The judge who was blind to injustice

Thirty years ago, I prosecuted a case of child sexual abuse. The result was a horror story which would have gone very differently today

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ILLUSTRATION BY ELLIE FOREMAN-PECK

How to understand how rapidly and even violently our most treasured ideas change? What was once socially acceptable can become reviled. The mentality that tolerated certain behaviour becomes as impossible to understand as the once-tolerated ownership of human beings. This is a tale about society’s views of sexual abuse of children just a long generation ago. I have told it to several women recently and each has urged me to put this horror story on record.

It was 1984. The claimants were two cousins who had been very close when growing up in England. When the elder cousin emigrated to Australia their relationship continued to be conducted by blue airmail letters. Their friendship went back to when they were between eight and 14 years old. They were, at the time of my involvement as a barrister, in their early thirties. My instructions from the Crown Prosecution Service (CPS) were that in their late twenties their correspondence began to refer to the behaviour of a certain uncle. Over time and many letters it was revealed that each woman when aged between about nine and 14 had experienced regular and frequent sexual abuse, sometimes involving penetration, from the same uncle.

It may be that I was the first barrister to advise on this type of case as the CPS were mostly concerned about the passage of time and the issue was new to them. The events described went back between 20 and 25 years. The accounts of incidents were naturally imprecise as to dates, circumstances and exactly what occurred. But the pattern of events and the repetition in similar terms by each woman was compelling.

I advised in writing that the evidence was cogent and that it was in the public interest to pursue a prosecution. These were very serious allegations that had caused immense harm to each woman and there was plainly a proper evidential basis to proceed. I thought there was at least a 50 per cent chance of a successful prosecution.

I thought nothing further about my advice until about a fortnight later when my clerk put the assistant director of the CPS on the line. He invited me to his office to discuss the case. I do not recall if I suspected any interference with my independence as counsel then but he (it was a he) gave no clue as to the substance of the prospective meeting.

The meeting lasted less than 15 minutes. It began with the usual formula used to barristers by those who want to influence their decisions but know they have no right to do so: “Of course it is entirely a matter for you, Mr Willer . . .” What followed was a rhetorical device to this effect: “But do you really think it is right to pursue such an old case, based on memories going quite so far back?” I was informed that the judges on circuit were aware of my advice and were unhappy with it. Did I not realise that people’s memories were likely to be faulty over such a long period of time? Would I reconsider my advice? I simply stated that I had considered all the elements of the case very carefully and saw no reason to change my mind. And that seemed to be that.

Some weeks later I was summoned to a meeting on circuit with the senior judge. It began in exactly the same way: “Of course it is entirely a matter for you, Willer, but . . .” I was told the judges were unhappy with my advice and did not think it right that such old allegations should be resurrected when it would be so difficult for the defendant to rebut them. This interview lasted rather longer and the judge made the strength of his disfavour very clear. My response was the same, and the trial indeed took place.

The trial judge was — perhaps it was a coincidence — one not well-known for the breadth of his mind or sympathies. Even before we began he called both counsel into his chamber and demanded to know if I was “really going to go ahead with this case”. I said I was, and with his views stamped on his red forehead, we were dismissed. The first matter was an application by my opponent to have the case dismissed as “an abuse of process”, a longstanding ground for dismissing an indictment.

The argument took all day and many authorities. It was not an unarguable application in those days, over a case 20 years old, but it was weak. The judge held it was not an abuse of process. If you think that indicates his fairness, you would be wrong. He knew that if he got that decision wrong, I could appeal, and judges do not like appeals. He then called us into his chamber again, and again tried to lean on me to abandon the prosecution. Memories fade and it would be hard on the witnesses, he said. Again I said no, I would proceed.

I called my witnesses. They were not perfect. Witnesses rarely are, but as witnesses giving evidence about such painful events so long in the past, they were as good as could reasonably be expected. They were cross-examined by the defence and naturally were vague on some dates and details, but they held their own. There was another attempt to press me to give in at the end of the prosecution case, and once again I resisted.

Then the judge did what, in retrospect, I suspect was the plan from the start. My opponent stood up and submitted that there was no case to answer: that is, that the evidence was so weak it would be unsafe to put it before a jury. It was, on the merits, a hopeless submission and I pointed out quite confidently that the evidence had withstood cross-examination and the issue of how to weigh that evidence was plainly a matter for the jury. The allegations had not been weakened. The jury had the issues of memory and the girls’ ages at the time of the events clearly before them, and this submission should be rejected.

I was shocked when the judge immediately said: “I find there is no case to answer. Case dismissed on all counts. The defendant is discharged.” I should not have been shocked. It took just a few minutes before I saw the truth. The judge (or should I say judges) thought that every effort should be made to get me to drop the case, but if that failed he would find, as a last resort, that there was no case to answer. This strategy worked because there was no appeal against a judge’s finding of “no case to answer”. That is to say, I had no further practical remedy. I considered judicial review but the cost and obstacles, plus the known negative views of the CPS, ruled that out. 

Both women burst into tears and I was unable to explain what had happened to their complaints in a way which reflected well on our system of justice. At the time I thought of making a formal complaint but concluded that the judge could very easily defend his stance and actions. It was, after all, a matter for his judgment of the witnesses, and any unhappy counsel could make the same sort of allegation. The traditional “thin end of the wedge” argument was likely to have prevailed.

I buried the memory. Later in the 1980s we had the cases of child sex abuse in Cleveland, allegations of ritual sex abuse in various parts of the country, and the hysterical notion that everyone reveals infant abuse under hypnosis. Paedophilia became the most reviled crime in the calendar and sex perverts our favourite demons. Now a high percentage of crime novels, plays and TV series have child sex abuse at their heart. We have a national sex offender register and an array of rules and practices to keep this horror at bay. But then?

What was in the mind of the trial judge and the other judges who thought it wrong to pursue this type of case? Was it a sense that in matters of sex we are all susceptible to weakness and one must be careful to avoid being too judgmental about such natural human excesses and transgressions? I do not know. Private sexual behaviour was below the purview of the culture then. Now it is at its centre.

Many years later I mentioned this experience to a senior High Court judge. His reaction was that the attempt to interfere with my independence as counsel was indefensible and should have been addressed by the Lord Chancellor’s Department.

Women of my age who have heard this sad tale usually respond with accounts of how senior men in their colleges, chambers, offices and businesses abused and pestered them when they were young and vulnerable. Were all these men just socially and sexually inadequate? Or is it like being a slave-owner or a racist: those with a weak moral sense do not see the offence until the culture has rejected the behaviour that has allowed it?