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28 January 2002

The new injustices

Richard Webster reports that, as Stephen Downing is set free, hundreds more innocent people - this t

By Richard Webster

Earlier this month, the pavements outside the Royal Courts of Justice in London were thronged with newspaper photographers and television crews as one of the longest miscarriages of justice in British legal history was brought to an end by the Court of Appeal. Stephen Downing had served 27 years for a murder he did not commit. His case was a product of a systemic form of injustice, in which the failure to protect suspects against oppressive police questioning led repeatedly to trials where innocent men were convicted on the basis of false confessions.

The problem came to wide public attention in 1972, when firemen went to a burning house in Catford, south London, where they discovered the body of a male transvestite, Maxwell Confait. Three youths were quickly arrested. One was 14; one, though 18, had a mental age of eight. The third had a low IQ. They confessed under police questioning and were convicted of arson, manslaughter and murder.

It later became apparent that their confessions were untrue and that they had been extracted by improper police pressure. As a result, the Police and Criminal Evidence Act 1984 gave new rights to suspects and made the tape-recording of police interviews compulsory. Furthermore, the Crown Prosecution Service was established in 1986, partly to ensure that prosecution evidence was properly scrutinised, and that weak cases would not even reach the courts.

The Downing case will not be the last of its kind, but it may well be that we are coming to the end of one era of injustice and entering another. By a curious coincidence, the Commons home affairs select committee chose the day after Downing’s successful appeal, 16 January, to announce an inquiry into a new form of systemic injustice. This, according to some observers, has already led to more than a hundred miscarriages of justice, and will, if unchecked, lead to many more.

At the heart of the inquiry are thousands of allegations of sexual abuse in children’s homes, collected by what some claim is the most dangerous form of police investigation ever devised – the trawling operation. In such operations, which have already been the subject of critical articles in the NS, police deliberately set out to collect allegations by contacting adults who were in care between ten and 30 years ago.

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The select committee, chaired by Chris Mullin, will ask whether police trawling methods involve a disproportionate use of resources that succeed only in producing unreliable allegations; whether there should be a time limit on the prosecution of cases of child abuse; and whether the prospect of compensation “encourages people to come forward with fabricated allegations”. It will also inquire whether the Crown Prosecution Service “is drawing a sensible line about which cases should be prosecuted” – thus questioning whether one of the major reforms to grow out of the Confait case has supplied the safeguards that were so clearly needed.

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Finally, and perhaps most radically of all, it will address possible deficiencies in the law itself, especially the erosion of “similar fact” law. This used to make it difficult for the Crown, when prosecuting one offence, to introduce evidence that defendants had committed other, similar offences. Its erosion has allowed the courts to accept the principle of “corroboration by volume” and enables the police to send innocent men to prison simply by collecting a large number of allegations, all of which might be false.

Behind the inquiry lies the astonishing spread of trawling operations over the past decade – to the extent that, at a cost of hundreds of millions of pounds, they cover practically the entire country.

Operation Flight was launched by the Gwent Police in 1998 as a trawl of the former residents of a single home, Ty Mawr. Police plan to interview as many of the 7,000 former residents of the home as they can trace. So far, they have interviewed more than 3,000 and have collected allegations of physical or sexual abuse against more than 100 former members of staff. Yet, in 1991-92, Ty Mawr was the subject of an inquiry conducted by Lord Williams of Mostyn, later attorney general. He made criticisms, but found no evidence of physical or sexual abuse that would lead to prosecutions.

In Operation Goldfinch, the neighbouring South Wales force has investigated more than 80 homes and identified about 600 suspects. Over a dozen have already been convicted, and received a total of more than 100 years in prison.

One of them was a care worker called Tony Burke, who last December – the same month that the Lord Chief Justice, Lord Woolf, publicly acknowledged that trawling operations and the lure of compensation may have led to “dozens” of miscarriages of justice – was sentenced to eight and a half years’ imprisonment. Facing allegations about events that supposedly took place 30 years ago, Burke, the father of three young children, was unable to defend himself because crucial documents had been destroyed and key witnesses were dead. The judge denied an application to have the trial halted as an abuse of process, because of the delay. Yet the same judge in effect dismissed the evidence of Burke’s chief character witness, apparently on the grounds that he did not know him in 1971. That witness was none other than John Jevons, formerly the director of social services for Clwyd and, latterly, for Cardiff, who had called in the police in North Wales in 1991, and then in South Wales, to investigate alleged paedophile rings.

Meanwhile, on Merseyside, Operation Care, whose officers almost netted the soccer manager David Jones (acquitted in December 2000 after his trial collapsed, amid mounting evidence of false allegations), has investigated more than 80 homes since 1996, securing 30-odd convictions for physical or sexual assault. Some of the early convictions were clearly sound, but the number of false accusations appears to have risen alarmingly. St George’s, where Jones worked, has become a particular target, and the police have trawled allegations against no fewer than 90 of his former colleagues. Although there is no reliable evidence that any sexual abuse ever took place there, two of Jones’s former colleagues have already been convicted for such offences. They continue to protest their innocence from their prison cells.

These are just three of around 80 trawling investigations in progress in England and Wales alone. Care workers and their supporters have formed 20-odd groups to fight for justice. In the village of Dinas Powys, near Cardiff, for example, 300 people, including lecturers, businessmen, a hospital consultant and all four local GPs, have banded together to oppose trawling and to fight for justice. The group was formed to campaign for Derek Brushett, a former Welsh Office social services inspector. In 1999, Brushett was sentenced to 14 years in prison after police had trawled 44 allegations, made against him by 26 complainants. In a silent demonstration, his supporters walked 14 times around the village green, once for every year of his sentence. Gail Saunders, leader of the group, says: “We’ve been horrified at how ignorant the public is about how these men are being convicted.”

On Merseyside, Fact (Falsely Accused Carers and Teachers) has grown into a national organisation. The campaign has its roots in Formby, the prosperous commuter town in northern England where David Jones once worked and where, according to one resident quoted in the Formby Times, “anyone who has worked in care is waiting for that knock on the door and living in fear”.

The local MP, Claire Curtis-Thomas, along with her predecessor, Baroness (Shirley) Williams, has set up an all-party parliamentary group with more than 50 members to scrutinise sexual abuse investigations and to question the validity of the process whereby “individuals are convicted on verbal testimony alone, without any corroborating evidence”. Curtis-Thomas fears that, whether deliberately or not, “the police will plant suggestions, producing narratives that fit their case, rather than the truth. What happens is a kind of indirect collusion, which develops through witnesses’s unrecorded contact with members of the same police team. Often they’re very vulnerable, because they’re interviewed in prison. Some of them are being exploited in exactly the way suspects were 20 years ago, before suspect interrogations were taped.”

It is an apt comparison with the injustices that arose from oppressive questioning of suspects – and mandatory tape-recording should certainly be extended to include witness interviews. But the real causes of the new crisis lie in the availability of compensation for complainants, in the failure of the CPS to scrutinise evidence properly, and in the state of the law itself. Authorities on the law such as Professor Colin Tapper warn that the erosion of the similar fact principle allows prosecutors to place before juries highly prejudicial evidence of the most dangerous and unreliable kind.

Even if the law is changed, the campaigning groups still face a challenge. The causes of the injustice that led to Downing’s conviction were at least partly cured two decades ago: yet Downing remained in prison, forgotten and all but abandoned. The task of campaigners is now not simply to prevent trawling leading to any further miscarriages of justice. It is to ensure that care workers and teachers who have already been wrongly convicted are released sooner rather than later, and that the hundred or so innocent victims of police trawling who are still in prison do not become the Stephen Downings of tomorrow.

Richard Webster is the author of The Great Children’s Home Panic (Orwell Press, £4.95)