Historic Sex Offences- Balancing the Law Between Victim and Accused?

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Another day, and yet more news headlines about arrests over historic sex offences. Today, two men have been arrested by South Yorkshire Police as part of an investigation into allegations of child sexual exploitation in Rotherham. The allegations date to a period between 1990 and 2001.

A large number of these cases have come to light over the last couple of years, often involving high profile individuals, including Nigel Evans, Dave Lee Travis, Bill Roach, Max Clifford and many others.  This article aims to consider the law surrounding the area and whether or not it can be considered adequate.

Unlike other areas of law, which have limitation periods, there is no time limit to when sexual offences may be prosecuted in the UK. Delay in making a formal complaint of sexual abuse, even decades after the alleged incident, in no way dilutes how the police and Crown Prosecution Service (CPS) will investigate and enforce the law. Prima facie, it is clearly right that any crime should be prosecuted no matter when it took place. However, a look beneath the surface can reveal problems with such an approach.

It can be noted that the limitation period in other countries for this type of offence vary and they are often on a ‘sliding scale’ to take account of the age of the alleged victim. The average limitation period across the EU is about 12 years from the date of the alleged offence with a maximum of 20 years if the alleged victim was under age at the time or if violence was supposedly involved.

Can the fact that Britain has no limitation period be argued as unjust?

It is now widely accepted that delay in reporting is not indicative of a false allegation, therefore cases arising out of allegations of distant events such as claims of sexual abuse from a long time ago can be challenging for the accused. In such cases, due to the time elapsed since the events were alleged to have taken place, there is very rarely DNA, photographic, or indisputable forensic evidence; there is very often nothing, other than the word of the alleged victim, on which to base a judgement of innocence or guilt.

Whilst a complainant may appear to be sincere, truthful, and honest in giving their evidence, this does not necessarily make their evidence reliable. Memories are far from perfect. Even a witness that appears confident and convincing may not be accurate or reliable in the evidence they give. It is perfectly possible for an honest witness to convince their self of the correctness of their account though, in fact, it may be inaccurate.

Tuckers Solicitors comment that ‘in the criminal justice system in the UK, historic sexual abuse cases can be the most difficult. For both the accused and the complainant, as well as their families, the experience is distressing and can have life-changing consequences. Historic sexual abuse cases are also challenging for the courts and juries tasked with analysing and assessing the evidence, which is usually scant and comes down to the memories of the complainant and the accused’.

It is for precisely this reason that many other jurisdictions have a statute of limitation for such offences. In fact, the UK are the only EU member not to have one. Looking further afield to the US, where such crimes are prosecuted by each state, the limit varies. In Arkansas and California, for example, charges have to be brought within three years; in New York and New Jersey there is no statute of limitations for sexual assault, but for sexual abuse the limit is five years; in Ohio the limit is 12 years. As such there is clearly an argument for having a limitation period in place.

However, on the other hand, it can be argued that it is always important to prosecute such cases. A report commissioned by the NSPCC in September 2011 found that as many as 1 in 6 children experienced abuse. Richard Davis and Oliver Rudd from 12KBW argue that ‘A common feature of abuse if that the victim experiences ‘dissociative amnesia’ where they are aware of both the trauma and of its consequences but the trauma was so awful that memories or reminders of it would be too psychologically damaging and thus the victim dissociates themselves from the memory triggers. For this reason much sexual abuse is never brought to light at all; even when it is it is often many years after the events took place.’

When asked whether the prosecution of historic sexual offences should take place, the director of public prosecutions, Alison Saunders, said ‘of course. Parliament agrees, as it has set no time limit on sexual offence cases, as it has for other offences. The public would be horrified if we did not prosecute because a complaint came many years after the event. It used to be that if a rape victim wore a short skirt her credibility was undermined. Thankfully we have moved on. Now we must be careful not to establish new myths that victims come forward only for financial or other motives.’

Ultimately, it is a balancing act. The rights of an alleged victim against the rights of an alleged offender. Whilst it can be difficult to ensure that a defendant receives a fair trial if the allegations concern conduct 10 or 20 years ago, the courts are tasked to ensure that a fair trial prevails. The judge is tasked to ensure that the jury are properly directed on the law and the evidence and to remind them of the difficulties of historic cases – particularly when it comes to ‘his word against hers’ (as so often is the case).

Nick Ferrari, presenter on LBC radio, said, ‘I can’t remember what I was doing last week. How is a defendant supposed to remember an incident 30 or 40 years ago?’ Whilst many sympathise with this view, the question must be asked whether the passage of time negates the need to detect, investigate and prosecute serious crime.

Moreover, the Metropolitan Police recently stated that they would continue to look for the other men involved in Stephen Lawrence’s murder, 20 years after the event. No one would suggest that that course of action is wrong, so why should police and the CPS not investigate and prosecute allegations of serious sexual abuse?

This may lead to the conclusion that the law is adequate and that historic sex offences should always be prosecuted; however, if this is so, why do so many other jurisdictions justify having a limitation for such offences? Are the courts able to guarantee a fair trial in such cases? Can a fair trial ever be guaranteed?

The next article will focus on miscarriages of justice and consider whether the new 2014 test introduced to limit compensation is fit for purpose.

20 November 2014

Dale Timson

LLB (Hons) Student & Aspiring Barrister

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