Statement from the Attorney General
Jersey Historical Abuse Investigation
The Attorney General last made a statement on 26th August, 2008 when he announced that of the six files which had then been received by the prosecution lawyers, charges had been laid in respect of three of them, one file had been returned to the police for further investigations, and a decision had been taken in relation to one of the remaining two files that no charges would be brought. Further police investigations have now been conducted and a decision has now been made that for legal and evidential reasons, no charges will be brought in respect of either of the two outstanding files. A full statement of reasons is set out below.
Cases of this nature are often difficult. There is rarely any independent evidence, and often the cases come down to being the word of one person against another. In a criminal trial, it is not a question of the Magistrate or the jury deciding which version of events they prefer. The prosecution most prove its case beyond all reasonable doubt, and if there is any doubt, an accused person is entitled to be found not guilty. Before bringing a criminal prosecution, there must be sufficient evidence such that there is a realistic prospect of conviction. A decision not to bring criminal proceedings d"s not necessarily mean that those who have made complaints are not believed, nor d"s it necessarily mean that any account given by a suspect has been believed. A decision not to prosecute means only that the Attorney General, having fully considered all of the available evidence and other information, has decided that an acquittal is more likely than a conviction.
A decision not to prosecute is capable of being perceived as denying the complainant the right to be heard. Indeed, this can lead to a pressure to allow the complainant to have his or her day in Court. However to succumb to such pressure would mean that the prosecution was not applying the evidential test which is its function to apply. The Courts are entitled to know that they are not faced with prosecutions which even the prosecutor thinks will not succeed. The criminal justice system as a whole requires each part of that system “ police, prosecutors and Courts “ to fulfil its functions professionally and properly. To compromise the test to allow evidentially weak cases to proceed is not an exercise of the objective approach which is demanded of prosecutors by the Code on the Decision to Prosecute. It is not fair to anyone “ the complainants, the accused, the witnesses or the public “ to do otherwise than apply the evidential test professionally and objectively.
Nine complainants have made complaints against Mr. A, now a middle aged man who spent approximately 5 to 6 years as a junior trainee and then employee at Haut de la Garenne in the 1970s and 1980s. The complaints relate to incidents which are alleged to have taken place between 20 and 30 years ago. Four of them contained allegations of different types of sexual offending, some of it of the most serious nature; all but two were alleged to have taken place at Haut de la Garenne.
The police have conducted a very thorough and detailed investigation tracing and interviewing all known witnesses before submitting the papers to the independent lawyers instructed by the Attorney General.
In none of the cases is the complaint corroborated by any independent evidence, and none of the complaints is sufficiently similar in nature to suggest that they might supply mutual corroboration.
In two cases, the employment records show that the complainants were not at Haut de la Garenne at the same time as Mr. A. In two of the cases, the makers of the statements were not those against whom the alleged crimes were committed, the alleged victims no longer being alive.
In three of the cases, the complainants are intrinsically not credible for different reasons, one of them being that the complainant described assaults taking place in a cellar, in the bath and with the use of the shackles described in the media reports, the statement being made for the first time after the media reports had been published. In another case, the complainant described sustaining 300 to 400 cigarette burn marks and a branding which required a skin graft, but there is no physical sign of any injury nor do the records show that Mr. A was at Haut de la Garenne at the same time. In those circumstances it was inevitable that it be concluded this complaint was incapable of belief. It is this complainant who makes the most serious allegations of sexual offending. In another case, the complainant's mother, who was allegedly present at the time and gave her permission for the assaults, says they never took place.
Furthermore, the police investigation shows relevant defence material including the fact that a significant number of witnesses speak well of Mr. A. describing his popularity with the children and his good qualities in dealing with the children generally. He received consistently good reports from those responsible for monitoring and evaluating his performance.
The papers have been carefully evaluated by those lawyers, by a senior lawyer in the Law Officers' Department and by the Attorney General personally. None of the lawyers who have looked at this matter considers that the evidential test is passed.
In about May 1997, police received information that there was suspected historical child abuse committed by a man and a woman between 1980 and 1990 upon various ex-residents of a Children's Home in St. Clement, Jersey. The woman had been employed as a "house mother and although her husband was not employed in any such capacity, it appeared that he played a full part in the running of the Home, which closed in 1990. Following a police investigation in 1997, a number of charges of grave and criminal assault and common assault were brought against both the man and the woman in the Magistrate's Court. Following an initial hearing, the Magistrate dismissed some of the charges on the grounds that there was no sufficient prima facie evidence to commit the accused to the Royal Court, but in respect of other charges, the defendants were committed for trial in the Royal Court.
When the matter was received in the then Attorney General's Chambers, the case file was passed to a private sector Crown Advocate with the request that there should be a full evidential review. The Crown Advocate carried out that review and concluded that there were evidential problems. In the circumstances he recommended that the prosecution should go no further.
On receipt of that review, the then Attorney General convened a case conference which was attended by the private sector Crown Advocate, a departmental lawyer, the police officer in charge of the case, a representative of the Children's Service and the Attorney General himself. The meeting analysed the evidence on each charge having regard to the memoranda prepared by the private sector Crown Advocate. The then Attorney General concluded that there was insufficient evidence to have any realistic prospect of conviction and that in the circumstances it would not be right to proceed. No-one dissented from this view, which indeed was positively endorsed by the other two lawyers present. Although all present were aware of the assertion that one of the couple was suffering from a terminal illness, this possibility was expressly not a factor taken into account in reaching a decision, which was taken entirely on an assessment of the evidential test.
Following that meeting, the Crown formally abandoned the prosecution before the Royal Court in 1998 on the grounds that there was insufficient evidence to support it.
Developments in 2008/9
Between 29th April and 9th July, 2008, the independent prosecution lawyers instructed by the Attorney General were provided by the police with a number of statements in relation to this case. These included both the original material arising out of the 1998 investigation, and an amount of new material. Those lawyers provided advice to the Attorney General on 18th and 22nd July, 2008. At the request of the police in the autumn of last year, the Attorney General made an application for mutual legal assistance from the French Authorities to enable an interview with the couple to take place in France. In February this year, the necessary confirmations from the competent authorities in France were obtained but the attempts to interview the couple proved unsuccessful. The decision has thus been taken based on the evidence available in July last year.
The present case raises the difficult question of what approach ought to be taken when a prospective defendant has been given a clear indication by the prosecuting authorities that s/he will not be prosecuted.
The Attorney General has noted that in a written answer given in the House of Commons on 31st March, 1993, the Attorney General of England and Wales, responding to a question relating to the re-institution of proceedings which had been terminated said this:
"The fundamental consideration remains that individuals should be able to rely on decisions taken by the prosecuting authorities. The policy of the Director of Public Prosecutions is that a decision to terminate proceedings or not to prosecute should not, in the absence of special circumstances, be altered once it has been communicated to the defendant or prospective defendant unless it was taken and expressed to be taken because the evidence was insufficient. In such a case it would be appropriate to reconsider the decision if further significant evidence were to become available at a later date “ especially if the alleged offence is a serious one.
Special circumstances which might justify departure from this policy include:
(i) rare cases where reconsideration of the original decision shows that it was not justified and the maintenance of confidence in the criminal justice system requires that a prosecution be brought notwithstanding the earlier decision; and
(ii) those cases where termination has been effected specifically with a view to the collection and preparation of the necessary evidence which is thought likely to become available in the fairly near future. In such circumstances, the CPS will advise the defendant of the possibility that proceedings will be reinstituted. "
The Attorney General has also noted the Crown Prosecution Service website at paragraph 12, which reads as follows:
"12. Restarting a Prosecution
12.1 People should be able to rely on decisions taken by the Crown Prosecution Service. Normally if the Crown Prosecution Service tells a suspect or defendant that there will not be a prosecution or that the prosecution has been stopped, that is the end of the matter and the case will not start again. But occasionally there are special reasons why the Crown Prosecution Service will restart the prosecution, particularly if the case is serious.
12.2 These reasons included:
(a) rare cases where a new look at the original decision shows that it was clearly wrong and should not be allowed to stand;
(b) cases which are stopped so that more evidence which is likely to become available in the fairly near future can be collected and prepared. In these cases the Crown Prosecutor will tell the defendant that the prosecution may well start again; and
(c) cases which are stopped because of a lack of evidence but where more significant evidence is discovered later.
These appear to be well founded and sound principles upon which in the Attorney's view the prosecution in Jersey should also proceed. The Attorney is of the view that, as in the United Kingdom, the damage which would be done to public confidence if people in Jersey could not rely upon decisions taken by the office of the Attorney General, particularly if those decisions were simply undone as a result of a change in the identity of the holder of the office, would be very significant indeed. For all these reasons, as a matter of principle, the Attorney General has adopted the approach which has been taken in the United Kingdom.
Accordingly, two particular lines of approach have been considered:
1. Given that the case in 1998 was not stopped so that more evidence might be likely to become available in the fairly near future, was this a case where it might be said that the decision taken in 1998 was clearly wrong?
2. Alternatively, could it be said that, although the case did not proceed because there was a lack of evidence in 1998, more significant evidence has been discovered subsequently which makes a difference to that decision?
On the first of those questions, the Attorney General has received written advice from both the private sector Crown Advocate and from leading Treasury counsel practising at the Central Criminal Court in London. A review has also been carried out by a senior lawyer in the Attorney's Department and by the Attorney General himself. Having thoroughly considered this review and these advices the Attorney General has concluded that without any shadow of a doubt the decision in 1998 cannot be said to be one which was not justified, nor was it one which was clearly wrong.
One of the particular features of the advice received from senior Treasury counsel in London was that there was a strong probability that re-opening a prosecution in 2008 on the charges which could have been brought in 1998 would be struck out as an abuse of the process of the Court. Indeed, a defence submission that there was an abuse would only be overcome if there were very compelling and completely new evidence capable of removing the reasons for the 1998 decision, and if there were a good reason for the evidence not having been available before. Leading counsel took the view that the material which has become available since 1998 fell far short of providing any such exceptional justification, and that in the circumstances it would not be proper for the Attorney General to seek to reinstitute the criminal proceedings.
Attention was then given to whether or not there was any other significant new evidence which has been obtained. In particular, consideration was given to allegations of sexual assaults which had not previously been made. The advice received from the private sector Crown Advocate was that the evidential test was not met in relation to any such allegation. On his recommendation, the Attorney suggested that he take leading counsel's advice from London to identify whether that view was shared. That advice was duly taken, and leading counsel has confirmed that, in his view as well, the evidential test is not met. These opinions have been further considered both by the Attorney General and by the senior lawyer in the Law Officers' Department assisting him in these cases. Nothing in that further consideration has led the Attorney General to express any view contrary to the advice which has been received in respect of these sexual allegations.
In the circumstances, the Attorney General considers that, applying the above principles, there is no reason sufficient to re-open the decision taken by his predecessor in 1998.
The Attorney General realises, of course, that the complainants will be very disappointed with this decision, which has, of course, also been discussed with the police.
Nevertheless, hard decision though it may appear to some, the Attorney General is sure that a decision not to prosecute is the right and appropriate decision in these cases taken on the legal principles set out above.
3rd June, 2009. Law Officers' Department
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