Waterhouse: a betrayal of trust?

RICHARD WEBSTER

Introduction

 

IN JULY 1991, AS A RESULT of allegations of child abuse made to the leader of Clwyd County Council, the Council�s Chief Executive formally requested the North Wales Police to undertake an investigation. One of the main purposes of this investigation would be to inquire into the possible existence of a paedophile ring operating in North Wales children homes. The investigation was eventually launched on 1 August 1991. Although it was originally focused on Bryn Estyn, a community home in Wrexham, it gradually enlarged its scope to involve all care homes in Clwyd.  

In October 1991, after an HTV television documentary had been shown concerning allegations made in relation to the Ty�r Felin Assessment Centre in Bangor, a separate investigation was launched into care homes in Gwynedd.

At around the same time, the leader of Clwyd County Council, Dennis Parry, contacted the Independent on Sunday. On 1 December the Independent on Sunday published a front page story which claimed that the former deputy head of Bryn Estyn, Peter Howarth, was a paedophile. It suggested that a paedophile ring centered on Bryn Estyn might have preyed on children in North Wales care homes. It went on to name a senior officer in the North Wales Police, Gordon Anglesea, who had recently retired, and implied that he was himself involved in the abuse of children at Bryn Estyn.  

A number of allegations relating both to Clwyd and Gwynedd were detailed and Councillor Parry was quoted as saying that �we are fighting a machine trying to cover things up�. He accused the North Wales police �of mounting a cover-up to conceal the failure of senior officers and social services executives to reveal the extent of abuse in the children�s homes�. 

On the day immediately following the publication of this article the North Wales Police announced that their Clwyd and Gwynedd investigations had been combined and that a HOLMES computer would now be used to co-ordinate the inquiry. The investigation rapidly gathered pace and became the largest inquiry into child abuse which had ever been carried out in Britain.

Although this investigation resulted in police officers collecting allegations of physical or sexual abuse against no fewer than 365 people, only some 25 people were ever arrested as a direct result of the 1991-2 investigation. Of these the majority were released without charge. By 1994 the entire operation had led to only one new conviction for sexual abuse, that of the former deputy head of Bryn Estyn, Peter Howarth. (Stephen Norris, a care worker who had already been convicted in relation to offences committed at another home, was re-convicted in relation to a number of offences at Bryn Estyn to which he pleaded guilty.)

Howarth protested his innocence throughout but was found guilty by a majority verdict in Chester Crown in October 1994. In 1995 John Allen, the owner of the privately run Bryn Alyn home in Wrexham, was also convicted in Chester Crown Court.

By this time the retired police superintendent named by the Independent on Sunday, had successfully fought a libel action against the newspaper. During this action it was shown that there had been no evidence to implicate him in any kind of sexual abuse at the time he was named. The only allegations against him had been collected subsequently by two journalists, one of whom � Dean Nelson � was the author of the original article. These allegations were discredited during cross-examination and substantial damages and costs were awarded.

The verdict in the libel trial was reinforced by other findings. Intensive police investigations discovered no evidence of any paedophile ring active in North Wales children�s homes. Speaking outside Chester Crown Court after the conviction of John Allen in 1995, the head of the investigation, Detective Superintendent Ackerley, said: �We though at first that there was a paedophile ring. Now we know that it was just two evil men.� 

In the view of some observers, these negative findings rendered more plausible the claims made by some of the residential workers from the homes under investigation: that the 1991-2 police investigation had had collected an unprecedented number of false allegations, fuelled by the prospect of large compensation payments. 

In spite of such sceptical assessments the belief that there had been a network of organised abuse in North Wales care homes persisted. This belief was reinforced by the consequences of Clwyd County Council�s decision to commission an investigation by a panel of experts. This panel, led by John Jillings, a former Director of Social Services for Derbyshire, was asked to investigate child care in Clwyd. Specifically it was required to �inquire into, consider and report to the County Council upon (1) what went wrong and (2) why did this happen and how this position could have continued undetected for so long�.

The panel took some two years to prepare their report. They concluded that abuse had been widespread and they either endorsed, or noted without comment, a number of the more sensational claims. When their report was completed, however, Clwyd County Council was advised by a leading barrister that its contents were potentially libellous, and might also jeopardise the council�s insurance cover. On 26 March 1996 a collective decision was taken not to publish the report, in spite of the fact that a number of councillors had urged that its publication should go ahead.

At this point a copy of the report was passed to the Independent newspaper, apparently by one of the dissident councillors. The newspaper immediately represented the decision not to publish the Jillings report as an attempt to suppress the truth. In a powerful campaign, carried out over a period of some three months, the Independent now published a series of news stories, features and leaders whose apparent aim was to create a sense of national outrage over what had happened.

Largely because of the campaign conducted by the Independent, a sense of crisis gradually developed, and, on 17 June 1996, an evidently reluctant government was forced to announce the public inquiry which had been demanded.  

The main purpose of the inquiry was to investigate the huge disproportion between the number of convictions obtained in North Wales as a result of the 1991-2 investigation, and the number of allegations of abuse which had actually been made.  

The idea that sexual and physical abuse had taken place in North Wales children�s homes on a quite massive scale and that a large number of abusers had remained undetected had been effectively revived by the Jillings report and the publicity surrounding the decision not to publish it. So too had the notion that the police investigation had been compromised either by the involvement of officers in a paedophile ring, or by the connections of senior officers with free-masonry, or by both. By referring to the possible involvement of �prominent public figures�, the Independent also appeared to entertain as a real possibility the extreme claim that the North Wales �ring� included two government ministers and a senior figure in the Conservative Party hierarchy.

None of these sensational claims was specifically referred to in the terms of reference given to the inquiry which was now set up. There could never be any doubt, however, that it was such claims, recently amplified by the Independent�s campaign, which were directly responsible for the government�s decision to institute an inquiry. Indeed, in announcing this decision, the Secretary of State specifically noted that speculation had continued that the real scale of the abuse that had taken place was much greater than the successful prosecutions themselves suggested.

He went on to make it clear that events in North Wales would now be investigated by the most powerful of all government instruments � a statutory tribunal appointed under the Tribunals of Enquiry (Evidence) Act of 1921. In July the three members of the Tribunal were formally appointed by Parliament. The Chairman of the Tribunal would be Sir Ronald Waterhouse, a retired High Court judge who himself lived in North Wales, and who had served from 1980 to 1984 as presiding judge on the Wales and Chester Circuit. The two other members of the Tribunal were to be Margaret Clough, a former member of the social services inspectorate in Manchester, and Morris le Fleming, a solicitor and former chief executive of Hertfordshire County Council.  

A Welsh QC, Gerard Elias, who had served from 1993 to 1995 as leader of the Wales and Chester Circuit, was appointed by the Attorney General to act as leading Counsel to the Tribunal. He was assisted by Gregory Treverton-Jones and Ernest Ryder, who would himself be appointed QC at Easter 1997.

The Tribunal�s terms of references were:

to inquire into the abuse of children in care in the former county council areas of Gwynedd and Clwyd since 1974;  

to examine whether the agencies and authorities responsible for such care, through the placement of the children or through the regulation or management of the facilities, could have prevented the abuse or detected its occurrence at an earlier stage; 

to examine the response of the relevant authorities and agencies to allegations and complaints of abuse made either by children in care, children formerly in care or any other persons, excluding scrutiny of decisions whether to prosecute named individuals;  

in the light of this examination, to consider whether the relevant caring and investigative agencies discharged their functions appropriately and, in the case of the caring agencies, whether they are doing so now; and to report its findings and to make recommendations to him [ie the Secretary of State]. 

The Tribunal�s legal team, including the Treasury solicitors who had been appointed to assist counsel, began preparatory work for the inquiry as soon as the members of the Tribunal were appointed in August 1996. 

The Tribunal hearing took place in the council chambers of Flintshire County Council at Ewloe, North Wales. Four preliminary meetings were held during the latter part of 1996 in order to make arrangements concerning legal representation, recommendations as to costs and matters of general procedure. On 21 January 1997 the Tribunal held its first full session and sat for three days in order to hear opening statements made by counsel to the Tribunal and others. On 3 February it started to hear oral evidence given, initially, by those who made allegations of abuse.

When the Tribunal was originally set up it was predicted that its hearings would last for a year and that its report would be issued by Easter 1998. In the event the hearings were not completed until 7 April 1998. The Tribunal�s report, although frequently said to be imminent, did not appear until 15 February 2000. No other Tribunal had taken so long to complete its deliberations.

The report did question some aspects of the received view of the North Wales story. But its most striking feature was its readiness to accept the vast majority of the allegations that had been made in North Wales, and its broad endorsement of the horrific picture which had already been painted in the media. The crucial question of whether the police might, by their very methods of investigation, have inadvertently encouraged former residents of care homes to make false allegations, was never asked by the Tribunal at any point in its year-long hearings. Although a great deal of evidence emerged during the proceedings which cast doubt on the reliability of many of the allegations, this evidence was almost entirely suppressed in the final report.

The publication of the Tribunal�s report, far from moderating the climate of opinion that had led to the setting up of the Tribunal, had the effect of both legitimating and intensifying the moral panic which had already been created. On the morning of 16 February every national newspaper featured the story on its front page. In an extended headline the Daily Mail referred to two brothers who had been �horrifically abused� in care and who would later �die in torment�. It went on to report that �Yesterday an inquiry concluded that, in all, 650 children � appallingly let down by social workers � were the victims of Britain�s worst-ever paedophile scandal . . . and that 40 of the monsters are still at large.� Construing the report�s comments about systematic abuse in a manner which was predictable, the Express reported on its front page that �the long awaited report confirmed evidence of widespread physical and sexual abuse in care homes, and the presence of organised paedophile rings�.

Partly because of the apparent comprehensiveness of the report, and partly because journalists, academics and others had effectively ceded their own responsibility to investigate to the members of the Tribunal, the conclusions reached in the Waterhouse report have continued, in the three years which have elapsed since, to be treated as authoritative. This has been the case not only among journalists and commentators, but also in the social work profession, in government departments, in the civil courts, and in Parliament itself.

Yet there are legitimate questions which can and should be asked both about the Tribunal�s proceedings and its report. The purpose of this essay is to pose some of these questions and, by exploring them, to attempt to establish whether the Tribunal did indeed conduct an adequate and fair investigation and whether it discharged responsibly the duties imposed upon it by Parliament.


The approach of the Tribunal

Any attempt to determine whether the Waterhouse Tribunal successfully completed the task assigned to it must necessarily begin by considering the nature and function of a Tribunal of Inquiry.

In July 1996, when the decision to set up a judicial inquiry into alleged abuse in North Wales care homes was announced, former members of staff from the homes in question were among those who welcomed the news. They also broadly welcomed the inquiry�s terms of reference which, although they appeared to be tilted towards one particular conclusion, at least seemed broad enough to encompass their own concerns.

Many of those who had once worked at Bryn Estyn, or at the other homes under investigation now looked forward to the time when the true story about North Wales would emerge and the campaign which seemed to have been waged against them in the media for some five years would finally be halted. However, by the time the report of the North Wales Tribunal was published almost four years later, few people who had any direct knowledge of Bryn Estyn, or of the other homes, still held this view. This was largely because they had observed at close quarters the Tribunal�s own procedures. 

As has already been noted elsewhere, the problems with the Tribunal�s approach began to emerge almost as soon as Gerard Elias QC rose to deliver his opening statement. Far from offering a dispassionate and balanced exploration of the questions the Tribunal had been set up to answer his statement had almost all the characteristics of a prosecution opening. Not only this but it bore many of the marks of having been prepared in haste on the basis of second- or third-hand research. It contained numerous errors of fact, many misconceptions and a number of serious distortions. 

One of the problems with previous inquiries into North Wales, and above all that conducted by John Jillings, was the sheer weight of preconceptions which were brought to the task. Working to compile a report at the behest of the very authority which had triggered the massive 1991-2 police investigation, and constrained by terms of reference that implicitly assumed widespread abuse, the Jillings team could scarcely be expected to submit the 1991-2 investigation to rigorous scrutiny. Their very limited powers meant in any case that they simply did not have the authority or resources to do this. The nature of their inquiry, focused as it was on �what went wrong� inclined them to see evidence only of bad practice. Evidence that allegations had been fabricated, to a degree which threatened the very process of justice itself, was neither sought nor presented to them. 

Although those responsible for the research on which the opening statement was based may well have tried to remain independent of earlier reports, they do not appear to have succeeded. Like the Jillings report, the opening statement of Counsel to the Tribunal suffered acutely from �confirmatory bias�, with its authors paying attention only to those kinds of evidence which appear to confirm the intensely negative view of North Wales care homes which had already been widely disseminated. As a result the distinctive character of a number of the care homes, including Bryn Estyn, was submerged beneath a black tide of rumour and uncorroborated allegations which were treated all too frequently as facts.

Particularly questionable was the manner in which allegations of sexual abuse which had either been dropped by the prosecuting authorities, or which had actually been dismissed by a jury, were adduced as if there was some direct relationship between the weight and volume of allegations and the amount of abuse actually being perpetrated. The hidden assumption appeared to be that if allegations were piled up high enough they would somehow validate themselves and the problem of corroboration could be dissolved. This was the strategy which was employed first to blacken the character of a number of institutions in Clwyd and Gwynedd, and then to blacken the character of all (or almost all) who worked in them. 

The approach adopted by the Treasury team of lawyers which staffed the Tribunal was commented on during the proceedings. In her closing address, Anna Pauffley QC, who represented more than 100 care workers and social workers, said this: 

Sir, then I come on to my fourth submission: has the approach of the Treasury team been impartial and balanced? We say that it should have been if it was genuine in its desire to conduct an inquisitorial, as against an adversarial process. It has been evident from the first day of the proceedings, we say, that the Treasury team had a case that they were to pursue. The opening made by Mr. Elias set the scene in the section of the opening entitled, �Highlights and Summary�, he said this: �Without intending to pre-judge the evidence which is to be heard by the Tribunal, or to influence its view of it in any way, the content, volume and consistency of statements made by complainants appear cogent and very impressive. If as a whole, or in substantial part, they are accepted by the Tribunal then it may be that they�, and then this next part appeared in bold type in the opening, �will compel the conclusion that children in care in Clwyd and Gwynedd, during the period under review were abused physically and/or sexually on a scale which borders on wholesale exploitation.� It was a memorable phrase, which unsurprisingly was widely reported not just locally but across England and Wales. It was surprising that such a sensational phrase was used in the light of what Lord Justice Salmon had had to say about counsel�s openings in his report, and I then quote from paragraph 109 to 111. Paragraphs which we say contain sound advice: �In its discretion the Tribunal will direct whether or not counsel instructed on its behalf should make an opening statement indicating the progress which had been made in the investigation before the evidence is heard. The statement should be an impartial summary of the investigation and avoid any comments which are likely to make sensational headlines. It should be emphasised that until the evidence is heard it would be wrong to draw any conclusions.� How much better it would have been, we say, if that advice had been followed. Instead, at the beginning of every significant phase, there has been an opening which would seem to have been drafted with sensational headline opportunities uppermost. Accordingly, we submit that from the first day of the Tribunal�s sitting the die has been cast, witnesses were taken through their evidence-in-chief and complaints were made about abuse they maintained they had suffered. It mattered not that there may have been material that showed probable inconsistency, the complaint was sympathetically led. It mattered not if that witness also had good things to say about care staff, even if he or she was a Salmon letter recipient. That evidence was not led in-chief very largely. There has been an almost morbid pre-occupation with anything that might have been wrong with the system and criticisms of individuals. Seemingly the Treasury team was not interested in eliciting the positives, the good examples of child care, they were intent on finding out about the bad practice, the mistakes that were made. There has been no balance [italics added].  

In these words Anna Pauffley expressed forcefully many of the conclusions that had already been reached by some observers before the opening statement had even been completed. For the impression given in the opening statement was that the lawyers in the Tribunal team had already made up their mind. It seemed almost inevitable that, where they led, the Tribunal itself would follow.


Bryn Estyn 

Bryn Estyn, and the allegations made against the care workers and teachers who once worked there, lie at the heart both of the North Wales Tribunal and of the report of its findings, Lost in Care, which was published on February 15 2000. Ever since the launch of the major police investigation in August 1991, and the appearance of the front-page story about North Wales in the Independent on Sunday in December 1991, there has been a tendency on the part of journalists and others to dwell exclusively on negative, and often unsubstantiated claims about Bryn Estyn. In effect an entire institution has been demonised. Positive views have not generally been sought and have, for this reason, rarely if ever been published.

The setting up of the North Wales Tribunal created the very reasonable expectation that this one-sided approach would finally be laid to rest and that the Tribunal would present, for the first time, a more balanced view. One of the many disturbing features of the report is that it has failed to do this.

During the Tribunal hearings a number of witnesses explicitly praised Bryn Estyn or singled out particular members of staff for favourable mention. The level of favourable comment was in some respects remarkable for the simple reason that most of the witnesses who made such remarks were actually appearing as complainants. Had the Tribunal actively sought witnesses who had a positive, or mainly positive view of Bryn Estyn, there can be little doubt that many such witnesses would have come forward and that their number would almost certainly have exceeded the number of complainants.

In fact no encouragement was given to any of the interested parties to provide such positive testimony, and it was clear that the Tribunal did not regard such evidence as relevant to its primary task. However the Tribunal was provided by the solicitor representing the Bryn Estyn Staff Support Team (BESST) with a number of statements which give a completely different impression of Bryn Estyn from that which it would eventually endorse.

One such statement was made by a former resident, Roy Tolson*, in response to an inquiry sent by BESST�s solicitor, Chris Saltrese. Tolson�s letter is reproduced here uncorrected, in the form it was sent:

Dear Mr Saltrese, 

Thank you for your letter dated the 6th of March 1997, about Bryn Estyn school in Wrexham. I was there from 1975 to 1977. I found it to be a good school, good caring staff, I have fond memories of Bryn Estyn School.

I remember in 1976 my grandfather died and I wasn�t allowed to go home for Christmas 1976 In them days I was football mad, so on Boxing Day the school payed for me and two other kids who also have to stay behind for Christmas, to go and see Liverpool play at Anfield against Stoke and the staff members who took us David Massey and Mrs Nibbit, Mrs Nibbit took us back her house for a meal, afterwards at her home in Wrexham

Mr Saltrese the staff at Bryn Estyn school were good honest people and good to me. What happened after 1977, when I left I can�t comment on because I wasn�t there. But one staff member . . . was a bully in which I told the police, I seen him hit a boy called Jim Nolan. He used to bully people, he knew he could get away with it The project in which he took was camping which � never really interested me.

Well Mr Saltrese as to the child abuse case in Bryn Estyn School, when the police from North Wales took a statement at my address, they told me, if I was abused, I would get money in compensation, I was just dumbfounded when he came out with it, I feel Mr Saltrese that most people thought they would get compensation just saying it, that�s why most people have come forward, trying to make a quick buck out of the system. I feel Mr Saltrese the police putting pressure on people to come forward saying you get compensation

Some people [think] money�s the be end of everything. I am willing to bet my life on it that when I went there in 1975 to 1977 no person was abused by staff at Bryn Estyn school.

Mr Saltrese Bryn Estyn school was a good school when I was there and good staff members David Massey, Gwen Hurst, John Hilton, Nevin Dodd, Len Strich, David Cheeseborough, Graham Roberts, Mrs Nibbitt, Mr Green, Mr Hughie Roberts, Mrs Jones, Mr Jones, Mr Leighton

All good honest people, who would go out of their way to help you not hurt you. These people should of been praised for the work they done

If I can be anymore help to you Mr Saltrese, do not hesitate to get back in contact with me.

Yours faithfully,

Roy Tolson

Another former resident of Bryn Estyn, who is now a social worker himself, wrote an assessment of the home in which he recognised that it had a number of shortcomings. But his overall view of the school was favourable. �Bryn Estyn�, he wrote, provided both �a real sense of warmth, security and care� and �an undeniable sense of being wanted� by members of staff who �really did care�.

Both these statements were offered to the Tribunal as evidence. Neither is quoted in the Tribunal�s final report. Roy Tolson, in spite of the warmth of his tributes to Bryn Estyn, and the gravity of what he says about the police investigation, was not even called to give evidence.

Many more former residents of Bryn Estyn would have been willing, if asked, to provide similar positive evidence about their time in care. The Tribunal, however, appears to have found such evidence an embarrassment. Instead it has offered its conclusion that �for many children who were consigned to Bryn Estyn, in the ten or so years of its existence as a community home, it was a form of purgatory or worse from which they emerged more damaged than when they had entered and for whom the future had become even more bleak� (7.09).

Not only does the Tribunal convey a strongly negative view of Bryn Estyn, but it also endorses the credibility of individual witnesses whose own claims about Bryn Estyn go far beyond anything which the Tribunal itself concludes. By doing this the Tribunal has effectively given encouragement to some witnesses to paint a picture of Bryn Estyn which is based on fantasy, but which some journalists have reported as fact.

One such portrait, in which Bryn Estyn is presented as �the Colditz of care�, appeared in the Daily Mail on the morning following the publication of the report (16 February 2000). Journalist Rebecca Fowler�s story begins 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 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, none of the witness�s allegations have ever been substantiated or even brought before a court. Any sober assessment of his testimony suggests that he is given incurably to fantasy and fabrication. However, by endorsing (with reservations) the overall credibility of the witness in question, the Tribunal bears at least some responsibility for the attention given to the claims he has subsequently made.

Equally serious is the manner in which the members of the Tribunal have allowed some of the most significant evidence about Bryn Estyn to disappear from their report. One small but significant example of this is provided by the manner in which they deal with the evidence of Phillip Murray, who was a senior houseparent at Bryn Estyn from 1978 to 1984. According to the Tribunal report, �Murray was critical of aspects of the Bryn Estyn regime but said that he never felt that he was facing a nightmare there, whereas he had hated his earlier posting because of the very strict regime.� The report goes on to detail some of the criticisms Murray made of Bryn Estyn. It notes that �Murray described the atmosphere at Bryn Estyn as relaxed and informal and he denied that there was any �culture of fear� �.

This brief summary of Murray�s evidence, however, is but a pale reflection of what Murray himself told the Tribunal. His own words were as follows:

I always found the actual environment in Bryn Estyn was very relaxed and very informal. I have heard reports about it being a regime of terror. I mean, that is absolute bunkum, to be quite frank. I went in to work at Bryn Estyn every day and never once did I feel that I would go in fearing that I was going to hear boys screaming or anything of that ilk. My criticism would be that it was probably too relaxed, and that might sound ironic, based on some of the comments, but I think boundaries were not structured towards the programme and, therefore, individual staff had to, I guess, very much live by survival or cope with their own ways of dealing with those situations. (NWTT, pp. 7667-8)

It is certainly true that the report�s comments about Bryn Estyn are not entirely negative. By acknowledging the regard in which some members of staff were held by the boys, and by suggesting that there were indeed a number of �good� teachers and care workers at the home, the Tribunal report gives the appearance of even-handedness.

At the same time as they bestow occasional praise on named individuals, however, the members of the Tribunal sometimes do not hesitate to report, often in the same paragraph, completely unsubstantiated allegations which have been made against the same individuals. The overall effect of this approach is to smear with unpleasant allegations many (if not the majority) of the very people who have been singled out for praise.

The fact that some allegations are recorded only to be half-retracted does not remove the injuries which the members of the Tribunal have inflicted on the reputations of those it names in this way. Were such allegations to be reported without the protection of privilege they would be deemed libellous. In choosing to include such unsubstantiated allegations in their report, and in naming the members of staff against whom they are made, the three members of the Tribunal are abusing the privilege which Parliament has conferred on their report.

* This name has been changed.

. . . . . . . . . . . . . . . . . .

The random 600

The first and most important of the Tribunal�s terms of reference imposed upon it a duty �to inquire into the abuse of children in care in the former county council areas of Gwynedd and Clwyd since 1974�. During his opening statement to the first preliminary meeting of the Tribunal, on 10 September 1996, the Chairman, Sir Ronald Waterhouse, made it clear how this task would be approached. He observed that one of the reasons why the Tribunal had been set up was that speculation had continued �that both sexual and non-sexual abuse has occurred on a much wider scale than was revealed in the criminal trials.� In view of this, he said: 

'The Tribunal�s first duty, therefore, in accordance with paragraph (i) of our terms of reference will be to try to assess the scale of that abuse over the period of existence of the two county councils (pp. 2-3).' 

The Tribunal now began to devise ways in which they might form some estimate of the extent of the abuse which had taken place. During his opening statement Gerard Elias QC gave a striking account of a form of investigation the Tribunal was undertaking which was, as he put it, �entirely of our own making�. The Tribunal team had, he said, identified a random sample of 600 adults who had been in care in the two counties of Clwyd and Gwynedd during the period under scrutiny. Investigators had already begun to trace and approach these individuals �to enquire as to the way they were treated whilst in care�. Elias went on to explain the rationale of this approach: 

This has been a valuable exercise because most of the individuals approached have not hitherto been interviewed by the police or made any independent claim for compensation. More than 15% of the total have been traced and approached to date and of the small number who do now raise complaint, it may be thought that they add powerfully to the contentions of those who say that abuse did take place. They have not been motivated apparently by money, publicity or any external encouragement to complain as may be suggested (by others) is the case in relation to some of the original complainants (NWTT, p. 16).

The claims made here are, at best, questionable. The view that individuals who formed part of the �random 600� had not been motivated to complain by money, publicity or external encouragement is purely speculative. It is quite clear, however, that the assumption behind the setting-up of the random 600 inquiry was that if abuse had indeed taken place �on a scale which borders on wholesale exploitation� this could now be confirmed by an objective sample. Indeed Elias specifically said that the inquiry into the random 600 was one of three parallel investigations which would enable the Treasury team �to put statistical information before the Tribunal in the form of Schedules to assist it in the task of identifying the nature of the abuse which existed in North Wales and its scale.�

In view of this claim and of the prominence accorded to the �random 600� in the opening statement, it would be reasonable to assume that the results of this inquiry would feature with equal prominence in the Tribunal�s final report. However, this is not the case. Indeed the main body of the Tribunal�s report does not contain a single reference to this particular investigation.

It is only in Appendix 4, on page 870 of the report, in a section headed �Notes by the Chairman of the Tribunal on its procedures� that the existence of the random 600 is acknowledged. The relevant paragraph reads as follows: 

Inspection of the statements to the police disclosed that about 650 former children in care had made complaints of abuse of varying gravity. The Tribunal itself advertised its proceedings widely with a request that complainants should make themselves known and about 100 persons responded to this request. In addition, the Tribunal�s legal team selected at random as potential witnesses 600 former residents of children�s homes in North Wales (about ten per cent) who were not known to have made any complaint. The members of the WIT [Witness Interviewing Team] were eventually able to interview 400 widely dispersed witnesses and travelled over 80,000 miles [italics added].

Although the existence of the random 600 is acknowledged in this paragraph no clue is given as to the outcome of the Tribunal�s investigation. Most readers, however, are likely to infer from the paragraph quoted that the Tribunal did succeed in interviewing 400 of the 600 potential witnesses.

In fact this was not the case. On day 190 of the Tribunal proceedings, junior counsel to the Tribunal, Mr Treverton-Jones, belatedly admitted to the Chairman of the Tribunal that the attempt to trace and interview 600 randomly selected potential witnesses had been abandoned after only 111 people had been contacted (NWTT, p.27,859).

The reason for this was that very few had made allegations of abuse. Or, in the words of Mr Treverton Jones: 

. . . a clear pattern had emerged that really our inquiries were not significantly adding to that which the police had revealed during their major investigation. This was, as it were, a cold call of those who had been in care or a statistical representation of those who had been in care, to see whether they had anything to say, and, sir, as time went by it was felt it was not adding substantially to the sum of knowledge available to the Tribunal.

The responses of ten of these witnesses had apparently disappeared without trace. Of the remaining 101, �52 either refused to make statements, or could not make statements because they were too young, ill, or had died.� (It might be noted in passing that by including in the figure of those people who had been �contacted� a number of people who were actually dead, Mr Treverton Jones was using both words and statistics in an unusual way.)

An unspecified number of those who refused to make statements did so �on the basis that they had nothing to say and no complaint to make.� 37 did provide statements in which they said that they had no complaints about their time in care. Of the twelve who did make statements of complaint it would appear that most were not complaining about any form of abuse. Only five witnesses gave evidence to the Tribunal. Of these five, one man complained that he had been treated violently by a care worker he was unable to identify. Another made complaints of ill treatment by a care worker with whom, according to contemporary records, he enjoyed a good relationship. A young woman made complaints against a care worker even though she had explicitly stated in an earlier police statement that she had never been abused and that she had no complaints about her time in care. Another young woman made complaints about being abused at Ty�r Felin even though records showed that she had not been there at the time in question. Finally a young man complained that he had been subjected to physical violence on two occasions at Bryn Estyn. He also alleged that he had witnessed a sexual incident involving Howarth and a boy he believed had since died. In fact the boy was not dead and had made a statement to the police in 1991 in which he did not complain of any such incident.

Of the five adults from the random 600 who gave evidence to the Tribunal, four made allegations which were either lacking in any convincing detail, or which appeared, on the basis of other evidence that emerged during cross-examination, to have been fabricated. The fifth gave a portrait of Bryn Estyn which corresponded closely to that which has been painted in the media. His own allegations, however, were relatively minor, and during cross-examination serious doubt was cast upon their veracity.

The �random 600� inquiry, in other words, led to a large number of witnesses making statements that nothing had happened to them. But it produced not a single credible witness alleging serious physical or sexual abuse. 

If the Tribunal had indeed been conducting an open-minded inquiry it seems clear that they would have persevered with the exercise. For the very fact that the initial findings suggested that there had been relatively little abuse meant that these findings were, potentially, an important corrective to the received view. 

However, apparently because it was not providing the evidence of abuse that was being sought, the entire project was halted. Although Counsel to the Tribunal had claimed that the purpose of the exercise was to help establish the scale of abuse, it is clear that its real purpose had been to confirm that the scale of abuse corresponded to the preconceptions of the Tribunal lawyers, as expressed in the opening statement. When it began to become clear that the exercise was going to yield the �wrong� answer, it was hastily abandoned.

Not only was it abandoned, but its results, which suggested that the entire picture painted in the treasury team�s opening statement might be mistaken, are simply not given anywhere in the Tribunal�s report.

Although Appendix 3 of the final report does acknowledge the existence of the random 600 it does so in terms which are seriously misleading. Not only does it give the impression that 400 of the 600 were traced and interviewed; it also suggests that the figure of 600 represented 10% of the total number of children who had been in care during the relevant period. Yet according to Mr Treverton-Jones, speaking on day 190 of the Tribunal, there were not 6,000 children in care in the counties during the relevant period, but 12,000. The figure of 6,000 appears to be a reference to the number of social services files which had been collated at an early stage of the Tribunal�s investigation. The figure of 12,000 is extremely important since, by using an incorrect figure, the Tribunal had, at a stroke, doubled the scale of the allegations which were made in the two counties.

The manner in which the Tribunal apparently attempted to obscure in its report the results of  its own investigation has very grave implications indeed. For by referring to this investigation only in the terms they did the members of the Tribunal effectively misled not only  report�s readers but Parliament itself.


Did the Tribunal conduct an inquiry?

Once the attempt to interview a representative sample of potential witnesses had been abandoned, the Tribunal had no alternative but to derive its assessment of the scale of abuse solely from the allegations which had already been made, or which were made in response to its own appeals for complainants to come forward. In his opening statement, however, the Chairman implied that the Tribunal was not proposing to reach verdicts about the truthfulness of every individual complainant: 

I must stress . . . that we shall not be conducting a series of criminal trials or prosecutions. We are not a jury. Our duty is to inquire, as our terms of reference make clear, and our procedure will be essentially inquisitorial rather than adversarial, subject to the important clarification that a full opportunity will be given to any person against whom an allegation or criticism is made, whether in the form of positive misconduct or breach of duty by act or omission, to answer the allegation or criticism (p.3).

The assurance given here by the Chairman appears to render the procedure of the Tribunal fairer and less draconian than might otherwise be the case. The first question which follows from it, however, is whether the Tribunal succeeded in conducting the kind of open-minded inquiry on which the inquisitorial procedure depends.

It would seem to be self-evident that the purpose of a public inquiry is to establish the truth about an event or series of events by inquiring into the circumstances which led up to those events, exploring the different explanations which might be proffered, and determining which, if any, is true. Only when this task has been completed is a Tribunal in a position to make recommendations about future practice.

The reasons which led to the setting up of the North Wales Tribunal are not in dispute. During the police investigation of 1991-3 a very large number of allegations of serious physical or sexual abuse were collected from young men and young women who had once been in care in Clwyd and Gwynedd. Yet only a small number of prosecutions had followed. Although the North Wales Police referred to the Crown Prosecution Service allegations of abuse against 365 different people, and although 160 �suspects� were interviewed under caution, only eight people were prosecuted. Of these, six were convicted. Only three of these received custodial sentences and, since one conviction � that of Stephen Norris � was a �reconviction�, there were in fact only two new convictions that resulted in prison sentences. 

One possible explanation for this is that, for reasons which remained to be determined, the police investigation had collected an unprecedented number of weak or false allegations, and that the decision not to prosecute more care workers had been conditioned by the nature of the evidence against them. Another possible explanation, which was canvassed by some local councillors and members of parliament from the very beginning, was that there had been an attempt by the North Wales Police and other agencies to cover-up the scale of the abuse.

Any full inquiry into what had happened in North Wales would, of necessity, explore both possibilities. One of the most striking features the Tribunal, however, is that the first explanation was never proposed, either by the Chairman, or by counsel to the Tribunal, even as a possibility. The Tribunal consequently made no explicit or deliberate attempt to investigate it.

The failure of the Tribunal to conduct any investigation into one of the central issues before it could not reasonably be made good by counsel who were representing individual care workers. For their limited role was to defend their clients against particular allegations or criticisms that had been made against them; they had no brief to inquire into the general history of how such a large number of allegations came to be made in the first place.

Just as importantly, counsel acting for care workers and others who had been accused played no significant role in determining the structure of the Tribunal or the order in which witnesses appeared. An inquisitorial approach to the evidence might reasonably have been expected to begin by enquiring into the broad historical issues which had led up to the major police investigation. Counsel to the Tribunal could then examine the arguments on both sides before hearing the allegations of abuse.

This was not, however, the approach that was adopted. Instead the entire Tribunal was structured rather in the same manner as a criminal trial. After an opening statement which resembled a prosecution opening, Counsel to the Tribunal continued to act in a prosecutorial manner by calling a series of witnesses, almost all of whom made allegations of physical or sexual abuse against care workers in Bryn Estyn.

Only when the �prosecution� case against Bryn Estyn had been set out in this manner were care workers called. In most cases they appeared primarily in order to answer allegations which had been made against them. After the �Bryn Estyn phase� of the inquiry had been completed, a similar sequence of witnesses was called in order to deal with Bryn Alyn and other homes.

In all these respects the Tribunal resembled a criminal trial � or a series of trials. The Chairman�s assurance that the nature of the Tribunal was inquisitorial, and that its duty was therefore to inquire, was simply not reflected in the Tribunal�s own proceedings.
 

Did the Tribunal conduct a trial? 

Although the Tribunal proceedings frequently resembled those of a trial, there were a number of respects in which this resemblance was not complete.

In the first place, because of the particular circumstances in which the Tribunal was set up, it was not possible for it to make any attempt to assess the credibility or reliability of complainants in advance of their giving evidence. In this respect it should be noted that one of the functions of the Crown Prosecution Service in preparing for criminal trials is to examine the evidence and to reject cases which are clearly based on testimony which is unreliable or false. In its code for Crown Prosecutors, the Crown Prosecution Service directs that no prosecution should be started �unless the Crown Prosecutor is satisfied that there is admissible, substantial and reliable evidence that a criminal offence known to law has been committed by an identifiable individual� [italics added].

In practice the Crown Prosecution Service relies heavily on reports submitted by the police in order to carry out this function. But there are a number of reasons why the process of sifting evidence is crucial to the administration of justice. In the first place it provides some degree of safeguard against criminal courts being used by members of the public in order to air grudges or pursue vendettas. For, by discarding testimony which has obviously been fabricated, or which is at odds with the known facts, the Crown Prosecution Service plays a crucial role in protecting individuals not only against malicious allegations but also against miscarriages of justice.

During the Tribunal, however, the normal criteria for selecting evidence were almost inverted. Precisely because rumours and innuendo, spread both by local politicians and the national press, had undermined confidence in the entire legal process, there was a compulsion to avoid any hint that witnesses were being ignored or their testimony discarded. The evidence of witnesses who had been deemed unreliable by the Crown Prosecution Service had, of necessity, both to be admitted and to be taken seriously.

One example of this is provided by the witness who is identified as �B� in the Tribunal Report. As the Report records, this witness has often been seen as unreliable and �there are many matters on which he is particularly vulnerable in cross-examination� (9.32). In some instances, �B�s recollection . . . was shown by contemporary documents to be incorrect� (9.33). The report goes on to note that: �In the light of these and similar difficulties it was decided in March 1993 by the Crown Prosecution Service, in consultation with counsel, that reliance ought not to be placed on the evidence of witness B for the purpose of prosecuting any alleged abuser� (9.34).

In the Tribunal, however, witness B became a central figure with his evidence being heard (with interruptions) over a period of five days. He was accorded wide coverage on television and in national newspapers where he generally chose to remove the veil of anonymity cast over him by the Tribunal and identified himself by his real name. His testimony, though not accepted in its entirety, clearly influenced the conclusions presented in the Waterhouse Report. The members of the Tribunal specifically accepted B's allegations that he had been sexually abused by Howarth and Norris. They did so in the following terms: �It must be said also that his claim to the Criminal Injuries Compensation Board in respect of the abuse he suffered at the hands of Howarth, Norris and one other person . . . has been settled for a proper sum . . .� (9.34). This conclusion was reached in spite of the fact that witness B had been excluded from the prosecutions of Howarth and Norris on the grounds that his evidence was unreliable and in spite of the fact that his evidence had been rejected by a jury in a 1994 libel trial involving a former police officer.

The decision to call B as a witness before the Tribunal may well have been unavoidable. The significance of such decisions, however, should be recognised. For the mere fact that witnesses are asked to testify to a formal inquiry itself confers a degree of power and authority on the evidence which they give. In practice their testimony is lent credibility by the very proceedings that have been set up to examine it.

By turning upside down the safeguards which normally surround criminal trials, and admitting witnesses who would normally be excluded, the Tribunal tended almost inevitably to increase the prejudicial climate in which allegations of abuse were made.

Far from conducting a trial, the Tribunal conducted a series of criminal hearings without the safeguards of a trial.
 

Multiple allegations

One particularly significant example of the flawed approach of the Tribunal is to be found in its overall approach to assessing the credibility of the witnesses and allegations that it heard. 

Partly because of the sheer number of complaints, and partly because of the problem of delay, the Tribunal decided that it would not be possible for it to adjudicate on every individual allegation:

Having regard to these difficulties [caused by delay] and the scale of the alleged physical and sexual abuse that has emerged in the evidence we do not consider that it would be either practicable or appropriate for us to attempt to reach firm conclusions on each specific allegation that has been made to us. We made it clear at the outset of the hearings that we did not propose to conduct a series of criminal or quasi-criminal trials of individual allegations, not least because the format and procedure of a tribunal of inquiry are unsuitable for such a purpose. The range of matters to be covered in the course of the Tribunal�s hearings has been such that it would have been impracticable and wastefully expensive to undertake a detailed examination of each specific incident, bearing in mind the overall objectives of the Inquiry underlying our terms of reference. The first requirement of those terms of reference is that we should �inquire into the abuse of children in care in the former county council areas of Gwynedd and Clwyd since 1974� and we interpret that as a requirement that we should hear the available evidence of the alleged abuse and reach such conclusions as we feel properly able to as to its scale and when and where it occurred as a necessary preliminary to examining the other matters specified in the terms of reference and to formulating relevant recommendations (6.02).


Given the practical difficulties that would have resulted from any attempt to give individual �verdicts� on the hundreds of allegations that were brought before the Tribunal, the approach described here may seem unremarkable.

Yet, in opting for this approach, the members of the Tribunal were, once again, dispensing with one of the most important safeguards that is found in criminal trials. In any trial involving multiple allegations or multiple complainants, one of the most important directions judges give to juries is that they should consider each complainant, and indeed each allegation, separately and return individual verdicts upon them. Even in those cases where the �similar fact principle� allows juries to take into consideration one count in reaching their verdict on another, they are still required to reach individual verdicts on each count and to base these verdicts on the strength of the relevant evidence. One of the main reasons why this direction is given is in an attempt to ensure that verdicts on individual counts are reached purely on the evidence which is admissible in relation to them, and to guard against the prejudicial effect of evidence �leaking� from one count to another. The dangers of reaching verdicts impressionistically by considering the generality of evidence offered, rather than its details, should be self-evident.

It is precisely this course, however, that is adopted by the Tribunal. From a purely pragmatic point of view it is easy to see why the members of the Tribunal came to the conclusion �that it would have been impracticable and wastefully expensive to undertake a detailed examination of each specific incident�. But from the point of view of fairness and justice, this would be the only reasonable course to adopt. The North Wales Tribunal of Inquiry was set up because of widespread disagreement and doubt about what had actually happened in care homes in Clwyd and Gwynedd during the relevant period. If the Tribunal did not even attempt to conduct a thorough investigation of this question then its proceedings might very well be characterised as �wastefully expensive�.
 

Assessing allegations of abuse 

Shortly before the Tribunal formally began its public hearings, in January 1997, the Chairman of the Tribunal, Sir Ronald Waterhouse, was interviewed on BBC2�s Newsnight by his namesake, the journalist Rosie Waterhouse. She raised the possibility that a significant number of allegations in North Wales had been fabricated in an attempt to gain compensation. She then went on to ask Sir Ronald how he would tell the difference between a true allegation of sexual abuse and a false one. He answered that he would seek to do so on the basis of his �experience of life�. At the time of this interview an experienced senior police officer privately expressed concern that, in answering this crucial question, Sir Ronald had made no reference to scrutinising the evidence and using this as the basis to judge between truth and falsehood.

This seeming lack of regard for ordinary evidential standards is also reflected in some of the report�s comments about alleged victims. Above all it is clear that the members of the Tribunal treat sexual abuse and allegations of sexual abuse as a special category which is not to be assessed in the same way as the evidence of other crimes. The following comment, for example, is made about the complainant who has already been referred to above as �witness B�:

'We are satisfied that B has suffered a long history of sexual abuse before, during and after his period in care and, to a significant extent until he left care, of physical abuse. As a result he has been, and remains, severely damaged psychologically; he has been greatly affected also by the sudden death of his young wife in very sad circumstances on 1 April 1992, leaving B with a very young child to bring up. A major problem is that the damage is reflected in B�s personality in such a way that he presents himself as an unreliable witness by the standards that an ordinary member of a jury is likely to apply' [italics added].

What this passage clearly implies is that, whereas inconsistencies and implausibilities in a witness�s evidence about alleged crimes would usually be construed as indicating that the crimes might not have taken place at all, such evidential weaknesses can sometimes actually result from sexual abuse, and can therefore be construed as evidence that a crime has taken place. Although most juries would not see things in this way, the members of the Tribunal indicate by implication their belief that their own ability to judge such matters is of a quite different order and that they can see beyond appearances to a reality that most jurors would miss.

They go on to enumerate various criticisms of the complainants, including the suggestion that they had been motivated by a desire to gain compensation and the idea that there may have been collusion between them. However these criticisms are cited only to be dismissed out of hand: 

Despite these substantial criticisms and other allied attacks upon the credibility of individual witnesses, including the paucity of direct corroboration in relation to most specific incidents, we have been impressed generally by the sincerity of the overwhelming majority of the complainants that we have heard and their own conviction that they are telling the truth about what occurred to them in care. Indeed, no one who has sat through the Tribunal�s hearings and listened to their evidence impartially can have failed to have been impressed by what they have said and their stated motivation now in coming forward to give evidence. 

In invoking the apparent sincerity with which the complainants gave evidence and the compelling nature of their allegations, the Tribunal members appear to be unaware that these very features are frequently found in false allegations. One example of this was provided shortly after the publication of the Waterhouse report by a case heard in the Court of Appeal. When, on April 7 2000, Roy Burnett had his conviction for rape quashed after serving fifteen years in prison, Lord Justice Judge said that his conviction had been unsafe: 

The crimes of which he was convicted almost certainly never happened at all. The complainant, apparently persuasive and compelling, convinced the jury that she was telling the truth when there was probably no rape or assault. 

Precisely because of the strength of the emotions which are associated with the idea of rape or abuse, and because of the psychological effect of obscene testimony, it is sometimes easier for witnesses to make powerful and persuasive false sexual allegations, than it is to make false complaints of a more mundane kind. In failing to recognise this, and in attempting to use the apparent sincerity of witnesses as a means of judging their veracity, the members of the Tribunal were effectively ensuring that they would fail in their essential task of assessing the scale of abuse.

��������������..


The case of Nathan Roberts

One episode that revealed the attitude of the Chairman of the Tribunal towards false allegations as clearly as any occurred half way through the Tribunal hearings. It was at this point that Merfyn Hughes QC, counsel to the �successor� local authorities, rose to make an application to the Tribunal.

The application concerned a young man named Nathan Roberts who had made an allegation of serious sexual abuse against John Allen, the proprietor of the Bryn Alyn home in Wrexham. It had subsequently emerged that Roberts had never been at Bryn Alyn and had never met John Allen. When confronted with this fact by the police he had admitted that the allegation he had made was a false one and that he had made it in an attempt to gain compensation.

Merfyn Hughes now urged that the Tribunal should call Roberts as a witness: 

MR HUGHES: It may be that the more important point in this case is that the witness is one who has, not only made a false statement of complaint, but has subsequently admitted to making and, indeed, as we understand it, went so far as to make a claim under the Criminal Injuries Compensation Board scheme. Sir, may we-----

THE CHAIRMAN: What is that going to teach us?

MR. HUGHES: Sir, what it is going to teach the Tribunal is this: the Tribunal has heard a number of complainants give evidence who, at one stage, made statements to the police that they had never been abused. They have come here to explain why they have made false statements of that kind and it will be, in due course, for the Tribunal, having heard submissions, to assess the credibility of those witnesses, and there is a theme running through the explanations which they have given, which it may be that the Tribunal will, in due course, accept. Nevertheless, there have been many witnesses who have made statements to the police which were, initially, quite false statements. This is the reverse, we would submit, of the same coin, where a witness for the first time has not only made a false statement but has been quite open with the police subsequently as to why he made the statement. I am not representing any of the Salmon Letter recipients in this phase but I have listened as they have, on many occasions, suggested to those witnesses that they are now making allegations which are false to this Tribunal and the inference being on many occasions that they are seeking to obtain some form of compensation. This is . . . the only instance where the Tribunal will have the opportunity of listening to a witness who will quite clearly admit to the Tribunal that he made a false statement. What is more important, he will explain to the Tribunal why he, in fact, made such a false statement (pp. 14709-10).

Merfyn Hughes�s proposal seemed an eminently reasonable one. It was all the more impressive for having been made by a barrister who had, throughout the Tribunal, been extremely sympathetic to those who complained of abuse and who had rarely, if ever, questioned their testimony.

The response of the Chairman, however, was unsympathetic in the extreme:


So you are asking us to hear the evidence of a liar, who is clearly suffering mental difficulties, in order to what?� The Chairman subsequently repeated this point, saying that �If the evidence [is] that he is seriously mentally affected and has lied in the past, then I don�t think he is the calibre of witness that this Tribunal should be hearing with a view to reaching any positive conclusions about it.

 

In view of the fact that a significant number of those who had made complaints to the Tribunal had had psychiatric treatment, and many, if not most of them, had records of criminal dishonesty, this response was an odd one. The Chairman, however, went on to say that he did not know what light was supposed to dawn on the Tribunal as a result of hearing the evidence of Roberts.

Merfyn Hughes pointed out that �without this evidence the Tribunal will have completed its work without ever receiving any evidence that a former child in care had made, at any stage, a false allegation�. He went on to summarise Roberts�s own explanation of why he had made a false allegation. It should be noted that, presumably in an attempt to mitigate his perjury, Roberts was now claiming, without offering any evidence, that he had been abused by others:

MR. HUGHES: What he said was this. In answer to the question, �Why have you done that?� [he said] �I wanted someone to pay.� Jones went on to say (Jones was the name he was then using) that he�d had been abused at other establishments and by other persons. He made the false Criminal Injuries Compensation Board claim against John Allen in a misguided attempt to get compensation from someone. He told the [police] officer that he had made a false complaint against John Allen and Bryn Alyn because he knew ex-residents of Bryn Alyn who had been abused by John Allen or, so they told him. From speaking to them he had gained sufficient knowledge to make a convincing account of abuse at Bryn Alyn. He was not prepared to name the ex-resident he had spoken to. Jones said he was not sure about his motives at the time, just that he wanted somebody to pay (p. 14712).

In spite of the obvious relevance of this evidence to questions that lay at the heart of the entire North Wales inquiry, and in spite of the cogent submission of Merfyn Hughes QC, the Chairman ruled that the evidence of Roberts would not be heard.

Although he added that �appropriate weight� would be given to the evidence that a false allegation had been made with the stated aim of obtaining compensation, no reference to the emergence of any such evidence is made in the Tribunal report.
 

Police trawling operations

Perhaps the single most important reason given by the Tribunal for accepting the veracity of the majority of the allegations made in North Wales is expressed in the following passage in their report:

What has been most striking . . . is the similarity in the accounts of conditions in particular homes given by former children in care from widely separate areas of the country and between whom there was no contact when they were in the home or afterwards (6.07). 

The claim made here that different accounts given by different complainants resembled one another should be treated with a degree of caution. For, although there were some broad similarities, there were often significant variations in the accounts they gave. What the members of the Tribunal appear to have lost sight of, however, was that the complainants were not a representative sample of former residents. They belonged to the minority who were making complaints. The majority of former residents from the homes did not make complaints. The Tribunal itself scarcely heard their evidence. Had they done so in any detail it seems likely that they would have been struck not by the similarity of the evidence given, but by its wide divergence.

Just as disturbing as the Tribunal�s failure to hear a representative cross-section of witnesses was the readiness with which it assumed that any convergence of evidence necessarily indicated truthfulness. The scandal created by the North Wales allegations had, after all, attracted national publicity and had been the subject of a number of television programmes. During the Tribunal hearings some complainants actually revealed during cross-examination that they had first made allegations after watching such television coverage. This in itself provided one explanation of how complainants who had not been in contact with one another could have made similar false allegations.

But there was another possible explanation. The investigation conducted by the North Wales Police between 1991 and 1992 was not, in any sense, a traditional police inquiry. It was a trawling operation in which police officers deliberately sought out potential witnesses and, in some cases at least, actively solicited allegations of abuse from them.

This kind of police trawling operation has grown up only in the last ten years and its dangers have only recently begun to be appreciated. One of the criticisms that has been made of police trawls is that they can in practice end up by sowing the seeds of the very allegations they subsequently harvest. By inadvertently encouraging false allegations and effectively offering witnesses a template for such complaints, trawling operations may themselves engender just the kind of similarities of evidence that the Tribunal report holds out as a sign of authenticity.

What ultimately makes trawling operations so dangerous, however, is that they exploit weaknesses in the law that allow multiple complaints to be brought to trial simultaneously in a manner that is profoundly prejudicial to the defendant. This frequently happens because the prosecution invokes the principle of �similar fact�. This allows similar allegations to be grouped together in such a way that one allegation can be treated as though it actually corroborates another. The prosecution of care workers and others through multiple allegations was made procedurally easier in 1991 when a House of Lords decision relaxed the criteria for admitting similar fact evidence (DPP v. P [1991] 2 A.C. 447 H.L.) Whereas previously it had been necessary to demonstrate �striking similarities�, from 1991 onwards allegations could be linked together merely through �similar circumstances�. In practice this ruling has made it much easier to secure convictions purely by advancing a sufficiently large number of uncorroborated allegations.

Even where the similar fact principle is not invoked it is possible for different allegations made by different complainants to be joined on one indictment and heard together in a single trial. Whenever this happens juries find it extremely difficult to reach a verdict on any one count without being influenced by the others.

However weak the individual allegations are, juries almost always convict on at least some of the counts on the basis that �there is no smoke without fire�. Even where each allegation has been effectively discredited during cross-examination, juries will usually still convict purely because of the number of allegations placed before them. The quantity of evidence becomes a substitute for its quality.

So successful have trawling operations been that they are now being conducted by practically every police force in the country. There can be no doubt at all that this kind of investigation is an extremely effective way of obtaining convictions against those who are genuinely guilty. But evidence from throughout the United Kingdom indicates that trawling operations have generated an unprecedented number of false allegations and led to the conviction of a disturbing number of completely innocent care workers and teachers.

The Tribunal, however, made no attempt to scrutinise such investigations or to examine their dangers. Chris Saltrese, the solicitor, who was representing both BESST and a number of individual former members of staff from Bryn Estyn, was so disturbed by this omission, and by some of the remarks made by Sir Ronald Waterhouse, that he felt he had no alternative but to write a letter to Sir Ronald expressing his grave anxiety about the dangers of trawling operations. After relating his own experience of investigating the case of Terry Hoskin, who had been jailed in Cheshire, and for whom he was acting in an appeal, Saltrese went on to outline his more general concern:

I am not suggesting that police officers set out to deliberately fabricate evidence. The problem is that once a police force decides that a particular residential care worker may be guilty of sexual abuse, it becomes extremely difficult for officers dealing with the case to avoid propagating the very suspicions they are supposed to be investigating. For asking leading questions is the most natural of all responses, particularly in circumstances where it is thought that witnesses may be reluctant to make allegations either because of fear or embarrassment. In the vast majority of cases police officers who pose such questions will be quite unaware that they have done so. Similarly it will not occur to these officers that they have created the very evidence which they now collect.

In support of this view he enclosed the letter he had received from Roy Tolson (see above). He also cited the Tribunal statement of another former Bryn Estyn resident, Matthew Elwys, in which Elwys made it clear that, when he had been interviewed by the North Wales Police, they had told him that he had been abused by Peter Howarth. When Elwys had pointed out that this was not true he had been told that he might receive compensation if he did make an allegation of abuse.

Saltrese concluded by suggesting that police trawling methods could all too easily lead to miscarriages of justice and that this was directly relevant to North Wales because of the case of the deputy head of Bryn Estyn Peter Howarth:

Having read the used and unused evidence in the Howarth case, and having listened to some of the complainants give their evidence to the Tribunal, it is my view that there is every possibility that Peter Howarth was an innocent man, wrongly convicted.

The Chairman�s response to this letter was instructive. Some two weeks after receiving it he asked that the Tribunal should sit in chambers. Saltrese was then effectively reprimanded for having written the letter. Any such submission, the Chairman suggested, should be based on evidence before the Tribunal that was subject to cross-examination. He went on to make it clear that, although he had read the letter, he considered that it did not form part of any evidence before him and that it would have �no impact� on his mind.

There can be little doubt that, from a procedural point of view, the Chairman�s ruling was correct. However, it is significant that when this ruling was actually made, the Tribunal had already been hearing evidence for a hundred days. At no point had any question been raised about police trawling methods, even though these methods arguably lay at the very heart of what had happened in North Wales. It was reasonably clear that Saltrese had written his letter out of frustration at the manner in which the Tribunal had continually avoided any engagement with one of the crucial issues before it.
 

False Allegations 

Again and again it becomes apparent in the report that the members of the Tribunal almost invariably bring a presumption of veracity to the task of assessing allegations of abuse. Where details of a particular allegation do not correspond to the facts, it is rarely if ever suggested that this might be because the evidence has been fabricated. Instead such inconsistencies are either ignored or explained away as the products of exaggeration, embellishment, or simple error.

Even where the evidence of a particular witness contained inconsistencies of a kind that clearly suggested deliberate fabrication rather than accidental error, the members of the Tribunal show extreme reluctance to acknowledge even the possibility of fabrication. 

In some cases allegations that appear quite clearly to have been fabricated are simply passed over without comment in the report. What could have been a very instructive example was provided during the Tribunal proceedings by a former resident of Bryn Estyn, Andy Hyall.* Hyall had originally contacted the Tribunal early in 1997 on his own initiative. He had done so after watching a television programme which had included reports that the deputy head, Peter Howarth, had been convicted on charges of sexually abusing a number of adolescent boys in his care. (It did not mention that Howarth, who died of a heart-attack while waiting to give evidence to the North Wales Tribunal, had always protested his innocence or that some of his former colleagues still believe that he was wrongly convicted.)

When Hyall contacted the Tribunal he told them that he too had been sexually abused by Howarth and made a formal statement to this effect. However, it was subsequently pointed out to him that Howarth had not begun working at the home until November 1973, three years after Hyall left. Far from being sexually abused by Howarth, Hyall had never met him. 

During the Tribunal Hyall attempted to explain away his impossible complaint by claiming that he had mistaken the identity of the member of staff involved. This, he said, was because �we never knew the staff by their names, it was either Sir or Miss.� Hyall�s account of an institution where the staff had no names was not borne out by any other witness. 

Another man who had been at Bryn Estyn made an allegation against a Mr Clutton, who, he said, had thrown a leather football at his face so hard that he had almost broken his nose. During cross-examination it was pointed out that, although there had been a Mr Clutton on the staff of Bryn Estyn, he had left in 1974, three years before his accuser had arrived. 

One man who complained agreed to give evidence to the Tribunal but changed his mind at the last moment. He claimed that he had been beaten and sexually abused by one unnamed member of staff and that he had also been sexually abused by Peter Howarth. Counsel to the Tribunal, however, read out a statement which this witness had made to the North Wales Police in 1992. In this statement he makes allegations of physical abuse but clearly says �I never experienced any sort of sexual abuse by the staff�. The main allegation he does make is of serious and repeated physical abuse by care worker Fred Rutter. It was later pointed out to the Tribunal that the complainant was at Bryn Estyn between 1977 and 1978. Rutter, however, did not start working there until 1982, four years after his accuser had left.

Another man, Jerry Halpern*, who did not appear at the Tribunal, but whose allegations were frequently referred to, had made an allegation that he had been abused at Ty�r Felin in Gwynedd, when a member of the care staff had punched him in the face. Yet in 1992 the North Wales Police took a statement about a similar incident from a young woman who had been in care with Halpern. In her statement she recalls that he had been arguing with a member of staff: 

Following the argument Halpern came to join us by the steps to the loft. He had a bruise on his face from an earlier incident . . . We were talking about it and Jerry decided to start hitting himself to his face by this bruise to cause a more serious injury. He then said he would make a false allegation against the ex-army member of staff to get him dismissed. We all agreed to go along with his story, although we all knew Jerry had not been assaulted at all.  

Although the evidence which was put to the Tribunal, or which was available to it, clearly indicated that complaints had been fabricated, no reference is made to any of these instances in the Tribunal report.
 

* This name has been changed

 

 

(The above extracts are taken from a longer analysis, not all of which is currently available online)

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� Richard Webster, 2002

www.richardwebster.net

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