In March 1970, some 16 years before the Crown Prosecution Service was formed and when Sir Norman Skelhorn was the Director of Public Prosecutions (DPP), a file of evidence was submitted to the then DPP’s Office.
The file, from Lancashire Constabulary, contained allegations made by eight men that they had been subjected to indecent assaults by Cyril Smith as teenagers. The allegations were very similar in nature, and were allegedly conducted on the pretexts of either a medical examination or punishment for misbehaviour.
All the boys were either living at Cambridge House Children’s Home in Rochdale (six of them), or were dependent on Cyril Smith for either employment, financial support or some sort of guardianship. It is noted that 80 pages of evidence was supplied to the then DPP’s office with a covering note dated 11 March 1970.
The only documentation of the decision making is a one page letter to the Chief Constable of Lancashire Constabulary. It is dated 19 March, 1970, and reads:
"I have considered your file and I observe that eight young men, whose ages range from nineteen to twenty-four years, allege that between 1961 and 1966 Smith subjected them to various forms of indecency and I also observe that Smith denies their allegations. Any charges of indecent assault founded on these allegations, as well as being somewhat stale, would be, in my view, completely without corroboration. Further, the characters of some of these young men would be likely to render their evidence suspect.
“In the circumstances, I do not consider that if proceedings for indecent assault were to be taken against Smith, there would be a reasonable prospect of a conviction. I do not, therefore, advise his prosecution.”
It is important to note that this way of thinking bears little resemblance to how such cases are assessed today or in recent years. Prosecutors and police now recognise that such crimes normally occur in private and that victims are often targeted because the offender doubts they will be believed. Today, a lack of corroborating evidence, the time lapsed between alleged offending and reporting or a complainant’s background would not necessarily act as a bar to prosecution.
Additionally, before 1994, judges were obliged to warn juries to exercise additional caution when considering convicting a person of a sexual offence on the basis of uncorroborated evidence. The practical effect of this in 1970 was that the evidential threshold for charging was higher than today, as prosecutors took into account that juries would be less likely to convict than in other cases.
Decision making by the CPS in 1998
In April 1997, South Wales police began an investigation into sexual and physical abuse within care establishments in Wales, during which helplines were publicised by the media inviting potential victims to come forward. One man who rang the helpline alleged he was abused by Cyril Smith at Cambridge House Children’s Home in Rochdale between 1965 and 1968. This allegation was passed to Greater Manchester Police, who submitted a file of evidence, which also included the 1970 documentation, to the CPS in May 1998.
The request was to review the 1970 decision making and this was provided in a written advice from the CPS lawyer on 17 June 1998.
In light of the greater understanding of sexual abuse, the reviewing lawyer concluded that there was sufficient evidence to charge, but that a prosecution should not proceed because:
• Cyril Smith had been told that he would not be charged for these alleged offences 28 years previously. The law and procedures followed by prosecutors in 1998 made clear that long-standing charging decisions could only be reversed in very limited circumstances, namely new evidence coming to light. This rule applied to all cases and the evidence submitted by police against Smith in 1998 was the same as in 1970.
• If Smith had been charged, a court would have likely stopped the prosecution for the same reason.
Some of the observations made during this decision making are particularly important and show that the attitude of the criminal justice system generally had moved on considerably since 1970.
"I accept that there is no corroboration of the accounts of each of the boys but that is to be expected in the circumstances. Each of the acts complained of took place behind closed doors, in private and at a time where there were no eye witnesses. The absence of corroboration is always a problem in cases such as these but in my view should not necessarily preclude prosecution…
"I accept that [the complainants’] accounts would have been open to challenge on the basis of their character… However… Any such suggestion can be countered by the fact that the prosecution case is not founded upon a single assertion by a single complainant but by eight separate complainants giving virtually the same account…
“I have arrived at the firm view, having regard in particular to the number and nature of the complainants and how they came to be made, that there would be a realistic prospect of conviction in respect of a number of indecent assaults. I accept that when the advice was given in 1970, reservations were expressed as to this prospect because of the lack of corroboration, the lapse of time between the alleged offences and the timing of the complaints and the character of some of the complainants. However, I am conscious, as I have said earlier, that corroboration is very often not available to support misconduct of the type complained of. The lapse of time is no longer as important as it was. A lapse of five or six years would not automatically preclude proceedings. Furthermore, there has been a marked change of attitude in the criminal justice system towards cases of this kind in which those in positions of authority have taken advantage of it to commit offences on a wholesale basis against those who are vulnerable and in their care. I have already mentioned that each of the complainants…would be open to challenge on their accounts but I hold to the view that they are reliable in terms of consistency of account, which cannot be explained by contamination or conspiracy.”
The approach of the criminal justice system to reconsidering past decisions not to prosecute developed over time under the common law - that is decisions made by High Court judges - but this has also changed in the last few years. The courts now recognise that the occasions when the interests of justice outweigh the suspect’s right to certainty should be wider than previously practised. This is reflected in the current Code for Crown Prosecutors, which allows prosecutors to reverse decisions in a broader range of circumstances than before.
Decision making by the CPS in 1999
The man who had rung the helpline was spoken to by Greater Manchester Police in October 1998, and confirmed he was one of the original complainants from 1970. During further police enquiries, two further complainants were identified through a local journalist who made allegations of indecent assault against Cyril Smith.
The reviewing lawyer (the same as provided advice in 1998) provided advice on 21 May 1999. It concluded:
• The conduct alleged by one complainant was not a criminal offence so no action could be taken.
• The other complainant had not reported the abuse to the police earlier, despite being aware of the 1969/70 investigation, but had spoken to the media about it in 1979, while still making no complaint to the police.
Furthermore, this complainant approached Smith after the alleged abuse to seek a favour and it was only when police made contact with this complainant that the allegations came to the attention of the authorities.
Taken together, these factors seriously weakened a case that would have relied entirely upon the complainant’s evidence from some 30 years previously. In these circumstances, it was concluded that there was insufficient evidence to authorise charges.
The reviewing lawyer also concluded:
"I am satisfied that there is no new evidence which would alter my view as to whether proceedings should be instituted in respect of the eight original complainants…
“I have been told there are three further potential witnesses whose identities are known but they have not been interviewed by the police (or [the journa). Whether or not they should be traced and interviewed is entirely an operational matter for the police. I do not think it would be appropriate for me to offer any advice or recommendation upon that aspect of the case. However I am sure that the decision will be made having regard to the observations that I have already made with regard to the prospects of a successful prosecution on the material already made available to me.”
Victims of historic sexual abuse are entitled to justice and prosecutions that would not have been attempted in the past are now brought successfully. As is clear from the 1998 decision making, there have been significant developments in the way the criminal justice system approaches cases such as these, and these developments have continued to this day. Prosecutors, police officers and judges have a much better understanding than ever before of how these offences are committed.
Any victims who are considering coming forward should not be dissuaded by the decisions of the past. The legal barrier to prosecution in 1998 has since been relaxed and the approach demonstrated in 1970 has now long been one rejected by the entire criminal justice system which can be seen through not only a change in attitude, but a change in the law on corroboration in the Criminal Justice and Public Order Act 1994.
The decision made in 1970 would not be made by the CPS today.