While the vicious morlocks who infest the readers' comments pages of the Daily Mail website have been enjoying the game of hunt-the-celebrity played by press and police, the GOS has viewed Operation Yewtree with deep distrust. There's something foul and repellent about the baying mob howling for the blood of anyone and everyone more fortunate than they are.
For barrister Barbara Hewson to put her head above the parapet and voice her own concerns by writing an article in Spiked Online this week was brave, if not foolhardy. Immediately she has been branded the paedophiles' friend, and such is the hysteria surrounding this particular issue it was always unlikely that anyone would bother to read and consider exactly what she wrote.
We have, though, and we have to say that she makes a lot of sense. “Yewtree is destroying the rule of law”, says her headline, and she opens with “I do not support the persecution of old men. The manipulation of the rule of law by the Savile Inquisition – otherwise known as Operation Yewtree – and its attendant zealots poses a far graver threat to society than anything Jimmy Savile ever did”.
Not, you note, “Jimmy Savile didn't do it”, or “Jimmy Savile should have got away with it” (well, he did, actually!). Her suggestion is that our reaction bids fair to do more damage to society than Savile did, and we think she's right.
“We have been here before,” she continues. “England has a long history of do-gooders seeking to stamp out their version of sexual misconduct by force of the criminal law. In the eighteenth century, the quaintly named Society for the Reformation of Manners funded prosecutions of brothels, playwrights and gay men. In the 1880s, the Social Purity movement repeatedly tried to increase the age of consent for girls from 13 to 16, despite parliament’s resistance. At that time, puberty for girls was at age 15 (now it is 10). The movement’s supporters portrayed women as fragile creatures needing protection from men’s animal impulses.
Their efforts were finally rewarded after the maverick editor of the Pall Mall Gazette, W.T.Stead, set up his own secret commission to expose the sins of those in high places. After procuring a 13-year-old girl, Stead ran a lurid exposé of the sex industry, memorably entitled ‘The Maiden Tribute of Modern Babylon’. His voyeuristic accounts under such titles as ‘Strapping girls down’ and ‘Why the cries of the victims are not heard’ electrified the Victorian public. The ensuing moral panic resulted in the age of consent being raised in 1885, as well as the criminalisation of gross indecency between men.
By contrast, the goings-on at the BBC in past decades are not a patch on what Stead exposed. Taking girls to one’s dressing room, bottom pinching and groping in cars hardly rank in the annals of depravity with flogging and rape in padded rooms. Yet the Victorian narrative of innocents despoiled by nasty men endures.
What is strikingly different today is how Britain’s law-enforcement apparatus has been infiltrated by moral crusaders, like the National Society for the Prevention of Cruelty to Children (NSPCC) and the National Association for People Abused in Childhood (NAPAC). Both groups take part in Operation Yewtree, which looks into alleged offences both by and not by Savile.
These pressure groups have a vested interest in universalising the notion of abuse, making it almost as prevalent as original sin, but with the modern complication that it carries no possibility of redemption, only ‘survival’. The problem with this approach is that it makes abuse banal, and reduces the sympathy that we should feel for victims of really serious assaults.”
It's always going to be difficult to distinguish between unwholesome acts. To assess the relative seriousness of, say, a man putting his hand up a girl's skirt against three men holding the same girl down and repeatedly raping andd then mutilating her is something we'd all rather not do. But the law and the servants of the law are required to do it, and do it they should, even if it means running the risk of seeming to trivialise the lesser offence. Of course making such a distinction is difficult, and it would be all too easy to avoid it by simply putting one's foot down. “All sexual assaults are crimes,” we could say, “and should be hanging offences. End of!”
Hewson echoes a complaint we have often made on this website about the willingness of our legal system to admit the participation of outside, unappointed and unaccountable charities. Usually it's the RSPCA pretending to be real policemen, but this time it's the NSPCC.
She writes “The NSPCC and the Metropolitan Police Force produced a joint report into Savile’s alleged offending in January 2013, called Giving Victims a Voice.” What an extraordinary thing to do. The man had never been tried, never been convicted of anything, yet the police themselves feel able to go public. If he hadn't died, would they have done the same thing? Of course they wouldn't.
Hewson quotes the report: ‘The volume of the allegations that have been made, most of them dating back many years, has made this an unusual and complex inquiry. On the whole victims are not known to each other [sic] and taken together their accounts paint a compelling picture of widespread sexual abuse by a predatory sex offender. We are therefore referring to them as “victims” rather than “complainants” and are not presenting the evidence they have provided as unproven allegations.’ The report also states that ‘more work still needs to be done to ensure that the vulnerable feel that the scales of justice have been rebalanced’.
What Hewson means is that by keeping the evidence to themselves the police and the NSPCC are assuming the roles of judge and jury. They have already decided that the man was guilty. What they're really saying is “We know he was guilty but the evidence isn't all that good so we're keeping it to ourselves”. Kind of them to look after our interests in this way. Probably they're right and he WAS guilty, but to be honest we'd rather like to feel this had been proved in a court of law, rather than decided for us by the kind busybodies at the NSPCC. And let's be perfectly clear, even to the morlocks: what we're talking about here, and what Hewson is talking about, is not paedophilia. It's the administration of the law.
She goes on ”this national trawl for historical victims was an open invitation to all manner of folk to reinterpret their experience of the past as one of victimisation. The acute problems of proof which stale allegations entail also generates a demand that criminal courts should afford accusers therapy, by giving them ‘a voice’. This function is far removed from the courts’ traditional role, in which the state must prove defendants guilty beyond reasonable doubt.
It’s not difficult, then, to see why some celebrity elderly defendants, thrust into the glare of hostile publicity, including Dalek-style utterances from the police (‘offenders have nowhere to hide’), may conclude that resistance is useless. But the low-level misdemeanours with which Stuart Hall was charged are nothing like serious crime.
Touching a 17-year-old’s breast, kissing a 13-year-old, or putting one’s hand up a 16-year-old’s skirt, are not remotely comparable to the horrors of the Ealing Vicarage assaults and gang rape, or the Fordingbridge gang rape and murders, both dating from 1986. Anyone suggesting otherwise has lost touch with reality.
Ordinarily, Hall’s misdemeanors would not be prosecuted, and certainly not decades after the event. What we have here is the manipulation of the British criminal-justice system to produce scapegoats on demand. It is a grotesque spectacle. It’s interesting that two complainants who waived anonymity have told how they rebuffed Hall’s advances. That is, they dealt with it at the time.
It’s time to end this prurient charade, which has nothing to do with justice or the public interest. Adults and law-enforcement agencies must stop fetishising victimhood. Instead, we should focus on arming today’s youngsters with the savoir-faire and social skills to avoid drifting into compromising situations, and prosecute modern crime. As for law reform, now regrettably necessary, my recommendations are: remove complainant anonymity; introduce a strict statute of limitations for criminal prosecutions and civil actions; and reduce the age of consent to 13.”
Everything she says seems entirely reasonable to us, and needed to be said.
Everything, that is, but the last phrase. She has offered no reasoning to support the suggestion that the age of consent should be lowered, and there's nothing in the preceding article to explain why she thinks this. There may be very good reasons why the law should be changed; for a start, we know that these days a lot of children under the age of 16 are sexually active. But without some reasoning to support it, most people will see it as a thoughtless mistake, while the Daily Mail morlocks will seize on it as ammunition for their war against those more fortunate, more literate, more intelligent or more educated than they are.
Something that escaped the eagle eye of the gutter press was that only a few days earlier Spiked Online had carried a very interesting article about Operation Yewtree by lawyer Luke Gittos.
“Is this justice, or naming and shaming?” it began. “Every Yewtree arrest generates anti-celeb sneering. But an arrest does not equal guilt, at least not in civilised societies.”
“Following the arrest of Jimmy Tarbuck on 26 April, it is clear that Operation Yewtree, the operation established to investigate historical allegations of sexual offending against Jimmy Savile and ‘others’, has the potential to be more far reaching than first thought.
Operation Yewtree has led to the arrest of 13 men in all. Two have been charged: PR agent Max Clifford, and ex-BBC driver David Smith. The arrest of Tarbuck is a first for the operation, because it was the first made simply on the basis of ‘information provided by Operation Yewtree’. This ‘information’ has led to an entirely separate criminal investigation by North Yorkshire Police.
Making an arrest is no indication of the success of an investigation. An arrest is the starting point of a criminal investigation, and can only be made if questions are to be asked in an interview which can advance the investigation in some way. While the arrests made in the course of Yewtree may give the impression that the operation is successfully sweeping up a generation of paedophilic entertainers, it may equally turn out that the investigation has led to the naming and shaming of many completely innocent people.
In order to charge any of the arrested individuals with criminal offences, the Crown Prosecution Service, which instigates all prosecutions in England and Wales, will have to determine two things: whether there is sufficient evidence and whether it is in the public interest to prosecute. This is what is known as the ‘full code test’. The ‘public interest’ aspect of this test is supposed to introduce a number of factors into the decision to charge: did the offending have any impact on the community in which the offending took place? How serious was the offence? And, perhaps most importantly, is prosecution a proportionate response to the offending?
The first point to note is that many of the arrests have been made for what are, on the face of it, highly ambiguous offences. A number of the arrests, including that of Rolf Harris, have been made following allegations of ‘sexual assault’. A sexual assault can be anything from a pat on the rear to non-penile penetration. It is yet to be seen whether any of the offences are sufficiently serious to warrant an arrest so long after the fact. Given the delay, one would imagine that a sexual assault would have to be quite heinous for it to be in the ‘public interest’ to prosecute.
Assuming the assault was heinous, what then? Even if a case is brought to trial, the Crown Court will have an inherent jurisdiction to decide whether to try a case where the accused cannot receive a fair trial due to the passage of time. This is what is known as the ‘abuse of process’ doctrine. There is no hard and fast law as to when cases can and cannot be prosecuted in the UK, but if the delay has caused a significant prejudice to the defendant, then the case is likely to be thrown out at trial.
In March, the head of the Crown Prosecution Service, Keir Starmer, made a speech which reveals much of the impetus behind Operation Yewtree. It is clear on reading Starmer’s account of the CPS’s treatment of Yewtree’s findings that its roots lay not with Savile or any of the individuals associated with him - the elusive ‘others’ - but with the botched child-sex investigation which became known as the ‘Rochdale case’.
The Rochdale case involved the systematic abuse of underage girls by Pakistani men in Manchester. The original lawyer for the Crown had decided that the complainant would not be seen as reliable by a jury, and so the original complaint was dropped. When the extent of the abuse was uncovered, and nine men were convicted of various offences ranging from rape to sexual assault, the operation was seen as a catastrophic failure on behalf of the Crown to deal properly with complaints made by young women.
Starmer set up a panel to investigate the failings in the Rochdale case. This was at the same time that he asked Alison Levitt, his chief legal adviser, to re-examine complaints made against Savile following the broadcasting of an ITV documentary, and also to investigate historic claims against the liberal MP Cyril Smith. The decision to reinvestigate the complaints against Smith was unprecedented, given that Smith was dead and the complaints were 30 years old. Never before had the Crown Prosecution Service undertaken a review of a decision which would have no practical consequence.
The investigation of the Cyril Smith case led to a public apology by Greater Manchester Police and the Crown Prosecution Service for failing to prosecute Smith while he was alive. In relation to Savile, Yewtree resulted in a Metropolitan Police report into the investigation called ‘Giving Victims a Voice’, and a further report produced by Alison Levitt at the Crown Prosecution Service. The Levitt report suggested that while there was no ‘improper motive’ driving the decision not to prosecute Saville while he was alive, had the police taken a different approach, a prosecution ‘might have been possible’.
In Starmer’s own words, the purpose of publishing a CPS report into the Savile case was to ‘explore how the police and other bodies can learn to be more effective in the resolution and prevention of serious sexual offending’. In other words, from the perspective of the Crown Prosecution Service and the Metropolitan Police, Yewtree and the investigation of other historic offences like those alleged against Cyril Smith, were about publicly demonstrating a change in attitude to the way sex cases are prosecuted. Of course, it is too early to tell in relation to those arrested in the course of Yewtree whether or not the allegations against them stand up to scrutiny. But it is vital to recognise that every arrest without a conviction represents the arrest and unnecessary shaming of a completely innocent individual” (our underlining – GOS).
“Of course, if all or even some of those arrested are successfully tried and convicted of serious offences it may well not matter what the impetus behind these arrests are. But if those arrested in the course of Yewtree, or ‘on the basis of information provided by Operation Yewtree’, were shown to be innocent, it should be recognised as a catastrophic prosecutorial failing. Equal, perhaps, to those prosecutorial failings these arrests sought to correct.”
The GOS says: No, Luke Gittos, that'll never wash. Far too sensible. Right, but far too sensible. Being sensible will get you nowhere these days. All these paedophiles, right, they ought to be castrated, right. Guilty or not. No argument. End of.
Then we don't have to strain our little brains actually thinking about it.
either on this site or on the World Wide Web.
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