Apropos of my previous comments on bureaucracy, accountability and the Rochdale ‘Satanic Abuse’ case we come to an article in today’s Times by Camilla Cavendish, ‘Innocent but presumed guilty’, includes this quite staggering passage:
A mother (I shall call her Sarah) entered this world voluntarily, when she began to suspect that her daughter was being abused by her former partner, father of the girl. She approached social services for help. But they ended up taking her daughter away from her, and placing her with the very man she had accused. I have heard only her side of the extraordinary story. The expert psychiatrist appointed by the court decided that Sarah had coached her daughter to make false allegations — something that is not unknown. But he did so without ever having met Sarah, her daughter or the boyfriend her daughter accused. He never appeared in court to be cross-examined. He merely watched the police video of her daughter’s interview and posted his report. Yet the judge apparently considered this a sufficient basis on which to take Sarah’s daughter away.
If the account given of the part played, in this case, by ‘expert’ witness testimony is true, which is difficult to evaluate due to the obsessive secrecy that surrounds the proceedings of family courts, then I would strongly contend that a clear miscarriage of justice has taken place here.
The question of whether there is any truth in the assertion that ‘Sarah’ had indeed coached her daughter to make false allegations is not immaterial to the ultimate outcome of the case and requires careful consideration in the long-term, but that is an issue for future proceedings – the miscarriage of justice lies not in the ruling of the court to hand custody of her daughter to the father but in the abject failure of the court to adhere to a fundamental principle of both legal process and scientific methodology; that evidence should be tested in order to assess its veracity.
It is, I suspect, not uncommon for psychiatrists to offer opinions based solely on video evidence of interviews, in the manner indicated here; nor is there anything essentially wrong with such a practice in its proper context. Such opinions are, at best, advisory and may indicate promising lines of further inquiry.
But they are not statements of fact.
This is true of all scientific evidence and ‘expert’ testimony placed before a court of law by virtue, simply, of their being founded upon science.
It is a rare occurrence, indeed, for science to deal in absolutes, in total certainties, for rarely if ever do such absolutes exist.
There have been four great scientific theories in the last 150 years; Darwin’s Theory of Evolution by Natural Selection, Einstein’s General Theory of Relativity, Quantum Mechanics and Chaos Theory, all of which share one thing in common; the all propound a view of reality in which there is an absence of absolutes, a universe of infinite and ever increasing complexity. It is the very nature of scientific enquiry that the more we consider a particular question, the more we study, research and examine, the more we find answers to questions the more those answers raise further questions. The closely we look, the more complex the world becomes.
That is why these are all scientific theories, because the complexity they reveals defies reduction to absolutes, to scientific laws – and even what we call scientific laws are, more often than not, no more than strong approximations – and it why it is axiomatic in scientific enquiry that all such theories must be put to the test; that our understanding of reality must constantly be evaluated, re-evaluated and validated with evidence to support that understanding. That or be revised in light of evidence that contradicts that understanding.
This is true for all natural sciences – only in the abstract realms of pure mathematics do absolutes come into play; reality too messy, too complex and too disorderly to be rendered into a series of absolute and unquestionable facts.
This is particularly true of evidence relating to the working of the human mind, to the evidence of psychiatrists and psychologists working in branch of science which is about as from empirical as it is possible to get and still be thought a science. In seeking to understand the workings of the human mind there are no facts; the mind is too complex and too irreducible in complexity to be rendered into facts; there are no facts in psychology, only theories, hypotheses and conjectures; things to be tested and evaluated with evidence.
Nothing in psychology is ever definitive.
A court of law, in Britain, works in much the same way. Legal proceedings begin with an allegation of some sort which, at the outset of proceedings, has the status of a theory or hypothesis. Evidence which supports or contradicts this theory is presented to the court and subjected to test by cross-examination – this is the basis of our adversarial system of justice and a process which, for all its flaws, I think infinitely superior to the inquisitorial system of investigating judges that is common in continental Europe.
In a court of law in this country, as in a research paper published in a scientific journal, a theory is proposed, evidence is presented and weighed, conclusions are proposed and considered rationally for their veracity and then a judgement is made and rendered. As a system, a simple methodology for administering justice, it is as near perfect as can reasonably be envisage – what flaws there are in the judicial process are the product of human artifice, of badly framed laws, misinterpretations, poor evidence, incompetent advocacy and simple human prejudice. Courts are not perfect because they involve people and people are intrinsically imperfect, flawed and complex in nature.
In this particular case, this methodology appears not been followed. The evidence of the ‘expert’ witness was not derived in an appropriately scientific manner, in fact, from the manner in which was produced one can barely consider it to have been evidence at all; although that is not necessarily a criticism of the psychiatrist in question as their report may not have been intended for use as evidence, but merely to suggest possibilities and line of enquiry.
Nevertheless, this report was introduced into evidence, whether by agreement of the psychiatrist in question or merely as a result of it being seized upon on by an over zealous ‘prosecutor’, unqualified to assess its merit, merely because it appeared unequivocally to support their hypothesis in this case.
That is failure number one.
It was then, seemingly, accepted as evidence by the court without it having been appropriately tested – the psychiatrist who wrote this report was not called to give personal testimony nor subjected to cross-examination.
That is failure number two.
Finally, if the brief account given by the Times is accurate, an inordinate degree of weight was accorded by the judge to this untested evidence in rendering his/her judgement; with the result that a sketchy and distinctly unscientific opinion, barely an interim hypothesis, was accepted as a statement of fact for, seemingly, no better reason than that the court considered the author of that report an ‘expert’ while failing to test that assumption.
That is failure number three.
We’ve been here before all too recently in the case of Sir Roy Meadow, the significant difference being that the miscarriages of justice arising from his failings as a scientist took place in the full glare of the public gaze and were subjected to public – and scientific – scrutiny and not under the obsessive secrecy of a family court.
It is undoubtedly right that proceedings in family courts should be handled under conditions of utmost confidentiality, where that confidentiality serves to protect children and families from unwarranted and potentially damaging public scrutiny. It is wrong, however, that such confidentiality should extend also to social workers, health care professionals and ‘expert’ witnesses as it does at present, where it serves all too often to prevent their role in proceedings being subjected to anything approaching and appropriate level of scrutiny.
It is right that we protect the innocent.
It is wrong, however, when miscarriages of justice occur in family court as they do in other courts, that the system we put in place to protect the innocent also serves to protect those who fail in their professional duties through incompetence, negligence or, in the most egregious of cases, malfeasance – particularly when, in doing so, we too often collude with them, also, in preventing such miscarriages from coming to light and their victims receiving appropriate, proper and, most importantly of all, speedy redress.
In the case of Sir Roy Meadow, those wrongly convicted on the basis of his flawed and unscientific evidence did obtain justice through both the Court of Appeal and, ultimately when Meadow was struck off by the GMC for serious professional misconduct – a decision he is currently appealing.
There was, however, no public inquiry into those cases in which Meadow’s evidence was instrumental in sending innocent women to prison – worse still it seems the Criminal Cases Review Committee seems now to be advocating a ban on juries testing key scientific evidence in open court.
Such a suggestion is not merely unjust and inequitable but, in the light of seemingly case upon case in which the innocent are condemned on basis of little more than professional zealotry, incompetence and an unjustified and untested faith in ‘experts’, quite frankly obscene.
Not every case in which such failures as occurred in those in which Sir Roy Meadow gave evidence, of the Rochdale case or even the case of ‘Sarah’ featured by the Times, necessarily merits a public inquiry. In dealing with many kinds of individual, human, failings the scrutiny and redress offered by a court of law is sufficient for the purpose of setting matters to rights and pursuing the interests of justice.
There are two occasions, however, in which a public inquiry is not merely merited but positively demanded.
The first is when the failures in a particular case are so manifestly egregious and the consequences of those failures so severe that justice may only be served by the full light of public scrutiny. Cases such as the Soham murders and that of Victoria Climbie clearly fall into that category. The Rochdale case, in my opinion, does as well.
The second is when successive and persistent failures, over a series of cases point clearly to the presence of systemic failings, as increasingly appears to be case in relation to the role of ‘expert’ witnesses in all courts and of professionals and ‘experts’ in family courts, in particular the undue and excessive weight seemingly being placed on such testimony in cases where it has not been adequately tested and the extent to which confidentiality hinders and, sometimes, prevents justice taking its right and proper course, particularly in situations where the competence of professionals is at issue.
By any reasonable measure I would contend that not only is a full and wide-ranging public inquiry merited by these cases but that such an inquiry should not be confined in its deliberations to an individual case but should consider in total the operation of the courts and in particular, the family courts, and the role of experts and professionals as witnesses across the broad spectrum of criminal and civil proceedings.
This may require not merely a full, and public, judicial inquiry but a full Royal Commission working to brief which, in taking in the role of family courts and their interactions with the state and the bureaucratic machinery of state, in particular, should give due regard to the right and proper nature of the separation of judicial and executive/legislative powers necessary to ensure that the interests of justice are given paramount importance and that the state and its various functionaries operate within a framework which supports rather than prevents accountability.
Of course, this is a pipe-dream and I make no apologies for identifying it as such.
In reality this separation of judicial and executive/legislative powers exists under near constant threat from stream after stream of flagrantly statist and managerialist legislation, not just from the present government but from preceding governments as well; and any inquiry or Royal Commission into such would be as near useless as makes no difference.
Because the same people, the same political and bureaucratic elite, that are carrying out the current systematic assault on our hard-won freedoms, civil liberties and on the constitutional separation of powers are also those who would define the terms of any such inquiry.
So what, if anything, can we do?
For the moment I’m not entirely sure either than anything can be done or, if it can, just how to go about it.
But I am giving this some thought, and so should we all.