Last Friday David Bryant, a 66 year old retired fireman with a distinguished record of brave public service was freed after spending 3 years in gaol for a crime that he did not commit. Yesterday his conviction was finally quashed.
His story is quite appalling, though not, I fear, in any way unique.
His accuser, unusually, has waived his right to anonymity so we know that he is a man called Danny Day. His accusation, which he first made in 2012, was that Mr Bryant and another fireman called Goodman (who is now dead) had raped him on some unspecified date between 1976 and 1978.
Mr Day explained how he came to make his accusation in an interview with the Sevenoaks Chronicle. He heard that Mr Bryant had become:
“Chief fire officer, a councillor and a freeman of the borough – a local celebrity practically. He had had a long and distinguished career and people looked up to him.
“The traumatic memories of the attack came flooding back, and [I] decided to ‘confront’ Bryant by posting a letter through his door.”
“All I wanted off him was an apology,” said Mr Day. “If he had said, ‘I’m sorry, I was misled’ that would have been fine.”
But when Mr Bryant complained to the police about the letter, Mr Day decided he now wanted more than an apology. He went to the police with his allegation.
His account was both vivid and shocking. There was plenty of extraneous detail which made his account believable. The two men, he said, had invited young Danny to the fire station to play darts on three separate days. On the third day they held him over the table and took it in turns to rape him, whilst simultaneously having sex with each other. He was screaming with pain. At the end of it all one of them gave him a £5 note.
Mr Bryant protested his innocence but the jury believed his accuser. He was convicted.
The judge, sentenced him to 6 years imprisonment. Mr Day was still not satisfied. He complained that the sentence was too short. Speaking to the Bournemouth Echo he said he was “very disappointed” with it.
With little obvious sense of irony he continued:
“I don’t think justice has yet been fully served in this case. It is as though because he has led an unblemished life since then that somehow makes up for it. But I do still want to encourage anybody who has experience this sort of thing to come forward. It can’t be left alone.
“I also want to thank the police and the Crown Prosecution Service who did a sterling job ….”
Explaining why he had waited nearly 40 years to report the offence, he said that he had been partially “inspired by the Jimmy Savile revelations.” The rape, he said, had deprived him of 35 years of his life, and was responsible for his two failed marriages, as the events were “always on my mind.”
The Attorney-General agreed with Mr Day that Mr Bryant’s sentence was unduly lenient. He appealed, and the Court of Appeal agreed too. It increased his sentence to eight and a half years, grimly observing that the trial judge had not given sufficient weight to the case’s “aggravating features.”
Mr Bryant was less successful. He tried to appeal his conviction on a point of law. He failed to persuade a single judge that his case was even arguable.
“He’s in the place he should be in. He keeps on trying but he’s been in court with me three times, and three times he’s lost.”
Having put Mr Bryant safely behind bars, Mr Day then turned his attention to obtaining compensation for the abuse that he claimed to have suffered. Mr Bryant by now was probably a ruined man, so just to be sure of getting some money he joined the Dorset County Council to his action, accusing the fire service of failing to protect him. He did not just want any old damages; he demanded “aggravated damages.” These are damages paid not just for compensation, but as a means of punishing a particularly egregious wrong. But the compensatory element was considerable nonetheless. Indeed, had it not been for the rape, Mr Day said, he would have been able to participate in the 1984 Olympics. He had a “better boxing record than Mohammed Ali,” and had given up his place in the British boxing team because of the trauma of the rape. Mr Day said he wanted “£50,000 to £100,000.”
What is more, Mr Day did not want to wait around for his money. He instructed solicitors to pursue his civil claim under a “no win no fee agreement.” Generally speaking, once somebody has been convicted of a criminal offence, success in the civil courts is something of a formality. After all, if a criminal case has been proved “beyond reasonable doubt” it is usually a simple matter to prove a civil claim to the lower “balance of probability” standard. So confident were his solicitors that he would win that they demanded interim damages of £30,000, together with legal costs of £30,000. By now a civil claim, Mr Bryant’s defence found itself in the hands of Rupert Butler, a commercial barrister more used to dealing with employment disputes and large personal injury claims.
By the skin of his teeth Mr Butler managed to persuade a judge not to award Danny Day his interim payment, or his solicitors their costs.
And Mr Day had made a mistake. His insatiable greed led to his downfall. Unlike his allegation of rape, where it was just his word against Mr Bryant’s, his claim of having been an Olympic standard boxer was demonstrably untrue. There was no evidence that he had ever so much as stepped foot in a boxing ring. Then he relied on the report of a psychiatrist to prove the extent of his suffering. But this led to his medical records – inexplicably perhaps overlooked or ignored by the police in the original investigation – being examined. It turned out that, to use the language of Mr Justice Singh:
“over a period from 2000 to 2010 the complainant in this case had to seek medical attention from his GP in relation to what can only be described as his being a chronic liar”.
When the case eventually made its way back to the Court of Appeal even the Prosecution conceded that the conviction could not possibly stand and Mr Bryant was finally set free.
The case raises any number of deeply disturbing issues, most of which I can’t begin to do justice to in this blog, and especially not late at night. But here are some of them:
First, had Mr Bryant not been believed in by his wife Lynn he would almost certainly still be rotting in Dartmoor Gaol. She eventually persuaded the commercial barristers, Rupert Butler (who originally smelt the rat when instructed to defend the claim for an interim payment), Peter Knox QC and Rachael Earle, all of 3 Hare Court, to work on the case for free. So shocked were they by what they found that they in turn persuaded a firm of hard-nosed investigators, ex-coppers more used to investigating company insolvencies, also to work on the case without payment. Most men convicted of such offences are not so lucky. As Mr Butler has told me, Mrs Bryant is an incredible lady.
Secondly, whilst Mr Bryant has been able to prove that his accuser was a fantasist at best, a gold digger at worst, other innocent people in his situation will not be so lucky. Without the cast-iron evidence of Mr Day’s absurd claims to have been close to being in the Olympic boxing team, and the evidence disclosed in his medical records he would no doubt still be able to portray himself as a “survivor” of appalling sexual abuse, and Mr Bryant would still be considered that most hated and despised of all people, the convicted and unrepentant paedophile.
Thirdly, the case raises deeply uncomfortable questions for the police and the Crown Prosecution Service. Looking at a complainant’s medical records ought to be absolutely fundamental in any investigation of a historic sex allegation. It is almost inconceivable that it was not done, yet, it seems the fact that Mr Day was being treated for a whole decade for what the Court of Appeal described as “chronic lying” did not feature in any way at the trial.
It would also be easy, and very possibly wrong, to blame his original defence team. Under rules introduced in the 1990s the defence are not entitled to look at all the “unused material” (which would probably include medical records) that the police collect in an investigation. Even if the police and prosecution had obtained the records, if they had insisted that they contained nothing to undermine the prosecution case it would have been very difficult for the defence to obtain the records to see for themselves. Ever more restrictive rules about what material the prosecution are required to disclose, coupled with ever fewer prosecutors to review the evidence that they do have, means that miscarriages of justice are much more likely to happen as a result of vital evidence of this sort simply being overlooked.
Mr Bryant’s case itself illustrates just some of the manifold reasons someone might have to lie: people lie for money, for revenge, for attention or because they simply can’t stop themselves. Mr Day’s problem with chronic lying seems to have come to the attention of his doctors, although as far as I know there is no known medical condition of “chronic lying” and sadly no very effective treatment for it. And of course “lying” in the sense of knowingly telling falsehoods is not the only problem: we also need to be sure that we can spot people who give accounts of crimes from decades ago that they believe to be true, but which in fact are not.
His case seems to have involved failures by some, at least, of those involved in an increasingly cash-starved and over-worked criminal justice system. Yet even if the police and CPS and defence all do their job to perfection, this case perfectly illustrates the fallacy at the heart of that system. It is this: that a jury of ordinary men and women, or for that matter a bench of magistrates or a single professional judge, can be relied upon, without extraneous evidence, to discern beyond reasonable doubt when someone is telling the truth.
Unfortunately, as we have learnt time and time again, neither jury nor professional judge can do anything of the sort. Liars sometimes look shifty and nervously play with their hair; but so do people telling the truth, especially when defending themselves in the witness box under extreme pressure. At other times liars are utterly believable. Think of the horrible case of poor, innocent (in both senses of the word) Timothy Evans, hanged for the murder of his wife and daughter largely on the testimony of Reginald Christie, who shortly afterwards turned out to be a serial killer and the real murderer of Mrs Evans and her daughter. Think of the succession of police officers who must have concealed the truth about confessions “elicited” from the innocent Birmingham six and Guildford four.
After each such high-profile outrage the legal establishment tends to do the same thing: inquiries are held, reports are produced and indeed sometimes great improvements are made to police procedures. Tape recorded interviews and written custody records, for example, introduced by the Police and Criminal Evidence Act 1984, have all but abolished the once common practice of “verballing,” whereby police officers would insist that suspects in custody said something incriminating. Judges and lawyers preen themselves for a few years that we have the “best legal system in the world” and politicians, nearly all of whom want to be considered tough on crime, lose interest until the next scandal emerges.
But while congratulating ourselves on advances of this sort, we are deluding ourselves if we think that we are now no longer in much danger of convicting the innocent.
Our experience of past errors, and our now much greater knowledge of experimental psychology ought to have taught us, but seemingly hasn’t, that without supporting evidence of some sort, it can simply be impossible for anyone safely to decide who is telling the truth when there is a clash of evidence. Of course the problem arises from time to time in non-historic cases too, but it is particularly acute in cases relating to the distant past because the chance of finding either corroboration or undermining evidence from decades earlier is very often non-existent.
Mr Bryant’s case bears an uncanny resemblance to that of Geoff Long who was falsely accused and then convicted of sexually abusing his own daughter. He too was cleared only after extraordinary detective work by his wife, and by evidence she found that demonstrated that the complainant may have been less than entirely honest.
It would be comforting to assume that Mr Bryant’s and Mr Long’s cases show that the system is working, and that innocent men are readily cleared by the system. But that would be complacent. The truth is just as likely to be that there are many more men – almost always men – wrongly convicted of historic offences, sometimes on the flimsiest of evidence.
The April 2016 edition of the (always excellent) magazine for prisoners, Inside Time, contained a powerful article under the headline: “We are surviving victims of a false accuser and wrongful conviction. Our family is in trauma.” It took the form of an open letter to the Prime Minister. Understandably the article gets some of the law a bit wrong, and of course it is perfectly possible that the writer is simply pretending to be innocent. But – for what it is worth – to me at least, the anger and raw despair seem genuine, and even if it is not then there are tens or hundreds of other families who seem to be telling similar stories: uncorroborated historic accusations, fantastic allegations, no proper attempts by the police to check or disprove those allegations; and then, once convicted, the almost complete impossibility of challenging a conviction unless you are lucky enough to somehow discover overwhelming new evidence (which is of course quite impossible when you are locked away in prison unless you are lucky enough to have a devoted wife willing and able to turn private detective for years on end), or some glaring legal error during the course of your trial.
Do read the article yourselves, but hear is a short extract:
“Prior to this horrific incident, we brought up our family to be kind, caring, human beings and to have morals and to trust in the police and justice system. We were so wrong. The first time me and my family ever needed the police to protect us, they completely destroyed us, without a second thought or care for the lifelong consequences. Ours was a historical case, allegedly 11 years ago. This crime did not happen, it was totally fabricated. All fantasy. There was no corroborative evidence, as it did not happen. The police and CPS did not conduct a fair and thorough investigation. I know this as I was present at all times and so was my stepson and the accuser’s sister. No one interviewed any one of us. All of us, key witnesses as we all know the truth. We were all present. The Merseyside Police were only interested in a conviction. It seems they are conviction chasers not truth chasers. When challenged about not interviewing key witnesses, they stated that they are guided by the CPS and the CPS did not require them to interview key witnesses. I would like to know why?
It seems the Appeal Courts require new evidence. Evidence that wasn’t available at the trial. Can you please advise me on how I do this? How do I get new evidence of a crime that did not happen 11 years ago? This is my task.”
The article, led to the Inside Time website being inundated with similar accounts from people in a similar position:
“Many say that men, often partners and fathers, were convicted with no evidence, except the word of one person; nearly always the cases relate to accusations of abuse many years, often decades, before and families despair when they are told they have to find evidence that proves innocence when there was no ‘evidence’ in the first place.
Disturbingly many of the accusers were known to police as serial accusers and many had a history of mental health problems. Neither of these, it would be claimed, mean the accuser is lying, but in the face of no supportive evidence their word is taken against that of a man, often in later years, with a history of a stable family and no previous convictions.”
This could almost be describing Mr Bryant’s case. It shows that it was not an isolated anomaly. Mr Bryant’s deeply disturbing experience ought to make us realise that the current vogue for prosecuting cases from the distant past, sometimes on the uncorroborated word of a single accuser, is so dangerous that it ought – save perhaps in vanishingly rare cases – not to happen at all.
Questioning whether there are now too many historic cases prosecuted will provoke a barrage of what might politely be called angry criticism. For even raising the issue you will be called a “paedo-apologist,” an “establishment stooge,” a sympathiser with child abusers and so on. So let me be as clear as I can: I do not support a statute of limitation. I readily accept that there are cases where there is sufficiently compelling evidence to justify prosecution after many years or even decades have elapsed. I can even accept, though only with great caution (especially in the age of social media) that the fact of multiple similar allegations from independent sources can sometimes, in itself, be compelling evidence. What I cannot accept is that criminal courts should be asked to decide cases from decades ago which depend on the word of one complainant against one defendant. Distressing though it may be for individuals who were sexually abused when they were children not to be believed, the danger that justice will not be done in such cases is simply too great.
In 20031 the then Lord Chief Justice, Lord Woolf, quashed a conviction largely on the grounds that there was no rational way of deciding who was telling the truth in a case which turned on which of two people was right about an incident that allegedly occurred about 30 years earlier:
At the heart of our criminal justice system is the principle that while it is important that justice is done to the prosecution and justice is done to the victim, in the final analysis the fact remains that it is even more important that an injustice is not done to a defendant. It is central to the way we administer justice in this country that although it may mean that some guilty people go unpunished, it is more important that the innocent are not wrongly convicted.
The case in question has since been so thoroughly distinguished in subsequent Court of Appeal judgments that it is largely pointless to refer to it in court any more. You may get a contemptuous sneer. At best you will get a knowing smile from the bench which says:
“Woolf was a lovely old buffer but times have moved on now. We like to let juries decide who’s telling the truth these days, never mind that they have no sensible way of doing so. It’s better they make an educated guess than that we let possibly guilty old men get away with it. If I am wrong the Court of Appeal will put me right”
Except that the judge on the bench will be wrong and the Court of Appeal will hardly ever put it right. Indeed, in Mr Bryant’s case the Court of Appeal put it even more wrong.
But Lord Woolf was not just a lovely old buffer. He was one of the brightest and best judges of the last three decades, and he was right. We should have listened to him. If we had done so Mr Bryant, and I suspect many other innocent people, would not have been wrongly imprisoned in the intervening years. Until we accept that there are some cases of this sort in which proof beyond reasonable doubt is simply impossible we will continue to sweep up the innocent along with the guilty. It is a disgrace, it is an embarrassment at the heart of our justice system, and it ought to stop.
1R v. B  2 Cr. App. R. 13