Collusion, Corroboration, and Contamination: Testing the Credibility of Historic Complaints
The recent trend for the prosecution of historic offences continues. Amidst another scandal, seventeen former recruit instructors from Harrogate Army Foundation College will face court martial on a range of charges including assault by beating, ABH and the AFA 2006 offence of ill treatment, alleged to have been committed in June 2014.
Military training must be robust, service personnel need to be stoical, and standards cannot be allowed to decline. However, concerns remain that, in testing the strength of recruits, training has crossed over into unlawful behaviour towards some of the most vulnerable. Allegations of abuse must be properly investigated to safeguard the recruits of tomorrow. Morale, retention and further recruitment are all legitimate considerations for the Army. Nevertheless, military justice must guard against the witch-hunt that demands a scapegoat. The Service Prosecuting Authority has the same duty as CPS to be fair, independent and objective.
The prosecution of historic offences is inherently challenging. The memory of the complainant might be the only evidence, especially in cases lacking contemporaneous forensics or CCTV. That may well be reliable evidence in many cases, but memory is capable of being inaccurate. Increasingly, research suggests that everyone has highly fallible memories, arguably more so during childhood or at particularly traumatic events. Similarly, memory can be affected by interventions such as hypnotherapy or collusion between witnesses. Expert evidence cannot usually be used to analyse the reliability of the witness’s memory but those who defend should be alive to these challenges.
The justification for naming suspects seems to be founded upon the premise that a larger volume of complainants leads to more reliable evidence. This is not always the case; the practice of naming defendants is a double-edged sword. Although it assists investigation in that complainants may be encouraged to come forward if they know others have done so, the practice of naming defendants may in fact encourage copycat reporting, whether malicious or opportunistic. Similarity between accounts may be evidence of their truth. However, it is logically flawed to argue that because a large number of people make a similar allegation that it must be true. Concerns were expressed in the case of Nigel Evans, MP, that the Crown used corroboration by volume to bolster a weak case. This would never been allowed under other evidential gateways, such as bad character (see Hanson [2005] EWCA Crim 824).
The army is an inherently hierarchical organisation in which service personnel would not hesitate to air a grievance amongst their peers. With the widespread use of social media, stories, whether fact or rumour, can pass from the barracks to the Internet very quickly, spreading between units and Corps. Someone hearing an accusation might adopt the account, or elements of it, and present it as their own. There are many reasons why someone might lie about being the victim of abuse, for example, attention seeking, to gain revenge, to receive compensation, to highlight grievances, or to divert blame from themselves for their own shortcomings. It is open to any person who has made a false allegation to bolster that by encouraging another person to make an allegation. Wherever there are multiple complainants there lies potential for direct and dishonest collusion.
Even in the absence of collusion, innocent contamination can still take place. Upon hearing that allegations have been made, either directly or through media, others may relay their own experiences of the accused person. This is inevitable in an organisation like the military where service personnel live, train, work, and serve in close proximity to each other for prolonged periods of time. In the course of sharing stories, an individual may embellish the facts to make the account more exciting. The greater number of repetitions, the more compelling an individual may find his own exaggerated account. In this way, an instance of harsh training can be turned into an act of abuse in the mind of an honest but mistaken witness.
Cross-examination can exploit the failings or apparent perfections of memory. A witness who cannot recall circumstantial detail may not commend themselves to the tribunal of fact. Conversely, if a witness were able to recall intricate detail after a long period of time that may suggest foul play (Joynson [2008] EWCA Crim 3049). Cross-examination of multiple witnesses can elicit inconsistency, which may be indicative of fabrication. Lying witnesses may plan out their account of an incident but will usually omit extraneous detail that all parties should know if the allegation were true. Alternatively, inconsistencies could be explained by the decay of memory. In any case, it is the prosecution that bear the burden of proof and where there is doubt there should be an acquittal.
The trial judge should be asked to direct the jury in summing up as to how the passage of time is likely to affect memory. Where dishonest collusion or unconscious influence leading to memory contamination is suspected, this should also be addressed. In Lamb [2007] EWCA Crim 1766, the Court of Appeal acknowledged that it is necessary for the judge to give a balanced and accurate account of similarities where there is any reasonable possibility that unconscious influence may have occurred, as the level of similarity is relevant to the issue of likelihood or unlikelihood of innocent coincidence.
The Harrogate investigation took three years to complete before charges were brought. Those charged will face trial in February 2018, more than three and a half years after the allegations took place. The same challenges to the Crown’s evidence can be brought whether there has been a delay of a few months, a few years, or even decades. Defence advocates must be alive to the risks and challenges of historic complaints as where evidence is shown to be tainted by memory contamination, deliberately fabricated, or is excessively reliant upon other allegations, the tribunal of fact may find there is room for doubt.