Submission Law Commission - Consultation 163

SUBMISSION TO LAW COMMISSION Consultation Paper No 163 Publication of Local Authority Reports Submission by FACT - North Wales (F.A.C.T. is an organisation which campaigns against False Allegations (of abuse) against Carers and Teachers) 1. INTRODUCTION 1.1.

This submission is made by F.A.C.T - North Wales. F.A.C.T. is a national organisation which campaigns against False Allegations against Carers and Teachers, and has branches throughout England and Wales. It is part of an increasing network of similar minded organisations concerned about the extent to which people are wrongly accused of child abuse. F.A.C.T. draws a considerable amount of support from academics, criminal defence lawyers, professional agencies, and journalists, who share their concerns.

1.2.

As an organisation F.A.C.T. recognises that child abuse does occur - indeed its members have to make a signed declaration that they abhor child-abuse. It also recognises that exaggerated and false allegations are made by individuals. and that significant numbers of men and women are wrongly convicted, imprisoned, or have their careers and/or family life ruined as a result.

1.3.

F.A.C.T. - North Wales believes that the reasons for the increasing number of exaggerated and false allegations are complex but are due, in part, to the emergence of widespread compensation fraud which has been encouraged by a mixture of personal recrimination and criminal intent. It is our submission that frequent flaws in the investigative process (including police trawling methods), agency responses, and hysterical media campaigns have compounded this problem. We do not comment any further on these matters as they themselves are being considered by an all party Parliamentary Inquiry. We simply point out that the investigative bodies, including the police, local authorities and child protection agencies, steadfastly refuse to accept that false allegations occur. This fact has enormous implications in the conduct and, more importantly, in the reporting and publishing of inquiries.

1.4.

F.A.C.T. - North Wales recognises that the background to the Law Commission’s consideration of this matter relates to allegations of child abuse in North Wales

Children’s Homes and, in particular, to the Waterhouse Report. The Law Commissioners report particularly draws attention to the legal problems which arose out of the local authorities refusal to publish the Jillings Report. Before responding to this point F.A.C.T. - North Wales would like to point out that whilst the Waterhouse Report contains many useful recommendations the process of inquiry it adopted has itself come under increasing scrutiny and criticism. In particular, criticism has been made of the fact that the findings of the Tribunal cannot be challenged. F.A.C.T. believes that inquiries of this nature ought to be accountable for their findings and that remedies should exist for those people who believe they have been wronged by publication of inquiry reports. It is our belief that this principle ought to apply to all inquiries where fault or blame is determined.

2. THE JILLINGS REPORT, THE CARTREFLE REPORT AND THE BANHAM REPORT 2.1.

The Law Commission have drawn attention (Para 1.7 to 1.24) to the impact of the Jillings Report, the Cartrefle Report and the Banham Report on the Waterhouse Report. F.A.C.T. - North Wales acknowledges that these reports were commissioned by the Local Authority in respect of serious public concern about alleged child abuse in North Wales. F.A.C.T. - North Wales does not criticise the local authority for taking this action; it was a responsible thing to do. Indeed some of its members contributed to this process; others it is fair to say, were criticised as a result of it. It is for these reasons, and bearing in mind that some of its members and supporters have had the advantage of reading these reports (either in part or in full), that we trust the Law Commission will reflect on our experience.

2.2.

The critical issue in the case of the Jillings report is that, as the Law Commission have acknowledged, it was regarded as seriously defamatory to a number of people. Furthermore the efficacy of the process adopted by Mr. Jillings and the quality of his report has attracted criticism - including in the Welsh Assembly. Clearly the publication of reports which are defamatory, and otherwise of poor quality raises important matters. The fact that reports such as this (which paradoxically has proved to be very influential) can be constructed is worrying enough. Whilst it might be argued that publication of such reports provides important checks and balances for all parties (wronged or otherwise), the reality is, that in the present climate (at least in so far as it affects alleged child-abuse) publication contributes to rather than diminishes the risk of serious miscarriages of justice.

2.3.

The other issue for consideration is whether the prospect of publication and, intended or not, the naming and shaming of individuals, helps or hinders the pursuit of truth. In the case of the Jillings report it is a fact that from the outset assurances were given that the report would not be published. Confidentiality was assured and contributors were reassured that the evidence they gave would not be published. F.A.CT. - North Wales strongly believes that the publication of reports such as these should not be mandatory and that in the interests of accuracy and truth some discretion should be allowed.

2.4.

The Law Commission recommend that there should be presumption in favour of publication. It has been argued that without publication lessons cannot be learned from the past. The Law Commission should be slow to accept this opinion. Nonpublication does not mean that the report would not be considered or that it would not be acted upon. There are several mechanisms in place for local authorities to alert the Government and other local authorities/agencies to issues of serious concern and, if necessary, to the need for change. What ought to concern the Government is the danger of the blame culture developing to such an extent that confidence in public services is so eroded that it can no longer attract staff of the required quality to care for vulnerable people. There is a real risk that an unintended consequence of routine publication might be to lower standards rather than raise them.

2.5.

The Cartrefle report and the Banham Report raise other issues. Although there were concerns about their accuracy neither were considered to be defamatory. However it is unlikely that either report would have satisfied the Human Rights test or be considered an example of best investigative practice. The Banham report for example, was conducted by a sole individual using unsatisfactory interview techniques, poor recording methods, and contained serious factual errors. However, F.A.C.T. - North Wales do not want to suggest that the decision to publish a report should be solely based on the quality of the report or the integrity of the process. The commissioners of reports are always at liberty to distance themselves from ‘poor’ reports and are not bound to accept their findings. Despite this, the integrity of the process and the quality of the reporting are factors which need to be addressed.

2.6.

However necessary and well intended these reports are (or were) it is unlikely that an independent assessment of the processes involved in conducting these inquiries would conclude that they were conducted with principles of justice uppermost in mind. What is needed is an investigative model in which the primary aim is the

search for the truth rather than solely a need to apportion blame. The quest for understanding should not over-ride the need for justice and civil rights. 2.7.

The Jillings Report, the Cartrefle Report and the Banham Report also raise important matters about whether or not historical or stale ‘ad hoc’ reports should be published at all. It is not clear whether the Law Commissioners recommendations in this regard should apply retrospectively. FA.C.T. - North Wales believe it is morally wrong to publish reports which were gathered on the basis that they would not to be published, and/or were constructed without the normal civil and legal safeguards which apply at the present time.

2.8.

F.A.C.T. - North Wales welcomes the decision to establish a Code of Practice for the conduct of ad hoc inquiries but believes this does not go far enough and that the conduct of such inquiries should be set within a statutory framework. The most obvious model would be an updated version of the Salmon Report. It is our belief that whenever a local authority or public agency is sufficiently concerned to set up an ad-hoc inquiry into matters of public concern it should only do so within agreed rules of conduct. At the very least these should ensure that:i. all parties are given prior notice of the inquiry’s terms of reference, the constitution of the panel and likely time-scales involved, and whether or not there is any likelihood that of any part of the inquiry (or its findings) being published. ii. before any evidence is taken individuals whose conduct is likely to be called into question are given adequate prior notice of any concerns that have been expressed regarding their conduct, and full details of any evidence relied upon to support these concerns. iii. individuals whose conduct is likely to be called into question are permitted to call evidence in order to establish their innocence (this was not permitted in the Waterhouse Inquiry) iv. all persons giving evidence are required to affirm/swear before they give evidence (this practice is not always followed even by statutory tribunals) v. persons appearing before such inquiries are permitted representation, including if necessary, legal representation (this was not permitted in the Jillings Inquiry). vi. a taped transcript of all the evidence is taken and made available to any witness who might require it (this was not permitted in the Jillings Inquiry). vii. findings are based on fact and supported by evidence (one of the weakness of the Jillings Report and the Banham report is that fact and opinion became confused). viii. expressions of opinion are separated from findings of fact

2.9.

F.A.C.T. - North Wales is particularly concerned about the tendency for ad-hoc inquires to treat complaints against deceased persons less favourably (in process terms) than those against living persons. We would urge that the Law Commission consider the need to legally protect the interests of deceased individuals (and their families) whose conduct may be subject of serious complaint or serious criticism.

3. OTHER MATTERS 3.1.

F.A.C.T. - North Wales wish to draw attention to two other matters. a. Publication of inquiries undertaken as part of disciplinary/employment matters. The report is silent on this. F.A.C.T - North Wales is concerned that the Law Commission proposals will be interpreted as a charter for publication of all inquiries whatever their function and purpose. We urge the Law Commission to explicitly exclude such inquiries from the risk of publication. b. Defamation We note that the effect of the Law Commission report (in broadly supporting a move towards publication) is to make it less likely that local authorities be sued for defamation (Chapter 7). We regard this as a worrying development. The ability (in theory at least) to sue for defamation is often the only recourse for an individual who has been falsely accused to remedy a wrong. This right should not be discarded lightly or weakened in any way. In the experience of F.A.C.T. - North Wales the reputations of individuals are very often sacrificed by a system which far too often (although not always) is politically motivated and/or panders to prejudice or vote catching initiatives. This is risk is obviously greater in a local authority context. The strength of the British justice system is that individual rights matter. We therefore hope that any final recommendations made by the Law Commission will protect this right.

Signed ___________________ Chairman: FACT - North Wales

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M. Barnes

___________________ Secretary: FACT - North Wales B. Douthwaite

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