- 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.
- 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.
- 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".
- 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:
"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).
- 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.
- 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:
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.
- Even Ms Bernard
appeared to recognise the problem in cross-examination:
"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".
- 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:
"…
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".
- 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.
- 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.
- 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".
- 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:
"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".
- 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.
- 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.
- 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.
- 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.
- Instead of identifying
the dangers as the months went past, and restricting the terms of reference,
things were allowed to deteriorate.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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:
"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".
- 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.
- 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.
- 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:
"…
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".
- 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.
- 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.
- 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.
12)
The evidence of the Review Team Defendants
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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:
"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".
- 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).
- 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.
- 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.
- It is necessary
to bear in mind exactly what the Team’s stark findings and conclusions were
in this context (page 282):
"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".
- 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.
- 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.
- 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.
- 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.
- 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.)
- 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.
- 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.
- 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.
- 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:
"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’"
- The claim was
also made that, in the case of witnesses who were the subject of substantial
complaints, the Review Team sent "Salmon letters".
- 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.
- Miss Page gave
Professor Barker an opportunity to deal with this allegation in the following
terms:
"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".
- 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:
"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".
- 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.
- Against that
background, I set out the terms of the letter of 7 May 1997:
"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"
- 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.)
- 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).
- 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.
- The exchange
went as follows:
"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".
- 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.
- 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".
- It is against
this background that the Team included the following sentence in their Report
(at page 228):
"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".
- It is also manifest
that the claim made on page 23 of the Report is, as Miss Page suggested, untrue:
"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.
- 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.
- 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.
- 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.
- Mrs Saradjian’s
evidence on this subject was "breezy" rather than analytical:
"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".
- 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".
- 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.
- In his witness
statement Professor Barker had this to say on the subject:
"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.
- 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".
- 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.
- 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.
- 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.
- 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:
"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.
- 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.)
- 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.
- 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.
- 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:
"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.
- 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.
- 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:
"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".
- Professor Barker’s
reply of 17 January 1997, so far as material, was in these terms:
"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".
- 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.
- 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.
- 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:
"…
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.
- 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:
"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".
- 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.
- 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.
- 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.
- 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:
"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".
- 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.
- 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.
- 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.
- It was interesting
to note that on 8 February Professor Barker used this formula of "implication"
by the police also in relation to pornography:
"…..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".
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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:
"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".
- 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.
- 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:
- 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;
- 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;
- 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);
- 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;
- 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.
- 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".)
- 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.
- 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.
- Miss Page asked
Professor Barker about suppressing the Judge’s comments:
"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.
- 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:
"I
mean that seems to me to be something that it would be very difficult to do
in this context."
- The exchange
continued:
"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".
- 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:
"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".
- 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:
"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".
- 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.
- Shortly thereafter,
he took a slightly different stance: