In preparation for an up-coming Blog Posting, and for the historical documented record, we offer (below) a statement made in June 2009 by the then Attorney General, and now Bailiff, William Bailhache.
Those who have been following the Jersey Child Abuse cover-up, and related events, will be aware that very few prosecutions were brought against alleged offenders and the then AG dropped around a dozen cases which brought anger, and outrage, from Abuse Survivors/Victims and their supporters who staged a
PROTEST in response. The people of Jersey were offered a couple of
SHOW TRIALS and the Jersey Establishment, and
STATE MEDIA, set about discrediting the Child Abuse Investigation, (Operation Rectangle) suspended the Chief of Police,
(possibly illegally) and went on to close the investigation
DOWN.
Questions have been, and still are being asked, about William Bailhache's decision to drop so many cases which fuelled the fire of suspicion surrounding the politicised, and corrupt, Jersey
"JUSTICE" SYSTEM.
We offer Mr. Bailhache's 2009 statement below because he will have serious questions to answer because of it, not only in our up-coming Blog Posting, but when he undoubtedly is called as a witness before the ongoing Public Child Abuse
INQUIRY.
William Bailhache Press Statement June 3rd 2009.
Attorney-General William Bailhache said this
morning two historic abuse investigations have been dropped because of a lack
of evidence.
The multi-million pound two and a half year
investigation has resulted in three people facing charges. At one time there
were 70 suspects.
In the end, police presented six case files to
Attorney-General William Bailhache. But the police say they have more files to
send him.
As for the victim's statements, but Mr Bailhace
said cases often came down to being the word of one person against another.
A decision not to bring criminal proceedings
doesn't, he says, mean that those who have made complaints are not believed,
nor does it necessarily mean that any account given by a suspect has been
believed.
The statement from the Attorney General is
reproduced in full below:-
The Attorney General last made a statement on 26th
August, 2008 when he announced that of the six files which had then been
received by the prosecution lawyers, charges had been laid in respect of three
of them, one file had been returned to the police for further investigations,
and a decision had been taken in relation to one of the remaining two files
that no charges would be brought. Further police investigations have now been
conducted and a decision has now been made that for legal and evidential
reasons, no charges will be brought in respect of either of the two outstanding
files. A full statement of reasons is set out below.
Cases of this nature are often difficult. There is
rarely any independent evidence, and often the cases come down to being the
word of one person against another. In a criminal trial, it is not a question
of the Magistrate or the jury deciding which version of events they prefer. The
prosecution most prove its case beyond all reasonable doubt, and if there is
any doubt, an accused person is entitled to be found not guilty. Before
bringing a criminal prosecution, there must be sufficient evidence such that
there is a realistic prospect of conviction. A decision not to bring criminal
proceedings does not necessarily mean that those who have made complaints are
not believed, nor does it necessarily mean that any account given by a suspect
has been believed. A decision not to prosecute means only that the Attorney
General, having fully considered all of the available evidence and other
information, has decided that an acquittal is more likely than a conviction.
A decision not to prosecute is capable of being
perceived as denying the complainant the right to be heard. Indeed, this can lead
to a pressure to allow the complainant to have his or her day in Court. However
to succumb to such pressure would mean that the prosecution was not applying
the evidential test which is its function to apply. The Courts are entitled to
know that they are not faced with prosecutions which even the prosecutor thinks
will not succeed. The criminal justice system as a whole requires each part of
that system – police, prosecutors and Courts – to fulfil its functions
professionally and properly. To compromise the test to allow evidentially weak
cases to proceed is not an exercise of the objective approach which is demanded
of prosecutors by the Code on the Decision to Prosecute. It is not fair to
anyone – the complainants, the accused, the witnesses or the public – to do
otherwise than apply the evidential test professionally and objectively.
Case 5
Nine complainants have made complaints against Mr.
A, now a middle aged man who spent approximately 5 to 6 years as a junior
trainee and then employee at Haut de la Garenne in the 1970s and 1980s. The
complaints relate to incidents which are alleged to have taken place between 20
and 30 years ago. Four of them contained allegations of different types of
sexual offending, some of it of the most serious nature; all but two were
alleged to have taken place at Haut de la Garenne.
The police have conducted a very thorough and
detailed investigation tracing and interviewing all known witnesses before
submitting the papers to the independent lawyers instructed by the Attorney
General.
In none of the cases is the complaint corroborated
by any independent evidence, and none of the complaints is sufficiently similar
in nature to suggest that they might supply mutual corroboration.
In two cases, the employment records show that the
complainants were not at Haut de la Garenne at the same time as Mr. A. In two
of the cases, the makers of the statements were not those against whom the
alleged crimes were committed, the alleged victims no longer being alive.
In three of the cases, the complainants are
intrinsically not credible for different reasons, one of them being that the
complainant described assaults taking place in a cellar, in the bath and with
the use of the shackles described in the media reports, the statement being
made for the first time after the media reports had been published. In another
case, the complainant described sustaining 300 to 400 cigarette burn marks and
a branding which required a skin graft, but there is no physical sign of any
injury nor do the records show that Mr. A was at Haut de la Garenne at the same
time. In those circumstances it was inevitable that it be concluded this
complaint was incapable of belief. It is this complainant who makes the most
serious allegations of sexual offending. In another case, the complainant’s
mother, who was allegedly present at the time and gave her permission for the
assaults, says they never took place.
Furthermore, the police investigation shows
relevant defence material including the fact that a significant number of
witnesses speak well of Mr. A. describing his popularity with the children and
his good qualities in dealing with the children generally. He received
consistently good reports from those responsible for monitoring and evaluating
his performance.
The papers have been carefully evaluated by those
lawyers, by a senior lawyer in the Law Officers’ Department and by the Attorney
General personally. None of the lawyers who have looked at this matter
considers that the evidential test is passed.
Case 6
Background
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
Jersey.
