Can you change your mind? – part 1

This afternoon, I take my legal tourists up the corridor to another court, namely the Court of Appeal, Criminal Division (CACD). Various experts have complained about the way this court operates.

What are the Court’s powers? It can hear appeals against conviction and against sentence. It can overturn verdicts, where it considers convictions are unsafe. It can also order a retrial, where it considers that to be in the interests of justice. It is possible to appeal where fresh evidence has been obtained that was not available at the trial.

The primary criticism of this Court, which is of longstanding, is of its “traditional intransigence”. Correcting genuine miscarriages of justice is therefore an uphill struggle. Readers may recall that it initially refused to allow the appeals of the Birmingham Six and Guildford Four, whose supporters had to campaign for years for their release.

Glyn Maddocks is the solicitor to Tony Stock, who was jailed for a robbery in 1970, after being wrongly identified as a perpetrator. Stock died in 2012. Maddocks is unsparing in his criticism of the CACD, highlighting:

the Court of Appeal’s lack of willingness to engage with (or even recognise) the problem and its often intransigent, often arrogant and dare I say obdurate view that it knows best and is constrained by its own previous decisions, however wrong they may have been.

……

Victims of injustice expect the criminal justice system to deliver the right result and are shocked when they are convicted of something they have not done. Society seems indifferent to their plight. The vast majority of the population never experience the working of the criminal justice system, whereas there is outrage whenever the NHS gets something wrong. The attitude seems to be that the criminal justice system is only for criminals, who don’t deserve the best because they are already outside the community. There is a blind faith in the criminal justice system and nobody expects innocent people, in this country at least, to be jailed.

…..

the Court of Appeal remains at the centre of the problem of wrongful convictions in this country.

It’s difficult to see why the CACD should be like this. It is staffed by experienced and professional judges, who surely appreciate that the very reason why we have an appellate system is because our judicial system (like any human undertaking) is not free from error. But instead, the Court seems to consider that to allow an appeal is to threaten the integrity of the criminal justice system. That is preposterous.

Cardiff’s Innocence Project, set up in 2006, is the only Innocence Project in the country to succeed in overturning a conviction, which it has done successfully twice.

And predictably, the CACD attracted controversy again last week, when it refused to quash the conviction of a man accused of abusing his granddaughter, even after she retracted her allegations. The case report is anonymised, and the unsuccessful appellant is referred to as SB. The complainant was referred to as M, and her mother as P.

 

R v SB [2019]

M is aged 17. In February 2016, while “a fragile and troubled teenager” who had been self-harming, she told her mother that SB had touched her private parts and offered her money. At some point, M expanded this claim to allege that SB had put his finger in her vagina and that this happened two or three times. By May 2016, she was seeing a counsellor, who went to the police.

It may be pertinent that M’s mother had a poor relationship with SB for some years. According to the report:

P had complained to the police in 2008 and 2010 about sexualised communications sent to her at the behest, as she saw it, of her father-in-law. She also had concerns about how he on occasion had behaved with regard to M as a child.

In her police interview, M alleged that her grandfather had digitally penetrated her vagina on 4 occasions, twice when she was aged 3-4, once when she was 6-7, and once when she was 8-9.

SB was charged and in November 2017, the case was listed for trial the following  year. At that point, M was showing reluctance to go to court and a police officer visited her at school.

At trial in February 2018, M told the court: “I want him to get what he deserves”. SB was convicted on 5 February 2018, and on 16 March 2018, sentenced to twelve years in prison. One of his sons, B, who had attended the trial, is a criminal solicitor.

Events then took a surprising turn. According to M’s mother, 2 or 3 days after SB’s conviction, M told her mother that she had lied. Her mother rang the police to advise that “we wanted to withdraw the case”. A week after that, the mother went to the grandmother’s house and told her what M had said. Her other brother-in-law B was in due course consulted.

B recommended a solicitor to M. On 5 and 13 April 2018, accompanied by another uncle, she attended this solicitor, and gave a 14-paragraph statement withdrawing her evidence at trial. According to the CACD’s judgment:

she wished to “withdraw my allegations as the alleged incidents did not in fact take place”. She says that she had made them up to “seek attention from my family, teachers and classmates”. She says that she was “not informed of the consequences that would follow if the allegations I made were believed until after the proceedings had commenced, by which time I was too scared to say that I had lied. I now fully understand the severity of my allegations and the consequences of my actions….”.

She went on to say that she had not liked the way her grandfather had treated her mother and “this gave me the idea” to make false allegations against him. She also said, however, that she told the counsellor in order to draw more attention to herself. She further claimed that the police “told me that it was very unlikely the case would go to court so I felt at ease in continuing to make the false allegations”.

The last two paragraphs of her statement are as follows:

“13. When I gave evidence at Snaresbrook Crown Court, I did not want to lie anymore and answered most questions with “I don’t know” or “I don’t remember”. I hoped that this would make things right and that my grandfather would be found “not guilty”. I was shocked and horrified to discover that my grandfather was not only convicted but had gone to prison. This was never my intention and was not what was supposed to happen. I was just supposed to get attention and that would be it.

14. I now realise the severity of my actions and sincerely regret them. After my grandfather went to prison, I knew I had to do the right thing and tell the truth. I therefore confided in my uncle, [R]. He has always been the understanding one in the family and I knew he would listen to me. With his help, I have come to see a solicitor and make this statement of my own free will. No one has pressurised me and no one has told me what to do. I am making this statement because it is the right thing to do and I want to tell the truth. I am truly sorry for what I have done.”

On 1 May 2018, SB appealed, citing this new evidence. On 24 May 2018, the police then arrested M for perjury. On 15 March 2019, the CACD heard evidence from M, her mother, her uncle and the police officer in charge, who were all cross-examined.

But the CACD refused to accept M’s retraction! It decided that her mother had invented her account of M confiding in her, after SB’s conviction. The police office denied receiving any call from the mother, seeking to withdraw the case.

As for M, the CACD decided that it preferred M’s first round of evidence at trial, which it held was consistent and credible, and therefore rejected her second version of events. It took into account that M had stuck to her original account under cross-examination at trial.

The Court’s reasoning is open to question, though. It said:

It is difficult to credit that a fifteen year old girl could maintain such an account if it was all a lying account: although we accept of course, as other such cases show, that that can happen. But at all events, if this was a lying account, it needed sophisticated lying.

The Court also described as “absurd” her explanation that she had reported being abused to her counsellor, because she was bored. But that is precisely how an adolescent might act.

 

Lying by children

Teenagers can and do lie. In fact, lying is a common part of human relationships. Lying is considered developmentally normal in children: it is “just one way children learn to navigate the social world”, according to academics.

Small children cannot lie very convincingly, but as children get older, “they’re increasingly able to understand the kinds of lies that will be believable to others. They also become better at maintaining the lie over time.” In particular, children as they get older develop an appreciation of the need to maintain consistency in a lying account over time (known as “semantic leakage control”). And they increasingly understand the need to regulate their non-verbal behaviours when engaging in deception, so as to appear honest.

Reasons for lying can include responding to situations of rule violations so as to avoid incrimination, protect self interest, or to present themselves in a positive light. One study reports that adolescent liars are more likely to be “Machiavellian, socially adroit, and self-conscious”.

So the Court’s hypothesis, that a fifteen year old girl is incapable of maintaining a false account over time, despite questioning first by police and then defence counsel, is simply not plausible.

Furthermore, the present “victim-centric” approach adopted in police interviews of complainants in sex cases, and in criminal cases involving child accusers, may make it more difficult to expose an adolescent liar.

There are indications in the court report of a family dynamic which may have contributed to M’s willingness to accuse her paternal grand-father. It is clear that her own mother had a difficult relationship with SB, and suspected him of ill-intent towards M. It is possible that M decided to accuse him, so as to gain favour with her mother. We know very little about the dynamics of this particular family.

We also do not know what role the counselling that M received may have played in the emergence of her allegations. Was the counsellor one of those people who suspects historic abuse as a cause of current problems, such as self-harming in adolescents? Did the counselling induce false memories of abuse? Or was M simply influenced by our present culture, which is saturated with accounts of child abuse?

Cultural drivers to identify as a victim of abuse are very powerful. They can affect adults as well as adolescents. The American journalist  Meredith Maran, in a powerful memoir called My Lie (2010), explains how in her thirties she felt driven to accuse her father of childhood abuse, after five years of therapy and reading The Courage to Heal. No criminal charges were brought, but she cut herself off from him for eight years  and would not let him see his grandchildren.

And then………… she realised it wasn’t true.

All of these matters would seem to suggest fertile ground for re-examination of SB’s case by another jury. But the CACD decided to dismiss the appeal, instead of finding the conviction unsafe. It also effectively branded M a liar, instead of a public-spirited emerging adult, who had recognised an egregious fault with commendable speed.

Possibly the CACD acted as it did for unspoken, misguided policy reasons. I will say more about that possibility in a subsequent post.

 

Sources

https://www.thejusticegap.com/miscarriage-watchdog-lacks-independence-reinforces-intransigence-appeal-courts/

https://www.opendemocracy.net/en/shine-a-light/what-does-it-take-to-overturn-miscarriage-of-justice-in-uk/#.VE7ZvSrLsY4.twitter

https://www.telegraph.co.uk/news/2018/12/21/innocence-project-victory-students-help-overturn-sex-attack/

https://www.bailii.org/ew/cases/EWCA/Crim/2019/565.html

http://theconversation.com/why-do-kids-lie-and-is-it-normal-98948

http://www.jeffreyarnett.com/articles/ARNETT_the_right_to_do_wrong.pdf

https://www.salon.com/2010/09/20/meredith_maran_my_lie_interview/