Professor Jay was brave but wrong to agree to chair the child abuse inquiry

I hate to be Cassandra yet again, but Amber Rudd has made the wrong decision in appointing Alexis Jay as the new Chairman (and like it or not, “Chairman” is the word used in the Inquiries Act 2005 under which she has been appointed) of the “independent inquiry into child sexual abuse” (“IICSA”); and Professor Jay was wrong to accept the appointment.

This is not, as some have suggested, because a social worker like Professor Jay is in some way compromised when the Inquiry examines the conduct of other social workers. She has in fact been an inspector of social work since 2005, criticism of other social workers has been her business for some time and she is well qualified to comment on social work failings should she come across any.

Nor is it because of any personal failings. Many of those who have worked with Prof Jay speak highly of her, and her report into sexual exploitation in Rotherham between 1997 and 2013 has been widely praised.

That said, the Rotherham report has not entirely escaped censure, in particular from the solicitor Chris Saltrese,1 who has criticised at least 3 aspects of it:

      1. The “obscure methodology” for estimating the number of potential victims;
      2. The presumption that all allegations were “true even though the vast majority had not been subject to police investigation” and
      3. The creation of a climate of prejudice that might encourage false allegations for monetary gain. 

The first observation is well founded. Anyone wanting to understand how the “conservative estimate” of “1400 victims” was arrived at will not be able to do so from paragraphs 4.3 – 4.7 of the report, where Professor Jay discusses how she worked it out. It includes this:

“To help reach an overall estimate of the problem, we used reports to the Local Safeguarding Children Board (formerly the ACPC) and Council committees. We examined minutes of the Sexual Exploitation Forum and minutes of independently chaired Strategy meetings where individual children were discussed. These included inter-agency discussions about hundreds of children who had suffered, or were at serious risk of sexual exploitation. We also had access to lists, and sometimes summary descriptions, of many hundreds of children who were supported by Risky Business [a voluntary organisation working with young people that Jay went out of her way to commend], individually or in group sessions.

If Jay had given the answer “1,400” in a Maths test any half-decent teacher would be bound to put a red line through it and demand that she show her working. “Inter-agency discussions” have their place of course, but nowhere in the report are there more than a few hints as to the numbers that were used to calculate the final figure.

It is also true that there is no acknowledgement in the report that any allegation of abuse could have been false. It might have been better if there had been, and it is true that the report cites a number of disturbing anonymised “case studies” of abuse, most of which were never tested in court. On the other hand, Professor Jay’s remit was not to rule on individual allegations but to report on whether Rotherham Council and others had adequately protected children generally from the risk of sexual exploitation. She was asked to concentrate on the wood and it was probably inevitable that the individual trees would be overlooked.

But whatever the merits or defects of the Rotherham inquiry, the fact is that it was an entirely different beast from the IICSA. It relied upon reading council “case files,” reviewing earlier reports into child sexual exploitation in Rotherham, and interviewing a large number of current and former council officers and employees and representatives of local “agencies,” as well as young people themselves. Such a procedure has much to commend it (not least its speed), but the IICSA, a statutory inquiry under the provisions of the Inquiries Act 2005, is not the same sort of inquiry at all. Although there are various strands – including the so-called “truth project” in which anonymised unchallenged evidence will be collected and reviewed – and although no doubt the Inquiry will generate vast quantities of written material, (it has collected around 35,000 documents when last counted, and heaven knows how long some of those documents are), at its centre will be the public examination and cross-examination of witnesses.

Although the procedure at an inquiry is supposed to be “inquisitorial” rather than adversarial, and although it will be broken down into numerous different sections, there will still be a multitude of different parties all clamouring to influence the content of her final report. Anyone tempted to imagine that an “inquisitorial” procedure is automatically conducted in a less bruising and antagonistic way than an adversarial one need only look at reports of the Hillsborough Inquest to be disabused.

In fact the procedure is not so very different from that of a court hearing a complex, multi-party case. Witnesses will be examined – and in some circumstances cross-examined – by counsel to the Inquiry before being cross-examined by other parties. In fact, the question of whether to allow cross-examination of any particular witness, and if so how much, and perhaps even in some cases even which specific questions can be asked, will be for the Chairman to decide.

At present there are at least 188 (although there could yet be more) “core participants” who have, amongst other things, rights to:

(a) be provided with electronic disclosure of evidence, subject to any restrictions made under S.19 of the Inquiries Act 2005;

(b) be able to make opening and closing statements at any hearing;

(c) suggest lines of questioning to be pursued by Counsel to the Inquiry;

(d) be able to apply to the Inquiry Panel to ask questions of witnesses during a hearing.

This is not an area in which Professor Jay appears to have much experience. Certainly there were no “core participants” in her Rotherham Inquiry, nor was there any cross-examination, nor was anyone legally represented.

How will she deal with the situation in which, say, an institution wishes to make the case that a core-participant complainant or survivor is lying or exaggerating for financial gain? Counsel for the complainant might submit that cross-examination is unnecessary and should not be permitted, or should be heavily restricted. Counsel for the institution would claim that it is unfair, and perhaps even unlawful, to restrict it. “Common sense” does not supply the answers to such dilemmas; one person’s common-sense is another’s flagrant injustice. If she gets the answers wrong there is always the possibility of an aggrieved party seeking to judicially review her decision.

It helps that she is not alone, and not without legal assistance. In fact all her fellow panel members are lawyers: Ivor Frank, is a practising barrister, Professor Sir Malcolm Evans, is a highly respected legal academic (although there is no obvious use for his particular specialism of the law of the sea), and the fourth member, Drusilla Sharpling is a barrister and former Chief Crown Prosecutor for London. Counsel to the Inquiry, Ben Emmerson QC, is an immensely respected barrister, and he is supported by a team of other lawyers.

All this legal back-up is just as well, but it may not be enough. For a start, if Professor Jay has to consult with her panel members on all questions of law, that will slow down the speed at which the inquiry can move. And although the panel members are distinguished in their own right, none of them as far as I know has any actual judging experience. None has yet been awarded the rank of Queen’s Counsel and, with the possible exception of Ivor Frank, it seems unlikely they have had much experience of public inquiries.

So given its lack of relevant experience, we can probably expect the Panel to lean pretty heavily on the indisputable Rolls Royce expertise of Ben Emmerson. They are lucky to have him, but again there could be problems. Even with his supporting legal team, the strain of the inquiry on Mr Emmerson was going to be immense even when the Panel was to be chaired by a professional judge. If his duties are now to be extended to advising the panel on the day to day legal problems, that will only add to it. He is not superhuman and there is only so much work that he can do before either its quality suffers or the strain starts to tell. Moreover, some of the most difficult issues are likely to arise when the QC of a core participant disagrees with Mr Emmerson. Professor Jay will then be asked to adjudicate, without any comparable legal expertise of her own to call upon.

There is another potential problem: relying too heavily on either the legally qualified panel members or counsel to the Inquiry could itself lead the Professor into dangerous territory. The law – principally the Inquiries Act 2005 and the Inquiries Rules 2006 – make it quite clear that decisions of procedure are for the “chairman” of the inquiry to make, not her counsel, and not the Panel as a whole.

Perhaps the knottiest immediate problem that she faces will be how to deal with the proposed investigation into the alleged crimes of Lord Janner. The terms of reference for the Inquiry are:

To consider the extent to which State and non-State institutions have failed in their duty of care to protect children from sexual abuse and exploitation; to consider the extent to which those failings have since been addressed; to identify further action needed to address any failings identified; to consider the steps which it is necessary for State and non-State institutions to take in order to protect children from such abuse in future; and to publish a report with recommendations.”

There are 13 investigations (or “investigation modules” as they have been named) planned into, for example, the Anglican Church, the Catholic Church, Lambeth Council, and so on.

Although it is not the function of the inquiry to determine criminal or civil liability, the law and the terms of reference both make it clear that

this should not, however, inhibit the Inquiry from reaching findings of fact relevant to its terms of reference.”

This could mean, simply, that if while investigating the failings of institutions, where strong evidence is found against individuals the inquiry will not need to fear the making of findings of fact implicating those individuals.

However, one of the 13 planned investigations, and in fact the first scheduled to hear public evidence according to the decision of the little-lamented Lowell Goddard, is not into an institution at all, but directly into the allegations against Lord Janner; or rather, as Counsel to the Inquiry carefully put it last month into allegations of child sexual abuse involving the late Lord Janner and the institutional responses to those allegations.” There is something awkward about this form of words, as though the round peg of an investigation into Lord Janner were being forced into the square hole of an inquiry into institutions. Investigating an individual would fall outside the Inquiry’s terms of reference, hence the reference to the “institutional responses to those allegations.” The institutions in question are presumably the Police and Crown Prosecution Service which decided against prosecution many years ago, and perhaps the Leicester children’s homes which many years ago allowed him to visit. Yet some of the allegations against Lord Janner were not made until very recently, long after he ceased to be any conceivable threat to children (if in fact he ever was). Is the Inquiry to hear the “new” evidence which is relevant to his guilt or innocence, but can be of no relevance to these “institutional responses”? Presumably it will, because in an investigation into Lord Janner it would be absurd to ignore it. But in doing so it will risk stepping well outside its own terms of reference.

Already there are suggestions that the Janner family may be intending to take legal action to prevent the Inquiry singling him out in this way. It certainly does not weaken their case that the investigation is now to be chaired not by a High Court Judge but by a legally unqualified Professor of Social Work.

Professor Jay has shown great courage in accepting the hospital-pass of this Inquiry but the Home Secretary would have been better advised to use Goddard’s resignation as a reason to wind the whole thing up and start again with a clean sheet. I fear the Professor has bitten off more than she can chew.

 

 

1In the interests of transparency I should mention that he is a solicitor who has occasionally instructed me.

Liked it? Take a second to support Matthew on Patreon!

Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

25 thoughts on “Professor Jay was brave but wrong to agree to chair the child abuse inquiry”

  1. Being a nice man, you describe Ms Jay as ‘brave’ Matthew. Being a, not so nice, anonymous rabbit, I call her stupid. She will live to regret it, and so will the rest of us ! Every person of integrity, should speak up and say, “Enough” !

  2. Doesn’t this go to show that the original appointment of Dame Butler -Sloss, was the correct one,or scrap the thing entirely.

      1. Fair enough, however the victims are not going to be satisfied with anybody, they didn’t want her as she was part of the “establishment”,well,quite frankly ,anybody in that position is.
        I agree with Charles Moore,in the Daily Telegraph ,that the whole thing should be scrapped.

      2. I do not know Dame Butler Sloss personally,I cannot comment. However,now the enquiry is chaired by a social worker. I have experienced social workers work personally. Without exception social workers ignored facts as a matter of course. For example,i was described as a woman who was atheist when i am a man and a catholic. Therefore,I hope Professor Jay is extremely exceptional,if there is any good to come out of this important enquiry.

        1. The REAL point is that not only was “Baroness Jay” a social worker, but she is also the daughter of a former Prime Minister. Based on the fact that other females chairing the “Inquiry” resigned because they were Establishment figures, how does “Baroness Jay” qualify as Chair?

  3. No one is right for the inquiry: it comes too close to “investigate the last few decades of British history and see if you can identify all the wrong ‘uns”. Too much even for M. Poirot, Miss Marple, and Mr. Holmes together.

  4. Problem for Professor Jay as I see it is that she has the moral Calvinistic certainty of invincibility coupled with a lack, or complete absence of, intellectual curiosity. Having been given a clear run to date in the extra-judicial field, her halo may have a limited half-life in the bullpit of legal excoriation. Not a pretty picture.

  5. The problem with the Jay report is the uncertainty over the 1400 figure of girls who were abused.
    This year there were 4915 referrals to Rotherham Children’s Services with a 35% re-referral rate) . The Jay Report accepts that 2% of referrals are for Child Sexual Abuse. Now I haven’t got the figures for every year so I’ll have to extrapolate from these. But this gives: 4915×0.65×17=54311 for total referrals. 2% of this is 1086×0.65 (assuming same rate of re-referral)=706. These are really approximate figures but they would kind of imply that rates of CSE for the 17 years cannot be 1400 unless the overall average rate of referral over 17 years was double the current one. In addition every single referral would have to be a clear case of actual sexual exploitation. So every suspicion reported by teacher, youth worker or parent about a girl would have to be an actual case of abuse. I am not sure this is likely.

  6. I don’t dispute the points you make and ideally the whole thing should be scrapped I feel, but I have recently read Jayne Senior’s book (Broken and Betrayed) – she was the whistleblower at Rotherham and Jay comes out of that very well, at a time when the police and social services were lying their heads off.

    1. Well yes, she would have agreed with Prof Jay because Prof Jay accepted the representations of Risky Business, of which Jayne I think was a part, pretty much in entirety. The question which the Saltrese paper poses is whether that was a correct view. Certainly I think that the 1400 figure guesstimated by Jay wasn’t just ‘flaky’ but has poisoned the debate about CSE. It is now widely reported as evidence, and in particular as evidence of very serious and widespread abuse by Pakistani origin men in the Rotherham area. The utmost rigour in analysing data should have been applied before putting it forward, and all I can say is that the report doesn’t show clearly that this occurred. This alone would make me wonder if Jay is not a very dangerous choice.

  7. “Having been given a clear run to date in the extra-judicial field, her halo may have a limited half-life in the bullpit of legal excoriation. Not a pretty picture.”

    No, but an amazing mixed metaphor.

    The problem is that the self-styled “victims” are being given a veto on the appointment of the Chairman and, it is to be feared, on every aspect of the proceedings. The point will come when counsel for some accused institution or body wants to ask a complainant a question which suggests that that complainant is not entitled to immediate, implicit, and limitless belief and something soft and smelly is going to hit the air-conditioning.

    1. This could start a trend. Will accused persons or plaintiffs, defendants and complainants be soon demanding their choice or right of veto of a judge, jury or prosecutor.

  8. One reason why this appointment has been made was the general lack of critical analysis of the Rotherham report at the time it came out from commentators in the mainstream media. And presumably on legal forums. I think anyone reading it with a critical eye should have had some questions about how the 1400 figure was arrived at, and what relation it bore to the case files sampled by Jay and her team. And even whether adding additional police cases and referrals during the investigation skewed the analysis of abuse cases over the period reviewed.

    I’m afraid the reporting was influenced by the public mood at the time, and it would have been a brave writer who would have questioned any part of Prof Jay’s conclusions.

    Curiously my interest in her process was reawakened by a laudatory profile of her in the Guardian last year. She dismissed the disgraced ex Leader of Rotherham Council’s claim that she had overstated the extent of CSE by saying that he should have read the 900 odd case files relating to CSE that had been referred to her. This struck me as odd, as one thing I did know from her report was that she and her team hadn’t read them all, either. Of course, she may have been misreported,

    It’s worth remembering that the Director of Social Services at Rotherham was forced to resign. essentially for not recognising Jay’s assessment of the levels of certain types of abuse: the report acknowledged that in other respects the Director had done a reasonable job. I don’t suppose this will have gone unnoticed by those representing individuals called to give evidence to Prof Jay and her panel.

    1. Interesting how the sceptical mind is alerted Suffolkgirl!

      I should say I work with Chris Saltrese and was the author of the critique. It was forwarded to the media but there was no discernible coverage although I am told that Louise Casey was provided with it and it appears to have informed her defensive supporting review, though it is not clear to me that she addressed the key weaknesses with any compelling clarity.

      There was another article in Inside Time last year about the broader picture http://www.insidetime.org/from-oxford-to-rotherham-and-beyond-what-is-the-truth-about-the-grooming-gangs/
      which was also ignored.

      Rotherham council, under huge media pressure at the time of the report, accepted its findings before reading it. Louise Casey seized on subsequent criticisms as being indicative of ‘bad faith’ so they were doubly knuckle-rapped.

      The whole field of ‘grooming’ – not a zero-crime zone – is highly question-begging as presented. For instance, the original Bullfinch case in Oxford was compiled by trawling police and social services files for complaints and reports, arresting suspects and only then going to potential victims to make complaints. https://www.theguardian.com/uk/2013/may/14/oxford-child-sex-ring-police-investigation
      “It was then that Morton went to the string of victims he had identified through meticulous research and investigation. “We told them we had 13 men in custody, we believed they are sexually exploiting girls and we think you are one of them.” 80% of the victims spoke to police. By the time the case came to court six victims were prepared to give evidence.”

      The problem is that the groups primarily targeted in the investigations -Pakistani And other Muslims are not represented by bien pensant or false acc supporters on the whole. True it is that terrorist offences , fears and restrictions, modes of dress and religious freedom are given space by Guardianistas but alleged child sex offences receive short shrift. Meanwhile representatives of Muslim communities tend to keep their heads down and are often no more wise to what may be true or false than the rest of us.

      This is a classic ‘divide and rule’ stance by the sexual abuse investigation industry – either by accident or design. It happened after Cleveland and satanic ritual abuse when parents were falsely accused by social workers. Historical allegations about staff at children’s homes -‘organised abuse’ and the police trawls were met with thinly disguised schadenfreude – it was the social workers abusing, not parents!

      In fact the group targeted – residential care workers and teachers – had little in common with the field social workers in child protection investigations – and they were indeed more like parents and foster carers – some falsely accused – than the new wave field social workers who may have had little or no training experience of working with children on a daily basis.
      But such were the media presumptions that not only were defendants unfairly prejudiced by association, but employers -local authorities, voluntary organisations – immediately capitulated in supporting the prosecution.

      The appointment of Professor Jay to chairing the beleaguered IICSA inquiry has allowed for some belated assessment of the ‘grooming’ presumptions. Hats off to Matthew yet again!

  9. I had a heated discussion – another one – with ‘professional yeasayer’ Owen over here:

    http://annaraccoon.com/2016/08/12/popinjays/#comment-18205726434449874

    Other than the mysterious figure of 1400 the very definition of CSE seems to cast such a wide net that it’s all but useless; who would classify ‘rape, beatings & witness intimidation’ as ‘exploitation’ anyway, especially when ‘exploitation’ can refer to some youngster being enticed into sending a naughty pic… by another youngster?

    The media failed miserably to question the figure or what it represented & it seems to be firmly embedded in the collective consciousness; the aforementioned commentator Owen wrongly claimed that Jay labelled them as “1400 victims of crimes constituting serious injury and harm” but then The Times referred to them as girls who “were abused [not ‘exploited’]” so it’s understandable in a way.

  10. And Janner’s relations are right to insist that the litigation against his estate goes ahead before Professor Jay considers the allegations about him. In the trial of those allegations there will be no nonsense about cross-examination of the complainants being allowed “sparingly” – the common law will apply and if they don’t like it they can discontinue – and pay the costs.

  11. Matthew, I ask that you visit http://www.LambethChildAbuse.org and leave a comment.

    It is noticeable from your website that you appear to be reluctant to comment on the local council officials and police in Lambeth Council (not too far away from you) and their cover-up of child abuse in Lambeth which I reported as a former head teacher in 2006. I couldn’t find much on your site about whistle-blowers.

    1. Thanks for the invitation, Brian. Actually I don’t live in London, or even go there that much, & I’m not sure I have much to contribute to that particular issue. But I’ll have a look & if anything occurs to me then I’ll take up your suggestion.

  12. Dear all,

    Now we have a complete mess with Counsel resigning.

    An opportunity was missed with Butler-Sloss who would have been the right choice but for political interference.

    That political decision has weakened and undermined the UK judicial system as someone has already pointed out.

    Is this an episode of ‘Yes Prime minister’? It is a farce now. Perhaps Mr Grieve should chair it? After all it may have been his idea to appoint Goddard?
    best
    andy

    ps

    Lord Macay who, I believe, piloted the 1989 act through Parliament could be a thought. In any event, it probably must be someone of that stature if the whole thing needs a fresh start.

  13. I do think the legal profession need to grow up beyond implying that the whole of a report can be disregarded and downgraded if a single part of it is slightly inaccurate.

    Better to focus on the ingrained Establishment tendency to fit up victims for false convictions utilising corrupt police officers, forensics experts, coroners, judges and barristers. Not to mention witnesses committing perjury. And then Home Secretaries stonewalling for 20 years to stop retrials or quashing of verdicts.

    The legal profession is so far from whiter than white as to be a global laughing stock. Saying it is less corrupt than some tin pot dictatorship is not any green light….

    The biggest problem with all public enquiries is the bloodsucking legal profession seeing them as never ending gravy trains……

Leave a Reply

Your email address will not be published. Required fields are marked *