They launched a trawl of former residents of North Wales homes, advertising an average compensation pay-out between £80,000 and £90,000 (Community Care, 2002), and found 650 who made allegations against 365 former staff. Only one other conviction resulted: that of Peter Howarth, who protested his innocence throughout. Gordon Anglesea sued for libel and won: the only allegations against him were those made by the journalists; the police found no evidence of any paedophile ring. The head of the investigation, Detective Superintendent Ackerley, said, ‘We thought at first that there was a paedophile ring. Now we know that it was just two evil men’.
These findings did not end the allegations and speculation; Clwyd Council established a panel of experts led by John Jillings, former Director of Social Services for Derbyshire, who produced a report two years later confirming many of the allegations. Lawyers warned the report might be libellous and the Council decided not to publish, but some councillors disagreed with the decision and leaked a copy to the Independent which deduced an attempt to suppress the truth. They launched a campaign implying a connection between senior officers and freemasonry and the involvement of government ministers and senior Conservative figures. In 1996 the Government was forced to initiate the largest Tribunal of Enquiry ever conducted under the chairmanship of Sir Ronald Waterhouse, a retired high court judge, and at a cost to the public purse of £15 million. In 2000 it reported and verified the allegations made, condemning people whose names had already been cleared and who continued to maintain their innocence; there was no right of appeal. Alison Taylor’s claims were also vindicated. It was headline news on every front page and further stirred up the moral panic, forming the basis of what had become a national witch hunt: between 5,000 and 10,000 former care workers and teachers were investigated and hundreds were arrested. Richard Webster blamed the credulous journalists and their editors for the scandal, and the tendency of the courts to treat child abuse as a crimen exceptum, in respect of which the usual rules of evidence and justice were suspended.
Undeterred by Waterhouse, trawling exercises, in which the police contacted the former residents of care homes, some of them convicted criminals, and invited them to make allegations of historic abuse, often with the promise of financial compensation, became the standard way in which police approached allegations of child abuse. Under Operation Granite in 1994 police in Cheshire contacted thousands of former residents of the Greystone Heath children’s home after one resident, a prolific offender, made allegations against 17 former care workers. One, Alan Langshaw, immediately confessed and was sentenced to 8 years. Without other evidence the police distributed hundreds of letters to former residents inviting them to testify; they gave the former residents names of the workers and told them they were being investigated for paedophilia offences. The police also worked closely with a local firm of solicitors who placed articles in the local press advertising that ‘victims’ would be able to claim large sums in compensation.
Roy Shuttleworth was sentenced to 10 years for crimes he could not have committed, but the discrepancies in the prosecution’s case were ignored or attributed to faulty memory of long-past events; according to one former resident, Lee Fielding, the police were putting words into his mouth, he remained convinced an innocent man had been locked up. All of the 8 men who did testify had criminal records for dishonesty; each was entitled to up to £100,000 in compensation. Under questioning from the BBC’s Panorama programme Shuttleworth’s accusers changed their stories, evidence which was available when Shuttleworth unsuccessfully applied for leave to appeal in 1999; in the same year Shuttleworth’s wife suffered a fatal heart attack. Shuttleworth was eventually released, a broken man, in March 2002 after serving five-and-a-half years.
Despite the success of the similar facts technique, it is possible to counter these charges and not all prosecutions have resulted in conviction. In 2000 Robin Reeves, the former head of a school for disturbed children, faced 34 counts; his defence team presented evidence that all counts were untrue and the judge directed the jury to acquit him. In the same year David Jones, the former manager of Southampton football club, faced 21 counts of child abuse and buggery while working at a special school in Merseyside, but the case against him collapsed in Liverpool Crown Court. A key witness backed out and the prosecution withdrew their case, but it meant Jones was denied the opportunity to demonstrate his innocence. Also in 2000 another defendant had successfully pleaded not guilty to 63 counts, reduced from an original 90. In 2001 four members of a supposed paedophile ring in Swansea faced more than 250 counts between them. After three years and the expenditure of hundreds of thousands of pounds the case collapsed when the main claimant was exposed as a fantasist who had made allegations against people who did not exist.
By the turn of the millennium nearly 100 trawling operations were in operation across the country and the tactic had acquired respectability. Completely decent and innocent men, such as Peter Howarth and Roy Shuttleworth, were being sent to prison. Groundless allegations, some already rejected by juries, were being used to shore up other allegations which on their own were insufficient to achieve a conviction but together acquired a false credibility. It is a successful technique because it destroys the presumption of innocence and thus results in convictions; it is dangerous because it destroys justice and punishes the innocent; and if there is ever a backlash, the real victims of abuse will suffer because their stories will not be believed. When the truly guilty are convicted it is largely by chance – and the technique continues to be used. Journalists, whose job is to be the last defence of justice, sceptically reporting on these cases, have contributed to the moral panic by uncritically accepting the allegations at face value and imposing huge pressure on police forces and government to investigate.
In 2002, horrified by the growing injustice, Richard Webster submitted a memorandum to the House of Commons Home Affairs Committee,
Because these decisions have permitted, and indeed encouraged, the admission of evidence which is both highly unreliable and massively prejudicial, innocent defendants have again and again found themselves facing large numbers of allegations, all of which are false. Again and again, as could readily have been predicted, juries have convicted on the basis of such evidence.
The result… has been a systematic and continuing perversion of justice on a scale which would once have been unimaginable. Unlike previous systematic injustices in the twentieth-century, the original authors of these injustices are the courts themselves.
The report which followed recommended the re-adoption of the 1975 safeguard that similar facts had to be ‘strikingly’ similar (House of Commons Home Affairs Committee, 2002). The government rejected the report, however, believing that only abusers could want to turn the clock back and arguing for further relaxation of the law; Tony Blair demonstrated his contempt for the falsely accused and the wrongly convicted,
The biggest miscarriage of justice in today’s system [is] when the guilty walk away unpunished (Blair T. , 2002).
Helena Kennedy QC observed that in a single sentence he had ‘sought to overturn centuries of legal principle, a complete reversal of the approach to justice that every mature democracy in the world respects, whereby the conviction of an innocent man is deemed the greatest miscarriage of justice’ (Kennedy, 2004). This, of course, was the point: to change the law so that a mere allegation would result in conviction without the tiresome necessity of proof – who could possibly object if it protected a child from abuse?
The police fishing expeditions continued. In February 2008 the press reported that with the help of ground-penetrating radar and tracker dogs the body of a child had been uncovered at the former Haut de la Garenne home on Jersey. The investigation had been preceded by a trawl of 140 former residents and identified 40 suspects. Gleefully the press reported abuse, rape, torture chambers and a sinister blood-stained bath in a cellar; the discovery of up to 6 more bodies was anticipated; politicians and celebrities, including Jimmy Savile, were said to have been regular visitors. There were significant parallels to the satanic ritual abuse delusion. The ‘body’ which inspired an extraordinary number of press articles about a paedophile ring turned out to be no more than a presumed fragment of skull which archaeologists dated to the 1920s or ‘40s; it was sent to an Oxford laboratory for carbon-dating and the police later reported there was insufficient collagen in the sample for analysis; when nothing more was heard, a journalist, David Rose, contacted a scientist, who was forced to admit the fragment was a piece of coconut. Some metal initially identified as a set of shackles turned out to be related to animal husbandry. The police investigation cost £20 million – Eddie, the tracker dog which found the coconut and which had been involved in the search for Madeleine McCann, had cost £93,000 – and turned up nothing: no murders, no blood, no children’s remains disposed of in a furnace, no paedophile ring: merely what Richard Webster called ‘a deep psychological need for a narrative of evil’.
Valerie Sinason was back on the satanic ritual abuse (SRA) bandwagon in 2013 claiming that alleged paedophile Jimmy Savile had also been a Satanist with his own candle-lit temple in the bowels of Stoke Mandeville Hospital (Fielding, 2013). Operations Yewtree and Fernbridge involved the investigation of large numbers of historic allegations – some going back decades – of elderly male ‘celebrities’, and some dead ones. This particular witch-hunt was launched by moral crusader copper-turned-TV investigator Mark Williams-Thomas. The alarming feature, which tied it to other witch hunts, was the pledge made by the police that they would always believe whatever the ‘victims’ told them. With the media, MPs and charities like the NSPCC and NAPAC (National Association for People Abused in Childhood) jumping on the bandwagon the only certainty was that allegations would increase. Many, if not most, of the allegations, often more than 50 years old, were without evidence and could not be proven, despite the belief of the police that the sheer number was evidence enough. Peter Spindler, the Metropolitan Police Service (MPS) Commander who led Operation Yewtree, clearly failed to comprehend the implication of the word ‘alleged’ when he said,
We are dealing with alleged abuse on an unprecedented scale. The profile of this operation has empowered a staggering number of victims to come forward to report the sexual exploitation which occurred during their childhood (Rayner, 2012b).
Spindler had formerly been in charge of an MPS child abuse team and had sent its members on an SRA awareness course run by self-proclaimed survivor, Lee Moore (Black, 2013). The focus of Operation Yewtree was a large number of historic allegations against television personality Jimmy Savile, who had died in 2011. This meant the allegations would never be tested in court, allowing the investigators to give them greater credence than they would otherwise have merited. Complainants were infantilised by introducing the principles of child welfare and ‘therapeutic jurisprudence’ – which long before ditched the presumption of innocence – into criminal proceedings. The final joint report by the MPS and NSPCC, Giving Victims a Voice, relied heavily on the sheer number of alleged victims – 589 – rather than on solid evidence, and treated every complainant as a victim, every allegation as evidence and every accusation as a crime (my emphasis),
taken together their accounts paint a compelling picture of widespread sexual abuse by a predatory sex offender. We are therefore referring to them as “victims” rather than “complainants” and are not presenting the evidence they have provided as unproven allegations (Gray & Watt, 2013).
Unproven allegations, however, is what the evidence was and will always be. Former editor of the Telegraph, Charles Moore, wrote, not in defence of Savile (‘I believe that Jimmy Savile did horrible, criminal things to young people’), but in horror at the manner in which normal legal process had become subverted,
[The report] assumes that because allegations were made, the offences were committed. It declares that 214 incidents have now been “formally recorded” as crimes. It treats allegations as facts. By doing so, it undermines justice (Moore, 2013).
One of the comments to the online version, from a police sergeant, casts light on the reasoning behind the report,
Police are directed to record any allegation of crime as such unless there is credible evidence to the contrary.
The Yewtree allegations are on the whole very historic. This means lost witnesses, no forensics and the prime suspect dead, so how could officers in receipt of Yewtree allegations find any basis upon which to dispute them?
Of course they couldn’t. The police’s responsibility to record allegations remained and remains unchanged even in these wholly exceptional circumstances. I can imagine the reaction if these sensible rules were changed for this enquiry. Furthermore, such a policy might also impact upon non Yewtree allegations too.
Mr Moore is right in that this means a non-critical approach in this report has resulted, but what choice did its authors have?
I don’t know about you, but I find that explanation truly chilling: the presumption of innocence is stood on its head; the onus on the complainant to provide sufficient evidence to prove the accused guilty is inverted. We want to believe Savile guilty; we want our villains to be recognisably villainous; we want the creepy, grotesque Savile to be a paedophile; we are relieved that his death means he can never prove his innocence, because the paucity of the evidence against him terrifies us that it might not be enough. How can we protect our children from the abusers in our midst if they do not stand out as starkly as Savile did?
Operation Yewtree also involved the arrests of a further 18 men, but to date has resulted in the successful prosecution of only two. The publicist Max Clifford was found guilty on 8 of 11 charges and sentenced to 8 years’ imprisonment. The prosecution bragged that it gave ‘confidence to other victims’ that a conviction could be secured after so long and with no corroborative evidence (Hume, 2014). Lacking corroboration, prosecutors relied on the quantity of allegations to establish a pattern of behaviour. The jury was never asked to find on the worst allegation, an assault on a 12-year-old; they accepted only one allegation involving a 15-year-old, and his other ‘victims’ were all adults, but that was enough to see him branded a predatory child sex offender by the tabloids.
84-year-old Rolf Harris was found guilty on all 12 charges against him. Again, no corroborative evidence was offered to support the allegations, and it is questionable whether the evidence against him was established to the balance of probability standard, let alone beyond reasonable doubt. Felicity Gerry QC examined the 12 counts and her assessment made disturbing reading.
Count one involved an allegation by a woman who claimed Harris had touched her inappropriately at a community centre in Leigh Park, Hampshire in 1969 when she was seven or eight. An extensive trawl of local papers and council records several years either side of the date, and letter drops appealing for witnesses, provided no evidence at all that Harris had ever been there.
Count two was that Harris had touched a woman’s bottom at a charity event in Cambridge in 1975 when she was 13 or 14. Harris denied ever visiting Cambridge but evidence was found showing he had been at an event there in 1978 (when the woman would have been 16 or 17) and at a different venue from that identified. This apparent proof that he had lied (or merely forgotten) marked the turning point of his trial from which he would never recover.
Counts three to nine concerned a relationship Harris had formed with a friend of his daughter. Six of the charges related to alleged abuse when she was between 13 and 16 and the seventh to when she was 19. Harris admitted the relationship, but insisted it had been consensual and had started when the woman was 18. He was so appalled when she first alleged that the relationship had been forced on her that he had written to the woman’s father, ‘I fondly imagined that everything that had taken place had progressed from a feeling of love and friendship – there was no rape, no physical forcing, brutality or beating that took place’. The woman had then allowed the relationship to continue until she was 32, when Harris ended it. Her response was to blackmail him for £25,000, which he refused.
Finally, counts ten to twelve related to uncorroborated allegations by Tonya Lee that Harris had assaulted her when she was 15 during a theatre trip. She claimed she was so traumatised she had lost 6kg in weight during the tour, but the defence showed the time scale for this weight loss would only have been 6 days. Lee, who was heavily in debt, had sold her story to the press for £33,000.
It is improbable that any of these allegations, individually, would have stood up, but collectively they carried more weight, as each allegation supported its fellows and established a pattern of behaviour, which was why the police in these cases mounted trawling operations to gather as many as they could, certain that enough allegations would be upheld to achieve convictions. Had Harris been tried in Australia where evidence of this kind is referred to as ‘evidence of tendency and coincidence’ it is likely that there would have been 4 separate trials; the reason such practices are forbidden in some jurisdictions – and used to be in the UK – is that they gravely erode the presumption of innocence.
Yewtree was severely criticised, not least for allowing ideologically-driven pressure groups like the NSPCC (which wants the monopoly on what constitutes child abuse) and NAPAC to influence the progress of a police investigation; it was a ‘runaway train’ and the police operated an ‘arrest first, gather evidence later’ policy (Martin A. , 2013). Yewtree undermined the rule of law and turned policing into entertainment; it was a ‘prurient charade’ (Hewson, 2013a): a crude cultural ‘carnival’ (Betts, 2012) in which the icons of our childhoods became the scapegoats of today; it put the past on trial, judging the hedonism and sexual license of the 1960s and ‘70s by the priggish moral standards of 2013. Sociologist Frank Furedi observed that Yewtree was never about investigating or fighting crime: it was ‘more like a propaganda campaign or a moral crusade’. An unnamed barrister was quoted saying,
This country is now completely fucked-up over anything to do with accusations of abuse; it’s produced a licence for the individual to get compensation and for charitable organisations to bleed people dry, all in the name of protecting children.
Everyone is afraid to criticise today’s abuse gravy train for what it is and the built-in bias of the police and CPS has provided both the perfect blunt weapon for anyone looking to take revenge against someone they don’t like and a simple way for opportunistic individuals to make some money (Peytors, 2013).
Operation Fernbridge was launched in February 2013 to investigate claims that during the 1970s and ‘80s a paedophile ring had operated a brothel out of the Elm Guest House in South West London, supplying boys from Grafton Close Children’s Home in Richmond to politicians and other prominent men. Regulars were rumoured to have included Cyril Smith, Anthony Blunt and several Labour and Conservative politicians. Again the investigation was of historic allegations and again many of the accused were long dead; again the Independent on Sunday was first to report the allegations. Three men were arrested.
In 2014 an ‘explosive’ dossier of paedophile allegations compiled by the late MP Geoffrey Dickens and handed to the Home Secretary, Leon Brittan, in 1984 was reported to have disappeared. A copy had apparently been given to the Director of Public Prosecutions. Dickens had been one of two MPs engaged in anti-occult activity, convinced that Satanists were sacrificing children, and had helped drive the satanic panic. Together with his colleague, David Wilshire MP, Dickens had wanted occult literature banned, and proposed to introduce a Private Member’s Bill making the practise of witchcraft illegal,
If we are to protect children from their sordid, sexual and diabolical grasp, we must bring in new laws to wipe witches off the face of the earth (Glasgow Herald, 1988).
Babies and young children, he said, were being sacrificed to the Devil in witchcraft rituals all over Britain, ‘Six hundred children go missing every year. At least 50 of these children are simply never found again…. With witchcraft sacrifice nothing is ever found’ (Canberra Times, 1988). Subsequently it was reported that 114 documents had gone missing. Under relentless pressure the Home Secretary, Theresa May, announced a review into the handling of historic child abuse allegations and a public inquiry into the duty of care taken in the protection of children from paedophiles. Initially the latter was to have been chaired by Elizabeth Butler-Sloss, but she stood down when a potential conflict of interest was exposed: her brother, Michael Havers, had been Attorney General during the 1980s. David Cameron swiftly conducted a radical reshuffle of his Cabinet, interpreted by some as an attempt to rid himself of any ministers who might be implicated in the inquiry.
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