94. In about March 1998, RO-A1 contacted police in South Wales who were investigating physical and sexual abuse in residential establishments in their force area.[1] RO-A1 complained of being indecently assaulted by Cyril Smith between 1965 and 1968. The police in South Wales passed on the complaint to GMP,[2] who from 1997 had been investigating allegations of physical and sexual abuse in residential care homes in the Greater Manchester area. This investigation was known as ‘Operation Cleopatra’.[3]
95. On 21 May 1998, Detective Superintendent Stelfox (the then Senior Investigating Officer on Operation Cleopatra) submitted the original Lancashire Constabulary file, with the addition of one further statement,[4] which had not been part of the original file, to the Crown Prosecution Service Branch Crown Prosecutor (BCP) in Rochdale with a request to advise whether there was sufficient evidence to support a prosecution, assuming those who had made complaints in the 1960s still wished to pursue them. He requested the Crown Prosecution Service to advise whether a prosecution was viable in light of the Director of Public Prosecutions’ decision in 1970.[5]
96. Between 1970 and 1998, the prosecution landscape had changed. First, the Crown Prosecution Service had become responsible for making charging decisions. Second, in 1994, the Code for Crown Prosecutors introduced a two-stage test that had to be satisfied before criminal proceedings could be commenced: the evidential test and the public interest test. That is to say, was there a realistic prospect of conviction[6] and, if so, was it in the public interest to prosecute?[7] [8] Third, the old rules on corroboration had been swept away.[9] [10]
97. In addition, it was of importance that by 1998 the doctrine of abuse of process was well established in relation, among other things, to prosecutorial promises.[11] [12]
98. The BCP provided a draft Advice dated 10 June 1998[13] that he followed up on 17 June 1998 with a final written Advice,[14] which he sent to the Assistant Chief Crown Prosecutor, Mr Barker, under cover of a minute of the same date,[15] saying he had spoken to Chris Enzor at Crown Prosecution Service Headquarters in York, whom he had informed of the Advice out of courtesy, and that he had provided him with the brief details of it. The BCP revealed in the minute that Mr Enzor “informed me that it was not necessary to refer the matter to Headquarters”. Although the minute did not reveal why not, the BCP revealed in his final Advice that Headquarters had not wished to become involved in the light of his conclusions.[16] In other words, his conclusions were accepted as correct.
99. The BCP’s minute also revealed that he had spoken to Mr Stelfox about his Advice to whom, he said, it had come as no surprise. At the end of the minute, the BCP observed, “I expect that my advice will conclude the investigation into the suspect for some time.”
100. As for his advice on the substantive issues, the BCP said he was of the “firm view”, having regard to the nature and number of the complaints and how they came to be made, that there would be a realistic prospect of conviction in respect of a number of indecent assaults, which was based on the evidence taken at its highest.[17] In summary, he said, he had “little hesitation” in advising that there was sufficient evidence to proceed against Smith and a realistic prospect of conviction in respect of each of the complaints. Despite that prospect, however, it was not appropriate to proceed because Smith would be entitled to rely on the legitimate expectation that he would not be prosecuted by reason of what he had been told on 25 March 1970, reinforced by the lapse of 27 years.[18] In other words, it would be an abuse of the process to prosecute, leading to the stay of the proceedings.
101. In 1999, the police obtained statements from two additional complainants (RO-A4 and RO-A68), as a result of which the BCP was asked to advise further. He did so in a minute dated 21 May 1999.[19] The BCP came to the view that there was no realistic prospect of conviction based on the new complaints, and that he doubted also whether it was in the public interest to proceed with RO-A68’s complaint. Given that he did not complain that Smith had indecently assaulted him, there was no new evidence that would alter his view in relation to the original complainants. He alluded to the likely abuse of process arguments he had set out in his first Advice.
102. In 2012, a Senior Crown Advocate was asked to review the BCP’s Advices in 1998 and 1999[20]. His view was that, had the original complaints been referred to the Crown Prosecution Service in 2012, it is likely that authority would have been given to charge. However, he added that the BCP’s Advice, based on the law as it was then, “cannot be faulted”.
103. In his witness statement of 8 September 2017,[21] Mr McGill remarks that, at that time, it would have been unusual for a Crown Prosecutor to make a decision whether or not to commence proceedings based in large part on an assessment made by him of the likely success of any application to stay the proceedings before such an argument could be fully litigated before a judge. He does point out that the factual matrix presented to the BCP was unusual and in Smith’s favour. Mr McGill also says that the approach the BCP took to the issue of corroboration is “open to criticism” although he did advise that the evidential test was satisfied.[22] [23] Insofar as the 1999 Advice goes, the BCP should have concluded that, although the new complaints did not pass the evidential test, they were nonetheless capable of undermining Smith’s claim of innocent association with the other complainants.[24] [25]
104. Of the 2012 review, Mr McGill did not agree that the Senior Crown Advocate’s view that the BCP’s Advice could not be faulted was wholly accurate, as there were criticisms that could be made of the approach the BCP adopted in 1998 and 1999. However, Mr McGill concluded that the approach regarding abuse of process was “broadly correct” and, while other lawyers might have opted to charge Smith and allow a judge to decide on any application by him to stay the proceedings, he was “satisfied that there was a legal justification for his conclusions at that time”. In evidence, Mr McGill said the decision was “not unreasonable”.[26] [27]
105. In her Closing Statement,[28] Ms Hoyano criticises the BCP’s decision making as “unbalanced” in that there was a failure to consider countervailing arguments that might damage public confidence in the criminal justice system by a refusal to prosecute Smith, as she put to Mr McGill in questioning.[29] In his Closing Statement, Mr Brown QC contended that “unbalanced” meant it was no more than a wrong “judgment call” on the unusual facts of the case.[30]
106. Mr Brown also set out for us the fundamental differences in approach to prosecutorial practice as exist nowadays. The first Code for Crown Prosecutors had gone through several revisions, all of which involved public consultation, which bear on the decision making made today in cases of alleged child sexual abuse. He outlined the many Crown Prosecution Service guidance documents there are for prosecutors dealing with such cases, as well as the Victim’s Right to Review scheme. All this suggests a wholly different approach to allegations of child sexual abuse and the alleged victims of such abuse today.[31]
107. In the light of the evidence we have heard, we are of the view that the BCP, having come to the firm view that there was a realistic prospect of conviction in regard to the original complaints, about which he was asked to advise, ought in 1998 to have advised that Smith be charged. A judge should have been asked to decide on any application to stay the proceedings as an abuse of the process. We are sympathetic to Ms Hoyano’s views that the BCP’s advice appears to be “unbalanced”, in that there was a failure to consider the countervailing arguments that public confidence in the criminal justice system might be damaged by a refusal to prosecute Smith.
108. Moreover, when he was asked to consider his Advice again in 1999 in the light of the new complaints, the BCP might have come to the view that, although they did not themselves pass the evidential test, nonetheless those complaints were capable of undermining Smith’s defence of innocent association and lending further support to the case.
109. We conclude that a valuable opportunity was lost in 1998 and 1999, not only to charge and to prosecute Smith during his lifetime but also for the complainants to seek justice.