Today a report authored by the
Metropolitan Police and the NSPCC has been released, detailing the years of
abuse by Jimmy Savile. The report, ‘Giving Victims a Voice’, documents a
pattern of offending that is likely to have spanned 50 years, possible because Savile
‘was hiding in plain sight’. It explains that 450 people came forward with
information relating to Savile leading to, currently, 214 formally recorded crimes
that were committed at locations including the BBC, hospitals and schools.
What is interesting about the
report is its declaration that because the complainants' (who mostly are not known
to one another) accounts ‘paint a compelling picture of widespread sexual
abuse by a predatory sexual offender’ they are referred to as ‘victims’ and
their evidence is not being treated as unproven allegations. Presumably,
therefore, their evidence is being treated as proven. Essentially then, the
authors of the report seem to be saying that although a criminal prosecution is
impossible as the suspect is now deceased, we can nevertheless be sure that he
was guilty of a number of crimes. I personally find this conclusion concerning.
We only declare a person guilty of a crime following a trial of the evidence,
when we are sure that the person is guilty. At such a trial the defendant is
represented, evidence is challenged and various safeguards are in place, such
as restrictions on the type of evidence which can be used. That is what makes
the process of finding somebody guilty fair. As Savile is dead he cannot
challenge the evidence against him. We cannot have a trial of the evidence and
cannot therefore be sure of his guilt. That is not to say that I believe him to
be innocent. It seems to me from all that has been reported that there is a
very high probability that Savile was guilty of a number of appalling crimes.
But there is a huge difference between declaring something highly probable and
declaring something proven. In a democratic society we can only declare
criminal conduct proven following a trial of evidence. As this has not been
possible in this case I do not believe it is correct to treat the allegations
as proven.
This raises the question of how
we should deal with criminal allegations against a person who has died. One way
of course is, as here, to have an investigation and then a report setting out
its findings. But such a report should not declare guilt in the same way that a
criminal trial can. The problem with this method is that supporters of the
deceased may feel that there has been an injustice to the deceased as there has
been no examination of the evidence that is available. An alternative way,
therefore, could be to introduce law allowing for a new posthumous trial
procedure. Such a procedure could involve the appointment of an advocate to
represent the interests of the deceased and then an examination of the
evidence. Of course, we could never be sure of guilt as there would often be
much evidence that only the deceased could give. But we may be able to say that
there is a high probability of guilt. Accordingly, such a procedure could allow
us to find a person innocent or make a ‘declaration of probable guilt’ in
relation to them. At least in this way we attempt to assess the evidence in the
way that we do at a traditional trial and equally balance the interests of both
any alleged victims and the deceased and their supporters.
I imagine that the type of
procedure described above is unlikely to ever exist. But surely we need an
alternative way of dealing with such cases; can it ever really be acceptable to
declare criminal allegations proven without a trial? What are your thoughts?
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