39. Against that brief background, by letter dated 13 March 1970,^[1] the Assistant Chief Constable (ACC) for Lancashire Constabulary sent to the office of the Director of Public Prosecutions the file regarding a number of indecent assaults alleged to have been committed by Cyril Smith. In the letter, the ACC stated that he was sending the file to the Director of Public Prosecutions “Because of the standing of SMITH in the public life of Rochdale and because of the lapse of time since the alleged offences were committed”, and he said he was therefore seeking the Director of Public Prosecutions’ advice on whether or not proceedings should be instituted. The letter was acknowledged by the Director of Public Prosecutions’ office on 16 March 1970.^[2]

40. Both letters were signed by M D Hutchinson and are couched in the first person. In a second witness statement dated 18 October 2017 and provided to the Inquiry by Mr McGill after he had given evidence,^[3] Mr McGill states that there is evidence that M D Hutchinson was an Assistant Director of Public Prosecutions in his London office in 1962. Eleanor Phillips gave evidence that she had joined the Director of Public Prosecutions’ office as a secretary from 1973, but had not heard of M D Hutchinson.^[4] She added that Assistant Directors had the same powers as the Director of Public Prosecutions himself.^[5]

41. The ACC was not inviting the Director of Public Prosecutions to institute or conduct criminal proceedings but was seeking advice as to whether Lancashire Constabulary should do so. Confirmation that the Director of Public Prosecutions’ office was to advise is found in the decision letter of 19 March 1970 from the Director of Public Prosecutions’ office, in which the author of the letter said he did not “advise” Smith’s prosecution.^[6]

42. It is equally clear that, although in 1970 Lancashire Constabulary could have proceeded against Smith without the Director of Public Prosecutions’ blessing,^[7] they heeded the Director of Public Prosecutions’ advice, informing Smith in a face-to-face meeting on 25 March 1970 that “it was not intended to take any further action in this matter”.^[8] Having sought the Director of Public Prosecutions’ advice, the police were unlikely to disregard it.

43. It is most likely that the Director of Public Prosecutions, Sir Norman Skelhorn, did not provide the advice, but that M D Hutchinson, an Assistant Director, did. That might explain why, when a man claiming to be Sir Norman Skelhorn telephoned RAP in response to their letter to him of 25 April 1979 seeking information about the matter, he said he could not remember anything about such a case.^[9]

44. We have to consider whether the statement of Detective Chief Inspector Glen Lloyd of the Metropolitan Police Service dated 20 October 2017 undermines that proposition. In his statement, Mr Lloyd informed the Inquiry that in May 1976 the Metropolitan Police Service commenced an investigation into André Thorne concerning allegations of blackmail, theft and handling stolen goods. The allegations involved Cyril Smith as well as others. Smith’s solicitor informed the Metropolitan Police Service about the 1969–70 Lancashire investigation and that the Director of Public Prosecutions had taken no action against Smith. The Metropolitan Police Service confirmed those facts with the Director of Public Prosecutions’ office. While it is clear that in 1976 the Director of Public Prosecutions’ office was aware of the Lancashire investigation, Mr Lloyd’s evidence does not demonstrate that Sir Norman Skelhorn was personally aware of it, and therefore that when he contacted RAP in 1979 he untruthfully stated he had no knowledge of the case.

45. In 1970, Cyril Smith was locally but not yet nationally prominent. His local standing explains why the police submitted the file to the Director of Public Prosecutions. We have been told by Mr McGill that there is information that on the very day of Mr Hutchinson’s letter of advice (19 March 1970) a jury returned verdicts in a notorious case in Luton, suggesting that Sir Norman Skelhorn might have been otherwise engaged.^[10] As we have said, it is reasonably clear that Sir Norman Skelhorn did not provide the advice. There is no evidence the Inquiry has seen that he even knew about the investigation into Smith.

46. We note that the advice was delivered to the police with curious speed. The Lancashire police file, comprising over 80 pages of material, was sent under cover of the letter of 13 March 1970, which was a Friday, and receipt of it was not acknowledged by Mr Hutchinson until Monday 16 March 1970. The advice was provided in writing within three working days on Thursday 19 March 1970. Although the events leading to the allegations had arisen some years previously, the ACC did not ask for the matter to be treated with any degree of urgency or expedition. Mr McGill acknowledged in his evidence that this had been a quick turnaround but could not say whether in 1970 that was uncommon.^[11]

47. We are nonetheless troubled by the cursory nature of the analysis, and the speed with which the case was dispatched and Smith told of the outcome, particularly where he had pushed for a quick decision as he was seeking nomination to stand for Parliament at the time. This had serious consequences for the case in later years.

48. Mr Hutchinson relied on three features in order to arrive at his advice that Smith should not be prosecuted: (1) the charges were stale; (2) they were without corroboration; and (3) the character of the complainants would likely render their evidence suspect. It was notable that Mr Hutchinson did not refer to the nature of Smith’s defence. In a voluntary interview of 24 January 1970 with the police,^[12] Smith accepted that the complainants were not conspiring together, saying “... they are telling the truth as they see it”. Then in a written statement made by him on 27 February 1970 (just ahead of his police interview under caution, in which he said he had nothing further to add), Smith denied any indecency but relied on the assertion that he was in loco parentis to the boys at the time, implying that his ‘medical examinations’ of the boys were justified.

49. In her Closing Statement to the Inquiry, Ms Hoyano argued that the decision as regards corroboration was wrong in law, in that the law on similar fact evidence at that time permitted the combining (and cross-admissibility) of separate complaints in cases of sexual offences against children by adults where there was evidence that the defendant was using a system, or in order to rebut a defence of innocent.^[13] Both system and a defence of innocent association were, Ms Hoyano argues, evident on the facts.

50. She argues that, in his evidence, Mr McGill retreated from his witness statement, in which he had said that “it was difficult to see how [the Director of Public Prosecutions] would have come to any other conclusion, but that there was indeed corroboration of the complainants’ accounts, or at least a good arguable case that that was the position”, ^[14]  by saying that “it is difficult to say it wasn’t a reasonable decision based on the confusion of the law at the time”.^[15]

51. In his Opening Statement at the public hearings, Brian Altman QC, Counsel to the Inquiry, posed two questions for our consideration regarding the Director of Public Prosecutions’ advice: (1) whether the decision appears to have been reasonable as judged against the requirements that then applied; and (2) whether the decision was an example of one member of the establishment protecting another for no better reason than he occupied a position of power.^[16]

52. In his Opening Statement on 10 October 2017 to the Inquiry, Mr Edward Brown QC, counsel for the Crown Prosecution Service, argued that had the Director of Public Prosecutions come to the view that there was corroboration in law for the separate complaints, it is reasonable to suppose that he would and should have regarded more neutrally, and not as determinative, the other two factors (staleness and character), factors that were given more weight at that time.^[17] In his Closing Statement, Mr Brown QC argued that the Director of Public Prosecutions’ decision was not legally unreasonable for its time, and that there was no evidence of inappropriate influence.^[18]

53. We do not think it is right or appropriate for us to adjudicate on the difficult legal and countervailing arguments Ms Hoyano and Mr Brown QC made before us. Consequently, we do not make any finding as to whether the Assistant Director’s advice that there was “no reasonable prospect of conviction” ^[19] was or was not itself reasonable in all the circumstances.

54. However, the fact remains, as has been acknowledged by Mr McGill in his witness statement and argued by Ms Hoyano, there was an arguable case that there was corroboration in law, and therefore the other factors he brought into account should have been afforded less weight than they were. If the Assistant Director did make a mistake of law on the issue of corroboration, clearly it had a major part to play in the negative advice that was given to the police.

55. Mr Jacques gave evidence that Detective Superintendent Leach, whose report of 11 March 1970 had accompanied the file to the Director of Public Prosecutions’ office,^[20] had been so optimistic that charges would follow that he talked about preparing a schedule of charges.^[21] When asked whether Lancashire Constabulary might have charged Smith despite the advice, ACC Jacques said that although he had not been a police officer at the time he felt it would have been unusual and unlikely for the police to have “pushed back” on advice from such a high authority as the Director of Public Prosecutions.^[22] Mr McGill thought it was possible for the police to have charged Smith but, whether they would have done, given the advice, he did not know.^[23]

56. The only evidence that the Inquiry heard relating to the possibility of improper influence of the Director of Public Prosecutions’ decision was that of Eileen Kershaw, whose accounts were read to the Inquiry on 12 October 2017.^[24] She had told a Channel 4 Dispatches programme,^[25] aired on 12 September 2013, that Cyril Smith had turned to her and her husband, an old school friend of Smith’s, when he learned that he had been reported to the police. Mr Kershaw had suggested involving Jack McCann, the then local Labour MP, who during a late night visit at the Kershaw home told Smith that he was going to go to the Director of Public Prosecutions and tell him “they’ve either got to get on and prosecute because it’s gone on for long enough, or they’ve to drop it”. ^[26] Mrs Kershaw told the programme that “it got Cyril off the hook”, but in a witness statement she made on 5 March 2015 she said she regretted saying that as McCann was a man of integrity and what he did was to get the Director of Public Prosecutions “to expedite the matter and resolve the situation, bringing it to a conclusion”.^[27] She added she did not think the intervention influenced the Director of Public Prosecutions’ decision.

57. A further piece of evidence, relevant to this topic, is found in the handwritten police report by Detective Sergeant Vincent Hill dated 2 December 1998, which was submitted as part of Operation Cleopatra. In it, Mr Hill spoke of his interview on 12 November 1998 with David Bartlett of RAP, which had exposed the allegations about Cyril Smith in May 1979.^[28] Among the information Mr Bartlett appears to have given Mr Hill was that Bill Quinn, a former Alderman, since deceased, had spoken of Smith approaching the then MP Jack McCann “who enlisted the help of the then Home Secretary Roy Jenkins in an effort to prevent the prosecution of Smith”. This is the only evidence the Inquiry has seen of an allegation of interference by the then Home Secretary. It is second hand and it cannot be substantiated.

58. RAP had written about the involvement of Jack McCann MP in its article of May 1979. In his evidence to the Inquiry, Mr Bartlett said that Eileen Kershaw had been his source of the information about Mr McCann’s involvement, and that she had told him that Mr McCann had been in touch with the then Home Secretary, Roy Jenkins, not with the Director of Public Prosecutions.^[29]

59. Mrs Kershaw’s account in 2013 and 2015 is plainly inconsistent with Mr Bartlett’s evidence about what she said to him in 1979. The question whether there was an approach by Mr McCann to the Director of Public Prosecutions or to the Home Secretary, and what the nature of any approach was, is unsatisfactory and incapable of resolution.

60. Although it appears that the Director of Public Prosecutions did not personally provide the advice on Smith, in his memoirs Sir Norman Skelhorn said the Director of Public Prosecutions would never refuse to prosecute someone simply because of the position he held, adding that he never felt he lacked independence to make his own decisions.^[30]

61. On the material we have seen, it would be no more than speculation to say there was improper influence by those interested in the matter.