|ATTORNEY GENERAL WILLIAM BAILHACHE|
With the last 5 postings on Senator Stuart Syvrets blog.
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