1. There is no doubt that from the time of the criminal trial (8-14 July 1994), or shortly afterwards, it was expressed as a limitation upon the Review Team that they would, at least, not make findings on matters dealt with before the criminal court. Exactly how or why that amendment came about is unclear, but there was in evidence a document dated 11 July 1994 bearing Mr Hassall’s name and containing the manuscript amendment that became the final version of Term 1A. Also, there is no doubt that some people within the Council were taking the view that the Team should not "point the finger" (i.e. at whoever was supposed to be responsible for the abuse). This appeared, for example, in an article in the Journal in August 1995 as a statement attributed to Jennifer Bernard: "…the inquiry’s brief isn’t to look at whether or not children were abused, as the council has already acknowledged that they probably were… We want to make it absolutely sure we have learned all the lessons from what happened". She had no recollection of this and thought the Journal might just have been "journalistic". Henry Warne, Bob Hassall and Jennifer Bernard appear from a memorandum of 7 February 1995 to have had a meeting or discussion in which they seem to have emphasised that the process was "not about reviewing forensic evidence nor determining whether abuse took place or not". This was consistent with the stance taken by Mr Hassall at a meeting of parents on 20 July 1994 where he said that the City Council could not re-run the trial or comment on the guilt or otherwise of the accused.
  2. There is also a memorandum of June 1995 from Mr Hassall addressed to Mr Warne and Ms Bernard to the effect that the Review Team would not be "reviewing the issue of whether abuse occurred, and if so who were the perpetrators". He added that the Review Team would accordingly only need limited overview or access to clinical and forensic notes.
  3. Moreover, as late as May 1997, Professor Barker was claiming in a letter to Mr Lillie’s solicitors that they would not be "re-visiting" the criminal trial. That was, of course, consistent with paragraph 1A of the Terms of Reference to the effect that "… the Review cannot make any finding on matters dealt with by the Criminal Court".
  4. It seems that at some stage (possibly as early as July 1994) Ms Bernard had come to a different conclusion. She told me on 1 March:
  5. "I ….came to the view that it would not be possible [to carry out the Review] without looking at what had actually happened to those children and how those children had expressed it. I had thought, in the beginning, it might be possible (particularly early on – before the criminal trial had not been proceeded with). But I realised that it was not going to be possible, because a core issue for the parents was simply going to have to be ignored".

    Yet later in her evidence she appeared to be saying that she only reached that state of mind ("where it became crystallised") at the time when the Review Team asked to see the video interviews (in 1996).

  6. Even more confusingly, Professor Barker was writing to Mr Warne on 19 September 1997 to the effect that the terms of reference "were framed deliberately widely … to allow us to investigate what happened and why". He seems to be saying there that this was a task acknowledged from the outset. If so, I find it difficult to reconcile with his stance in the earlier letter to Mr Lillie’s solicitor.
  7. If anyone had properly thought through the implications, it should have been quite obvious that the Team would not be in a position to pronounce in a public Report upon the guilt of Christopher Lillie or Dawn Reed of criminal offences, for a number of reasons:
  8. 1) The Claimants had been acquitted in respect of 11 specific offences relating to the six indictment children.

    2) There was no one legally qualified on the Team.

    3) They were sitting in private.

    4) There was no framework set up by the Review Team to operate within the well known "Salmon" principles.

    5) Neither Christopher Lillie nor Dawn Reed was notified of the "charges" which the Team had taken it upon themselves to investigate.

    6) Christopher Lillie and Dawn Reed were not represented or offered any legal assistance.

    7) They had no opportunity to cross-examine, challenge or test the evidence relied upon by the Review Team for their conclusions; they did not even know what the evidence was.

    8) The Review Team had no power to compel witnesses or documents.

    9) The Review Team adopted as a policy the "child protection approach", so that they would not challenge or probe "evidence" from witnesses. As Moira Luccock expressed it on 1 March, "You are not challenging the person. You are actually accepting that they certainly believe what they are telling you, and you have no reason to doubt that as the investigator".

    10) This policy even applied to police and social workers (not least because the police had warned them that they had no power to trespass on the area of police complaints, which was governed by statute, and asked them by a letter not to upset PC Helen Foster who had conducted some of the crucial interviews with children).

    11) The Review Team had decided to adopt what Ms Jones described as an "impressionistic" approach to the evidence, rather than analysing individual cases of alleged abuse.

  9. Even Ms Bernard appeared to recognise the problem in cross-examination:
  10. "I have to say this was not primarily set up as a process for considering the guilt or innocence of Christopher Lillie and Dawn Reed. I agree – were that to be the prime purpose, you probably would not start here".

  11. The matter had, however, clearly not been thought through. Miss Page asked whether anyone within the City Council ever addressed the rights of Mr Lillie and Miss Reed at all in setting up the inquiry. This seemed to come as a novel suggestion to Ms Bernard:
  12. "… there was an intention that they should be treated as fairly as other witnesses in relation to the matters set out. But, if I may add, it was not a review which was set up primarily to determine whether or not Mr Lillie and Miss Reed were guilty of these offences. It was a review set up to deal with complaints and concerns raised by parents, which included matters at the nursery…

    The question of their culpability, therefore, I suppose would either have to be assumed (which the City Council had done, on the basis of the disciplinary proceedings it had undertaken) – so I suppose, thinking about your question, the fact that the Review Team had almost in effect re-considered it ….

    What I am struggling with, I think, is that … the City Council had started from the perspective that they had dismissed Christopher Lillie and Dawn Reed for gross misconduct, associated with the abuse, and it was on that basis that the Review Team had been set up. So, in a sense, what the Review Team were doing, by considering again the evidential matters, [was] almost having another look at it. So I suppose, in a sense – I had not thought about it in this context before you asked the question – they gave a fresh opportunity to Mr Lillie and Miss Reed’s case to be considered. I had not thought about it until you put the question to me".

  13. She added that she knew that they had already had the opportunity to be represented for the disciplinary process, including the appellate procedure, and to challenge their dismissal through the industrial tribunal route. She did not seem to have any grip of the issue. I was not clear whether she was saying that culpability was to be "assumed" or not. It would perhaps, if anything, make more sense than the alternative scenario she appeared to be putting forward; namely, that even though Mr Lillie and Miss Reed had been acquitted of 11 counts at Newcastle Crown Court the Review Team were "almost having another look at it". Surely everyone involved (parents, charge payers, employees and ex-employees) was entitled, at the very least, to have the purposes and methods of the Review Team carefully thought about and defined. Mr Warne should have got a grip. He had long enough to do so and, if he did not have the necessary experience, he could have taken advice from counsel.
  14. Nevertheless, there came a time when minds generally were made up (e.g. Henry Warne’s mind for one), so that it became the received wisdom that the Review Team not only could but should investigate the allegations of abuse. That was certainly the case of the Review Team themselves. The explanation given was essentially twofold. First, unless they did so, they would not be able to address or rule upon the parental complaints – some of which directly alleged abuse. Secondly, they could not find out "what went wrong", or make recommendations for the future, unless they were in a position to make findings that abuse had happened.
  15. Despite this major shift in the perception of the Review Team’s task, no one thought to revise the terms of reference. In particular, no one thought to abrogate provision 1A of the terms of reference. It seemed just to wither on the vine. (This may be because Henry Warne appeared to think that it had no application anyway: "I therefore took the view that it was open to them to investigate questions, on the question of whether abuse had occurred and, if so, by whom".) Nor did anyone point out that, if they were going to meddle to all intents and purposes in the area of criminal guilt, they would need a wholly different modus operandi so as to remove some of the constraints identified above. Mr Warne seemed to suggest in evidence that what was required was "a social services type judgment on the matter" which was "not done according to the rules of criminal law".
  16. In this context, Ms Jones gave some evidence which may be of significance. She said on 15 February that, before she even signed the contract, she had a conversation with Mr Warne in October 1995:
  17. "I asked him … how we would actually deal with the issue of responding to individual complaints and also producing a public report when those complaints were likely to be about people who had been dismissed but already been declared not guilty in court. So he said that we would need to keep coming back to that and see how we progressed. I think he used the words that we were in "uncharted waters".

  18. Ms Jones had clearly raised a fundamentally important point with Mr Warne. An experienced lawyer should have spotted the difficulty in any event, but even if he was unable to see the wood for the trees the fact remains that the problem was spelt out for him by Ms Jones with stark simplicity. To give the answer he apparently gave her (in effect to see how she got on in "uncharted waters") was utterly hopeless. Much time and money could have been saved (to say nothing of injustice) if the nettle had been grasped at that time.
  19. The Council should clearly have confined the Review Team to addressing any defects in their own systems and procedures or those of the Day Nursery. They should have strictly enforced the provision in the original terms of reference, to the effect that they steer clear of re-opening the issues before the Crown Court and certainly not attempt to address completely new allegations of assault and rape. In so far as parents’ individual complaints needed to be addressed, that exercise should have been kept quite separate from conclusions that were to be set out in a public report.
  20. Henry Warne made reference to an earlier inquiry which had taken place into a residential home called Meadowdale. He seemed to think it provided an analogy or precedent for the Shieldfield review. It is fair to say that he did not have a clear recollection of the circumstances, but a crucial difference was that in the Meadowdale report the perpetrators of the abuse were not named in the Report for public consumption. Mr Warne considered that it was a matter for the Review Team’s discretion as to whether they publicly condemned Christopher Lillie and Dawn Reed. The only "constraints" would be those of defamation.
  21. As Ms Jones seems to have perceived from the start, they were as a team wholly unsuited and unequipped to make findings of criminal guilt; and yet the City Council launched them on these "uncharted waters" in the most irresponsible manner. The Council has only itself to blame for the mess in which it now finds itself.
  22. Instead of identifying the dangers as the months went past, and restricting the terms of reference, things were allowed to deteriorate.
  23. There was an amendment in September 1996 to enable the Review Team to address matters falling short of actual parental complaints. They were to be able to consider and report on "relevant concerns" raised not only by parents but also by witnesses. This was clearly intended to make a difference and, in particular, to widen the scope of the inquiry, but it introduces further uncertainty. First, it extends the inquiry into matters that concerned parents but which they had not chosen to complain about. Secondly, it enabled even the "concerns" of witnesses to be considered. But, at the same time, the concerns had to be "relevant" to the inquiry. That must mean either "relevant" to the existing inquiry, as defined by the pre-existing terms of reference (including 1A), or it is simply unclear.
  24. The difficulties about the Review Team making findings tantamount to criminal guilt, and in particular with a view to pronouncing their conclusions publicly, should have been obvious from Mr Peter Hunt’s Report into the Jason Dabbs affair, since the Team had read it and indeed had consulted Mr Hunt for his advice. He pointed out at para 2.3.5 that he was simply not in a position to make findings as to instances of abuse beyond those admitted by Jason Dabbs through his pleas of guilty. The two main reasons he explains; namely, that the video interviews with child complainants were tainted by leading questions, and that it was not thought appropriate to test or challenge parental evidence. Both these considerations were at least as relevant to the case of Shieldfield. Anyone with an elementary sense of fairness who thought about the matter, and certainly any of the City Council’s legal advisers who were asked to consider the terms of reference, should have foreseen the hopelessness of the task.
  25. It is all very well to say that the Review Team’s approach was child-centred, or based upon the "child protection" model, but the fact is that those methods are not usually adopted when the intention is to produce a public pronouncement tantamount to findings that offences of indecent assault or rape have been committed. Short of actually depriving them of their liberty, the Review Team’s pronouncements had a very similar effect on the Claimants’ lives and reputations to that which would have been brought about by criminal convictions – but without being preceded by any of the usual safeguards of the criminal process.
  26. Even if it be said that some of the parental complaints could not be addressed without making findings of assault, or other forms of abuse, it does not follow that such findings had to be made public. The responsibility for dealing with complaints is, in any event, clearly that of the local authority in accordance with the provisions of the Children Act 1989. If the Council wished to contract out the investigative responsibility, it remained its own duty to respond to parents, as Mr Dervin ultimately did. There is no obvious public policy requirement for the Review Team (having no statutory status whatever) to be accorded privilege for making public their views on whether abuse had occurred.
  27. In this context, Miss Page referred to a Home Office circular providing guidance for police officers on the limited circumstances in which it might be appropriate to reveal the identities or whereabouts of convicted paedophiles. Given those constraints, she argues, it could hardly be appropriate for (still less the duty of) the City Council (or, for that matter, the Review Team) to broadcast these very serious allegations of multiple abuse against Christopher Lillie and Dawn Reed.
  28. I need to bear in mind, however, that it was Lord Diplock’s clear view in Horrocks v. Lowe [1975] A.C. 135 that the inclusion of extraneous or irrelevant matter in a publication that was prima facie the subject of privilege would go to the issue of malice. It is important, therefore, to focus on what the Review Team’s individual states of mind were on the issue of the terms of reference. If they genuinely believed that everything they did was within the terms of reference, however misguidedly, then the inclusion of the extraneous findings would not in itself show malice.
  29. In my judgment they most certainly exceeded their originally expressed terms of reference, which cannot reasonably be construed, in the context of an obligation to make their findings public, as entitling them to make public pronouncements of guilt against individual citizens, in effect, of serious criminal offences (especially, of course, offences in respect of which they had been acquitted in the Crown Court). It would be so fundamentally in conflict with human rights that it would be an unreasonable interpretation. Nonetheless, I believe that the Review Team thought (almost incredibly) that they had the right to do this. This is to a large extent the fault of the City Council in not properly addressing the terms of reference in the first place or, at the very least, not rendering them clear and providing strict limits to publication once it became apparent that they were expected to look into individual claims of abuse. It is also partly explicable on the basis of the Review Team’s naiveté and lack of judgment. Miss Page submits that I must stick to the objective test and rule that, because the findings of sexual abuse were outside the written Terms of Reference on any reasonable construction, the defence of qualified privilege cannot avail them:
  30. "Not every infringement or excess of terms of reference would operate to deprive the occasion of publication of the privilege it would otherwise have attracted. However, this was an infringement of a nature and on a scale that fundamentally affected the character of the Report. The Review Team’s findings of sexual abuse of children by the Claimants were not incidental or ancillary. The findings completely dominated the Report".

  31. I naturally understand the force of these submissions, but the Team were given to believe by the City Council that the Terms of Reference had in fact been expanded in accordance with Mr Henry Warne’s superficial and ill judged view "…that it was open to them to investigate questions, on the question of whether abuse had occurred and, if so, by whom". He was the lawyer. The Review Team were lay persons. Even though this had the consequence that they departed from the restrictions of the original terms of reference in a fundamental way, it seems to me that I cannot conclude that they stepped outside the protection of qualified privilege. They were being required to make findings (albeit inconsistently with paragraph 1A) by those who were instructing and paying them to carry out the Review. The terms had, in effect, been changed.
  32. An argument raised at one stage was that the restriction imposed by paragraph 1A was not intended to prevent findings or comments upon the Claimants’ "guilt" (despite what Mr Hassall, for example, was saying in July 1994 and June 1995). The suggestion was made that its purpose was the very narrow one of stopping any challenge to the Judge’s ruling under the Criminal Justice Act 1988. This seems to me to be quite untenable. It could not conceivably have been within the remit of this Team to re-open issues of admissibility already dealt with by a court. There would be no occasion for them to do so. The matter had been finally disposed of; nor did they have any locus or qualifications to act in a quasi-appellate capacity. It cannot, therefore, have been in anyone’s contemplation that they would do so when the restriction was drafted in or about July 1994 and put in the forefront of the Terms of Reference. The only reasonable interpretation is that apparently adopted by Mr Hassall at the parents’ meeting in July 1994 and by him, together with Mr Warne and Ms Bernard, on 7 February 1995.
  33. The Team clearly felt frustrated by even the very loose constraints imposed upon them by the Council, but went along with them for reasons explained at page 19 of the Report:
  34. "… for legal reasons we were advised that the processes, determined by the City Council prior to our appointment, had to be followed, as they were a guarantee of both natural justice for all those involved, and the independence of the Review Team".

  35. As will shortly emerge, any claim to have accorded Christopher Lillie or Dawn Reed "natural justice" in the course of this inquiry has no contact with reality. I cannot believe that the Review Team knew what is meant by the principles of natural justice and they badly needed guidance. To have let them loose "on the question of whether abuse had occurred and, if so, by whom" was to invite disaster on a massive scale.
  36. One of the arguments raised in defence of the Terms of Reference was that they had been "run past" the Social Services Inspectorate without objection. That may be a relevant factor on the good faith of those involved but it does not in my judgment affect the substance of the matter.
  37. In my ruling of 28 February 2002, I characterised this situation as a "shambles", and it still seems to me to be an appropriate description. The Council had only themselves to blame for this mess, since on Mr Scott’s own evidence they let the matter proceed on the basis of instructions to the Review Team that were "extremely muddled and confusing". Since their activities were to have such a profound impact on the lives of Mr Lillie and Miss Reed, they at least might legitimately feel cheated over this undisciplined and casual attitude. So too might the general public, and those funding the City Council in particular. It is they who have had to bear the cost of this dire episode.
  38. 12) The evidence of the Review Team Defendants

  39. Professor Barker went into the witness box on 6 February and was giving evidence, with various interruptions, until 15 February. He also returned briefly on 17 May. He was cross-examined at length, primarily on the issues of the qualified privilege defence pleaded by the Review Team and of his own alleged malice.
  40. I have no wish to be disparaging about the witness personally or professionally. It may be that he has achieved a great deal in his chosen field. Nevertheless, it is my duty to express my conclusions about his important evidence in this case. As a witness, he did not impress. His evidence was rambling and defensive. One reason why he remained in the witness box for so long was that he seemed incapable of giving a straight answer to a straight question. It was difficult to follow at the time, and little better on the transcript. Much of it was waffle. More significantly, however, I am afraid that there were certain respects in which I found it impossible to believe what he was saying.
  41. It is necessary to preface my findings by some general observations. First, the principal focus of Miss Page’s patient cross-examination was upon the Review Team’s methodology and the states of mind of its various members during the preparation of the Report. She sought to expose their reasoning processes as being deeply flawed, and to demonstrate that the explanation lay not in incompetence but in bad faith.
  42. Right at the outset of the case I recognised that such was the enormous amount of detail that it would be impossible to "put" everything to the central witnesses. That would not be consistent with efficiency or economy. It is especially difficult with witnesses who fence with counsel or avoid answering questions. I made it clear too that I would always be receptive to a witness being recalled, if necessary, or to dealing with points in writing. This is not a case which, therefore, lends itself to a just resolution of issues on a nice determination of whether an aspect of the case was "put" or not.
  43. Two facts emerged with clarity. Professor Barker and his colleagues believed that the Claimants were guilty of child abuse on a very extensive scale, as summarised in their Report, at the time it was published. I am equally satisfied that, despite their protestations, some of them had formed that view at the outset of their inquiry and never wavered. This presents an interesting scenario in the context of the law’s concept of express malice. On one superficial view, I suppose one might think that the "honest belief" in the truth of what they alleged would be enough to get them home on malice, however defective their reasoning process. I am not sure that this is an analysis which does justice to Lord Diplock’s exposition in Horrocks v. Lowe [1975] A.C. 135. I do not believe that it can be the law that it will always be an answer to claim zealotry, or that one was only doing one’s bigoted best. (That is not, of course, how these Defendants put their case in any event.) In the last analysis, it must depend on whether one has published the words complained of in good faith.
  44. A police officer who, believing an accused person to be guilty, bends the rules in order to secure a conviction would be acting in bad faith. The question here is not dissimilar. If the Review Team’s approach to the evidence was to ignore or distort such parts of it as did not fit in with their pre-conceived notions, that too would suggest bad faith. On such a hypothesis, they would not necessarily be seeking to mislead their readers as to the accuracy of their conclusions, but they might well be intending to deceive them into accepting that those conclusions were based on a solid evidential foundation, reflected in the 300 and more pages of the Report.
  45. The Report has been described by defence counsel as being authoritative and as having a high status; they suggest it is a document which it was in the public interest to communicate widely. The Review Team were undoubtedly holding it out as such also. If, however, it was on close examination as flawed as Miss Page and others have contended, that might be due to wilful suppression and misrepresentation, or it might be through (say) bumbling incompetence – or a bit of both. Yet that is an important distinction in the context of the plea of malice.
  46. It emerged early on in Professor Barker’s testimony that he has a fundamentally different attitude towards the weighing and analysis of evidence from that of a lawyer. At several points, it became apparent that he is rather dismissive of what he called "a forensic approach". He resorted from time to time to impressionistic mode, referring to his "professional judgment" and to discussions in academic and other published work. His colleagues were similarly minded. Indeed, Ms Jones voluntarily espoused the word "impressionistic". Yet the issue of whether any given individual has raped or assaulted a small child, or for that matter upwards of 60 small children, is not a matter of impression, theory, opinion or speculation. It should be a question of fact.
  47. The Professor is entitled to be disparaging about the criminal justice system, or "forensic analysis", or the testing of evidence in cross-examination. Many people are. Such criticism from the sidelines may or may not be made on an informed basis. But surely when such a critic steps forward to take on the responsibility of condemning a fellow citizen as being guilty of such wicked behaviour, a little humility may be thought appropriate. One would certainly expect a willingness to address the strength or weakness of the factual evidence relevant to the individual concerned.
  48. Such decisions must be taken in the realm of hard fact, and speculation has no place. Juries are told not to speculate and to concentrate on the evidence. That is not because of some quaint old tradition, or because lawyers are out of touch; it is the nature of deductive reasoning. In the weighing of criminal guilt, what is required is dispassionate analysis and ego must be suppressed. Yet that is not Professor Barker’s style.
  49. In response to some of Miss Page’s questions, he was keen to show that he could see through the game of lawyers and referred to her adversarial approach and to her "close forensic analysis". But his having "seen through" the nature of cross-examination did not mean that it was inappropriate, or that Miss Page should slink away. What it demonstrated was that Professor Barker knew perfectly well that careful analysis of the evidence was going to show up flaws in his Report. This was the reason why he was resistant to it. He realised that their approach had been impressionistic and speculative. He thus had to take the stance that careful analysis would be as inapplicable as it might be in assessing (say) certain propositions of religious faith. What that reveals, however, is that Professor Barker had eschewed rational analysis in the approach to his task from the outset, thinking it no doubt too pedestrian. Accordingly, any flaws demonstrated by such an analysis of his Team’s approach might prove not to be the result of the incompetent attempts of an inexperienced team, doing its best to grapple with unfamiliar rigour. It might be explicable rather by their conscious rejection of the very methodology that was required for the task they undertook. If that is the case, it is by no means obvious where the notion of malice fits into that set of circumstances. Much might depend on how frank they were, or were not, in the Report and the claims made for their methodology.
  50. Two rather striking examples of Professor Barker’s shaky grip on the concept of evidence were thrown up early in his cross-examination. They illustrate the problem. It became quite clear that he regarded the findings in the Claimants’ respective disciplinary proceedings as being in themselves some evidence (albeit naturally not conclusive) of actual guilt. He was asked why, when some of the children had identified members of the Nursery staff other than Mr Lillie and Miss Reed as present on occasions of abuse, the Team had discounted the child’s evidence but not in relation to the two primary suspects. Part of the explanation he gave was that they, unlike the two Claimants, had not been the subject of disciplinary proceedings. That is a startling proposition. It was surely the Review Team who were supposed to be investigating the factual position rather than assuming from the outset that the disciplinary inquiry had got it right 18 months before.
  51. As on other occasions, it was very difficult to find out what Professor Barker was saying about the influence of the disciplinary findings on the Review Team. He said (on 7 February) that "the fact that they had been dismissed did play a part in our decisions". He was asked to confirm whether it influenced them in their findings that they were guilty. To this he responded, with his customary obscurity:
  52. "I hope it did not predetermine me to make any decision in relation to them, but I would be clear that I was aware of it."

    Miss Page had to battle on and a little later there was the following exchange:

    "Miss Page: I understood you earlier to say that you did take into account the fact that they had been dismissed. Are you now saying you did not take into account the fact that they had been dismissed for sexually abusing children?

    Professor Barker: If I have misled you, I do apologise. I was aware at the start that they had been dismissed. We then found, when we interviewed people, the reasons for which they had been dismissed. We interviewed people who had been involved in the disciplinary, and looked at the documents in relation to the disciplinary. When it came to us making our findings at the end of the process in which we were involved, those processes then played a part. If we had found, in the course of that, that it was our judgment that they had been inappropriately dismissed, on the wrong grounds, we would have said so".

  53. When one comes up for air, the position remains the same; in other words, the fact that they had been dismissed "played a part" in the Review Team’s own conclusions. In his witness statement (para. 306), Professor Barker had pitched it even higher, and described "the information presented to the disciplinary hearings and the results of the disciplinary hearings" as being "one of the main influences in our reaching the conclusions set out in the report" (emphasis added).
  54. Even more disconcerting was the second example. The Professor was asked how he had come to the conclusion (witness statement at para. 202) that Mr Lillie was sexually motivated in his behaviour, whereas Miss Reed, according to him, had been drawn into the production of child pornography for financial reasons. This he described on 8 February as a "tentative conclusion based upon my professional judgment". He said he derived it from the impression that she had been in financial difficulties. If it were the case that Miss Reed had been finding it difficult to make ends meet, it may be that she would not be the only nursery nurse in the country in that predicament. It would be hard indeed if this were to bring them all under suspicion of generating child pornography. It is, of course, an obvious non sequitur. As it happens, however, when they were exploring Miss Reed’s financial position, the Review Team were actually told by Detective Inspector Findlay, at an interview in January 1997, that the police were not aware of any financial problems on her part. This underlines the worrying proposition that Professor Barker was simply speculating.
  55. Instead of recognising this, however, when it was pointed out to him by Miss Page, Professor Barker turned through 180 degrees and responded immediately (as he thought tellingly) that the reason why Miss Reed was not in financial difficulty was that she had probably benefited from the proceeds of child pornography. This shows a cast of mind, closed to all reason, whereby whatever piece of evidence may be produced, however inconsistent with the last, it is perceived as supporting the basic unchallengeable datum that abuse occurred. It is not an unfamiliar cast of mind, but it is one that is not normally associated with university professors.
  56. It is necessary to bear in mind exactly what the Team’s stark findings and conclusions were in this context (page 282):
  57. "We find that there is evidence which suggests that the children were sometimes filmed when they were being abused outside the nursery and we have drawn the conclusion that Chris Lillie and Dawn Reed were procuring the children of Shieldfield nursery for pornographic purposes as well as their own motivations.

    In the absence of being able to interview them we have been unable to find either Chris Lillie or Dawn Reed’s personal motivations for their abusive behaviours. However, the indications from the children were that Chris Lillie took every opportunity to abuse them, and Dawn Reed was a party to abuse in particular situations, including during filming".

  58. The readers of the Report would not imagine that the Review Team was simply speculating on this serious allegation of involvement in commercial pornography. The reasonable reader would feel entitled to presume that such a specific conclusion was based on something solid. In fact, there was no evidence thrown up by police inquiries either of a paedophile ring or of child pornography. Surely the readers were entitled to know that.
  59. Miss Page also queried the attribution of financial motive by reference to some of the allegations against Miss Reed which could not conceivably have been so motivated; for example, sticking cutlery up the bottoms and vaginas of small children when no cameras were present. To this there was no cogent response.
  60. On similar lines was Miss Page’s invitation to Professor Barker to identify any child in respect of whom his or her allegations had been discounted as unreliable. Professor Barker could not think of one and said he would go away and see if he could come up with such an example. He later cited one, and one only. This was Child 50. The complaint that was rejected was in relation to "an unusual bruise on his leg" which Professor Barker concluded simply could not be linked to Christopher Lillie. There is certainly no indication for any reader of the Report that any of these very grave allegations against Mr Lillie or Miss Reed was actually rejected or found to be unsustainable. It looks as though every allegation mentioned in the Report, however outlandish, has been upheld. Yet the reader will look in vain for the reasons underlying such conclusions.
  61. It is necessary now to turn to the aspects of his evidence I found myself simply disbelieving. Miss Page was putting the proposition to Professor Barker that, far from keeping an open mind, he had always assumed guilt. She referred him to various contemporaneous documents.
  62. Attention was drawn to a Progress Report from the Review Team dated February 1996 (when they were no more than a few months into their three year inquiry). I was told that this document was the work of Professor Barker and Mr Wardell. It referred to multiple abuse having occurred (without the slightest qualification). Professor Barker said airily that it was just "clumsy wording" and did not represent their actual view at that time. I do not believe him. (Some weeks later, on 1 March, Miss Moira Luccock of the Independent Persons Scheme rather gave the game away when she said that it had already become "clear" that they were "dealing with a multiple abuse situation" before the Review Team began its inquiry.)
  63. At about the same time, in February 1996, there was an interview with Ms Bernard who had taken over as Director of Social Services. Reference was again made to Mr Lillie and Miss Reed as "the abusers". Professor Barker said that, with the benefit of hindsight, he would wish that the word "alleged" had been inserted but it did not mean that their minds were made up at that stage. Again, I do not believe him.
  64. Even earlier in the process, in November 1995, there was an interview with the mother of Child 9 (no longer relied upon as part of the case of justification). Reference is made in that note again to "the abusers". This was a summary of the interview – not in direct speech. Professor Barker said that the description "abuser" must have been quoted from the mother. It did not represent his perception at that stage. Again, I do not believe him. It is part of a consistent pattern. In re-examination, Mr Bishop drew attention to other documents, more carefully drafted, where the Claimants were not so labelled. But this does not in my view serve in any way to refute the point. In the nature of things, more is revealed when the mask slips than when it is kept in position.
  65. Another revealing episode was the way in which correspondence was handled between the Review Team and Mr Lillie’s advisers, at the stage when they were inviting him to attend for interview. Miss Page put to Professor Barker that Mr Lillie and Miss Reed were simply "second class citizens" compared to other witnesses. For example, Joyce Eyeington gave evidence about the "47 complaints" alleged by the Review Team to have been made about her. In fact, a large number were quite wrongly directed at her, but what matters for present purposes is that she had received advance written notification of the supposed complaints against her, so that she would have an opportunity of dealing with them in interview if she wished. Nothing comparable was sent to Mr Lillie or Miss Reed.
  66. When, on 18 April 1997, Mr Lillie’s solicitor wrote to ask the nature of the complaints he would have to answer, he received a remarkable letter dated 7 May by way of response. I shall come to it very shortly but it is necessary to bear in mind, in this context, that the Review Team described their procedures on pages 18-21 of the Report, where the following claim was made:
  67. "As well as enquiring into what had happened, we were also interested to discover evidence – which included opinion – about how and why events had happened. For the most part, we were thus seeking to adopt an inquisitorial, rather than adversarial approach, as such we have adopted an approach similar to that outlined subsequently by Sir Ronald Waterhouse in relation to the North Wales Tribunal:

    ‘We are not a jury. Our duty is to enquire and our procedure will be inquisitorial rather than adversarial – subject to the important qualification that any person against whom criticism or allegations are made will have a full opportunity to answer’"

  68. The claim was also made that, in the case of witnesses who were the subject of substantial complaints, the Review Team sent "Salmon letters".
  69. It was pointed out (also on page 21 of the Report) that Mr Lillie and Miss Reed had refused to be interviewed. Since they are recorded as having had the greatest number of complaints against them, by far, the clear implication is that they so refused after receiving a "Salmon letter". Mr Henry Warne told me (on 28 February) that he presumed that specific allegations had been put to them in their letters of invitation. Most people would make that assumption.
  70. Miss Page gave Professor Barker an opportunity to deal with this allegation in the following terms:
  71. "Question: You also lied did you not, in those passages of the Report at pages 20-23 which we looked at this morning in which you set out all the procedures of fairness to witnesses which did not apply, did they, to Chris and Dawn?

    Answer: If you are saying there is linguistic ambiguities, if you are saying we were economical with the truth, if you are saying that we lied, you are entitled to say those, but it is my belief that when I read the final Report that we had written and when I read the complaints letters, it is my belief that I honestly believed what we had written.

    Question: You did not care what they had to say, did you, because you were going to label them as abusers come what may; is that not the position?

    Answer: I feel that in some ways without sounding patronising there would have been – we had to find out what we had to find out, not what we were determined to find out. We had to try and find out what had probably happened and draw conclusions. In terms of my career as a social worker and an academic who is also a social worker, as someone who trained to be a teacher, as someone who has done research into child care, it saddened me that in the case of Christopher Lillie it appeared to be the case in relation to information that we had that a child, an adolescent who had spent time in care had ended up in a position where he had abused children, because I do believe that children and young people who have been through the care system in Britain have to cope with disadvantages subsequent to being in care and sometimes have to cope with quite difficult circumstances when they are in care, and I find it very unappealing to believe that the care system can damage children, but I know that it does. So actually my personal inclination is to feel sympathy without I hope being patronising in relation to people who have been in care. So had I been biased I would have been inclined to have wanted to find information that minimised or reduced the responsibility of your client in that respect".

  72. This answer, of course, took matters no further. Earlier Miss Page had tried in vain to obtain an answer as to why Mr Lillie and Miss Reed were treated differently by the Review Team from other witnesses. This had led to a rhapsody about legal advice, which was nothing to the point:
  73. "Question: At this stage in the process Christopher Lillie and Dawn Reed were, as far as you were concerned, second class citizens in terms of the fairness procedures that you thought you owed to witnesses, were they not?

    Answer: When we were appointed the very first meeting I had had with Henry Warne and Bob Hassell, I think in the minutes of that meeting the agenda shows that one of the first items that was on that agenda was the need for us to have independent legal advice. It took some time for us to have what we considered independent legal advice. That is no disrespect to the lawyers who were employed in the Newcastle Law, which at that point was the arms length legal service of Newcastle City Council. They had gone for, I think, what was called at that time a purchaser–provider split. So that the initial discussions we had with Mr Warne was that Newcastle City Council understood and appreciated that we wanted to have independent legal advice.

    Question: Why do you need to resort to discussions about independent legal advice in order to answer my question, Professor Barker?

    Answer: Because if we were desirous of having independent legal advice to pursue our processes, in relation to key items of correspondence, it is appropriate for you to know that we took appropriate advice.

    Question: You were conducting this inquiry; you had a duty of honesty; you had a duty of fairness. You accept that, do you not, Professor Barker?

    Answer: I accept that we had a duty of fairness to do what we had to do and also to take account of appropriate advice. Had we not, it is my belief taken account of appropriate advice, I could have been criticised and the Review Team could have been criticised for saying ‘well, it is clear, is it not, that you did not take advice?’

    Question: Do you understand the concept of fairness? Do you understand the concept which surely is steeped in you as a citizen of this country that before somebody is condemned they should have a full opportunity to defend themselves and to know what it is they are defending themselves against. You do not need legal advice to know that, do you, Professor Barker?

    Answer: If you carry on with these letters….

    Question: Just answer the question. Can we have a question about you and what you understood?

    Answer: That is rather like saying ‘who is going to win the race?’ when you are half way through it.

    Question: Do you have an understanding of the concept of fairness, Professor Barker, Yes or No?

    Answer: It is my belief that the documentation that is in front of me in relation to the correspondence which Christopher Lillie and Dawn Reed, which we wrote based upon appropriate advice, was appropriate and was fair".

  74. I have set out these passages to illustrate how one had to fight through the verbiage in order to understand what Professor Barker’s case was.
  75. Against that background, I set out the terms of the letter of 7 May 1997:
  76. "Thank you for your letter dated 18 April.

    I am prepared to disclose in advance the complaints made against your client so that he had adequate notice of the position and is given a full and fair hearing about matters upon which I will be required to report.

    I enclose of [sic] copy of the Independent Complaints Review Team’s Terms of Reference which will give you an idea of the range of issues we shall have to cover and you will see from the questions below those which are relevant.

    The main complaints from parents are that your client, together with Dawn Reed physically and sexually abused children, whilst the children were attending Shieldfield Nursery; and that the children were taken out of the nursery without permission or oversight.

    We would also like to ask questions about how your client was selected and recruited to the Social Services Department, how he was managed and supervised and how he came to work with Dawn Reed.

    It would be interesting to hear his views on his earlier contact with the Department and about his prior employment experiences.

    I am anxious that in no way is the criminal trial re-visited. Our approach is inquisitional rather than adversarial with the hearing held in private. Interviewees can be accompanied by a friend or legal adviser.

    The Review Team will be producing a public report after it has considered the evidence presented to it. I hope that your client will feel able, with your help, to meet with the Team and help further our consideration of matters relating to our Terms of Reference.

    (signed)

    DR RICHARD W BARKER

    TEAM LEADER"

  77. The sentence suggesting that the criminal trial would in no way be re-visited is, to put it politely, disingenuous. Not only had the Review Team made up their minds about Mr Lillie by this stage, but it must have been obvious to them that they were addressing allegations made in relation to each and every one of the six children named in the indictment in the 1994 criminal proceedings. They were quite likely to find him guilty of abuse in relation to all of them, as well as many other children besides, and of rape in relation to Child 14. (Professor Barker and Mr Wardell had viewed the video recordings some nine months previously.)
  78. It is necessary to assess this letter against the background that Mr Henry Warne, and the members of the Review Team themselves, decided at some point that they were going to have to "re-visit" the criminal trial as part of their task ("whether abuse had occurred and, if so, by whom"). It appears that this had been recognised well before May 1997. Jennifer Bernard thought it no later than the time when the video interviews were obtained (i.e. the previous Summer).
  79. Miss Page put to Professor Barker that the promise not to re-visit the criminal proceedings was simply a "lie". As so often in cross-examination, he said that he had received legal advice but did not intend to waive privilege in respect of it. He would not, however, accept that the sentence was untrue.
  80. The exchange went as follows:
  81. "Question: Professor Barker, that sentence in that letter: ‘I am anxious that in no way is the criminal trial re-visited’, I suggest to you is nothing less than a lie?

    Answer: I would have no reason to lie honestly. There is no reason, in my mind, that I could think of why I would want to lie. I was not on a vendetta. I did not know the two people concerned. I did not have any aspiration to overturn a properly made judicial decision, as far as I know. I was simply trying to deal with a complex and difficult situation where a large amount of material had to be dealt with in relation to the terms of reference that had been laid down by us and try to be involved in moving those through those processes in a fair and appropriate way and reach a conclusion that could then be appropriately written up, (1) in a report that would then be made available to Newcastle City Council and (2) in relation to complaints letters that we were empowered and required to complete. So, I honestly do not feel that it would have been any benefit in me trying to do what you are suggesting and it is honestly is not a lie in my opinion".

  82. The matter needs no elaboration from me, since anyone reading the letter of 7 May (intended to lure him for interview) could not conceivably imagine that the Review Team would be broadcasting, on publication of their Report, that Mr Lillie had in fact committed all the offences of which he had been acquitted several years earlier. The sentence was bound to mislead and, therefore, I have no doubt that it was intended to do so. I am not prepared to assume that he would or even might have been advised by responsible lawyers to say something that was so obviously false.
  83. This was compounded by the fact that the Review Team held Mr Lillie’s silence against him when setting out their conclusions. Professor Barker admitted as much in reply to me. Miss Page pointed out to him that, since he had received no indication of the specific charges, it could hardly be said to be fair to criticise him for not responding (whether orally or in writing). Professor Barker’s approach seems to have been that Mr Lillie and his lawyers could surely have worked it out for themselves! Indeed Mr Wardell made the rather sarcastic comment on 22 February, " I imagine the lawyers must be the most ill informed people in the world if they did not know that".
  84. It is against this background that the Team included the following sentence in their Report (at page 228):
  85. "No one other than those that perpetrated that abuse can provide definitive knowledge as to how this was carried out and those perpetrators that we know of have declined to talk to us. Therefore what follows can only be speculation based on those aspects of the situation that we do know about placed within a theoretical framework of what is known about perpetrators of child abuse".

  86. It is also manifest that the claim made on page 23 of the Report is, as Miss Page suggested, untrue:
  87. "The Report has been checked for accuracy and consistency. Where particular people have been significantly criticised, where possible this has been raised with them in their interview or they have been forewarned prior to publication and allowed a chance to respond".

    It is clear that the Claimants received no warning whatsoever. If that is not a "lie", I do not know what is. All these general claims of fairness made in the Report are obviously false so far as Mr Lillie and Miss Reed are concerned. On 22 February, Mr Wardell said that it was the responsibility of the City Council to give advance notice to them of the conclusions. He thought there was an agreement with Mr Warne, Mr Scott or Mr Poll to this effect. He was clearly wrong about that. I am not suggesting that he was dishonest in this respect. I think he was trying to persuade himself that there must be some honourable explanation for having got themselves into this untenable position.

  88. An unusual feature of the Defendants’ case is that it is integral to the plea of justification that Mr Lillie and Miss Reed were conducting a bizarre and perverted sexual relationship confined to their paedophile interests. It is always to be remembered that they were not portrayed as two paedophiles who happened by chance to be operating independently in the same nursery. They are accused by the Review Team of also having sexual relations with one another of various kinds, including sexual intercourse, oral sex and sticking scissors up each other’s bottoms.
  89. There was no evidence of their having any social relationship outside the Nursery, or of any signs of mutual attraction. Indeed, there was evidence that Miss Reed had found Mr Lillie in some respects irritating to work with and perceived him, sometimes, as inclined to "skive off" out of the Red Room, leaving her to cope on her own. Not only did she tell me that this was so, although she did not make too much of it, but there was evidence from colleagues that this had been her attitude at the time.
  90. Apart from this, each of them had a partner with whom they had set up home. Miss Reed had done so with her boyfriend Mark in 1990 and was living with him at all material times, eventually marrying a few months after the acquittals in July 1994. Mr Lillie had moved in with Lorraine Kelly in December 1992, after going out with her (or as she described it, "courting") for about six months. Professor Barker thought none of this significant. He referred in his witness statement to "couples" abusing children jointly and cited the example, rather chillingly, of Fred and Rose West. What he failed to address at all was the fact that there was no evidence of these Claimants being a "couple" in any ordinary sense of that term.
  91. Mrs Saradjian’s evidence on this subject was "breezy" rather than analytical:
  92. "We have a very interesting picture here, because it is not one that to think is easily explicable, in the sense that ‘why would they need to be in a couple relationship when they were already in a relationship?’ (although a different sort - working in the nursery). They knew each other".

    She added:

    "They were in a relationship where they knew each other over a long period of time, and none of us knows what goes on within that relationship. They could have been having a relationship that nobody knew about. Who knows? I don’t know".

  93. Miss Page put to her that there was no shred of evidence for such a relationship. She replied, "No, except for what the children describe and what the children say".
  94. I wish to be very clear about this. I am conscious of the fact that it is no answer to an allegation of child abuse, or paedophilia, that one leads an outwardly "normal" or "respectable" life with an established partner, whether heterosexual or homosexual. Although judges are supposed to be out of touch, one unchallengeable proposition is that every one of them is thoroughly familiar with the prevalence of child abuse and the wide variety of lifestyles of those charged with such offences. Let it be crystal clear, therefore, that I am not suggesting that the fact that Christopher Lillie had a steady partner (who gave evidence before me, and is still with him nine years later), or that Dawn Reed had a partner (with whom she "fell in love" at the age of 15 and married when she was nearly 24), renders paedophilic tendencies inherently unlikely. What I do suggest, however, is that it is truly remarkable that Professor Barker and his colleagues seem to have thought that there was nothing implausible about this "non-couple", against that background, conducting an ad hoc sexual relationship during working hours outside the Nursery, without any single adult (for example, a colleague or one of their individual partners) noticing. No one suggested that there was any precedent for this situation. Of course, there appears to be no limit to the scope of human depravity, and one should approach such allegations with an open mind, but it would at least be worth looking into. In fact, it was looked into by the police, and there was found absolutely nothing to confirm it. Moreover, Det. Sgt. O’Hara expressed his incredulity to the Review Team in interview. Yet this seems to have given the Review Team no pause for thought.
  95. In his witness statement Professor Barker had this to say on the subject:
  96. "The fact that they apparently did not have a relationship outside the nursery is not significant. There is no research evidence to show that such a relationship would have been an inevitable or necessary part of their jointly abusing children, and the way they could come and go from the nursery during work time almost at will meant that they had sufficient time and opportunity both outside and inside the nursery to pursue their abuse of the children together" (emphasis added).

    This is a spurious and trumped up justification, after the event, for their failure to address the point. It is hardly likely that there would be any published research on the issue. No one suggested once, during 79 days of this trial, that there was any precedent for a man and a woman engaging in child abuse together when they were not in any kind of "couple" relationship. There was therefore nothing to which research could be directed.

  97. Miss Page’s cross-examination began with the case of Child 4. It was an especially striking set of allegations. It is said that cutlery was inserted into her vagina by Miss Reed, which led to bleeding; yet, remarkably, medical evidence revealed no abnormality of the hymen at all. As in every case, however, where the physical findings were negative, the caveat was entered that "the absence of physical findings does not necessarily mean abuse has not taken place".
  98. It was as good a place as any to begin testing the methodology of the Review Team. Professor Barker agreed with the general proposition that the more serious the allegation, the more cogent the evidence required to prove it. His avowed approach thus accords exactly with that of the Court of Appeal in Hornal v. Neuberger Products (cited above). It was appropriate, therefore, to ask Professor Barker how he satisfied himself that this test, which he willingly set himself and his colleagues, had been fulfilled in the case of Child 4. There seems to be little doubt from the content of the Report itself that they purported to be so satisfied. So much is apparent from pages 209-212. There is no doubt either that, by 5 January 1996, the mother of Child 4 had given written permission for the Review Team to look at her medical records. Yet, in at least two (and possibly three) meetings which the Review Team held with the paediatrician, Dr San Lazaro, there is no record of their querying or discussing the absence of physical findings with her.
  99. On 7 February 2002, Professor Barker acknowledged that, as a layman, he would have found it surprising that there should appear no evidence of damage to the hymen if a knife had truly been inserted and caused bleeding. If that is so, it is surely inexplicable that, before finding the allegation proved, the point was not raised with a paediatrician. This is against the background of Professor Barker’s claim in his witness statement that one of the other "main influences" in reaching their conclusions was the medical information gathered by Dr San Lazaro.
  100. Professor Barker had also accepted that it would be inappropriate to reproduce the words of one child to convey what had happened to another child. He agreed that, where a child’s words were quoted, there was an intention to inform readers that the disclosure was such that the Team were satisfied it could be relied upon. This further underlines the importance of testing Child 4’s own evidence for these grave allegations.
  101. Miss Page put to Professor Barker that it was very important to check if the medical evidence cast doubt on Child 4’s serious allegations because, if it did, the rest of her evidence might legitimately be thrown into doubt. The response was a characteristic example of waffle:
  102. "I am speaking for myself in that, as I say, I honestly do not recall seeing the medical, and my view would be that I would have wanted to seek further information in relation to that…. I think, in looking at any of the children, we would have wanted to look at the whole range of information that we had available to us, and obviously the medical would be an important part of that…. We had difficulties getting access to a whole range of information and amongst that we had difficulties getting access to a range of medical information. It was not in our discussions with the people who commissioned us, or in the advice that we sought from a range of people, that necessarily the medical information of itself would be pivotal because obviously medical information can describe a variety of things, and that is why we did what we did".

    If any of these outpourings are intended to suggest that there was any difficulty about seeing Child 4’s medical findings, that would be manifestly untrue. As it was, Miss Page’s point remained unanswered, because it was unanswerable.

  103. The statements of Child 4 were also used by the Review Team to support their conclusions that Mr Lillie and Miss Reed injected not only her but other children with "analgesics" to facilitate their sexual abuse. She was also one of the children (referred to on page 209 of the Report) who apparently contended that "Jackie" had wiped her blood away following the insertion of an object into her vagina. There is no realistic possibility, in my judgment, that "Jackie" referred to anyone other than a member of the Shieldfield staff with that name. Yet the Report records that this member of staff (Jackie Bell) denied what the child was saying (albeit without recording whether the Review Team believed the denial). Yet again this seemed to give the Team no reason to query the child’s account. (Later Judith Jones suggested that it might have been another Jackie who wiped the blood away – someone who had at some stage worked in the kitchens – but she was never interviewed. If she truly believed that this woman was the relevant "Jackie", clearly she should have been approached for her account.)
  104. One of the striking failures of the Review Team was not to make any appraisal of claims by any child (including Child 4) to the effect that other members of staff were present during instances of abuse. If those members of staff denied the child’s claims, and the Review Team accepted the denial, it is hard to see how this would not undermine their confidence in the child’s other evidence. For example, with Child 4, her suggestion that "Jackie wiped away the blood after she had the cutlery inserted into her vagina" was very important. If it was not true, why should the fundamental allegation itself not equally be open to doubt? The child’s account would entail apparently (i) that Child 4 was taken to somewhere away from the Nursery, (ii) that objects were inserted, (iii) that there was bleeding, (iv) that "Jackie" was present, or at least nearby, and (v) that "Jackie" wiped away the blood. Which of these propositions did the Review Team reject and why not the others? Professor Barker no doubt regarded these questions as over-analytical. He considered that "all of them were possible on the basis of what that child had said". One of the many bizarre twists and turns in this litigation was that Mr Bishop suddenly remembered, well into his own evidence (and after cross-examining the Claimants about it) that this allegation was supposed to have been withdrawn. But that seemed to surprise the Review Team as much as everyone else.
  105. Miss Page also asked Professor Barker about the fact that Child 2 apparently indicated no less than three other members of staff (i.e. Diane, Jackie and Trisha) as being present. There was a rather feeble attempt to suggest that the child may have been referring to three other people who happened to have the same names, but this was manifest nonsense. If the Review Team concluded that those three women were not implicated in or condoning the assaults, why were they so happy to assume that the allegations were accurate so far as these Claimants were concerned? There was, of course, no cogent or comprehensible answer.
  106. The Review Team have a standard method for dealing with inaccuracies and inconsistencies in children’s statements which is reflected on page 208 of the Report:
  107. "The only people who really know what happened to the children of Shieldfield nursery are those who perpetrated the abuse. It is highly likely that even the children who experienced that abuse will have some accurate knowledge and some distorted knowledge. This distorted knowledge is likely to have been deliberately implanted by the perpetrators. The implanting of distorted knowledge is a strategy that abusers describe using. This tactic is particularly successful with very young children who have limited knowledge and understanding of the world and thus, when experiencing situations they cannot make sense of, they are likely to accept an abuser’s interpretation of those experiences. As a result of such distorted knowledge, when children try to disclose their experience, they are often not believed as, along with accurate knowledge gained through their own senses, they relate false or distorted information gained from the abuser/s. This distorted information is likely to refer to not only what happened to the child but also, who did it, to whom, where it was done and who had known about it and given permission for it to happen."

    This is simply bare assertion or theory. It is not based on any evidence relating to this case. But it seems to have been resorted to by the Team as a reason for explaining inconsistencies among the children’s accounts.

  108. Child 14 was clearly of central importance (for the reasons explained by Holland J in 1994) – and not least for assessing the intellectual honesty of the Review Team. Professor Barker told me that he, like Holland J, had viewed all three hours of the video interviews. I believe that all members of the Review Team had done so. At all events, it is glaringly obvious that the child’s evidence was not obtained in accordance with the Cleveland guidelines or the Memorandum of Good Practice based upon them. As it happens, Professor Bruck (the expert called on behalf of the Claimants) regarded it as one of the worst examples she had encountered. Holland J had raised in his ruling of July 1994 a number of fundamental concerns about it (which I have identified above). No objective person could fail to recognise that these concerns needed, at the very least, to be addressed. Despite this, the Report contained the claim that the questions were in no way "leading". This is manifestly absurd.
  109. There are real concerns as to why the Review Team did not inquire into that interview. I was told by Mrs Saradjian that they had received a letter from the police force asking them to "go easy" on Helen Foster, who had conducted the interview, and the Team were anxious not to upset her. The transcript of their interview with Detective Inspector Campbell Findlay expressly refers to that letter. Unhappily, it had gone missing. When it went missing, and how it went missing, no one appeared to know. It eventually turned up on or about 18 April. It was dated 19 December 1996 and the relevant passages were as follows:
  110. "Another one of our officers had now been contacted by yourselves, requesting her attendance at an interview on a date to be arranged in 1997. The purpose in writing to you at this stage is twofold. Primarily my concern is for the welfare and wellbeing of the officer concerned. I have been made aware of the effects this particularly onerous and stressful investigation had on her, both physically and mentally, and I would question whether, having interviewed the Force Child Protection Co-ordinator and then made arrangements to interview the female officer’s direct supervisor who was, in effect, the officer in charge of the case, there is any benefit in resurrecting this matter as far as WPC Foster is concerned.

    If it is considered important to conduct such an interview, and mindful of the consequences on the officer’s health, I would wish that, to enable the officer to prepare herself both physically and mentally, you provide at least one month prior to the proposed interview, a detailed set of questions you propose to put to her, which specifically include any possible complaints that have been made.

    The reasoning behind my request is that the incidents referred to occurred approximately three to four years ago; the officer has been involved in many large investigations since and the quantity of material to which she would be obliged to refer precludes any spontaneous answers to detailed questions".

  111. Professor Barker’s reply of 17 January 1997, so far as material, was in these terms:
  112. "I can well understand the potential distress that recollections of past events can cause in cases such as this, and can assure you that the team is sensitive to the needs of those who it wishes to interview.

    We do however feel that the valuable lessons that would potentially be drawn from WPC Foster’s evidence warrant interviewing her; particularly given her sympathetic approach to the children she interviewed which many parents have commented upon.

    It is our policy to provide in detail in writing the areas which we wish to discuss with witnesses, and a witness can choose to be accompanied by a lawyer if they wish".

  113. This exchange is a classic illustration of how unsuited the Review Team was, and how inappropriate its procedures, for determining guilt or innocence on the part of Mr Lillie and Miss Reed. One has only to envisage how unthinkable it would be for a court to enter into an under-the-counter arrangement with the police to "go easy" on a prosecution witness. It would almost certainly be regarded as a perversion of the course of justice. Professor Barker and his colleagues probably knew no better. It demonstrates how ill equipped they were for the task – something which should have been glaringly obvious to at least the lawyers on the Newcastle City Council staff at the time (whenever it was) when it was decided to permit them to re-open the issues of rape and indecent assault. The particular problem here was not just that it was inherently inappropriate, and compromised the Review Team’s much vaunted "independence", but that neither the readers in general nor the "accused" in particular could possibly know that they were cosying up to the police in this way. They chose to withold questions that needed asking; they declined to challenge in any way the police questioning of these children. Despite this, they pronounced a clean bill of health to the public while claiming to be "robust". They described Helen Foster as having been an "impressive witness" to the inquiry – but without revealing how Mrs Saradjian had complied with the "go easy" letter and refrained from probing.
  114. An interesting sequel was that when she gave evidence on 22 May Helen Foster said she knew nothing about the exchange. She had not supplied the information for the 19 December letter; nor had she been consulted. She was clearly rather unhappy that she had been described in the terms there set out. She had not had to have any time off and was particularly concerned at the suggestion that the case had taken a toll on her "mentally". I must conclude that the officer who wrote the letter about Miss Foster (Detective Chief Inspector Machell) was only too well aware of the flawed methods adopted in the video interviews and wanted to head off criticism. Her "welfare and wellbeing" provided an excuse.
  115. On the Team’s relations with the police, it is necessary also to bear in mind what passed between them and Detective Chief Inspector Blue on 20 March 1996. He was not very willing to release the video tapes to the Review Team at that stage because the Child Protection Unit had only finished their training on the Memorandum of Good Practice in May 1993. Accordingly, the interviewing techniques were at a very early stage. He wished to emphasise that they had come on in "leaps and bounds" and changed "dramatically" since that time. He was concerned that any criticisms made might make it more difficult for the future to obtain the participation of social workers in child interviews. The Review Team, on the other hand, were keen to obtain the interviews if they possibly could, mainly because some of the parents wanted them to view the tapes:
  116. "… and it somehow seems terribly important to a lot of them that actually we see the pain that the children went through, because it feels so long since those events, to them, and the pain that has gone on throughout that time; somehow the pain of the children at the time became quite lost and the statements that the children made may have become quite lost, with the court denying the children the right to actually say that. So, in some ways, although we cannot re-try Dawn and Chris (and there is no way we would even begin to even want to do that), what the parents are virtually saying is that ‘my children said something important, and it has just been lost, and never been heard or seen’. I think, for the parents, that is really what comes across. That is what they want me to do. So that, if we can say in our report that we have had access to the video-tapes, where we saw for ourselves the children … and this has had a profound effect on us".

    That has all the hallmarks of Professor Barker’s style.

  117. The clear implication of the conversation was that the Team would, in exchange for access to the tapes, not make any criticisms of the early efforts at applying the Memorandum guidelines. The Team’s offer was really encapsulated in the following words:
  118. "So if we were to say that the focus of our attention is the child and not the way they were interviewed?"

    Although he prevaricated for a while on the subject, I eventually asked Professor Barker to say Yes or No to whether there was a quid pro quo for seeing the videos that the Review Team would not criticise the police, to which he replied "My memory is that there probably was".

  119. This was hardly an arms length relationship but unfortunately the readers of the Report would not know, when reading about the child interviews, of these semi- official nudges and winks. One cannot fail to notice that the observations of the Review Team on the video interviews, as ultimately contained in the Report, were exactly in line with what they were offering before they had even seen them (for "profound" one merely substitutes "powerful"). It is thus tolerably clear that the reason why they wanted access to the videos was not to assess them in any way critically as evidence, or to appraise the extent to which they provided reliable accounts of abuse, but so that they could emote about them in the Report for the benefit of parents.
  120. The Team’s approach to the interviews clearly called for some straight answers from Professor Barker. He said that he and Roy Wardell had viewed the video interviews in 1996 and seemed to accept that they were the members of the Team responsible for its overall assessment of the weight to be attached to that material. I shall return to this issue shortly.
  121. Another striking aspect of Professor Barker’s evidence was that relating to the identifiable adults who fell under suspicion as a result of remarks made by some of the children (Child 4, Child 22 and Child 23). Some of the descriptions they gave of other adults being present, on occasions when abuse was supposed to have taken place, led some people with local knowledge to interpret them as referring to specific people. Three of the persons concerned had rather striking physical appearances, and suspicion for a time fell upon them. I am not going to give the physical descriptions in the body of this judgment, but everyone participating in the inquiries and in these proceedings knew who they were. This is potentially very important, because it provided apparent corroboration for what the children were saying. It would be difficult to dismiss their suggestions as fantasy if the descriptions corresponded to readily identifiable local residents. For this reason, it was especially important to examine and test what was said about them.
  122. The police did pursue these matters and checked out the persons concerned, with a view to seeing if there was corroboration for what the children were saying, and if there was evidence to justify criminal proceedings against any of the individuals. Nothing emerged from those inquiries to suggest that any of the persons had been involved, directly or indirectly, in child abuse. On the face of it, therefore, there was nothing to confirm or enhance what the children were saying. Indeed, if the persons did correspond to the descriptions given, the result of police inquiries would rather go the other way and cast doubt upon the children’s accounts. It was thus an important matter for the Review Team to address. They did so on pages 213-17 of the Report. The clear impression was there given that the police inquiries had thrown up some relevant information consistent with, or tending to confirm, the involvement of one or more such persons in paedophile activity. For example, on page 217 it was said:
  123. "Many aspects of the children’s evidence that could be verified and were checked out, proved to be accurate".

    Further, at page 269, they claimed that they had been told by police that they had found evidence relating to one of the identified individuals which "was not strong enough to be used in court".

  124. It is necessary to see what information the Review Team did have from the police to justify that passage. My attention was drawn to an interview with the police officer in charge of the investigation, Detective Inspector Findlay. From that transcript, it appeared to be quite clear that the officer told the Review Team members that there was nothing to put any of the people concerned "into the frame" and that he had no evidence. Helen Foster was able to confirm this from the witness box – by which time her note books had been made available. It thus began to look very much as though the Review Team had drafted the passages in their Report mischievously in order to stoke up the fires of suspicion against the various persons concerned. That would have been dishonest, irresponsible and potentially dangerous.
  125. Miss Page pressed Professor Barker on this at some length (as she so often had to, because he would not focus on what she was asking). On 12 February, I pressed him also. I said to him that it was very important that, if the Review Team had some evidence, apart from what was recorded in the Findlay interview, to back up what they said in the Report, he should now reveal it. It seemed obvious that this was a necessary step for the Review Team to take, in order to rebut the charge of dishonesty. It could not have been explained more clearly to him.
  126. Still Professor Barker rambled and procrastinated. He said that Mr Findlay had implied that there was some evidence (albeit not enough to justify criminal proceedings), but he was unable to identify the words which were said to give rise to this implication. Any such implication would, of course, have contradicted what the officer actually said (i.e. that he had no evidence). Every opportunity was given to Professor Barker to focus on the issue and to do himself justice. Unfortunately, he did not take that opportunity. Judith Jones and Mrs Saradjian did, in due course, have the grace to admit that they did not have any such information. Mr Wardell had not been present at the interview with Mr Findlay. Although he read the transcript, he knew that the tape had been switched off at one point. He seemed to think that something had been said off the record to justify the words in the Report. He accepted, however, that only those present could know if this was so.
  127. It was interesting to note that on 8 February Professor Barker used this formula of "implication" by the police also in relation to pornography:
  128. "…..is it not the case that at least one of the police, although they said they could not find proof, believe that the children had been abused by other people outside the nursery and implied that they believed that Lillie and Reed [were] involved in some pornographic creation type activity which involved some type of sexual activity?"

    Thus it seems that any police confirmation for these two serious allegations (the paedophile ring and pornographic filming) rests on unspecified "implication".

  129. Another individual who fell under suspicion as being present with a camcorder (for the implied purpose of pornographic filming) was also addressed. His first name was used in the Report. Again, I do not believe it to be fair to use it in the judgment because he remained as a nursery assistant (and so far as I know still works with children 10 years on). The Report implies (again at page 213) that there was some truth in this grave allegation. The Review Team did not approach the man concerned, or give him an opportunity to put their suspicions to rest. The truth is that the police had "no concerns" about him. That is clear from the statement of Vanessa Lyon in these proceedings, and the Review Team was told as much in the course of the inquiries.
  130. Miss Page pointed out what it was that had originally given legitimacy to the Review Team’s enquiries into this young man. His name appeared in a "complaint" made by the mother of Child 11. When eventually the Review Team wrote to set out their findings in relation to her complaints, the letter contained no reference to him. Miss Page put to Professor Barker that it was thus fair to conclude that he had been eliminated from their inquiries. He said that he did not know. His attention was drawn to the fact that, on 29 October 1993, Vanessa Lyon told Child 11’s mother that there were "no concerns" about him. The significance of this matter is, of course, that five years later the Report gives the name of the young man, and leaves the implication in the reader’s mind that he was still "in the frame" for pornographic filming. Professor Barker indicated that his memory led him to believe that there was "some other evidence about him". He was, however, unable to specify what it was. He suggested that the right person to ask, in this context, would be Mrs Saradjian.
  131. Professor Barker was asked why the young man’s name was left in the Report in the light of the negative reply the Review Team had given to the mother of Child 11 with regard to "Complaint 18". There, it was said that such connection as he had with any children at Shieldfield was "non-sinister". No satisfactory answer was forthcoming (over no less than 14 pages of transcript: 12 February pages 22-36). Accordingly, the matter was left to see what Mrs Saradjian had to say about it. In fact, when she was asked about the "camcorder" reference in the Report, on 21 February, all Mrs Saradjian said was that the Team had simply been reporting what the children had said. The cupboard was again bare.
  132. These passages in the Report, so plainly smearing identifiable individuals with paedophile tendencies, give rise to very grave concerns to which I shall have to return when I resolve the issue of the Team’s good faith. At the time the Report was published, the Team could not know of the frightening vigilante acts of August 2000 against supposed paedophiles, but even then they must have realised the risks to which they were subjecting these innocent citizens.
  133. One of the main aspects of the Claimants’ case on malice was centred upon the way the Review Team dealt with the ruling of Holland J, and the concerns he expressed about the video evidence of Child 14. When Miss Page came to cross-examine Professor Barker about these matters, it emerged that he had not seen the videos since 1996. This was despite the very serious allegations of misrepresentation and distortion pleaded in the Reply (served in March 2001), and the fact that the video tapes had been available for some five months. I found this surprising, but acceded to a request that we should rise early on 13 February in order for him to prepare to deal with any matters that might be put to him. I made it clear that I would not welcome any further applications of that kind, since it was reasonable in my view to expect the Review Team to have read and understood the case against them before going into the witness box.
  134. I have set out a full summary of Holland J’s ruling and cited the most important passage, in which he identified with stark clarity the concerns he had about Child 14’s evidence. Professor Barker’s approach was that the Review Team had more evidence before them than the Judge and were therefore entitled to come to a different conclusion; in any event, they were applying a different standard of proof, and were not constrained by a "forensic" approach. I noted that on various occasions in cross-examination Professor Barker used the term "forensic" as a term of disapprobation.
  135. The Professor’s attitude towards the learned trial Judge’s ruling can perhaps best be gauged from the following extract from his evidence. He was being asked, specifically, about the point which the Judge had made about matters which "cried out" for enquiry if Child 14’s disclosures were safely to be evaluated; in particular, he was concerned that no detail given by the child of any alleged trip to a house or flat with the Claimants stood up to any further investigation. Miss Page proceeded as follows:
  136. "Question: Now that is readily comprehensible without legal advice as well, is it not?

    Answer: Given the way we were dealing with it, given the way we were looking at matters on the basis of a balance of probability, given the information that we had and without any disrespect to this ruling, obviously we did have information – we did have information that Mr Justice Holland, if that is the right way to describe him, did not have. We had information from the nursery that he had never seen; we had information from witnesses that he had never seen; we had medical information that he had never seen and I am not – in saying that – I am not being disrespectful or wishing to comment critically on his ruling because it is my understanding, it is a perfectly proper and appropriate ruling in relation to those videos and in a sense for me to say it was perfectly proper is in a sense overstepping the mark because I am not legally qualified, which is precisely why we needed the advice that we did – not to smuggle anything out into the public domain under the cover of inappropriate cover but to try and deal with it appropriately with the appropriate advice".

  137. I find it difficult to grasp what further evidence the Review Team could have had, such as would be effective to subvert the logic of the learned Judge’s ruling. Certainly Professor Barker never enlightened me. Also, I put specifically to him that if the child was, in two of the video interviews, actually exculpating Miss Reed the standard of proof would be irrelevant. He responded that he believed that a psychologist had told him that the child was probably saying the opposite of what she meant.
  138. It is necessary to be wary of this Humpty Dumpty approach to words, since it pervades the entire Report and the Review Team’s evidence. It betokens a mindset which leads to the following examples of how to approach evidence:
    1. If a child says that she has been raped, or had a knife stuck up her vagina, and yet she has an intact hymen and no signs of abnormality, one just resorts to the proposition (in general terms, of course, unassailable) that the absence of physical findings does not mean that abuse has not taken place;
    2. If a child makes no allegations about anyone abusing him or her, then it is probably explicable on the basis of terrorisation by the supposed abuser;
    3. If a child exonerates a person voluntarily, despite pressure and leading questions, then she is saying the opposite of what she means (i.e. that the person exonerated actually did abuse her);
    4. If a child is peppered with leading questions over three hours of interviews, then one can include in one’s report the cavalier and unsupported conclusion that there was no evidence of leading questions;
    5. If a child says that she was taken out and abused at Christopher Lillie’s house accompanied by another member of staff, and that is not borne out by that member of staff, then it probably means that the abuse took place in the nursery in the absence of that member of staff.

  139. As an approach to weighing evidence, this is unscientific and irrational. (I put it that way in order to avoid comparison with anything that Professor Barker might perceive as "forensic".)
  140. When a person is responsibly investigating facts in order to see whether they support a particular hypothesis, it is necessary to have some notion of what would be capable of refuting the hypothesis before one starts the inquiry. In this case, I find it impossible to grasp what the Review Team would have regarded as refuting the basic proposition that Mr Lillie and/or Miss Reed were child abusers.
  141. Miss Page put to Professor Barker that they had deliberately suppressed the concerns voiced by Holland J. I have no doubt that the process was intellectually dishonest; the question I have to address is whether it was done in bad faith. Having properly read them, one could only ignore the comments made by Holland J about Child 14’s evidence if one was very stupid, blinded by prejudice or utterly mischievous. Not every one of those three hypotheses is necessarily to be equated with the legal concept of "express malice". Thus, it was important to focus on what was, or could have been, the explanation here. This was the purpose of Miss Page’s painstaking cross-examination. But Professor Barker did not seem to understand this. He chided her more than once for being partial and selective, and adopting a "forensic" approach, although he generously recognised that she was only doing her job. He was not prepared to leave it to Mr Bishop or to the court to ensure that he was not unfairly treated. He was, of course, wide of the mark. Miss Page put her case with clarity and economy, but Professor Barker either could not or would not deal with it. He seemed to find her questions a minor irritant that could be brushed aside, rather like the ruling of Holland J. The telling criticisms made by Mr Cosgrove and Mr Marron were clearly ignored by the Review Team.
  142. Miss Page asked Professor Barker about suppressing the Judge’s comments:
  143. "Question: You substituted your own view of the video evidence of this child and you completely suppressed any reference to what the Judge had said about it, did you not?

    Answer: That was certainly not the intention.

    Question: That is what you did, was it not?

    Answer: That was certainly not the intention."

    I am not sure what this means. If the omission was unintentional, that presumably implies that the Review Team intended to include reference to the Judge’s concerns but forgot. I have no doubt whatever that they were omitted deliberately because it would require careful analysis, on the basis of evidence, for those concerns to be satisfactorily answered. They knew that was impossible.

  144. Miss Page then invited Professor Barker to talk us through the factors he had in mind that enabled him to conclude, without reference to Holland J, that Child 14’s evidence was extremely "powerful" and "persuasive". He replied:
  145. "I mean that seems to me to be something that it would be very difficult to do in this context."

  146. The exchange continued:
  147. "Question: You managed to do it; you managed to sum it up and convey it to the public. Are you not prepared now to account for how you arrived at that statement?

    Answer: Well, the sum total, right. What the child said seemed – she seems to be a child that was able to distinguish truth from lies, she seemed to be a child with good verbal ability; she seemed to be a child who was able, over the course of those videos, to recount matters that a child of that age would not have known about; she seemed to be a child who could describe things that had happened to her. It was obviously the case that there was confusion in some of the things that she said and she did contradict herself at times and that had to be considered carefully. But if you looked overall at the three videos and related that to the medical information in relation to this child and you related that to the fact that abuse appeared to have occurred in the nursery and outside and probably other things I cannot call to mind now, but if you put all those things together it did appear that what the …. That what the child was saying was an account of her being abused by Christopher Lillie and to a lesser extent Dawn Reed".

  148. Unfortunately, towards the end of that passage, various alarm bells rang in the building and Professor Barker felt distracted. I therefore invited Miss Page to put the question again. When she did so, Professor Barker said that he was satisfied that he had answered it. Professor Barker went on to say that the Review Team were looking at the matter more widely than Holland J; that is to say, that they were concerned with broader issues than the admissibility of video evidence in a criminal trial. In response to me, he gave a further explanation:
  149. "Yes, I think the way we were coming at it was in a sense that if that material had been presented to a child protection conference. So if the child protection conference was looking at whether or not – it is slightly difficult because it was not quite like that obviously, but if a child protection conference was looking at whether or not it was safe to leave a child with a family, it would look at it on the basis of the information that was presented and on that basis had the information on the videos been looked at by a multi-disciplinary child protection conference it was our view, and it was an honest view, that is what was the child was saying. So rather than wearing a criminal hat beyond reasonable doubt, we were looking at it in a child protection conference type basis".

  150. A little later Miss Page asked Professor Barker to consider an apparent difference between the approach adopted in the Report itself and in his own witness statement for these proceedings. She quoted to him a passage which included the following:
  151. "For instance, over three videos Child 14 gave some indications that she had been abused by Christopher Lillie and Dawn Reed which I noted, I also noted that she sometimes contradicted herself. She was also at times insistent that Dawn Reed had not done things to her. The videos were not conclusive one way or another".

  152. The point which Miss Page wished Professor Barker to address was that this did not appear to sit comfortably with the comment in the Report to the effect that Child 14’s video interviews were "powerful" and "persuasive". First, Professor Barker tried to suggest that, in referring to the videos as being inconclusive, he was addressing the total number of videos he had seen with Mr Wardell in 1996 – not specifically those relating to Child 14. In the light of the passage Miss Page had quoted to him, set out above, I find it difficult to accept that. In fact, it is obviously untrue.
  153. Shortly thereafter, he took a slightly different stance:
  154. "Question: …there is nowhere in the Report in which you refer to, as you do in your witness statement, this child’s contradictions, or this child insisting on Dawn’s innocence, is there?

    Answer: Well, all four of us saw the videos of this child, so there is a sense in which the conclusions we drew in relation to this child and the videos were the product of all four of us seeing it in discussion rather than any one individual opinion".

  155. This appears to be suggesting that, although Professor Barker himself regarded the Child 14 videos as "inconclusive", he was prepared to go along with the statement on page 148 of the Report, to the effect that they provided "powerful and persuasive evidence" that she had been abused. If true, this would hardly be a very principled way of assessing material relied upon for the purposes of establishing rape. It would mean that the readers of the Report would be deprived not only of the concerns expressed by the trial Judge about her statements but also of the fact that Professor Barker privately regarded these "persuasive" videos as "inconclusive". That is as clear an example as one could expect to see of a defendant claiming to espouse one proposition while believing another. It would be dishonest.
  156. I was troubled about this matter and queried it when Mrs Saradjian asserted (on 20 February), "I think all four of us agreed that they were powerful and persuasive videos in relation to a lot of issues". I asked if she recalled anyone at the time expressing reservations about their being "inconclusive". She replied that "there were aspects of them that were inconclusive". I asked what they were. Her answer I found confusing:
  157. "I think that what I would like to have done is to be able to ask the child more questions about some of those aspects that she was talking about. But I think, overall, they were very powerful statements, made by the child about things she had observed and things she had experienced within the nursery. I would like to have questioned her more on it. I do not think that they fully explored all the issues that could be [explored]. So, in some ways, they were inconclusive. But, overall, I felt that they were very powerful".

  158. Thus, it emerged that a second member of the Review Team thought "aspects" of the Child 14 interviews were "inconclusive". Despite my invitation, she did not identify what they were. But it is reasonably clear that she thought there were questions which the interviewer needed to ask (no doubt, in particular, probing inconsistencies). Yet this was not conveyed in the Report. The interviews are presented simply as powerful and persuasive evidence against Mr Lillie – and presumably also Miss Reed. Again, I find it difficult to reconcile this statement with her private reservations.
  159. A remarkable piece of sloppiness in the Report (if that is what it is) is to be found on page 41. There is a supposed "chronology" which contains the item that, on 4 October 1993, during her first video interview, Child 14 alleges rape. She did nothing of the sort. She did not even make an allegation of indecent assault against herself during that video interview. The actual entry reads, confusingly, as follows: "alleges rape being videoed". Whether that is intended to mean that she was alleging that she had been raped while being recorded on video tape, or whether it means simply that she alleged (a) that she had been raped and (b) that she had been video-recorded doing some other activity, does not for present purposes matter, since nowhere in the three video recordings does Child 14 make reference to being video-taped at all. I found it profoundly worrying that this Review Team could have included the false suggestion in their chronology that Child 14 alleged rape on 4 October. I am afraid I do not understand how any honest and responsible person can throw allegations of rape around so casually. (It is possible that this notion of Child 14 being video-taped came from the Panorama programme of October 1997, when it was publicly alleged that a cameraman had been present.)
  160. The consequence was that a reader of the Report would be bound to draw the conclusion not only that Child 14 had alleged rape on 4 October (the date of her first interview) but that "over three interviews" she had been consistent. That is a gross distortion. It is so gross that four intelligent people could not have promulgated it by mistake or oversight. It is true that they did not have the advantage of transcripts, but they did have the clear summary of the three interviews contained in the ruling of Holland J (which Mr Wardell described as "very helpful").
  161. On 14 February, much time was taken up in cross-examination of the Professor by going through in detail the transcripts of Child 14’s three video interviews. Central though Child 14 is to the plea of malice, not much was gained by this exercise since there was little Professor Barker could say. He could have answered for the most part compendiously without addressing individual passages. His response was effectively that he formed an impression that the child was telling the truth. Although he had read the judgment of Holland J, he regarded it as a matter going only to admissibility. Their exercise was broader and qualitatively different from that of the Judge and, what is more, they had more information to go on. That was a short and simple position to take. It did not improve with repetition. For my purposes, the validity or otherwise of the Review Team’s stance can be judged mostly by reference to the recorded interviews and to the Judge’s observations about them. He saw what the Review Team saw (Child 14’s videos have apparently been viewed by all four members). The child’s "disclosures" and the inconsistencies or contradictions remain static for all to see – except, of course, the readers of the Report.
  162. Cross-examination on this front was, however, not wholly unproductive. It emerged that some elementary questions, or lines of inquiry, thrown up by the interviews were simply not pursued. For example, although the child at no stage spoke of any indecent assault upon her outside the nursery, she did speak in a confusing way about supposed visits to either a flat or a house, where there were dogs and hamsters and a backyard in which to play. She variously described the mode of travel (bus or train). She also spoke on different occasions of being accompanied by different members of staff (Amanda and Moira). She did not speak of going to such places accompanied only by Mr Lillie and/or Miss Reed. Even though the child does not speak of any assault upon her during any such visit, she did mention in the first video having seen "Chris" in bed with someone called "Doreen" (conceivably a childish corruption of "Dawn" or "Dawn Reed"). That would be manifestly inappropriate behaviour, if not an actual assault, and Professor Barker was entitled to observe that it might reasonably come within the definition of "abuse".
  163. Crucial, therefore, one might think, to question the members of staff alleged to have been present, Amanda and Moira. It emerged in cross-examination that this was not done. Moira Martin was interviewed but not even asked about this. Whether this was an "oversight" was not clear, but in any event there was a gaping hole in the evidence before the Review Team such as would surely at least inhibit them from accepting the child’s confused account. As for Amanda Caisley, she was not interviewed. Apparently she did not accept the invitation, but the Review Team did not ask her even in writing to confirm or deny what the child was alleging about her presence. One might perhaps understand (just) how such inquiries were overlooked if the Review Team had simply failed to spot the potential significance of such witnesses (however unlikely that would seem), but they did appear to attach significance to it in the body of their Report (at page 148). They actually cite the fact that over three videos Child 14 detailed abuse of herself and other children by Christopher Lillie and to a lesser extent Dawn Reed, "and she also mentioned other nursery staff’s names" (emphasis added). Since her testimony is then described as "persuasive evidence of her abuse in the nursery and elsewhere", the Review Team would appear to be pointing to the "other nursery staff" as complicit. Indeed on page 240 of the Report they say more generally:
  164. "The children also talked about other people’s involvement and mentioned the names of other staff from the nursery. This could be because these staff were also involved…"

  165. That is a remarkable allegation to leave hanging in the air when the Review Team know perfectly well that there is no shred of evidence to link any of the other Shieldfield staff with child abuse.
  166. There is another shift of emphasis at page 282 of the Report:
  167. "We have no evidence of other staff in the nursery abusing children with Chris Lillie and Dawn Reed. However, we find that during and after the abuse there was evidence to suggest that some staff were confused about their primary responsibility towards the children. We feel that this partly is a result of being subject to grooming to ignore or minimise the abuse".

  168. Again the staff are at the same time absolved and implicated. The prose has the same treacle like quality as other parts of the Report, in the sense that it is impossible to pin any precise meaning on the passage. It is obviously intended to smear somebody but there is no specific evidence to enable one to see which of the staff were "groomed" or who did the grooming. Presumably Mr Lillie and/or Miss Reed "groomed" other members of staff, but there is no way of knowing how this was done or to how many staff. No evidence emerged in the course of the trial to support the proposition. If there had been any material in support, surely it would have been put to one or other of the Claimants.
  169. It is true that on page 213 of the Report the Review Team conclude "We accept that Chris Lillie and Dawn Reed were the only nursery staff involved in the abuse". This is on the basis that "… there is no evidence that any other staff of the nursery were involved in the abuse of children". Yet they qualify this by saying, "Two children did suggest that a third member of staff was involved; but they each named a different person, so that their allegations were uncorroborated". This is less than clear, since it hardly squares with what is said in the passages at pages 148 and 240 quoted above; nor did the children actually suggest that any other member of staff was "involved" in abuse (as opposed to being present on trips out of the nursery). Indeed, that is part of the Review Team’s own case – one of the excuses they put forward for not asking the other members of staff about it. Moreover, it is misleading to give the impression that two children identified one other member of staff as being involved. Child 2 mentioned three. Child 14 mentioned two. None of this, in any case, meets the essential point that no checks were made for the purpose of testing the plausibility of the children’s accounts.
  170. Other persons said to have been present included children identified as "Lucy" and "Sam" (Sam being described as Christopher Lillie’s daughter). There was nothing to confirm who they were, or whether they existed. Whoever "Sam" was, she obviously could not be Mr Lillie’s daughter. It would seem that Child 14 was aware of two children with that name but I shall not spell out who they were for obvious reasons. Neither, however, has provided any corroboration.
  171. Turning to the abuse alleged to have taken place in the Nursery, part of Child 14’s account involved a needle being put into Child 35 and Child 10. It would thus be elementary to check whether this matched any allegation being made by either of those children. If it did not, it would surely raise a question mark. It is to be noted that the mothers of Child 14 and Child 10 were friends, and that Child 14’s mother had, apparently, passed on to her the allegation relating to her son. The boy himself, however, said nothing about having a needle stuck into him, in the Nursery, although he did refer to "a nail with water in the plastic bit" – but only in response to a leading question from his mother. His various accounts of alleged abuse all took place at "Jo’s" flat. As far as one can tell, the only "Jo" in contention would be a friend of his mother, whose flat was never visited by Mr Lillie or Miss Reed (according to the evidence). He never mentioned needles in his video interviews. Child 35 also happened to be a friend of Child 14 outside the nursery and the mothers also knew each other.
  172. It also emerged in cross-examination that the Review Team had not reacted to, or explored, the possible inconsistency between the accounts given by Child 14 over alleged abuse in the Nursery in the first and second interviews. From page 12 of the transcript of the second interview, it seems that an account was given of a needle incident when neither Child 35 nor anyone else was present. Nobody explored whether this was supposed to be a second occasion from that described in the first video, or an inconsistent account of the same incident. As for Child 35 herself, there was no corroboration (as Ms Jones accepted in the course of cross-examination).
  173. Eventually Professor Barker had to admit that the claim on page 221 of the Report that Child 14 had not been subjected to leading questions was, in hindsight, not appropriately worded. He could hardly do otherwise. In my view it was completely unsustainable. Indeed, Professor Bruck observed of part of the material, "This is one of the most coercive and abusive interviews that I have ever reviewed". She said that "almost every known suggestive technique was used, and we will never be able to know what, if anything, had actually happened to [Child 14]". That is a matter, of course, in one sense of expert evidence. On the other hand, it is also a matter of common sense. Professor Barker, however, did attempt to qualify his admission by saying that in his view, in so far as any of the questions had been "leading", this was only to the extent permitted by the Memorandum of Good Practice with regard to younger age groups. Professor Barker thinks that leading questions should be permitted with under-fives. That is a view to which he is entitled and others no doubt agree with him. It is nonetheless a controversial view. As Mr Wardell put it, "…clearly you need some time to prompt a younger child – and then we get to the difficult legal bits".
  174. It is true that they can point to the memorandum for some support in this respect. What matters for present purposes, however, is that this is not what the Review Team told the public. They said that there were no leading questions – that is undeniably false, as they surely knew.
  175. One of the most important reservations expressed by Holland J was to the effect that the allegation of rape from Child 14 came only at the end of the third video interview and, what is more, after the child had requested to terminate the interview. Thirteen minutes after that termination, it was resumed and the crucial allegation was then made. When Miss Page asked Professor Barker about this, his reply was as follows:
  176. "Answer: Yes, I mean, that is an interpretation which you are entitled to put, I do not agree with it. The extracts, for example – it kind of fits with the extracts which you have done in the blue document which we were given [Miss Page’s summary of child "disclosures"], which is there is a kind of slant on some of the things which appears to me to be wanting to prove your case – which obviously you are entitled to do, it is what you are supposed to be doing, obviously – rather than a neutral reflection of what happened… there are a range of explanations for a range of different things. You know, an explanation for example about why the child terminated the interview, could not – might be not that the child was thinking, ‘O my goodness, I have to tell a fib and do not want to do that’, but ‘O my goodness, the enormity of what I have to say is so difficult and painful that I do not want to do that’".

  177. This is not satisfactory, since any fair-minded person (I emphasise that I am not speaking merely of lawyers or judges) would surely recognise that the cessation of the interview, followed by an allegation of rape upon its resumption, was extremely "fishy". It may be that there is some explanation, but I cannot see how a proper assessment can be made of Child 14’s videos without at least addressing the point. In the words of Holland J, it is one of the matters that "cried out for inquiry". Professor Barker said that he was satisfied that nothing untoward had happened outside the room while the tape was switched off, but it is a matter that needs to be fully explained and, surely, properly accounted for in the Report, so as to give its readers a solid basis for concluding that the Child’s evidence of rape was "powerful".
  178. As the learned trial judge had pointed out, one of the most worrying features of the way the "disclosures" were extracted from Child 14 related to the 13 minute interruption in her third interview, following which for the first time an allegation of rape came out (as though rehearsed). I asked Professor Barker how the Review Team had approached this vital issue. The answer he gave was this:
  179. "My memory, my Lord, is that when I was being in a sense inducted into the Review Team process, I was told – because this was a child who was an important child in the case – not by those social workers concerned but by someone else who was inducting me, and I think it might have been Jennifer Bernard the Director, that in that video interview the video interview had had the problem that the child had left the room, had returned, had made certain disclosures, but then it had been discovered that in fact, as I recall it, the tape was not switched on, I think.

    So then what happened is that the video interviewers, having discovered that, I think it was Police Woman Helen Foster, then had to go back into the video room and in a sense re-run what the child had said. So when I saw that video with Mr Wardell I knew that that was the explanation, and I think that if you look at my revisiting the video of last night, it did seem to me that you could see that in a sense the police woman was going through something that that explanation made sense".

  180. In so far as that is intelligible, it seems to me to disclose the remarkable fact that no critical inquiry or analysis was directed towards this at all. Thus, the incident which the learned Judge had described as requiring to be looked into "above all" was brushed aside. In due course, I shall have to decide whether this should be attributed to sloppiness or ignorance, or whether it was indeed mischievous. Miss Page summarised her case to Professor Barker at the end of her cross-examination as follows:
  181. "Question: … You can have, I suggest, no positive belief, because you did not make the right enquiries into the truth or falsity of these children’s allegations?

    Answer: We did. We looked at a whole range of material from a variety of sources and drew the conclusions to the best of our ability based upon a range of official documents, witness statements, documents from the nursery, etc. etc.

    Question: You were indifferent to the truth, you had no basis, as you knew, for any positive belief in your conclusions about Chris and Dawn. I suggest that you resorted to conscious misrepresentation in your report to give your conclusions the appearance of authority, honesty and fairness.

    Answer: No. We attempted to illustrate in our report, in a readable way, what we had done, why we had done it and what our conclusions were.

    Question: I suggest to you that the Report is a sham, corrupt document, which purports to have the appearance of authority, honesty and fairness when it absolutely did not.

    Answer: No, that is not true."

  182. That would probably serve as a neat summary of the important issues of malice which I must shortly decide.
  183. I decided that I was unable to place reliance upon anything said by Professor Barker, for any significant purpose, unless it was independently corroborated. That in itself, of course, by no means leads to the inevitable conclusion that I should find him malicious.
  184. Ms Judith Jones was giving her evidence from 15-19 February. I found her altogether a more impressive witness. She struck me as careful, thoughtful and intelligent. She was also determined to demonstrate that she had been objective in her approach to the Review Team’s task. She clearly recognised at least some of the difficulties and delicacies of the endeavour they were invited to embark upon; and I believe her when she says she was conscious of them at the time. I was interested that, at an early stage of her evidence, she confirmed that she had seen the Amicus Brief from the Kelly Michaels case and also the 20:20 video recording dealing with the suggestibility of young children. She observed that anyone setting out to inquire into questions such as those which had arisen at Shieldfield would be "mad" to attempt it without taking account of the researches, as they then stood, of Ceci and Bruck. I had been somewhat surprised that Professor Barker had not addressed that topic at all when in the witness box.
  185. Ms Jones also expressly recognised in court the principal problems inherent in the video interviews of the children. In particular, she identified the "leading" nature of the questions (not something to be found on page 221 of the Report) and the absence of cross-examination, or indeed any form of testing, with regard to the "disclosures" passed on through parents. The question inevitably arises, therefore, as to what impact these considerations had (if any) upon the Team’s reasoning processes or ultimate conclusions. From the Report itself one cannot tell.
  186. I found it difficult to reconcile Ms Jones’ stance in oral evidence with that adopted in her witness statement (paragraphs 178-80), where she seemed to be taking the simplistic position that the Claimants’ case entailed either "panic" on the parents’ part or the proposition that there was a criminal conspiracy among parents to fabricate the charges in order to secure financial compensation. She is obviously experienced and intelligent enough to know that this would be a distortion of the Claimants’ case. I therefore cannot understand why this position was allowed to be reflected in her witness statement.
  187. Impressive though she was, there were inevitably important aspects of the Team’s methodology which Ms Jones found herself struggling to defend.
  188. As I have already made clear, I found myself attaching particular significance to the claim made on page 269 of the Report:
  189. "The police investigation dramatically improved after the appointment of DI Findlay to lead it. Children gave their parents detailed information about the venues in which they had been abused, and by whom, which appear to have been followed up e.g. children’s allegations that the ‘house with a black door where a man with a black beard had abused them’ were progressed, there proved to be – where they said - a house with a black door in which a man with a black beard lived, but we were told that the evidence was not strong enough to be used in court".

  190. It was possible to test the claim, which embodies within it a serious allegation, against the recorded contents of the interview with Detective Inspector Findlay on 22 January 1997. The clear implication of the Report is that there was evidence that the person concerned was involved in paedophilia or child abuse, as the children’s evidence could be construed as suggesting, but that the police did not believe that such evidence was strong enough to be used in court. It is manifest on checking the content of the interview that Detective Inspector Findlay said nothing of the sort. (His actual words were, "… I just could not find out anything which would support that story. We were aware that all we had was what these children and parents were saying – some very young children – babies".) He rather said that there was no evidence, and no basis for "putting him in the frame". That remains as true today as it was nine years ago. It was confirmed by Miss Foster from the witness box.
  191. There is a passage in the course of the transcript where it appears that for a time, at the officer’s request, the tape was switched off. Both Professor Barker and Ms Jones referred to this in seeking to prop up the allegation made in the body of the Report. Ms Jones was, however, frank enough within a short space of time to admit that nothing was said during that unrecorded part of the interview to suggest that the police did indeed have evidence to link the man in question with paedophilia. Professor Barker had characteristically tried to fudge the issue. That did him no credit at all. An important question for me to address therefore, in due course, will be whether that important allegation at page 269 of the Report (intended to lend credibility to the children’s "disclosures") was genuinely just "poorly worded" through carelessness, or whether it was a deliberate slant to bolster the case which the Review Team wished to put across.
  192. This concern cannot be dismissed as picking holes in the detail of the Report. It represents the main foundation of the Review Team’s endorsement of the "paedophile ring", which was one of their most dramatic conclusions. It received enormous publicity and accounted for much of the venom directed at the Claimants. It was an allegation that had been doing the rounds for some years, fostered to some extent by Dr San Lazaro who actually made the assertion to the Criminal Injuries Compensation Board at the end of 1994. (It later emerged, however, on 16 May 2002, that Dr San Lazaro has a quirky and shifting definition of a paedophile "ring". She thought it could, for example, embrace one adult with several victims.) But it was the publication of the Report under the cloak of privilege which really gave the allegation its currency. Yet Campbell Findlay had told the Team that he had not got any evidence of a paedophile ring in Newcastle. He added, "If I had, I would do something about it".
  193. Another area of the Defendants’ evidence which seemed to me very weak was that concerned with the questions asked of other members of staff. Where particular children identified other members of staff as having accompanied them on abusive trips organised by Mr Lillie and/or Miss Reed, it was clearly vital to seek their account. I have already mentioned it in the context of Professor Barker, but it is in my judgment of such importance that it needs to be considered when judging malice in relation to each of the Team members. Ms Jones sought to deal with this by saying that the individuals concerned had already been extensively questioned by police officers and others, and that the Review Team were conscious that not only had the police found no evidence of abuse but that the children themselves were not actually alleging abuse. I found this unconvincing. Indeed, it does not square with the passages in the Report (at pages 148 and 240) where the Team actually refer to "other nursery staff" in a context which, far from being exculpatory, would suggest that they were in some way complicit (see paragraph 1226 above).
  194. Where a child alleges that Mr Lillie and Miss Reed were participating in some form of sexual activity in front of them, at a location outside the nursery, anyone named as being present should plainly have been asked (a) whether any such expedition ever took place and (b) whether during the course of the visit any opportunity for such sexual activity had ever arisen. Quite unaccountably, this was not done. The importance of this hardly needs to be stated. If it would, otherwise, be a case of the Claimants’ word against one or other of the children, it would obviously be right to check out any other individual identified by a child who might corroborate or refute these grave allegations. There is nothing "forensic" about it; it is simply common sense.
  195. Despite the fact that these members of staff were not questioned, the Review Team appeared to be ready to state their conclusions (or rather speculate) in the Report (at page 240). Not only did they leave open the possibility that the members of staff might actually have been involved in abuse themselves but they put forward the alternative theory that Mr Lillie and Miss Reed had put the children up to making "these often isolated disclosures so that if any disclosures were made they were all the more unbelievable".
  196. This suggestion I find utterly fanciful. One has only to try and visualise how this could be achieved to appreciate how unreal it is. To take Child 2 as an example, it seems to be suggested that she was cowed into silence but, for good measure, was also persuaded that three other members of staff were involved when she must have known perfectly well that they were not (i.e. Diane, Jackie and Trisha).
  197. One aspect of her evidence in which she seemed to be readier for frank disclosure than Professor Barker was that in which Ms Jones was questioned as to when she reached the conclusion that multiple abuse had taken place at the nursery. She recognised that that point arrived at around August 1996 (i.e. more than 2 years before the Report came out). This was, very approximately, about a year earlier than was admitted by Professor Barker. On the other hand, like Professor Barker, Mrs Saradjian and Ms Jones said that they had reached their conclusions about Mr Lillie some time earlier than they had reached the decision about Miss Reed. I had difficulty with this, since their joint responsibility is an integral part of the Review Team’s case, based upon their interpretation of what the children had "disclosed". There is a conceptual difficulty about believing that one participant in a joint activity was doing it but not the other. It is like the surreal notion of one hand clapping.
  198. Ms Jones told me that what had impressed her, and her colleagues, were the "core consistencies" in the children’s statements. She was, however, frank enough to volunteer that the later statements were likely to be more unreliable for a number of reasons, including possible cross-contamination between children and/or parents and the impact of therapy. She said this particularly with regard to the later statements made by the mother of Child 22. This is to an extent understandable but it is necessary, in carrying the reasoning through, to identify the dividing line and to decide what proportion of the statements are to be put to one side as "unreliable". This was not done.
  199. Later she cited "research" tending to show that a substantial proportion of pre-school children can retain a good memory for up to 12 months, but that the present state of knowledge does not suggest that there is much support for reliable memory beyond that length of time. That is clearly important in this case if she is right, because many of the statements relied upon by the Defendants, by way of justification, relate to events alleged to have taken place well over a year earlier. On the other hand, Mrs Saradjian’s view seemed to be in no way inhibited by the same "research" watershed of 12 months. This was a point that should have been followed through and, once again, a dividing line drawn so that the Team (and their readers) could see which statements related to events more than a year earlier. It would have applied, for example, to all of child 14’s allegations. As it was, the Team chose to cast no doubt on any of the dozens of allegations and appeared to accept every statement mentioned in the Report.
  200. Miss Page was concerned to explore to what extent the Review Team had set out to test for "consistency", whether within the contents of one child’s individual disclosures or as between those of various children. But the whole notion of "testing" appeared alien to them. They did not regard it as their function to "challenge".
  201. Mrs Saradjian went into the witness box on the afternoon of 19 February and concluded her evidence on 22 February. She was clearly thoughtful and intelligent, and has made a particular study as a clinical psychologist of sexual abuse by females. I formed the impression early on, however, that she lacks objectivity about the evidence relating to Shieldfield Nursery. She displayed a strong antipathy to Mr Lillie and Miss Reed which is, of course, entirely consistent with genuine belief in their guilt. She told me that she had set out on the task from 1995 with an open mind and a determination to approach the evidence objectively. I am sure she believes that, and I have no doubt either that she has believed for a long time that the overall conclusions in the Report are true.
  202. Unfortunately, Mrs Saradjian approached cross-examination as though it was a debate. She was reluctant to admit anything, even the glaringly obvious, but rather tended to cite another argument in order to demonstrate that the admission, if made, would be irrelevant. She criticised the Claimants for not having co-operated with the Review Team by submitting themselves for interview. She, like other members of the Team, failed to grasp at all how unrealistic the suggestion was. The Claimants did not trust them or the Newcastle City Council. Moreover, had they been told frankly that the intention was to re-open the allegations in respect of the six indictment children, they would surely have been astonished and fully entitled to tell them to jump in the lake.
  203. In any event, I am quite satisfied that if the Claimants had agreed to be interviewed by the Review Team, it would have made not the slightest difference. Now that the Claimants have given evidence on oath, for day after day, Mrs Saradjian still criticised them for not offering a realistic explanation for the children’s allegations and unusual behaviours. They were hardly in a position to do so. They had no idea what was going on amongst parents and children, police officers, doctors, social workers and therapists following their suspension. More significantly, it was a comment that rather gave the game away. Mrs Saradjian even now regards the burden as upon the Claimants to prove their innocence. I have no doubt that this was her attitude from the day she was appointed. On page 219 of the Report (which I believe she wrote) it is also said that "…the perpetrators have never been able to offer an alternative explanation to account for the children’s knowledge and disclosures".
  204. Mrs Saradjian’s attitude was similar to that of Professor Barker who was asked on 7 February whether he held their "silence" against Mr Lillie and Miss Reed (i.e. their refusal to be interviewed). He replied that it weighed against them to some extent but it was by no means conclusive.
  205. Further illustrations of this mindset are to be found in questions asked during some of the Review Team’s interviews. I have in mind particularly the interview of Julie Kinghorn on 30 May 1997. Although Mrs Saradjian was not present on this occasion, the other three members were. One of them made the following observations to the witness:
  206. "It’s fascinating to talk to people who have met them. Not a lot of people have met them, other than their direct colleagues. Dawn Reed fascinates me in particular – women abusers, especially in those days, not quite as well known as now".

  207. Again, during the interview with Helen Foster on 14 February 1997, Mrs Saradjian (being the only Team member present) commented of Mr Lillie and Miss Reed, "I have been astounded by the confidence of them, especially the constant denials really, and the confidence with which those denials were occurred [sic] in the face of what was going on". Hardly consistent with an open mind.
  208. Mrs Saradjian’s combative debating style in cross-examination convinced me of her utter commitment. She was persuaded long ago of the Claimants’ guilt and has reinforced that belief by a battery of intellectual arguments over the years as to why she is right. What she is not, however, if she ever was, is open-minded. Her knee-jerk reaction is always to dispel doubts by reference to other possible explanations, however fanciful the hypothesis. She was a great advocate (that was indeed the role she played in cross-examination) of the "whole picture" theory (i.e. that they cannot all be wrong). She would, I know, be horrified and offended at my failure to acknowledge her objectivity and independence. She spoke of her commitment to "get it right". I took particular note, for example, of her determination to trace back the Child 4 allegations to their original source. They date, at the very earliest, from June 1994 (i.e. a year after the "hue and cry" began and thus on the wrong side of Ms Jones’ watershed for reliable infant memory). Little attention, however, appears to have been given to the "hot-house effect" of cross-contamination between children exchanging concepts and scenarios which they cannot fully have understood – particularly in the Yellow Room in 1994. No account was ever taken of the mother’s first reaction, a year earlier, that Child 4 was "gobby" and likely to say "anything". That means that she was at that stage of her development suggestible and unreliable.
  209. I must state my own conclusions about Mrs Saradjian, however offensive she may find them. She combines a quick mind and, as I have acknowledged, considerable intellectual vigour with an unwillingness to re-examine fundamental assumptions. One of the most telling revelations about Child 4 is to be found in the Nursery records dated 17 May 1994, the day before her first video interview, where she is recorded as saying, "My mummy says that Dawn and Chris are naughty and they are in prison". That would surely ring alarm bells in any objective observer. The teacher (Fiona) even recorded how she talked to Child 4 a little about her seeing Helen Foster the following day and talking to them about her feelings. Moreover, it can hardly be ignored that the child was saying on 14 June 1994, "They didn’t do anything". There are also other references on 29 April to the concept of "naughtiness", which can only have been implanted by adults (directly or indirectly).
  210. None of this was taken into account, or if it was (and Mrs Saradjian claimed to have been through the Day-Books), it seems to have been brushed aside as of no relevance. I gradually came to the conclusion that Mrs Saradjian’s intellectual accomplishments were devoted, in this instance at least, not so much to the objective assessment of what went on but to the adversarial task of marshalling the most powerful case against the Claimants – inevitably a selective and misleading exercise. The irony is that while the Review Team publicly aspired to the inquisitorial approach (and despised the adversarial) they lacked the necessary objectivity for the former and were, ultimately, exposed by the latter.
  211. Yet bias and lack of objectivity are definitely not, in themselves, to be equated to malice (although they can sometimes provide evidence of indifference to truth).
  212. In the end, of course, the real test of Mrs Saradjian’s evidence was how she coped with the glaring deficiencies in the content of the Report itself. Despite all her undoubted qualities, she was unable to respond to the unanswerable. The Report in fundamental respects simply contained misrepresentations of fact.
  213. Mrs Saradjian wrote that part of the Report which contains page 220. The claim is there made that:
  214. "… the Review Team examined the information available to consider whether there was any evidence to support an explanation that the disclosures were made by of [sic] the children as a result of the implanting of false information; pressure from parents; and/or by over-zealous or suggestive questioning on the part of social workers and/or police. The Review Team concluded that this could not be a viable explanation of the children’s evidence".

  215. It is a very bold claim. It fails to take account of what was going on at Shieldfield Nursery in 1993-4 - especially the fevered atmosphere that required a special book to be kept of "disclosures" that children in the Yellow Room might make in the course of their daily routine. It fails also to take into account the potential for contamination, or even abuse, through the very process of investigation by police and social workers. The Cleveland Report was almost "old hat" by the time the Review Team were setting about their task, and they all knew it well. Yet little weight was given to the potential, to which it drew attention, for such abuse arising in the investigative process. That is surprising in this of all cases, where such risks at least had to be addressed and, if possible, discounted on a reasoned basis.
  216. The problem seems to have been ignored or brushed aside, as far as I can tell. Indeed, to my astonishment Mr Wardell (during the afternoon of 22 February) claimed that contamination between children was unlikely:
  217. "I just said that it was unrealistic to expect children to play together like that and contaminate each other."

  218. He appeared to think that "contamination was never a major and significant issue", on the basis that under fives would not get together in a plot to "drop Chris Lillie and Dawn Reed in it". As someone of his experience must surely have understood, it has never been suggested that the issue was one of malicious "plotting" or concoction. If the Review Team carefully considered the implications of the Ceci and Bruck research, as Ms Jones suggested they did, so much would have been obvious. As the Review Team must have realised, the problem is not likely to be that of conspiracy or plotting, but rather cross-contamination through hearing each other’s "disclosures" and discussing the various dramatic scenarios suggested.
  219. As Dr Hamish Cameron observed, children are inclined with "an exciting taboo topic" to dwell more and more on the subject should parents, as authority figures, "give permission" to the child to talk more about it. The danger is that excitement grows and the story becomes elaborated by the child’s imagination. I am conscious of the enormous wealth of practical experience among the Review Team members. As a layman I must respect that and beware of resorting glibly to that elusive commodity "common sense", which can be so deceptive in specialist areas. Nevertheless, I must say that in this respect I found Dr Cameron’s observations much more realistic.
  220. It seems that by about mid-day on 25 February Mr Wardell had become more flexible on the possibility of cross-contamination. He then acknowledged:
  221. "There is an inevitability about the danger of contamination as soon as children speak to each other".

    He shortly afterwards added:

    "I know that Jacqui Saradjian was particularly concerned about things like contamination and how real it was – children speaking to each other".

    Yet within a few moments he told Miss Page:

    "I think you over-exaggerate the contamination thing. In my experience, children do talk like this – and yes, it is always there. You always have to be careful about it. But I do not think it is overriding".

  222. It is not easy to reconcile all of these statements, but I do not believe it would be unfair for me to conclude that during their deliberations Mrs Saradjian was "particularly concerned" about the possibility of contamination and that Mr Wardell (despite what he said on 22 February) knew also that the "danger of contamination" was "inevitable". That is why it would have been so vital for them to have set out their reasoning processes (in so far as there were any) which enabled them to dismiss contamination in the Shieldfield environment (for example in the Yellow Room through the indirect influence of therapists at the Nuffield via Child 23 and others upon Child 4, Child 5 and Child 17).
  223. Mr Wardell himself had recognised (on 22 February) that, even though children may "disclose" after a considerable lapse of time quite commonly, it would nonetheless be appropriate to probe further: "You would cover the obvious things like, ‘why did you not say it before?’ … But the later the first disclosure from what it is alleged took place, the more questions one would ask the child to authenticate it". Ms Jones, too, on 15 February had acknowledged (specifically in the context of Child 22) that: "… as time went on, it would be difficult to judge how far you could place weight on some of the later disclosures that came out, but I think I thought that anyway about most of the people".
  224. There is unfortunately no evidence that the factor was carefully addressed, at all, in order to enable the Team to give their clear assurance to everyone that it could be eliminated. This assurance is difficult to reconcile with the Defendants’ own case in their closing submissions:
  225. "It is accepted that by mid–1994 the Yellow Room was a potential source of contamination. The Court has to consider disclosures made by children in the Yellow Room at this time very carefully to see whether the disclosures are being made because the children were abused or because the children are simply copying other children. The picture may be an unclear one, as even if a child has been sexually abused, some of their disclosures may be the result of contamination".

    I would not quarrel with this warning now given to me, but it is unfortunate that it was not reflected in the Report itself.

  226. The Review Team’s bold conclusion at pages 220-221 of the Report cannot be put down to naivety, especially in the light of what Helen Foster told Mrs Saradjian in interview on 19 February 1997:
  227. "The parents, some of them, were going to support groups and had a lot of contact with each other and I’m sure they talked quite openly amongst themselves about what the child had said, how many interviews they had, even medical examinations, I’m sure they were not kept confidential….

    A lot of things that the parents must have said to the children outside of the interview and came out in the interview – that came out in the interview itself. The bit about Chris and Dawn in jail and whatever. A lot of promises they might have made to the children about they were going to get if they told, like presents or trips. You would have been able to see that on the video. The parents want to be on the interview, want to take over the interview in an attempt to get the child to repeat what they had already said. That was difficult".

    It is true that no other members of the Review Team were present, but they would have read those clear warnings on the transcript.

  228. Another factor was recorded by Lyn Boyle in the minutes of a meeting on 22 November 1993:
  229. "2. As this is the second major child abuse investigation in the East of the city, it is felt that it is keeping professionals in the area from proceeding normally in relation to Child Protection. There are concerns that detection in this area will be seriously hampered or as is already happening if there are suspicions of sexual abuse in a family, professionals are in the first instance looking for a connection with Jason Dabbs or the Shieldfield Nursery.

    3. Empowerment of Parents

    Normally, the social work stance has been to empower parents and families. The Shieldfield investigation as well as the Jason Dabbs investigation, has made the investigating team believe that empowering individuals or families without the knowledge and information is dangerous. In both investigations, there are a small number of very vocal parents driven by their emotions. This is one of the most dangerous and worrying elements of this investigation."

  230. A similar warning was given by Det. Sgt. O’Hara on 18 April 1997 (this time to Professor Barker and Judith Jones):
  231. "I think some of the information that has come across has been distorted, and in some instances tainted, by parents. I am not saying [the mother of Child 22]. There are other parents who, I think, use this to hide abuse within the family".

    No doubt what he said was largely hunch, and intended to remain confidential. I am not in a position to conclude that his theory was correct, but it was surely something to give the Team food for thought and would confirm the need for careful research and analysis. (It is of interest to note that Dr San Lazaro was also conscious of this potential problem. She said on 14 May that she and her colleagues were aware that "children, where there is a scape-goat like Lillie or Reed established, are possibly more vulnerable to trauma by other parties".)

  232. In the light of those comments, it is difficult to understand why Mrs Saradjian wrote what she did (as quoted above from pages 220-221), and why the other members of the Review Team assented to it. They manifestly knew it was an issue, and they must have realised that (as Miss Foster confirmed on 22 May 2002) the police had done nothing to check what cross-contamination there was – indeed there was little they could do. It is true that Miss Foster and Detective Inspector Findlay paid a visit to the mother of Child 22 at the end of July 1993 and politely warned her off, as they had reason to believe that she had been going about putting words in people’s mouths. By this time, however, it could simply have been too late. Whatever she was doing, she had already had three months in which to do it.
  233. Because nothing effective had been done to monitor the situation in 1993-1994, there was simply no evidence available to the Review Team in 1995-1998 whereby they could conclude (in Mr Wardell’s words) that contamination had never been "a major and significant issue".
  234. I do not believe that it would be helpful for me to rehearse the Review Team’s evidence at any greater length. On some of the central defamatory allegations, since the facts speak for themselves, there was little of relevance they could say. In the light of their written and oral evidence, and the content of the Report, I must now turn to consider the plea of malice.
  235. 13) Findings on the allegations of malice against the Review Team

  236. It is relatively simple to state the classic definitions of malice from the leading cases, but not always so easy to apply the principles to particular facts. Here, for example, the Report contains statements which are obviously false, many where it is impossible to know the evidence upon which specific findings of fact were based, and fundamental flaws in the reasoning process. None of these factors, however, can of itself demonstrate malice. Yet I cannot proceed on the basis that any of the Review Team members was not intelligent enough to spot them – still less all four of them. I must treat them all, it seems to me, as being very intelligent. They have all held down responsible jobs. Indeed, the intelligence of Ms Jones, Mrs Saradjian and Mr Wardell was obvious when they were in the witness box. That of Professor Barker may have been somewhat obscured by the process of cross-examination. Yet, despite that, somehow they all managed to promulgate this influential document with all its imperfections.
  237. There is room for debate as to how this came about. It is hardly surprising that in respect of some of the more glaring errors Miss Page accused them of deliberate misrepresentation or "lies". Their responses were interesting; they were generally low key and dead pan. There was resort to ready formulae which gave every impression of being rehearsed. Each of the Defendants would produce, from time to time, a mantra to the effect that he or she had approached the task fairly and honestly, and had believed what they said at the time it was written. Alternatively, they would resort to such nebulous concepts as the overall picture, the evidence as a whole, the "core consistencies" and the application of professional judgment or experience. Sometimes, too, reference was made to everything having been done in accordance with legal advice (not revealed). These responses were pulled out as trump cards as if to prevent any further probing on the subject in hand.
  238. Mr Bishop submitted that, with the best will in the world, mistakes ("some major, some minor") will always be made, as this case has amply demonstrated.
  239. Although Mr Bishop in his submissions suggested that there could be silly errors or mistakes, in seeking to distance his Clients from findings of bad faith, it was interesting that this was not the way the Review Team witnesses put it themselves. They did not appear to accept that there were significant mistakes. They for the most part seemed to want to defend the Report even with hindsight. Their case was put, in closing, on a conditional basis:
  240. "If the court, having heard and seen all the evidence, including that from the Claimants themselves which they were not willing to provide to the Review Team, comes to the conclusion that the Review Team got some or all of their conclusions as to what occurred at the Nursery wrong and/or that the Review Team made other mistakes in the way that they carried out this inquiry and recorded their conclusions, the Review Team, will of course deeply regret that they have got it wrong, but the fact that they did not come to the same conclusion as the court and that they approached their task and the issues in a different manner does not and cannot make them malicious".

  241. The problem is that I have to make a decision, on the basis of their evidence, whether or not any of them was motivated by malice in publishing the Report. It cannot be an answer merely to say that, in general terms, they honestly believed that each of the Claimants was guilty of multiple abuse. Miss Page, of course, invites me to hold that they did not have such an honest belief, or that they did not care whether the allegations were true or false. They were merely bent on assuaging the pressure from parents and others. If that were established, I could find malice. It does not necessarily follow, however, that if it is not established malice would fall by the wayside.
  242. I need to address certain other possible scenarios. Suppose that the Defendants genuinely believed the overall conclusions but (contrary to their own case) were merely careless or sloppy in compiling the Report. Suppose, on the other hand, that they had twisted or manipulated the evidence so as to give a spurious authority to the Report and its published conclusions. I have little doubt that the former conclusion would be inconsistent with malice, but that the latter would enable me to find malice established. On such an hypothesis, the Defendants might believe that the Claimants were child abusers but that is not the same as believing in the truth of the words complained of.
  243. Another possibility is that each of these people was so blinded by prejudice that any skewing of the evidence, or any misrepresentation of its effect, was unconscious. Such a scenario, perhaps more theoretical than real, would not necessarily be consistent with malice.
  244. Interestingly, Miss Page drew my attention in the context of recklessness to the decision of the New Zealand Court of Appeal of 21 June 2000 in Lange v. Atkinson [2000] N.Z.C.A. 95 following the remission by the Privy Council ([2000] 1 N.Z.L.R. 257). As is well known, it was decided in that jurisdiction not to adopt the same approach as that of their Lordships in Reynolds v. Times Newspapers [2001] 2 A.C. 127 because it would add to the uncertainty and chilling effect present in this area of the law. Miss Page was, however, rather focussing upon what was said in the judgment (at paragraphs 42 to 49) on the misuse of an occasion of privilege. There the court was canvassing the distinction between various states of mind and in particular between carelessness and recklessness, but not seeking to point a contrast between the law of England and that of New Zealand. The court was, on the contrary, explaining the law in the light of Horrocks v. Lowe. It is true that the discussion took place in the context of s.19 of the New Zealand Defamation Act of 1992, but it was said to have been "designed to reflect the common law concept of malice".
  245. The reader is reminded of the underlying purpose of the defence and of the possibility that an occasion of privilege can sometimes be used for an improper purpose. It was recognised that, where defamatory words are disseminated to a wide audience on what is prima facie an occasion of qualified privilege, the motives of the publisher, and whether or not there was a genuine belief in the truth of the statements, will warrant close scrutiny. Should the publisher be unable to disclose a responsible basis for asserting such a genuine belief, a jury might be prepared to infer that none existed: See e.g. Reynolds v. Times Newspapers [2001] 2 A.C. 127, 214, [1999] 3 W.L.R. 1010, 1036 (per Lord Steyn). So too a publisher who is reckless or indifferent to the truth of the words will be unable to assert a genuine belief. The discussion continued as follows:
  246. "44. At common law malice was presumed when the words published were false and defamatory. The presumption was however rebutted if the occasion was one of qualified privilege. The privilege could nevertheless be defeated if actual malice was proved by the plaintiff. What constituted malice was restated in Horrocks v Lowe [1975] AC 135, 149-150 by Lord Diplock, in what have since been regarded as authoritative terms. His reference in that restatement to carelessness, impulsiveness or irrationality not being equated to indifference must be read in context. The proposition does not qualify the preceding statements which cover lack of genuine belief and recklessness. Thus while carelessness will not of itself be sufficient to negate the defence, its existence may well support an assertion by the plaintiff of a lack of belief or recklessness. In this way the concept of reasonable or responsible conduct on the part of a defendant in the particular circumstances becomes a legitimate consideration. It can also be said that in the context of political discussion an irrational belief in truth is seldom likely to feature. It is for example difficult to envisage reliance on such an argument when a newspaper is defending its publication of false and defamatory material.

    45. Recklessness as to truth has traditionally been treated as equivalent to knowledge of falsity, see for example Fleming on Torts (9th ed: 1998) at 639. Both deprive the defendant of qualified privilege. We note as a relevant analogy the recent approach of the House of Lords to recklessness when their Lordships were considering the tort of misfeasance in public office: see Three Rivers District Council v Governor and Co of the Bank of England (speeches 18 May 2000). In particular Lord Steyn, when citing from the judgment of Clarke J at first instance, approved the view that recklessness involves a lack of honesty in the exercise of the power in question. He added:

    This is an organic development, which fits into the structure of our law governing intentional torts. The policy underlying it is sound: reckless indifference to consequences is as blameworthy as deliberately seeking such consequences.

    46. By the same token, it may be said that reckless indifference to truth is almost as blameworthy as deliberately stating falsehoods. Lord Diplock gave a helpful description of recklessness in the present field when he spoke of someone who publishes defamatory material "without considering or caring" whether it was true or false. Indifference to truth is, of course, not the same thing conceptually as failing to take reasonable care with the truth but in practical terms they tend to shade into each other. It is useful, when considering whether an occasion of qualified privilege has been misused, to ask whether the defendant has exercised the degree of responsibility which the occasion required.

    47. What constitutes recklessness is something which must take its colour from the nature of the occasion, and the nature of the publication. If it is reckless not "to consider or care" whether a statement be true or false, as Lord Diplock indicated, it must be open to the view that a perfunctory level of consideration (against the substance, gravity and width of the publication) can also be reckless. It is within the concept of misusing the occasion to say that the defendant may be regarded as reckless if there has been a failure to give such responsible consideration to the truth or falsity of the statement as the jury considers should have been given in all the circumstances. In essence the privilege may well be lost if the defendant takes what in all the circumstances can fairly be described as a cavalier approach to the truth of the statement.

    48. No consideration and insufficient consideration are equally capable of leading to an inference of misuse of the occasion. The rationale for loss of the privilege in such circumstances is that the privilege is granted on the basis that it will be responsibly used. There is no public interest in allowing defamatory statements to be made irresponsibly – recklessly – under the banner of freedom of expression. What amounts to a reckless statement must depend significantly on what is said and to whom and by whom. It must be accepted that to require the defendant to give such responsible consideration to the truth or falsity of the publication as is required by the nature of the allegation and the width of the intended dissemination, may in some circumstances come close to a need for the taking of reasonable care. In others a genuine belief in truth after relatively hasty and incomplete consideration may be sufficient to satisfy the dictates of the occasion and to avoid any inference of taking improper advantage of the occasion.

    49. A case at one end of the scale might be a grossly defamatory statement about a Cabinet Minister, broadcast to the world. At the other end might be an uncomplimentary observation about a politician at a private meeting held under Chatham House rules. It is not that the law values reputation more in the one case than the other. It is that in the first case the gravity of the allegation and the width of the publication are apt to cause much more harm if the allegation is false than in the second case. A greater degree of responsibility is therefore required in the first case than in the second, if recklessness is not to be inferred. Responsible journalists in whatever medium ought not to have any concerns about such an approach. It is only those who act irresponsibly in the jury’s eyes by being cavalier about the truth who will lose the privilege. Such an approach reflects the fact that qualified privilege is not a licence to be irresponsible: see McKay J in Television New Zealand Ltd v Quinn [1996] 3 N.Z.L.R. 24, 45".

  247. Mr Bishop argues that this exposition of the law has no application in England. He submits that it is inconsistent with English law and should thus not even be accorded persuasive authority. In particular, I take him to be submitting that in England courts should follow the clear distinction between carelessness and recklessness when determining issues of malice; they should have no truck with the notion that recklessness should "take its colour from the nature of the occasion" or that failing to take reasonable care and indifference to truth can "shade into each other". These propositions, however, are advanced as being consistent with Lord Diplock in Horrocks v Lowe and with Lord Steyn in Three Rivers District Council v. Governor of the Bank of England [2000] 3 All E.R. 1. As a matter of first impression, the New Zealand Court’s reasoning does not appear to be contrary to the law of England. It is interesting to note also the introduction of the concept of "responsibility" into the context of considering the truth or falsity of the defamatory statement, and also the "responsible use" of a privileged occasion. This is very close to the notion of responsible journalism now regularly investigated in England following Reynolds.
  248. I do not believe, therefore, that Mr Bishop is construing the judgment correctly when he submitted that I was being invited by Miss Page to depart form Horrocks v. Lowe and conclude "that a test of reasonableness or responsibility should suffice to defeat the claim of qualified privilege". The New Zealand court was attempting to explain some of the factors that may need to be considered in deciding whether a case of recklessness has been made out. It was expressly stated that indifference to truth is not the same thing conceptually as failing to take reasonable care. Mr Bishop argues that "No amount of carelessness, prejudice or bias can turn honestly held beliefs into ones that are not honestly held. By an elision, the New Zealand court has turned the traditional subjective test of malice into an objective one". I do not believe that is a fair interpretation. No one can know what goes on in the mind of another except by examining the available evidence. Carelessness can never be equated to indifference to truth but, depending on the circumstances, it may be some evidence of it.
  249. Nevertheless, he rightly points out that in Loutchansky v. Times Newspapers Ltd (No.2) [2002] 1 All E.R. 652 (at para. 25) the Court of Appeal did refer to the New Zealand Court as having "redefined the concept of actual malice to provide a stronger safeguard against abuse". I should, therefore, steer clear of the New Zealand Court’s terminology, however cogent and persuasive, lest I be thought in so doing to depart from Horrocks v. Lowe, within the confines of which I should look for the English law of malice.
  250. I understand that Miss Page would wish me to take the reasoning of the New Zealand Court into account in determining whether or not the Review Team had a genuine belief in some of the claims they were making in their Report for the evidence supporting widespread abuse, pornography and the participation of the Claimants in a paedophile ring. The effect of her submission would be that a perfunctory level of consideration in a situation where the allegations are of the utmost gravity, and intended to receive widespread publicity, can be taken into account as part of the evidence to be weighed in deciding whether to draw an inference of indifference to truth. While recognising that carelessness in itself is not to be equated with recklessness, it would have seemed to me that this proposition is unexceptionable as a matter of English law, if the matter were free from authority in England, but the Court of Appeal have approached the Lange decision as redefining the concept of malice and I should not therefore go down that road.
  251. There is no doubt that the Review Team adopted a quite different approach to the assessment of the evidence before them from that familiar to lawyers. It seems to have been to a large extent "impressionistic". They seem to have thought it at least equally valid. They said that their approach was akin to that adopted in a child protection conference when deciding whether to remove a child from a particular environment. Such decisions are not normally announced to the public, however, as findings of guilt. What I need to focus upon, making all due allowance for their chosen approach, is whether they acted in good faith. After all, they claimed publicly to be weighing a great deal of evidence dispassionately and to be applying a standard of proof akin to that in civil litigation. They said (at page 276), in the context of "public figures", that they should not have to prove their innocence and that "they have the right to be judged by exactly the same legal and evidential standards as any other citizens". It is therefore possible to make an assessment of whether they did what they claimed in relation to these two citizens.
  252. The Team were ready and willing to ask almost all those they interviewed what they thought had happened at Shieldfield Nursery. In other words, they were inviting speculation, rumour, guesswork and gossip and treating it as part of the corpus of evidence upon which they made their decisions. Why this was thought to have any value, I cannot see. It was surely part of the Team’s responsibility to bring objectivity and independence to a highly fraught situation in which emotions had been running high. Parents were naturally deeply concerned about what, if anything, had happened to their children. Council employees and others were nervous about being accused of impropriety or inefficiency and losing their jobs. In that atmosphere, what was required was a cool and dispassionate appraisal of the facts. A careful distinction needed to be drawn between the evidence and suspicion. Unhappily, they sold the pass early on by deciding to conflate the two almost as a matter of policy. As Mr Wardell observed on 25 February:
  253. "We found material and we found people’s opinions, that were very strongly expressed in some cases, that made us come to the conclusion we did".

  254. This approach is seriously flawed, but once it was adopted, at the very least, the readers were entitled to see clearly spelt out the difference between fact and opinion, so as to enable them to make some attempt at forming a view as to the validity of the opinions.
  255. Unfortunately, the distinction between gossip and fact was not made clear on the face of the Report, so as to enable even careful readers to spot the difference. For example, they sought to stereotype Dawn Reed as coming from a "troubled" background and, indeed, this theme was picked up by one of their experts (Dr Friedrich).
  256. This was said by Mrs Saradjian to have come from a former nursery worker called Dymphna Donnelly (known as "Donna") who left in 1990 and who, according to Dawn Reed, hardly knew her. Mrs Saradjian said in evidence that this woman had told her that Dawn Reed had described her own background as "troubled". This sounded implausible and indeed quite inconsistent with Dawn Reed’s own attitude towards her family background (and her mother’s sworn evidence). Upon closer examination, the story was said to have come via Dymphna Donnelly from an unnamed "mutual friend". That simply will not do. That is third hand gossip. Mr Bishop pointed out that Professor Barker had also referred to Carol Welsh telling them that Dawn Reed "appeared to have a troubled background". Yet this did not greatly assist, since no solid basis for the claim was produced. A reader would have assumed that the Team had such a basis for casting her in that light. When Dymphna Donnelly finally came to give evidence on 24 April, none of this was addressed. She had nothing relevant to say. Her main point seemed to be that Mr Lillie had gatecrashed a party when he was about 25 and presented himself for a lift in someone’s car without being invited. At this point I felt that the Defendants’ case was drawing close to the bottom of the barrel.
  257. Another aspect of stereotyping in the Report was to include the proposition that Dawn Reed had lived with her grandmother when growing up. Of course, literally that was true but the crucial fact omitted was that she also lived with her mother in a somewhat extended three generational family environment. The Team knew this. It becomes obvious that the Team included these vague allegations about Dawn Reed as established fact because they thought they would be treated by the readers as providing significant support for the image they had decided to portray.
  258. The attitude taken by Mrs Saradjian was that Dawn Reed could have come along and spoken to the Team and provided them with the relevant information; since she had chosen not to, the Team were entitled to reach such conclusions on what they had (i.e. in this instance gossip). It was thus, in a sense, her own fault that she was misrepresented. So much for independence and objectivity. I thought Mrs Saradjian’s off the cuff response very revealing. Still, however, these are aspects of the Report that are consistent with prejudice and undisciplined mental processes. Such matters, standing alone, are not to be equated with the concept of express malice.
  259. Although the Team appeared to set such store by people’s "opinions", there was an obvious slant in the process of selecting which to rely upon and which to reject. They chose to omit opinion if it was favourable to Miss Reed. The classic case was that of Mr Kevin Hattam, her trade union representative, who had said that either she was innocent or "a brilliant liar". Professor Barker regarded him as biased. It was therefore inappropriate to give any weight to his assessment, even though the Review Team had been especially keen to invite his impression (since he had seen more of Miss Reed than most other witnesses). Moreover, Mr Hattam’s reservations about the disciplinary proceedings (being the "strangest" he had ever encountered) could be put to one side because they had it from Mr Graham Armstrong himself that the disciplinary procedures had been fair.
  260. Another assessment the Team chose to ignore was that of Det. Sgt O’Hara, given in interview on 18 April 1997. He expressed his opinion that Dawn Reed was not a child abuser. The Team’s response was "So you are still struggling with that a bit?". This observation to the police officer (which might be thought a little patronising) is echoed in the Report (page 113), where the Team commented that "Joyce Eyeington was frank with us when she said that she struggled to believe the allegations". It appears that the Review Team were operating on certain assumptions, such that anyone who gave Christopher Lillie or Dawn Reed the benefit of the doubt must either be biased or "struggling" to overcome prejudice.
  261. They went on to inform Sgt. O’Hara that Mr Lillie and Miss Reed had chosen to work together. This was incorrect as it happens, although another member of staff (Carol Welsh) was under the impression during her interview, in August 1996, that they had opted to stay together. The officer said this was "news to me". He then recalled how he had addressed the possibility of a sexual relationship between Mr Lillie and Miss Reed and concluded "I very much doubt it". This the Review Team also brushed aside with the banal words, "Well, they say opposites attract". Professor Barker simply dismissed the officer’s views on the footing that he was "operating on a basis of having a stereotype of what abusers of children were like, which Dawn Reed did not fit".
  262. It began to emerge in the course of the trial that the Review Team had an ambivalent relationship with the police. They appeared to feel beholden to them for allowing them to see the video recorded interviews with the children (as the parents had requested). Some members of the Team appeared to think that there was an agreement or understanding with the police that, in return, they would not criticise social workers and/or police officers over the way the interviews were handled. Mr Wardell, on the other hand, did not believe this to be the case. Eventually, Professor Barker admitted, "My memory is that there probably was".
  263. There is no doubt that the Team were reminded by the police in writing that there is a statutory scheme for dealing with police complaints and, accordingly, they formed the view that it was no part of their function to criticise police officers. I was also told by Mrs Saradjian that there was a letter from the police asking them, in effect, to "go easy" on Helen Foster when interviewing her. The letter was only produced late in the day (on 18 April) and I have set it out above together with Professor Barker’s reply (see paragraphs 1186-1187). Detective Inspector Findlay referred in interview to that letter, in which she had apparently been described as being "upset" by the inquiry. He said: "Did you get that letter about Helen Foster? …I really mean it. I want you to give very serious consideration to that; this enquiry had a terrible effect on her".
  264. Mrs Saradjian said that they did not want to upset her further. Miss Foster was the officer who conducted or supervised the controversial interviews with Child 14. It was to her, therefore, that questions needed to be directed as to the serious issues raised by Holland J when the trial collapsed. Mrs Saradjian accepted that there were questions they would have liked to ask – but they chose not to. Again, very revealing. It begins to look as though they were indifferent to the answers – answers which Holland J had explained were so crucial. Indifference to the truth can, of course, in certain circumstances provide evidence of malice.
  265. I strongly suspect that if it had not been for a passing reference to it in the Campbell Findlay interview the "go easy" letter from the police would never have seen the light of day (as it eventually did only on 18 April 2002).
  266. So far as the suspicious gap in the tape recording of this interview is concerned, they accepted, without even questioning it, the explanation that Helen Foster had forgotten to ensure that the tape was switched on.
  267. This is a very important aspect of the Report. The Team gave the world its assurance (which the readers had to take at face value) that the child’s evidence of rape was "powerful" and "persuasive" and, by strong implication, also consistent over three separate interviews. Even in 2002, Mr Wardell ventured to suggest in his evidence in chief that the videos were "of an exceptionally high standard". Yet the truth was that Professor Barker, at least, regarded them as "inconclusive". In certain respects, so too did Mrs Saradjian.
  268. It is to be remembered how critical that last section of the third interview was for Mr Lillie. He had just been given bail on 22 October 1993 when, after the child had finally got round to accusing him of rape, he was immediately re-arrested and thereafter remained in custody for the next nine months. The accusation of rape was made in circumstances powerfully castigated by Professor Bruck (see paragraphs 416 and 782 above).
  269. Yet none of this was questioned by the Review Team. The readers were not to know that they were "going easy" on Helen Foster. They were entitled to assume that the matters had been independently and carefully investigated and that Holland J’s concerns would have been thoroughly addressed. The Team felt qualified to ladle out praise to Helen Foster and other officers. It was thus vital for the public to know that they were not being even-handed. It was a one-way valve. They regarded themselves as disqualified from criticising and, what is more, had not asked questions that needed to be asked (and this as a matter of policy).
  270. There is thus, to say the least, a hollow ring to the Team’s claim on page 24 of their Report that they had uncovered "as full a picture of the events under investigation as is humanly possible". It was ludicrous to make such a claim when they set out to empathise with witnesses and proceeded on the uncritical footing that they were being told the truth. Moira Luccock of the Independent Persons Scheme was asked about the inquiry process that she and her colleagues had been overseeing (and to which they gave a clean bill of health):
  271. "… But it is not like a situation in a courtroom where you are actually challenging. You are not challenging the person. You are actually accepting that they certainly believe what they are telling you, and you have no reason to doubt that as the investigator".

  272. It is true that she said this specifically in the context of complainants rather than police officers, but it has not been suggested that the Team adopted a more testing process in some cases than others. Such an approach may be suitable for some forms of inquiry but its limitations are obvious. It is certainly not a legitimate way of determining issues of guilt or innocence of criminal offences such as rape or indecent assault with a view to publication. Yet the Team were not frank with their readers about the limitations of their inquiry. They tried to have it both ways by claiming publicly to have been "robust" and to have provided "as full a picture … as is humanly possible".
  273. The members of the Review Team knew about the worrying break in the tape. They knew it was "unfortunate", and Mrs Saradjian accepted it looked "fishy". But none of this was mentioned. They shut their eyes to it and refrained from asking the questions that cried out to be asked. Readers would assume that the fulsome praise of the interviewers would have only been included in the Report after an exhaustive exploration of their methods. It turns out that this was simply not done. They had been reminded that it was not for them to investigate criticisms of the police. Yet the other side of the coin would surely be that they were equally disqualified from covering them with glory.
  274. Mr Wardell was in difficulty over the gap in the tape. On the whole, he came across as a decent man trying to be as frank as he could. He seemed modest, level-headed and restrained in his account of the Review Team’s task. Weasel words did not come naturally to him, but even he succumbed on this occasion. I asked him on 22 February whether he was then saying only that he found Child 14’s second interview "powerful", or whether as the Report states he found all three "powerful". He replied:
  275. "If I had to distinguish… I would say that video 3 was less powerful, but not much so, only by degrees, purely because of the gap".

    That was the understatement of the year.

  276. Moreover, the Team members were not just neutral or silent. They gave an assurance generally that there were no leading questions. On 8 February Professor Barker went so far as to concede that "… it was too strong a statement on reflection". He repeated that concession on 17 May. That is a classic example of Professor Barker’s trying to hedge his bets. He knows the assurance was untrue. Each of the four members of the Review Team had viewed the Child 14 video-taped interviews. Moreover, each Team member had seen Professor Barker’s note of the Child 10 interview in which he expressly refers to "leading" questions. Each of them therefore knew it to be untrue. It was obviously untrue, and the readers had no way of forming a contrary opinion.
  277. In the light of these matters, I am afraid that I have been unable to come to any other conclusion than that the bland assurances given to the public about Child 14’s video evidence were not given in good faith. There is just too much brushed under the carpet for it to be explicable by carelessness or accident. The police were obviously anxious to keep Mr Lillie in custody. He was about to get bail, and the only way he could be re-arrested was if a solid new allegation came into their hands. An allegation of rape was obtained in the most oppressive circumstances, at the end of a third hour long interview, and only after the tape had been mysteriously switched off for 15 minutes. Armed with that, the police went straight off to re-arrest Mr Lillie and to deprive him of his liberty until he was acquitted the following July. Yet the Review Team deliberately refrained from exploring any of this with the police; instead they reassured the public that nothing was amiss. It was conceivable that the suspicious circumstances surrounding the events of 22 October 1993 could be explained quite innocently. But that had not happened by November 1998. The Council had a right to be told the truth and the Review Team misled them.
  278. No account was taken, either, of the fact that Child 14 herself appeared on Panorama in 1997 on the same programme as Mrs Saradjian, and gave yet another version of what happened to her. This was not apparently thought in any way to undermine her reliability. Indeed, on 22 February Mr Wardell told me that it did not affect the Team:
  279. "We had to be careful it did not. It is a bit difficult when you have seen it happen, but we set it to one side".

    Earlier, he had said that they tried to behave as if the programme had not happened.

  280. The other insurmountable hurdle for the Review Team is that part of the Report where they appear to claim corroboration for the allegations of a paedophile ring and involvement in pornography. They did not need to make such grave and disturbing allegations. The simple truth is that no evidence was found to corroborate them. Yet the Review Team wished to convey these horrible smears to the public as being justified by their three years of careful investigations. They grossly misrepresented the position in at least four respects. As I have already explained, the police were satisfied (1) that there were no concerns about the named young man with the camcorder, and (2) that there was nothing to put the older man of distinctive appearance, or (3) the man with a disability, or (4) the woman with red hair "in the frame" for child abuse. Unfortunately, the public were not to know this. They were given the impression at pages 217 and 269 of the Report that the police investigations had provided corroboration for what the children had said (or rather for what various adults had construed them as saying).
  281. The Team witnesses tried swearing by the card. They suggested that what they meant was that the police had found that people existed physically corresponding to the descriptions given by the children or their parents. What obviously mattered, however, was not whether such persons existed but whether they had ever been present on occasions of child abuse. That was emphatically not corroborated. There was no point in mentioning them in the Report unless it was to suggest that there were grounds to link them with paedophilia. The explanation given, therefore, was feeble and disingenuous.
  282. The argument was raised by the Review Team in closing that it was not only the Review Team who "considered" or "concluded" that other people were involved in abusing the children. They cite individuals who expressed "opinions" to their inquiry, but it is crucial to focus on the distinction between opinion, surmise or guess-work on the one hand and evidence on the other. Particular examples cited were Julie Kinghorn, Helen Foster, Vanessa Lyon and Dr San Lazaro. The Review Team can hold whatever opinions they wish, but they were being paid to look into the facts and present a measured appraisal of the evidence. It is that which they chose to misrepresent. The personal opinions of Vanessa Lyon and Dr San Lazaro are not evidence. They were lacking in balance and objectivity, but the Review Team as private individuals were entitled to agree with them. Yet the Report was supposed to be authoritative and what they were not entitled to do was to pretend that the police had found corroborative evidence. Neither Julie Kinghorn nor Helen Foster ever gave any support for that proposition.
  283. The Review Team praised the police for their vigour and, in particular, they praised Mr Campbell Findlay. I have little doubt that, if he had dug up a shred of evidence to support the paedophile theory, he would have pursued it to a conclusion. Any police officer involved in the inquiry would be under a duty to protect local children from exploitation and abuse. Yet nothing was found to link any of the "suspects" to impropriety of any kind. What the Team did was dishonest. They told the public that these "vigorous" police officers had turned up (unspecified) evidence but that it was not strong enough to be used in court. In other words, these hardworking officers were subtly portrayed as having been let down once again by the inadequacies of the law of evidence. I will not permit that to be brushed over. It was a mischievous falsehood. It put not only the Claimants in danger but several other quite innocent people (against whom nothing has been turned up in the last nine years).
  284. What is said on the Defendants’ behalf in their closing submissions is that "the paragraph could be better phrased to make it clear that it was the children’s evidence and not any other evidence". This is said to be clearly attributable to "loose thinking and/or wording and not evil intent". That was not how it was put by the Review Team in evidence. Professor Barker tried to shelter behind a proposition which could not be tested or refuted – namely, that Campbell Findlay had said something off the record (to the effect that they had found some corroboration). That was not true. The other two Defendants who had been present (Mrs Saradjian and Ms Jones) accepted that nothing had been said off the record to confirm the particular identifiable individual’s involvement in paedophilia.
  285. One can also detect the same subtle techniques at work on page 100 of the Report in relation to Child 22 where the negative anal findings are converted into "no conclusive forensic evidence of penetrative trauma" (emphasis added). Again the false impression is given that there was some evidence.
  286. I cannot see how these grave allegations can have been given currency and the apparent stamp of authority in the Report without the Review Team knowing exactly what they were doing. They each went through the Report line by line and approved it. They knew what the police had been saying about lack of corroboration, but despite this they allowed it to go forward as part of their conclusions that there were solid grounds to corroborate the Claimants as being part of a paedophile ring, together with some of those identifiable local residents, and as also being engaged in child pornography. This is deeply worrying.
  287. This matter is closely linked with the passage at page 269 of the Report which refers to photographs taken from the flat where Mr Lillie had been living. Not only did Mr Lillie and Lorraine Kelly go into the witness box and explain about the photographs, but the Review Team were told years ago by the police that, after going through everything with a fine tooth comb, they had found nothing to support any suggestion of impropriety or pornography. Yet, for no reason whatsoever, the Review Team chose to announce to the public that Mr Lillie’s explanation for the photographs "was probably false". Since Detective Inspector Findlay had been painstakingly through them all, and they had not, it is difficult to see how they could say that in good faith. It was deliberately and gratuitously added.
  288. Between pages 209 and 217 of the Report, various striking examples are given of child abuse and, in particular, of penetrative injuries. It is baldly stated that:
  289. "When investigations were carried out, in many of these cases physical [i.e. clinical] evidence was found that validated the children’s testimonies".

    What the reader is perhaps most likely to remember is the dreadful allegation that Child 4 had cutlery inserted into her vagina which caused bleeding. This striking example of cruelty (no longer pursued in these proceedings despite being "put" in cross-examination) can only have been included in the Report on the basis that the Review Team wished the readers to conclude that they had found it proved. The likelihood is that the reader will also assume that this grave allegation could not conceivably have been included in that section of the Report unless there was powerful evidence to corroborate it – including "physical evidence" of penetrative trauma. There was none.

  290. They had not even discussed the matter with Dr San Lazaro in interview, despite the fact that the mother had waived confidentiality in respect of medical records. Professor Barker admitted that to him, as a layman, it had seemed unlikely that such an example of penetrative abuse would be consistent with no physical findings, but they all apparently so lacked curiosity about this serious example that they did not pursue it with a paediatrician. Again this betrays at the very least a determination not to pursue elementary lines of inquiry which could conceivably undermine their conclusions on these desperately grave allegations.
  291. Moreover, no concern appears to have arisen over the mother’s developing and changing story. In 1997, on Panorama, the story had become embellished by the presence of Mr Lillie who was said to have been "laughing" while the cutlery was inserted. This detail was introduced at least four and half years after the event could possibly have happened. The mother then alleged that this outlandish piece of cruelty by Dawn Reed happened more than once. Yet none of this gave the Review Team pause for thought at all.
  292. I have already referred at some length when considering the Review Team’s evidence (at paragraphs 1225-1230 above) to their failure to explore with staff members the children’s allegations that one or more of them had been present on visits to places outside the nursery when abuse is supposed to have taken place. This too was such an obvious line of inquiry to be pursued. I can only conclude once again that the Review Team did not want to know. Despite this, they represented to their readers that they had come to their devastating conclusions after a painstaking analysis of the evidence. Some of their readers clearly believed that. For example, Jennifer Bernard said that she had been so persuaded. She had already left the employ of Newcastle City Council by the time the Report came out and I have no idea how carefully she read it, but it did not take very long for others to see through it (e.g. Mr Dervin, Mr Cosgrove and Mr Marron).
  293. From time to time, Mr Bishop tentatively sought support for his Review Team clients from the attendance of representatives from the Independent Persons Scheme. I am quite sure that those involved in that Scheme often do an excellent job in trying to ensure fairness in the kind of inquiries for which their services would normally be required. On the other hand, most of them would not have the relevant knowledge or expertise for determining "charges" against Mr Lillie and Miss Reed. As Moira Luccock pointed out on 1 March, the Shieldfield experience was unusual if not unique; that is to say, the attempt to carry out an investigation generally as well as dealing with individual complaints. They normally deal with "single complainants".
  294. It is against that background that Moira Luccock’s views have to be assessed. Mr Bishop introduced the opinions she expressed at paragraphs 32 and 35 of her witness statement. She described the Review Team’s investigative process as "open, detailed, thorough and fair" and expressed the view that the Review Team’s conclusions were "based on a comprehensive analysis of the evidence collected". There was no "inherent bias against Lillie and Reed" and, moreover, they "came to their findings after the conclusion of a thorough investigation". (It is ironic, perhaps, that she should be making such a claim when she had already told me, shortly beforehand, that even before the Review Team began its task it had become "clear" that the Council was "dealing with a multiple abuse situation".)
  295. I have no doubt at all that those are the honest beliefs of Moira Luccock and her colleagues. Yet I am bound to come to my own conclusion on these matters on what I have read and heard in this trial. My conclusion is quite the opposite. With the benefit of fuller investigation, it is apparent to me that Moira Luccock’s assessment is simply unsustainable.
  296. I mentioned earlier that for a fact-finding tribunal it is especially helpful to focus on moments when a witness’s mask slips. During the course of the City Council’s evidence, other examples of Professor Barker’s true character came to light from contemporaneous documents. First, there was the incident involving Mr Hattam. He was a trade union representative whom various staff members wished to have accompany them when being interviewed by the Review Team. Various City Council witnesses recalled this controversy which had flared up in 1996. Professor Barker (perhaps with the assent of one or more of his colleagues) took objection to these witnesses being represented by the union official of their choice. The reason he gave over the telephone to Mr Warne on 24 July 1996 was that Mr Hattam was biased because he seemed to believe that Dawn Reed was innocent.
  297. The relevant paragraphs from Mr Warne’s note should be set out in full:
  298. "[Professor Barker] believes there may well be a real problem here. He believes, on the basis of their interview with Kevin Hattam that he believes that Dawn Reed is innocent. In his interview, Kevin Hattam said that this was the strangest disciplinary case he had ever been involved in, because there was no evidence. He indicated that he was happy to defend Dawn Reed and commented that she was either innocent or a brilliant liar. He went on to indicate that he did not feel he could have represented her if he felt that she was guilty. As a result of these remarks, Dr Barker believes that Hattam still has a strong personal bias in this matter and is therefore unsuitable for representing members of staff.

    I pointed out that under the procedures staff can choose who they wish to represent them and I was uncertain as to what rights he had to refuse a particular representative. He pointed out that he could adjust the terms of reference and could create rules to deal with this situation".

  299. It is not easy to understand such a mentality. Yet the episode sheds a flood of light on Professor Barker’s lack of objectivity and his willingness to use his position to bully.
  300. Secondly, there was the unpleasant attitude displayed at around the same time to one of the City Council’s solicitors, Ms Barbara Milligan, who dared to question Professor Barker’s summons to attend upon the Review Team and be interviewed. She wondered exactly how she could help and what areas they wished to ask her about. She not unreasonably inquired by letter in April 1996. Professor Barker responded by telephone on 29 April (according to a contemporaneous note) that it should be enough that they had asked her to attend. He also said to her over the telephone, according to the City Council note I was shown, that the only other people who had declined this summons were Christopher Lillie and Dawn Reed. He asked if she really wanted to find herself in that company. Not surprisingly, she did not care for his tone. For sheer nastiness, it takes the biscuit.
  301. After a three month gap, Professor Barker returned to the witness box on 17 May in order to deal with these apparently telling conversations. As to Miss Milligan, he said that he had not seen the note of 29 April 1996 until recently and he was somewhat shocked by it. Miss Milligan had obviously got it wrong. He remembered the conversation. Mr Wardell was in the room at the time and had complimented him on how polite he had been, especially in view of Miss Milligan’s "aggression".
  302. He had to agree that Miss Milligan could only know that the only two people who had declined to meet the Review Team were Christopher Lillie and Dawn Reed if she had been told as much by him. He agreed that he also told her that, if she refused, her name would be put in a list at the back of the Report (the only other candidates at that stage, as it happens, being the two Claimants). Those admissions take Professor Barker right up to the wire – he draws back only from accepting that he issued a warning as recorded. I do not believe that Miss Milligan, a senior solicitor, would have recorded the "warning" in those terms if it had not happened. She could hardly mistake it; nor had she any reason to make it up.
  303. Miss Page pointed out that a similar "warning" had been given to Joyce Eyeington. It is set out in her witness statement and was not challenged when she gave evidence. She too was told that it would look bad if she did not come and meet the Review Team. Her name would be included in the list.
  304. Henry Warne had made another note. This was dated 19 April 1996 and concerned yet another potential solicitor witness, Mr Stefan Cross. Mr Warne recorded that Professor Barker was saying that he would write to Mr Cross with a "final warning" that he would be listed as one of the few people refusing to attend. He told him also that otherwise it was only Christopher Lillie and Dawn Reed who were refusing. According to Professor Barker, Mr Warne has also got it wrong. But I do not find it credible that both Mr Warne and Miss Milligan had got hold of the wrong end of the stick. The pattern is a consistent one. I think Miss Milligan’s record is likely to be accurate.
  305. So far as Mr Hattam is concerned, Professor Barker rather surprisingly said that he personally did not have a problem about what Mr Hattam believed. His objections were rather based on the fact that some nursery workers and some social workers did not want to be represented by Mr Hattam because it was perceived (either by them or by parents) that he would have a conflict of interest. It is difficult to see what would be the nature of the conflict. Yet this seemed to be a new allegation. I had never heard of it before. There seemed to be no record of such concerns. Nor was Professor Barker able to identify any of the individuals who were supposed to be concerned. It did shortly afterwards emerge that there was at least one person who did not wish to be accompanied by Mr Hattam. Vanessa Lyon told me on 23 May that she had been vigorously cross-examined by Mr Hattam during the disciplinary proceedings and would rather have another trade union officer when she came to be interviewed. This was, however, a matter of personal distaste and nothing to do with any conflict of interest.
  306. Vanessa Lyon’s evidence thus supports Professor Barker’s recollection up to a point. But yet again there were contemporaneous documents which appeared inconsistent with his claim to be neutral over Mr Hattam. He was shown a note of 23 July 1996 of a meeting between Ms Bernard, Mr Armstrong and Mr Warne in which it was recorded as being Dr Barker who was "unhappy" about Mr Hattam representing nursery staff. Once again Professor Barker deftly shifted his ground. He might have been "unhappy" after all – but only because of the perceptions of others (that Mr Hattam was in a position of conflict).
  307. There was the other note of Mr Warne (quoted above) dated the next day. He recorded Professor Barker’s view (expressed on the telephone) that Mr Hattam had a "strong personal bias" which rendered him unsuitable to accompany staff when being interviewed. Once again Professor Barker claimed that Mr Warne had got it wrong. That one sentence alone was inaccurate. I am quite satisfied, however, that he was accurately recording Professor Barker’s stance which, at that time, was something of a bone of contention. The attitude of the union was, in effect, that it was none of Professor Barker’s business. Employees could be accompanied by a trade union official of their own choice.
  308. As Miss Page pointed out, if the position truly was that some members of staff wanted him, and others (e.g. Vanessa Lyon) did not, that was easily accommodated. There was no problem. The only issue that gave rise to these discussions was the fact that Professor Barker was trying to interfere by precluding some witnesses from having the trade union official of choice.
  309. This was a matter on which Moira Luccock of the Independent Persons Scheme also gave evidence. On 1 March she said she recalled the issue, at least in general terms. It seems to have been her recollection also that the matter was raised by Professor Barker rather than staff. What she said was this:
  310. "I certainly recall that it was an issue that Richard Barker felt should be aired … and there needed to be a resolution because members of staff were entitled to have a representative with them. So it needed to be resolved".

    She agreed that it accorded with her memory that Professor Barker was objecting "because Kevin Hattam had represented Dawn Reed in disciplinary proceedings".

  311. The matter was finally resolved when Barbara Hann, the UNISON Branch Secretary, wrote to Jennifer Bernard on 30 July 1996, pointing out that her members at Shieldfield Nursery were extremely concerned, as they had great confidence in Kevin Hattam, and wished to be represented by him. She pointed out that it was illogical for them to be deprived of his services when he had acted for them in the Part 8 review. She added, "UNISON therefore feels it must insist that Kevin is permitted to represent the members". Professor Barker then gave way and informed Jennifer Bernard that, "having made their point", the Review Team would no longer object (see her memorandum to Mr Warne of 1 August 1996). Barbara Hann was in a position to stand up to Professor Barker. Others were not so fortunate.
  312. What is revealing about these episodes is not so much that Professor Barker was becoming too big for his boots, but that he was plainly incapable of keeping an open mind or approaching the search for information dispassionately. In my judgment it is manifest from what he said to Ms Milligan that his claim in February 2002 to have retained an open mind about Dawn Reed until December 1997 was simply not truthful. Nor was the claim (at page 19 of the Report) to have guaranteed "natural justice for all those involved".
  313. Another strange and revealing aspect of the Team’s approach to evidence relates to their own experts. They instructed entirely appropriate people to give them advice on some of the matters confronting them, namely Professors Ray Bull and Graham Davies. They are undoubtedly well known experts in the field of child sex abuse investigation.
  314. Unfortunately, those experts were unable to review the video recorded interviews of the children. Nor did the team, even allowing for that important limitation, invite their comments on the quality of the children’s disclosures. It was regrettable that the Review Team did not even disclose their letters of instruction to Professor Bull until after the trial was over (on 31 May 2002). They did not disclose those to Professor Davies. What does emerge, however, is that Professor Bull was not supplied with any material about the video interviews or about the children’s statements or how they evolved.
  315. Turning to what these experts had been able to provide, I find it curious that the Team seem to have ignored or put to one side the advice received. In particular, Professor Davies at paragraph 9 of his Report sets out the guidelines for good interviewing practice. When comparing his guidance, however, with what went on so far as the Shieldfield children are concerned, it soon becomes apparent that it was not consistent. Nor did they appear to take account of Professor Davies’ warning that, even after statements have been elicited through suggestive techniques (intentionally or otherwise), they can nonetheless give the appearance of being spontaneous.
  316. They do, however, address (at pages 220-221 of the Report) Professor Davies’ warning against over-zealous questioning. They conclude that in the Shieldfield case the children’s evidence could not be explained by "… the implanting of false information, pressure from parents, and/or by over-zealous or suggestive questioning on the part of social workers and/or police". That conclusion is something Professor Bruck is unable to understand in the light of what they had seen. I too am unable to understand it in the case of persons of their experience, unless they were setting out to misrepresent the situation, safe in the knowledge that their readers would not have the primary evidence and, therefore, lacked the ability to form any opinion of their own. They had to take what the Review Team said on trust. It is, I am afraid, difficult to avoid the conclusion that this trust was abused.
  317. Although the Report (pages 219-20) claims that the Team considered the children’s statements in the light of Professor Davies’ advice to scrutinise the history of the children’s statements, and whether the name of the accused was suggested to the child, there is no evidence that they in fact did so. Readers would, on the other hand, assume that they had done precisely that in arriving at their conclusions and giving their assurances (for example, as to the lack of parental pressure and of suggestive questioning).
  318. Miss Page illustrated the significance of this in relation to the claim that the Team were "convinced of the spontaneity of disclosures particularly in relation to ….. the use of cameras, and syringes". They did not scrutinise the history of the children’s statements. This may be partly because it was contrary to their policy of not testing the parents’ evidence and partly because they did not take the trouble to do so. It is, however, quite wrong to give the impression that their conclusion was based on careful scrutiny. That is a false claim, just as the Team made false claims about the absence of leading questions, and the supposed corroboration for the paedophile ring and for the taking of pornographic pictures by a named individual with a camcorder. Miss Page invited me to trace through the allegation about syringes to show how "careful scrutiny" would have shown anything but spontaneity.
  319. There are three children primarily relevant to "syringes", Child 4, Child 10 and Child 12. In relation to Child 4, the Team included (at pages 212-3) reference to a child describing injections in the arms, legs and bottoms [sic] that "make me go whoo", allied with the suggestions that "they hurt my fairy" but after injections "it did not hurt". This derives from Child 4’s mother’s interview with Mrs Saradjian on 8 November 1995. There is no earlier record of the child saying anything to this effect. Prior to publication of the Report, three years later, there was no "scrutiny" of the history of the child’s statements, careful or otherwise. The mother has said in these proceedings that the child made claims to that effect only in or later than July 1995. It is extraordinary that the Team showed no interest in establishing this at the time, while claiming to have followed Professor Davies’ advice "as far as it was possible to do so". The readers of the Report were surely entitled to know that the allegation first surfaced well over two years after the suspensions. They knew nothing as to the circumstances in which the child (as opposed to the mother) made these statements but yet claim to be "convinced" as to their spontaneity. What they did know was that Child 4 had over the intervening period been subject to a good deal of questioning and to a real risk of cross-contamination (see paras. 615-619 above).
  320. The claim in the Report cannot be true either in relation to Child 12. The words they attributed to him (at pages 212-13) were "nice juice into bottom so it would not hurt". This wording derives from an interview by Ms Jones as late as 8 April 1997. Dr San Lazaro comes on the scene at this point, because she saw the boy on 11 November 1993 and introduced the notion of a syringe. She produced one for him, invited him to use it to transfer juice from one receptacle to another and allowed him to take it home and play with it. That is almost certainly where the notion of "juice" came from. The Review Team knew nothing of this because they had not heeded Professor Davies’ advice to scrutinise the history. Again, they could hardly be convinced of the child’s spontaneity.
  321. It is right to say that the child is recorded by social workers on or about 9 November 1993 as having told his mother that he had been in bed with "Chris and Dawn" and they had "put a needle up his bottom" (no reference to "juice" or "not hurting"). It is necessary to see this in context. It was the same day that the mother rang for advice about a "wriggly bottom". The GP notes associated this with itching and referred the mother to Dr San Lazaro who saw him two days later. The wriggly bottom appears to have been associated with an anal discharge, and the streptococcal infection was diagnosed. None of this had anything to do with the Claimants. The child was clearly, however, focusing on anal discomfort. The reference to "a needle up his bottom" may have been a pure coincidence of timing but it seems unlikely. To what extent or how Mr Lillie and Miss Reed came into the conversation about the anal discharge or the "wriggly bottom" cannot now be determined. I am certainly not going to assume that their names were mentioned spontaneously and independently of the current discomfort.
  322. The Review Team did also have a note from Kulvinder Chohan to the effect that the child had retracted the allegations on video.
  323. As for Child 10, the relevant passage in the Report is "… another said needles in his bottom ‘make him dead’". The words come from the mother’s interviews with Mrs Saradjian on 8 and 17 November 1995. Miss Page takes the point that the Review Team altered the sense because what the mother is recorded as saying is "[Child 10] also talked about Dawn putting needles into his bottom that were supposed to make him dead". There is no other record of a similar allegation ever being made by Child 10. I am not convinced that the omission of the italicised words makes a significant difference. What is, however, clear is that Mrs Saradjian did not follow Professor Davies’ advice and explore the timing or background to the child’s statement. In the words of Ms Jones, "our job was not to cross-examine the parents".
  324. It is thus important to note what has subsequently emerged. In particular, it is accepted in the mother’s witness statement that she led the child (understandably) as a result of having passed on to her the allegations apparently made by child 14 in October 1993 involving Child 10 in the context of needles. There is also a contemporaneous note of Helen Foster dated 23 October 1993, which was available to the Review Team and records the mother as having asked the boy if he had been hurt with a needle. He responded, according to this record, that he had not been hurt but it was "a nail with water in the plastic bit that was put on the cheek part" of his bottom. In the light of this background, it is obviously regrettable that the readers were not informed of the circumstances in which the child’s comment was elicited (since it could hardly be said to have been spontaneous) or the fact that the emotive words "make him dead" derive from the mother (not the child) two and a half years after the "Shieldfield scandal" had first blown up. Nothing was said by Child 10 in either video interview about needles despite (as Professor Barker expressly noted on viewing them) a number of "leading questions, very focused on getting answers".
  325. Readers of the Report, in the light of such information, might well want to know how it was that the Review Team could have become "convinced of the spontaneity" of the child’s alleged disclosure that "needles in his bottom ‘make him dead’". Once again it is difficult to see how they could make such a claim. I do not see how this can be categorised as a "regrettable error" or as something which was just "badly expressed". The Review Team gave a positive assurance which cannot have been true.
  326. Mr Bishop argued, generally, that even if the false statements in the Report are not to be categorised as unfortunate slips it would not defeat qualified privilege since they honestly believed that the Claimants used syringes or needles to drug the children. That would be a complete answer to the plea of malice even if this belief were arrived at by a process of reasoning which contained a few unfortunate blips. Lord Diplock himself, of course, makes it quite clear that an honestly expressed belief may be protected notwithstanding its derivation from faulty reasoning. Here, however, I do not accept that the proposition is sufficient to dispose of the Claimants’ case.
  327. Many people in Newcastle believed prior to the Review Team’s appointment that the Claimants were large scale child abusers. There would be no surprises if the Review Team merely joined the crowd. What mattered about the Review Team, on the other hand, was not their personal beliefs but rather the assurances they were giving to the public about the strength of the evidence in support of the widely held beliefs, following three years of supposedly rigorous and impartial analysis. That is what they were paid for (I was told they received £364,810.61). It was this supposedly detailed consideration of the evidence which distinguished them from the general public and underlay their claim to be able to accuse the Claimants under cover of privilege.
  328. What was so damning in their Report is not that Ms Jones or Professor Barker as individuals assumed, for example, that the disciplinary findings of 1994 were justified but that they and their colleagues were vouching for the evidence. If they misrepresented the state of the evidence, that is very serious indeed. It would suggest that the protection offered by the law was being abused.
  329. I have already mentioned the further warning notes sounded by Helen Foster about parental pressures in her interview with Mrs Saradjian (see paragraphs 1278 above). To pretend that contamination or pressure "could" have no bearing on the case without even addressing her concerns was a gross misrepresentation.
  330. The Defendants submit that "the probability of a team of professionals conspiring … to produce a deliberately misleading document is remote indeed".
  331. At the beginning of the trial I was sceptical about the allegations of malice against the Review Team. I was conscious of the need to prove bad faith in relation to each of its four members and that findings of malice are, accordingly, very rare. I said as much in my ruling of 7 February when I permitted the plea to go forward beyond the close of the Claimants’ case. Yet, having thought about the issue constantly over the many weeks of this trial, I am in the end left in no doubt that the qualified privilege to which the Team would otherwise be entitled is vitiated by express malice. They abused the occasion for which they had striven so hard to ensure that blanket protection. Its four members consciously, after a detailed consideration of the material assembled before them, set out to misrepresent the state of the evidence available to support their joint belief that Mr Lillie and Miss Reed and other local residents were child abusers (and indeed abusers on a massive scale) and to give readers the impression that statements by parents and/or children had been corroborated by police inquiries.
  332. Moreover, so far as the accounts of these very young children were concerned, the assurance was given quite deliberately that (leaving aside altogether contradictions and inconsistencies) what they were saying was untainted by suggestions, leading questions or cross-contamination. They knew the contrary to be the case. Yet they even went so far as to assert (on page 102) that interviewers at the time "went to great lengths to the [sic] follow the Memorandum of Guidance literally, to almost have to treat children as though they were adult witnesses" because they were afraid of being accused of "leading" a child. (It is clear that the Review Team actually thought that even more leading questions should have been asked.)
  333. Professor Barker clearly recognises this problem. He admitted in February that the passage (at pages 220-221) was overstated but, significantly, when he returned to the witness box in May, he chose to raise the topic again even though he was not asked about it. He said the claim was rather "strong". Whether he raised it because of a guilty conscience, or just because he recognises the weakness of their position, I know not. Even by that time, Professor Barker had not disclosed his rather scanty notes of the video interviews, but he did so on 31 May. It then emerged that he himself had noted "some leading questions, very focused on getting answers" in relation to Child 10’s second interview. This was shared with his three colleagues but not, of course, with the readers of the Report. Mrs Saradjian stated her position on 20 February. She actually wrote the passage on page 221 (to the effect that the questions were not in any way leading). She now says, however, that the claims might have been "slightly strong" but "there were not overwhelmingly leading questions throughout the videos". That is double-speak. Mr Wardell accepted that it would be "the easiest thing in the world to take the videos and find 25 examples of a leading question". Also, as I have already recorded, Ms Jones in the witness box recognised the leading nature of the interview questioning. What is clear is that they all chose to make a blatantly false claim which is quite indefensible. Yet the assurance is given on page 23 of the Report that its contents had been checked for accuracy and consistency.
  334. More generally, the Review Team were full of praise for the interviewing techniques (page iv):
  335. "The video interviewing of children by social workers and police was done in a professional and sensitive manner. In particular, we were struck by the quality of the work of Vanessa Lyon, Marion Harris, Helen Foster and Julie Kinghorn".

  336. This is difficult to understand in the light of the actual content of the interviews themselves. Helen Foster herself accepts that things would be done differently today. She was inexperienced at the time because the memorandum of good practice was only just beginning to be implemented. Moreover, she herself was fresh from instruction on the subject and was, at the time, only in her mid-twenties. Indeed in another part of the Report, the Review Team comment in relation to Helen Foster’s interview of Child 22 as follows (p.100):
  337. "The police officer had only undertaken the specialised training 6 weeks before, and had never actually interviewed a young child for evidential purposes; the social worker [Andrew Waterworth] had little experience in child sexual abuse and no experience in interviewing young children. Although it is not the individual workers’ faults, it is unfortunate that they did not have more expertise in working with children of this age".

  338. It is hard to reconcile the lavish praise for Helen Foster (at page iv) with this observation. Two factors come into play, however, which may help to explain the apparent inconsistency. First, it seems that Professor Barker (and, through his cursory notes, possibly the other members of the Review Team) was labouring under the mis-apprehension that it was D.C. Peter Smith who had interviewed Child 22. In any event, neither he nor Helen Foster was mentioned by name on page 100. Therefore the readers would not be aware of the inconsistency. The Review Team’s adverse comment here seems to derive from the fact that the interview yielded "little of evidential value" (p.101). In other words, they are prepared to praise an officer if her interview yields allegations which can be construed as adverse to Mr Lillie but to criticise the same officer if the child appears to exculpate him. It can hardly be said that an interview is of little evidential value if the child expressly states (as Child 22 did) that he liked Christopher Lillie changing his nappy and, what is more, that nobody had hurt him at the Nursery.
  339. In any event, why Marion Harris was mentioned in this context is incomprehensible, since she carried out none of the relevant interviews. Mr Bishop says the wording was just badly expressed and they were intending to praise Marion Harris for her work generally, but that is not what they said.
  340. At page 102 of the Report the Review Team assert of Child 22, "Here was a child who would later allege that he had been taken to houses which he did not know, to be hurt by someone who had told him that his mother approved and knew". This allegation cannot be tracked down to any statement by the child or even by his mother. Mr Bishop took the point, when Miss Page sought to rely on this, that the allegation had never been put to any Review Team member. I am not sure this is a valid criticism, since if his clients wished to source the allegation the information could easily have been placed before the court. Neither side has felt at all inhibited about sending me additional material since the case concluded. I made it clear that I welcomed anything they wished to present.
  341. I also find it odd that two members of the Review Team (Ms Jones and Mrs Saradjian) left the viewing to Professor Barker and Mr Wardell, save in respect of Child 22 and Child 14, and yet were quite prepared to join in the general hymn of praise. One is left with the firm impression that they were going through the motions. How can they possibly be "struck by the quality of the work" in video interviewing if they have not seen it? It is merely formulaic. They were supplied with no more than eight pages of cursory notes by professor Barker covering 18 videos – not disclosed until 31 May 2002 (three days after the evidence concluded and three months after their cross-examination) – one of which expressly refers to "leading questions" directed at Child 10.
  342. Miss Page at the beginning and the end of the trial explained why, in her submissions, the Review Team were making so many misrepresentations, all consistently in one direction. It could not be a series of haphazard errors, she argued. It is on the balance of probabilities only explicable as a "stitch up".
  343. I do not need to adopt her phraseology, but to anyone who has read the Report, and considered the many pages of evidence from the Review Team, the facts speak for themselves. The Team made a number of claims in the Report which they must have known to be false. I should now attempt to gather together and summarise the most striking examples:
    1. They suggested that there was evidence discovered by the police to confirm the involvement of the Claimants with other identifiable people in a paedophile ring, although it "was not strong enough to be used in court". The police had told them they had found no evidence to support this theory and that, had they done so, they would do something about it. This was a misrepresentation of the facts they were given (and they had not found any corroborative evidence themselves).
    2. They intended the world to accept that there were good grounds to believe that Christopher Lillie and Dawn Reed were involved in pornographic filming of small children in their care and, in particular, with a named young man who was using a camcorder. The police had decided in 1993 that there were no concerns about him. The Review Team were told about this and had no reason to believe that anything had changed. It seems clear that Professor Barker’s "professional judgment" that Dawn Reed was motivated by financial gain (see paragraphs 1143-1144 above) is no more than a fanciful attempt to justify that unsustainable conclusion.
    3. It was asserted that Child 14 had over three hour long video interviews detailed abuse of herself and others by Christopher Lillie and Dawn Reed (including the rape of herself by Christopher Lillie of which he had been acquitted in 1994) "and she also mentioned other nursery staff’s names". Her testimony was described as "extremely powerful and provided persuasive evidence of her abuse in the nursery and elsewhere". In fact, at least two of the Review Team (Professor Barker and Mrs Saradjian) considered the interviews "inconclusive" (no doubt partly because of the inconsistencies and contradictions which Holland J highlighted in his ruling of July 1994, and which the Review Team chose to omit). When they asked the police to view the interviews they expressly said that the reason they wished to do so was so that they could say in their Report that "this had a profound effect on us". This was at a time when they knew exactly what concerns had been spelt out by Sir Christopher Holland. Moreover, their objective was not in any way modified by seeing the tapes with all their blemishes or indeed their own conclusions that they were inconclusive.
    4. They gave an assurance in the Report that the "evidential videos made by the children … would not support the view that the questions were in any way leading". They each knew that they were full of leading questions, but the readers of the Report had no way of knowing. They now admit their assurance was a bit "strong". That is obviously an inadequate response. It was demonstrably false. They must have assumed that the police would never release them to anyone else and that their assurances would never be exposed.
    5. They drew attention to the fact that one of their own experts had warned them that young children could be "influenced by over-zealous questioning". They then claimed to have examined the information available "to consider whether there was any evidence" to support the explanation that any of the Shieldfield disclosures were made as a result of "over-zealous or suggestive questioning". They purported to conclude that "this could not be a viable explanation of the children’s evidence". They knew quite well that there were masses of "suggestive questions" and, what is more, they had been warned by the police officer in interview on 19 February 1997 that there was a risk of cross-contamination from parents discussing matters amongst themselves. She also reminded them that it was obvious from the videos themselves that in some cases the children had been promised "presents" or other rewards if they came up with allegations of abuse. It might theoretically be possible to go through the evidence in detail and satisfy oneself overall that (for example, because of independent corroboration) the evidence was nevertheless reliable. There is no evidence that the Review Team did this but, in any event, what they could not claim with any degree of honesty was that "this could not be a viable explanation". This they knew to be false.
    6. They told their readers that they had been "robust" and that they had followed the recommendation of Sir Louis Blom-Cooper (The Guardian, 24 February 1997) to "exhibit self-confidence" that they had "uncovered as full a picture of the events under investigation as is humanly possible". What they did not, however, reveal is that they had reached a quid pro quo with the police that in exchange for being allowed to see the children’s video tapes they would not criticise the police or social workers in respect of their interviews. In accordance with a written request from Detective Chief Inspector Machell (only disclosed two months after the Review Team were cross-examined), Mrs Saradjian was unchallenging in her interview of Detective Constable Foster because she did not want to "upset" her. There were questions that she knew needed to be asked but she refrained from doing so. They knew that they had not uncovered a full picture at all, because they chose not to do so.
    7. Not only did they prevent their readers from knowing of the inconsistencies, leading questions or other tainting influences, but they chose to praise the interviewers for their professionalism and to say that they were "struck by the quality of the work". This despite the fact that the viewing of most of the video tapes was left to Mr Wardell and Professor Barker in August 1996. There was thus no way in which Ms Jones or Mrs Saradjian could have been "struck" by the quality of the interviewing. I am also satisfied that Mr Wardell and Professor Barker could not honestly have been struck by the quality of the interviewing (which even their own expert was not prepared to defend and which Professor Bruck thought among the worst she had ever seen).
    8. The team were told by a senior police officer that he had been through all the photographs and videos found at the flat Mr Lillie shared with his girlfriend and found nothing to suggest involvement in anything improper (i.e. pornography or paedophilia): "I did not find anything in those photographs that made me think he was a pervert and we spent hours going through them". The slant the Review Team put on this was that the hundreds of photographs were not evidence of any "crime", but that Mr Lillie’s explanation for them (which happened to correspond with that of his girlfriend, who has never been accused of anything) was "probably false". There was no evidence for this. It was not simply that they were disagreeing with the police. They had not seen the photographs themselves and were not in a position to form a view of their own. They also attribute to the officer (Mr Findlay) the statement that he "had concerns". That was false. He expressed no "concerns". He said that they were "not in any way, shape or form … indecent or suggestive" and the videos were "totally innocent". He also vouchsafed to them that police surveillance of Mr Lillie had revealed nothing suspicious – only that he was "a boring fart" who went to McDonald’s and read photographic magazines. The police had checked out the magazines and found them to be genuine and innocent. The Team now accept that this passage in the Report was inaccurate but Mr Bishop suggests that it reflects their "impression". What that submission is based on I do not know. But I do not find it credible.

  344. No doubt it could be argued that these false claims made in the Report betoken a cavalier approach to the evidence from which it would be fair only to infer recklessness (i.e. indifference to portraying an accurate picture of the evidence). In view of what they knew, however, and the consistent pattern of their false claims, I can only infer that they were aware that these specific claims were untrue.
  345. Indeed, the Defendants’ submission through Mr Bishop is that it is inherently probable that a Report of over 300 pages will contain a considerable number of errors. I do not accept that this is necessarily the case, especially where it is claimed by the Review Team themselves that they checked it line by line. I am certainly not prepared to explain these falsehoods on that basis because, as I have said, they point consistently in one direction and go to fundamental conclusions in the Report.
  346. One can test it this way. Suppose a reader were to subtract two of the false statements from the Report, by way of example, and to substitute the truth; the overall impact of the Report would be significantly altered. I will take first the assurance that there were no leading questions in the video interviews. The truth is quite the opposite. The Review Team now accept that the sentence should have been "phrased differently". For convenience, I will phrase it differently using the words of the Defendants’ own expert Dr Friedrich from his supplementary report:
  347. "The actual interview process as well as the verbal output from the interviews of the Shieldfield children can be criticised for many reasons. For example, parents were present during interviews, leading questions were common, and the rooms were filled with distracting toys. In addition, the children that were interviewed were typically 2-3 years old. Not only are children of this age more likely to comply with suggestions/leading questions by adults, their expressive language was extremely immature …." (emphasis added).

  348. The second false statement I will use is that from page 269 of the Report that "the evidence was not strong enough to be used in court". Suppose one substitutes the truth:
  349. "The senior and experienced detective in charge of the inquiry vigorously followed up every lead they were given by parents and social workers and found nothing to corroborate the involvement of the Claimants or any of the other identifiable individuals in a paedophile ring or in pornographic photography" (emphasis added).

  350. I do not believe it could seriously be suggested that, if the Report had contained these true statements instead of the false ones, its overall message and impact would have been no different.
  351. Take away from the Report the paedophile ring. Take away pornographic filming. Take away "powerful" and reliable disclosures made by the children in police interviews. It would be a quite different report. These fundamental untruths cannot be put down as "accidental errors"; nor yet to the proposition that "drafting is itself a particular legal skill" (as it was put in closing). Mr Bishop emphasised that it is not necessarily malicious to mis-state a fact. He said (again quite correctly) that it may be possible to account for such mistakes because of mis-remembering what one has been told or mis-reading a document. The pattern here, however, is so consistent, and on such fundamental findings, that it would take convincing explanations by the Defendants as to how such mistakes had occurred. None were forthcoming. Professor Barker, for example, did not say that he had made a mistake and mis-remembered what he had been told by Campbell Findlay. He tried to pretend that Campbell Findlay had said something when the tape was switched off. It is, of course, for the Claimants to prove that the members of the Review Team knew that what they wrote was false when they wrote it, approved it or promulgated it. I accept that. The burden has been discharged, since I do not believe that all the mis-statements of essential facts could possibly have survived the detailed checking and discussions that went into the formulation of this Report. After all, it is not the Defendants’ own case that they did not bother to check any of the relevant material before they wrote these misrepresentations. That would, of course, be strong evidence of indifference to truth. What they claim is that the Report was drafted over months and carefully checked by each of them.
  352. There are certainly other flaws in the Report such as, for example, that they were significantly influenced in arriving at their conclusions by the outcome of the disciplinary proceedings, by the Claimants’ silence (on legal advice) at the time of the disciplinary proceedings and during their own review, and by the findings of Dr San Lazaro which are in so many ways now open to question. Those flaws, however, do not demonstrate malice in themselves since they could be explicable by either defective reasoning or misfortune. But one is left with an irreducible minimum of knowingly false claims which cannot be explained on such a charitable basis.
  353. Some of the statements made about the Claimants and about the evidence available to the Team were cavalier, in the sense that they disclose a perfunctory level of consideration when viewed "against the substance, gravity and width of the publication" (see the above citation from Lange v. Atkinson), so as to be consistent with a finding of indifference to truth. To take but one example, they claimed on page 41 of the Report that Child 14 alleged rape in her first video interview when she did nothing of the kind. This is surely not one of those cases where it could possibly be claimed that "a genuine belief in truth after relatively hasty and incomplete consideration may be sufficient to satisfy the dictates of the occasion" (see Lange at paragraph 48). By whatever standard, it seems to me that this statement was made recklessly. Yet, in the end, the case on malice succeeds because the Claimants have demonstrated, in the respects I have identified, knowledge on the part of each relevant Defendant that the material they were putting forward to support their conclusions was being misrepresented to their readers. Even if, therefore, Mr Bishop is correct (as I am assuming) in saying that I should not take the New Zealand decision into account at all when considering the notion of recklessness, as a matter of English law, it would make no difference to the outcome.
  354. Mr Bishop emphasised that, when shorn of the accumulated learning on the subject, the issue of malice is in essence about motive. He asked me to focus on what possible motive the Review Team could have for wishing to damage the Claimants. The answer is, I believe, intimately connected to the history of their inquiry and the muddle over the terms of reference.
  355. As Mr Wardell put it they had, when they began their task, two names on "a piece of paper". That is to say, they had Christopher Lillie and Dawn Reed as the likely perpetrators of multiple abuse. He went on to say that they might have added other names in due course, if evidence had emerged; alternatively, they might have removed one or both of the primary candidates. There is, however, no evidence to suggest that it ever entered their heads to remove either of these names. They were working throughout on the basis that there had been multiple abuse and that all the "evidence" pointed to those two people.
  356. As Moira Luccock made clear, everyone at the City Council had decided that they were dealing with a multiple abuse situation. What is more, the Claimants had been suspended and dismissed on exactly that basis. As Professor Barker made clear, those findings constituted "one of the main influences" upon the Team’s conclusions. That was obviously not something that emerged. They knew about it before they even started.
  357. Their inquiry was directed originally, and primarily, to making recommendations for the future and dealing with parental complaints. It only became apparent later, and apparently incidentally, that they could only expect to perform those tasks if they also made findings as to what had happened and who was responsible. It seems that their main concern with the Claimants was not to investigate with an open mind, or to appraise the quality of the evidence against them, but rather to offer thoughts on what had motivated them and how to avoid the appointment of paedophiles in the future. In so far as it became part of their task to pronounce upon their guilt of multiple criminal offences, their procedures were quite unsuited to performing it with any semblance of fairness or natural justice. What they did was to assemble arguments, theories and selective bits of evidence and use them to justify the assumptions they had made from the outset.
  358. They claim now to have had open minds throughout a large part of their inquiry process. For reasons I have set out I do not believe that, but it would simply not have been in any way compatible with their methodology. They deliberately chose to proceed on the footing that complainants believed what they were saying and that they were not to be challenged or tested. The findings against the Claimants were made almost as a matter of formality. They were just seen as two "perpetrators" or "abusers" who were to be tidied away to make room for the Team to get on with their recommendations and pronouncements. That is why in my judgment they treated them as they did and how they came to distort and misrepresent the evidence against them.
  359. The Review Team chose to promulgate to the Council and to the wider public what was recognised within days (by Mr Cosgrove and Mr Marron, in particular) to be a specious and disreputable document. They must have appreciated the harm they would do to the Claimants and indeed the physical risks to which they were choosing to subject them. But they were left to learn about these horrendous allegations for the first time through saturation media coverage. That lacked not only fairness but also humanity. Yet the Team even made the false claim that they had been given advance warning of the allegations and findings and a chance to respond.
  360. I find my conclusion depressing and I am sorry that I have had to draw it. But it is unavoidable.
  361. I have little doubt that the Review Team thought they could publish more or less whatever they wanted about Christopher Lillie and Dawn Reed with no consequences adverse to themselves. (Nor do I doubt that Mr Flynn thought the same when he made his arrogant claim that they were guilty immediately after they had been acquitted. I expect Dr San Lazaro took the same approach when she made her "overstated and exaggerated" assertions to the Criminal Injuries Compensation Board.) Not only did the Team have advice about qualified privilege, but they almost certainly assumed (as would the Council members and officers) that this beleaguered pair would not have the resources to claim legal redress. They were undoubtedly right about that. Had it not been for the introduction of the contingency fee arrangements a few years ago, and the courage and dogged determination of their various legal advisers, the Review Team’s methods would not have been uncovered. They and the Council would simply have ignored Mr Cosgrove and Mr Marron. A significant injustice would thus have gone unnoticed.
  362. Yet by the end of the case it seems that the Review Team were even directing their sights on Mr Marron. It will be recalled that he was the Queen’s Counsel who led for the prosecution against Mr Lillie and Miss Reed in 1994. He was one of the first (along with Mr Cosgrove) to blow the whistle on the Review Team’s methods (see section 3 above). He had nothing to gain and was clearly acting simply out of a regard for fairness and decency. The Review Team, however, submit:
  363. "The position of Mr Marron Q.C. in this respect is curious. Although he associated himself with Mr Cosgrove’s observations, as prosecuting counsel he must have agreed with the CPS assessment that the chances of securing convictions against both Mr Lillie and Ms Reed were more than 50% and that a prosecution was in the public interest. If he thought the evidence in the case was more probative of Ms Reed’s innocence than her guilt then it is difficult to see why Mr Marron’s conduct is not also open to serious criticism".

  364. This contention contains a misrepresentation and a misunderstanding. The misrepresentation is as to what Holland J had said about what was probative of Miss Reed’s innocence. He did not say that "the evidence in the case" was more probative of Miss Reed’s innocence than guilt. What he said was confined to the interviews of Child 14 (i.e. the Crown’s strongest case). What his Lordship said was that there was no basis upon which a jury could be sure and satisfied, on the evidence of Child 14, that Miss Reed was guilty of Count 3. He added that there was "a rather better basis for being sure and satisfied that she is innocent of that particular charge".
  365. The misunderstanding is as to the role of a conscientious prosecutor. What Mr Marron did, as I have already explained, was to seek a ruling from the trial Judge under s.32A of the Criminal Justice Act 1988 in respect of the confusing and contradictory evidence of a four year old child about events alleged to have taken place when she was either two or three years old. Mr Marron had a sensitive and difficult task. What he did was entirely proper and it is unfortunate that the Review Team should take the opportunity in these proceedings to suggest that his conduct was "open to serious criticism". It was quite inappropriate. However much the Review
  366.  

    Team may resent them, the comments of Mr Cosgrove (adopted by Mr Marron) were fully justified.

    14) The privilege issues for the Newcastle City Council

  367. Because the City Council relied upon various privilege arguments, I was required to take a closer look at the circumstances in which it came to publish the Report on 12 November 1998 and thereafter. It had been decided long before the Report was written that it ought to be published come what may – and whatever it contained. The reasoning was perhaps commendable in general terms; namely, that the inquiry should be carried out independently of the City Council and uninfluenced by it. It would command no confidence from the public at large, and parents in particular, if it could be perceived as lending itself to a "cover up".
  368. The four people selected for the Review Team were supposed to investigate what had happened, what had gone wrong (if anything), and to make recommendations to minimise the risk of similar problems in the future. It was on the cards that they would find fault with Council employees, past or present, and it was thought important that they should be free to do so without interference. Moreover, it was thought from an early stage that one of the conditions necessary for true independence was that the Report should be published unedited. This was a regular theme in the evidence of Council witnesses and I have no doubt that this was the general view from the period before the appointment of the Review Team right the way through to publication.
  369. One of the main problems, however, was that this philosophy was taken to unnecessary lengths. Obviously if officers or elected members were in some way to tamper with the content of the Report, or to censor it for reasons of self-protection, that would defeat the object. But I am quite sure that no one wished to do this. The perception grew at some point, however, that it was necessary for the Report to be published by the Council very shortly after it was received - not only without alteration but without even being seen by any of the democratically elected members. I believe that this was a requirement of Professor Barker, to whom everyone deferred.
  370. There were two reasons given for this by Council officers, some of whom I found to be impressive witnesses and clearly public servants of integrity. The two reasons were the maintenance of independence and the avoidance of leaks prior to the official publication date. Past experience showed that the City Council tended to leak like a sieve and, unless a very tight rein was kept on the distribution of advance copies, the Review Team’s conclusions would find their way piecemeal into the press.
  371. Everyone was very conscious of the need to ensure qualified privilege for the publication of the Report, whenever it took place, because of the seriously defamatory nature of its content. Advice was taken accordingly. Qualified privilege became the primary focus. I have not been told about the advice received, and there is no reason why I should, but I have seen nothing in the evidence to suggest that anyone analysed closely the underlying purpose of the statutory privilege accorded by the legislature to local government affairs (most especially, of course, by the amendments made in 1985 to the Local Government Act 1972). The privilege is given to local authorities in the specified circumstances. If such a body, as here, contracts out any of its functions to an outside body, the limits of qualified privilege need closely to be examined. For example, there is a statutory duty on local authorities to provide a mechanism for dealing with complaints relating to childcare under the Children Act 1989. For understandable reasons, the City Council’s responsibility in this regard was to an extent delegated to the Review Team. Yet the Review Team had no particular status as a matter of law; they had the benefit of no statutory privilege in themselves, and they were neither members nor officers of a local authority.
  372. It was thus perceived as necessary to ensure that, notwithstanding their independence of the City Council, protection should be arranged for publication of their Report. Although it was never described in this way, it was decided in effect that their publication should be channeled through the local authority, as a mere conduit, in such a way as to try and maintain independence while at the same time taking advantage of the statutory protection devised by Parliament for local authorities. Miss Page has characterised this exercise as a "sham". At all events, it needs to be looked at very closely.
  373. The curious situation arose whereby the officers who were allowed to see advance copies (acting in accordance with legal advice, and in good faith) were required to sign a document when they received them. It purported to be an undertaking "to whomsoever it may concern" that they would not copy the Report:
  374. "In these circumstances, I undertake that I will not copy the report. Nor will I share the report with any one except in so far as it is necessary for me to do so in order to be in a position to carry out my duty of preparing a report for members on the Report’s findings and recommendations. I will keep such further communication to the minimum necessary. I will keep a record of such communications. I will instruct the recipient not to make any further communication and I will advise him or her of the consequences should he or she make such further communication".

  375. It is clear from the context of the document as a whole that the "consequences" referred to related to the publication of defamatory material outside the scope of qualified privilege.
  376. Mr Dervin agreed in the witness box, although I believe that he had never thought of it in this way previously, that one of the effects of his undertaking was to promise to keep the contents of the Report, commissioned and paid for by the local authority, away from any of the elected members whose servant he was. The plan was apparently that none of them should see it in advance of the public. I suspected that this undertaking was required by Professor Barker. That was in due course confirmed by Mr Flynn in his evidence on 6 March. In any event, it gives rise to a very odd state of affairs.
  377. I leave out of account, for the moment, the practical difficulty about avoiding leaks and thus publications of defamatory allegations outside the protection of privilege, but the other reason for these dubious security measures was that, if any of the elected members were even to read the Report, or parts of it, prior to publication, this would in some way compromise the independence of the Review Team’s conclusions. I simply do not follow that. If it was not altered in any way, the Report would remain that of the Review Team.
  378. This febrile thinking led to other oddities. For example, it is the normal rule that a report to be placed before a Council committee or sub-committee should be available three days in advance. If this is not to be honoured, then the committee or at least the chairman has to address the matter and sanction the omission for reasons of urgency. One finds, therefore, a report for the meeting of 12 November 1998 of the Policy and Resources Day Nursery Complaints Review Panel containing a heading "Reason for Urgency".
  379. This passage purports to identify the reason of urgency justifying the departure from normal protocol. It does not say that the reason for abridging time was because people could not be trusted not to leak the contents to the press. Nor does it say that it was one of Professor Barker’s demands. What it does say, however, makes very little sense at all:
  380. "The Team’s Report was delivered to the Council on the basis that it would not be published until 12th November 1998 and so it has not been possible to distribute the Report in advance of the meeting".

  381. Any stipulation to the effect that the Report was not to be published until 12 November is, quite obviously, wholly independent of whether it was possible to distribute the Report in advance of the meeting. Thus there is a complete non sequitur (unless, of course, one equates even limited internal distribution with publication).
  382. There seemed to be something of a muddle also over when the Council actually received the Report. In accordance with the final version of the Review Team’s terms of reference, as amended with the approval of the Panel at a meeting in May 1998, delivery of the Report was effected on 6 November when the Chief Executive received it on the Council’s behalf. Despite this, however, the joint officers’ report for the 12 November meeting describes the objective as follows:
  383. "Synopsis

    The purpose of this report is to formally receive on behalf of the Council the Report of the Independent Complaints Review Team."

  384. It is difficult to see how the purpose of a "report" could be formally to receive a Report. I presume that this must be a misprint for "the purpose of this meeting". Be that as it may, the Report had already been received six days earlier when placed in Mr Lavery’s hands.
  385. Despite this, paragraph 6.1 of the same document contains the sentence, "the Council only became aware of the Team’s recommendations today and so an immediate response cannot be made".
  386. Miss Page suggests that this is somewhat disingenuous, since the Council (through the Chief Executive and other officers) had received the Report six days earlier. It would appear to be true, however, that elected members were only permitted to see the content of the Report for the first time on 12 November.
  387. One of the stipulations in the final version of the Terms of Reference, to which I have already referred, was that the Report was to be presented to the City Council through its Chief Executive (i.e. Mr Kevin Lavery), but that it would be for the local authority to decide the publication date. Moreover, an element of discretion was reserved to the local authority to amend the contents of the Report for very limited reasons (matters of "public interest immunity"). What I find difficult to comprehend is how it was proposed that any such discretion on the part of the local authority (i.e. the elected members) could be exercised at all if they were not to see it before the very meeting designed to be the vehicle for onward publication to the world at large.
  388. Another unfathomable problem is how "public interest immunity" could have any bearing on the issues relating to publication in this context. Mr Scott said he could not understand this. If he, as one of the Council’s legal advisers, could not understand it, it is difficult to see how any one else was supposed to.
  389. In my view, the Council officers were trying to achieve a reconciliation of two essentially inconsistent objectives and, in the process, tied themselves in knots. The two objectives were to publish through Council procedures, to achieve qualified privilege, while on the other hand purporting to maintain the Report as that of the Review Team, untouched by Council hands.
  390. Against that background, Miss Page developed a detailed argument directed to showing that the Council’s officers failed in their objective of bringing the 12 November publication by the Council within any of the statutory provisions contained within Part VA of the Local Government Act 1972.
  391. It is necessary to set out the relevant provisions:
  392. 100A Admission to meetings of principal councils

    (1) A meeting of a principal council shall be open to the public except to the extent that they are excluded (whether during the whole or part of the proceedings) under subsection (2) below or by resolution under subsection (4) below.

    (2) The public shall be excluded from a meeting of a principal council during an item of business whenever it is likely, in view of the nature of the business to be transacted or the nature of the proceedings, that, if members of the public were present during that item, confidential information would be disclosed to them in breach of the obligation of confidence; and nothing in this Part shall be taken to authorise or require the disclosure of confidential information in breach of the obligation of confidence.

    (3) For the purposes of subsection (2) above, "confidential information" means –

    (a) information furnished to the council by a Government department upon terms (however expressed) which forbid the disclosure of the information to the public; and

    (b) information the disclosure of which to the public is prohibited by or under any enactment or by the order of a court;

    and, in either case, the reference to the obligation of confidence is to be construed accordingly.

    (4) A principal council may by resolution exclude the public from a meeting during an item of business whenever it is likely, in view of the nature of the business to be transacted or the nature of the proceedings, that if members of the public were present during that item there would be disclosure to them of exempt information, as defined in section 100I below.

    (5) A resolution under subsection (4) above shall –

    (a) identify the proceedings, or the part of the proceedings, to which it applies, and

    (b) state the description, in terms of Schedule 12A to this Act, or the exempt information giving rise to the exclusion of the public,

    and where such a resolution is passed this section does not require the meeting to be open to the public during the proceedings to which the resolution applies.

    (6) The following provisions shall apply in relation to a meeting of a principal council, that is to say –

    (a) public notice of the time and place of the meeting shall be given by posting it at the offices of the council three clear days at least before the meeting or, if the meeting is convened at shorter notice, then at the time it is convened;

    (b) while the meeting is open to the public, the council shall not have power to exclude members of the public from the meeting; and

    (c) while the meeting is open to the public, duly accredited representatives of newspapers attending the meeting for the purpose of reporting the proceedings for those newspapers shall, so far as practicable, be afforded reasonable facilities for taking their report and, unless the meeting is held in premises not belonging to the council or not on the telephone, for telephoning the report at their own expense.

    (7) Nothing in this section shall require a principal council to permit the taking of photographs of any proceedings, or the use of any means to enable persons not present to see or hear any proceedings (whether at the time or later), or the making of any oral report on any proceedings as they take place.

    (8) This section is without prejudice to any power of exclusion to suppress or prevent disorderly conduct or other misbehaviour at a meeting.]

    [100B Access to agenda and connected reports

    (1) Copies of the agenda for a meeting of a principal council and, subject to subsection (2) below, copies of any report for the meeting shall be open to inspection by members of the public at the offices of the council in accordance with subsection (3) below.

    (2) If the proper officer thinks fit, there may be excluded from the copies of reports provided in pursuance of subsection (1) above the whole of any report which, or any part which, relates only to items during which, in his opinion, the meeting is likely not to be open to the public.

    (3) Any document which is require by subsection (1) above to be open to inspection shall be so open at least three clear days before the meeting, except that -

    (a) where the meeting is convened at shorter notice, the copies of the agenda and reports shall be open to inspection from the time the meeting is convened, and

    (b) where an item is added to an agenda copies of which are open to inspection by the public, copies of the item (or of the revised agenda), and the copies of any report for the meeting relating to the item, shall be open to inspection form the time the item is added to the agenda;

    but nothing in this subsection requires copies of any agenda, item or report to be open to inspection by the public until copies are available to members of the council.

    (4) An item of business may not be considered at a meeting of a principal council unless either –

    (a) a copy of the agenda including the item (or a copy of the item) is open to inspection by members of the public in pursuance of subsection (1) above for at least three clear days before the meeting or, where the meeting is convened at shorter notice, from the time the meeting is convened; or

    (b) by reason of special circumstances, which shall be specified in the minutes, the chairman of the meeting is of the opinion that the item should be considered at the meeting as a matter of urgency.

    (5) Where by virtue of subsection (2) above the whole or any part of a report for a meeting is not open to inspection by the public under subsection (1) above –

    (a) every copy of the report or of the part shall be marked "Not for publication"; and

    (b) there shall be stated on every copy of the whole or any part of the report the description, in terms of Schedule 12A to this Act, of the exempt information by virtue of which the council are likely to exclude the public during the item to which the report relates.

    (6) Where a meeting of principal council is required by section 100A above to be open to the public during the proceedings or any part of them, there shall be made available for the use of members of the public present at the meeting a reasonable number of copies of the agenda and, subject to subsection (8) below, of the reports for the meeting.

    (7) There shall, on request and on payment of postage or other necessary charge for transmission, be supplied for the benefit of any newspaper –

    (a) a copy of the agenda for a meeting of a principal council and, subject to subsection (8) below, a copy of each of the reports for the meeting;

    (b) such further statements or particulars, if any, as are necessary to indicate the nature of the items included in the agenda; and

    (c) if the proper officer thinks fit in the case of any item, copies of any other documents supplied to members of the council in connection with the item.

    (8) Subsection (2) above applies in relation to copies of reports provided in pursuance of subsection (6) or (7) above as it applies in relation to copies of reports provided in pursuance of subsection (1) above.]

    [100C Inspection of minutes and other documents after meetings

    (1) After a meeting of a principal council the following documents shall be open to inspection by members of the public at the offices of the council until the expiration of the period of six years beginning with the date of the meeting, namely –

    (a) the minutes, or a copy of the minutes, of the meeting, excluding so much of the minutes of proceedings during which the meeting was not open to the public as discloses exempt information;

    (b) where applicable, a summary under subsection (2) below;

    (c) a copy of the agenda for the meeting; and

    (d) a copy of so much of any report for the meeting as relates to any item during which the meeting was open to the public.

    (2) Where, in consequence of the exclusion of parts of the minutes which disclose exempt information, the document open to inspection under subsection (1)(a) above does not provide members of the public with a reasonably fair and coherent record of the whole or part of the proceedings, the proper officer shall made a written summary of the proceedings or the part, as the case may be, which provides such a record without disclosing the exempt information.]

    [100D Inspection of background papers

    [(1) Subject, in the case of section 100C(1), to subsection (2) below, if and so long as copies of the whole or part of a report for a meeting of a principal council are required by section 100B(1) or 100C(1) above to be open to inspection by members of the public –

    (a) those copies shall each include a copy of a list, compiled by the proper officer, of the background papers for the report or the part of the report, and

    (b) at least one copy of each of the documents included in that list shall also be open to inspection at the offices of the council.]

    (2) Subsection (1) above does not require a copy . . . of any documents included in the list, to be open to inspection after the expiration of the period of four years beginning with the date of the meeting.

    (3) Where a copy of any of the background papers for a report is required by subsection (1) above to be open to inspection by members of the public, the copy shall be taken for the purposes of this part to be so open if arrangements exist for its production to members of the public as soon as is reasonably practicable after the making of a request to inspect the copy.

    (4) Nothing in this section –

    (a) requires any document which discloses exempt information to be included in the list referred to in subsection (1) above; or

    (b) without prejudice to the generality of subsection (2) of section 100A above, requires or authorises the inclusion in the list of any document which, if open to inspection by the public, would disclose confidential information in breach of the obligation of confidence, within the meaning of that subsection.

    (5) For the purposes of this section the background papers for a report are those documents relating to the subject matter of the report which –

    (a) disclose any facts or matters on which, in the opinion of the proper officer, the report or an important part of the report is based, and

    (b) have, in his opinion, been relied on to a material extent in preparing the report,

    but do not include any published works.]

    [100E Application to committees and sub-committees

    (1) Sections 100A to 100D above shall apply in relation to a committee or sub-committee of a principal council as they apply in relation to a principal council.

    (2) In the application by virtue of this section of sections 100A to 100D above in relation to a committee or sub-committee –

    (a) section 100A(6)(a) shall be taken to have been complied with if the notice is given by posting it at the time there mentioned at the offices of every constituent principal council and, if the meeting of the committee or sub-committee to which that section so applies is to be held at premises other than the offices of such a council, at those premises;

    (b) for the purpose of section 100A(6)(c), premises belonging to a constituent principal council shall be treated as belonging to the committee or sub-committee; and

    (c) for the purposes of sections 100B(1), 100C(1) and 100D(1), offices of any constituent principal council shall be treated as offices of the committee or sub-committee.

    (3) Any reference in this Part to a committee or sub-committee of a principal council is a reference to –

    (a) a committee which is constituted under an enactment specified in section 101(9) below or which is appointed by one or more principal councils under section 102 below; or

    (b) a joint committee not falling within paragraph (a) above which is appointed or established under any enactment by two or more principal councils and is not a body corporate; or

    [(bb) the Navigation Committee of the Broads Authority or]

    (c) a sub-committee appointed or established under any enactment by one or more committees falling within [paragraphs (a) to (bb)] above.

    (4) Any reference in this Part to a constituent principal council, in relation to a committee or sub-committee is a reference –

    (a) in the case of a committee, to the principal council, or any of the principal councils, of which it is a committee; and

    (b) in the case of a sub-committee, to any principal council which, by virtue of paragraph (a) above, is a constituent principal council in relation to the committee, or any of the committees which established or appointed the sub-committee.]

    · · · · · · ·

    [100H Supplemental provisions and offences

    (1) A document directed by any provision of this Part to be open to inspection shall be so open at all reasonable hours and –

    (a) in the case of a document open to inspection by virtue of section 100D(1) above, upon payment of such reasonable fee as may be required for the facility; and

    (b) in any other case, without payment.

    (2) Where a document is open to inspection by a person under any provision of this Part, the person may, subject to subsection (3) below –

    (a) make copies of or extracts from the document, or

    (b) require the person having custody of the document to supply to him a photographic copy of or of extracts from the document.

    upon payment of such reasonable fee as may be required for the facility.

    (3) Subsection (2) above does not require or authorise the doing of any act which infringes the copyright in any work except that, where the owner of the copyright is a principal council, nothing done in pursuance of that subsection shall constitute an infringement of the copyright.

    (4) If, without reasonable excuse, a person having the custody of a document which is required by section 100B(1) or 100C(1) above to be open to inspection by the public –

    (a) intentionally obstructs any person exercising a right conferred by this Part to inspect, or to make a copy of or extracts from, the document, or

    (b) refuses to furnish copies to any person entitled to obtain them under any provision of this Part

    he shall be liable on summary conviction to a fine not exceeding level 1 on the standard scale.

    (5) Where any accessible document for a meeting to which this subsection applies –

    (a) is supplied to, or open to inspection by, a member of the public, or

    (b) is supplied for the benefit of any newspaper, in pursuance of section 100B(7) above,

    the publication thereby of any defamatory matter contained in the document shall be privileged unless the publication is proved to be made with malice.

    (6) Subsection (5) above applies to any meeting of a principal council and any meeting of a committee or sub-committee of a principal council; and, for the purposes of that subsection, the "accessible documents" for a meeting are the following-

    (a) any copy of the agenda or of any item included in the agenda for the meeting;

    (b) any such further statements or particulars for the purpose of indicating the nature of any item included in the agenda as are mentioned in section 100B(7)(b) above;

    (c) any copy of a document relating to such an item which is supplied for the benefit of a newspaper in pursuance of section 100B(7)(c) above;

    (d) any copy of the whole or part of a report for the meeting;

    (e) any copy of the whole or part of any background papers for a report for the meeting, within the meaning of section 100D above.

    (7) The rights conferred by this Part to inspect, copy and be furnished with documents are in addition, and without prejudice, to any such rights conferred by or under any other enactment.]

  393. Miss Page began by pointing out that the statutory defence under s.100H(5) of the Act applies to certain publications by local authorities to the public and to the media, but does not extend to publications by third parties to local authorities. So far as the Review Team are concerned, they would have to depend upon common law privilege for publication of their Report to the Council. She argued that any publication by the Review Team outside the umbrella of that protection would escape the provisions both of the common law and statute (including, for example, any observations made at a press conference).
  394. Miss Page argues that the Council would have had the power to publish the Report in accordance with s.111 of the 1972 Act (in other words for reasons of legitimately facilitating its lawful functions) but, in that context, reliance would have to be placed on the common law rather than the very specific provisions of Part VA of the 1972 Act.
  395. The Council relies upon a statutory duty (by reference to Part VA of the Act):
    1. to make copies of the Report available to members of the public present at the Panel meeting on 12 November (it being a sub-committee of the Council): ss.100B and 100E;
    2. to supply copies of the Report on request to any newspaper: s.100B;
    3. to make a copy of the Report available for inspection at its offices at all reasonable hours: ss.100B, 100C, 100E.
    4. to supply copies of the Report to any person who required one: ss.100B, 100C, 100E, and 100H.

  396. Miss Page has responded to these contentions as follows:
  397. 1) She draws attention to the fact that s.100B(6) provides for local authorities to make available at meetings, for use by the public "… copies of the agenda and … of the reports for the meeting". She submits that, whereas the reports submitted to the sub-committee by the various officers for the purposes of the 12 November meeting were "reports" within the meaning of that provision, the Review Team’s Report itself was no more than a background paper to the officers’ joint report.

    2) So far as background papers are concerned, there is a discretion rather than a duty to provide copies to newspapers: s.100B(7). Thus, there would be a discretion to be exercised on the part of the "proper officer" with regard to the Review Team’s Report. Miss Page goes on to argue that there was in fact no exercise of that discretion, in this instance; alternatively, if the discretion was exercised, this was not in accordance with law.

    3) Next, she submits that there was no statutory duty to make a background paper available for inspection if it contained "exempt information": s.100D(4). Alternatively, if the statutory duty arises to make "background papers" available for inspection by virtue of inclusion on the list referred to in s.100D(1), this would be contingent upon a lawful exercise of discretion with respect to the paper in question. Miss Page submits that no such discretion was exercised here (the Council not realising that there was a discretion) or, if it was, it was exercised unlawfully.

    4) The sections relied upon in the defence, on behalf of the City Council, relate to "reports for a meeting" rather than to "background papers". Thus, the same reasoning would apply, Miss Page submits, as she has advanced at (3) above. Moreover, s.100H(2)(b) provides for persons to whom a document is available for inspection to "require" the Council to provide a copy; yet the distribution of the Review Team’s Report went beyond those actually requesting a copy.

    5) Finally, Miss Page argues that if the Report is to be classified as a "report" for statutory purposes, rather than merely as a "background paper", the Council would still be bound to consider whether or not to make it available because it contained "exempt information". Again, either that discretion was not exercised at all or, if it was, it was exercised unlawfully.

  398. The first issue to consider, therefore, is the apparently sterile one of whether the Review Team’s Report should be regarded as a "report" or a "background paper". The officers of the City Council seem to have proceeded on the basis that it fell into both categories (as borne out by the evidence of Mr Poll and Mr Scott). Miss Page argues that the officers’ joint report was in fact correct when it described the document as a "background paper".
  399. Miss Page submits that in the light of the statutory provisions the distinction between the two concepts, far from being sterile, is actually of importance, since the legislature has decided to set up a quite different regime of disclosure obligations as between the two categories.
  400. The Review Team’s Report was not, of course, generated by the City Council itself but (as its officers kept emphasising in the course of their evidence) by an independent body. To qualify as a "report" within the terms of Part VA of the Act, Miss Page submits that a document has to be generated by or on behalf of the officers of the Council for the Council itself. In this context, she points to the "proper officer" provisions within Part VA and cited, by way of example, s.100B(2):
  401. "If the proper officer thinks fit, there may be excluded from the copies of reports provided in pursuance of subsection (1) above the whole of any report which, or any part of which, relates only to items during which, in his opinion, the meeting is likely not to be open to the public".

  402. Accordingly, it would appear to be necessary for the proper officer to consider the contents of each report in order to consider whether or not it should be published: s.100B(2). It is necessary also to have regard in this context to s.100D(5) which defines "background papers" by reference to the proper officer’s "opinion".
  403. Miss Page submits that the functions of a "proper officer", as contemplated by these provisions, could only be exercised by an officer who was, if not an author of the report itself, at least someone in a position to gain immediate access to the report before presentation to the relevant committee. Such functions could not be exercised in relation to a document emanating from outside the Council – especially one the contents of which were so jealously guarded as those of the Review Team’s Report. I am not sure why this would necessarily be the case, since if appropriate a proper officer could withhold or redact parts of an external report commissioned by the Council.
  404. Miss Page argues also that her interpretation of the "proper officer" provisions of the statute is consistent with the internal provisions of the City Council’s own internal rules (at least in the most up-to-date version available to her).
  405. In any event, the argument goes, the Review Team’s Report was not a "report for the meeting" of the Panel on 12 November 1998. It was, in truth, a report for the City Council (and had already been presented to the Chief Executive on 6 November to receive it on the Council’s behalf). Had the Review Team’s Report itself been a "report for the meeting", there would have been no need for the joint officers’ report that was in fact submitted.
  406. One can also readily see from the content of the Report itself that it was not making recommendations for the consideration, adoption or implementation of the relevant sub-committee (or Panel). Some of the recommendations, indeed, went beyond the scope of the City Council altogether, but it is nonetheless clear that those more directly concerned with the Council’s affairs were for consideration (and ultimately implementation) either by the Council itself or by other committees or sub-committees (in particular, of course, those with responsibilities for the provision of education, nursery facilities and childcare).
  407. In view of the purely "formal" nature of the Panel meeting on 12 November, which was emphasised at the time and during the course of the officers’ evidence during this case, it is clear that the Review Team’s Report was not to be considered (with a view to adoption or rejection) but rather to be "received". It was only provided to the members of the sub-committee shortly in advance of the meeting (at the "pre-meeting" shortly beforehand). Nor did it accompany the joint officers’ report.
  408. Miss Page accordingly invites me to rule, as a matter of statutory construction, that the Report did not have the status of a "report for the meeting". It can only have had the status of a "background paper". The important consequence of such a ruling would be, she submits, that the City Council has throughout proceeded on an interpretation of Part VA of the 1972 Act which was entirely erroneous. More specifically, s.100B(2) provided no legal basis for publishing the Report itself to the public; s.100B(7)(a) did not provide any legitimate basis for supplying it to newspapers; s.100C(1)(d) did not provide any such basis for making it available for inspection by the public; s.100H(2) did not provide any such basis for supplying copies to members of the public on demand; and, most importantly, for her purposes, the publication of the Report did not have the benefit of the statutory defence as being a "report for the meeting": see s.100H(5) and s.100H(6)(d). Thus, it would be necessary to judge the availability to the Council of a statutory defence not in the light of the provisions pleaded, but rather according to ss.100D, 100H(5) and 1000H(6)(e).
  409. Miss Page therefore next addressed the question of whether the Review Team’s Report was a "background paper" within s.100D. It is provided by s.100H(5) that statutory privilege shall attach to the publication of any defamatory matter in any "accessible document" for a meeting to which the subsection applies, where it –
  410. "(a) is supplied to, or open to inspection by, a member of the public, or

    (b) is supplied for the benefit of any newspaper, in pursuance of section 100B(7) above".

  411. Accessible documents are defined to include "any copy of the whole or part of the background papers for a report for the meeting, within the meaning of section 100D above": s.100H(6)(e).
  412. There is a further definition of "background papers for a report" in s.100D(5):
  413. "for the purposes of this section the background papers for a report are those documents relating to the subject matter of the report which –

    (a) disclose any facts or matters on which, in the opinion of the proper officer, the report or an important part of the report is based, and

    (b) have, in his opinion, been relied on to a material extent in preparing the report,

    but do not include any published works".

  414. Thus, argues Miss Page, in order to qualify as a "background paper for a report", it is not sufficient that a document should merely relate to the subject matter of the relevant report. There would appear to be a requirement for the exercise of a discretion by the "proper officer" or at any rate the formation of an opinion by that officer. In this instance, the relevant "report" (to which the Review Team’s Report is said to have been a background paper) would appear to have had as the "proper officer" Mr Kevin Lavery, the Chief Executive, since he was the first-named author. (At least that would appear to be the position according to the Newcastle Charter Schedule 4, Part D, although this may not have been in effect at the material time.)
  415. Miss Page argues that Mr Lavery did not actually address his mind to the relevant issues identified in s.100D(5) or form an "opinion" on either of them. Since that is, according to her argument, a pre-requisite for a document to be classified as a "background paper for a report", Miss Page argues that the Review Team’s Report does not fall under that head of privilege. She accepts, however, that it would still be open to the Council to argue, by way of alternative, that the document was protected by common law privilege (in accordance with a traditional duty/interest test or the more recently expounded principles in Reynolds v. Times Newspapers Ltd).
  416. An alternative argument raised by Miss Page is that, assuming Mr Lavery to have directed his mind to the issues raised under s.100D(5), there could have been no lawful exercise of the relevant discretion. She puts the matter in three ways:
  417. 1. There could have been no true exercise of discretion at all, because it had already been decided, well in advance of the receipt of the Review Team’s Report, that it would be published qua background paper.

    2. Any true exercise of discretion was vitiated by the improper purpose for which the Council was acting; namely, as Miss Page would argue, that of "laundering" the Report through the sub-committee (or Panel) when knowing it to be fatally flawed, or being reckless as to its truth or falsity.

    3. Any true exercise of discretion would be unlawful because, on any sensible view, the joint officers’ report was not actually based on the Review Team’s Report; nor had they relied upon it to any material extent for the preparation of their own report. They were concerned more with the availability of the Review Team’s Report rather than its content.

  418. It is necessary to consider whether Miss Page is correct, as a matter of law, to speak of a "discretion" in the context of s.100D(5), since it is concerned with the formation of opinions (i.e. as to the relationship between the joint officers’ report and the Review Team’s Report). It is possible to form an opinion without exercising a discretion.
  419. In any event, Miss Page argued that the Council failed to address its mind to the question of whether or not the presence of "exempt information" within the Review Team’s Report entailed that it should not be published. That failure would, she submits, render it unlawful to make it available to the public. She points out that s.100D(4)(a) makes it clear that there is no requirement for any document to be listed if it discloses exempt information.
  420. There is no dispute but that the Review Team’s Report did contain exempt information (i.e. within paras. 1, 4, 6, 12 or 14 of Schedule 12A). That is not to say, however, that it would be unlawful to publish it. It had been decided in advance of the production of the Review Team’s Report that it should be published unamended, and even regardless of its contents. Miss Page suggests that it was incumbent on the Council to consider whether or not the Report should be included as a background paper at all given that it contained exempt information. Mr Scott dealt with this matter in his evidence. He said that it was his view that it was for the relevant "proper officer" to consider whether or not it was likely that the committee would wish to exclude the public or press from a meeting for the reason that there might be disclosure of exempt information. If he came to the conclusion that it was likely, then he would "pink" the relevant material (to indicate, in accordance with convention, that it was a matter to be addressed by the committee). That is a matter he would have to make a judgment upon in advance of the relevant meeting. That is, of course, quite different from there being an obligation on the committee itself to exercise a discretion in that context.
  421. Mr Bishop’s submissions on exempt and confidential information were as follows. Schedule 12A to the Act identifies some 15 classes of "exempt" information. They are widely drawn and include many items that are routinely discussed in relevant meetings or contained within "accessible documents". If for some particular reason it is considered appropriate to withhold any such information from public access, then a discretion may be exercised accordingly, but it would be reviewable judicially. Thus, it is required that the grounds for excluding the public must be specified. There seems to be a general presumption of public access and, correspondingly, there would be no question of reviewing a decision not to withhold public access. Those submissions seem to me correct. I am unable to conclude that there was anything unlawful about the failure to exclude any of the "exempt" material (e.g. references to City Council employees). Nor does the inclusion of such information detract from the protection of privilege otherwise available.
  422. As to "confidential information", it will be noted that the term is very narrowly defined in this statutory context: see s.100A(3) set out above. If there should be any material within the definition there would arise an obligation (rather than a mere discretion) not to reveal it publicly. I cannot think of anything here which would qualify as "confidential". I believe that it was being suggested that some of the detail about Mr Lillie’s early years (such as his time in care or his conviction at the age of 15) might be classified as confidential, but it seems highly technical in this context. More significantly, for present purposes, if any publication of the Report were the subject of prima facie privilege, I cannot believe that the incidental inclusion of such detail would destroy the privilege.
  423. In so far as it matters (and in view of the terms of the statute, I suppose it must), the status of the Report vis à vis the 12 November meeting would in my judgment be that of a background paper. It was not a report for the meeting in any ordinary sense. They were not going to consider it or discuss it; indeed, they were not supposed to read it even. They were just to receive it for onward transmission to other decision makers. Statutory privilege would thus come into play to protect the publication of the Report as a background paper. This is highly technical but it is a matter of trying to fit a unique situation, which would never have been contemplated by the draftsman, into the straitjacket of this statutory framework.
  424. Furthermore, as to the Council officers’ earlier publications, for example to central government through the S.S.I., and to one set of parents who lived abroad, those would be protected on the footing of a common and corresponding legitimate interest in accordance with the common law.
  425. Finally, I should address the alternative s.111 argument. The Council is given a very wide power to take steps for facilitating its lawful functions. That does not, it seems to me, afford in itself a separate form of statutory privilege, but it does provide a context in which to make a judgment about any legal, social or moral duty to publish to the world at large if statutory privilege does not avail. In other words, I should ask the question whether the Council would have been protected any way, and without going through the so-called "charade" of setting up a committee meeting as a peg for statutory privilege.
  426. I believe there is a powerful argument for concluding that a local authority does have an obligation to tell the public (and, in particular, its own charge payers and the consumers of its public services) what has gone wrong, to account for it and to explain how matters are going to be ordered in the future to avoid similar problems: see e.g. Alexander v. Arts Council of Wales [2001] 1 W.L.R. 1840 (where it was held that the defendant had a duty to explain its actions in relation to public funding). That is not to say necessarily that common law protection should be available over and above the very wide privilege accorded by the legislature in the Local Government Act. Nevertheless, I believe that the public had a right to know what (if anything) had happened at Shieldfield. Having appointed an independent review team to inquire and report, at public expense, it is difficult to see why the Council should not be protected in publishing the results. If the Terms of Reference can be criticised, or the particular Review Team exceeded their terms of reference (if they did), or they made errors, or even if they were malicious, it does not seem to me that the public is any the less entitled to know what has been going on; or the Council under any less of a duty to tell them.
  427. I am not sure that privilege would have been upheld a few years ago for communications made outside council meetings or which fell outside a specific statutory veil of protection. But now I believe that public policy would be interpreted in such a way as to protect even a general publication as an exercise in open (local) government. Freedom of communication would prevail. It may be argued that public policy has swung too far in that direction against the interests of those whose reputations may have been damaged in the process. It is always important to remember that there is no public interest in misinformation: see e.g. the words of Lord Hobhouse in Reynolds. But, in so far as I can gauge public policy as now expounded in recent judicial decisions, I consider that reputation would be regarded as sufficiently protected in circumstances of this kind by the availability of remedies in respect of malicious or, in some cases, negligent mis-statements.
  428. 15) The City Council’s evidence on qualified privilege and malice

    General Introduction

  429. A number of witnesses gave evidence for the Council relevant to both qualified privilege and malice. But Miss Page confined her allegations of bad faith to certain individuals for whose motivation and states of mind she seeks to make the City Council vicariously liable. Those she identified in her Amended Reply, for which I gave permission on 28 February. The individuals are Mr Lavery, Mr Bell, Mr Dervin, Mr Scott and Mr Flynn. It is elementary that what matters is whether any of them were motivated ("actuated") by malice in the publication by the Council of the Review Team Report on or after 12 November 1998. What may or may not have happened to the Claimants in 1993 and 1994, with regard to their suspensions and the disciplinary procedures, is not directly relevant.
  430. What emerged as a general picture is that the Council and its staff were determined to get the Report published irrespective of its contents, and that members would have no chance to read it prior to the morning of 12 November 1998. They would not see it before the public obtained it, but would receive it more or less simultaneously with those persons present at the meeting. This meant that there would be no opportunity to apply any kind of discriminating judgment or exercise of discretion in relation to its contents.
  431. There was a "pre-meeting" on 12 November for the Panel members. Then came the meeting at 10.00 am, which "merged" with a press conference. Miss Page argues that the whole exercise was an irresponsible "sham", intended to bring the Review Team’s Report (whatever it contained) under the umbrella of statutory privilege. No one at the Council cared what allegations it might contain about Christopher Lillie and Dawn Reed, and all they were interested in was making the publication water tight from a suit for defamation.
  432. There is much in what Miss Page submits. This was a "one off" exercise in a number of respects, and clearly fell outside everyone’s day to day experience of local government affairs. Legal advice was taken to ensure that what they were proposing to do was lawful, and as to the most efficient way of achieving this objective. It seems to me, however, that the critical question for statutory privilege, in its various forms, is whether the Council members and staff managed to set up a meeting, as they intended. If they did, their motives for doing so would probably not matter. Merely by virtue of the meeting’s status, the statutory consequences would follow. As Miss Sharp argued in her opening submissions, some five weeks before her clients bowed out of the case, there would appear to be little room to defeat statutory privilege by reference to a dominant motive on the part of any of those instrumental in getting the report into the public domain (see Lord Phillips M.R. in Loutchansky v. Times Newspapers Ltd. [2002] 1 All E.R. 652 and paras. 1092-1093 above).
  433. It would be necessary to show bad faith on the part of one or more of the pleaded individuals in order to defeat the protection of statutory privilege. I should thus remember the significant role here played by legal advice at almost every turn. I do not know what the advice was, although one can make an informed guess. But it does not matter. It is extremely difficult to envisage circumstances in which a person can be held to have acted in bad faith (leaving aside "dominant motive") if the course of action under challenge has been recommended or sanctioned by legal advice.
  434. There is no doubt that a number of people on the Council’s staff believed in November 1998 that Christopher Lillie and Dawn Reed had been guilty of physical, emotional and sexual abuse at Shieldfield; they believed that, in some cases at least, since the disciplinary proceedings in early 1994. The outcome of the criminal proceedings made no difference. Moreover, unlike the Review Team, it is difficult to be confident that anyone who read the Report between 6 and 12 November 1998 had any reason to believe that any part of the Report was untrue or misrepresented the facts.
  435. I shall consider the witnesses in turn. Some others did not give evidence orally, and I was invited to read and take into account their statements, and to attach such weight as I thought right to them. Before turning to the evidence of the individual witnesses, however, I need briefly to summarise the context in which they were working in the run up to publication.
  436. The "one-off" approach to publishing the Report

  437. In setting up the "pre-meeting" and press conference to launch the Review Team’s Report on 12 November 1998, the various Council officers responsible were guided by legal advice in respect of which privilege has not been waived. It is not, therefore, possible to come to any definitive conclusion as to what was passing through their minds throughout the relevant period.
  438. What is clear, on the other hand, is that Professor Barker was to a large extent "calling the shots". He was also receiving legal advice independently of the Council. He was apparently keen that his Report should be published under the cloak of common law and/or statutory privilege shortly after the document was handed to the Chief Executive (in accordance with the resolution of 29 May 1998). He did not wish it to be seen by any of the elected members before it was released to the parents and general public. The reasoning appears to have been partly to protect the "independence" of the Review Team and partly for fear of leaks to the press before the appointed day.
  439. In the circumstances, it is not altogether surprising that Miss Page referred to the Council as "lending" the protection of the statutory privilege without any judgment or discretion being exercised by anyone on the Council’s behalf. She referred to the "formal" meeting of the relevant sub-committee as a sham since it was simply set up to give the Review Team’s Report the status of a "report" and/or "background paper" under the provisions of the Local Government Act 1972 (as amended). It was a sham because the members were to do nothing with the Report other than "receive" it formally. They were not to discuss it; nor indeed could they do so, since there had been no opportunity to read it beforehand. Only certain officers had been allowed by Professor Barker to read the Report, between 6 and 12 November. Professor Barker had wanted an even shorter period, but the officers found themselves negotiating with him to allow slightly longer. This seems very curious given that the elected members had commissioned the Report and the Review Team were being paid out of public funds. The tail might be thought to be wagging the dog.
  440. Despite the unusual circumstances, everything had to be fitted into the statutory framework and terminology in order to achieve the all important protection of qualified privilege. Miss Page argues that the officers were putting the cart before the horse. Normally, one thinks of privilege serving a particular policy objective (e.g. the right of the public to be fully informed as to what is going on in local government). Here the officers were starting with the objective of achieving qualified privilege for the Report – whatever its content and whether or not it actually served the public interest. In reality, that is what was happening.
  441. It is clear from the evidence of all those involved that they were proceeding from the datum that the Report was to be published without any consideration of its contents. Mr Brian Scott said that it was inconceivable that the Report should not be published in its entirety. Mr Kevin Lavery (former Chief Executive) said that they did not even discuss the possibility of not publishing. They would not have published, however, if the Report had been "perverse". But since it was not, and merely confirmed their suspicions, the question did not arise. They did not really care what it said, although it was expected to make findings of abuse and to confirm the Council’s official view that Christopher Lillie and Dawn Reed were guilty of gross misconduct. So long as qualified privilege was assured, they were simply not bothered. Mr Arnold told me:
  442. "The only thing that I am aware of with regard to this report, and the way in which it was handled, is that it attracted qualified privilege in the way in which it was received. That is all that I can say of my own knowledge".

    As Mr Flynn confirmed in the witness box, the Council were concerned about the "victims", and that was that.

  443. Because of the desire for secrecy, the Report was not included with the agendas sent out to the members attending the meeting of 12 November. Had the Report been sent, three days in advance, it would have to have been made available for public inspection in accordance with s.100B or 100D. This had to be avoided. Therefore, it was perceived as necessary to apply the statutory provisions relating to "urgency". It is within the chairman’s power to propose a resolution that the relevant committee should accept such a document notwithstanding that it has not been provided three days before: s.100B(4)(b). Here, of course, there was no urgency in the ordinary sense of that term. The only reason for not supplying it to the members in the usual way was the diktat of Professor Barker. The artificiality of the exercise is demonstrated by the joint officers’ report which purported to identify the nature of the "urgency". The Report had been in the hands of the Chief Executive since 6 November and could have been provided. The true reason for not giving three days notice was that Professor Barker wished to keep it from the elected members until 12 November. That may or may not be legitimate but it is nothing to do with "urgency".
  444. Another curiosity is to be found in the officers’ report, and in the short statement drafted for and to be read out by Mr Flynn as leader, which falsely suggests that the Review Team’s Report had been received very shortly before the meeting.
  445. Mr Dervin

  446. I should perhaps at the outset say that Mr Dervin is something of a special case. It is clear from his letter of 22 January 1999 (quoted at para. 123 above) that he, at some point, saw major drawbacks in the Report. When he realised that is hard to say, but I believe I should accept his evidence that this only dawned on him when he was studying it in detail for the purposes of providing answers to complainants, in his capacity as Director of Social Services. I cannot be confident, even on a balance of probabilities, that he was aware prior to 12 November 1998 that the Report was fundamentally flawed, or that it failed in significant respects to justify its proclaimed conclusions (e.g. as to a paedophile ring, pornography or the rape of Child 14).
  447. At first impression, Mr Dervin’s letter looks rather courageous in demonstrating a willingness to rock the boat. On closer inspection, however, this appears not to be the case. I do not believe that he was acting in bad faith at any material time. His attitude savours more of cynicism and betrays the characteristics of a "Jobsworth".
  448. The letter makes clear that at least by 22 January Mr Dervin realised that the Report had fundamental defects, which he expressly identifies, and also that there was considerable doubt over the validity of its attribution of child abuse to Christopher Lillie and Dawn Reed:
  449. "The clear impression given is that Lillie and Reed were among the most disorganised and chaotic abusers in the history of child care, an unusual feature of abusive personalities".

  450. In the witness box on 5 March, rather surprisingly, Mr Dervin sought to down-play his criticisms of the Report and even suggested that he was more concerned with such trivia as "split infinitives", poor style and "inappropriate grammar". He knows as well as I do that his letter of 22 January was recording serious misgivings over substance.
  451. It then became apparent why he was trying to shift his ground. Having admitted to Miss Page that he was "not very happy" about the Report, he was asked why he had expressed his conclusion in the letter "off the record". He replied:
  452. "I am writing to him privately and confidentially, and I am preparing him here mentally and psychologically for him dealing with the massive compensation claims that I believe were coming next. So I am not preparing him for the Shieldfield Abuse Inquiry, which in a sense is over and done with as far as I am concerned. I am preparing him for what is coming next".

  453. The last paragraph of the letter in my judgment plainly means to express scepticism about the Review Team’s overall conclusion that Christopher Lillie and Dawn Reed were child abusers, for the very reason they were so chaotic and disorganised. Mr Dervin tried to stand the sentence on its head, and pretended that it meant that he was surprised that the Review Team had taken "five years" (actually three years) to arrive at the conclusion that they were abusers, whereas it had only taken him five weeks to arrive at the same conclusion. He seems to be suggesting that the fact that they were "disorganised and chaotic" as abusers gave them away. The evidence was "so overt". He was clearly in difficulty.
  454. A little later he tried to suggest to Miss Page that:
  455. "… there are examples of men and women who are not married, are not together in a family sense, or in a personal relationship sense, who have killed children and abused children in a very bad way. So it is a well-known thing and many of them again were chaotic type people".

  456. She asked him for an example of this "well-known thing" and he cited that of Myra Hindley and Ian Brady. Miss Page pointed out that they were a couple, to which Mr Dervin replied, "They were not married was the point I made". This was feeble stuff.
  457. The reason why Mr Dervin was trying to do "the splits" was because in that letter he was "preparing us for the way forward in dealing with the compensation claims". In other words, he was writing confidentially because the defects in the Report, and indeed the weakness of their overall conclusion that Christopher Lillie and Dawn Reed were child abusers, could be brushed under the carpet in the context of the Shieldfield review (which he described by saying "we had now put that part of the process behind us"). On the other hand, they might be turned to the Council’s advantage when it came to defending claims for compensation. The Council officers were quite happy to condemn these two people when it suited them but wished to wriggle out of the consequences when their employer was called upon to take financial responsibility for what they had done. They did not wish to do anything that might disadvantage the Council over the compensation claims (just as in these proceedings the Council was not prepared to justify the allegations of child abuse, for the same reason).
  458. I suggested to Mr Dervin that this was something of a double standard because he was recommending taking a different stance over the conclusions of the Review Team if it should be useful to do so in defending the compensation claim. He replied:
  459. "I am not a lawyer, my Lord, but if I find something in the course of my work which my employer should know about, then I should tell my employer and here was a view that I had formed after extensive study".

  460. This is cynicism of a high order. Publish the gravely defamatory conclusions of the Review Team about two former employees, provided qualified privilege can be assured, but then take advantage of the obvious defects in the Report when it comes to paying out. The two positions, of course, are simply irreconcilable. Mr Dervin would have done better to recognise that, and to stick to the position that he did not spot the weakness of the Report, despite his careful reading, prior to publication and could not therefore have questioned the wisdom or desirability of broadcasting it to the world at large. In trying to subvert the obvious meaning of his letter, he tied himself in knots. It was an unedifying spectacle that did neither him nor his employer any credit.
  461. As so often in this case, if one wants to know what a witness was really thinking it is necessary to look at the unguarded comments in the contemporaneous documents, rather than taking the oral evidence at face value. I have no doubt that Mr Dervin had, at least by 22 January 1999, grave doubts about the methods, the reasoning and the conclusions of the Review Team. He had been obliged to focus on them because he was required to respond to the parents’ complaints on behalf of the Council, and he was very "cagey" in doing so. He was not prepared to endorse all of the Team’s conclusions personally, but he felt that he had to go along with the Council’s stance as far as he could. It was an unenviable task, but he cannot hide his recognition of the Report’s fundamental weaknesses.
  462. Mr Lavery

  463. I need to consider the evidence of each of the other relevant Council witnesses in turn. Mr Lavery spoke in evidence of having given an undertaking to Professor Barker not to republish to anyone (including elected members of the Council which employed him) any of the contents of the Report he received on 6 November on behalf of the local authority. Miss Page asked him what right Professor Barker had to require such an undertaking and to dictate to the Council’s employees how it was to be published.
  464. Mr Lavery thought it was reasonable because he regarded the Report as being that of the independent Review Team and, in any event, he was guided throughout by legal advice.
  465. Part of the standard confidentiality undertaking Professor Barker required included the words that the (primary) recipient (e.g. Mr Lavery) would advise any further recipient "of the consequences" should he or she make any further communication. He told Miss Page he was not sure what those "consequences" were. I am quite satisfied, however, from the context that they related to the risk of publishing outside the scope of qualified privilege. The Review Team and the relevant Council staff were almost certainly advised, in order to cover themselves, that the contents should be kept under wraps so far as possible until such time as they could bring it into the public domain by means of statutory privilege.
  466. He explained how the Core Team had been appointed under the chairmanship of David Bell to handle the issues of when and how the Review Team Report was to be published. Once it was in place he did not keep up with the detailed planning.
  467. As to publication itself, he said that "our highest concerns were around the parents and their children". He added that the City Council was merely publishing the independent Review Team’s Report and was concerned to ensure a response to the concerns revealed by its contents. Asked if he thought about the appropriateness of publishing the names of Christopher Lillie and Dawn Reed, he replied:
  468. "We felt the Report confirmed our suspicions. We saw no reason not to publish in those circumstances. It was, as I said earlier, the independent Review panel’s report. It was not the City Council’s".

  469. He had not addressed the question of whether the two former employees should have been given advance warning of the contents. Nor had anyone prior to 12 November expressed any doubts as to the principle that the Report should be published in its entirety or as to any of its findings. There would have been an opportunity to raise "any major concerns" but no one did so.
  470. A particular point on which Mr Lavery was cross-examined was the reaction of the Council to Mr Cosgrove’s letter. Its effect was summarised and placed before the Council, but Mr Cosgrove did not reply promptly to a letter asking whether he had any objection to his letter being made public. Mr Lavery would have been content for the full letter from Mr Cosgrove to be made generally available to the Council, rather than merely summarising his concerns on an anonymous basis, but he simply did not respond in time.
  471. As for the ruling of Holland J, it was true that Mr Cosgrove was requesting, for the sake of accuracy and balance, that a copy of it should be scheduled to the Review Team Report, but Mr Lavery took the view that it was inappropriate to do so. The Review Team Report "should be able to stand on its own merits". He said "We all felt that it was a reasonable and authoritative report".
  472. He denied being indifferent to the truth of the contents (in the context of "recklessness", as explained by Lord Diplock in Horrocks v. Lowe). He and his colleagues had accepted its contents as accurate and as reflecting their own suspicions (albeit more critical than had been anticipated).
  473. I am quite satisfied that there is no basis on which I could find that Mr Lavery acted in bad faith. Miss Page is entitled to criticise the way the Council handled the Report and appeared to abdicate any responsibility for carefully considering the content of the Report before it went out under the umbrella of local authority privilege. But that is a separate issue from the legal concept of express malice.
  474. Mr Bell

  475. David Bell also gave evidence on 4 March. He is a former teacher who became Director of Education and Libraries for Newcastle City Council in 1995. His involvement in the Shieldfield inquiry did not begin until May 1998. He was at that stage "asked to lead the preparations to the point of publication", it having become apparent that the Review Team Report was imminent. He was one of those who received a copy on 6 November. He acted on legal advice received from Mr Brian Scott.
  476. He was cross-examined about what passed between the City Council and Professor Barker as to the timing of the publication and the restricted availability of the Report beforehand. He described it several times as a matter of "negotiation" rather than Professor Barker simply laying down the law.
  477. He described how he read the report on 6 and 8 November 1998 and formed the view that it was consistent with the terms of reference: "I read it very, very carefully and I was very careful to ensure that it satisfied the detail of the original terms of reference".
  478. This was a difficult test to perform, whether for a lawyer or a layman, and he was working to a tight schedule. I am quite sure that Mr Bell is a conscientious man and one of integrity, and he was doing his best in the light of legal advice and unfamiliar circumstances. I certainly had no difficulty in rejecting the allegation of malice against him. He concluded in the short time available to him that the Review Team had done a thorough job over three and a half years and that it was in the public interest for the Council to publish their conclusions in full. He thought it extremely compelling. I have no doubt that this was an honest conclusion.
  479. Mr Arnold

  480. The next witness was Mr Peter Arnold, who was from May 1998 leader of the opposition on the City Council. He explained how the Review Team inquiry had cross-party support. He became a member of the Policy and Resources Day Nursery Complaints Review Team Panel (on becoming leader of the opposition). He gave evidence on 5 March. I formed the impression that he too was a decent man who coped with a difficult situation honourably and in good faith.
  481. Mr Arnold was asked in cross-examination about one of the curiosities of the publication arrangements, which was relevant to the issue of qualified privilege (as opposed to malice). This was the fact that the City Council sent out a press release on 11 November 1998 announcing a press conference for 10 a.m. the following day. It was sent to the Newcastle Chronicle and no doubt other media organisations. It contained the following announcement:
  482. "You are invited to attend a press conference at 10 a.m. tomorrow 12 November. The leader of the Council, Tony Flynn, will chair the conference and issue a press statement. David Bell and Tom Dervin will be in attendance. Copies of the Report and summary will be issued at 10 a.m.".

  483. The significance of this for Miss Page was, of course, that statutory privilege for the Report’s publication was predicated upon its being either a report or a background paper for a meeting of the Council. That defence would be jeopardised if a meeting of the local authority was by-passed and the Report simply released at a press conference.
  484. I was told that there was to be a properly constituted meeting of the Panel on 12 November that would "merge" into a press conference. That may or may not be unusual, but the question I have to consider is whether there was a duly convened meeting of the Panel. That cannot be determined by the fact of a press release announcing a press conference. Mr Lavery had told me the previous day, whatever the press release might have said, that the meeting at 10 a.m. was a meeting of the Panel. I am sceptical about much in this case, but I have no difficulty in accepting that, in the unusual and confused circumstances prevailing in the lead up to publication, an inaccurate (or at least incomplete) press release went out to the media. It does not affect the substance. Miss Page made the point that the press release was the work of the very experienced Ms Hillary (who was not called to give evidence). Since she was directly involved herself as a member of the core team herself, it was submitted that she must be taken as knowing what she was doing. It does not follow, however, that the announcement of a press conference necessarily means that there was not also a committee meeting (albeit brief and formal).
  485. On the other hand, there is some difficulty in understanding exactly how the decision was made to effect publication of the Report via that meeting of the Panel. This was explored with Mr Arnold:
  486. "Miss Page: You knew presumably when you met on 12 November that the Review Team had complied with the requirement to submit the Report to the City Council via the Chief Executive. Did you know that?

    Mr Arnold: Yes.

    Miss Page: It was for you, not the Chief Executive or his fellow officers, to determine its publication date, was it not?

    Mr Arnold: That is correct.

    Miss Page: In order to determine its publication date you needed to be fully informed, did you not, of the implications of publication?

    Mr Arnold: Yes.

    Miss Page: But you simply, in a 10 minute meeting on 12 November, rubber stamped a recommendation by your officers to publish it, did you not?

    Mr Arnold: Yes.

    Miss Page: You had not even read the document, had you, when you decided to publish it?

    Mr Arnold: That is correct.

    Miss Page: When you read it, you had some reservations, you say?

    Mr Arnold: Correct.

    Miss Page: Did you have an opportunity even to glance at it at the pre-meeting?

    Mr Arnold: No.

    ……………………….

    Miss Page: Did you know that it was going to result in the public of Newcastle, including parents of children who had come into contact with Christopher Lillie and Dawn Reed, [learning] that their children may have been subjected to abuse, including rape, buggery, cutlery in their vaginas, other objects up their bottoms, injections in order that they could be abused at locations by strangers? Did you know any of that before you launched this Report on the public of Newcastle?

    Mr Arnold: No."

  487. This discloses a remarkable state of affairs. The elected members had simply handed over the responsibility for investigating these matters to four outsiders and appear to have agreed to publish whatever they chose to include in their Report under (as Miss Page put it) "the imprimatur of Newcastle City Council".
  488. Mr Arnold was pressed as to his duty under the Local Government Code "to serve the public interest". He replied:
  489. "My belief then was, and still is, that the public interest was served best by full disclosure of the recommendations of the Review Team."

  490. Miss Page asked, not unreasonably, how he could have formed such a view if he did not know at the time what the Review Team had said. He replied that his conscience was clear since it was for the members of the public, and others, to make their own judgments. Once again, it seems to me that these are perfectly fair criticisms to make of the way the elected members and officers behaved. But it is not necessarily the case that any of those involved was acting in bad faith. I have no reason to think that Mr Arnold believed the conclusions of the Review Team to be false or that he was reckless.
  491. Miss Page also asked him if he knew, prior to publication, that Mr Lillie and Miss Reed had been given no notice of the grave and manifold allegations against them. He did not.
  492. This all goes back, however, in my judgment to the unfair and undisciplined way in which the Review Team conducted themselves and to the vague and confusing terms of reference. I entirely accept that the City Council has to take responsibility for letting this state of affairs develop, but it was certainly not Mr Arnold’s fault. Moreover, however hopeless the terms of reference may have been, that does not go to establish malice on the part of any of the named individuals as a motivation for the publications complained of in these libel proceedings.
  493. Mr Flynn

  494. Mr Tony Flynn gave evidence on 6 March. He has been a councillor since 1980. He was Deputy Leader at the time the concerns about Shieldfield arose in 1993 and has now been Leader for seven years. It will be recalled that in July 1994 it was he who pronounced Mr Lillie and Miss Reed guilty at the Civic Centre immediately after their acquittals. He did this without reading the ruling of Holland J or even being told of his serious concerns about the quality of evidence.
  495. He was not one of those who saw the Review Team Report prior to its presentation at the meeting on 12 November 1998. He knew that it had been "legally checked and that it was fair for us as a local authority to produce it". By "legally checked" I assume he meant that advice had been received that its publication would attract qualified privilege. He told me:
  496. "… the understanding with the Review Team [was] that it was their Report, that it was an independent Report that should be released to the Council at the same time as released to the wider public. The proviso the Council made was that the Q.C. should legally check the Report, so that it was not libellous and it would not place the Council in a difficult position".

  497. Since the Report was packed with the gravest of defamatory allegations, the only matter on which their counsel could in practice be advising would be that of qualified privilege in all relevant forms.
  498. He explained also that when he had made his pronouncement four years earlier after Holland J’s ruling he was simply acting on legal advice. The Council had established its position "after the disciplinary", and that appeared to be that – "there could never be any going back from it".
  499. He went on to say that the City Council had "highly qualified officers, Chief Executive, legal officers, other very qualified officers" and, when he was advised that it was the consensus of opinion that the local authority should respond in this way, then he accepted it. He took umbrage, however, when Miss Page queried whether there was any point in having elected members if it was all "down to the officers". He replied, "With respect, I think that is an insult".
  500. When it came to the setting up of the Review Team, however, Mr Flynn was less receptive to the benefits of legal advice. At one stage, it seemed that parents were requesting that the inquiry be chaired by an experienced lawyer, and that they should be offered legal representation. For example, solicitors acting for the parents wrote to Mr Hassall on 10 June 1994 and emphasised the need to meet the requirements of natural justice and to ensure that panel members should provide the appropriate skill and expertise to carry out the review properly. In particular, there would have to be a knowledge and understanding of legal practices and procedures. Similar views were expressed at the meeting with parents on 20 July 1994. At that time Mr Flynn was apparently stating "that it was not the Authority’s intention for the Review Team to be adversarial, and there was a danger of this happening once lawyers were involved".
  501. This may have been a significant factor in what went wrong. There may be a number of reasons why the City Council decided to reject the option of having lawyers involved, including perhaps the perception that it would be less expensive. Unfortunately, however, it seems that "the requirements of natural justice" were jettisoned along with "the appropriate skill and expertise".
  502. This issue was clearly central and closely linked to the muddle over the Review Team’s terms of reference. It is just conceivable that one might institute an inquiry (public or private) with a brief to identify individuals as guilty of indecent assault and/or rape, but it would clearly need to be hedged by safeguards for the "accused" of the traditional kind (including, for example, notification of the precise "charges" and of the evidence, an opportunity for legal representation, to challenge or test evidence, and so on). On the other hand, if one eschews that approach (because of expense or any other reason) and opts for an inquisitorial but informal mode of inquiry, then it should be plain as a pikestaff that the remit should be appropriately circumscribed. It would be unthinkable that such a procedure could yield a fair resolution of such issues.
  503. The truth is, of course, that the Council having taken its immovable position on the guilt of Mr Lillie and Miss Reed, it would hardly occur to them that there could be any outcome of the inquiry inconsistent with that datum. That position would appear to be encapsulated in the Journal in August 1995 where it was said that there was no intention for the inquiry to "point the finger" or investigate whether or not children were abused – since the Council had already acknowledged that they probably were. (I accept that Ms Bernard has no recollection of this, and does not accept that she was accurately quoted, but I am quite satisfied that this was the Council’s approach to the matter.)
  504. Mr Flynn also confirmed that the Report could simply have been handed out at a press conference on 12 November 1998 but that a panel meeting needed to be set up because "on legal advice" they needed to have the protection of qualified privilege. In other words, the Panel meeting on 12 November was purely formal and had no purpose other than to serve as a peg on which to hang statutory privilege. It was in this context, no doubt, that the meeting timed for 10.00 a.m. came to be described in a press release the day before as a "press conference".
  505. The fact remains, however, that Mr Flynn was acting throughout on legal advice. Whether he was right or wrong about the decision to speak out in July 1994, or as to the appropriate means of dealing with parental complaints, or as to his acceptance of Professor Barker’s wishes on the mode of publication in November 1998, what he was doing was on legal advice and, no doubt, in accordance with what he believed to be the right way of dealing with a highly unusual and worrying situation. I see no evidence of malice.
  506. Mr Poll

  507. On 6-7 March Mr Poll also gave evidence on some of these matters. Although he was not alleged to have been malicious himself, his evidence was certainly relevant to the City Council’s defence of qualified privilege. Since June 1998 he has held the post of Head of Democratic Services. Prior to that time he was principal committee administrator. When Mr Warne left, he took over administrative responsibility for the Shieldfield Review. It was the first involvement he had. Mr Brian Scott took over the responsibility for the legal aspects.
  508. Mr Poll has great experience of handling local authority committees so as to ensure that they are conducted in accordance with the requirements of law. He has dealt regularly with such matters as the preparation of agendas, the giving of proper notice, and compliance with the openness requirements of the Local Government Act. As far as he was concerned, the Review Team’s Report had a dual status. It was a report in its own right and it was a background paper to the covering report for the meeting of the Panel on 12 November. He was referring to the joint officers’ report (dated itself 12 November) from the Chief Executive, Director of Education and Libraries, Director of Social Services and Head of Legal Services. This was for explaining the background to councillors in readiness for their "formal" meeting. (It contained two somewhat economical claims. First, there was the supposed reason for "urgency" – "… it has not been possible to distribute the Report in advance of the meeting". Secondly, there was the assertion that "The Council only became aware of the Team’s recommendations today and so an immediate response cannot be made".) It is quite true that at the foot of that Report there appears a note to the effect that the Review Team’s Report is a "background paper".
  509. He was clearly troubled by the fact that it was being witheld from the public, which he would have considered to be contrary to the openness requirements of s.100 of the Act. He said it was treated in a manner he had never encountered before. His department had to ensure access according to a "legitimate interest" test, which had no statutory basis of any kind. He had never come across it before or since. It apparently derived from legal advice, in respect of which privilege has not been waived.
  510. Also, unlike other Council witnesses, he was conscious of a change in procedure having been agreed with the Review Team, which was not entirely compatible with the amendment to the Terms of Reference on 29 May 1998. At that stage what was laid down was that the Team’s Report was to be submitted to the City Council through the Chief Executive (an event which apparently happened on 6 November when Mr Lavery received his copy). At some later point, it was agreed with the Review Team that it was to be formally "received" at the Panel meeting on 12 November. Mr Poll said that his understanding was in accordance with this latter arrangement. That is what he said in his own report of 12 November. There was never any information on the public record to reveal that the Report was actually received on 6 November.
  511. I found this all rather puzzling. Those officers who received the Report on 6 November 1998 had no status to receive it save in their capacity as officers of the Council. They must surely have received it on behalf of the Council. Ergo, the Council received it on 6 November – whatever Professor Barker or anyone else may deem to have occurred.
  512. The agenda for the Panel Meeting on 12 November had quite correctly been made available to the public at least three days before the meeting. It also contained an item relating to the Review Team Report. What was unusual was that the Report itself had not been made available for inspection. Mr Poll had therefore perceived it to be necessary for a specific finding of urgency by the Chairman of the meeting and for that to be minuted.
  513. The problem is that there are only certain circumstances in which these openness provisions may be by-passed in the name of urgency. It could be achieved if the meeting had to be convened on less than three days’ notice or the item in question had to be added to the agenda in a correspondingly shorter time. Neither of those considerations applied. Mr Poll’s understanding of the "urgency" requirement was that "we had not received the Report in sufficient time to comply with the Act. So this was a compromise, if you like".
  514. In truth, of course, the Report had been received on 6 November and the only factor inhibiting compliance with the usual obligations was the undertaking given to Professor Barker – which was nothing to do with urgency. Whenever the Panel meeting had taken place, and however long before the meeting the Report was received, he would still have insisted that the elected members should not see it in advance. Mr Poll said he had never come across anything comparable. It is intuitively unattractive to keep secrets from the elected members, and that is presumably why there is no statutory peg on which to hang such a unique procedure. Professor Barker was in this sense a law unto himself.
  515. Mr Poll was a meticulous and very helpful witness in explaining the way such matters work in practice, although I need to remember that in so far as any question of pure law is concerned (and, in particular, whether there was non-compliance in relation to the promulgation of the Report) I must decide the issue as a matter of construction. That may have a bearing on Miss Page’s submissions on statutory privilege, but the technicalities canvassed in Mr Poll’s evidence, and also with Mr Scott, do tend to underline the pitfalls for layman and lawyer alike. It very much confirms, in the context of malice, how dependent all the main protagonists would inevitably have been on legal advice.
  516. Mr Poll gave evidence on another unusual feature of the case; namely the ad hoc procedure adopted by his staff for vetting access to the content of the Report after 12 November. It is true to say that it may not have been operated evenly, or always achieved the desired objective, but it seems that the purpose was to check with anyone applying in person or by telephone as to their interest in the matter. It seems to have nothing to do with the openness provisions of the 1972 Act (as amended), but rather to have been devised on the advice of a lawyer or lawyers with a view, if necessary, to establishing a common and corresponding interest between the Council and any such applicants for the purpose of common law privilege. I can only presume that this was to provide a safety net if the statutory tightrope gave way. To some extent, therefore, the Council staff were being more restrictive as to the distribution of this document than would normally be the case with reports supplied to its committees. I am not sure that the time spent on this issue actually took matters very much further but, again, it shows how determined everyone was to achieve the protection of qualified privilege by whatever means was appropriate and how much they looked to the lawyers for an answer.
  517. Mr Scott

  518. The final witness who found himself in Miss Page’s sights, as a target for a finding of malice, was Mr Brian Scott. He gave evidence on 7 and 8 March. He is a very experienced local government lawyer. He came into the Shieldfield story at a very late stage and it cannot have been easy to deal with the situation he faced. I had no difficulty, however, in concluding that he did his best to act professionally and I have no doubt that whatever he did was in good faith. I do not believe he thought he was helping the members or other officers to devise a "sham" by dressing up the publication of the Report in such a way as to give Professor Barker and his colleagues a cloak of statutory privilege to which they were not entitled. He, like the others, regarded it as an important commitment on the part of the Council to publish the outcome (while recognising that there were serious allegations being made against a number of Council staff, past or present). Part of his brief was therefore to try to ensure that advice was received, and given, and procedures properly complied with, so as to minimise the risk of any claim for defamation. As far as he was concerned, the meeting was a properly constituted meeting of a Council committee (and not a press conference "dressed up").
  519. As I have said, he conceded that the terms of reference were muddled and difficult to follow. It may well be that if he had advised on them from the outset some of the unhappy outcome, for all concerned, could have been avoided. But he had to deal with a fait accompli and, so far as he could assess it, he did not think that the content of the Report involved going outside the Review Team’s remit. Whether he is right or wrong on that vexed question does not matter for present purposes, since I have to come to my own conclusion about it. There is, however, no reason to suppose that his conclusion was anything but honest.
  520. One matter he addressed early in his evidence was the curious reference to "public interest immunity" in sub-paragraph (e) of the instructions as to how the review was to be conducted (see paragraph 129 above). It is a concept often encountered in the context of Social Services files, and particularly in relation to criminal proceedings involving children in care. But here Mr Scott found it difficult to interpret. So did I. He explained the matter very clearly:
  521. "The records were not being disclosed to third parties. There was no question at any time of going to a court for an order for disclosure. The entire basis of the Review was for social work purposes…. It is a matter for the Social Services authority to decide how those records are used (provided they are used for social work purposes)".

  522. He added that the concept of public interest immunity had no relevance to personal files and could not see why it was mentioned in that context. He agreed with Mr Bishop that the phrase seemed to have been sprinkled around the terms of reference "like confetti".
  523. It is important also to address Mr Scott’s evidence about the exercise of discretion by a "proper officer" and whether discretion was exercised at all with regard to matters that might be withheld from the public as being confidential, or as falling within the definition of "exempt information". I must bear in mind that background context against which Mr Scott approached the matter; in particular, the fundamental assumption (settled before he even arrived) that nothing was to be held back.
  524. In cross-examination the nub of the case on malice can be derived from the following exchange:
  525. "Miss Page: You lent Dr Barker the local government democratic system in order to put his report, naming them as paedophiles, into the public domain?

    Mr Scott: We did not lend the system to Dr Barker. The process of publication in respect of that Report was the proper process. The Report had to come to a committee of the Council.

    Miss Page: You lent it to him for the sole purpose of giving him the legal protection he required, and the Council required, in order to publish material that you knew… ought never to have been published?

    Mr Scott: No".

  526. He was also criticised for not giving Christopher Lillie or Dawn Reed any advance notice of the allegations in the Report. His response was that he did not address it personally but assumed that all persons who should have been notified were duly notified. It was, in my judgment, an astonishing omission that they received no advance warning of the "charges" the Team were considering or of the grave findings that were going to be made. But that is the fault of the Review Team. I do not think Mr Scott can be blamed for that omission. On the wider question, I believe that he was acting in good faith, that he did what he believed to be his duty and that he had no reason between 6 and 12 November to believe that the Report contained anything false. He had no opportunity to check it or test it.
  527. Miss Page also put to Mr Scott:
  528. "You did not care - you did not give a damn, did you, whether this Report was true or untrue about them, endangering their lives or otherwise; you simply did not care, you were totally indifferent to it, were you not?"

  529. He denied that this was so. As a matter of fact, I have seen no evidence that anyone at the City Council (any more than the Review Team) cared about Christopher Lillie or Dawn Reed and the impact the Report was likely to have upon them. They were in practice, whatever the protestations, treated as being "beyond the pale". As was said, on several occasions, their primary concern was with the parents and "victims". Nevertheless, that in no way entails malice in the sense with which I am concerned. What matters is not indifference to the Claimants, but rather indifference to truth or falsity. As to that, Mr Scott said:
  530. "We were not indifferent. We engaged a Review Team to investigate the circumstances in relation to these events over a long period of time".

    Overall Conclusion

  531. So much then for malice. It is obvious that the main objective in all these "one off" manoeuvrings was simply to achieve qualified privilege. There was a good deal of cynicism and a determination to get the Report into the public domain with impunity for all concerned. The City Council, on one interpretation, wanted to wash its hands of the whole affair and leave it up to the Review Team but wished to retain their usual statutory privilege. Nevertheless, since there was a Panel Meeting on 12 November, on proper notice, it seems to me that they achieved their purpose. The fact that it "merged" with a press conference, and the fact that the Chairman approved the Report as being introduced on a spurious "urgency" basis, are not matters which detract from the status of the 12 November gathering as a Committee meeting. Thus statutory privilege in accordance with the 1972 Act would automatically "kick in".
  532. In these circumstances, however cynical those involved in the process may have been, and however ill judged were the terms of reference laid down for the Review Team, it seems to me clear that they achieved their objective of publishing the Report under the cloak of privilege. Since none of the identified officers, or Mr Flynn, can be categorised as "actuated by express malice", it must follow that the City Council is entitled to judgment. That is not to say, of course, that the Council’s acts and omissions over the Review Team terms of reference may not have some bearing on the issue of costs.
  533. 16) Compensation

  534. At this stage I must turn to consider the appropriate sums to award against the Review Team by way of general compensatory damages. There is a claim for special damages also, but that is to be dealt with at a later hearing if necessary.
  535. The purpose of libel damages is threefold. First, they are to compensate for hurt feelings, distress, embarrassment, anxiety and (in some cases, such as this) fear of physical attack. Second, damages are required to compensate for injury to reputation. Thirdly, they can also serve the legitimate purpose of vindicating or restoring reputation; that is to say, they may serve as an outward and visible sign to interested bystanders that the relevant defamatory allegations were untrue.
  536. Many factors need to be taken into account in deciding the right figure or bracket for the purpose of achieving, in any given case, those three objectives.
  537. It is, for example, necessary to have regard to how serious the allegations were, the extent to which they were believed, for how long they have gone uncorrected, whether there has been a retraction or apology, the scale of publication or re-publication. In this case, all the considerations point inevitably to the need for substantial compensation.
  538. The allegations made, and persisted in throughout the trial, were very grave indeed. With the possible exception of murder, it is difficult to think of any charge more calculated to lead to the revulsion and condemnation of a person’s fellow citizens than that of the systematic and sadistic abuse of children. I have set out earlier in this judgment the main conclusions of the Review Team, which are in terms as grave as one could imagine.
  539. As the Review Team knew and intended, those conclusions were bound to receive massive publicity both nationally and locally. They must have appreciated too that the Claimants’ lives would never be the same again. It would not have taken much imagination to visualise the virulence of the reactions they would stir up in the general public. The two Claimants recalled in evidence how they had to leave in haste their homes, families and career prospects. They had to go into hiding.
  540. Unaccountably, however, they were given no warning of what was to come. They could only pick it up from the media reports. I have already recounted how the Review Team claimed in their Report to have given forewarning "where particular people have been significantly criticised" prior to publication and allowed a chance to respond. This was not true in the Claimants’ case. It seems that because they declined to come and be interviewed by the Review Team, for reasons which were wholly understandable, they were put beyond the pale and deemed unworthy of fair or even humane treatment.
  541. There has never been any retraction or apology. On the contrary, the wildest and most serious allegations have been pursued by the Review Team by way of justification. They were also pursued by the Newcastle Chronicle until they withdrew on 23 February 2002, but not by the Newcastle City Council (for tactical reasons). The Review Team have maintained that case down to the moment of this judgment except in relation to the various children with whom they realised, sooner or later, that they could not persist. They continued to allege abuse in respect of over 20 children. They have done about as much as they could to aggravate the damages. Even when the children were withdrawn from the plea of justification, on 13 May, there was no recognition that the allegations were false.
  542. Time and again the gist of their conclusions was regurgitated – not least in more than 100 articles published in the Newcastle Chronicle. Even though the publishers withdrew from the case, after the Claimants’ evidence and almost at the conclusion of the Review Team members’ own evidence, those articles cannot be excluded from consideration. The main thrust of their attack derives from the Report. The Review Team to that extent, therefore, must bear responsibility in law for such republication, in accordance with the long-established principles in Speight v. Gosnay (1891) 60 L.J. Q.B. 231 (see also now McManus v. Beckham [2002] E.W.C.A. Civ 939). They are not, however, responsible in law to the extent that newspapers went off on a frolic of their own and published matter not deriving from the content of the Report.
  543. Of course, the Review Team proceeded on the footing that whatever they published would be protected by qualified privilege. In that event, they would have avoided liability not only in respect of their original publication to the City Council in November 1998 but also for any republication flowing from that. If and in so far as their original publication may be vitiated by malice, then they become exposed to liability correspondingly for the republications.
  544. It is therefore necessary to compensate for massive and prolonged publicity given to the Team’s conclusions. The persistence in the pleas of justification is an aggravating feature. It is necessary also to take account of the distress caused to the Claimants, day after day, as they have sat in court and been obliged to listen to these grave allegations being given further currency. Although it goes almost without saying that such distress would have been caused, as a matter of fact I have been able to observe it time and again as the trial has progressed. I believe it was an additional and unforeseen element in their distress to hear how casually their reputations had been treated by some of the witnesses – not least the Review Team. It was also particularly galling to hear how Professor Friedrich’s expert report fell apart, and for it to be revealed how he had pronounced on their guilt in the light of the video interviews without even bothering to watch them first. It must have been humiliating to see someone treating their livelihoods and reputations with such casual indifference. Time and again, in respect of different children, he was declaring them to have been abused on the flimsiest of grounds. He was going through the motions of producing a Report and oral evidence simply because he perceived that this was what was required of him.
  545. Dr San Lazaro admitted, nine years on, how flawed her methods had been and how she had exaggerated evidence when seeking compensation for the children. Naturally, the Review Team cannot be held responsible for her actions at that time, but they have to bear some responsibility for putting her evidence before this court as though she was even now, in spite of her admissions, a credible witness to whose evidence significant weight could be attached on these allegations of multiple abuse.
  546. There was also the maintenance of unsustainable smears about paedophile rings and commercial pornography. The Review Team knew the police had no evidence for any of this and yet they have persisted in the allegations to this day, presumably in the hope that something will stick.
  547. There are so many aggravating features about this case that have to be taken into account. A few years ago the Court of Appeal sought to lay down guidance on the subject of defamation damages in an attempt to achieve proportionality, consistency and compliance with the values of Article 10 of the Convention: Rantzen v. Mirror Group (1986) Ltd [1994] Q.B. 670 and John v. M.G.N. Ltd [1997] Q.B. 568.
  548. It is fair to say that it was generally recognised for a time, as a matter of convention, that there was a ceiling in the region of £150,000 for general compensatory damages and that the gravity of defamatory publications had to be assessed in particular cases on a scale in accordance with that upper limit. It was also acknowledged, for the first time, that it was desirable in keeping libel damages in proportion to pay attention to personal injury awards. Since those decisions, of course, it is fair to say that the level of such damages has been uplifted in accordance with Heil v. Rankin [2000] P.I.Q.R. Q187.
  549. I am quite satisfied that each of the Claimants have merited an award at the highest permitted level. Indeed, they have earned it several times over because of the scale, gravity and persistence of the allegations and of the aggravating factors. I have no doubt that a few years ago they would have been awarded much higher sums. But I must bring their compensation into line with the current policy in such matters. I could attempt to award separate sums in respect of different publications and thus arrive at a higher overall figure. In some respects, however, this would be an artificial exercise.
  550. Mr Bishop recognises that the effective ceiling nowadays in libel actions may be taken to have risen to £200,000, but he says that it is only to be kept in reserve for the most serious cases. He submits that I should leave a gap to take account of the really serious cases and not go to the top of the bracket. I find it difficult to imagine what could be more serious than the present allegations.
  551. I propose to say no more than that each Claimant is amply entitled to the maximum level now permitted. I should award £200,000 each. In view of what they have been through since November 1998, it is hardly excessive by anyone’s standards. What matters primarily is that they are entitled to be vindicated and recognised as innocent citizens who should, in my judgment, be free to exist for what remains of their lives untouched by the stigma of child abuse.
  552. 17) A brief summary of findings

  553. I have found that the allegations of child abuse against Christopher Lillie and Dawn Reed are untrue. In these libel proceedings it was part of the Review Team’s defence that these allegations were true. That defence therefore fails.
  554. I have concluded also that there is no basis for the Review Team’s allegations in their Report of November 1998 ("Abuse in Early Years") about the existence of a paedophile ring involving Shieldfield children or their exploitation for pornographic purposes (see sections 8 and 9).
  555. It was never part of the Newcastle City Council’s defence that the allegations against Christopher Lillie and Dawn Reed were true. They took this stance, I was told, for tactical reasons. They are or were defending claims for compensation by parents over the abuse alleged to have been suffered while in their care. In those proceedings the City Council were making no admission that such abuse had taken place and could not, therefore, be seen to be making inconsistent allegations in the libel actions. They nevertheless fully indemnified the Review Team in the conduct of their case.
  556. The City Council preferred to rely on the defence of qualified privilege on various grounds. I have upheld their defence of privilege. The Claimants argued that certain named officers and the leader of the Council were maliciously motivated in arranging the publication of the Review Team’s Report in November 1998. I heard evidence from all those individuals and rejected the claim that any of them was malicious. Accordingly, the City Council is entitled to judgment (see sections 14 and 15).
  557. The Review Team also raised qualified privilege as a defence. Those four Defendants were engaged by the City Council in 1995 to carry out a review as to what went wrong at Shieldfield and to respond to parents’ individual complaints/allegations against various individuals or departments within the City Council. They looked into matters for three years and were paid, I was told, well over £350,000 for their work. They and the City Council took legal advice with a view to ensuring, so far as possible, that when their conclusions were published they would all be protected by the defence of qualified privilege if sued for libel. The Review Team delivered their Report in accordance with their contractual obligation to the City Council on 6 November (via the Chief Executive). That limited publication was protected by qualified privilege at common law (see sections 10 and 11).
  558. It is true that the Review Team stipulated that no elected member of the City Council was to see the Report prior to publication to the wider public on 12 November 1998. That may seem odd, since it was the City Council who hired them to inquire and report. Nevertheless, I am satisfied that a meeting of a Council committee (albeit a brief and purely formal one) was duly called and constituted for 10 a.m. on 12 November and that the Report, which was formally "received" by the Committee, was thereafter published in such a way as to attract the very wide privilege accorded by the Local Government Act 1972 (as amended). Although the Review Team were responsible for the wide dissemination of their Report through that channel, they too would be entitled to take advantage of that protection by way of privilege (see sections 14 and 15).
  559. Unfortunately, however, I have also held that the four members of the Review Team were malicious in the promulgation of their Report. They have thus forfeited their protection in respect of the limited publication of the Report on 6 November and the much wider publicity it attracted thereafter. That is because they included in their Report a number of fundamental claims which they must have known to be untrue and which cannot be explained on the basis of incompetence or mere carelessness (see sections 12 and 13).
  560. Accordingly, the Claimants are each entitled to judgment against the Review Team. The allegations made against them were of the utmost gravity and received sustained and widespread coverage. I decided, therefore, that each Claimant was entitled to what is now generally recognised to be the maximum amount for compensatory damages in libel proceedings. I award each of them £200,000 (see section 16). What matters primarily is that they are entitled to be vindicated and recognised as innocent citizens who should, in my judgment, be free to exist for what remains of their lives untouched by the stigma of child abuse.
  561. Although the City Council is entitled to judgment, I wish to make clear that the terms on which the Review Team was appointed and the methodology they adopted were wholly unsuited to the task they were eventually required by the City Council to perform. The Claimants had been acquitted of charges in respect of some of the Shieldfield children in July 1994 and it was originally stipulated, therefore, that the Review Team should "not make any finding on matters dealt with by the criminal court". Despite this they, in effect, found them guilty of serious sex offences (including rape) not only in respect of the very children involved in the 1993-1994 criminal charges but also in respect of countless others (sometimes put at about 60 and on other occasions up to 1450). They were encouraged in this folly by the Council including through officers with legal qualifications. The result was that they proceeded to make their findings without any of the elementary safeguards being accorded to the two citizens in jeopardy.
  562. For example, the "accused" were not notified of exactly what was alleged against them, or told what the evidence was, or given an opportunity of testing it or responding. They were invited to come and speak to the Review Team but were not given any indication of what they would be asked about (despite a request through solicitors), and Mr Lillie was told falsely that they would not be re-visiting the criminal charges of which he had been acquitted. Inevitably, they were advised to have nothing to do with it.
  563. When the Review Team had made their findings, neither Claimant was forewarned of the conclusions or when they were to be published. They were left to learn of the allegations through the media.
  564. Although parents had been calling for a public inquiry in 1994, their legal advisers were pressing for procedures compliant with the principles of natural justice. That was clearly right, but the Council allowed the team to proceed as they thought fit, and natural justice seems to have fallen by the wayside.
  565. I characterised these arrangements in a ruling in February as a "shambles". That still seems to me to be an apt description. The fault cannot be laid entirely at the door of the Review Team since none of them was legally qualified, and I concluded at an early stage that it was mainly the Council’s fault for sanctioning an inquiry into the commission of acts tantamount to criminal offences, with a view to the ultimate publication of a report, but without appropriate safeguards for the "accused". The exercise has cost a vast amount of money for the citizens of Newcastle and I have no doubt years of unnecessary heartache for many of those directly involved. Unhappily, the Council has only itself to blame.