By Gabriel Princewill-
BBC broadcaster Nicky Campbell, has taken the courtsover fifty years back to accuse a former private school teacher of being physically abusive towards him as a teenager. He described in deeply distressing terms an alleged assault by former teacher Colin Turner, telling Edinburgh Sheriff Court that he was subjected to what he remembered as a violent “frenzy” and that the experience was among the most traumatic of his childhood.
His account is plainly capable of causing concern, and it would be wrong to dismiss a serious allegation merely because it was not reported to police at the time.
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There are allegations that deserve to be heard, and there are victims who may carry memories of childhood experiences for the rest of their lives. But there is another principle that a justice system must protect just as carefully the obligation to establish what happened on the evidence available, rather than allowing the passage of time to turn uncertainty into apparent certainty.
That tension lies at the heart of the extraordinary proceedings now taking place in Edinburgh, where allegations concerning events said to have occurred at a private school in the 1970s are being examined decades after the pupils involved were children.
Children can be frightened of authority, parents may be reluctant to confront schools and institutions, and social attitudes towards corporal punishment were very different in Britain during the 1970s.
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But a separate and equally legitimate question must be asked: how does a court establish the reliability of evidence about an alleged event that occurred approximately fifty years ago?
That question is particularly important because Turner, now 92, and another former teacher, David Bourne, are both considered medically unfit to stand trial. Instead, a sheriff is conducting an examination of facts to determine whether the evidence establishes grounds for conviction.
The extraordinary nature of the proceedings means that the court is attempting to reconstruct events from a period when witnesses were young, records may be incomplete, memories have had decades to change, and some of the people who might once have been able to provide relevant evidence may no longer be available.
None of this means that an allegation should be rejected because it is old. Human memory does not operate according to a simple expiry date, and some experiences are remembered with remarkable emotional force.
Mr Campbell has told the court that his recollection remains vivid, despite the passage of time, and that he remembers the physical sensations and fear associated with the alleged incident. That is evidence which the court is entitled to consider seriously.
However, emotional vividness and historical accuracy are not necessarily identical things, and that distinction becomes increasingly important as the years pass. Memory is reconstructed rather than preserved like a video recording, while subsequent experiences, conversations, media coverage and the passage of time can influence how an individual understands an event.
The longer the interval between an alleged incident and the legal examination of it, the more difficult it becomes for a court to test precisely what was seen, heard and remembered by the people who were actually present.
The evidence reported from the hearing also illustrates that difficulty. Mr Campbell said that another pupil was beside him during the alleged incident, but that pupil apparently does not now remember what happened.
Mr Campbell suggested that the absence of memory could be explained by dissociative amnesia, while the defence is entitled to point to the fact that an apparently independent witness cannot presently corroborate the account. Neither proposition, by itself, establishes the truth or falsity of the allegation; it demonstrates instead the evidential problem confronting the court.
There is another aspect of the historical context that deserves careful examination. The modern reader may look at allegations concerning corporal punishment through contemporary standards and understandably find the descriptions disturbing, but schools in Britain during the 1970s operated within a very different disciplinary culture.
Physical punishment was not merely tolerated in many educational institutions; it was an accepted disciplinary practice within parts of the education system. That does not make excessive or unlawful violence acceptable, nor does the historical acceptance of corporal punishment provide a defence to an allegation of assault. It does, however, make the circumstances surrounding an alleged incident relevant.
What happened immediately before the alleged confrontation cannot be ascertained with any degree of certainty today. Why the teacher approach the pupil, and had occurred in the classroom or school immediately beforehand are all factors unlikely to be factually verifiable today in this particular case.
Whether the boundaries of disciplinary rules were habitually crosssed, or the alleged conduct that prompted the intervention are all factual matters expected to feature in a case like this.
Those questions are not an attempt to suggest that a child could somehow “earn” being violently assaulted. No act of misbehaviour would automatically justify disproportionate violence. Rather, they are basic questions of historical reconstruction.
If a court is being asked to determine precisely what happened five decades ago, it should seek the fullest possible account of the circumstances rather than considering an alleged physical encounter in isolation from what preceded it.
That is especially important when contemporary evidence is so limited. Mr Campbell has explained why he and his mother did not report the alleged incident to police at the time, describing such a step in the 1970s as the “nuclear” option. That explanation may be entirely understandable within the social environment of the period. Nevertheless, the absence of a contemporaneous complaint, medical record or independent report is an evidential fact, even if it is not evidence that an allegation is false.
The same principle applies in reverse. The fact that an allegation has survived in a person’s memory for decades does not automatically establish that every detail of the recollection is historically accurate. A fair court must be able to hold both propositions simultaneously: an old allegation can be genuine and profoundly important, while evidence surrounding it can nevertheless be weakened by the passage of time.
That is why the proceedings raise a difficult question for modern justice systems. There is an understandable desire to provide a forum for people who say they suffered abuse or mistreatment as children when they were unable, unwilling or culturally discouraged from speaking at the time.
Yet justice also depends upon testing evidence fairly, particularly where the accused is no longer medically capable of participating fully in the proceedings and where witnesses and memories have been separated from the alleged events by half a century.
The answer should not be to impose an arbitrary deadline after which allegations can never be investigated, nor should it be to assume that a compelling personal recollection is sufficient regardless of the evidential difficulties created by time. The real challenge is to ensure that historical allegations are investigated with exceptional care, with courts distinguishing between what can be established, what is plausible and what remains impossible to determine.
That is not scepticism towards complainants, but the very essence of a justice system that must protect both the right of a person to have a serious allegation heard and the right of an accused person not to be convicted on evidence that cannot withstand proper scrutiny.
After fifty years, the central question is not whether society should listen to allegations from the past. It should. The harder question is whether, after so much time has passed and so much potentially corroborating evidence has disappeared, the courts can still reconstruct the past with sufficient confidence to reach a safe conclusion.
That is a question which deserves to be asked openly, particularly in a case that places such extraordinary demands upon the reliability of human memory and the ability of a modern court to establish events that belong to another era.
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