The Cosgrove letter
The evidence of Professor Barker
Extract from the judgment of Mr Justice Eady in the Shieldfield libel trial, Royal Courts of Justice, London, 30 July 2002
1129. 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.
1130. 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.
1131. 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.
1132. 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.
1133. 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  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.
1134. 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.
1135. 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.
1136. 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.
1137. 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.
1138. 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.
1139. 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.
1140. 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.
1141. 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”.
1142. 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).
1143. 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.
1144. 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.
1145. 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”.
1146. 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.
1147. 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.
1148. 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.
1149. 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.
1150. 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.)
1151. 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.
1152. 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.
1153. 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.
1154. 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’”
1155. The claim was also made that, in the case of witnesses who were the subject of substantial complaints, the Review Team sent “Salmon letters”.
1156. 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.
1157. 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”.
1158. 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”.
1159. 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.
1160. 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.
DR RICHARD W BARKER
1161. 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.)
1162. 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).
1163. 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.
1164. 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”.
1165. 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.
1166. 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”.
1167. 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”.
1168. 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.
1169. 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.
1170. 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.
1171. 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.
1172. 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”.
“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”.
1173. 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”.
1174. 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.
1175. 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.
1176. 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”.
1177. 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.
1178. 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.
1179. 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.
1180. 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.
1181. 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.)
1182. 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.
1183. 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.
1184. 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.
1185. 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.
1186. 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”.
1187. 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”.
1188. 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.
1189. 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.
1190. 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.
1191. 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”.
1192. 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.
1193. 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.
1194. 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.
1195. 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”.
1196. 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.
1197. 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.
1198. 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.
1199. 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”.
1200. 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.
1201. 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.
1202. 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.
1203. 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.
1204. 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.
1205. 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.
1206. 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”.
1207. 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.
1208. 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:
i) 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;
ii) 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;
iii) 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);
iv) 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;
v) 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.
1209. 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”.)
1210. 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.
1211. 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.
1212. 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.
1213. 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.”
1214. 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”.
1215. 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”.
1216. 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
1218. Shortly thereafter, he took a slightly different stance:
“Question: …there is nowhere in the Report in which you refer to, as you do in your witness statement, this child’s contradictions, or this child insisting on Dawn’s innocence, is there?
Answer: Well, all four of us saw the videos of this child, so there is a sense in which the conclusions we drew in relation to this child and the videos were the product of all four of us seeing it in discussion rather than any one individual opinion”.
1219. This appears to be suggesting that, although Professor Barker himself regarded the Child 14 videos as “inconclusive”, he was prepared to go along with the statement on page 148 of the Report, to the effect that they provided “powerful and persuasive evidence” that she had been abused. If true, this would hardly be a very principled way of assessing material relied upon for the purposes of establishing rape. It would mean that the readers of the Report would be deprived not only of the concerns expressed by the trial Judge about her statements but also of the fact that Professor Barker privately regarded these “persuasive” videos as “inconclusive”. That is as clear an example as one could expect to see of a defendant claiming to espouse one proposition while believing another. It would be dishonest.
“I think that what I would like to have done is to be able to ask the child more questions about some of those aspects that she was talking about. But I think, overall, they were very powerful statements, made by the child about things she had observed and things she had experienced within the nursery. I would like to have questioned her more on it. I do not think that they fully explored all the issues that could be [explored]. So, in some ways, they were inconclusive. But, overall, I felt that they were very powerful”.
1221. Thus, it emerged that a second member of the Review Team thought “aspects” of the Child 14 interviews were “inconclusive”. Despite my invitation, she did not identify what they were. But it is reasonably clear that she thought there were questions which the interviewer needed to ask (no doubt, in particular, probing inconsistencies). Yet this was not conveyed in the Report. The interviews are presented simply as powerful and persuasive evidence against Mr Lillie – and presumably also Miss Reed. Again, I find it difficult to reconcile this statement with her private reservations.
1222. A remarkable piece of sloppiness in the Report (if that is what it is) is to be found on page 41. There is a supposed “chronology” which contains the item that, on 4 October 1993, during her first video interview, Child 14 alleges rape. She did nothing of the sort. She did not even make an allegation of indecent assault against herself during that video interview. The actual entry reads, confusingly, as follows: “alleges rape being videoed”. Whether that is intended to mean that she was alleging that she had been raped while being recorded on video tape, or whether it means simply that she alleged (a) that she had been raped and (b) that she had been video-recorded doing some other activity, does not for present purposes matter, since nowhere in the three video recordings does Child 14 make reference to being video-taped at all. I found it profoundly worrying that this Review Team could have included the false suggestion in their chronology that Child 14 alleged rape on 4 October. I am afraid I do not understand how any honest and responsible person can throw allegations of rape around so casually. (It is possible that this notion of Child 14 being video-taped came from the Panorama programme of October 1997, when it was publicly alleged that a cameraman had been present.)
1223. The consequence was that a reader of the Report would be bound to draw the conclusion not only that Child 14 had alleged rape on 4 October (the date of her first interview) but that “over three interviews” she had been consistent. That is a gross distortion. It is so gross that four intelligent people could not have promulgated it by mistake or oversight. It is true that they did not have the advantage of transcripts, but they did have the clear summary of the three interviews contained in the ruling of Holland J (which Mr Wardell described as “very helpful”).
1224. On 14 February, much time was taken up in cross-examination of the Professor by going through in detail the transcripts of Child 14’s three video interviews. Central though Child 14 is to the plea of malice, not much was gained by this exercise since there was little Professor Barker could say. He could have answered for the most part compendiously without addressing individual passages. His response was effectively that he formed an impression that the child was telling the truth. Although he had read the judgment of Holland J, he regarded it as a matter going only to admissibility. Their exercise was broader and qualitatively different from that of the Judge and, what is more, they had more information to go on. That was a short and simple position to take. It did not improve with repetition. For my purposes, the validity or otherwise of the Review Team’s stance can be judged mostly by reference to the recorded interviews and to the Judge’s observations about them. He saw what the Review Team saw (Child 14’s videos have apparently been viewed by all four members). The child’s “disclosures” and the inconsistencies or contradictions remain static for all to see – except, of course, the readers of the Report.
1225. Cross-examination on this front was, however, not wholly unproductive. It emerged that some elementary questions, or lines of inquiry, thrown up by the interviews were simply not pursued. For example, although the child at no stage spoke of any indecent assault upon her outside the nursery, she did speak in a confusing way about supposed visits to either a flat or a house, where there were dogs and hamsters and a backyard in which to play. She variously described the mode of travel (bus or train). She also spoke on different occasions of being accompanied by different members of staff (Amanda and Moira). She did not speak of going to such places accompanied only by Mr Lillie and/or Miss Reed. Even though the child does not speak of any assault upon her during any such visit, she did mention in the first video having seen “Chris” in bed with someone called “Doreen” (conceivably a childish corruption of “Dawn” or “Dawn Reed”). That would be manifestly inappropriate behaviour, if not an actual assault, and Professor Barker was entitled to observe that it might reasonably come within the definition of “abuse”.
1226. Crucial, therefore, one might think, to question the members of staff alleged to have been present, Amanda and Moira. It emerged in cross-examination that this was not done. Moira Martin was interviewed but not even asked about this. Whether this was an “oversight” was not clear, but in any event there was a gaping hole in the evidence before the Review Team such as would surely at least inhibit them from accepting the child’s confused account. As for Amanda Caisley, she was not interviewed. Apparently she did not accept the invitation, but the Review Team did not ask her even in writing to confirm or deny what the child was alleging about her presence. One might perhaps understand (just) how such inquiries were overlooked if the Review Team had simply failed to spot the potential significance of such witnesses (however unlikely that would seem), but they did appear to attach significance to it in the body of their Report (at page 148). They actually cite the fact that over three videos Child 14 detailed abuse of herself and other children by Christopher Lillie and to a lesser extent Dawn Reed, “and she also mentioned other nursery staff’s names” (emphasis added). Since her testimony is then described as “persuasive evidence of her abuse in the nursery and elsewhere”, the Review Team would appear to be pointing to the “other nursery staff” as complicit. Indeed on page 240 of the Report they say more generally:
“The children also talked about other people’s involvement and mentioned the names of other staff from the nursery. This could be because these staff were also involved…”
1227. That is a remarkable allegation to leave hanging in the air when the Review Team know perfectly well that there is no shred of evidence to link any of the other Shieldfield staff with child abuse.
1228. There is another shift of emphasis at page 282 of the Report:
“We have no evidence of other staff in the nursery abusing children with Chris Lillie and Dawn Reed. However, we find that during and after the abuse there was evidence to suggest that some staff were confused about their primary responsibility towards the children. We feel that this partly is a result of being subject to grooming to ignore or minimise the abuse”.
1229. Again the staff are at the same time absolved and implicated. The prose has the same treacle like quality as other parts of the Report, in the sense that it is impossible to pin any precise meaning on the passage. It is obviously intended to smear somebody but there is no specific evidence to enable one to see which of the staff were “groomed” or who did the grooming. Presumably Mr Lillie and/or Miss Reed “groomed” other members of staff, but there is no way of knowing how this was done or to how many staff. No evidence emerged in the course of the trial to support the proposition. If there had been any material in support, surely it would have been put to one or other of the Claimants.
1230. It is true that on page 213 of the Report the Review Team conclude “We accept that Chris Lillie and Dawn Reed were the only nursery staff involved in the abuse”. This is on the basis that “… there is no evidence that any other staff of the nursery were involved in the abuse of children”. Yet they qualify this by saying, “Two children did suggest that a third member of staff was involved; but they each named a different person, so that their allegations were uncorroborated”. This is less than clear, since it hardly squares with what is said in the passages at pages 148 and 240 quoted above; nor did the children actually suggest that any other member of staff was “involved” in abuse (as opposed to being present on trips out of the nursery). Indeed, that is part of the Review Team’s own case – one of the excuses they put forward for not asking the other members of staff about it. Moreover, it is misleading to give the impression that two children identified one other member of staff as being involved. Child 2 mentioned three. Child 14 mentioned two. None of this, in any case, meets the essential point that no checks were made for the purpose of testing the plausibility of the children’s accounts.
1231. Other persons said to have been present included children identified as “Lucy” and “Sam” (Sam being described as Christopher Lillie’s daughter). There was nothing to confirm who they were, or whether they existed. Whoever “Sam” was, she obviously could not be Mr Lillie’s daughter. It would seem that Child 14 was aware of two children with that name but I shall not spell out who they were for obvious reasons. Neither, however, has provided any corroboration.
1232. Turning to the abuse alleged to have taken place in the Nursery, part of Child 14’s account involved a needle being put into Child 35 and Child 10. It would thus be elementary to check whether this matched any allegation being made by either of those children. If it did not, it would surely raise a question mark. It is to be noted that the mothers of Child 14 and Child 10 were friends, and that Child 14’s mother had, apparently, passed on to her the allegation relating to her son. The boy himself, however, said nothing about having a needle stuck into him, in the Nursery, although he did refer to “a nail with water in the plastic bit” – but only in response to a leading question from his mother. His various accounts of alleged abuse all took place at “Jo’s” flat. As far as one can tell, the only “Jo” in contention would be a friend of his mother, whose flat was never visited by Mr Lillie or Miss Reed (according to the evidence). He never mentioned needles in his video interviews. Child 35 also happened to be a friend of Child 14 outside the nursery and the mothers also knew each other.
1233. It also emerged in cross-examination that the Review Team had not reacted to, or explored, the possible inconsistency between the accounts given by Child 14 over alleged abuse in the Nursery in the first and second interviews. From page 12 of the transcript of the second interview, it seems that an account was given of a needle incident when neither Child 35 nor anyone else was present. Nobody explored whether this was supposed to be a second occasion from that described in the first video, or an inconsistent account of the same incident. As for Child 35 herself, there was no corroboration (as Ms Jones accepted in the course of cross-examination).
1234. Eventually Professor Barker had to admit that the claim on page 221 of the Report that Child 14 had not been subjected to leading questions was, in hindsight, not appropriately worded. He could hardly do otherwise. In my view it was completely unsustainable. Indeed, Professor Bruck observed of part of the material, “This is one of the most coercive and abusive interviews that I have ever reviewed”. She said that “almost every known suggestive technique was used, and we will never be able to know what, if anything, had actually happened to [Child 14]”. That is a matter, of course, in one sense of expert evidence. On the other hand, it is also a matter of common sense. Professor Barker, however, did attempt to qualify his admission by saying that in his view, in so far as any of the questions had been “leading”, this was only to the extent permitted by the Memorandum of Good Practice with regard to younger age groups. Professor Barker thinks that leading questions should be permitted with under-fives. That is a view to which he is entitled and others no doubt agree with him. It is nonetheless a controversial view. As Mr Wardell put it, “…clearly you need some time to prompt a younger child – and then we get to the difficult legal bits”.
1235. It is true that they can point to the memorandum for some support in this respect. What matters for present purposes, however, is that this is not what the Review Team told the public. They said that there were no leading questions – that is undeniably false, as they surely knew.
1236. One of the most important reservations expressed by Holland J was to the effect that the allegation of rape from Child 14 came only at the end of the third video interview and, what is more, after the child had requested to terminate the interview. Thirteen minutes after that termination, it was resumed and the crucial allegation was then made. When Miss Page asked Professor Barker about this, his reply was as follows:
“Answer: Yes, I mean, that is an interpretation which you are entitled to put, I do not agree with it. The extracts, for example – it kind of fits with the extracts which you have done in the blue document which we were given [Miss Page’s summary of child “disclosures”], which is there is a kind of slant on some of the things which appears to me to be wanting to prove your case – which obviously you are entitled to do, it is what you are supposed to be doing, obviously – rather than a neutral reflection of what happened… there are a range of explanations for a range of different things. You know, an explanation for example about why the child terminated the interview, could not – might be not that the child was thinking, ‘O my goodness, I have to tell a fib and do not want to do that’, but ‘O my goodness, the enormity of what I have to say is so difficult and painful that I do not want to do that’”.
1237. This is not satisfactory, since any fair-minded person (I emphasise that I am not speaking merely of lawyers or judges) would surely recognise that the cessation of the interview, followed by an allegation of rape upon its resumption, was extremely “fishy”. It may be that there is some explanation, but I cannot see how a proper assessment can be made of Child 14’s videos without at least addressing the point. In the words of Holland J, it is one of the matters that “cried out for inquiry”. Professor Barker said that he was satisfied that nothing untoward had happened outside the room while the tape was switched off, but it is a matter that needs to be fully explained and, surely, properly accounted for in the Report, so as to give its readers a solid basis for concluding that the Child’s evidence of rape was “powerful”.
1238. As the learned trial judge had pointed out, one of the most worrying features of the way the “disclosures” were extracted from Child 14 related to the 13 minute interruption in her third interview, following which for the first time an allegation of rape came out (as though rehearsed). I asked Professor Barker how the Review Team had approached this vital issue. The answer he gave was this:
“My memory, my Lord, is that when I was being in a sense inducted into the Review Team process, I was told – because this was a child who was an important child in the case – not by those social workers concerned but by someone else who was inducting me, and I think it might have been Jennifer Bernard the Director, that in that video interview the video interview had had the problem that the child had left the room, had returned, had made certain disclosures, but then it had been discovered that in fact, as I recall it, the tape was not switched on, I think.
So then what happened is that the video interviewers, having discovered that, I think it was Police Woman Helen Foster, then had to go back into the video room and in a sense re-run what the child had said. So when I saw that video with Mr Wardell I knew that that was the explanation, and I think that if you look at my revisiting the video of last night, it did seem to me that you could see that in a sense the police woman was going through something that that explanation made sense”.
1239. In so far as that is intelligible, it seems to me to disclose the remarkable fact that no critical inquiry or analysis was directed towards this at all. Thus, the incident which the learned Judge had described as requiring to be looked into “above all” was brushed aside. In due course, I shall have to decide whether this should be attributed to sloppiness or ignorance, or whether it was indeed mischievous. Miss Page summarised her case to Professor Barker at the end of her cross-examination as follows:
“Question: … You can have, I suggest, no positive belief, because you did not make the right enquiries into the truth or falsity of these children’s allegations?
Answer: We did. We looked at a whole range of material from a variety of sources and drew the conclusions to the best of our ability based upon a range of official documents, witness statements, documents from the nursery, etc. etc.
Question: You were indifferent to the truth, you had no basis, as you knew, for any positive belief in your conclusions about Chris and Dawn. I suggest that you resorted to conscious misrepresentation in your report to give your conclusions the appearance of authority, honesty and fairness.
Answer: No. We attempted to illustrate in our report, in a readable way, what we had done, why we had done it and what our conclusions were.
Question: I suggest to you that the Report is a sham, corrupt document, which purports to have the appearance of authority, honesty and fairness when it absolutely did not.
Answer: No, that is not true.”
1240. That would probably serve as a neat summary of the important issues of malice which I must shortly decide.
1241. I decided that I was unable to place reliance upon anything said by Professor Barker, for any significant purpose, unless it was independently corroborated. That in itself, of course, by no means leads to the inevitable conclusion that I should find him malicious
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© Richard Webster, 2002