The North Wales Tribunal: was Waterhouse wrong?

Waterhouse: a betrayal of trust?

RICHARD WEBSTER

Introduction

ON 5 OCTOBER 1990, after a police investigation, Stephen Norris, who was the officer-in-charge of the Cartrefle community home in Clwyd, North Wales, pleaded guilty to five specimen charges of indecent assault against boys in his care. He was sentenced to three and a half years’ imprisonment. For anyone concerned with standards of care in residential homes in North Wales, this development was significant. It demonstrated beyond doubt that the problem of sexual abuse in care homes was a real one and that at least one home in Clwyd had been affected by it. Norris’s conviction in relation to Cartrefle inevitably raised questions about his earlier conduct at Bryn Estyn – the community home in Wrexham where he had worked until it was closed on financial grounds in 1984.

In July 1991, partly as a result of suspicions expressed by a senior social worker from Cheshire who had been called in to investigate, and partly as a result of allegations of child abuse made to the leader of Clwyd County Council by Alison Taylor, a former residential social worker, 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 where Alison Taylor had completed a student placement in 1982, it gradually enlarged its scope to involve all care homes in Clwyd.

In October 1991, after an HTV television documentary which featured Mrs Taylor, a separate investigation was launched into care homes in Gwynedd where Mrs Taylor had formerly worked.

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 who had recently retired, and implied that he was himself involved in the abuse of children at Bryn Estyn.

A number of allegations made by Mrs Taylor, and 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 less than 365 people, only 25 people [check] 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, the care worker who had already been convicted in relation to offences committed at Cartrefle, pleaded guilty to three offences of buggery, one of attempted buggery and three indecent assaults involving six Bryn Estyn boys. Howarth protested his innocence throughout but was found guilty by a majority verdict in Chester Crown in July 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, at the time he was named by the newspaper there had not even been any allegations against him. The only allegations had been collected subsequently by two journalists, one of whom 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 were 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 (see above, pp.XX-XX).

The main purpose of the Tribunal of inquiry which now took place was to investigate the huge disproportion between the number of convictions actually 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 freemasonry, 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 role of Alison Taylor and the reliability of her allegations, this evidence was almost entirely overlooked 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, thus 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 year which has 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.

2 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.

3 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 their 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 6 th 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. 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.

4 The officer-in-charge: Matt Arnold

In nearly every significant case there were at least some constraints upon the manner in which the Tribunal was able to criticise individual members of staff. This was because those who faced criticism during the proceedings were warned in advance in a ‘Salmon letter’ about the complaints that would be made against them. They then automatically had the right to appear in person at the Tribunal so that they could put their side of the story and seek to rebut any claims which were untrue. They were also granted legal representation so that those who made complaints against them could be cross-examined by a barrister representing their interests.

These principles, however, which ensured that there was at least the potential for fairness in the proceedings, did not apply to one of the most important protagonists in the North Wales story – the headmaster of Bryn Estyn, Matt Arnold. Arnold, who enjoyed a high reputation within his profession, and who still commands the deep respect and warm regard of many of those who worked under him, had died of a heart-attack in 1994, shortly after the conviction of Peter Howarth, his deputy.

Because Arnold was dead he suffered a double disadvantage. As well as being unable to rebut allegations made against him he was, additionally, denied legal representation. As a result he was left particularly vulnerable to unfair or unjust criticism.

This handicap, involving as it did a figure who, after Peter Howarth, was perhaps the most important in the entire North Wales story, would eventually have an incalculable effect on the proceedings. It would, arguably, shape the very outcome of the inquiry.

This is in part because of the role which was assigned to Arnold in the opening statement. Having discussed, in earlier sections of his statement, the various allegations of abuse at Bryn Estyn, Gerard Elias went on to pose what was clearly seen as one of the key questions for the Tribunal to answer: ‘If the majority of the allegations are true, how was this situation allowed to develop?’

In advance of any evidence being heard it was then implicitly assumed that the majority of the allegations were indeed true, and that the question posed must therefore be answered:

The first explanation may lie in the quality of the headmaster, Mr. Arnold, now deceased. Although he arrived with a high reputation at Bryn Estyn, there is considerable evidence that he turned a blind eye to the problem of abuse at the home, suppressed evidence of abuse, and was also prepared to act dishonestly to protect staff who may have been involved in that abuse.

These were grave allegations indeed. Particularly so in that the officer against whom they were directed would not be legally represented at the Tribunal. To anyone who had any familiarity with Bryn Estyn and its background, they were also remarkable. For whatever criticism might be made of Arnold the view of almost all who worked with him, either inside or outside the home, was that he was a humane man who cared deeply for the damaged and vulnerable boys in his care.

The opening statement immediately went on to describe an incident on which the allegations were partly based:

On 30th April 1984 there was an incident at Bryn Estyn which resulted in injury being caused to a boy, Stephen Horton, by a member of staff, Brian House. As a result Horton sustained an injury to his nose [these names have been changed] Mr. Arnold, the principal, was called and took the boy to hospital. On the 8th may he wrote a memorandum about what occurred:

‘No police officer of any standing would accept, uncommittedly, a blood splattered person into cells overnight without seeking a medical inspection . . . If this had occurred two probabilities had to be accepted, A: Stephen would lay a charge against Mr. House. B: non-accidental injuries investigations would be commenced. If either of these two occurred there would be a semi-public enquiry in train before anyone could review the circumstances. . .’

‘When I took Stephen to casualty we discussed that until the circumstances could be looked at by me, we would not tell the doctor how the injury had happened. Thus, the duty doctor accepted our story of a “swinging door”.’

On the basis of this extract from his memorandum, Arnold’s behaviour does indeed appear to be deeply suspect and it is difficult to see any way in which it might conceivably be justified.

It must be pointed out, however, that what had been quoted in the opening statement was not the entire memorandum which Arnold wrote, but an edited extract from it which, as indicated by the ellipses, was not even a continuous extract. Perhaps more importantly still, no account was offered of the various events which had led the staff who were on duty that night to summon both Mr Arnold and the police.

What had in fact happened was that during the afternoon of 30th April 1984, Stephen Horton, who was two months short of his seventeenth birthday, and who was due to appear in court the next day, had managed to obtain a supply of beer and whisky from the mother of another boy. He returned to Bryn Estyn at around 9.45 pm. According to Liz Evans, a member of staff who was on duty at the time, it was clear he had been drinking, and possibly abusing solvents. In his own evidence to the Tribunal Horton confirmed that he had drunk so much lager and whisky that he couldn’t remember how much but that ‘I know I was drunk’ (NWTT, p. 2301). Because he was loud and aggressive Evans tried to prevent him from going upstairs where other boys had already settled. At this Horton grabbed her by the wrist violently, ripped her blouse and began to overpower her. She became extremely frightened. The situation was unlike any she had encountered before and seemed to pose a real threat. In an attempt to prevent Horton causing her injury she tried to knee him in the groin, causing him to retreat.

At 10 pm Brian House, the Night Care Officer, began his duty. At about 10.30 pm he went into a noisy dormitory to settle the boys down. According to his account Horton reacted violently, calling House a ‘mother fucker’ and coming towards him with a clenched fist and a glazed look in his eyes. House says that he pushed the boy back onto the bed and left the room.

A few minutes later, according to the account given by House, Horton burst through the door out into the corridor brandishing a wooden coat hanger and a wooden shelf, both of which he threw at House. When House dodged these missiles, Horton picked up the shelf and attempted to strike him in the stomach with it. House claims that at this point he grappled with the boy and forced him to the ground, causing him to injure his nose. Horton, in his Tribunal evidence, said that at some point in this incident, House hit him in the face with a torch. At least two other residents who witnessed the incident say that they saw House punch Horton with his fist.

After retiring to his dormitory Horton re-emerged. Blood was coming from his nose and he now had a butter knife in his hand. He advanced on House shouting threats. Paul Wilson and Maurice Matthews, the other members of staff on duty, called out to him to drop the knife which he eventually did. Matthews then phoned for Mr Arnold and called the police so that they might take Horton into custody.

Matt Arnold arrived at the school at approximately 10.55pm to find a police car in the courtyard and two policemen waiting in the downstairs corridor. The lights were on in most of the dormitories, boys were shouting, and bits of wood and other small objects were being thrown from the dormitory windows. Arnold was told that Horton had made an attack on House and that he was now in his dormitory together with other boys, armed with pieces of wood. It was suggested that Horton should now be taken into custody.

Arnold, who is criticised in the opening statement for not being able to face ‘confrontational incidents’, asked the staff and the police officers to wait downstairs while he went upstairs on his own to speak to Horton. He found him lying in bed in his dormitory with a bloodied face. Horton said that he had been attacked by Mr House and that he had retaliated and lost his temper. One of the boys present energetically backed up this version of events and said Horton ought to lay a charge against House.

Although Maurice Matthews had called the police with the explicit intention that they should arrest Horton, Arnold appraised the situation differently. He could see that, if the police were now to attempt to take Horton into custody as Matthews suggested, this might provoke serious disorder among the other boys. Not only this but the visible evidence, namely the bloodied nose of Horton, might very well end by incriminating the victim of the knife attack and not its perpetrator.

Arnold recognised that Matthews had misread the situation: ‘From my perfunctory review of the drama when I arrived at the School, there did not appear to be an “open and shut” case where Horton was totally to blame and Mr House totally in innocence.’ The danger was that, if the matter was passed over to the police at this stage, a complex situation, in which there may have been severe provocation and rights and wrongs on both sides, would be crudely simplified. In a complete reversal of what Matthews had intended when he called the police, House’s assailant might eventually go free and House himself might be charged.

In this tense, stressful situation Arnold decided that the best course would be to restore calm and not to engage in precipitate action. He could then look into what had happened himself instead of involving the police at a stage where their intervention might be unhelpful. It was for this reason he said in his memo, that he sent the police away and persuaded Stephen Horton to ‘go along’ with the story of the swinging door. The next day, when the boys had settled down, he could conduct his own investigation.

Arnold almost immediately recognised, however, that the course he had chosen may have been unwise. As he recorded in the memorandum he wrote the next day, in words which are omitted from the extract quoted in the Tribunal: ‘Unfortunately I was not able to proceed further as Horton was removed from Bryn Estyn. When [his social worker] informed me of Horton’s removal at the request of the magistrates, our submission to the doctor did not seem so sensible.’

In his memorandum Arnold wrote that the decision he took had been ‘an emergency rationalisation made at the moment of crisis’ and specifically said that he would not suggest ‘that another crisis would be approached similarly’.

This having been said it should be noted that the practical effect of Arnold’s action was to wind down a dangerous situation which could easily have got out of control. As he himself observed, any attempt to take Horton into custody at this point could have inflamed the situation: ‘Possibly, if Stephen had been removed forcibly – and I could not see him going willingly – other children might have regarded this as a flash point for further silliness.’ Interestingly this crucial sentence, which clearly identifies the purpose for which the police had been called, has been excised from the passage quoted in the opening statement and replaced by an ellipsis.

The account of the incident which was given in the opening statement omits a great deal else as well. It does not describe the context of the incident in any way. Specifically, it fails to record Horton’s drunkenness, his assault on a woman member of staff, his abusiveness, or the fact that he threatened House with a board. The highly significant information that the police had been called in order to arrest a drunken sixteen-year-old boy who had attacked a member of staff is not disclosed. Instead the opening statement gives the impression that House had engaged in an unprovoked attack on a young boy.

The real question which must be posed is not why Arnold acted as he did, but why those who compiled the opening statement to the North Wales Tribunal so misrepresented his memo that its significance was all but inverted. What they had obscured above all was the frank nature of Arnold’s report and the fact that it was in some respects both a critique of, and an oblique apology for, his own misjudgment.

The most generous explanation which can be given, which may or may not be the correct explanation, is that those who drafted the opening statement might themselves have been unaware of the full context of the passages which they cited. In this respect it is a matter of some interest that the same memorandum which was quoted in the opening statement had previously been cited elsewhere by a body which was a party to the Tribunal – the North Wales Police.

According to a draft report prepared by Detective Superintendent Peter Ackerley in March 1994 for the trial of Peter Howarth, the North Wales Police took possession of Arnold’s memorandum during their 1991-2 investigation. Detective Superintendent Ackerley himself cites two passages from this memorandum in his report, and he does so with exactly the same aim as that of Mr Elias in the opening statement – that of blackening the character of Matt Arnold and presenting him by implication as a devious and deceitful officer who deliberately attempted to conceal abuse. What is perhaps significant is that the passages which Detective Superintendent Ackerley cites are exactly the same as the passages which Mr Elias quotes; they correspond even down to the last ellipsis.

The only conclusion which can be drawn (if we discount the possibility that those who compiled the opening statement deliberately suppressed the full story of what happened on the night of 30th April 1984), is that the authors of the opening statement actually failed to consult the original memorandum and instead relied upon the extracts from it which had already been used by the North Wales Police.

It must further be suggested that the original selection of these extracts had the effect of presenting the incident involving Horton in the worst possible light. It did so in a way that reflected badly on the character and integrity of Matt Arnold – who might very well have been a key defence witness in the trial of Peter Howarth.

That those responsible for the content of the opening statement should have uncritically accepted an edited, highly tendentious version of the memorandum, and should have made it into the basis of a completely unjustified attack on the character of Matt Arnold, is a matter for very serious concern.

5 The case of Leslie Wilson

Having presented their reading of what was subsequently referred to as ‘the swinging door incident’ (NWTT, p. 25,490), the authors of the opening statement proceed to relate what they describe as ‘a second stark example’ of Arnold’s attitude:

This is found in the staff file of Leslie Wilson, who was convicted of an offence of buggery committed against a child in care, as we have seen. On the 9th July 1977 Arnold wrote to Emlyn Evans, director of Social Services at that time, in the following terms: ‘The statement, damaging as it is, does not contain the boy’s fuller comments, which suggest there was considerable laxity in supervision of what was happening. I apologise for this statement, but feel you should be aware that if this child were brought into court and allowed to speak freely, much damaging material would be disclosed . . .

I would comment that for the protection of Social Services that a copy of this statement . . . be obtained by your legal department since it might give the department advance warning and a hope that a fuller investigation by the police might be averted. Whilst at the police station there were odd comments of ‘snowballing’ effect and it would be shattering for other children to be subjected to questioning (NWTT, pp. 217-8).

Once again this episode, as related here through selected extracts from one of Matt Arnold’s own letters, appears to be very damaging. But once again there is a larger story which has been silently suppressed.

Although the passages which are quoted from the letter may make it appear that Arnold is attempting to cover up sexual abuse which a boy had suffered, the opposite was the case. Arnold had in fact been the first person to raise concerns about Leslie Wilson. What had happened was that a fifteen-year-old Bryn Estyn resident, Gareth Bolton, who had previously been at the Little Acton Assessment Centre, had recently shown signs of being upset. The occasions on which he showed distress seemed to coincide with visits made to him by Wilson who had been his housefather at Little Acton and had insisted on keeping in touch with him. Quite properly staff at Bryn Estyn reported their concerns to Arnold. He in turn wrote to the officer-in-charge at Little Acton, noting what had happened and asking for his confidential opinion about whether Wilson was a suitable person to continue visiting the boy. The visits were then stopped but some weeks later the boy absconded and was found in Wilson’s flat at Little Acton on 5 July 1977.

The immediate consequences of this incident were not recorded either during the Tribunal proceedings or in the report it eventually produced. But they almost certainly would have emerged had Arnold been legally represented, or, indeed, had the Tribunal taken the trouble to call as a witness the solicitor who had represented him during the 1991-2 police investigation.

For both the North Wales Police in their draft report of 1994, and Counsel for the Tribunal in his opening statement, failed to mention one crucial fact. This was that, on 15 March 1992, Matt Arnold was one of the sixteen former members of Bryn Estyn staff who were arrested in the dawn raid carried out by the North Wales Police. Arnold was questioned on suspicion of having perverted the course of justice.

During this interview it was apparently suggested to Arnold that he was involved in a paedophile ring, that he had deliberately employed staff whom he knew to have paedophile tendencies, and that he had attempted to stop allegations of abuse from emerging. The only evidence the police were able to produce in order to support these remarkable suggestions were the two documents which were subsequently exhumed in the opening statement. Arnold was now asked about these and gave full answers to the questions which were put to him. In the case of the letter to the Director of Social Services about Leslie Wilson and the boy, Arnold repeatedly asked to see the full text of the letter which he had written fifteen years previously. The police repeatedly refused to show it to him.

However, in the view of his solicitor John Hughes, who was present at the interview, Arnold’s account of how he had dealt with this incident confirmed beyond doubt that he had made no attempt to conceal evidence of sexual abuse. Arnold explained to the police that, after being found at Little Acton in Wilson’s flat, Gareth Bolton had been returned to Bryn Estyn. The boy was evidently disturbed and eventually told Arnold that during his time in the flat, Wilson had had sexual contact with him, and had buggered him. Arnold knew that it was important in such cases to attempt to obtain medical evidence without delay. Even though it was by now the middle of the night, he immediately took the boy to Wrexham police station. Here he was interviewed and a police surgeon was summoned in order to examine him. At some time after midnight Arnold took the boy back to Bryn Estyn.

From other sources it would appear that two days later, on 8 July, Wilson confessed to two colleagues that he had ‘slept’ with Bolton. This was reported, via senior social services officer Geoffrey Wyatt, to the police. On the same day two police officers visited Bryn Estyn in order to obtain a full statement from the boy. They interviewed him at length in the presence of Arnold and his wife and left after having taken a five-page statement. One of the passages from Arnold’s letter that was not quoted in the Tribunal opening makes it quite clear that the boy’s statement included explicit allegations of sexual abuse, detailing incidents that went back to January 1977. That same day, according to contemporary social service records, Wilson was arrested and charged with buggery (NWTT, pp. 9,481, 22,458).

It was on the following day, Saturday 9 July, that Arnold wrote his letter to the Director of Social Services. This simple fact is crucial to any appraisal of the letter and to any judgment about whether he was indeed attempting to suppress evidence of sexual abuse. The suggestion that he may have been is not only made implicitly in the opening statement. It was made explicitly by Timothy King QC during the Tribunal itself. King referred to it as ‘the disturbing letter from Mr Arnold, who patently does not want the matter to see the light of day if he can avoid it, the matter involving the boy Bolton and Mr Wilson, Les Wilson (NWTT, p. 22,457).

In reality Arnold had, by the time he wrote the letter, been almost entirely responsible for ensuring that the matter was brought to light and that a serious allegation of sexual abuse was placed in the hands of the police. During his conversations with the boy, however, it had emerged that there were a number of irregularities in the running of Little Acton. These were concerned mainly, as Arnold himself put it in his letter, with ‘laxity in supervision’ and were of a very serious nature. There was also a suggestion of financial dishonesty on the part of one member of staff. Arnold’s belief at this point was that he had a duty to his own employers to alert them to these various irregularities and to other shortcomings immediately. This was not in order that they should be covered up, but in order that they might be looked into internally in the first place rather than by a police investigation. If Arnold was concerned about the effect of damaging public criticism, this was presumably because he knew full well that any sensational revelations about bad practice in a particular home might, quite unjustly, be used by the press to blacken the reputation of conscientious staff in other homes including his own. Almost inevitably morale would suffer as a result. Perhaps more importantly still he was also concerned, as is evident from the passage quoted, that the children in care at Little Acton should be protected from the unsettling effects of the kind of wide-ranging police investigation which might now be launched.

In spite of the inference that was drawn in the Tribunal there could be no question of attempting to stop the boy giving detailed evidence, since by now the case was entirely in the hands of the police and the courts. In his letter Arnold was simply drawing the director’s attention to what might now happen.

He had in fact ended his letter by proposing that he meet the director in order to lay the full facts before him. Evidently embarrassed that he was informing on colleagues who appeared to be guilty of bad practice, yet feeling he had a duty to do so, he wrote:

Forgive my presumption in writing to you. I have a great deal of concern for our work and feel you should know as much as possible. There are other aspects which I am not prepared to commit to paper but I am available to you from Tuesday morning onwards. My sympathy in this fresh upset (NWTT, p. 22,330).

This crucial passage was not quoted in the opening statement. The phrase ‘aspects which I am not prepared to commit to paper’ would appear to refer to specific allegations against named individuals.

Arnold’s letter to the Director of Social Services was not without a sequel. The case of Leslie Wilson was finally dealt with on 22 December 1977 in Chester Crown Court. Wilson pleaded guilty to offences of indecent assault, gross indecency and attempted buggery, for which he was sentenced to15 months imprisonment. In January 1978, almost as soon as his case had been concluded, an investigation into Little Acton was launched under the supervision of the Director of Social Services. The investigative team of four included two homes inspectors and the social services group auditor from the Treasurer’s department. One of the results of this inquiry was that the officer-in-charge of Little Acton found himself facing nineteen allegations of bad practice. He eventually admitted eight of these. He was then relieved of his post and redeployed as a craft instructor in an adult training centre. His deputy faced similar disciplinary action and was seconded to Clwyd Voluntary Services. In the meantime a third member of staff had been arrested and had pleaded guilty to offences of theft, obtaining money by deception and falsification of records. Suspicions about her had in fact been reported to the police in June 1977 but Arnold was apparently unaware of this at the time he wrote his letter in July. Although it is reasonably clear that the disciplinary hearings involving the two senior officers were compromised and that serious allegations were dropped without good cause, the investigation itself was a searching one (see LiC, pp. 168-9).

Whether or not the concerns Arnold had expressed in his letter played a significant role in helping to bring about the investigation has not been established. This is in part because, although Arnold addressed the letter to the Director of Social Services, Emlyn Evans, and marked it for delivery ‘By hand’, the director himself, in his evidence to the Tribunal, claimed that he had never received it. His deputy at that time, Gledwyn Jones, also said that he had not seen the letter and had no knowledge of it.

As was pointed out during the Tribunal this testimony is remarkable, especially in view of the fact that a record survives of a meeting of a social services sub-committee held on 28 July 1997. This record makes it clear that Arnold’s letter had been received on Monday, 11 July and that the members of the sub-committee were aware of its contents (pp. 22458-9). According to his solicitor it was Arnold’s own recollection not only that the letter had been successfully delivered by hand, but also that the meeting with the director he proposed had in fact taken place.

These differing accounts cannot all be true. One possible explanation of how the conflict of testimony came into being may be provided by the manner in which Emlyn Evans and his deputy were notified by the Tribunal about some of the issues on which they would be cross-examined. It would appear that when they received their Salmon letters, the documentation which accompanied them contained not a copy of Arnold’s original letter but a copy of the paragraphs from the opening statement which referred to it. The two witnesses were, in other words, provided with exactly the same selective quotations originally presented by Mr Elias. They were also provided with what appeared to be the Tribunal’s own conclusion about the documents cited – namely that they contained evidence that Arnold was ‘prepared to act dishonestly to protect staff who may have been involved in . . . abuse.’

In the face of such misleading extracts any senior social work manager might be intimidated into saying that they had not received the documents in question, even if they knew full well that they had.

But it is not even necessary to postulate dishonesty in order to explain how witnesses might have come to believe that they had not received the letter about Leslie Wilson. The extracts presented in the opening statement portrayed Arnold, as has already been noted, as a devious and deceitful officer who was intent on concealing or covering up abuse. Since Arnold had never written any letter or memo which accorded with this view, the conclusion of the director and his deputy that they had no knowledge of such a document would have been sincere. Given that they were being asked to recollect what had happened twenty years ago, it would not be surprising if they used an entirely genuine reaction as a basis on which to construct a ‘memory’ of what had happened which was objectively false but subjectively true.

When they were eventually allowed sight of the full letter, immediately before they gave their Tribunal evidence, they could scarcely be expected to read Arnold’s words without prejudice. Nor, without access to the full context of the letter or to Arnold’s own account of what had happened, were they in a position to revise any conclusion they had previously come to, since by doing so they might unjustly incriminate themselves.

Whether or not these considerations provide the true explanation of their testimony, it seems highly likely that both Emlyn Evans and his deputy had read Arnold’s letter and not at all surprising that, after the passage of twenty years, they should deny having done so. Nor is it surprising that they should have felt obliged to agree with the suggestions made by Mr Elias that the letter smacked of a ‘cover-up’ or even that it contained suggestions that were ‘monstrous’ (p. 21,486).

If their testimony was in fact sincerely felt but objectively untruthful, it is not ultimately they who should bear responsibility for any inaccuracies it might contain. It is the Tribunal itself and, specifically, the authors of the opening statement. For once again, just as had happened in the case of the ‘swinging door’ memo, the full story which lay behind Arnold’s words, and which alone rendered them comprehensible, had been suppressed by selective quotation from a longer document and by removing this document from its true context. Once again the first people to make this particular selection were the North Wales Police, who quoted exactly the same passages from Arnold’s letter in their draft report of 1994 as subsequently appeared (complete with ellipsis) in the opening statement.

6 Arnold and the Tribunal

Although, at the time of Arnold’s arrest in 1992, the police recommended that he should be prosecuted for attempting to pervert the course of justice, their recommendation was rejected by the Crown Prosecution Service after written advice from counsel (NWTT, p. 26,874). This is clearly significant. In the first place it suggests that the lawyers involved recognised what should already be apparent – that the case against Arnold was both evidentially thin and unpersuasive. In the second place it suggests that, at one point at least, there must have been ample documentation of the case. Even if the tapes of Arnold’s police interview were no longer available, and even in the unlikely event that all documentation had been destroyed, there was still a witness to this interview in the person of John Hughes, a highly respected and responsible Wrexham solicitor who is also a district coroner.

Given all this, one of the larger mysteries that surrounds the Tribunal is why it appears to have made no attempt to unearth the relevant documentary evidence, or why, in its absence, none of its officers has ever made any attempt to enlist the help of Hughes in relation to this particular matter. The Tribunal certainly cannot invoke in its defence the notion that they had no grounds for suspecting that the relevant passages of the opening statement might be misleading. For this was pointed out to them shortly after the opening statement was delivered.

There are, it would seem, only two ways of elucidating the mystery of the missing evidence. Either the Tribunal team was grossly negligent in failing to track it down, or, having located this evidence, it did not draw on it because it was anxious to preserve a version of events which conflicted with it. In practice it was relatively easy to do this since Matt Arnold was dead and could not speak for himself.

He had also, as has been noted, been denied legal representation. When John Rayfield, of the Bryn Estyn Staff Support Team, had first raised the question of representation for deceased members of staff during one of the Tribunal’s preliminary meetings, the Chairman’s response had been brief and unequivocal: ‘I’m afraid there is nothing the Tribunal can do about it. We simply cannot grant representation to a deceased person …’

The grounds on which this decision was made, however, are by no means clear. It is true that, in civil law, it is not possible to libel the dead. But a tribunal of inquiry is not ultimately concerned either to defend or to impugn the reputation of individuals. Its task is to establish the truth and the representation granted as of right to those who are criticised is designed primarily to further this cause.

Criminal law provides no surer grounds for the Chairman’s ruling. Since criminal proceedings cannot be taken against a deceased defendant, this merely underlines the injustice of ‘trying’ a deceased person in a Tribunal without representation. Nor is it the case that the deceased can never be represented. In the Court of Appeal it is now possible for appeals to be launched posthumously. If the Home Secretary considers it to be in the public interest, legal aid can be granted in order to ensure adequate representation for the appellant. And in practice criminal courts frequently grant very powerful representation to the dead. The conventions of public prosecution mean that, in effect, most victims of crime are represented by the Crown. Alleged victims of murder are not denied such representation on the grounds that they are not in a position to instruct barristers about the manner in which they met their death.

The more carefully the grounds for the Chairman’s decision are examined, the more shaky they become. The implication of the terms in which Sir Ronald delivered his ruling was that the hands of the Tribunal had been bound: ‘I’m afraid there is nothing the Tribunal can do about it.’ Yet it is one of the cardinal principles of the law concerning Tribunals that the hands of those who administer them are never bound. The reply made by the government in 1973 to the recommendations of the Salmon Commission made this quite clear:

It follows from the prerequisite that Tribunals should be set up only sparingly and in very special circumstances that their subject matter is liable to be specialised and highly variable. The approach and procedure will, therefore, need to be adapted to the special character of the Inquiry. The need for maximum flexibility, and the desire to avoid any unnecessary delay which might be caused by alleged breaches of statutory Rules are accepted as strong reasons for not having statutory Rules of Procedure for Tribunals of Inquiry. The Government considers that, with the Report of the Royal Commission and this White Paper to guide them, Tribunals can be relied on to follow acceptable procedures without being bound by any rigid and detailed code of procedure.

This view is amplified by one of the more recent contributions to the debate about public inquiries – the recommendations about procedure that were contained in the report by Sir Richard Scott of his Inquiry into Exports of Defence Equipment to Iraq, which was published in 1996:

In re Pergamon Press Ltd Lord Denning, Master of the Rolls, said that ‘inspectors [in a DTI inquiry] can obtain information in any way they think best, but before they criticise or condemn a man, they must give him a fair opportunity for correcting or contradicting what was said against him’ and Lord Justice Sachs, in the same case, added ‘In the application of the concept of fair play there must be real flexibility, so that very different situations may be met without producing procedures unsuitable to the object in hand’ (K1.5).

The advice given in July 1996 by the Council on Tribunals to the Lord Chancellor in response to Sir Richard Scott’s recommendations echoed these points:

In their advice, the Council conclude that it is wholly impracticable to attempt to devise a single set of model rules or guidance that will provide for the constitution, procedure and powers of every inquiry. Instead the Council advise that such issues should be addressed by taking into account, for each inquiry, the objectives of effectiveness, fairness, speed and economy (p. 67).

One of the distinctive characteristics of the North Wales Tribunal was that it was dealing not with a recent or ongoing scandal, but with events (or alleged events) which went back twenty years or more. Given this fact an unusual number of potential witnesses were already dead and this in itself provided a powerful reason why the possibility of granting representation to at least some of them should have been considered.

It could of course be argued that representation of the deceased should be denied purely on grounds of cost. Such a consideration should not be dismissed out of hand. For the administration of justice ultimately depends upon prudent use of the resources that are provided by government. In view of this nobody could reasonably suggest that representation should have been granted to all deceased protagonists.

But the task of any Tribunal remains that of establishing the truth. If central figures are not represented simply because they are dead, this task is compromised. Indeed the argument for granting representation may be even more compelling in relation to the dead than to the living. For the fact that the deceased cannot give evidence in person may make it all the more necessary for their case to be put by others. If this does not happen in the case of key figures there is a grave danger that they may be turned into scapegoats and made to shoulder a burden of blame which is not theirs to bear. In short, if the principle of parsimony is allowed to triumph over the principle of fairness then justice itself suffers.

The general point argued here has been implicitly recognised by the Saville Inquiry, the second Tribunal of Inquiry into the events of Bloody Sunday. Here, of course, the main purpose of the Tribunal is to investigate the circumstances in which a number of people met their death. Many central protagonists in the drama, including some of the soldiers who opened fire on unarmed demonstrators, are now dead. In a number of cases, however, they (or their families) have been granted representation by the Tribunal.

In the case of the North Wales Tribunal there can be no doubt whatsoever that the first casualty of the decision not to grant Matt Arnold representation was the truth. This is so not only in the opening statement but also in the report itself.

Whether or not the authors of the opening statement had read the documents from which they quoted remains open to doubt for the reasons already given. There can be no doubt, however, that, the three members of the Tribunal, by the time they came to write their report, had read them and had therefore had an opportunity to place in context the quotations which had been extracted from them. It is perhaps for this reason that the tone of their discussion of these documents is more moderate than that adopted by Mr Elias in his opening.

Although the account given in the report of the incident involving Stephen Horton and John House omits many salient details, it is a great deal more balanced. The authors of the report still maintain that Arnold’s memo ‘makes disturbing reading’ but they also write, much more reasonably, that ‘we are anxious not to give undue prominence to this single incident’ They conclude that, as in one other incident, House ‘used excessive force . . . in provocative circumstances’ (LiC, 10.140-1, 10.146).

The account given of Arnold’s role in the case of Leslie Wilson is more problematic. Although it repairs some of the omissions in the opening statement it leaves the majority unaddressed. Having described Arnold’s role in raising concerns about Wilson’s visits to the boy, the authors of the report do at least concede that ‘Arnold did play a praiseworthy part in the unmasking of Leslie Wilson as a sexual abuser’. However, they appear to be unaware of the full role he played or of the nature of the information he had received about the regime at Little Acton. It is therefore not surprising that they should go on to suggest that the letter Arnold wrote on 9 July 1977 ‘throws a perturbing light on his general attitude to the disclosure of abuse’ (LiC, 29.54).

The real damage to Arnold’s reputation, however, had already been done in the opening statement. This inevitably created a climate of massive prejudice which affected not only the appraisal of Arnold himself but also the manner in which the entire body of evidence about Bryn Estyn was heard.

There can be no doubt at all that, in a number of instances, Matt Arnold’s manner of running Bryn Estyn was and is open to entirely legitimate criticisms, some of which are made in the Tribunal report itself. Perhaps the most important of these concerns the manner in which he delegated to others the task of investigating some complaints, with the result that not all of them were handled satisfactorily. But that, at a time when he was no longer alive to defend his own reputation, Arnold should have been submitted to a process of character-assassination carried out on the basis of half-truths and distortions in the opening statement of a Tribunal whose task was to uncover what really happened in North Wales, is a matter for grave disquiet.

Not only does the opening statement omit any mention of Arnold’s arrest and interview, but it went on to suggest by imputation that Arnold was aware, or may have had reason to suspect, that sexual abuse was taking place at Bryn Estyn and that he deliberately sought to suppress the evidence of this.

There are no grounds for accepting this imputation. Had any allegation ever been made about sexual abuse in Bryn Estyn, there is no reason to suppose that Arnold would have treated it with anything other than the utmost seriousness – just as he did in the case of Leslie Wilson.

7 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.’ 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, precisely 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. They have been effectively concealed not only from the report’s readers but from Parliament itself.

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 has, at a stroke, doubled the scale of the allegations which were made in the two counties.

8 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.

9 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 and 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 [**see below, link to Mark Humphries, Witness B and Gordon Anglesea**].

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.

10 The problem of delay

There were a number of other respects in which the Tribunal fell short of the standards of fairness which can be expected from a criminal trial. It is only with the publication of the Waterhouse Report that this has become fully apparent.

One problem concerns the manner in which the evidence of individual complainants was assessed. In Chapter 6 of their report the members of the Tribunal discuss some of the difficulties they faced. The passage in which they do so is a crucial one:

The nature and scope of the Tribunal’s inquiry have given rise to a number of special, but not unique, evidential problems. One obvious difficulty is that most of the witnesses have given evidence to us about events that occurred many years ago. Thus, the majority of the complainants of abuse are now in the age range of 25 to 35 years and gave evidence about events that occurred in the first half of their teens or earlier. Moreover, all but a few of them had not made any complaint of abuse before the major police investigation began in 1991 and some had not complained until later than that. In these circumstances any documentary or other supporting evidence of incidents to which they referred was likely to be difficult to trace and patchy at best. As for members of the care and teaching staffs at the children’s homes and social workers involved in the complainants’ care, against whom allegations of abuse or neglect have been made, they have had to reach back in their memories far in time and have been in equally obvious difficulty in seeking oral or documentary evidence to support what they have had to say (6.01).

The first point of note in this paragraph is that it appears to be based on a significant preconception. For when the members of the Tribunal write that ‘most of the witnesses have given evidence to us about events that occurred many years ago’ there is a clear presumption that the ‘events’ in question are real. What might be called the Tribunal’s ‘presumption of veracity’ is found throughout the report. Especially important here, however, is the Tribunal’s assessment of the difficulties faced by complainants and by those against whom allegations are made. The clear impression is given that both sides are equally handicapped by the long lapse of time between the alleged events and the complaints which were eventually made.

Here once again the fact that the members of the Tribunal are not bound by the laws of evidence which would apply to criminal trials works to the disadvantage of care workers and teachers who have been accused. For what the Tribunal was free to ignore is that the burden of proof in criminal trials does not fall equally on the prosecution and the defence.

In a criminal trial the defendant is not under any obligation to prove his or her innocence. But the prosecution is charged, if it is to succeed, with the duty of showing, beyond reasonable doubt, that an offence has been committed by the defendant. If, because of the lapse of time, the prosecution is unable to furnish evidence which might have substantiated its case, this is not any ground for shifting the burden of proof or diminishing the standard of proof which is required. Lapse of time between an alleged crime and a complaint may, because of the difficulties of obtaining evidence, provide good grounds for an acquittal, or, indeed, for not bringing the case in the first place. But it does not provide grounds for appealing to the jury to treat the prosecution case with considerate leniency and to convict in spite of the lack of evidence.

However, the occurrence of delay does place upon judges and juries in criminal cases an obligation to deal considerately with the difficulties posed to the defence. When an allegation refers to a period of time ten, twenty or thirty years ago, the evidence proffered by the prosecution may well be rendered almost unassailable for the simple reason that potential defence witnesses have died, records have been destroyed, alibis cannot be confirmed and inconsistencies and errors in the complainant’s evidence can be explained away as being due to the vagaries of memory. Simply because this is the case it is much easier to make false allegations in relation to remote periods of time. While it may well be true that a prosecution which rests on truthful allegations is disadvantaged by the fact of delay, the presumption of veracity should not be made when the effects of delay are being assessed. For it is also true that, where a case is brought on the basis of false allegations, the fiction of delay will almost invariably confer a positive advantage on the prosecution, one whose effects should not be underestimated.

In short, although both the prosecution and the defence may be handicapped by delay, the fact that the burden of proof does not fall equally upon them, taken together with the possibility that allegations may be false, means that any suggestion that each side labours under the same disadvantage is misleading. It is the defendant who stands to suffer most acutely from the prejudicial effects of delay, and unless the jury is warned that it must maintain unflinchingly the burden and the standard of proof even in the face of delay, these prejudicial effects may lead all too easily to miscarriages of justice.

Some, though not all, of these points were made in the Appeal Court ruling given in the case of Percival. Brian Percival, who had worked for some four years between 1966 and 1971 at Greystone Heath Approved School in Cheshire, was convicted in September 1997 and sentenced to seven years imprisonment. The case rested on evidence obtained by a police trawling operation from five former pupils of the school, who claimed that they had been abused by Percival some thirty years previously. These trawled allegations led to six counts of indecent assault and buggery and Percival was convicted on all of them. Brian Percival’s many friends and supporters, however, believed that he was a completely innocent man who had been wrongly convicted. In June 1998 his appeal was heard and all his convictions were quashed. The grounds on which the Appeal Court overturned his conviction were that the judge had given insufficient weight to evidence of Percival’s good character and, crucially, that he had failed to give adequate directions to the jury about the problem of delay.

The Appeal Court judges’ own summary of the argument advanced on this point by Percival’s counsel, Timothy Holroyde QC, was as follows:

His essential point is that the prejudice to the Appellant [caused by delay] could only be sufficiently mitigated so as to provide for a fair trial by according a proper appreciation to the burden and standard of proof, that is, by forcefully and even repetitively directing the jury’s attention to the Prosecution’s task of fulfilling the burden and standard notwithstanding the delay and its consequences . . . [Percival (1998) 18.6.98, CACD ].

This argument formed the basis of the Appeal Court’s own ruling. One point was given particular emphasis:

First, the judge at no stage drew the jury’s attention to the point we have sought to make in this judgment: that there was such potential prejudice to the Defendant by reason of the delay that the only real remedy was conscientious concern for the burden and standard of proof. Not only was there no connection made between the problem and its potential solution, but the judge sought to deal with delay by even-handedly drawing attention to its potential impact on the Crown evidence. We readily accept that there was a place in the summing up for a reminder that it was potentially unfair to the complainants to be censorious about failures to recall minutiae, but not so as to introduce the topic as a factor balancing and thus mitigating potential prejudice to the appellant: the direction, ‘those are the two sides of the coin’ wrongly equated the problems confronting both Crown and Defence. Each side did have its own problems but they were different in nature and importance.

The ruling concluded by noting that: ‘If long-delayed cases are to go before juries, judges have to have a prominent role in ensuring that any convictions reflect a full appreciation of the problem, delay, and the solution, the burden and standard of proof.’

Perhaps the most surprising feature of the discussion of delay in the Tribunal’s report is that, although its principal author, Sir Ronald Waterhouse, is a former High Court judge, the report fails utterly to recognise the complexity of the problem. Instead it attempts to resolve the difficulties by having recourse to just the kind of inappropriate even-handedness which was rejected by the Appeal Court judges in their ruling on Percival.

It is quite true that the Tribunal was not conducting a criminal trial and was therefore not bound by the same rules of evidence, or by the Percival precedent. But this is scarcely relevant. The principles enunciated so clearly in Percival are not mere legalities. They belong ultimately to the realm of common sense and natural justice. To ignore them simply because they are not binding is to imperil justice.

In the manner in which the report deals with the problem of delay we may once again glimpse the dangers of holding a series of criminal hearings without the safeguards of a trial.

11 Multiple allegations

Perhaps even more important than its unsatisfactory handling of the problem of delay, is the Tribunal’s 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’.

12 The standard of proof

In view of their consistent abandonment of the safeguards which apply to criminal trials it might be thought that the members of the Tribunal would advance their findings with a degree of caution. However, this is not the case. It is true that they acknowledge the arguments put forward by barristers representing some of those who were accused to the effect that they should not make any findings of fact at all:

At the conclusion of the hearings of evidence before us, Counsel on behalf of Salmon letter recipients (SLRs), ie those who are alleged to have committed acts of abuse against individual complainants, made a number of submissions to us about the nature of the findings that we should make and our approach to the evidence of abuse. In particular, it was submitted that we should not make any findings of fact implicating individuals in our report because the full evidence in relation to specific allegations that would be available at a criminal trial, including character evidence, has not been heard and because some allegations emerged very late in the proceedings so that the alleged abuser was at a disadvantage in dealing with them. It was pointed out that Anna Pauffley QC and Rachel Langdale represented more than 100 different SLRs so that attention to each individual’s case was inevitably restricted and it was suggested that, in any event, it was unnecessary to make findings against specific individuals in order to make final recommendations.

A further submission on behalf of the SLRs was that, before making any general finding about the level and nature of abuse in any particular home, the Tribunal needed to be sure about it and about any comment upon it. In support of this proposition Counsel cited the following passage from the report of the Royal Commission on Tribunals of Inquiry 1966, which appears in that report under the heading ‘Should there be an appeal from the findings of the Tribunal?’:

These Tribunals have no questions of law to decide. It is true that whether or not there is any evidence to support a finding is a question of law. Having regard, however, to the experience and high standing of the members appointed to these Tribunals and their natural reluctance to make any finding reflecting on any person unless it is established beyond doubt by the most cogent evidence, it seems highly unlikely that any such finding would ever be made without any evidence to support it (6.03-6.04).

In one of the most outspoken passages in the entire report, however, the members of the Tribunal completely dismiss these arguments:

It would be inappropriate for us to become involved in an argument about legal semantics and, in the end, these legal points made on behalf of the SLRs are of academic significance only because we are sure of the correctness of the findings of fact that we make in our report [italics added].

Having effectively proclaimed their own infallibility, the members of the Tribunal go on to suggest that in any case the standard of proof demanded is not that which would apply to criminal trials. This is because, in their judgment, ‘the proceedings before the Tribunal have been civil proceedings rather than criminal proceedings and the standard of proof to be applied is that applicable to the former.’

Their implicit argument would appear to be that, although they would have been justified in making findings of fact simply on the balance of probability standard – namely that ‘a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not’ – they have in practice exceeded this minimum evidential standard. Indeed their explicit claim of certainty goes even beyond the standard of proof in criminal trials – that the evidence should demonstrate guilt ‘beyond reasonable doubt’.

The criticisms which might be made of this position are two-fold. In the first place it is by no means clear that the civil standard of proof should apply to the Tribunal findings. For it might very reasonably be suggested that £15 million of public money was not spent on the Tribunal simply in order that it might establish what had probably happened. The Tribunal was clearly set up in order that it should conduct a rigorous inquiry. This was implicitly accepted by Counsel to the Tribunal when, in his opening statement, he said ‘the Tribunal and its investigating team will leave no stone unturned in its search for the truth’. To be informed subsequently by the members of the Tribunal team in the course of their report that a great many stones were not turned at all because it would have been expensive and impracticable is surprising to say the least.

Perhaps more importantly still there are sound legal reasons why the civil standard of proof should not have been applied to the Tribunal’s proceedings. These reasons, which are directly related to the problem of delay, are based on the fact that many, and perhaps the majority, of the abuse allegations made against careworkers at the Tribunal would not constitute a valid cause of action in a civil case in the United Kingdom.

This is because the House of Lords has determined that sexual and physical abuse is intentional trespass to the person – a form of assault. Cases involving trespass to the person cannot be brought in a civil court more than six years after the alleged events, or six years after the age of majority is reached. In practice this means that retrospective allegations of abuse cannot be brought in civil courts after the complainant has reached the age of 24 (Stubbings and Webb [1993] AC 498 (HL); s2 Limitation Act 1980).

[It should be noted that the time-limitation on civil cases that allege negligence against local authorities is in practice much