The Cosgrove
letter
ONE OF THE MOST important documents in the entire Shieldfield case, which would eventually be quoted in its entirety by Mr Justice Eady in his judgment, was a six-page letter written by Patrick Cosgove QC to Brian Scott, the assistant head of legal services at Newcastle City Council.
When the Review Team's report had been published in November 1998, Scott had, as a matter of courtesy, forwarded two copies to Cosgrove who had represented Dawn Reed at the criminal trial. He in turn passed the second copy to Aidan Marron QC who had been Leading Counsel for the Crown. He then read the report himself in its entirety.
When, on 16 November, Patrick Cosgove wrote back to Scott to thank him for sending the copies of the report, the letter which he sent was much more than a formal acknowledgment.
The full text of his letter is reproduced here:
__________________________________________________________
Dear Mr.
Scott,
Report: ‘Abuse in Early Years’
Thank you for sending me two copies of the above report. The second I
have passed on to Aidan Marron QC, who was Leading Counsel for the Crown
in the criminal trial of Christopher Lillie and Dawn Reed.
Although I was Leading Counsel for Miss Reed in that trial, I have no
continuing professional interest. My continuing interest is in helping to
ensure that we can all learn from this case how best to improve the course
of justice.
Rightly, there has been much praise of many of the people who were
involved in the criminal investigation, such as police officers and social
workers. They and others, such as the lawyers in the case, were edging
forward in trying to improve their understanding and abilities in these
difficult matters. No-one can doubt that the objectives are (a) to protect
children, and (b) to do justice by all parties.
I could not agree more with the observation made at the beginning of the
Report (page i), namely that: ‘Given the proposed massive expansion
nationally of day care provision in early years settings this case raises
important lessons for consideration in relation to the delivery of
services to young children outside their families.’
It
is tragic, therefore, that the Review Team has laboured for so long only
to bring forward a report that is fundamentally flawed.
Both
academic literature and forensic experience indicate that justice has been
hindered by incorrect prejudices that sexual abuse doesn’t happen in the
family, or isn’t committed by natural parents, or by women generally, or
by a mother, or by caring professionals outside the home. Our increased
understanding leads most of us to reject any such prejudices.
Modern prejudices are more likely to be twofold. At one extreme is the
prejudgment that complaints of sexual abuse are likely to be the creation
of some form of false memory syndrome. At the other extreme is the
prejudgment that sexual abuse once suspected is present, and the only
difficulty is in obtaining the evidence to prove it.
The
Report’s authors implicitly criticise unsolicited correspondents who fall
into the trap of the former. There is considerable evidence throughout the
Report that they themselves have fallen into the latter prejudgment.
The
only safe approach is to keep an open mind in each case, to approach the
evidence as objectively as possible in order to discover what it shows. In
a free society that is the function of a Court, not the function of
investigators, nor of persons with a therapeutic responsibility, nor of
teams like the authors of this Report.
It
is clear that Professor Davies (see the first paragraph of Appendix 6) has
had sight of the Ruling of Mr. Justice Holland in the criminal trial,
given on 13th July 1994, but it is not clear whether the authors of the
Report have read it.
If
they have not done so, they have been grossly negligent. If they have read
it, their conduct is disgraceful. Nowhere in the Report is there
sufficient reference to the Ruling. That fact and the way in which the
Report deals with the issues also dealt with in the Ruling lead to the
inevitable misleading, even deception of the Report’s readers.
It
should be remembered that Mr. Justice Holland delivered his judgment after
careful consideration of the evidence.
The
Crown Prosecution Service, no doubt acting on the advice of the police and
of counsel, brought forward an indictment based on the six best cases (all
of them involving Mr. Lillie and four of them involving Miss Reed) from
the point of view of the prosecution. No-one, to my knowledge, has
questioned the industry or judgment of the prosecution in this case.
Of
those six, one complainant (identified in the Report as Child F) was taken
as a ‘test case’ for preliminary submissions. The details of how this was
done are set out clearly in Mr. Justice Holland’s Ruling. The Report’s
authors, to be fair, (see pages 148, 225 and 277) also appear to identify
this young girl as providing the best evidence in the case.
It
is helpful, at this stage, to set out what Mr. Justice Holland said about
this child’s evidence. In the following quotation I have quoted the Judge
verbatim, except that I have substituted ‘Child F’ for the girl’s real
name. The passage is to be found at pages 17 and 18 of the Ruling.
‘It
is convenient to start with the Crown’s case against Miss Reed. As to this
I do not regard any of the statement as set out by me, as disclosed by the
recordings, potentially probative of anything at all against Miss Reed. It
affords, in my judgment, no evidence upon which any reasonable jury could
convict her upon Count 3.
‘It
is true that the second video includes a description of the indecent
assault by Miss Reed that is relied upon, but the first and second videos
include, effectively, total exculpation of Miss Reed. One of the striking
features of both the first and second videos is the insistence with which
[Child F] seeks to exculpate her, and the fact that she does so upon her
own initiative. Indeed, one of the points made by Mr. Cosgrove in the
course of his cross examination of WPC Foster and of Mrs. Lyon is that
nobody picked up and sought to examine, in any way, this piece of
initiative on the part of [Child F].
‘The
statement would only become potentially probative against Miss Reed if the
graphic support for her that was initiated by [Child F] herself – and that
is seen on videos one and three – is put aside. I can see no basis for
doing so. I remind myself that no jury can convict Miss Reed upon Count 3
without being sure and satisfied of her guilt. It is manifest on the
evidence of [Child F] (as disclosed in the statement from the three
videos) that there could be no basis upon which they could be sure and
satisfied. Indeed, there is a rather better basis for being sure and
satisfied that she is innocent of that particular charge.
‘Thus,
in dealing with Miss Reed, I have no hesitation in ruling that the Crown’s
application to adduce that part of the video recordings as making a
statement to be relied upon in the furtherance of their prosecution of her
fails.’
It may be that the Learned Judge made a slip of the tongue in the second
paragraph quoted, and that he meant to refer to the first and third, not
the first and second, videos. I rely on my memory for that, and I may be
wrong.
In any event, in twenty two years of practice at the bar I have never
heard a High Court Judge be so emphatic in an expressed view that the
evidence pointed to someone’s innocence, as opposed to it being
insufficient to prove his or her guilt.
During the course of the criminal trial, there were groups of people
outside the Court protesting on behalf of the children. They had placards
saying things like ‘We believe the kids’. On this point at least, Mr.
Justice Holland believed Child F. Why are others so reluctant so to do?
The Report gives the clear and unequivocal impression that the criminal
case against both Defendants collapsed only because of the difficulties in
getting children’s evidence admitted in criminal trials, and that, as a
result, two guilty paedophiles have wrongly gone free. The final paragraph
of the body of the Report (page 303) is an example of this:
‘Like many of the professionals who we have interviewed we share the
distress of parents that the Shieldfield children were not able in the end
to receive justice. We find that there was a failure of the adult world to
provide the processes, systems and environment to ensure that child
victims of assault are not disadvantaged and are regarded as being as
entitled to justice as adults.’
Yet we can see from Mr. Justice Holland’s Ruling that the primary reason
why the not guilty verdict was entered against Miss Reed was that the
evidence of the child pointed to her innocence. Why have the Report’s
authors hidden that from their readers? Why have they deceived them into
thinking otherwise? Why have they misled opinion formers and
policy makers like the Council and Members of Parliament? Why have they
fed the feeding frenzy of the tabloid press?
They should pause in their righteousness and consider these questions.
What if Child F is correct? What if Miss Reed is wholly innocent of any
abuse? They have purported to find her guilty of a most serious criminal
offence, and have done so in direct contravention of their terms of
reference (see below), for which there can be no excuse.
Sexual abuse of children is horrendous. Few things approach it for
awfulness. One that does is to be wrongly accused of it. There is no
justice for abused children if a wrong person is accused, condemned,
convicted and punished.
We do not need to look to America, to the Kelly Michael case, for examples
of how people can be falsely accused. Close to home there is the ‘Bishop
Auckland satanic abuse case’, for example. And we need look no further
than Cleveland to see how misplaced zeal can cause a counter-reaction, and
confuse the cause of protection of children.
It may be that the Report’s authors will claim that they could not refer
to the Judge’s Ruling because of their Terms of Reference, particularly
term 1A (at page 5): ‘it should be noted, however, that the Review cannot
make any finding on matters dealt with by the Criminal Court.’ If so, that
claim would be specious.
In apparent disobedience of that term of reference, the Report does make
findings on matters dealt with by the Crown Court, and does so in direct
contradiction to the findings made by the Court, although the Report’s
authors do not have the candour to draw that to the attention of their
readers. A classic example is to be found at page 148:
‘During September a child who had previously been at the nursery began to
disclose abuse by Chris Lillie and Dawn Reed. The child, child F, was
medically examined and clear physical evidence of sexual abuse followed.
Over three video interviews, she detailed abuse of herself and other
children by Chris Lillie, to a lesser extent by Dawn Reed, and she also
mentioned other nursery staff’s names. Her testimony in these videos,
which we have seen, is extremely powerful and provided persuasive evidence
of her abuse in the nursery and elsewhere.’
In at least one other respect there is a material contradiction between
the conclusions drawn by Mr. Justice Holland and the Report’s authors,
and, once again, they do not draw it to the attention of their readers.
This concerns the existence or otherwise of any corroborative evidence. I
quote (again verbatim) from page 8 of the Judge’s ruling:
‘. . save to the extent that the physical findings corroborate the fact of
physical interference in the case of certain of the children and save to
the extent that one child might provide ‘similar fact’ support for one or
more of the other children, there is no corroboration of the allegations
that are made. Indeed, to the extent that the children have provided
detail as to venue and as to the circumstances of various incidents, no
support has emerged for their contentions, despite extensive enquiries to
see whether any corroborative evidence is available.’
The Learned Judge also gives significant details of the ages of the six ‘indictment children’ at various stages. Had they been included in the
report, which they weren’t, readers would have been able to make their own
assessments in the light of the valuable research reviews contributed by
Professors Bull and Davies.
There are other elements of the Report which give rise to concern, but the
ones canvassed above are particularly grave. The flaws are such that they
must bring the reliability and integrity of the whole of the Report into
dispute. This is a great pity, as it may well be that many of its insights
and judgments have value. It would be a mistake to place reliance upon it,
however, as (to adapt a line of the Report at page 130): ‘Thus, if the
[authors] were wrong with one thing they could be wrong and unreliable
about everything else.’
It would be wrong to pretend that any one of us has the answers to what
happened, and what went wrong. That is why people were looking forward to
the publication of the Report in the hope that it would give an indication
of the best way forward. It is a matter of great disappointment that it
does not.
What the Report does highlight is how many of the problems are not to do
with the children or their accuracy or reliability, but with the adults,
not least in their interpretation of what the child is trying to say. It
is clear that that interpretation is not always as objective as the
children and those caring for them have a right to expect.
One further area is of continuing concern. The parents of the children
have suffered much anguish. The Report finds that children were subject to
abuse by a paedophile group and were filmed for pornographic purposes.
Given the other flaws in the Report, it would be foolish to rely upon
these findings. They may or may not be true. If not true, the authors of
the Report are guilty of unnecessarily causing yet more pain to the
parents.
It is to be
hoped that such a dangerous document does not have a lasting influence.
I appreciate that the Council is now in an impossible position, having
agreed to publish the report without any amendments. I do ask, however,
that a copy of Mr. Justice Holland’s Ruling (amended only by removing
identification of the children) be appended to every copy of the Report
that is published or distributed. In this way, readers will have a more
balanced picture.
I have yet to decide to whom I will send a copy of this letter, but I
would be grateful if you would draw it to the attention, at least, of the
appropriate chief officers, the chairs of the relevant committees and to
the Leader of the Council.
Within the constraints of time, I would be willing to expand upon any of
the points raised, preferably in a face to face meeting.
Yours sincerely,
Patrick Cosgrove QC
__________________________________________________________
Patrick Cosgrove’s letter, written by a barrister who had no continuing
professional interest in the case, was remarkable enough. What is even
more remarkable is that the prosecution barrister, Aidan Marron QC, who
had also read the report, asked if he could countersign this letter and
associate himself with its contents.
Yet although, in December 1998, Patrick Cosgrove explicitly gave Newcastle
City Council permission to make his letter public, they did not do so.
