Should the standard of proof for child sexual abuse be lowered so that more of those accused can be tried and convicted in the criminal courts? This seemed to be the argument being made by Anne Longfield, children’s commissioner for England, on the Today programme this morning. (interview starts at 1.12.20 into the programme)
Longfield was responding to the family court’s fact-finding as to whether Poppi Worthington’s father had sexually abused her. On the balance of probabilities, the court found that he had. He has never been charged with or convicted of any criminal offence. The gist of Longfield’s argument seemed to be that because the vast majority of child sexual abuse cases never reach court because evidence doesn’t meet the required criminal standard of proof, society needs to rethink what we are willing to accept as sufficient evidence in a criminal trial for this particular charge.
Challenged by presenter Sarah Montague about whether she is recommending that [we drop*] a fundamental tenet of our justice system – that nobody is convicted of a crime unless proved beyond reasonable doubt to have committed it – Longfield seems confused about what she’s asking for. But if you analyse the implications, I think it’s pretty clear.
“I don’t think it’s as definite as saying move from one [standard of proof] to the other… ” she says. “We’ve got two stark examples here of different levels of proof, and the one we’ve got at the moment [in criminal trials] clearly isn’t working for those children who need justice from the abuse they’ve experienced… we need to better decide what does constitute good evidence.”
Sarah Montague points out that there are other crimes in which very few cases that are tried result in conviction: does Longfield want to apply this lower standard of proof to those other tricky-to-charge and hard-to-convict crimes too?
According to the children’s commissioner, however, CSA is “a very particular crime”. This seems to imply that the dynamics of familial sexual abuse and the difficulties in evidencing it mean that different – lesser? currently inadmissible? – forms of evidence should be accepted in criminal courts. It seems to me that she’s saying that we should as a society countenance and discuss the possibility that people could be convicted of a particularly vile crime on a less rigorous standard of proof than if you were charged with, say, fraud.
If Longfield really believes that evidence that is currently not viewed as strong enough for a jury to be sure should be given more weight, then she needs to come out and say that it is therefore acceptable that people will be convicted of criminal acts without us being able to be sure they’ve done something terrible – and some will very likely be convicted who are innocent, with all the horrendous consequences for themselves and their families that entails.
I mean, I struggle badly enough with the 51% balance of probabilities business when it comes to family courts anyway; clearly that’s to do with keeping children safe, but it has nevertheless created some appallingly destructive results for parents and children, as various published judgements are now demonstrating. So what Longfield is suggesting – without coming out and fully acknowledging and owning the very serious consequences for families, including of course children, when a conviction is wrong – properly shocks me.
[Ed’s Note : Last week The Today Programme also ran some pieces about the Poppi Worthington case, which appears to be what has prompted the discussion about the standard of proof in family cases and generally regarding sexual abuse. There is a piece at 0810 on 20 Jan, where Dr Hannah Quirke (Senior lecturer in Criminal Law and Justice at the University of Manchester) and Sir Mark Potter (former judge of the Court of Appeal and President of the Family Division) discuss Poppi’s case and some of the legal issues surrounding the proving of abuse of this sort – see here. We’ve written about the transparency issues arising from Poppi’s case here and given a brief timeline, but will try and write about that discussion when we are able. Lucy Reed]
* correction 16.49 25/01/16