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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Lillie & Anor v Newcastle City Council & Ors  EWHC 1600(2) (QB) (30 July 2002)
Cite as:  EWHC 1600(2) (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| CHRISTOPHER LILLIE
|- and -
|(1) NEWCASTLE CITY COUNCIL
(2) RICHARD BARKER
(3) JUDITH JONES
(4) JACQUI SARADJIAN
(5) ROY WARDELL
Mr G Bishop, Mr I Christie and Ms S Mansoori (instructed by Wragge & Co) for the
Newcastle City Council and the Review Team
Hearing dates : From 11th January 2002 to 20th June 2002
Crown Copyright ©
I felt I had to drop you a note after hearing of your suspension. When we were told of Chris's suspension my reaction was 'nonsense' now that you have been caught up in this ridiculous mess, I can only think its all gone far to far. I trusted both you and Chris with my son for a year and never had any worries and I still haven't and I would trust you again without hesitation.
I have told [Child 10] that you and Chris have gone away for a while and he was very sad. He misses you and he misses Chris.
Dawn, I know all this must be very distressing for you, but please remember there are a lot of us in the Nursery who are behind you 100%.
We miss you and hope to see you back soon.
Lots of Love"
"Since the family was seen as part of the Shieldfield Nursery Investigation and [sic] I would be obliged if you could arrange to see the family and perhaps offer some help and support".
"The flat he was taken to by the Claimants could have reminded him of Jo's flat, he could have been told it was 'Jo's flat', or he could be mixing two separate incidents" (emphasis added).
The word "could" is used three times, but I have to remember that I am concerned with evidence, rather than speculation, and with probabilities rather than possibilities.
"[Child 10] appeared to be O.K. when the interview was terminated. However, I did feel some concern about mother who described herself as feeling numb and in a state of shock. She very sensibly took [Child 10] into town for an ice cream."
"Intellectually she understands why she has had to move her position regarding Dawn and Chris from a very different belief, but clearly she finds this worrying in terms of emotion".
One (perhaps unfair) interpretation of these comments is that the social workers had long since decided that there had been widespread abuse by the Claimants and that they were determined to convert and recruit as many "believers" as possible. As in other cases, this mother found herself putting to one side her judgment based on her own common sense and experience of people and placed her trust in the "professionals".
"Genitalia were noted to be normal externally, but the hymen appeared to be somewhat distorted and scarred with a rather high free edge.
The findings in this little girl would suggest previous significant trauma to the hymen with granulatory healing. Because the healing is complete, however, the appearance of the hymen could pass as normal, or indeed having a mild congenital abnormality. I cannot be absolutely certain about trauma".
"Vanessa Lyon: You know what? I think Helen's a bit deaf. You know what? She wants me just to make sure I've got everything right, [Child 11]. So can you tell me if I have got this right?
Child 11: What?
Vanessa Lyon: This naughty man hurt you with a knife?
Child 11: Yeh
Vanessa Lyon: And he was called?
Child 11: Monster
Vanessa Lyon: Monster. And he was also called "Chris".
Child 11: Nothing
Vanessa Lyon: Chris. Isn't that right?
Child 11: (nods)
Vanessa Lyon: It was Chris, wasn't it?
Child 11: Yeh
Vanessa Lyon: And he used to work at the nursery.
Child 11: (nods)
Vanessa Lyon: You're nodding. So I must be right.
Child 11: Yes
Vanessa Lyon: And he hurt you with the knife?
Child 11: Yes
Vanessa Lyon: And we must especially remember this and we'll speak loudly cause, as I say, I don't think Helen heard but it was in a house.
Child 11: A house
Vanessa Lyon: And it was a monster's house.
Child 11: Yes
Vanessa Lyon: And Dawn was there?
Child 11: Yes
Vanessa Lyon: And was anybody else there?
Child 11: (shakes head) Just the naughty people.
Vanessa Lyon: Naughty people.
Child 11: And a good lady.
Vanessa Lyon: And a good lady who was called R- R-
Child 11: R
Vanessa Lyon: R
Child 11: Ker
Vanessa Lyon: Ker
Child 11: sss
Vanessa Lyon: R Ker
Child 11's mother: I don't know that name, do I?
Child 11: It was a R
Vanessa Lyon: R
Child 11: - and a Ker and a sss
Vanessa Lyon: Like an ess is that?
Child 11's mother: It's a bit like Rebecca that, isn't it?
Child 11: A line with a dot.
Vanessa Lyon: And a dot.
Child 11: A line with a dot.
Vanessa Lyon: Roxi? Rooks, no, I can't work that one out. But she was nice?
Child 11: (nods)
Vanessa Lyon: That's good. And did anybody else hurt you? I know Chris hurt you. Did anyone else hurt you?
Child 11: (Shakes head)
Vanessa Lyon: All right.
Child 11: Shall I write down the word again in
Vanessa Lyon: You could try, please, yes
Child 11: And I can cut it out so
Vanessa Lyon: We can show Helen, couldn't we?
Child 11's mother: Hm mm
Vanessa Lyon: What pen are you going to use for that?
Child 11: This one I wanted oh I need a pen.
Vanessa Lyon: OK that's fine. Start with a clean piece of paper there.
Child 11: R
Vanessa Lyon: R
Child 11: Ker
Vanessa Lyon: Ker. Hm I don't think I know her. What does she look like? What colour hair does she have?
Child 11: Ginger
Vanessa Lyon: Ginger?
Child 11: Flowery dress and ballet shoes. Princess shoes and a
Vanessa Lyon: Flowery dress, ginger hair and ballet shoes. Gosh, you have got a good memory. Really good.
Child 11: Yeh and um
Vanessa Lyon: Was she a grown up lady or a child, children? Was she children one of the children?
Child 11: Erm a grown up.
Vanessa Lyon: Grown up. OK. Ginger hair. Erm, she was there and she was OK.
Child 11: She was nice lady.
Vanessa Lyon: She was nice. And Dawn was going to tell the police because did she did Dawn see what Chris did to you?
Child 11: (nods head).
Vanessa Lyon: Yeh, she did. You're right. I see you nodding there and you told me before, didn't you, that?
Child 11: (nods head)
Vanessa Lyon: Erm
Child 11: Doesn't she look nice in that (indicating doll)?
Vanessa Lyon: I think she looks nice, but I'll tell you what, I bet she's getting cold.
[There is then a discussion about a doll's knickers. Then the name of a small boy is mentioned, who according to Vanessa Lyon was said to be present, and Child 11 says nothing happened to him.]
Vanessa Lyon: You don't think anything happened. How did you get to this house? Who took you to the house?
Child 11: Chris
Vanessa Lyon: Chris took you to the house. Right. How did he take you to the house? Did you walk or
Child 11: Walked
Vanessa Lyon: You walked
Child 11: Oh, I want to put it like this [putting clothes on doll].
Vanessa Lyon: So did was it just Chris? Did anyone else take you to the house or just Chris?
Child 11: Chris and Dawn
Vanessa Lyon: Chris and Dawn
Child 11: But, I was safe with Dawn
Vanessa Lyon: You felt safe with Dawn. Because and she was all right to you?
Child 11: Yeh
Vanessa Lyon: That's good. And you went to this house, just you? No other children with you?
Child 11: Yes
Vanessa Lyon: Who? Sorry, which children were with you?
Child 11: [Two boys and a girl are mentioned but none of the justification children]
Vanessa Lyon: Right
Child 11's mother: [The girl's name was mentioned].
Child 11: (nods head)
Vanessa Lyon: [She repeats the name of the girl and one of the boys] And Chris and Dawn, and you walked to this house, can you remember anything about the house, what it looked like? What colour doors or furniture?
Child 11: (shakes head)
Vanessa Lyon: Was there chairs? Can you remember anything about it?
Child 11: (shakes head)
Vanessa Lyon: No? Did you have anything to eat or drink when you were there?
Child 11: Can you read the word? Can you?
Vanessa Lyon: I'll show it to Helen but I'm not I can't work that out.
Child 11: Can you know what that mean?
Child 11's mother: Can I work out what it says? No, I don't know that name.
Child 11: Well, we will have to show it to
Vanessa Lyon: And this is the girl with ginger hair isn't it? Woman, lady, with the ginger hair?
Child 11: Yeh (plays with doll's clothes) Right. She's not having this cardi on.
Child 11's mother: It might keep her warm."
The interview continues to no effect.
"[Child 12] had a cold that day and later went on to say nothing had happened".
"11.42 Resumed video interview. Message received on ear-piece that video equipment was not working. Left video room, liaised with [Social Workers], checked equipment, appeared in working order but it hadn't been switched on.
11.51 Resumed interview with equipment on!
12.10 Interview concluded. Two video tapes taken from machine one selected as master tape, sealed. Second video tape and two audio tapes to be working copies (B/77/93). Retained by me.
12.20 To RVI, witness statement signed by Dr Lazaro."
"I know where Chris is living now and we have been watching it, and you feel tempted to do something, but we have been told that he is under surveillance and we cannot do anything about him yet. But we will get to know when he is not under surveillance, and then we'll see what will happen then".
"When I picked up the paper, and I seen they were arrested straightaway alarm bells was ringing in my head. I asked Louise if anyone had ever been silly in her nursery and she then went on to say that the male member of staff had exposed himself to her and then she went on to say he'd done other things to her".
(The arrests were in July and Child 14 said nothing until mid-September).
"Miss Page, I think that if we look back on every piece of minutiae over the years, we are going to find matters which appear at times irrational. I cannot account for what appears to be aberrant from time to time in these records. I can only speculate that we thought it was important that she must have had symptomatology for me to have reported it ".
This hardly instils confidence in her findings. Dr San Lazaro may be prepared to speculate but I am not permitted to do so.
"Q: Do you know your teacher Chris at the nursery school?
Q: Has he ever hurt you?
A: He hasn't
Q: He hasn't. Has anybody ever hurt you?
Q: Somewhere where you didn't want them to hurt you? (a curiously phrased question in itself)
Q: I thought you said somebody had hurt you at nursery and you didn't want to go back.
"My son complained that a man had 'hurt' him and he has gone through a complete personality change His temperament has changed drastically. He has nightmares and gets aggressive."
" we were mindful that we needed to think in wider terms than just Child 22. The allegations had been against a member of staff at the nursery and it was possible that this could be another incident of multiple abuse. I had been involved in the Jason Dabbs investigation as a Senior Social Worker in the office dealing with the investigation and it was fresh in our minds. We obviously kept an open mind as to whether this may have been the start of another multiple abuse case."
"The task of social workers is usually anxious and often thankless. They are criticised for not having taken action in response to warning signs which are obvious enough when seen in the clear light of hindsight. Or they are criticised for making applications based on serious allegations which, in the event, are not established in court. Sometimes, whatever they do, they cannot do right."
"Although it is difficult now to remember, I have no clear recollection of being conscious of reading any press report about the Jason Dabbs case prior to my son's disclosure to me".
"Whenever we leave the local park to come home, we have passed a house with a black door. As soon as [Child 22] sees any black door, this one in particular, he started getting very upset and agitated. On another occasion [Child 22] didn't want to go up a particular street with black doors, he seemed to lose his speech and start talking funny and when he calmed down he said. 'I don't want to knock at that black door'. I asked him what he meant and he said 'because there is a lady who looks like a man who scrubs me'. I didn't know what he meant and just left it. On another occasion we were out in the street and happened to see a man knocking at a black door and [Child 22] wouldn't let us go by and we had to go a different way. On another day [Child 22] has mentioned a 'dafty man who hurts him because he's a naughty boy and it's his fault'. I tried to reassure [Child 22] that he wasn't a naughty boy. [Child 22] then said that he couldn't tell me what had happened 'he can't tell and doesn't remember' and he says he doesn't want to remember".
She then said that by that stage she believed that something terrible had happened to Child 22 behind a black door. The mother gave no less than six specific addresses with black doors, five in one road and one in another. Police checks on the residents proved negative. Black doors were also mentioned by Child 1, Child 11 and Child 14 in due course.
"I was frightened at how violent my thoughts towards them were, but I had to learn to control my rage. My only consolation is I believed every word [Child 22] said and acted immediately. [Child 22] is proud of his part in uncovering the abuse he thinks his bravery saved the other children. I couldn't bear to tell him the truth So, for now, I've told him that Lillie and Reed have been locked up forever. The inquiry team told me [Child 22] was a hero. If he'd not spoken up, who knows how many other innocents would have suffered? But the ordeal has destroyed our family. My husband couldn't talk about it and has left me".
a) The only dog Mr Lillie was associated with at the relevant time was Miss Kelly's. He had only just begun going out with Miss Kelly by July 1992 when Child 24 passed out of his care, and did not move in with her (and her dog) until the following December. At the relevant time, he was living in West Newcastle.
b) The dog was called Ben not "Shelly".
c) The dog was essentially black, with brown patches, and a token bit of cream on the chest (barely visible from photographs).
" asking if she remembered and liked Chris and Dawn. Mother said, 'I know Chris is a naughty boy, police have got him and he cannot get you'. [Child 24] agreed Chris was naughty said she sometimes went to the library and also spoke of going on the bus to a house there was a dog, possibly called Shelly and there were big people and an old woman present. [Child 24] said Chris took his clothes off in front of the other people and smacked her on the bum he had no clothes on".
"Q: What clothes did he [Chris] have on?
A: Don't know.
- - - - - - - - - - - - - - - - - - -
Q: Have you seen Chris's willy?
Q: Have you seen anybody's?
- - - - - - - - - - - - - - -
Q: Can you tell us what they look like?
A: It looks like a bum
Q: Like a bum?
A: No, fairy
Q: Like a fairy? And have you seen Chris's?
Q: And where have you seen Chris's?
A: Don't know".
Despite the child's negative response the officer persists:
"Q: And when you saw it, what did it look like when you saw Chris's willy?
A: [No response]
Q: What did Chris's willy look like?"
A: [No response]
There then follows this sequence:
"Q: [Child 24], when you saw Chris's willy, was it sticking up like that, like up to the ceiling or was it pointing down to the floor?
Q: Up? And what else did it look like, apart from pointing up?
"Initially she was irritable, not very responsive towards adults, had a short concentration span and would not share toys. She has however, become much more settled with good relationships with peers and adults and enjoys appropriate nursery activity. There have been short periods when she has needed firm supervision because of aggressive behaviour towards other children. Careful monitoring linked these episodes with either mother's hospitalisations or a move of house."
"The pattern of behaviours in Child 25 strongly indicated that she suffered trauma as a result of sexual abuse during the period she was in the Red Room".
"It seems very likely, and is also supported by the medical evidence that also exists, that Child 25 was severely traumatized as well as sexually abused while in the care of Lillie and Reed".
This is yet another of Professor Friedrich's wild and irresponsible assertions. The child simply never was in the joint care of Mr Lillie and Miss Reed. Furthermore, as with Child 10, the diagnosis leaves ADHD totally out of account.
"From the beginning [Child 25] made her agenda clear, she was having bad dreams and was afraid of monsters and wanted to do something about this".
Indeed, much attention was given during her therapy to helping the child in "confronting her monsters". She received assistance from her mother and sister in doing this. There is, however, no evidence to link this child's problems with monsters or her apparent obsession with clowns to either Mr Lillie or Miss Reed.
"While [Child 25] has been unable to talk about what has happened to her; possibly for fear that her mother will die; [Child 25] has shared a good deal with me. It is clear to me that [Child 25] was traumatised, this together with Dr Lazaro's findings leave me in no doubt that [Child 25] has been sexually abused".
"Clearly the evidence in relation to this child cannot alone result in a finding of sexual abuse against Ms Reed or Mr Lillie. However, the medical findings, coupled with the fears and behavioural deterioration of Child 25 whilst at Shieldfield and the fact that because of the hours she kept at the nursery Mr Lillie and Ms Reed would have had access to her even though she was not officially under their care, in the context of the totality of the evidence of the children, makes it [sic] more likely than not that Child 25 was sexually abused at Shieldfield, and was abused by Christopher Lillie and or Dawn Reed".
"Child 25 makes very limited verbal disclosures, the common theme of which appears to be that she was threatened with the death of her mother. Given her mother's obvious fragile mental state it is not surprising that this threat was more effective in silencing Child 25 than other children in the case".
"At one point [Child 25] told her mother, Barbara and I that someone had told her when she was a baby at school that if she didn't do what they wanted her mam would die. [Child 25] told us that she didn't do what she wanted. [Child 25] didn't tell us who this person was."
"That is crescentic that there was enough redundancy to produce material which was proud of the hymen. I cannot describe it. It is a hymen which has not become so atrophic that its outer edge is clearly defined as crescentic or annular. It means it ascends as a sleeve."
"Children of this age have maternal oestrogen on board. The hymen at this age is frilly. It does have redundant tissue around it It can have the appearance of having tears in it" (emphasis added).
"I would have said that these findings were completely normal for a girl of this age, with two normal indentations which do not reach the base of the hymen. The thickening may be due to the persistence of oestrogens. Therefore it would be my opinion there is no indication here of penetrative injury".
"Something very powerful and dysregulating has happened to disrupt her emotional homeostasis. She regulates when away on a family holiday but returns to anger, fear, and disruption when she is back at Shieldfield. This type of disturbance is not common, nor is it random. It is a classic response of a child who is very fearful. Child 31 displays multiple signs of Traumatic Stress Behaviours, clearly indicating that she is experiencing some form of trauma. The primary adverse response of Child 31 to elements in her environment is to nappy changing. This is coupled with her marked sleep disturbance. Child 31 has suffered some form of trauma during her stay at Shieldfield, the content of which appears to be centred around nappy changing times, bags and strangers. Verbal accounts will be needed to anchor the source of the trauma".
9) The evidence called for the Claimants on the abuse issue
" It is normal, is it not, whether he asks you for a lift or you offer him one, that one of you will know where you are going? You cannot give him a lift home if you do not know where home is, even approximately?"
Answer: "But I did not need to know where he lived because if he was in the car he would give me directions.
Question: "Quite. But at some point you are going to find out, are you not?
Answer: "Obviously I did, because I dropped him off, yes".
"He would also pick up the babies and handle them, even though he must have known that this was technically forbidden. I do not recall that he just grabbed a child at random. We were always told that we might pick up a child who was indicating that it wanted to be held, for instance if the child had its arms out to us. I cannot recall how long he would stay in the room on these occasions, but I cannot think that it would be too long because to do so would interfere with our work".
This appears, to some extent at least, consistent with what Mr Lillie accepted on 28 January:
"I would pick up the toddlers if they were next to the door or if they held their hands out as I walked into the room, wanting to be picked up. I would not go in and pick up a baby".
10) The privilege issues for the Review Team
"Logically it might be said that . irrelevant matter falls outside the privilege altogether. But if this were so it would involve the application by the court of an objective test of relevance to every part of the defamatory matter published on the privileged occasion: whereas, as everyone knows, ordinary human beings vary in their ability to distinguish that which is logically relevant from that which is not and few, apart from lawyers, have had any training which qualifies them to do so. So the protection afforded by the privilege would be illusory if it were lost in respect of any defamatory matter which upon logical analysis could shown to be irrelevant to the fulfilment of the duty or the protection of the right upon which the privilege was founded. As Lord Dunedin pointed out in Adam v. Ward  A.C. 309, 326-327 the proper rule as respects irrelevant defamatory matter incorporated in a statement made on a privileged occasion is to treat it as one of the factors to be taken into consideration in deciding whether, in all the circumstances, an inference that the defendant was actuated by express malice can properly be drawn. As regards irrelevant matter the test is not whether it is logically relevant but whether, in all the circumstances, it can be inferred that the defendant either did not believe it to be true or, though believing it to be true, realised that it had nothing to do with the particular duty or interest on which the privilege was based, but nevertheless seized the opportunity to drag in irrelevant defamatory matter to vent his personal spite, or for some other improper motive. Here, too, judges and juries should be slow to draw this inference."
"Whereas previously it could be truly said of qualified privilege that it attaches to the occasion of publication rather than the publication, Reynolds privilege attaches, if it attaches at all, to the publication itself: it is impossible to conceive of circumstances in which the occasion of publication could be privileged but the article itself not so. Similarly, once Reynolds privilege attaches, little scope remains for any subsequent findings of malice. Actual malice in this context has traditionally been recognised to consist either of recklessness, i.e. not believing the statement to be true or being indifferent as to its truth, or of making it with the dominant motive of injuring the claimant. But the publisher's conduct in both regards must inevitably be explored when considering Lord Nicholls' ten factors, i.e. when deciding whether the publication is covered by qualified privilege in the first place "
A little later (at para. 34), his Lordship added that:
"It may be doubted, whether in truth there remains room for such a principle as "dominant motive" (malice) in a case of Reynolds privilege".
11) The Review Team's Terms of Reference
"I .came to the view that it would not be possible [to carry out the Review] without looking at what had actually happened to those children and how those children had expressed it. I had thought, in the beginning, it might be possible (particularly early on before the criminal trial had not been proceeded with). But I realised that it was not going to be possible, because a core issue for the parents was simply going to have to be ignored".
Yet later in her evidence she appeared to be saying that she only reached that state of mind ("where it became crystallised") at the time when the Review Team asked to see the video interviews (in 1996).
1) The Claimants had been acquitted in respect of 11 specific offences relating to the six indictment children.
2) There was no one legally qualified on the Team.
3) They were sitting in private.
4) There was no framework set up by the Review Team to operate within the well known "Salmon" principles.
5) Neither Christopher Lillie nor Dawn Reed was notified of the "charges" which the Team had taken it upon themselves to investigate.
6) Christopher Lillie and Dawn Reed were not represented or offered any legal assistance.
7) They had no opportunity to cross-examine, challenge or test the evidence relied upon by the Review Team for their conclusions; they did not even know what the evidence was.
8) The Review Team had no power to compel witnesses or documents.
9) The Review Team adopted as a policy the "child protection approach", so that they would not challenge or probe "evidence" from witnesses. As Moira Luccock expressed it on 1 March, "You are not challenging the person. You are actually accepting that they certainly believe what they are telling you, and you have no reason to doubt that as the investigator".
10) This policy even applied to police and social workers (not least because the police had warned them that they had no power to trespass on the area of police complaints, which was governed by statute, and asked them by a letter not to upset PC Helen Foster who had conducted some of the crucial interviews with children).
11) The Review Team had decided to adopt what Ms Jones described as an "impressionistic" approach to the evidence, rather than analysing individual cases of alleged abuse.
"I have to say this was not primarily set up as a process for considering the guilt or innocence of Christopher Lillie and Dawn Reed. I agree were that to be the prime purpose, you probably would not start here".
" there was an intention that they should be treated as fairly as other witnesses in relation to the matters set out. But, if I may add, it was not a review which was set up primarily to determine whether or not Mr Lillie and Miss Reed were guilty of these offences. It was a review set up to deal with complaints and concerns raised by parents, which included matters at the nursery
The question of their culpability, therefore, I suppose would either have to be assumed (which the City Council had done, on the basis of the disciplinary proceedings it had undertaken) so I suppose, thinking about your question, the fact that the Review Team had almost in effect re-considered it .
What I am struggling with, I think, is that the City Council had started from the perspective that they had dismissed Christopher Lillie and Dawn Reed for gross misconduct, associated with the abuse, and it was on that basis that the Review Team had been set up. So, in a sense, what the Review Team were doing, by considering again the evidential matters, [was] almost having another look at it. So I suppose, in a sense I had not thought about it in this context before you asked the question they gave a fresh opportunity to Mr Lillie and Miss Reed's case to be considered. I had not thought about it until you put the question to me".
"I asked him how we would actually deal with the issue of responding to individual complaints and also producing a public report when those complaints were likely to be about people who had been dismissed but already been declared not guilty in court. So he said that we would need to keep coming back to that and see how we progressed. I think he used the words that we were in "uncharted waters".
"Not every infringement or excess of terms of reference would operate to deprive the occasion of publication of the privilege it would otherwise have attracted. However, this was an infringement of a nature and on a scale that fundamentally affected the character of the Report. The Review Team's findings of sexual abuse of children by the Claimants were not incidental or ancillary. The findings completely dominated the Report".
" for legal reasons we were advised that the processes, determined by the City Council prior to our appointment, had to be followed, as they were a guarantee of both natural justice for all those involved, and the independence of the Review Team".
12) The evidence of the Review Team Defendants
"I hope it did not predetermine me to make any decision in relation to them, but I would be clear that I was aware of it."
Miss Page had to battle on and a little later there was the following exchange:
"Miss Page: I understood you earlier to say that you did take into account the fact that they had been dismissed. Are you now saying you did not take into account the fact that they had been dismissed for sexually abusing children?
Professor Barker: If I have misled you, I do apologise. I was aware at the start that they had been dismissed. We then found, when we interviewed people, the reasons for which they had been dismissed. We interviewed people who had been involved in the disciplinary, and looked at the documents in relation to the disciplinary. When it came to us making our findings at the end of the process in which we were involved, those processes then played a part. If we had found, in the course of that, that it was our judgment that they had been inappropriately dismissed, on the wrong grounds, we would have said so".
"We find that there is evidence which suggests that the children were sometimes filmed when they were being abused outside the nursery and we have drawn the conclusion that Chris Lillie and Dawn Reed were procuring the children of Shieldfield nursery for pornographic purposes as well as their own motivations.
In the absence of being able to interview them we have been unable to find either Chris Lillie or Dawn Reed's personal motivations for their abusive behaviours. However, the indications from the children were that Chris Lillie took every opportunity to abuse them, and Dawn Reed was a party to abuse in particular situations, including during filming".
"As well as enquiring into what had happened, we were also interested to discover evidence which included opinion about how and why events had happened. For the most part, we were thus seeking to adopt an inquisitorial, rather than adversarial approach, as such we have adopted an approach similar to that outlined subsequently by Sir Ronald Waterhouse in relation to the North Wales Tribunal:
'We are not a jury. Our duty is to enquire and our procedure will be inquisitorial rather than adversarial subject to the important qualification that any person against whom criticism or allegations are made will have a full opportunity to answer'"
"Question: You also lied did you not, in those passages of the Report at pages 20-23 which we looked at this morning in which you set out all the procedures of fairness to witnesses which did not apply, did they, to Chris and Dawn?
Answer: If you are saying there is linguistic ambiguities, if you are saying we were economical with the truth, if you are saying that we lied, you are entitled to say those, but it is my belief that when I read the final Report that we had written and when I read the complaints letters, it is my belief that I honestly believed what we had written.
Question: You did not care what they had to say, did you, because you were going to label them as abusers come what may; is that not the position?
Answer: I feel that in some ways without sounding patronising there would have been we had to find out what we had to find out, not what we were determined to find out. We had to try and find out what had probably happened and draw conclusions. In terms of my career as a social worker and an academic who is also a social worker, as someone who trained to be a teacher, as someone who has done research into child care, it saddened me that in the case of Christopher Lillie it appeared to be the case in relation to information that we had that a child, an adolescent who had spent time in care had ended up in a position where he had abused children, because I do believe that children and young people who have been through the care system in Britain have to cope with disadvantages subsequent to being in care and sometimes have to cope with quite difficult circumstances when they are in care, and I find it very unappealing to believe that the care system can damage children, but I know that it does. So actually my personal inclination is to feel sympathy without I hope being patronising in relation to people who have been in care. So had I been biased I would have been inclined to have wanted to find information that minimised or reduced the responsibility of your client in that respect".
"Question: At this stage in the process Christopher Lillie and Dawn Reed were, as far as you were concerned, second class citizens in terms of the fairness procedures that you thought you owed to witnesses, were they not?
Answer: When we were appointed the very first meeting I had had with Henry Warne and Bob Hassell, I think in the minutes of that meeting the agenda shows that one of the first items that was on that agenda was the need for us to have independent legal advice. It took some time for us to have what we considered independent legal advice. That is no disrespect to the lawyers who were employed in the Newcastle Law, which at that point was the arms length legal service of Newcastle City Council. They had gone for, I think, what was called at that time a purchaserprovider split. So that the initial discussions we had with Mr Warne was that Newcastle City Council understood and appreciated that we wanted to have independent legal advice.
Question: Why do you need to resort to discussions about independent legal advice in order to answer my question, Professor Barker?
Answer: Because if we were desirous of having independent legal advice to pursue our processes, in relation to key items of correspondence, it is appropriate for you to know that we took appropriate advice.
Question: You were conducting this inquiry; you had a duty of honesty; you had a duty of fairness. You accept that, do you not, Professor Barker?
Answer: I accept that we had a duty of fairness to do what we had to do and also to take account of appropriate advice. Had we not, it is my belief taken account of appropriate advice, I could have been criticised and the Review Team could have been criticised for saying 'well, it is clear, is it not, that you did not take advice?'
Question: Do you understand the concept of fairness? Do you understand the concept which surely is steeped in you as a citizen of this country that before somebody is condemned they should have a full opportunity to defend themselves and to know what it is they are defending themselves against. You do not need legal advice to know that, do you, Professor Barker?
Answer: If you carry on with these letters .
Question: Just answer the question. Can we have a question about you and what you understood?
Answer: That is rather like saying 'who is going to win the race?' when you are half way through it.
Question: Do you have an understanding of the concept of fairness, Professor Barker, Yes or No?
Answer: It is my belief that the documentation that is in front of me in relation to the correspondence which Christopher Lillie and Dawn Reed, which we wrote based upon appropriate advice, was appropriate and was fair".
"Thank you for your letter dated 18 April.
I am prepared to disclose in advance the complaints made against your client so that he had adequate notice of the position and is given a full and fair hearing about matters upon which I will be required to report.
I enclose of [sic] copy of the Independent Complaints Review Team's Terms of Reference which will give you an idea of the range of issues we shall have to cover and you will see from the questions below those which are relevant.
The main complaints from parents are that your client, together with Dawn Reed physically and sexually abused children, whilst the children were attending Shieldfield Nursery; and that the children were taken out of the nursery without permission or oversight.
We would also like to ask questions about how your client was selected and recruited to the Social Services Department, how he was managed and supervised and how he came to work with Dawn Reed.
It would be interesting to hear his views on his earlier contact with the Department and about his prior employment experiences.
I am anxious that in no way is the criminal trial re-visited. Our approach is inquisitional rather than adversarial with the hearing held in private. Interviewees can be accompanied by a friend or legal adviser.
The Review Team will be producing a public report after it has considered the evidence presented to it. I hope that your client will feel able, with your help, to meet with the Team and help further our consideration of matters relating to our Terms of Reference.
DR RICHARD W BARKER
"Question: Professor Barker, that sentence in that letter: 'I am anxious that in no way is the criminal trial re-visited', I suggest to you is nothing less than a lie?
Answer: I would have no reason to lie honestly. There is no reason, in my mind, that I could think of why I would want to lie. I was not on a vendetta. I did not know the two people concerned. I did not have any aspiration to overturn a properly made judicial decision, as far as I know. I was simply trying to deal with a complex and difficult situation where a large amount of material had to be dealt with in relation to the terms of reference that had been laid down by us and try to be involved in moving those through those processes in a fair and appropriate way and reach a conclusion that could then be appropriately written up, (1) in a report that would then be made available to Newcastle City Council and (2) in relation to complaints letters that we were empowered and required to complete. So, I honestly do not feel that it would have been any benefit in me trying to do what you are suggesting and it is honestly is not a lie in my opinion".
"No one other than those that perpetrated that abuse can provide definitive knowledge as to how this was carried out and those perpetrators that we know of have declined to talk to us. Therefore what follows can only be speculation based on those aspects of the situation that we do know about placed within a theoretical framework of what is known about perpetrators of child abuse".
"The Report has been checked for accuracy and consistency. Where particular people have been significantly criticised, where possible this has been raised with them in their interview or they have been forewarned prior to publication and allowed a chance to respond".
It is clear that the Claimants received no warning whatsoever. If that is not a "lie", I do not know what is. All these general claims of fairness made in the Report are obviously false so far as Mr Lillie and Miss Reed are concerned. On 22 February, Mr Wardell said that it was the responsibility of the City Council to give advance notice to them of the conclusions. He thought there was an agreement with Mr Warne, Mr Scott or Mr Poll to this effect. He was clearly wrong about that. I am not suggesting that he was dishonest in this respect. I think he was trying to persuade himself that there must be some honourable explanation for having got themselves into this untenable position.
"We have a very interesting picture here, because it is not one that to think is easily explicable, in the sense that 'why would they need to be in a couple relationship when they were already in a relationship?' (although a different sort - working in the nursery). They knew each other".
"They were in a relationship where they knew each other over a long period of time, and none of us knows what goes on within that relationship. They could have been having a relationship that nobody knew about. Who knows? I don't know".
"The fact that they apparently did not have a relationship outside the nursery is not significant. There is no research evidence to show that such a relationship would have been an inevitable or necessary part of their jointly abusing children, and the way they could come and go from the nursery during work time almost at will meant that they had sufficient time and opportunity both outside and inside the nursery to pursue their abuse of the children together" (emphasis added).
This is a spurious and trumped up justification, after the event, for their failure to address the point. It is hardly likely that there would be any published research on the issue. No one suggested once, during 79 days of this trial, that there was any precedent for a man and a woman engaging in child abuse together when they were not in any kind of "couple" relationship. There was therefore nothing to which research could be directed.
"I am speaking for myself in that, as I say, I honestly do not recall seeing the medical, and my view would be that I would have wanted to seek further information in relation to that . I think, in looking at any of the children, we would have wanted to look at the whole range of information that we had available to us, and obviously the medical would be an important part of that . We had difficulties getting access to a whole range of information and amongst that we had difficulties getting access to a range of medical information. It was not in our discussions with the people who commissioned us, or in the advice that we sought from a range of people, that necessarily the medical information of itself would be pivotal because obviously medical information can describe a variety of things, and that is why we did what we did".
If any of these outpourings are intended to suggest that there was any difficulty about seeing Child 4's medical findings, that would be manifestly untrue. As it was, Miss Page's point remained unanswered, because it was unanswerable.
"The only people who really know what happened to the children of Shieldfield nursery are those who perpetrated the abuse. It is highly likely that even the children who experienced that abuse will have some accurate knowledge and some distorted knowledge. This distorted knowledge is likely to have been deliberately implanted by the perpetrators. The implanting of distorted knowledge is a strategy that abusers describe using. This tactic is particularly successful with very young children who have limited knowledge and understanding of the world and thus, when experiencing situations they cannot make sense of, they are likely to accept an abuser's interpretation of those experiences. As a result of such distorted knowledge, when children try to disclose their experience, they are often not believed as, along with accurate knowledge gained through their own senses, they relate false or distorted information gained from the abuser/s. This distorted information is likely to refer to not only what happened to the child but also, who did it, to whom, where it was done and who had known about it and given permission for it to happen."
This is simply bare assertion or theory. It is not based on any evidence relating to this case. But it seems to have been resorted to by the Team as a reason for explaining inconsistencies among the children's accounts.
"Another one of our officers had now been contacted by yourselves, requesting her attendance at an interview on a date to be arranged in 1997. The purpose in writing to you at this stage is twofold. Primarily my concern is for the welfare and wellbeing of the officer concerned. I have been made aware of the effects this particularly onerous and stressful investigation had on her, both physically and mentally, and I would question whether, having interviewed the Force Child Protection Co-ordinator and then made arrangements to interview the female officer's direct supervisor who was, in effect, the officer in charge of the case, there is any benefit in resurrecting this matter as far as WPC Foster is concerned.
If it is considered important to conduct such an interview, and mindful of the consequences on the officer's health, I would wish that, to enable the officer to prepare herself both physically and mentally, you provide at least one month prior to the proposed interview, a detailed set of questions you propose to put to her, which specifically include any possible complaints that have been made.
The reasoning behind my request is that the incidents referred to occurred approximately three to four years ago; the officer has been involved in many large investigations since and the quantity of material to which she would be obliged to refer precludes any spontaneous answers to detailed questions".
"I can well understand the potential distress that recollections of past events can cause in cases such as this, and can assure you that the team is sensitive to the needs of those who it wishes to interview.
We do however feel that the valuable lessons that would potentially be drawn from WPC Foster's evidence warrant interviewing her; particularly given her sympathetic approach to the children she interviewed which many parents have commented upon.
It is our policy to provide in detail in writing the areas which we wish to discuss with witnesses, and a witness can choose to be accompanied by a lawyer if they wish".
" and it somehow seems terribly important to a lot of them that actually we see the pain that the children went through, because it feels so long since those events, to them, and the pain that has gone on throughout that time; somehow the pain of the children at the time became quite lost and the statements that the children made may have become quite lost, with the court denying the children the right to actually say that. So, in some ways, although we cannot re-try Dawn and Chris (and there is no way we would even begin to even want to do that), what the parents are virtually saying is that 'my children said something important, and it has just been lost, and never been heard or seen'. I think, for the parents, that is really what comes across. That is what they want me to do. So that, if we can say in our report that we have had access to the video-tapes, where we saw for ourselves the children and this has had a profound effect on us".
That has all the hallmarks of Professor Barker's style.
"So if we were to say that the focus of our attention is the child and not the way they were interviewed?"
Although he prevaricated for a while on the subject, I eventually asked Professor Barker to say Yes or No to whether there was a quid pro quo for seeing the videos that the Review Team would not criticise the police, to which he replied "My memory is that there probably was".
"Many aspects of the children's evidence that could be verified and were checked out, proved to be accurate".
Further, at page 269, they claimed that they had been told by police that they had found evidence relating to one of the identified individuals which "was not strong enough to be used in court".
" ..is it not the case that at least one of the police, although they said they could not find proof, believe that the children had been abused by other people outside the nursery and implied that they believed that Lillie and Reed [were] involved in some pornographic creation type activity which involved some type of sexual activity?"
Thus it seems that any police confirmation for these two serious allegations (the paedophile ring and pornographic filming) rests on unspecified "implication".
"Question: Now that is readily comprehensible without legal advice as well, is it not?
Answer: Given the way we were dealing with it, given the way we were looking at matters on the basis of a balance of probability, given the information that we had and without any disrespect to this ruling, obviously we did have information we did have information that Mr Justice Holland, if that is the right way to describe him, did not have. We had information from the nursery that he had never seen; we had information from witnesses that he had never seen; we had medical information that he had never seen and I am not in saying that I am not being disrespectful or wishing to comment critically on his ruling because it is my understanding, it is a perfectly proper and appropriate ruling in relation to those videos and in a sense for me to say it was perfectly proper is in a sense overstepping the mark because I am not legally qualified, which is precisely why we needed the advice that we did not to smuggle anything out into the public domain under the cover of inappropriate cover but to try and deal with it appropriately with the appropriate advice".
i) If a child says that she has been raped, or had a knife stuck up her vagina, and yet she has an intact hymen and no signs of abnormality, one just resorts to the proposition (in general terms, of course, unassailable) that the absence of physical findings does not mean that abuse has not taken place;
ii) If a child makes no allegations about anyone abusing him or her, then it is probably explicable on the basis of terrorisation by the supposed abuser;
iii) If a child exonerates a person voluntarily, despite pressure and leading questions, then she is saying the opposite of what she means (i.e. that the person exonerated actually did abuse her);
iv) If a child is peppered with leading questions over three hours of interviews, then one can include in one's report the cavalier and unsupported conclusion that there was no evidence of leading questions;
v) If a child says that she was taken out and abused at Christopher Lillie's house accompanied by another member of staff, and that is not borne out by that member of staff, then it probably means that the abuse took place in the nursery in the absence of that member of staff.
"Question: You substituted your own view of the video evidence of this child and you completely suppressed any reference to what the Judge had said about it, did you not?
Answer: That was certainly not the intention.
Question: That is what you did, was it not?
Answer: That was certainly not the intention."
I am not sure what this means. If the omission was unintentional, that presumably implies that the Review Team intended to include reference to the Judge's concerns but forgot. I have no doubt whatever that they were omitted deliberately because it would require careful analysis, on the basis of evidence, for those concerns to be satisfactorily answered. They knew that was impossible.
"I mean that seems to me to be something that it would be very difficult to do in this context."
"Question: You managed to do it; you managed to sum it up and convey it to the public. Are you not prepared now to account for how you arrived at that statement?
Answer: Well, the sum total, right. What the child said seemed she seems to be a child that was able to distinguish truth from lies, she seemed to be a child with good verbal ability; she seemed to be a child who was able, over the course of those videos, to recount matters that a child of that age would not have known about; she seemed to be a child who could describe things that had happened to her. It was obviously the case that there was confusion in some of the things that she said and she did contradict herself at times and that had to be considered carefully. But if you looked overall at the three videos and related that to the medical information in relation to this child and you related that to the fact that abuse appeared to have occurred in the nursery and outside and probably other things I cannot call to mind now, but if you put all those things together it did appear that what the . That what the child was saying was an account of her being abused by Christopher Lillie and to a lesser extent Dawn Reed".
"Yes, I think the way we were coming at it was in a sense that if that material had been presented to a child protection conference. So if the child protection conference was looking at whether or not it is slightly difficult because it was not quite like that obviously, but if a child protection conference was looking at whether or not it was safe to leave a child with a family, it would look at it on the basis of the information that was presented and on that basis had the information on the videos been looked at by a multi-disciplinary child protection conference it was our view, and it was an honest view, that is what was the child was saying. So rather than wearing a criminal hat beyond reasonable doubt, we were looking at it in a child protection conference type basis".
"For instance, over three videos Child 14 gave some indications that she had been abused by Christopher Lillie and Dawn Reed which I noted, I also noted that she sometimes contradicted herself. She was also at times insistent that Dawn Reed had not done things to her. The videos were not conclusive one way or another".
"Question: there is nowhere in the Report in which you refer to, as you do in your witness statement, this child's contradictions, or this child insisting on Dawn's innocence, is there?
Answer: Well, all four of us saw the videos of this child, so there is a sense in which the conclusions we drew in relation to this child and the videos were the product of all four of us seeing it in discussion rather than any one individual opinion".
"I think that what I would like to have done is to be able to ask the child more questions about some of those aspects that she was talking about. But I think, overall, they were very powerful statements, made by the child about things she had observed and things she had experienced within the nursery. I would like to have questioned her more on it. I do not think that they fully explored all the issues that could be [explored]. So, in some ways, they were inconclusive. But, overall, I felt that they were very powerful".
"The children also talked about other people's involvement and mentioned the names of other staff from the nursery. This could be because these staff were also involved "
"We have no evidence of other staff in the nursery abusing children with Chris Lillie and Dawn Reed. However, we find that during and after the abuse there was evidence to suggest that some staff were confused about their primary responsibility towards the children. We feel that this partly is a result of being subject to grooming to ignore or minimise the abuse".
"Answer: Yes, I mean, that is an interpretation which you are entitled to put, I do not agree with it. The extracts, for example it kind of fits with the extracts which you have done in the blue document which we were given [Miss Page's summary of child "disclosures"], which is there is a kind of slant on some of the things which appears to me to be wanting to prove your case which obviously you are entitled to do, it is what you are supposed to be doing, obviously rather than a neutral reflection of what happened there are a range of explanations for a range of different things. You know, an explanation for example about why the child terminated the interview, could not might be not that the child was thinking, 'O my goodness, I have to tell a fib and do not want to do that', but 'O my goodness, the enormity of what I have to say is so difficult and painful that I do not want to do that'".
"My memory, my Lord, is that when I was being in a sense inducted into the Review Team process, I was told because this was a child who was an important child in the case not by those social workers concerned but by someone else who was inducting me, and I think it might have been Jennifer Bernard the Director, that in that video interview the video interview had had the problem that the child had left the room, had returned, had made certain disclosures, but then it had been discovered that in fact, as I recall it, the tape was not switched on, I think.
So then what happened is that the video interviewers, having discovered that, I think it was Police Woman Helen Foster, then had to go back into the video room and in a sense re-run what the child had said. So when I saw that video with Mr Wardell I knew that that was the explanation, and I think that if you look at my revisiting the video of last night, it did seem to me that you could see that in a sense the police woman was going through something that that explanation made sense".
"Question: You can have, I suggest, no positive belief, because you did not make the right enquiries into the truth or falsity of these children's allegations?
Answer: We did. We looked at a whole range of material from a variety of sources and drew the conclusions to the best of our ability based upon a range of official documents, witness statements, documents from the nursery, etc. etc.
Question: You were indifferent to the truth, you had no basis, as you knew, for any positive belief in your conclusions about Chris and Dawn. I suggest that you resorted to conscious misrepresentation in your report to give your conclusions the appearance of authority, honesty and fairness.
Answer: No. We attempted to illustrate in our report, in a readable way, what we had done, why we had done it and what our conclusions were.
Question: I suggest to you that the Report is a sham, corrupt document, which purports to have the appearance of authority, honesty and fairness when it absolutely did not.
Answer: No, that is not true."
"The police investigation dramatically improved after the appointment of DI Findlay to lead it. Children gave their parents detailed information about the venues in which they had been abused, and by whom, which appear to have been followed up e.g. children's allegations that the 'house with a black door where a man with a black beard had abused them' were progressed, there proved to be where they said - a house with a black door in which a man with a black beard lived, but we were told that the evidence was not strong enough to be used in court".
"It's fascinating to talk to people who have met them. Not a lot of people have met them, other than their direct colleagues. Dawn Reed fascinates me in particular women abusers, especially in those days, not quite as well known as now".
" the Review Team examined the information available to consider whether there was any evidence to support an explanation that the disclosures were made by of [sic] the children as a result of the implanting of false information; pressure from parents; and/or by over-zealous or suggestive questioning on the part of social workers and/or police. The Review Team concluded that this could not be a viable explanation of the children's evidence".
"I just said that it was unrealistic to expect children to play together like that and contaminate each other."
"There is an inevitability about the danger of contamination as soon as children speak to each other".
He shortly afterwards added:
"I know that Jacqui Saradjian was particularly concerned about things like contamination and how real it was children speaking to each other".
Yet within a few moments he told Miss Page:
"I think you over-exaggerate the contamination thing. In my experience, children do talk like this and yes, it is always there. You always have to be careful about it. But I do not think it is overriding".
"It is accepted that by mid1994 the Yellow Room was a potential source of contamination. The Court has to consider disclosures made by children in the Yellow Room at this time very carefully to see whether the disclosures are being made because the children were abused or because the children are simply copying other children. The picture may be an unclear one, as even if a child has been sexually abused, some of their disclosures may be the result of contamination".
I would not quarrel with this warning now given to me, but it is unfortunate that it was not reflected in the Report itself.
"The parents, some of them, were going to support groups and had a lot of contact with each other and I'm sure they talked quite openly amongst themselves about what the child had said, how many interviews they had, even medical examinations, I'm sure they were not kept confidential .
A lot of things that the parents must have said to the children outside of the interview and came out in the interview that came out in the interview itself. The bit about Chris and Dawn in jail and whatever. A lot of promises they might have made to the children about they were going to get if they told, like presents or trips. You would have been able to see that on the video. The parents want to be on the interview, want to take over the interview in an attempt to get the child to repeat what they had already said. That was difficult".
It is true that no other members of the Review Team were present, but they would have read those clear warnings on the transcript.
"2. As this is the second major child abuse investigation in the East of the city, it is felt that it is keeping professionals in the area from proceeding normally in relation to Child Protection. There are concerns that detection in this area will be seriously hampered or as is already happening if there are suspicions of sexual abuse in a family, professionals are in the first instance looking for a connection with Jason Dabbs or the Shieldfield Nursery.
3. Empowerment of Parents
Normally, the social work stance has been to empower parents and families. The Shieldfield investigation as well as the Jason Dabbs investigation, has made the investigating team believe that empowering individuals or families without the knowledge and information is dangerous. In both investigations, there are a small number of very vocal parents driven by their emotions. This is one of the most dangerous and worrying elements of this investigation."
"I think some of the information that has come across has been distorted, and in some instances tainted, by parents. I am not saying [the mother of Child 22]. There are other parents who, I think, use this to hide abuse within the family".
No doubt what he said was largely hunch, and intended to remain confidential. I am not in a position to conclude that his theory was correct, but it was surely something to give the Team food for thought and would confirm the need for careful research and analysis. (It is of interest to note that Dr San Lazaro was also conscious of this potential problem. She said on 14 May that she and her colleagues were aware that "children, where there is a scape-goat like Lillie or Reed established, are possibly more vulnerable to trauma by other parties".)
13) Findings on the allegations of malice against the Review Team
"If the court, having heard and seen all the evidence, including that from the Claimants themselves which they were not willing to provide to the Review Team, comes to the conclusion that the Review Team got some or all of their conclusions as to what occurred at the Nursery wrong and/or that the Review Team made other mistakes in the way that they carried out this inquiry and recorded their conclusions, the Review Team, will of course deeply regret that they have got it wrong, but the fact that they did not come to the same conclusion as the court and that they approached their task and the issues in a different manner does not and cannot make them malicious".
"44. At common law malice was presumed when the words published were false and defamatory. The presumption was however rebutted if the occasion was one of qualified privilege. The privilege could nevertheless be defeated if actual malice was proved by the plaintiff. What constituted malice was restated in Horrocks v Lowe  AC 135, 149-150 by Lord Diplock, in what have since been regarded as authoritative terms. His reference in that restatement to carelessness, impulsiveness or irrationality not being equated to indifference must be read in context. The proposition does not qualify the preceding statements which cover lack of genuine belief and recklessness. Thus while carelessness will not of itself be sufficient to negate the defence, its existence may well support an assertion by the plaintiff of a lack of belief or recklessness. In this way the concept of reasonable or responsible conduct on the part of a defendant in the particular circumstances becomes a legitimate consideration. It can also be said that in the context of political discussion an irrational belief in truth is seldom likely to feature. It is for example difficult to envisage reliance on such an argument when a newspaper is defending its publication of false and defamatory material.
45. Recklessness as to truth has traditionally been treated as equivalent to knowledge of falsity, see for example Fleming on Torts (9th ed: 1998) at 639. Both deprive the defendant of qualified privilege. We note as a relevant analogy the recent approach of the House of Lords to recklessness when their Lordships were considering the tort of misfeasance in public office: see Three Rivers District Council v Governor and Co of the Bank of England (speeches 18 May 2000). In particular Lord Steyn, when citing from the judgment of Clarke J at first instance, approved the view that recklessness involves a lack of honesty in the exercise of the power in question. He added:
This is an organic development, which fits into the structure of our law governing intentional torts. The policy underlying it is sound: reckless indifference to consequences is as blameworthy as deliberately seeking such consequences.
46. By the same token, it may be said that reckless indifference to truth is almost as blameworthy as deliberately stating falsehoods. Lord Diplock gave a helpful description of recklessness in the present field when he spoke of someone who publishes defamatory material "without considering or caring" whether it was true or false. Indifference to truth is, of course, not the same thing conceptually as failing to take reasonable care with the truth but in practical terms they tend to shade into each other. It is useful, when considering whether an occasion of qualified privilege has been misused, to ask whether the defendant has exercised the degree of responsibility which the occasion required.
47. What constitutes recklessness is something which must take its colour from the nature of the occasion, and the nature of the publication. If it is reckless not "to consider or care" whether a statement be true or false, as Lord Diplock indicated, it must be open to the view that a perfunctory level of consideration (against the substance, gravity and width of the publication) can also be reckless. It is within the concept of misusing the occasion to say that the defendant may be regarded as reckless if there has been a failure to give such responsible consideration to the truth or falsity of the statement as the jury considers should have been given in all the circumstances. In essence the privilege may well be lost if the defendant takes what in all the circumstances can fairly be described as a cavalier approach to the truth of the statement.
48. No consideration and insufficient consideration are equally capable of leading to an inference of misuse of the occasion. The rationale for loss of the privilege in such circumstances is that the privilege is granted on the basis that it will be responsibly used. There is no public interest in allowing defamatory statements to be made irresponsibly recklessly under the banner of freedom of expression. What amounts to a reckless statement must depend significantly on what is said and to whom and by whom. It must be accepted that to require the defendant to give such responsible consideration to the truth or falsity of the publication as is required by the nature of the allegation and the width of the intended dissemination, may in some circumstances come close to a need for the taking of reasonable care. In others a genuine belief in truth after relatively hasty and incomplete consideration may be sufficient to satisfy the dictates of the occasion and to avoid any inference of taking improper advantage of the occasion.
49. A case at one end of the scale might be a grossly defamatory statement about a Cabinet Minister, broadcast to the world. At the other end might be an uncomplimentary observation about a politician at a private meeting held under Chatham House rules. It is not that the law values reputation more in the one case than the other. It is that in the first case the gravity of the allegation and the width of the publication are apt to cause much more harm if the allegation is false than in the second case. A greater degree of responsibility is therefore required in the first case than in the second, if recklessness is not to be inferred. Responsible journalists in whatever medium ought not to have any concerns about such an approach. It is only those who act irresponsibly in the jury's eyes by being cavalier about the truth who will lose the privilege. Such an approach reflects the fact that qualified privilege is not a licence to be irresponsible: see McKay J in Television New Zealand Ltd v Quinn  3 N.Z.L.R. 24, 45".
"We found material and we found people's opinions, that were very strongly expressed in some cases, that made us come to the conclusion we did".
" But it is not like a situation in a courtroom where you are actually challenging. You are not challenging the person. You are actually accepting that they certainly believe what they are telling you, and you have no reason to doubt that as the investigator".
"If I had to distinguish I would say that video 3 was less powerful, but not much so, only by degrees, purely because of the gap".
That was the understatement of the year.
"We had to be careful it did not. It is a bit difficult when you have seen it happen, but we set it to one side".
Earlier, he had said that they tried to behave as if the programme had not happened.
"When investigations were carried out, in many of these cases physical [i.e. clinical] evidence was found that validated the children's testimonies".
What the reader is perhaps most likely to remember is the dreadful allegation that Child 4 had cutlery inserted into her vagina which caused bleeding. This striking example of cruelty (no longer pursued in these proceedings despite being "put" in cross-examination) can only have been included in the Report on the basis that the Review Team wished the readers to conclude that they had found it proved. The likelihood is that the reader will also assume that this grave allegation could not conceivably have been included in that section of the Report unless there was powerful evidence to corroborate it including "physical evidence" of penetrative trauma. There was none.
"[Professor Barker] believes there may well be a real problem here. He believes, on the basis of their interview with Kevin Hattam that he believes that Dawn Reed is innocent. In his interview, Kevin Hattam said that this was the strangest disciplinary case he had ever been involved in, because there was no evidence. He indicated that he was happy to defend Dawn Reed and commented that she was either innocent or a brilliant liar. He went on to indicate that he did not feel he could have represented her if he felt that she was guilty. As a result of these remarks, Dr Barker believes that Hattam still has a strong personal bias in this matter and is therefore unsuitable for representing members of staff.
I pointed out that under the procedures staff can choose who they wish to represent them and I was uncertain as to what rights he had to refuse a particular representative. He pointed out that he could adjust the terms of reference and could create rules to deal with this situation".
"I certainly recall that it was an issue that Richard Barker felt should be aired and there needed to be a resolution because members of staff were entitled to have a representative with them. So it needed to be resolved".
She agreed that it accorded with her memory that Professor Barker was objecting "because Kevin Hattam had represented Dawn Reed in disciplinary proceedings".
"The video interviewing of children by social workers and police was done in a professional and sensitive manner. In particular, we were struck by the quality of the work of Vanessa Lyon, Marion Harris, Helen Foster and Julie Kinghorn".
"The police officer had only undertaken the specialised training 6 weeks before, and had never actually interviewed a young child for evidential purposes; the social worker [Andrew Waterworth] had little experience in child sexual abuse and no experience in interviewing young children. Although it is not the individual workers' faults, it is unfortunate that they did not have more expertise in working with children of this age".
i) They suggested that there was evidence discovered by the police to confirm the involvement of the Claimants with other identifiable people in a paedophile ring, although it "was not strong enough to be used in court". The police had told them they had found no evidence to support this theory and that, had they done so, they would do something about it. This was a misrepresentation of the facts they were given (and they had not found any corroborative evidence themselves).
ii) They intended the world to accept that there were good grounds to believe that Christopher Lillie and Dawn Reed were involved in pornographic filming of small children in their care and, in particular, with a named young man who was using a camcorder. The police had decided in 1993 that there were no concerns about him. The Review Team were told about this and had no reason to believe that anything had changed. It seems clear that Professor Barker's "professional judgment" that Dawn Reed was motivated by financial gain (see paragraphs 1143-1144 above) is no more than a fanciful attempt to justify that unsustainable conclusion.
iii) It was asserted that Child 14 had over three hour long video interviews detailed abuse of herself and others by Christopher Lillie and Dawn Reed (including the rape of herself by Christopher Lillie of which he had been acquitted in 1994) "and she also mentioned other nursery staff's names". Her testimony was described as "extremely powerful and provided persuasive evidence of her abuse in the nursery and elsewhere". In fact, at least two of the Review Team (Professor Barker and Mrs Saradjian) considered the interviews "inconclusive" (no doubt partly because of the inconsistencies and contradictions which Holland J highlighted in his ruling of July 1994, and which the Review Team chose to omit). When they asked the police to view the interviews they expressly said that the reason they wished to do so was so that they could say in their Report that "this had a profound effect on us". This was at a time when they knew exactly what concerns had been spelt out by Sir Christopher Holland. Moreover, their objective was not in any way modified by seeing the tapes with all their blemishes or indeed their own conclusions that they were inconclusive.
iv) They gave an assurance in the Report that the "evidential videos made by the children would not support the view that the questions were in any way leading". They each knew that they were full of leading questions, but the readers of the Report had no way of knowing. They now admit their assurance was a bit "strong". That is obviously an inadequate response. It was demonstrably false. They must have assumed that the police would never release them to anyone else and that their assurances would never be exposed.
v) They drew attention to the fact that one of their own experts had warned them that young children could be "influenced by over-zealous questioning". They then claimed to have examined the information available "to consider whether there was any evidence" to support the explanation that any of the Shieldfield disclosures were made as a result of "over-zealous or suggestive questioning". They purported to conclude that "this could not be a viable explanation of the children's evidence". They knew quite well that there were masses of "suggestive questions" and, what is more, they had been warned by the police officer in interview on 19 February 1997 that there was a risk of cross-contamination from parents discussing matters amongst themselves. She also reminded them that it was obvious from the videos themselves that in some cases the children had been promised "presents" or other rewards if they came up with allegations of abuse. It might theoretically be possible to go through the evidence in detail and satisfy oneself overall that (for example, because of independent corroboration) the evidence was nevertheless reliable. There is no evidence that the Review Team did this but, in any event, what they could not claim with any degree of honesty was that "this could not be a viable explanation". This they knew to be false.
vi) They told their readers that they had been "robust" and that they had followed the recommendation of Sir Louis Blom-Cooper (The Guardian, 24 February 1997) to "exhibit self-confidence" that they had "uncovered as full a picture of the events under investigation as is humanly possible". What they did not, however, reveal is that they had reached a quid pro quo with the police that in exchange for being allowed to see the children's video tapes they would not criticise the police or social workers in respect of their interviews. In accordance with a written request from Detective Chief Inspector Machell (only disclosed two months after the Review Team were cross-examined), Mrs Saradjian was unchallenging in her interview of Detective Constable Foster because she did not want to "upset" her. There were questions that she knew needed to be asked but she refrained from doing so. They knew that they had not uncovered a full picture at all, because they chose not to do so.
vii) Not only did they prevent their readers from knowing of the inconsistencies, leading questions or other tainting influences, but they chose to praise the interviewers for their professionalism and to say that they were "struck by the quality of the work". This despite the fact that the viewing of most of the video tapes was left to Mr Wardell and Professor Barker in August 1996. There was thus no way in which Ms Jones or Mrs Saradjian could have been "struck" by the quality of the interviewing. I am also satisfied that Mr Wardell and Professor Barker could not honestly have been struck by the quality of the interviewing (which even their own expert was not prepared to defend and which Professor Bruck thought among the worst she had ever seen).
viii) The team were told by a senior police officer that he had been through all the photographs and videos found at the flat Mr Lillie shared with his girlfriend and found nothing to suggest involvement in anything improper (i.e. pornography or paedophilia): "I did not find anything in those photographs that made me think he was a pervert and we spent hours going through them". The slant the Review Team put on this was that the hundreds of photographs were not evidence of any "crime", but that Mr Lillie's explanation for them (which happened to correspond with that of his girlfriend, who has never been accused of anything) was "probably false". There was no evidence for this. It was not simply that they were disagreeing with the police. They had not seen the photographs themselves and were not in a position to form a view of their own. They also attribute to the officer (Mr Findlay) the statement that he "had concerns". That was false. He expressed no "concerns". He said that they were "not in any way, shape or form indecent or suggestive" and the videos were "totally innocent". He also vouchsafed to them that police surveillance of Mr Lillie had revealed nothing suspicious only that he was "a boring fart" who went to McDonald's and read photographic magazines. The police had checked out the magazines and found them to be genuine and innocent. The Team now accept that this passage in the Report was inaccurate but Mr Bishop suggests that it reflects their "impression". What that submission is based on I do not know. But I do not find it credible.
"The actual interview process as well as the verbal output from the interviews of the Shieldfield children can be criticised for many reasons. For example, parents were present during interviews, leading questions were common, and the rooms were filled with distracting toys. In addition, the children that were interviewed were typically 2-3 years old. Not only are children of this age more likely to comply with suggestions/leading questions by adults, their expressive language was extremely immature ." (emphasis added).
"The senior and experienced detective in charge of the inquiry vigorously followed up every lead they were given by parents and social workers and found nothing to corroborate the involvement of the Claimants or any of the other identifiable individuals in a paedophile ring or in pornographic photography" (emphasis added).
"The position of Mr Marron Q.C. in this respect is curious. Although he associated himself with Mr Cosgrove's observations, as prosecuting counsel he must have agreed with the CPS assessment that the chances of securing convictions against both Mr Lillie and Ms Reed were more than 50% and that a prosecution was in the public interest. If he thought the evidence in the case was more probative of Ms Reed's innocence than her guilt then it is difficult to see why Mr Marron's conduct is not also open to serious criticism".
Team may resent them, the comments of Mr Cosgrove (adopted by Mr Marron) were fully justified.
14) The privilege issues for the Newcastle City Council
"In these circumstances, I undertake that I will not copy the report. Nor will I share the report with any one except in so far as it is necessary for me to do so in order to be in a position to carry out my duty of preparing a report for members on the Report's findings and recommendations. I will keep such further communication to the minimum necessary. I will keep a record of such communications. I will instruct the recipient not to make any further communication and I will advise him or her of the consequences should he or she make such further communication".
"The Team's Report was delivered to the Council on the basis that it would not be published until 12th November 1998 and so it has not been possible to distribute the Report in advance of the meeting".
The purpose of this report is to formally receive on behalf of the Council the Report of the Independent Complaints Review Team."
100A Admission to meetings of principal councils
(1) A meeting of a principal council shall be open to the public except to the extent that they are excluded (whether during the whole or part of the proceedings) under subsection (2) below or by resolution under subsection (4) below.
(2) The public shall be excluded from a meeting of a principal council during an item of business whenever it is likely, in view of the nature of the business to be transacted or the nature of the proceedings, that, if members of the public were present during that item, confidential information would be disclosed to them in breach of the obligation of confidence; and nothing in this Part shall be taken to authorise or require the disclosure of confidential information in breach of the obligation of confidence.
(3) For the purposes of subsection (2) above, "confidential information" means
(a) information furnished to the council by a Government department upon terms (however expressed) which forbid the disclosure of the information to the public; and
(b) information the disclosure of which to the public is prohibited by or under any enactment or by the order of a court;
and, in either case, the reference to the obligation of confidence is to be construed accordingly.
(4) A principal council may by resolution exclude the public from a meeting during an item of business whenever it is likely, in view of the nature of the business to be transacted or the nature of the proceedings, that if members of the public were present during that item there would be disclosure to them of exempt information, as defined in section 100I below.
(5) A resolution under subsection (4) above shall
(a) identify the proceedings, or the part of the proceedings, to which it applies, and
(b) state the description, in terms of Schedule 12A to this Act, or the exempt information giving rise to the exclusion of the public,
and where such a resolution is passed this section does not require the meeting to be open to the public during the proceedings to which the resolution applies.
(6) The following provisions shall apply in relation to a meeting of a principal council, that is to say
(a) public notice of the time and place of the meeting shall be given by posting it at the offices of the council three clear days at least before the meeting or, if the meeting is convened at shorter notice, then at the time it is convened;
(b) while the meeting is open to the public, the council shall not have power to exclude members of the public from the meeting; and
(c) while the meeting is open to the public, duly accredited representatives of newspapers attending the meeting for the purpose of reporting the proceedings for those newspapers shall, so far as practicable, be afforded reasonable facilities for taking their report and, unless the meeting is held in premises not belonging to the council or not on the telephone, for telephoning the report at their own expense.
(7) Nothing in this section shall require a principal council to permit the taking of photographs of any proceedings, or the use of any means to enable persons not present to see or hear any proceedings (whether at the time or later), or the making of any oral report on any proceedings as they take place.
(8) This section is without prejudice to any power of exclusion to suppress or prevent disorderly conduct or other misbehaviour at a meeting.]
[100B Access to agenda and connected reports
(1) Copies of the agenda for a meeting of a principal council and, subject to subsection (2) below, copies of any report for the meeting shall be open to inspection by members of the public at the offices of the council in accordance with subsection (3) below.
(2) If the proper officer thinks fit, there may be excluded from the copies of reports provided in pursuance of subsection (1) above the whole of any report which, or any part which, relates only to items during which, in his opinion, the meeting is likely not to be open to the public.
(3) Any document which is require by subsection (1) above to be open to inspection shall be so open at least three clear days before the meeting, except that -
(a) where the meeting is convened at shorter notice, the copies of the agenda and reports shall be open to inspection from the time the meeting is convened, and
(b) where an item is added to an agenda copies of which are open to inspection by the public, copies of the item (or of the revised agenda), and the copies of any report for the meeting relating to the item, shall be open to inspection form the time the item is added to the agenda;
but nothing in this subsection requires copies of any agenda, item or report to be open to inspection by the public until copies are available to members of the council.
(4) An item of business may not be considered at a meeting of a principal council unless either
(a) a copy of the agenda including the item (or a copy of the item) is open to inspection by members of the public in pursuance of subsection (1) above for at least three clear days before the meeting or, where the meeting is convened at shorter notice, from the time the meeting is convened; or
(b) by reason of special circumstances, which shall be specified in the minutes, the chairman of the meeting is of the opinion that the item should be considered at the meeting as a matter of urgency.
(5) Where by virtue of subsection (2) above the whole or any part of a report for a meeting is not open to inspection by the public under subsection (1) above
(a) every copy of the report or of the part shall be marked "Not for publication"; and
(b) there shall be stated on every copy of the whole or any part of the report the description, in terms of Schedule 12A to this Act, of the exempt information by virtue of which the council are likely to exclude the public during the item to which the report relates.
(6) Where a meeting of principal council is required by section 100A above to be open to the public during the proceedings or any part of them, there shall be made available for the use of members of the public present at the meeting a reasonable number of copies of the agenda and, subject to subsection (8) below, of the reports for the meeting.
(7) There shall, on request and on payment of postage or other necessary charge for transmission, be supplied for the benefit of any newspaper
(a) a copy of the agenda for a meeting of a principal council and, subject to subsection (8) below, a copy of each of the reports for the meeting;
(b) such further statements or particulars, if any, as are necessary to indicate the nature of the items included in the agenda; and
(c) if the proper officer thinks fit in the case of any item, copies of any other documents supplied to members of the council in connection with the item.
(8) Subsection (2) above applies in relation to copies of reports provided in pursuance of subsection (6) or (7) above as it applies in relation to copies of reports provided in pursuance of subsection (1) above.]
[100C Inspection of minutes and other documents after meetings
(1) After a meeting of a principal council the following documents shall be open to inspection by members of the public at the offices of the council until the expiration of the period of six years beginning with the date of the meeting, namely
(a) the minutes, or a copy of the minutes, of the meeting, excluding so much of the minutes of proceedings during which the meeting was not open to the public as discloses exempt information;
(b) where applicable, a summary under subsection (2) below;
(c) a copy of the agenda for the meeting; and
(d) a copy of so much of any report for the meeting as relates to any item during which the meeting was open to the public.
(2) Where, in consequence of the exclusion of parts of the minutes which disclose exempt information, the document open to inspection under subsection (1)(a) above does not provide members of the public with a reasonably fair and coherent record of the whole or part of the proceedings, the proper officer shall made a written summary of the proceedings or the part, as the case may be, which provides such a record without disclosing the exempt information.]
[100D Inspection of background papers
[(1) Subject, in the case of section 100C(1), to subsection (2) below, if and so long as copies of the whole or part of a report for a meeting of a principal council are required by section 100B(1) or 100C(1) above to be open to inspection by members of the public
(a) those copies shall each include a copy of a list, compiled by the proper officer, of the background papers for the report or the part of the report, and
(b) at least one copy of each of the documents included in that list shall also be open to inspection at the offices of the council.]
(2) Subsection (1) above does not require a copy . . . of any documents included in the list, to be open to inspection after the expiration of the period of four years beginning with the date of the meeting.
(3) Where a copy of any of the background papers for a report is required by subsection (1) above to be open to inspection by members of the public, the copy shall be taken for the purposes of this part to be so open if arrangements exist for its production to members of the public as soon as is reasonably practicable after the making of a request to inspect the copy.
(4) Nothing in this section
(a) requires any document which discloses exempt information to be included in the list referred to in subsection (1) above; or
(b) without prejudice to the generality of subsection (2) of section 100A above, requires or authorises the inclusion in the list of any document which, if open to inspection by the public, would disclose confidential information in breach of the obligation of confidence, within the meaning of that subsection.
(5) For the purposes of this section the background papers for a report are those documents relating to the subject matter of the report which
(a) disclose any facts or matters on which, in the opinion of the proper officer, the report or an important part of the report is based, and
(b) have, in his opinion, been relied on to a material extent in preparing the report,
but do not include any published works.]
[100E Application to committees and sub-committees
(1) Sections 100A to 100D above shall apply in relation to a committee or sub-committee of a principal council as they apply in relation to a principal council.
(2) In the application by virtue of this section of sections 100A to 100D above in relation to a committee or sub-committee
(a) section 100A(6)(a) shall be taken to have been complied with if the notice is given by posting it at the time there mentioned at the offices of every constituent principal council and, if the meeting of the committee or sub-committee to which that section so applies is to be held at premises other than the offices of such a council, at those premises;
(b) for the purpose of section 100A(6)(c), premises belonging to a constituent principal council shall be treated as belonging to the committee or sub-committee; and
(c) for the purposes of sections 100B(1), 100C(1) and 100D(1), offices of any constituent principal council shall be treated as offices of the committee or sub-committee.
(3) Any reference in this Part to a committee or sub-committee of a principal council is a reference to
(a) a committee which is constituted under an enactment specified in section 101(9) below or which is appointed by one or more principal councils under section 102 below; or
(b) a joint committee not falling within paragraph (a) above which is appointed or established under any enactment by two or more principal councils and is not a body corporate; or
[(bb) the Navigation Committee of the Broads Authority or]
(c) a sub-committee appointed or established under any enactment by one or more committees falling within [paragraphs (a) to (bb)] above.
(4) Any reference in this Part to a constituent principal council, in relation to a committee or sub-committee is a reference
(a) in the case of a committee, to the principal council, or any of the principal councils, of which it is a committee; and
(b) in the case of a sub-committee, to any principal council which, by virtue of paragraph (a) above, is a constituent principal council in relation to the committee, or any of the committees which established or appointed the sub-committee.]
... ( ( ( ( ( ...
[100H Supplemental provisions and offences
(1) A document directed by any provision of this Part to be open to inspection shall be so open at all reasonable hours and
(a) in the case of a document open to inspection by virtue of section 100D(1) above, upon payment of such reasonable fee as may be required for the facility; and
(b) in any other case, without payment.
(2) Where a document is open to inspection by a person under any provision of this Part, the person may, subject to subsection (3) below
(a) make copies of or extracts from the document, or
(b) require the person having custody of the document to supply to him a photographic copy of or of extracts from the document.
upon payment of such reasonable fee as may be required for the facility.
(3) Subsection (2) above does not require or authorise the doing of any act which infringes the copyright in any work except that, where the owner of the copyright is a principal council, nothing done in pursuance of that subsection shall constitute an infringement of the copyright.
(4) If, without reasonable excuse, a person having the custody of a document which is required by section 100B(1) or 100C(1) above to be open to inspection by the public
(a) intentionally obstructs any person exercising a right conferred by this Part to inspect, or to make a copy of or extracts from, the document, or
(b) refuses to furnish copies to any person entitled to obtain them under any provision of this Part
he shall be liable on summary conviction to a fine not exceeding level 1 on the standard scale.
(5) Where any accessible document for a meeting to which this subsection applies
(a) is supplied to, or open to inspection by, a member of the public, or
(b) is supplied for the benefit of any newspaper, in pursuance of section 100B(7) above,
the publication thereby of any defamatory matter contained in the document shall be privileged unless the publication is proved to be made with malice.
(6) Subsection (5) above applies to any meeting of a principal council and any meeting of a committee or sub-committee of a principal council; and, for the purposes of that subsection, the "accessible documents" for a meeting are the following-
(a) any copy of the agenda or of any item included in the agenda for the meeting;
(b) any such further statements or particulars for the purpose of indicating the nature of any item included in the agenda as are mentioned in section 100B(7)(b) above;
(c) any copy of a document relating to such an item which is supplied for the benefit of a newspaper in pursuance of section 100B(7)(c) above;
(d) any copy of the whole or part of a report for the meeting;
(e) any copy of the whole or part of any background papers for a report for the meeting, within the meaning of section 100D above.
(7) The rights conferred by this Part to inspect, copy and be furnished with documents are in addition, and without prejudice, to any such rights conferred by or under any other enactment.]
i) to make copies of the Report available to members of the public present at the Panel meeting on 12 November (it being a sub-committee of the Council): ss.100B and 100E;
ii) to supply copies of the Report on request to any newspaper: s.100B;
iii) to make a copy of the Report available for inspection at its offices at all reasonable hours: ss.100B, 100C, 100E.
iv) to supply copies of the Report to any person who required one: ss.100B, 100C, 100E, and 100H.
1) She draws attention to the fact that s.100B(6) provides for local authorities to make available at meetings, for use by the public " copies of the agenda and of the reports for the meeting". She submits that, whereas the reports submitted to the sub-committee by the various officers for the purposes of the 12 November meeting were "reports" within the meaning of that provision, the Review Team's Report itself was no more than a background paper to the officers' joint report.
2) So far as background papers are concerned, there is a discretion rather than a duty to provide copies to newspapers: s.100B(7). Thus, there would be a discretion to be exercised on the part of the "proper officer" with regard to the Review Team's Report. Miss Page goes on to argue that there was in fact no exercise of that discretion, in this instance; alternatively, if the discretion was exercised, this was not in accordance with law.
3) Next, she submits that there was no statutory duty to make a background paper available for inspection if it contained "exempt information": s.100D(4). Alternatively, if the statutory duty arises to make "background papers" available for inspection by virtue of inclusion on the list referred to in s.100D(1), this would be contingent upon a lawful exercise of discretion with respect to the paper in question. Miss Page submits that no such discretion was exercised here (the Council not realising that there was a discretion) or, if it was, it was exercised unlawfully.
4) The sections relied upon in the defence, on behalf of the City Council, relate to "reports for a meeting" rather than to "background papers". Thus, the same reasoning would apply, Miss Page submits, as she has advanced at (3) above. Moreover, s.100H(2)(b) provides for persons to whom a document is available for inspection to "require" the Council to provide a copy; yet the distribution of the Review Team's Report went beyond those actually requesting a copy.
5) Finally, Miss Page argues that if the Report is to be classified as a "report" for statutory purposes, rather than merely as a "background paper", the Council would still be bound to consider whether or not to make it available because it contained "exempt information". Again, either that discretion was not exercised at all or, if it was, it was exercised unlawfully.
"If the proper officer thinks fit, there may be excluded from the copies of reports provided in pursuance of subsection (1) above the whole of any report which, or any part of which, relates only to items during which, in his opinion, the meeting is likely not to be open to the public".
"(a) is supplied to, or open to inspection by, a member of the public, or
(b) is supplied for the benefit of any newspaper, in pursuance of section 100B(7) above".
"for the purposes of this section the background papers for a report are those documents relating to the subject matter of the report which
(a) disclose any facts or matters on which, in the opinion of the proper officer, the report or an important part of the report is based, and
(b) have, in his opinion, been relied on to a material extent in preparing the report,
but do not include any published works".
1. There could have been no true exercise of discretion at all, because it had already been decided, well in advance of the receipt of the Review Team's Report, that it would be published qua background paper.
2. Any true exercise of discretion was vitiated by the improper purpose for which the Council was acting; namely, as Miss Page would argue, that of "laundering" the Report through the sub-committee (or Panel) when knowing it to be fatally flawed, or being reckless as to its truth or falsity.
3. Any true exercise of discretion would be unlawful because, on any sensible view, the joint officers' report was not actually based on the Review Team's Report; nor had they relied upon it to any material extent for the preparation of their own report. They were concerned more with the availability of the Review Team's Report rather than its content.
15) The City Council's evidence on qualified privilege and malice
The "one-off" approach to publishing the Report
"The only thing that I am aware of with regard to this report, and the way in which it was handled, is that it attracted qualified privilege in the way in which it was received. That is all that I can say of my own knowledge".
As Mr Flynn confirmed in the witness box, the Council were concerned about the "victims", and that was that.
"The clear impression given is that Lillie and Reed were among the most disorganised and chaotic abusers in the history of child care, an unusual feature of abusive personalities".
"I am writing to him privately and confidentially, and I am preparing him here mentally and psychologically for him dealing with the massive compensation claims that I believe were coming next. So I am not preparing him for the Shieldfield Abuse Inquiry, which in a sense is over and done with as far as I am concerned. I am preparing him for what is coming next".
" there are examples of men and women who are not married, are not together in a family sense, or in a personal relationship sense, who have killed children and abused children in a very bad way. So it is a well-known thing and many of them again were chaotic type people".
"I am not a lawyer, my Lord, but if I find something in the course of my work which my employer should know about, then I should tell my employer and here was a view that I had formed after extensive study".
"We felt the Report confirmed our suspicions. We saw no reason not to publish in those circumstances. It was, as I said earlier, the independent Review panel's report. It was not the City Council's".
"You are invited to attend a press conference at 10 a.m. tomorrow 12 November. The leader of the Council, Tony Flynn, will chair the conference and issue a press statement. David Bell and Tom Dervin will be in attendance. Copies of the Report and summary will be issued at 10 a.m.".
"Miss Page: You knew presumably when you met on 12 November that the Review Team had complied with the requirement to submit the Report to the City Council via the Chief Executive. Did you know that?
Mr Arnold: Yes.
Miss Page: It was for you, not the Chief Executive or his fellow officers, to determine its publication date, was it not?
Mr Arnold: That is correct.
Miss Page: In order to determine its publication date you needed to be fully informed, did you not, of the implications of publication?
Mr Arnold: Yes.
Miss Page: But you simply, in a 10 minute meeting on 12 November, rubber stamped a recommendation by your officers to publish it, did you not?
Mr Arnold: Yes.
Miss Page: You had not even read the document, had you, when you decided to publish it?
Mr Arnold: That is correct.
Miss Page: When you read it, you had some reservations, you say?
Mr Arnold: Correct.
Miss Page: Did you have an opportunity even to glance at it at the pre-meeting?
Mr Arnold: No.
Miss Page: Did you know that it was going to result in the public of Newcastle, including parents of children who had come into contact with Christopher Lillie and Dawn Reed, [learning] that their children may have been subjected to abuse, including rape, buggery, cutlery in their vaginas, other objects up their bottoms, injections in order that they could be abused at locations by strangers? Did you know any of that before you launched this Report on the public of Newcastle?
Mr Arnold: No."
"My belief then was, and still is, that the public interest was served best by full disclosure of the recommendations of the Review Team."
" the understanding with the Review Team [was] that it was their Report, that it was an independent Report that should be released to the Council at the same time as released to the wider public. The proviso the Council made was that the Q.C. should legally check the Report, so that it was not libellous and it would not place the Council in a difficult position".
"The records were not being disclosed to third parties. There was no question at any time of going to a court for an order for disclosure. The entire basis of the Review was for social work purposes . It is a matter for the Social Services authority to decide how those records are used (provided they are used for social work purposes)".
"Miss Page: You lent Dr Barker the local government democratic system in order to put his report, naming them as paedophiles, into the public domain?
Mr Scott: We did not lend the system to Dr Barker. The process of publication in respect of that Report was the proper process. The Report had to come to a committee of the Council.
Miss Page: You lent it to him for the sole purpose of giving him the legal protection he required, and the Council required, in order to publish material that you knew ought never to have been published?
Mr Scott: No".
"You did not care - you did not give a damn, did you, whether this Report was true or untrue about them, endangering their lives or otherwise; you simply did not care, you were totally indifferent to it, were you not?"
"We were not indifferent. We engaged a Review Team to investigate the circumstances in relation to these events over a long period of time".
17) A brief summary of findings