Barristerblogger hates people who say “I told you so,” but I told you so. Theresa May’s Child Sex Abuse Inquiry has been heading for disaster since it was established. It still is. After two appointments of unsuitable Chairwomen and two embarrassing resignations, if the Home Secretary cannot make it third time lucky then it will be her own resignation that will be demanded.

Apart from her blunders over these appointments, her other mistake was to announce an inquiry without clearly setting out what it was going to inquire into. The Terms of Reference ought to have come before, rather than after the appointment of the panel. The result has been utter confusion about how the inquiry will operate.

Even now she is going about matters the wrong way round. Before she appoints the next Chair she must be clear about what sort of inquiry this is going to be. Is it going to hear evidence and make findings of fact? Or is it simply going to review documentation from previous inquiries? Most people assume that it is the former. Mrs May seems to believe it is the latter. She needs to make it clear.

So there are two particularly pressing problems that she needs to deal with: the composition of the panel, and its Terms of Reference.

Composition of the panel

It seems very unlikely that Woolf was the first or even second choice to replace Butler-Sloss. Many of the most obvious candidates will have been passed over for a good reason. No Home Secretary in her right mind, for example, would have preferred Woolf to the experienced and greatly respected criminal specialist Lady Justice Hallett who chaired the 7/7 bombings inquest so sensitively. One must assume that she was not available or that she declined the opportunity.

Anyone who declined the appointment originally will not have changed their minds after events of recent days. Quite apart from the Herculean scale of the task, it would be quite an unusual person who is willing – as a potential Chairman or woman would have to be – to open up their private life for investigation both by the Daily Mail and by Keith Vaz, Parliament’s most oleaginous popinjay.

So a replacement for Woolf is going to be even harder to find. The pool of those who are both prepared to do the job, and up to it, is extremely small. So far the only person prepared to announce his willingness to take it on is the left wing barrister Michael Mansfield QC, who would be an even more astonishing and disastrous choice than Woolf.

But the Chairman is not the only problem. There is at least one other member of the panel, Graham Wilmer MBE who is, through no fault of his own, a wholly inappropriate member of what is meant to be an impartial panel.

Mr Wilmer was a victim of sexual abuse at his church school and has been a forceful campaigner on behalf of victims of sexual abuse. He has written a number of books on the subject, including one published in October called The Devil’s Advocate – Child abuse and the Men in Black. In a note to the book Mr Wilmer says this:

“I have written this book 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. The book is far from the full picture, but it should serve to remind those who hold power in our nation that, as a society, we are not dealing well with the enormity of the problem, which remains hidden in plain sight, despite the courage of the many victims who come forward, even though that usually means they face hostility, resentment and denial, rather than the compassion, understanding and acknowledgement they need and deserve. The cost of sexual abuse in our society, in whatever way one measures it, is on a scale that makes it both a national disgrace and a national health epidemic, neither being something that should be tolerated by any government, but tolerated it is.”

It is a perfectly defensible point of view, but it demonstrates that Mr Wilmer has a settled opinion on the very question that the inquiry is meant to be deciding. The opening words of the Terms of Reference for the Inquiry say that the purpose of the inquiry is:

“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 ….”

We already know the extent to which Mr Wilmer thinks the institutions have failed because he has told us: “catastrophically.”

Mr Wilmer’s letter setting out possible conflicts of interest rather skated around the point, and certainly gives little hint of the excoriating polemic that he has written:

“At the age of 16 I was abused by a teacher at the Salesian College Chertsey. I disclosed the abuse to my Head Teacher but the school suppressed the information. My abuser was subsequently prosecuted but the prosecution collapsed.

“In 2003, together with a fellow survivor, I formed the Lantern Project which is a support service for victims of sexual abuse and a registered charity …

“I have written several books on the subject of Child Abuse, its impact and the development of better therapeutic services to assist the recovery of survivors ….”

Perhaps he thought it unnecessary to go into more detail (although he lists the books he has written), or perhaps the Home Office advisers who seem to have played a part in drafting his letter (whole paragraphs of which are worded identically to Mrs Woolf’s equivalent) chose to play down the extent to which he has been an active campaigner.

Unfortunately there is more. Mr Wilmer’s letter very properly lists a number of anti-child abuse and children’s organisations with which he has been involved. Then he discloses that he is

“involved in supporting survivors who are victims of institutional child abuse in claims in connection with claims for Civil damages and Criminal Injuries Compensation ….”

There is no further explanation and this disclosure raises more questions than it answers. Does he have a financial interest in “supporting” survivors who are making claims for compensation? He doesn’t say. What, in any case, does “supporting survivors” in connection with their claims for compensation mean? Does it mean encouraging them? Helping them prepare statements? Counselling them? Who knows.

One issue that the Child Abuse Inquiry ought to be addressing is to what extent claims of abuse may have been influenced by a desire for compensation. Hardly anyone believes that every single claim for compensation is genuine but the extent of compensation fraud is unknown. Is it a serious problem, or is it a canard thrown up by those who would deny the seriousness of sexual abuse?

The way the system can work in a grossly unfair way was recently explained by Ben Gunn who was serving a sentence for a murder committed when he was a teenager. He was approached by police officers seeking to build a sexual case against one of his former care workers. He describes how the lure of compensation, and the belief that the man was quite probably guilty anyway, led him to make a false accusation, which he eventually retracted; other prisoners, according to Gunn, spoke quite openly and unashamedly about making false allegations as part of a “compensation scam.” Criminal cases – for example those of care workers Basil Williams-Rigby and Michael Lawson – have collapsed after strong suspicions were raised that witnesses may have lied to obtain compensation. Recent reports by investigative journalist David Rose have revealed that police are investigating Jimmy Savile’s great-niece with regard to a possible compensation fraud and it would be hardly surprising if amongst the 170 claimants against Savile’s estate represented by solicitors Slater and Gordon, there was not at least a small number who were dishonest.

The extent of such fraud bears directly on “the extent” of the problem of child abuse that the inquiry is meant to investigate.

So even if Mr Wilmer’s campaigning activity was not enough to disqualify him from sitting on an impartial panel, his provision of “support to survivors” claiming compensation ought to do so. How can such a person possibly say (as he does in his letter) “I do not consider that I have a ‘close association with an interested party.’” Who are the interested parties if not the victims? And what association could be closer and more relevant than helping them to claim compensation?

Terms of Reference

The terms are at the moment absurdly wide-ranging.

The inquiry is meant to inquire into the extent of sexual abuse in “State and non-State institutions” from “1970 to the present day.” In case anyone had any doubt what this involves, the institutions include (but are not limited to):

• Government departments, Parliament and Ministers;
• Police, prosecuting authorities, schools including private and state-funded boarding and day schools, Local Authorities including care homes and children’s services, health services, prisons/secure estates;
• Churches and other religious denominations and organisations;
• Political Parties;
• The Armed Services.”

If the inquiry is to do more than merely skate over the problems that may have existed in all these institutions its members might as well give up any thought of doing anything else for the rest of their lives. The idea that it could – as Mrs Woolf, presumably on the instructions of Mrs May, promised – produce an “interim report by March 2015” is laughable, unless what is envisaged is a platitudinous rehash of the received wisdom on all these institutions. Unfortunately that is almost certainly exactly what is planned although she called it a “scoping exercise,” which, conveniently, could mean almost anything.

So we shall be reminded in bland terms that the institutions did not do everything they could have done, that lessons must be learned and that internal processes must be improved. There will be much talk of the need for “root and branch” change in this and of “institutional failings” in that. It will be asserted that such things must “never be allowed to happen again” and all will agree that there must be a complete “culture change.” Victims, it will be asserted, should never be treated as they used to be, and perpetrators must in future face “the full rigour of the law.” Those who abuse children, we shall rightly be told, must be given no sheltering place. Empty phrases will be piled upon clichés and will then be topped and tailed with truisms. There will be recommendations for new criminal offences, including, almost certainly, some sort of compulsory reporting of suspected sexual abuse. Inquiries love to recommend changes in the law, not least because if they don’t do so then it looks like they have been wasting their time.

What the Inquiry is not equipped to do is actually to do any inquiring. A paragraph in the recently published Terms of Reference seems to make that clear. The Panel’s remit is to:

“consider all the information which is available from the various published and unpublished reviews, court cases, investigations etc. (hereinafter “the reports”) which have so far concluded.”

In other words, it won’t really be an inquiry at all, because it won’t be hearing much evidence or uncovering new facts so much as looking at other concluded reviews, court cases and investigations. There may be something to be said for this, but it is certainly not what most of those with an interest in the Inquiry had envisaged. There has been much talk of “survivors” giving evidence, and indeed of people like Lord Brittan being cross-examined by Ben Emmerson QC. Well, under those Terms of Reference the latter isn’t going to happen, although in her statement this afternoon Mrs May said that some survivors of abuse will, after all be giving evidence.

Even if the Terms of Reference were not so clear, the very scale of the Inquiry would make hearing much evidence virtually impossible. Where would it begin, and where would it end? Unlike an inquest or a Public Inquiry into a major disaster which can reasonably hope to hear all, or most, of the relevant evidence – even if it often takes many months – an inquiry charged with investigating practically everything about an almost infinite number of institutions over a 44 year time period cannot. If it hears from some of those who say they have been abused then, unless it is to be a complete kangaroo tribunal it should hear from his or her alleged abuser. Almost all of what it might wish to investigate is highly contentious and controversial, and a series of blundering attempts to investigate sexual incidents from the distant past without either the powers or the safeguards of a proper court is virtually guaranteed to create injustice.

Where does that leave, for example, Geoffery Dickens and his mysterious “dossier” that was supposedly handed to Leon Brittan in the 1980s? The answer must be that it will leave it as mysterious as it ever was, its contents no doubt as open to speculation and unproveable conspiracy theories as they are today.

• A satanist paedophile ring at the heart of government? David Icke – who also believes in a theory that monster lizards are controlling everything including, I imagine this inquiry – has long claimed as much.
• A shadowy Jewish conspiracy with strings pulled by the Oppenheimer family? There are plenty of people willing to believe that.
• If bilious anti-semitism is not your thing, then how about an old fashioned conspiracy of paedophile freemasons? If that’s to your taste you’ll find plenty of other people happy to – as they usually put it – “join the dots.” After all wasn’t Cyril Smith a Mason?
• Maybe you’d like to believe that the Kings Cross fire was actually an act of arson perpetrated by paedophiles secretly burning children in a subterranean canteen? Well you’ll be pleased to learn that plenty of other (and funnily enough usually anti-semitic) people think exactly the same.

Nasty and absurd theories of this sort abound and presumably lots of people believe in them, although they are very rarely spelt out in polite society because open anti-semitism is hardly more respectable than a belief in a ruling class of lizards. Hints are dropped, cover-ups alleged, investigations are demanded but they are never enough.

If the investigations uncover genuine crimes then that justifies calls for further investigation; the crimes that have been revealed are always “the tip of the iceberg.” If the investigations reveal no crimes that simply shows that the paedophile ring is in control, which again means that further investigations are called for.

None of this means that boys and girls were not abused. It does mean that we should be extremely sceptical that this “over-arching inquiry” will resolve anything. It won’t.

So should it, as many suggest, become a formal judicial inquiry with powers to summon witnesses and punish liars?

The trouble with such a superficially attractive suggestion comes down again to the Terms of Reference. A judge could plausibly inquire into, say, sexual abuse in a single school over 40 years. Witnesses could be called, suspects could be summoned, documents could be examined. No doubt victims would demand representation, as would suspects, the school itself, perhaps the Local Authority or individual social workers (if they had been involved at all). The police, for obvious reasons, would want to be represented. A High Court judge could make findings of fact and recommendations. It might work, though to do it properly it would take many months and perhaps years.

The Waterhouse inquiry into North Wales Care Homes took 3 years, was criticised by almost everybody either for showing unfairness towards staff or indulgence towards the police and is now itself being inquired into by Lady Justice Macur.

The idea that any judge could conduct a meaningful and fair inquiry into the extent of sexual abuse in hundreds of different institutions in England and Wales over a period of 44 years, let alone that it could be extended to the Channel Isles and Northern Ireland (as has been seriously suggested) takes wishful thinking to a new level of absurdity.

If institutions are to be investigated, then the terms of reference must be limited in scope. A single “over-arching inquiry” is bound to disappoint, while a number of manageable inquiries into particular institutions might just be worthwhile.

But it should be a proper and rigorous investigation, and not regarded as merely a forum for victims to “have a voice.” It must set about its task without preconceptions and it must be prepared to make findings that are unpopular with government, unpopular with institutions and unpopular with victims.  Although it will not have the power to impose criminal sanctions it will have enormous power to destroy reputations.

Those who have been abused must be legally represented, and their evidence must be publicly tested.

Those who are said to have perpetrated abuse must also be properly represented and allowed to defend themselves.

Any inquiry panel must be made up of those who are truly independent. It must be chaired by a senior judge who commands near universal respect.

It will not answer all questions, but it might answer some.

So if Mrs May is to have any hope of finding someone to Chair the Inquiry she needs to tear up her terms of reference, sack the entire panel and start all over again.

If she persists with the flawed inquiry that she has established then, even if she finds someone foolhardy enough to chair it, it will achieve nothing, do justice to nobody and injustice to many.

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