Waterhouse: the anniversary of an injustice

AROUND THIS TIME three years ago there was talk that the Waterhouse report, containing the long-awaited findings of the North Wales Tribunal of Inquiry, might be published on 14 February. In the event it would seem that the Government recognised that Valentine’s Day was not the appropriate time for such a report and it in fact appeared on 15 February 2000. Saturday will therefore mark the third anniversary of the report’s publication. It is an anniversary whose significance needs to be pondered on.
 

The appearance of the report was the occasion for massive press coverage, with nearly all national newspapers giving the story most of their front page and many inside pages as well. The bleak one-word  headline of the Daily Mail’s front page on 16 February 2000 was BETRAYAL.  Over a photograph of four very young children, the newspaper printed the following ‘strap’: ‘These four brothers were horrifically abused in care. Two were to die in torment. Yesterday an inquiry concluded that,  in all, 650 children – appallingly let down by social workers – were victims of Britain’s worst-ever paedophile scandal … and that 40 of the monsters are still at large.’

This Daily Mail front page encapsulated the distortions with which the story was widely reported. Although the complainants were mostly adults in their thirties, making allegations about their time as adolescents, the Mail  implied that they were very young children; it also implied that the alleged abuse led to a number of tragic deaths although in fact there was no evidence for this and the Waterhouse report itself had been unable to substantiate such claims.

Inside the paper, Bryn Estyn, the Wrexham Community Home supposed to be the centre of a network of abuse, was presented as ‘the Colditz of care’.  Journalist Rebecca Fowler’s story began in the following terms: 

‘As the iron gates clanked shut behind them and they looked up at the forbidding mansion for the first time, the boys who were sent to Bryn Estyn children’s home in North Wales were all gripped by the same thought. This was the end of the world. 

‘And it was. For more than a decade it was at the centre of Britain’s biggest child abuse scandal where the corruption cast a shadow so evil it shattered the lives of a generation of children.’ 

Having recounted a catalogue of physical and sexual abuse alleged by one  particular witness the story ends with these words: ‘Imagine his story multiplied perhaps 200 times and you get an idea of the hideous scale of the scandal.’

In fact, the witness in question was Steven Messham, none of whose allegations have ever been substantiated or even brought before a criminal court. When one of his most serious sexual allegations was examined during a celebrated libel trial in 1994 it was shown under cross-examination to be a transparent fabrication and the jury declined to believe it.

Any sober assessment of this witness’s testimony suggests that he is given incurably to fantasy and fabrication. However, it is not simply the Daily Mail which should bear responsibility for gravely misleading its readers. The North Wales Tribunal itself was at least partly responsible for the story which appeared. For, by endorsing (with reservations) Messham’s overall credibility, the Tribunal was implicitly inviting just the kind of press attention – and credulity – which this witness’s wild claims duly received.

How then should we, three years on from its publication, assess the overall achievement of the Waterhouse report? One intriguing perspective was provided last year by the case of Michael Barnes, a senior residential social worker in North Wales who had many allegations made against him and was the subject of adverse comment in the report.

Barnes, who had already been suspended by his employers,  (
now Wrexham County Borough Council), was subsequently dismissed on the basis of the Tribunal’s findings and an NSPCC report which had accepted these. He was then listed by the Secretary of State as somebody who was not considered fit to work with children.

Yet the allegations which had been made against Michael Barnes were false. He was disturbed to find there was no possibility of appealing against the findings of the Tribunal itself. However, it was possible to appeal against his blacklisting by the Secretary of State and this is what he did. Not only did he succeed, but he was also successful when he appealed against his dismissal and has now been re-instated in his original post. In conducting his lengthy challenge to the series of injustices inflicted upon him, Michael Barnes has effectively demonstrated that the findings of the Tribunal about his case were wrong in practically every detail.

In an article which has massive significance for social workers generally, and which strikes at the very credibility of the North Wales Tribunal and its report, he tells his story here.

We should have no doubt that some sexual and physical abuse did take place in care homes in North Wales. That this was the case should be both a matter for shame and a reason for redoubling vigilance and strengthening safeguards.

But the portrait of homes such as Bryn Estyn contained in the Waterhouse report, and embroidered upon by the national media – including broadsheet newspapers and Private Eye  is both grotesque and false. If  we take the advice of journalist Rebecca Fowler and multiply two hundred times the horrific story recounted by Steven Messham, we are simply led deeper into the realm of fantasy and fabrication in which that story has its origins. But if we multiply the story of Michael Barnes many times, we might well approach a little closer to the truth.  

The fact, highlighted by his story, that there can be no appeal against the findings of a Tribunal of Inquiry, is, or ought to be, a matter of serious concern. Quite apart from anything else, as the second Bloody Sunday Tribunal is currently illustrating, the introduction of such a right of appeal might save many millions of pounds of public money.

But, more importantly still, it might help to close down a significant avenue for grave miscarriages of justice. One particular reason for saying this is that there is arguably a causal relationship between the legal over-protection of any tribunal of fact and the tendency of such a tribunal to substitute its own prejudices or speculations for the facts it is supposed to be establishing.

It should be noted that in the ordinary judicial process not even judges are exempt from having their conclusions examined by a higher tribunal. This was a point which Mr Justice Eady himself made during the course of the ruling on malice which he delivered at an early stage of the Shieldfield libel trial last year.

‘In due course,’ he said. ‘I shall have to decide, at the end of this case, after the evidence is heard and the arguments deployed, whether the truly appalling allegations against these claimants of wicked child abuse are true or false. When I come to make that decision, whenever it is and whichever way it may go, I shall set out my reasoning as fully and clearly as I can. I have no doubt that my reasoning will be scrutinised and subjected to criticism either in the Court of Appeal or by others who may be interested in the subject matter. That is as it should be. That is what judges are for. In my case it is simply part of the judicial function that is my job. The Review Team, however, undertook their task voluntarily. For all I know their motives may have been of the highest; in other words to serve the public interest and to protect children in the future. But of course we do not have a system where people can be condemned as guilty of any serious criminal offence let alone rape and mass child abuse without a trial and behind closed doors. Anyone who arrogates to themselves such a responsibility must expect, if it is necessary, to have their reasoning processes and their motives brought into the sunlight and subjected to close scrutiny. In my judgment here it is necessary.’

The members of the Review Team themselves, however, had clearly not expected that they would ever be brought to account in this manner. This was acknowledged by Mr Justice Eady: ‘I have little doubt that the Review Team thought they could publish more or less whatever they wanted about Christopher Lillie and Dawn Reed with no consequences adverse to themselves … Not only did the Team have advice about qualified privilege, but they almost certainly assumed (as would the Council members and officers) that this beleaguered pair would not have the resources to claim legal redress’ (para 1396).

The clear implication of these words is that one of the possible consequences of cocooning the members of inquiry teams by the granting of qualified privilege is that they may construe such privilege as a licence to distort or misrepresent the evidence before them in order to bolster conclusions which have been arrived at more by prejudice than by due process.

It would seem reasonably clear, however, that this danger attaches not only to local authority inquiries, but also to Tribunals of Inquiry, where the possibility of appealing against findings of fact was ruled out following the recommendation of Lord Salmon. (Lord Salmon took the view that a Tribunal of Inquiry was an instrument of government and that as such it would be ineffectual if its findings were not seen as having finality.)

It is highly unlikely that the hearings presided over, and the reports compiled by Lord Widgery for the first Bloody Sunday inquiry, and by Sir Ronald Waterhouse for the North Wales Tribunal, would ever have taken the form they did had the two chairmen believed that the conduct and conclusions of their Tribunals might eventually have been scrutinised by a higher court.

*

IN THE ABSENCE OF such scrutiny by a court , some independent examination by a writer is perhaps the best alternative. A year or so ago I planned to bring out a small book about the North Wales Tribunal. For various reasons this book will not now be appearing. But to mark this third anniversary of the publication of the Waterhouse report I have put online some substantial extracts from the long essay which was to form the basis of the book. For these extracts, click here.

It is a matter of some interest that, as this critique of the Waterhouse Tribunal appears, it is reported that Newcastle City Council is making strenuous, though not wholly successful attempts, to recall the copies of the Review Team’s defamatory report which were distributed on its publication in 1998. Now that Waterhouse’s findings on Michael Barnes have been shown to be untrue, will Her Majesty’s Government make similar efforts to recall and pulp the thousands of copies of the Waterhouse report that were distributed in its name?  

Perhaps not surprisingly no such plans have yet been announced.


Appeal court hearing for soccer boss’s colleagues

On Monday and Tuesday of next week – 17 and 18 February – two of the potentially most significant Appeal Court hearings in recent legal history will take place in the Royal Courts of Justice in the Strand. They concern former care workers Mike Lawson and Basil Williams-Rigby, who were both colleagues of the former Southampton soccer boss David Jones at St George’s Community Home in Formby, and who, like him, faced a series of allegations trawled by the Merseyside Police.

Unlike David Jones they were both convicted. The evidence which is due to be presented in the hearings next week should establish, to the satisfaction of any reasonably objective observer,  that the allegations trawled against Mike Lawson and Basil Williams Rigby were false, and that the police operation which was responsible for their conviction was one of the most dangerous ever conducted.

Whether this evidence will convince the Court of Appeal remains to be seen.      


February 13 2003   

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© Richard Webster, 2002

www.richardwebster.net

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