Theresa May’s Politically Driven Inquiry into Child Sexual Abuse is heading for disaster

The problem of who should chair the proposed inquiry into the handling of child sexual abuse by public bodies in past decades has, after some delay, been solved.

Many other problems remain.

Home Secretary Theresa May has announced that it is to be chaired by Fiona Woolf, the current Lord Mayor of London, assisted by Graham Wilmer MBE and Barbara Hearn OBE. Alexis Jay, the author of the recent inquiry into Rotherham Council is to act as an expert adviser to the panel.

The precise terms of reference have yet to be announced but the overall purpose of the inquiry, as set out by the Home Secretary is:

“To consider whether public bodies – and other non-state institutions – have taken seriously their duty of care to protect children from sexual abuse. “

The original choice to lead the inquiry was, as readers will remember, Lady Butler-Sloss, a highly respected, retired Appeal Court judge with huge experience of family law. On paper she was an ideal appointment. Unfortunately, she was also compromised because her own brother, former Attorney-General Michael Havers, had been accused by some of being involved in a “cover up” of high profile paedophiles, one of the very issues that the inquiry was being established to investigate. After a little consideration she realised that this put her in an impossible position:

“It has become apparent over the last few days … that there is a widespread perception, particularly among victim and survivor groups, that I am not the right person to chair the inquiry. It has also become clear to me that I did not sufficiently consider whether my background and the fact my brother had been attorney general would cause difficulties.”

Theresa May therefore needed to find a replacement.

The obvious choice would have been another senior judge. Precedents might have been Lord Scarman’s inquiry into the Brixton riots in 1981 Lord Woolf’s (as far as I know no relation of Fiona’s) inquiry into the 1990 Strangeways Prison riots, or Sir William MacPherson’s inquiry into the murder of Stephen Lawrence. An obvious candidate might have been Lady Justice Hallett, whose handling of the 7/7 inquests was widely thought to have been exemplary.

Nevertheless, by no means all major inquiries have been chaired by judges. The impressive inquiry into the 1988 Kings Cross Fire, for example was admirably chaired by a senior Queen’s Counsel, Desmond Fennell. There have been calls for the left-wing firebrand Michael Mansfield QC to be given the task of investigating child abuse, although for all his undoubted advocacy skills he would have been an astonishing and divisive appointment.

In the absence of a Senior Judge or Queen’s Counsel the next obvious place to look would have been amongst the ranks of the Crown Court judges. There are hundreds to chose from, many have considerable experience of sexual offences from their days in practice and many have what are colloquially and rather awkwardly called “sex tickets,” because their special training and expertise qualifies them to try allegations of a sexual nature. It is always invidious to single out individuals because that might imply that others would not have been equally well-qualified, but two prime candidates could have been Peter Rook QC, a highly experienced Old Bailey judge and co-author of the magisterial Rook and Ward on Sexual Offences (affectionately known to practitioners as “Rookie on Nookie”), or Susan Evans QC, a Bristol judge and former barrister from my own Pump Court Chambers who made her reputation at the bar both prosecuting and defending child abuse cases across the South of England.

No doubt Ms May also looked at the family judges, many of whom, like their Crown Court colleagues, are well used to dealing with allegations of sexual abuse.

Instead the task has been given to someone who absolutely nobody expected. The Chairman (and yes, Theresa May does call her the Chairman) of the Inquiry is to be 66 year old solicitor Fiona Woolf, currently Lord Mayor of London.

The Lord Mayor of London

Ms Woolf is very obviously a highly effective and intelligent lawyer.

It has been said that she is too close to Leon Brittan for comfort. (Brittan was recently interviewed, and released without charge, over allegations that he raped a 19 year old in 1967). Time will tell, although a passing acquiantanceship and joint participation in City of London marketing events might not be an insuperable problem.

She has been a partner at a city law firm and (according to the firm’s website) she “has been at the cutting edge of all the major reforms in the electricity sector for over 20 years.” What is more, in recent times, as well as performing the ceremonial functions that go with being a successor to Dick Whittington she has been “focusing on large regional infrastructure projects and trading arrangements and regulatory regimes to attract investment.” Her specialist legal knowledge seems pretty much beside the point. It is unlikely that expertise on cutting edge electricity reforms will take her very far and as for large scale regional infrastructure projects: it is safe to say that they will not feature at all.

 

The one obvious qualification that might help her is that she is a Justice of the Peace; in other words a magistrate. She is likely to find that chairing a high profile public inquiry presents rather more problems than handing out fines to drunks and totting up the penalty points of speeding motorists.

Nevertheless one hopes that her legal skills will stand her in good stead in the mammoth task that lies ahead. Legal skills are, as unemployed lawyers are often told, “transferrable”.

She will need to transfer those skills pretty quickly.

Her first problem is to decide what sort of inquiry she is going to chair.

Statutory or non-statutory inquiry?

There are two options. She can continue with an ad-hoc “non-statutory” inquiry, or she can convert it into a “statutory” inquiry. This may sound like an unimportant technicality. In reality it is hugely significant.

At present the inquiry is “non-statutory”. This means that it has precious few powers. It cannot compel the attendance of witnesses, or require documents to be produced. Any oral evidence given to it will not be under oath, meaning that those giving it will not be guilty of perjury if they lie. Co-operation with the inquiry will depend upon Ms Woolf’s powers of persuasion. It will be a toothless tiger.

The alternative is a “statutory” inquiry under the Inquiries Act 2005. Such an inquiry can summon witnesses and documents. Evidence can be given on oath and unwilling witnesses forced to attend. Anyone who tried to interfere with it by suppressing or concealing evidence would be guilty of an offence. In effect a statutory inquiry would have the powers of a court of law.

What caused Ms May to establish the inquiry were lurid claims of a Westminster paedophile ring and the widespread “cover up”, or at the very least toleration, of child abuse by government, the Churches and other institutions. Presumably, if there is or was such a paedophile ring (or rings) it would do all in its power to suppress evidence and frustrate Ms Woolf. She could not begin to penetrate its inner sanctum without the full powers of a statutory inquiry.

The Hillsborough Precedent

The non-statutory model Theresa May said she had in mind when announcing the inquiry was that of the Independent Panel into the Hillsborough stadium disaster.

It would be hard to think of a worse precedent for Ms Woolf to follow. The Hillsborough Panel, led by the Bishop of Liverpool, heard no witnesses or contested evidence. Instead, its remit was to oversee and manage “full public disclosure of relevant government and local information” and to catalogue and report on the disclosed documentation. Although the terms of reference of the inquiry required it to consult with bereaved families it was not required to consult with other interested parties and, in particular, not with the police. It performed a useful task – not least in managing the disclosure of a vast amount of documentation – but it was not fair.

The Bishop produced a report without any of the safeguards normally regarded as essential if individuals or institutions are to be criticised. Fairness and natural justice demand that if such people or institutions are likely to face criticism they should be legally represented and should be able to challenge witnesses by cross-examination. They should be able to make and answer arguments. It is a basic rule of law of all civilised legal systems, expressed in the maxim familiar to all law students “audi alterem partem,” that a judge should not decide a case without hearing both sides of the argument. It is a rule that the Hillsborough Panel ignored and it has set an appalling precedent.

If Woolf is ever going to get anywhere near the truth, and to do so fairly, she must forget all about the Hillsborough Panel and immediately convert the Child Abuse Inquiry into a statutory inquiry.

Fortunately, it seems that Theresa May appreciates the problem. As she said:

“… if the inquiry panel chairman deems it necessary the government is prepared to convert it into a full public inquiry in line with the Inquiries Act.”

But this brings us to another problem that Ms Woolf faces: the composition of the panel.

 

Bias of panel members

Under the Inquiries Act provision is made for two separate types of people to be appointed to assist the Chairman. The first are “panel members” appointed under S.4. The second are “assessors” appointed under S.11. Panel members, unlike assessors are expressly required to act judicially and impartially. Indeed S.9 of the Act provides:

1. The Minister must not appoint a person as a member of the inquiry panel if it appears to the Minister that the person has—

(a) a direct interest in the matters to which the inquiry relates, or

(b) a close association with an interested party,

unless, despite the person’s interest or association, his appointment could not reasonably be regarded as affecting the impartiality of the inquiry panel.

Assessors, on the other hand are appointed in order to provide “expertise” to the inquiry panel and are not required by statute to be impartial, although self-evidently if they appear to be biased there may be serious problems.

Because the Child Abuse Inquiry is, for the time being anyway, a non-statutory inquiry the role of the panel members other than the Chairman is, like so much else about it, a little unclear. However, following the model of the Hillsborough Panel it would seem that its members – herself, Mr Wilmer and Ms Hearn – are intended to sit as equal members of the tribunal, equivalent to “panel members” on a statutory tribunal (whereas Alexis Jay is more in the nature of an “assessor”: somebody who will not have a direct role in writing any final report, but who will provide the panel with the expert assistance that it needs to evaluate the evidence).

But there is a serious problem here. One of the panel members, Graham Wilmer, is a completely inappropriate appointment as the panel member of a non-statutory inquiry, and would probably be an illegal one should Ms Woolf wish to convert it to a statutory one.

He was the victim of serious sexual abuse when he was a child. That, of course, does not disqualify him. Indeed in some ways it might be an advantage for the inquiry to have on its panel someone with first-hand knowledge of being a victim.

But matters are not so simple. Many years later Mr Wilmer complained to the police about his abuser, a teacher at his church-run boarding school and the teacher was prosecuted and acquitted. Subsequently, it seems, the teacher accepted that he was in fact guilty, while claiming not to remember much of what happened.

Now Mr Wilmer, for pretty obvious reasons, feels that the Church and the legal system let him down badly. He has produced an excellent website devoted to his case. He has written a book about it – it is due out next month – the purpose of which is, in his words:

“to help expose the catastrophic shortcomings of the United Kingdom’s government, the Churches, religious institutions and our criminal justice system, as they attempt to deal with the scale and consequences of sexual abuse in our country.”

There is absolutely no reason, of course, why Mr Wilmer should not have written his book and campaigned against institutionalised child abuse. The problem is that he has been selected to sit in a judicial capacity to consider

“whether public bodies – and other non-state institutions – have taken seriously their duty of care to protect children from sexual abuse.” (My emphasis)

Mr Wilmer has already made up his mind that they have not taken their duty seriously. He has being saying just that, very effectively, for years. It is hardly fair for him to sit on the panel when he has publicly campaigned for one particular answer to the very question that the panel is supposed to answer impartially.

Even if Mr Wilmer made every effort to approach his appointment with an entirely open mind his earlier public statements ought to have disqualified him from appointment to this role. Unfortunately, since his appointment was announced he has done nothing to dispel the concern that he will see his presence on the panel as part of his campaign.

He should be acting as a judge, not the advocate for a pressure group.

It is rather as though Ms Woolf was chairing a bench of magistrates, one of whom had a website devoted to exposing the defendant’s wickedness, and a forthcoming book explaining in great detail why he should be sentenced to a lengthy gaol term.

His campaigning activities would disqualify Mr Wilmer as a member of a statutory inquiry under S.9 (1) because he has “a direct interest in the matters to which the inquiry relates.” He wants to see public institutions in general and his old school in particular, held to account for failing to protect him when he was a child.

There are, of course, other possible narratives. Some might argue that while there have been individual instances of public institutions failing in their duty to protect children, in the main they have done so effectively and responsibly. Others might question whether every measure taken in the name of dealing with paedophilia – such as the ubiquitous CRB checks for every post in which someone might conceivably come into contact with children – are either effective or desirable. Some might feel that there is a danger of mass hysteria leading to innocent men and women being falsely accused.

An inquiry into sexual abuse is a highly emotive and dangerous thing. If it shines light into dark places it is to be welcomed. If it blunders about, ignoring the rules of natural justice it will draw the wrong conclusions and risk doing terrible harm to the innocent.

An example of just such an inquiry was that held by Newcastle City Council into allegations that a “paedophile ring” was operating in one of its nursery schools during the 1990s. Two alleged perpetrators, nursery nurses Christopher Lillie and Dawn Reid, were tried in the Crown Court and acquitted. The City Council, however, was not convinced of their innocence and set up an inquiry under Professor Richard Barker, a social work expert. The inquiry ignored most of the rules of natural justice and produced a report which pronounced them guilty of the abuse of which they had been acquitted, and of a great deal more besides. The report was published to great fanfare in the press, branding Lillie and Reid as the depraved organisers of a paedophile and pornography ring.

The Daily Mail, for example, pulled no punches:

“THERE are no words adequate to describe the perverted creatures who inflicted such horrors on tiny children at that Nursery in Newcastle. Some depths of human depravity simply defy belief.

Here was an environment where babies and toddlers should have been safe and secure, a place where trained staff would care for them with warmth and love. Instead the children were delivered into the hands of sexual predators who systematically abused them in a manner which numbs the imagination.

Two members of staff, Christopher Lillie and Dawn Reed, made it a practice to take toddlers -–some of them less than two years old – out of the Nursery on the flimsiest pretexts and deliver them to convenient locations around the city, where they were abused and filmed for the pornographic pleasure of paedophiles.

As we report elsewhere the children lived in uncomprehending terror at what was happening to them. Even today, some five years after Lillie and Reed were charged, many of the children and their shattered parents need continued therapeutic support.

… take the way Lillie got his appointment.

References and police checks were not adequately taken up. He was unqualified. He had himself been through an unsettled childhood and home life. He spent years in care. The Report says that ‘his experiences were such that he should never have been allowed to work with children’…”

Yet it was all utter rubbish. Lillie and Reid were not paedophiles at all. They had not abused children. They were ordinary people doing their job, caught up in what was later described by Mr Justice Eady as a “feeding frenzy” of cross-fertilisation of spurious allegations.

In order to clear their names they had to bring a libel case (and were fortunate enough to find lawyers willing to take their case on a “no win no fee” basis). They succeeded in winning the maximum possible sum in damages against the Council, the judge concluding both that they had not abused children and that the Council Inquiry was grotesquely unfair. According to Eady J, the four members of Prof Barker’s panel:

“Consciously, after a detailed consideration of the material assembled before them, set out to misrepresent the state of the evidence available to support their joint belief that Mr Lillie and Miss Reed and other local residents were child abusers (and indeed abusers on a massive scale) and to give readers the impression that statements by parents and/or children had been corroborated by police inquiries.”

(As a footnote, Professor Barker remained at Northumbria University for many years, but has now moved on to The College of Social Work – “The Voice of Social Work in England” – where he was last heard of helping to develop a code of ethics for social workers).

It is a cliché of public inquiries that “lessons” are always “learnt;” It is the experience of the real world that they hardly ever are.

Theresa May’s ill considered, politically driven inquiry into Child Sexual Abuse is heading for disaster. Its task is Herculean – far greater in scope and ambition than any other public inquiry that has ever been held. Yet it is to be led by an inexperienced Chairman, it is unclear what powers it will have, its terms of reference have not yet been decided and it contains on its panel someone who has already very publicly decided what conclusion it must reach. At best it is a recipe for a shambles. At worst it has the makings of a kangaroo court administering injustice on a vast scale.

No wonder the Home Secretary has arranged for it not to report until after the election.