Accusation as Proof: Uncorroborated Historic Sexual Abuse Allegations

DOI10.1177/0022018319897174
Published date01 April 2020
AuthorDennis J Baker
Date01 April 2020
Subject MatterArticles
Article
Accusation as Proof:
Uncorroborated Historic
Sexual Abuse Allegations
Dennis J Baker
De Montfort University, UK
Abstract
This article examines the potential miscarriage of justice upheld in the Supreme Court of
Victoria in Pell v The Queen. Firstly, the alibi evidence produced by the defence team was
sufficient to make the probability of Cardinal Pell not having an opportunity to perpetrate the
crimes a real issue. Once an alibi had been made an issue, the Crown had to prove beyond
reasonable doubt that there was no probability above 15 per cent that Cardinal Pell had an
alibi—not rely on the defence submission that there was a 100 per cent probability of no alibi
because of impossibility. The evidence at a minimal demonstrated that the alibi was at least
probable: even a conservative estimate would allow a fact-finder to safely conclude that there
was 35 per cent probability that Cardinal Pell could not have been alone with the complainant.
It might be difficult to argue that it was more probable than not that Cardinal Pell had an alibi,
but the evidence shows that the probability of Cardinal Pell having a valid alibi was too high
(even if short of a 50 per cent probability) for the reasonable doubt standard of proof to be
satisfied. Secondly, there was at a least 35 per cent probability that second sexual attack alleged
by the complainant could not have been perpetrated in the circumstances described by the
complainant. Thirdly, Ferguson, CJ and Maxwell, P did not apply the beyond reasonable doubt
standard to these probabilities. Instead, they erroneously held that since what the complainant
had alleged could possibility have happened as described by the complainant, the Crown had
proved beyond reasonable doubt that these things did happen. This was to misinterpret and
misapply the law concerning the quantum of proof required in criminal cases. The fact that
there was a real possibility that what the complainant alleged could have happened does not
prove that there was an 85 per cent an above probability that it did happen, which is what the
beyond reasonable doubt standard requires. It requires such strong evidence that any objective
fact-finder reviewing the evidence would 85 times out of 100 conclude that they are sure that
the person is guilty.
Keywords
Reasonable doubt, proof, historic sex offences, quantum of proof
Corresponding author:
Dennis J Baker, De Montfort University, Leicester LE1 9BH, UK.
E-mail: dennis.baker@dmu.ac.uk
The Journal of Criminal Law
2020, Vol. 84(2) 105–123
ªThe Author(s) 2019
Article reuse guidelines:
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DOI: 10.1177/0022018319897174
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Introduction
In this article, I want to examine the issue of proof raised by the recent appeal to the Supreme Court of
Victoria in Pell v The Queen.
1
Following decades of child sex abuse scandals and the emerging culture
of ‘accusation is proof’, some campaigners have argued for legal reforms to increase the number of
convictions. The Guardian newspaper has reported that the Children’s Commissioner for England ‘has
suggested lowering the burden of proof in cases of child sex abuse to the civil standard of balance of
probabilities’.
2
A balance of probabilities standard of proof would lead to many wrongful convictions.
Given the current culture of accusation is proof, might the law now be powerless to prevent some
innocent people from being convicted?
If accusation by convincing storytelling is all that is needed as proof in historic sex offences cases,
then criminal justice risks adopting an approach of it is better to convict a few innocent people than let
one guilty person go free. A convincing raconteur might convince even the most seasoned professionals
of his or her lies. Carl Beech superlatively demonstrated the power of convincing storytelling when he
convinced senior police, journalists, MPs, lawyers and others that Sir Edward Heath, Lord Bramall and
Harvey Proctor MP, among others, committed sex offences against him when he was a child. Remark-
ably, the police said his allegations were credible and carried out an investigation over many years
ruining the lives and distinguished careers of some of those who were subject to the false allegations.
Politicians (including the current Deputy Leader of the Labour Party),
3
journalists, police and other MPs
all took his claims as very credible.
4
Hysteria-driven policy cannot make our society safer and fairer, if it results in the wrong people (non-
dangerous innocent people) being convicted. Academics have conducted research that suggests that
large sections of the public embrace a presumption of guilt mentality with alacrity when it comes to
historic sex abuse cases.
5
Media mobbing (often in contempt of court) and trial by social media have led
to a culture of ‘accusation is proof’. This puts enormous pressure on police and prosecutors to try to bring
charges in cases where the evidence is not sufficient to warrant action.
6
The presumption of guilt hysteria
enveloping Associate Justice Kavanaugh’s Senate Judiciary Committee hearing is a manifestation of a
broader societal trend that has emerged in some advanced common law jurisdictions.
To make it easy to jail innocent people might provide a proxy form of justice, but it does not give the
alleged victim any real justice. It simply uses a scapegoat to create a phantasmagorical imagery that
justice has been done. Following a number of acquittals and wrongful convictions of people charged
with historic sex offences, it is surely time that England and Australia examine the need for a statute of
limitations for criminal cases that rest on the uncorroborated evidence of a solo complainant.
7
Some of
these cases have been brought to trial 40 plus years after the complainant reached mature adulthood.
8
The complainant ought not be allowed to seek justice ad infinitum, if it risks others being wrongly
1. [2019] VSCA 186.
2. Haroon Siddique, ‘Call to review burden of proof in child sex abuse cases’ The Guardian (London 25 January 2016).
3. Robert Mendick, ‘Tom Watson says he was a victim of fantasist Carl Beech too, as calls for him to step down as MP mount’ The
Telegraph (London 23 July 2019), where it is reported: ‘Mr Watson also admitted for the first time he had been quoting Beech
when he accused Lord Brittan of being “as close to evil as a human being could get” in a vicious attack on the former home
secretary just four days after his death’.
4. Sir Richard Henriques, The Independent Review of the Metropolitan Police Service’s Handling of Non-Recent Sexual Offence
Investigations (London 4 October 2019).
5. Karen Corteen and Rachael Steele, ‘A Criminal Injustice System? Sex Offender Suspects and Defendants’ (2018) 39 Liverpool
LR 265; Penny Crofts, ‘Monsters and Horror in the Australian Royal Commission into Institutional Responses to Child Sexual
Abuse’ [2017] UTSLRS 21.
6. Richards v British Broadcasting Corporation [2018] 3 WLR 1715; see also Tony Diver, ‘Met police “fanned the flames” of
Carl Beech’s false allegations of Westminster paedophile ring’ The Telegraph (London 26 July 2019).
7. Yair Listokin, ‘Efficient Time Bars: A New Rationale for the Existence of Statutes of Limitations in Criminal Law’ (2002) 31
JLS 99.
8. Ross Clark, ‘Britain needs a statute of limitations for sex offences’ The Spectator (London 7 February 2017).
106 The Journal of Criminal Law 84(2)

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