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Cite as: [2002] EWHC 1600(2) (QB)

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Neutral Citation Number: [2002] EWHC 1600 (QB)
Case No: HQ9903605, HQ9903606

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL
30 July 2002

B e f o r e :

THE HONOURABLE MR JUSTICE EADY
____________________

Between:
CHRISTOPHER LILLIE
&
DAWN REED
Claimants
- and -

(1) NEWCASTLE CITY COUNCIL
(2) RICHARD BARKER
(3) JUDITH JONES
(4) JACQUI SARADJIAN
(5) ROY WARDELL

Defendants

____________________

Miss A Page Q.C. and Mr A Speker (instructed by S.J. Cornish) for the Claimants
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

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Child 10

  1. Child 10 was born on 3 July 1989 and joined the Orange Room at Shieldfield on 27 August 1991. Dawn Reed was working there at the time and Christopher Lillie joined her on 16 October of the same year. When they both moved to take over the Red Room at the end of February 1992, Child 10 went with them. He moved on to the Yellow Room in mid-June 1992. He generally attended full-time during this period but at some point in the Yellow Room he reduced to four days a week. He left Shieldfield finally on 3 September 1993.
  2. Child 10 was one of the six children in respect of whom the Claimants faced criminal proceedings. The Defendants make wide-ranging and very grave allegations. Mr Lillie is alleged to have inserted fingers or other objects into his anus, pulled at his genitals, squeezed his leg, hit his bottom, punched him, masturbated in front of him, urinated over him, tied him up and threatened to poke his eyes if he told anyone. Miss Reed is said to have been present and encouraged or permitted some or all of these activities. Cogent evidence is required to establish such a litany of wickedness.
  3. When he was examined on 1 September 1993, there were no abnormal genital or anal findings. Nevertheless, this is clearly a worrying case in the light of the boy's statements and behaviours. Dr Sandra Hewitt was of the view that his behaviours and their frequency strongly suggested trauma arising from sexual abuse in the Red Room. Professor Friedrich referred to his persistent behavioural regression, sexualisation and symptoms of post-traumatic stress disorder, which he thought in keeping with the child's "considerable exposure to the care of Lillie and Reed". He observed that as much as any child in the Shieldfield group he combined verbal disclosures with physical positioning as if he were reliving the experience. He found it compelling as an indication of sexual abuse by Mr Lillie and Miss Reed. I have already noted, however, at paragraphs 457-460 above how unsatisfactory Professor Friedrich's approach was to this child.
  4. As I have already discussed, there is a very important factor to be weighed in relation to this child in the form of his subsequently diagnosed ADHD. He had a long term pattern of behavioural problems which presented his (single) parent with a very heavy burden. This pattern was, however, already established before he arrived at Shieldfield. Even his mother used to describe him as "a little rocket". There had been a visit to a therapist before any concerns arose about the possibility of abuse at Shieldfield. The GP had suggested referral to the Nuffield in (she thought) February 1993.
  5. It is clear from the Day Book that he was a handful at Shieldfield from the outset. There were tantrums and, although his mother was reluctant to confirm this, I am also satisfied that there was a regular pattern of aggression towards his peers (mainly in the form of pushing). Dawn Reed made a note on 16 September 1991, presumably because she thought it a good sign, that for the first time he "cuddled a child after hurting them".
  6. When allegations began to be made about Mr Lillie and Miss Reed in the Spring of 1993, Child 10's mother had no concerns. She thought everyone had gone "barking mad" and that "the whole thing was ludicrous". What is more she wrote letters of support to Mr Lillie and Miss Reed. She wrote to Miss Reed in the following terms:
  7. "Dear Dawn
    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"
  8. Now, with the benefit of hindsight, this mother like a number of others regards herself as having been at that stage, as the jargon goes, "in denial". The social workers were doing the rounds visiting all Shieldfield parents and things really changed for her shortly after she received what she described as her "automatic" visit. She told Isabella Hepplewhite that she did not believe the allegations and trusted Mr Lillie and Miss Reed. Nevertheless, she talked to her "quite a lot about [Child 10's] behaviour". She added, "but at the end of the meeting I had a very different feeling than I had had prior to it, in that I felt maybe I should consider that something may have happened". A fundamental problem here is that Isobel Hepplewhite was given a description of Child 10's behaviour which she was only too ready to attribute, at least as a matter of first impression, to child abuse. She wrote a letter to Dr Kaplan, the consultant psychiatrist on the day of the visit. It concluded with the words:
  9. "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".
  10. Unhappily what Ms Hepplewhite did not (and indeed could not) know at that stage was that this child was affected by ADHD.
  11. There is no doubt that, quite apart from his behaviour, Child 10's eventual verbal "disclosures" are among the most striking and lurid of all. It is clearly necessary, on the other hand, to approach them with the greatest caution. The first disclosure was on 16 August 1993 (i.e. 14 months after his moving on from Mr Lillie and Miss Reed). As in other instances in this case, it came about as a result of questioning by the mother at the suggestion of a social worker (Isobel Hepplewhite) who had visited her that very day. He said that Chris was nice except when he had taken Child 10 to his house (and he mentioned a lift). He said that on such occasions Chris had hit him and pulled his hair. There was nothing sexual at that stage. The vehicle for his description was a Sooty puppet. He demonstrated that "Chris goes biff, biff, biff, to Jo".
  12. It is important at this stage to record that there was a "Jo" in Child 10's day to day life (a female friend of his mother), whose home Child 10 was used to visiting. Jo was someone who had earlier lived in Child 10's home and had babysat for him.
  13. The mother was inclined in her evidence on 11 and 12 March to explain that the child did not really mean that Chris had been to Jo's home or attacked her. (He had, of course, done neither.) She says that one has to transpose the whole scene so that it takes place in Mr Lillie's own home and that it was Child 10 he attacked - not Jo. I am not prepared to make that leap of faith. The account the child gives is anchored very much not only to Jo's flat but also to Jo personally. That story is obviously not founded in fact, and there is no way that any adult can filter out fundamental elements, substituting others, and have any confidence in the final version.
  14. It was submitted for the Review Team, somewhat creatively, that:
  15. "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.
  16. In accordance with Professor Bruck's preferred practice, Child 10 was interviewed on video shortly afterwards (on 18 August). In the meantime, on 17 August, Isobel Hepplewhite had returned to Child 10's home with Helen Foster and debriefed the mother on her son's story of the previous evening. Sooty again played a leading role at the video suite. Helen Foster was supposed to be conducting the interview but the dialogue to a large extent takes place through the puppet. The mother was also present. It appears that he was unable to bring to mind who the teachers were in his "old class", but Helen Foster was persistent: "Sooty says he bets you can remember who the teachers were in the Red Room". The idea that someone's liberty and whole future career could depend on this level of evidence-gathering is sobering indeed. Despite this technique, Child 10 still was unable to bring either Mr Lillie or Miss Reed to mind.
  17. Helen Foster was undaunted: "I'll see if Sooty can remember. Sooty says 'were your teachers nice people?'" The response was not, however, what she wanted. When Child 10 replied that they were, his mother said "He's lost". Thus both adults present were proceeding on the assumption that he had been abused by the Red Room staff and that it was only a question of finding a way to unlock the information.
  18. Sooty then asked a leading question, "Was one of your teachers called Dawn?" As leading questions so often do, this triggered a more specific response: "Yes. But one of them was Chris". He then goes on to volunteer (apparently) that Chris was nasty and horrible to everyone. These propositions were (naturally for a child of that age) expressed in the present tense. Thus, it is possible that the child was giving his own recollection from the time he was two years of age, or that he was giving an answer he thought the "police lady" and his mother wanted to hear, or that he was reflecting the negative "press" which the Claimants had been receiving at Shieldfield over the last four months.
  19. Through Sooty further details were elicited. It is an obvious risk (borne out by the expert evidence of Dr Cameron) that if a child is invited to enter a dialogue with a teddy bear or puppet he will think he is playing a game and fantasise accordingly. He proceeded to demonstrate the "biffing" he was given by Chris but confirmed that this had taken place at Jo's flat. In case there was confusion about the location, he re-affirmed that Jo was a woman he visited with his mother. What is thus clear beyond doubt is that once again the child was indeed fantasising. No such incident occurred. Nevertheless, he does assert that he was hurt by the "biffing" in his genitals and bottom. Dawn Reed, incidentally, he acquitted of any involvement.
  20. As so often in these interviews, given the shaky grip of small children on concepts of future and past, the child stated that he was wearing the same clothes during the supposed violent attack as those he was wearing at the interview (at least 14 months later).
  21. Child 10 confirmed that the incident had taken place at Jo's flat. In due course Helen Foster left the room but permitted the interview to continue (quite inappropriately) with the mother interrogating the child through Sooty. Tellingly, the mother uttered the following words: "And remember what I said it was very important that you had to tell about what Chris did". This certainly does not instil any confidence in the process at all.
  22. Eventually Helen Foster returned. Both adults continued to question the child. Rather curiously Child 10 introduced a new element of fantasy by saying that "Chris" had no hair and no arms (despite being able to "biff"). Nonetheless, by some means or other, he hurt him under his trousers but over his underwear.
  23. Through Sooty Child 10 was asked what Dawn did (despite his earlier denial that she had done anything). This time, perhaps to please his interrogators or to get them off his back, he alleges against "Dawn" also that she punched him at Jo's flat on the genitals and the bottom – this time over his clothes and underwear. The whole account is fantasy and I propose to treat it as such. (It is always to be remembered that criminal proceedings were brought in respect of this child.) At the conclusion of the interview Ms Hepplewhite recorded what impact the interview had made:
  24. "[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."
  25. The next day, after a telephone call, there was yet another home visit. The mother was saying at that stage, perhaps significantly, that after the video experience her son was "fine" but she herself was still "dazed". She reported that the previous evening the child had talked again of being in a lift and that there were ghosts but, crucially, she added that he went on to associate his thoughts with something he had seen on television. Although this mother was still able to be reasonably objective, it illustrates how easy it is, once social workers have rattled a parent, for everything a child says to be over-interpreted.
  26. In a rather chilling note, the social worker also recorded on 19 August:
  27. "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".
  28. A second interview took place on 4 October. This was the same day as Child 14's first interview (the one in respect of which the Review Team falsely claimed that she alleged rape). In the course of that interview she alleged that Child 10 had been on a visit with her to "Chris's house". He was obviously on her mind because earlier in the interview she asked whether he had been to the video suite that day (as indeed he had). They had been for a time together in the same room at Shieldfield but had just come together again at a new school. Child 10 never confirmed Child 14's involvement of him in this story.
  29. Returning to Child 10's second interview, it seems that the objective was to persuade him to repeat something he had said to his mother "the other night in bed". All he would say (Helen Foster having withdrawn) was that Chris had punched him at Jo's flat – but this time solely on the mouth and head. That would, of course, be serious in itself but it was quite a different account from that given on the previous occasion, albeit equally fictitious. These allegations were only made after a good deal of questioning and at a stage when the child had decided to go home. That would in itself cast doubt on a small child's allegation, as it might be made purely to bring the process to an end, but it should already have been clear by that stage that the child had no cogent evidence to give.
  30. By December, Child 10 was apparently saying that Chris had pushed his wand into Child 5 in the Red Room causing her to scream. The mother suggested to police that this might be due to the fact that Child 10 was interested in wands at that stage – not least because Sooty used one. He also wanted to be given a wand as a present. It will be remembered that Child 5 was never in the Red Room and only overlapped in Shieldfield with Mr Lillie, in any event, for a few days prior to 7 April 1993. No experts are now prepared to support the suggestion that she was abused, and there has been no parental evidence. Not surprisingly, however, when Child 10's mother passed the allegation on to them (via her aunt) it alarmed her parents. Child 5 had no recollection of any such incident.
  31. The mother of Child 10 readily acknowledged that one of the subjects on which she had led her son was that of "needles". This followed a conversation with the mother of Child 14. She approached her because her daughter had mentioned Child 10 in that context.
  32. She agreed that she had herself had counselling in roughly the Spring of 1994 and that she had also attended parents' support group meetings. Parents she met by this means would have included those of Children 1, 2, 14 and 24. She also became friendly with the parents of Children 6 and 30. This all goes to underline the scope for swapping accounts of alleged abuse and particular concepts (such as lifts, clowns, etc.) or sources of anxiety.
  33. She agreed also that she became something of an activist and spoke of her experiences as the mother of an abused child at a conference in 1995. Her participation had been organised by the mother of Child 30. Others who were involved in the conference included parents who had been affected by the Jason Dabbs case. Judith Jones had also participated in organising the conference. The witness regarded her as another local activist. As a matter of fact, she also knew Judith Jones personally through having worked for her (cleaning her home) in 1994 – not something that Judith Jones saw fit to declare before publicly pronouncing the Claimants guilty of having abused Child 10. It may well have made no difference, and both witnesses downplayed the significance of this, suggesting that they had not even discussed the subject of Child 10's abuse. That may seem unlikely, but I see no reason to disbelieve them on this matter.
  34. Dr San Lazaro was offering advice generally to various parents and the mother of Child 10 found her a calming influence because she understood the nature of why and how children "disclose" (or so she claimed). Unfortunately Dr San Lazaro's "advice" tended to be a contaminating influence because she had decided at a very early stage that the "alleged perpetrators" had been guilty of multiple abuse and was not averse to spreading ideas from parent to parent. (That was confirmed, for example, by the mother of Child 29.)
  35. The mother agreed that her attitude had changed in August 1993 as a result of meeting the social worker Isabella Hepplewhite. It was only then that she began to think it was possible that her son had been abused by the Claimants. The way she set about questioning her son, however, did not derive from the social worker. It was she who decided to interrogate her son using Sooty. She decided to play a kind of game, involving saying which people were "nice" and which were "not nice".
  36. The witness was referred to her police statement of 23 August 1993, in which she appeared to be saying that it was she who had introduced "bottoms" into the discussion with her son. She did not, however, accept that the police had accurately recorded what she was saying. She was extremely traumatised when she made those statements and may not have been paying very close attention to what the police were writing down (or, by inference, to what she signed). Miss Page was asking her about a sentence which began, "I then asked [Child 10] if Chris had ever looked at his bottom and he pointed and prodded to the bottom area on a teddy he had...". There does not seem to be much scope for misunderstanding that sentence.
  37. It thus looks very much as though the mother introduced "Chris" (but not necessarily "Dawn") into the "nice and nasty" game, and that she too introduced "Chris" into the context of bottoms. She also subsequently (in the following October) introduced the subject of needles following the approach by the mother of Child 14. One can readily see how it all came about and why (mainly as a result of Isobel Hepplewhite's approach in August) she had become anxious. But, with the benefit of hindsight, one can easily see also how unsatisfactory this process was. In particular, it raises considerable doubt over the weight that should be attached to Child 10's account on these topics.
  38. The matter does not stop there, however, since once she had started the ball rolling, Child 10 went on to make further disclosures, which I have already described as "striking and lurid". Following the video experience, he spoke of being hurt with a knife in a high rise block of flats. He mentioned also, apparently, masturbation, injections in his bottom administered by Dawn Reed, and of Mr Lillie and Miss Reed with no clothes on, fighting on a bed, and of Mr Lillie urinating on his face. He later said that lots of "Chrises and Dawns" had urinated on his face. He had been buggered by Mr Lillie and said that he had an erection and that "sweeties would come out and he [Child 10] would get some". Dawn and Chris were coming to kill him.
  39. He said that Chris had kissed his [Child 10's] private parts and that he had seen Dawn with no knickers on, that her private parts were furry and that he [Child 10] had put cream on them. In this context, I am asked to bear in mind evidence to the effect that on 29 December 1994 the child asked his mother not to go round the house in a state of undress as it reminded him of Mr Lillie and Miss Reed. I do not know how "undressed" his mother was or how regular a habit this may have been in the home. It is a sensitive area, and I have to be wary of jumping to conclusions about what effect (if any) it may have had on his apparently vivid descriptions of various bodily parts. What is clear is that there was a large element of fantasy in what Child 10 was saying at this period in his life. There was also apparently an instance of exhibitionism when on 18 November he came downstairs (aged 5 years 4 months) without trousers or underpants in order to demonstrate "what the man had done". It is important to remind myself that he left the care of Mr Lillie and Miss Reed some two and a half years before (and that exhibitionism is a characteristic symptom of ADHD).
  40. Dawn Reed was also alleged to have put a napkin round his mouth and tied him and other children up with coloured string. She had also picked him up and put him in a cupboard with no handle or windows, but that he had turned into a gladiator and killed everyone. He also spoke of Chris and Dawn swapping bodies and heads. None of this has any obvious meaning.
  41. By 1995-1996 he was expressing concern that Mr Lillie and Miss Reed had not gone to prison and asked how he could be sure that they were not abusing other children. There seems to be no doubt that he and his mother believe, and always will, that he was regularly abused in the most horrendous ways but the accounts given are wild and implausible. Moreover, there is no corroboration for any of it.
  42. Dr Cameron listed 31 worrying aspects of Child 10's behaviour and noted how in about 1995-1996 after medication was prescribed for ADHD he responded effectively. He said that impulsivity and disinhibition, particularly indecent exposure, are characteristic of untreated ADHD. His strange behaviour could largely be accounted for by his developmental problems together with certain domestic factors. It seems to me that his verbal disclosures have to be approached in the light of this evidence too.
  43. Child 10 was in the Yellow Room for the whole of the time between the suspensions and the beginning of September 1993. When a child with undiagnosed ADHD is exposed to the rumours circulating that summer and, what is more, to the sexualised antics of Child 87, it is necessary to recognise that one has a very powerful brew indeed.
  44. This case also provides a vivid illustration of how belief in the Shieldfield "scandal" spread from person to person. Just as the mother of Child 10 had originally been incredulous, and supportive of Miss Reed, so too had Diane Wood. She spoke out in very positive terms about Dawn Reed, as I have recorded above. Once, however, the mother of Child 10 had been converted, Diane Wood was also persuaded that Dawn Reed could, after all, be a child abuser. The mother of Child 10 would also no doubt have stirred up anxiety on the part of Child 5's parents when she mentioned the "wand" episode in December 1993. So too, she herself would have been alarmed by talk of "needles" passed on to her by Child 14's mother.
  45. Child 11

  46. This child was born on 23 May 1989. She began at Shieldfield on 5 August 1991 with Dawn Reed, who was at that stage not in the Red Room but in what was to become the Orange Room. She was joined there by Mr Lillie on 16 October 1991. The child left their joint care on 2 March 1992, when they took over responsibility for the Red Room, because she remained in the Orange Room. She later transferred to the Yellow Room on 26 August 1992. She generally attended full time, although on some occasions 3-4 days per week. She left Shieldfield altogether in September 1993.
  47. Child 11's mother gave evidence before me on 25 and 26 March. Like the other parents, she is firmly of the view that her daughter was abused at some stage by the two Claimants. It is something which caused her great anxiety both at the time and over the intervening years. There were times when she found the process of giving evidence in itself distressing.
  48. Like some other parents, one of the sad consequences of coming to believe that her child was abused is that she has tended to blame herself. She was already feeling guilty to some extent, so she told me, because she was embarking on a time-consuming university course with one small child to look after and, after her son was born on 8 March 1992, with two. She was apparently getting a certain amount of pressure from her partner's parents and her own mother, who rather took the view that she ought to have been looking after the children full-time – at least in the early years. On looking at the Day Books, she also reacted sensitively because she thought that the staff at the Nursery were making too many notes about her and her activities, and not enough about Child 11 or (subsequently) her brother. For example, notes were made from time to time that she referred to Child 11's eczema and was informing the staff that this might sometimes be a reaction to stress. I am afraid that the mother of Child 11 was unduly sensitive about this issue, since (rightly or wrongly) the Day Books at that time all had a space for remarks under "Parents". This was to enable them to record information which the parent or parents had given to staff, or alternatively matters which the staff wished to pass on to the parents.
  49. The mother of Child 11 is another witness for whom the traumatic experience of the Shieldfield "scandal" has meant that she now views events through a somewhat distorted memory. This is apparent from comparing her own (quite sincere) beliefs as to what was happening with the contemporaneous records.
  50. Two matters in particular stand out. First, although she believes that Child 11 regressed in toilet training and began to wet herself while under the care of Mr Lillie and Miss Reed, the Day Books clearly demonstrate that this problem really began after she left their care. There are many entries, in particular, by Amanda Caisley. The mother responded several times in the witness box by saying that she did not trust the records kept by Mr Lillie and Miss Reed. It is a point which others have made. I am conscious, of course, that paedophiles or child abusers can be very manipulative. On the other hand, I have to bear in mind that there are many, many entries both by Mr Lillie and by Miss Reed in various Day Books recording incidents of wetting or soiling and, indeed, other behavioural features of children which could easily be attributable to stress of any kind (including child abuse). There is no reason to suppose that they should be economical with the truth over wetting specifically in relation to Child 11, and her alone. I see no reason to doubt the general pattern which emerges from the written records.
  51. The other aspect of the Day Book entries is that it is quite apparent that Child 11 very much enjoyed the Nursery and, for the most part, got on well with the staff and fellow pupils. It is necessary to take account of the fact that a new sibling arrived on the scene in March 1992, and that this would have been bound to affect her in various ways. She was obviously competing for her mother's attention at that time, as almost always happens. There is a record on one occasion, just after he began at the Nursery, of the child being rather fixated on her young brother and going to the Baby Room to keep an eye on him. She also picked up a teddy bear on that occasion and treated it as her own "baby". It was also about this time that the problem of wetting became prominent. Mr Lillie and Miss Reed, as I have already noted ceased to be her carers just a week before her brother was born.
  52. Apart from these understandable factors, however, the general pattern is of an intelligent and lively child. It appears from the Social Services file note on 19 May 1993, when the mother was first interviewed, that she was describing Child 11 as an "articulate child who can embroider stories" and, moreover, that "Chris and [Child 11] have a good relationship". The mother was also apparently telling the Social Services on 13 July 1993 that "there have never been any concerns about [Child 11] or her brother". The same message was being conveyed in that month to police officers, when Constable Kinghorn and Det. Sgt. O'Hara visited the mother. Once again, however, the mother now views the historical position rather differently with the benefit of hindsight. Despite all these contemporaneous records, she now says that she did have concerns about Child 11 at that time, and indeed that she had had such concerns from shortly after she entered Shieldfield Nursery. In so far as she was expressing herself as not having any real concerns at the time, she now construes this as her having been "in denial".
  53. It is also to be noted that when she subsequently started making "disclosures" Child 11 claimed to have visited "Chris's house" with other children whom she identified. These were children, however, who were with her during her period in the Yellow Room. They had not been under the care of Mr Lillie or Miss Reed. It is interesting to note that in a record dated 26 July 1993 Kulvinder Chohan, one of the social workers, was drawing to the mother's attention that neither Child 11 nor any other child in the Yellow Room would be expected to go out of the Nursery with other members of staff – in particular, Mr Lillie or Miss Reed. She was relaying to her that she would only have been out during the period of the Yellow Room with Diane Wood and possibly with another child. Despite this, the mother of Child 11 now clearly believes that she was taken out by Mr Lillie and Miss Reed and cruelly abused.
  54. It may be relevant that the child began attending therapy at Barnardo's from 21 September 1993. It was only after this that allegations of indecency or being hurt begin to be made.
  55. For a considerable period of time the mother was reluctant, understandably, to put her daughter through the process of either being medically examined or that of a video recording. Eventually, however, the child was interviewed on video on 24 November 1993. Before that, she had been examined by Dr San Lazaro on 14 October. The relevant entry in her Report of the same date is somewhat confusing:
  56. "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".
  57. I cannot be sure what to make of that. Nor indeed could Dr Watkeys. She considered Dr San Lazaro's comments on both Child 11 and her brother to be "confusing". She is surprised that she made no drawings of her findings in view of the fact that she was claiming it, in her police statement, to be "highly likely" that penetrative trauma had caused the findings. Dr Watkeys emphasised that, in her opinion, the presence of previous significant trauma cannot be confused with a normal variant. As for Dr Ward, she observed that the physical examination did not satisfy diagnostic criteria for sexual abuse, even though there might have been some scarring of the hymen. This is just one example of Dr San Lazaro overstating the case and "beefing up" her findings for the police statement.
  58. It is important in this context to note that the mother had observed Child 11 on various occasions inserting fingers into her vagina and saying that she enjoyed doing it. When asked by her mother where she had learnt to do this, she referred not to Mr Lillie or Miss Reed but to another small girl in the Yellow Room.
  59. As for the video interview, this was conducted for the most part by Vanessa Lyon, although the mother was invited in when the child was perceived by Ms Lyon as being reluctant to speak. There is a classic passage of leading questions under the guise of summing the position up for "Helen", who was not in the room:
  60. "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.
  61. In fact, the child seemed cheerful, friendly and good-natured. She was, like so many of the children, primarily interested in playing with the array of toys accessible in the room. She had nothing very much to say at first, but when pressed came out with allegations to the effect that she had been cut by a multi-coloured knife (not "part of Chris") which had hurt her tummy, and that she had been frightened by as many as 10 men. The child showed no anxiety or distress but was making these observations incidentally to the process of playing – as if almost just to get the interviewer "off her back". The descriptions she gave did not match her manner or emotional state at all. Moreover, she said that although "Dawn" was present she had not hurt her but had told "Chris" that she would tell the police about him. None of this carried conviction.
  62. It was interesting that Professor Bruck, who had previously only seen the transcripts, was asked what she gained from actually seeing the children on tape and replied that it had only then became apparent to her how casual or offhand some of the children's remarks had been. She made the point that some at least appeared to be very much by the way, when the main focus was playing or drawing. It seemed to me that Child 11 provided a very good example of this.
  63. Child 12

  64. This child was born on 15 February 1990. He attended Shieldfield full-time from 1 June 1992 until September 1993, although at one period he was attending four days a week rather than five. He was in the Red Room with Mr Lillie and Miss Reed from the start until 28 August 1992 when he moved to the Orange Room. His first verbal "disclosure" was apparently as early as October 1992 when he began having nightmares, in which he is alleged to have cried out either "Stop it, Chris, Stop it" or "Stop it, Chris don't do that". On the face of it, of course, very compelling but (as with Child 8) a little scepticism is appropriate. It is not always easy to interpret what a child appears to be saying in sleep. At one stage the mother's account included her asking what it was "Chris" was doing (after he woke up). He replied "Nothing".
  65. There were no clinical findings to suggest abuse but Dr San Lazaro introduced an element of drama when he visited her on 11 November 1993. She produced a 10 ml syringe and invited him to use it for transferring lemonade from a bowl to a plastic bottle. When he saw it, Child 12 is said to have recognised it and said "I know about that. Chris had one [i.e. at least 15 months earlier]. He used it to make my bottom nice and not sore. He put special juice in it". Again I find myself a little wary of such a "pat" scenario. By that, I am not suggesting that anyone is not telling the truth about what the child said, but I am sceptical of taking it as a spontaneous and unprompted description of an injection by Christopher Lillie. During the Summer of 1993 there was much going on among children and parents, and I need to be cautious about his account being overlaid with what he had heard. The mother's memory is clearly also unreliable because she put this incident some six months earlier.
  66. A perianal swab yielded haemolytic streptococcus. This is not a sexually transmitted disease but, according to Dr Ward, this was "of interest" since Child 1 exhibited the infection too. It is, however, no longer "of interest", since it was dropped at an early stage of the trial by the Defendants as part of the plea of justification, and quite rightly since it is by no means uncommon in small children. It is perhaps surprising that Dr Ward did not make that clear at the time of her report. It reflects a little on her objectivity.
  67. The background may be of some importance. This child's mother had been concerned since Mr Lillie's suspension in April about the possibility of abuse. She took him to her GP who gave her no encouragement. She instigated a visit to Dr San Lazaro on 24 May 1993. Even she had her doubts and noted on 10 June that the child had made no allegations of abuse himself. She told me on 14 May that "I do not think I was impressed enough with this child to even examine him". Moreover, she observed that it was many months since he left Mr Lillie's care. Rather oddly, however, she referred to him as "the alleged perpetrator" at a time when she had nothing more than an unconfirmed allegation by the mother of Child 22. She agreed with Miss Page that, when she wrote "alleged perpetrator", neither Child 12 nor his mother was alleging that Christopher Lillie was a perpetrator of anything.
  68. The matter was clearly to the forefront of the child's mind as well as his mother's, and on 23 July 1993, the day when he was arrested in connection with Child 23, the boy told other children and staff in the Yellow Room that the police had been to see "Chris" because he was naughty. Three days later, when Miss Reed was arrested, he was again giving the "lowdown" in the Yellow Room and saying that they had been taken away so that they could not be naughty anymore. This confirms my anxiety about treating his statements as reliable. Without a clear explanation as to who was feeding him this information, and why, I must remain sceptical. Miss Page suggested that it came from child 23, but there is no solid evidence to support that. At some point around this time he is also recorded as having told his mother that he had people up his bottom.
  69. The first video interview took place on 9 August 1993. Not surprisingly, on this occasion he also referred to Dawn and Chris as having left the nursery and to the involvement of the police. The child's mother refers to the fact that it was Dr San Lazaro who gave him the information. This, of course, is another warning sign as to her impartiality in these events and as to her role in cross-contamination. After a certain amount of prompting, Child 12 refers to a horrible dog who bit "Chris". This has an odd ring to it, since it rather sounds as though the child has picked up a story involving a dog and given it a twist of his own. He refers to having seen it at Chris's flat which he visited with Children 36, 48 and 87. There are anachronistic aspects to this story. First, it is necessary to recall that at the time Child 12 was in the Red Room Mr Lillie was not yet living with Miss Kelly in Red Barns or with her dog. Secondly, the other three children he refers to were with him in the Yellow Room in the Summer of 1993 – very shortly before the video interview. Two of them had never been in the Red Room, although Child 48 had briefly overlapped. It thus looks as though a familiar phenomenon is at work here. The child is telling a story which he peoples with his current or recent companions, just as several of the children refer to incidents having happened in the past but when they were wearing their present clothes. As it happens, the incident he describes simply could not have happened. It just does not fit.
  70. There was a second interview on 25 November 1993. This had followed a report by the mother to social workers on 9 November that Child 12 was now saying that he had been in bed with Mr Lillie and Miss Reed and that they had put a needle up his bottom. There was also an anal discharge. All this, of course, was well over a year after he had moved on to the Orange Room.
  71. The second interview was quite short and Child 12 immediately announced that Dawn put needles up his bottom to make it wiggly and Chris put orange juice up it to make it not wiggly. He said it was done in his own home and "with the gun from the doctor's". It seems as though this account, at least in part, derives from his experience a few days earlier at Dr San Lazaro's surgery. It was explained by his mother in evidence on 25 April that Dr San Lazaro had actually given her the syringe to take home, so that Child 12 could familiarise himself with it and so that he should lose his fear of it. Whether he had actually displayed any fear at the consultation is not clear, but in any event Dr San Lazaro's intervention creates a significant question mark over the reliance that can be placed on the "injection" allegations. In any event, it appears that he later denied that anything had happened. Kulvinder Chohan recorded on 28 November the upshot of a meeting attended by the mother and child, Julie Kinghorn and Helen Foster:
  72. "[Child 12] had a cold that day and later went on to say nothing had happened".
  73. In February 1994, when he was just four, Child 12 apparently made further allegations (going back at least 18 months). He told his mother that Dawn had slashed an orange with a knife in his presence and told him that she would put his eyes out if he told what happened to him. Moreover, on this occasion Child 11 intervened and tried to wrest the knife from Miss Reed. This lacks the ring of truth, and once again it is necessary to recall that Child 12 and Child 11 did not overlap in the Red Room but had been together in the Yellow Room. They then moved on to the next school which they attended. They were also friends and indeed still are. Thus, it appears to be the same phenomenon at work again. A story is told about the relatively distant past but the characters are from the present or recent past.
  74. It is also significant that the lurid story about Dawn Reed slashing an orange came in the immediate aftermath of watching a highly unsuitable film called Jumping Jack Flash.
  75. The story found its way into the Newcastle Journal on 28 November 1998 under the heading of "Legacy of fear for young victims of nursery nightmare". The film was said to have caused the boy to begin screaming uncontrollably. His mother is quoted as saying "Dawn Reed used to stab at an orange and threatened to do the same to his eyes. You never know what is going to trigger off flashbacks to the horrors they suffered". In the course of the mother's cross-examination, she was shown certain extracts from the dialogue. It was full of swearing, sex and violence of a rather outlandish variety which could well be harmless for teenagers or adults but which was quite capable of frightening a child of four, or stoking up his imagination, or a combination of the two. The mother's recollection was that the film had been shown before the evening watershed and therefore must have been heavily edited. That was somewhat vague, however, and the point remains in my judgment a telling one.
  76. Child 14

  77. It is by now obvious that Child 14 is at the heart of this case, as she was in the criminal proceedings. As Holland J explained, she was the oldest of the indictment children, she had yielded physical findings consistent with penetrative abuse, and she gave rise to the most serious charge facing Mr Lillie (i.e. rape). Although she was put forward as the strongest prosecution case in the 1994 proceedings, the present Defendants do not rate it so highly. Child 14 has now slipped to third place behind Child 24 and Child 23.
  78. She was born on 17 November 1988. She began at Shieldfield on 21 January 1991 and left the Nursery on 22 July 1992. She had not been under the care of Mr Lillie and Miss Reed since 19 February 1992. (Thus, when Dr Sandra Hewitt asserts that she spent "over 2 years having some contact with Chris Lillie and Dawn Reed", it would seem that she has misinterpreted the facts. Joint care was from 16 October 1991 to 19 February 1992.)
  79. Child 14 was first examined by Dr San Lazaro on 8 October 1993 (i.e. 20 months later). A confusing feature of the evidence relating to this child is that there are discrepancies between the available medical records. The medical notes show the presence of moderate hymenal loss with thick fibrotic changes and a complete tear at the 4 o'clock position. In her police statement of 23 October 1993, Dr San Lazaro describes a tear at the 5 o'clock position plus one anterior to that (itself not on the diagram). As Dr San Lazaro put it herself in the witness box, "It is regrettable … All of this is a substantial professional lapse, I would have said".
  80. Dr Watkeys found the records confusing. She did not understand what is meant by the phrase "thickened fibrotic changes". One interpretation would be that it referred to scar tissue throughout the hymen – but this seems unlikely in view of her other record of tears. Dr Watkeys was also puzzled by reference to partial tearing and whether this was supposed to be additional to the complete tear (or tears, as the case may be). Nevertheless, there are potentially significant indicators of hymenal damage. On the other hand, such findings as there were relating to her anus were not indicative of sexual abuse.
  81. It was agreed by all concerned that Child 14 came from a home environment in which a significant level of domestic violence was encountered. On one of the controversial videos, her mother is seen to have a black eye. That is merely part of the background. Of course, it is not suggested on behalf of the Claimants that a child from a violent home cannot experience sexual abuse outside it. That would be ludicrous. On the other hand, domestic violence can sometimes be a contributory factor towards disturbed and even sexualised behaviours. It cannot be simply left out of account. Furthermore, it is clear that she had behavioural problems, including violent temper tantrums, prior to entering the nursery. Her mother was finding this difficult to cope with.
  82. No significant disclosures or behaviour were noted until May 1993. (This was at or about the time of the suspensions, when rumours and speculation first became rife.) It appears that the mother of Child 14 had been told about Christopher Lillie's suspension by a neighbour, the mother of Child 92.
  83. At about this time Child 14 apparently invited a cousin to kiss her on or near the vagina and declared, "You see it on videos". Explicit videos are commonly available nowadays and it is possible that she had heard about such matters in gossip at school. What I am invited to conclude is that this comment provides in itself evidence that she had been present at some unspecified location, and time, when a pornographic video was made during which oral sex had been recorded. That seems to me to be fanciful. Some of the allegations about "Chris's house" in this case are said to relate to Red Barns; but it is important to note that Child 14 left the nursery months before he moved there. Furthermore, Mr Lillie said that no child, nor any member of staff, had ever been to his earlier address in a different part of Newcastle. Miss Reed said she had no idea where he had lived before. There is not one scrap of evidence that any child had been taken to any other of his addresses.
  84. Her other comment in May 1993 was that a boy had been to Chris's house. This could, for all I know, have been a reference to allegations being made at the time about Child 22. But, at all events, there is no allegation so far of any assault upon herself.
  85. By September 1993, Child 14's mother was expressing anger that no one from Social Services had been to see her to discuss what was going on at Shieldfield. On 24 September, according to her mother, Child 14 was alleging "Chris" had at some time placed his "wiggy" near Child 35's "Mary". It is necessary to see this against the background that Child 35 was a close friend of Child 14 and was at the same school. Moreover, the mother of Child 35 was present on the first two occasions when social workers talked to the mother of Child 14. Be that as it may, Child 35 did not corroborate what Child 14 said about her. Ms Jones accepted that in cross-examination on 15 February.
  86. There was still no allegation by Child 14 that anything untoward had happened to her. She did say, however, that she had been on one occasion to Chris's house with Dawn and Moira (Martin), but nothing to the effect that anything unpleasant had happened there. Three days later, these allegations were repeated, but she added that other children were present, including Child 35 and Child 10. Child 10 did not corroborate her account either.
  87. On 15 September her mother had reported to social workers that Child 14 had said nothing about misbehaviour at Shieldfield. The first "disclosures" emerged after a home visit by Vanessa Lyon and Marion Harris, who had encouraged her mother to talk to her about the matter, and to use suggestive techniques such as drawing and the naming of body parts. The difficulty is to know, at this distance of time, what passed between mother and daughter and how, if at all, this influenced subsequent disclosures. What is clear from Social Services records is that the mother's memory was shaky to say the least. At various stages, she suggested that Child 14 had gone to Shieldfield aged 14 months (she was actually aged 26 months) and that she left in December 1992 (in fact it was July).
  88. On 23 September 1993 the mother was expressing quite strong antipathy to Christopher Lillie, whom she claimed to know from childhood. She said that he came from a dirty family and that she had not wanted him changing Child 14's nappy. She also suggested that Christopher Lillie and/or his sisters had been taken into care because of sexual abuse. There is no evidence to support this. The Review Team took another line (i.e. that he had probably suffered child abuse while in care). There may be a considerable element of ex post facto reasoning about this. Certainly Mr Lillie denied having known her as a child, and I see no reason to disbelieve him. It was on the next day that Child 14 was making disclosures. By this time her mother had told her that Christopher Lillie and Dawn Reed were in prison and could not hurt anyone.
  89. The first video interview took place on 4 October 1993. Up to that point, no one apart from the mother had heard what Child 14 had to say. I have already pointed out that the allegation on page 41 of the Report is inaccurate in suggesting that Child 14 referred on this occasion to being raped and to being video taped.
  90. What she did say was that she had been to somewhere described as "Chris's house" where there were two dogs, cats and hamsters. She said that Child 35 came with her.
  91. By this stage it had already emerged that the child was supposed to relate to the interviewers something described at home as "the business" or "the biz". This seems to be the term used to cover whatever it was that she was supposed to say about Christopher Lillie and Dawn Reed. Time and again, however, it was clear that she was unwilling or unable to recall what she was supposed to say. She was asked to say something that was "silly or naughty they shouldn't have done". What this first elicited was that Christopher Lillie had said that he was in charge of the Nursery and that he could "wipe her bum". She said that she would not be very pleased and he therefore refrained from doing so.
  92. Asked if he did anything else, she said not. It then emerged that the child had been told that "Chris had been naughty" and "went to jail". This shows that there was a background of negative stereotyping underlying "the business" that she was supposed to relate. That information can only have come from an adult, as indeed her mother had already admitted to the Social Services on 27 September 1993.
  93. When she was asked what she had to tell, Child 14 said she could not remember. There were confused accounts of going to a house with Amanda or Moira (from Shieldfield Nursery) and Chris and Dawn. But nothing unpleasant or improper happened. She seemed also to be saying that there were other children present (Child 35, Child 10, Lucy and Sam). None of this was corroborated by any other person, child or adult.
  94. Several times she exculpated Dawn Reed, saying that she "done nothing" and "wasn't silly". She should be let out of jail: "Say Dawn can come out today".
  95. She did make allegations about Christopher Lillie taking his trousers down and holding his "wiggy". There were leading questions, designed to get the child to suggest an erection, but she said it was pointing neither up nor down but at Child 35. Mrs Saradjian found this very compelling evidence, displaying independence on the child's part. The trouble is that there is no corroboration at all from Child 35. Also, it is alleged to have taken place at Shieldfield Nursery. The idea of Mr Lillie moving around at Shieldfield Nursery with his trousers down does not sound very compelling. Even if he escaped the observation of his colleagues, it would have presented something of a risk. If spotted, it would have taken some explaining. This did not trouble the Review Team because it had emerged in the Jason Dabbs case that abuse can happen in a busy environment even in the presence of colleagues. Presumably, however, this would require watchfulness and discretion – rather than the abandoned exhibitionism attributed to Mr Lillie by Child 14.
  96. During this first interview, Child 14 was obviously aware of the broader context, since she enquired whether Child 10 had been to the video suite that day (as indeed he had). She, Child 10 and Child 35 were all at the same school at the time.
  97. Professor Bruck was of the opinion that there was at that stage no justification for taking the matter further or subjecting the child to another interview.
  98. Nevertheless, Child 14 had a second video interview on 13 October. In the meantime, the examination by Dr San Lazaro had taken place. Although the child made no allegation of abuse to her, the physical findings led her mother to press her further. She told her that she knew something else had happened at the Nursery and apparently elicited an allegation of rape from the child, which she reported to Social Services on 11 October.
  99. At the second interview, in due course, Child 14 alleged that Dawn Reed had been silly. There was an incident in the toilets at Shieldfield, when Mr Lillie and Child 35 were supposed to be present, and Miss Reed had stuck needles up their "bums". Asked what she was wearing on this occasion, she said her green trousers and "this top". The needle had gone under her trousers but over her pants. The same thing happened to Child 35, who was crying; meanwhile, Chris was supposed to be laughing. She also claimed to have seen them put a needle into Child 10's bottom. (He did not offer any confirmation either as to having been present on such an occasion.) The needle was described as a "toy" one or "pretend" one.
  100. Child 14 was asked again what had happened at Chris's flat, and she said "nothing" but she did confirm that she had been there with "Chris, Dawn and Moira". There is no confirmation from Moira Martin; indeed, she was not even asked about it by the Review Team.
  101. Child 14 had clearly been talking again about "the business". She offered to show Helen Foster where Chris lived, but her mother would have to come: "If Mummy doesn't tell you, I'll forget". This is obviously highly unsatisfactory. Where this trip would have led is something of a mystery. Had it taken them to Red Barns, it would clearly have been anachronistic, since Mr Lillie did not move there until six months after Child 14 left Shieldfield. When she gave evidence, her mother said that she thought the child must have been referring to another named road, where she had told her she had been taken to a house with a black door. That particular road and a "black door" had first appeared on the scene six months earlier in the allegations being made by the mother of Child 22 (see below).
  102. After further questioning from Helen Foster and Vanessa Lyon, it was alleged that "Chris put a needle up me and all" (also up Child 35's bottom). At this point, contrary to what she had already said, she added "Dawn just did nothing, because Dawn was in the class". This interview dragged on for 78 minutes (far too long) and her mother was allowed to badger her to tell Vanessa and Helen "the business". But nothing was forthcoming.
  103. Despite Child 14's resistance to coercive questioning, over that length of time, Vanessa Lyon and her mother contend that the child did allege rape during the journey home. What prompted this is not clear. Vanessa Lyon regards it as quite spontaneous. She was driving and just coming to some traffic lights. She looked in her mirror and could see the mother and child in the back seat. They were sitting close together but she saw no whispering or any exertion of influence upon the child.
  104. On the other hand, when she was later pressed to repeat this on tape, she said it was not true and "just stupid jokes".
  105. I am asked to bear in mind that in the first and second interviews the child asserts that "they" or "Chris" had told her not "to tell" because she would not see her mummy and daddy again.
  106. Next came the highly controversial third video on 22 October. During the criminal proceedings, the police originally only disclosed two video interviews. Whether this was by oversight is unclear. It is contrary to good practice to subject children to three such interviews, save in exceptional circumstances. When one of the defence lawyers spotted something on one of the tapes, suggesting that Child 14 had been to the suite before, an earlier video tape (the first one of 4 October) was revealed. It had also been withheld at the time of the disciplinary proceedings by Vanessa Lyon.
  107. At the third interview, there is the startling comment by Child 14 that she has been told by her mother that, if she does not "tell the business", Christopher Lillie can come out (i.e. may be released from custody). This is very worrying, because that was indeed the very day on which there was a bail application. It was in fact successful, and Mr Lillie was just leaving Durham Prison when he was re-arrested because Child 14, at the end of the interview, finally came out with an accusation of rape. It looks, therefore, as though someone was exerting pressure on the child to make this grave allegation on the basis that, if she failed to do so, Mr Lillie might come out and do further harm. So far as Miss Reed was concerned, as in the first interview, Child 14 exonerated her completely.
  108. The matter dragged on and Child 14's mother was brought in to encourage her to say something. She was told, "Then we can go to town and have presents". She is pressed repeatedly to say what they wanted to hear. She asks to go home and, at that point, the tape blanks out. After a 13 minute gap, the tape resumes and Helen Foster claims that she had been next door to check, and the tape had not been switched on. She asks Child 14 to tell her again what happened when Chris took his pants down.
  109. Even at this stage, the child shows little interest in "the business" and is much more interested in play. She constructs a "choo choo train" in which Helen Foster takes her place and Child 14 goes up the train collecting tickets.
  110. It is true that Child 14 claims that Chris put his "wiggy" in her "Mary" and it felt "tickly". This was hardly spontaneous, however, since it was only elicited by a grossly leading question from an exasperated Helen Foster: "Chris put his wiggy where?" She then talks again about going to his house with Chris, Dawn, Amanda, Child 10 and Child 35. The interview finally terminated with her mother saying, "Now they can't hurt nobody anymore". (The implication is clear; now the child has finally delivered the allegation of rape, bail will be revoked. That is exactly what happened.)
  111. In her evidence before me, the mother said that she would have had no idea about the bail application that was taking place that day. She may well believe that to be true in 2002, but if that were the case, it would be difficult to explain the remarks I have quoted about Mr Lillie "coming out" and "hurting" people.
  112. Miss Foster was asked about this in her evidence on 22 May. She had no recollection of whether the mother knew of the bail application; nor of when she herself had known about it. There are various comments in the transcript which make it, in my judgment, quite clear that the mother did know about the bail application. The most likely candidates for informing her would be the police officers in the case. As to Miss Foster, she recollected turning up for the re-arrest of Mr Lillie outside Durham Prison. But she did not appear to recollect anything of what I described to her as the "race against time".
  113. She produced quite a detailed note of the end of the third Child 14 interview and also records that within 10 minutes she had gone to the Infirmary to collect a report from Dr San Lazaro (in fact dated the following day) and that, thereafter, she went to Durham Prison, but she does not appear to recall what might appear to be the obvious links between those events. I found this quite a difficult area because, just as on the many hours of video tape, Miss Foster presents as a likeable, kindly and straightforward person. She was frank about the defects in the interviewing process in 1993 and how differently things would be done today. She was also frank about the risks of cross-contamination between the various accounts and speculations in this case. But on the "race against time" I was less convinced.
  114. It is important to record what she said in her notebook about the circumstances in which Child 14 at last came out with her allegation of rape. As Holland J recognised, this cried out for close inquiry. It is clear that the child terminated the interview (or so she thought) and said to her mother "Let's go home". The tape then fades out at 11.38.11.
  115. At this point Helen Foster records that there is a "break for toilet facilities". This is not consistent with the transcript, which appears to show that the interview had ended. Her note then continues:
  116. "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."
  117. Vanessa Lyon also dealt with this in her evidence. She had no clear recollection after so long an interval. But she did say that she was in with the video camera at the point when the interview resumed. The child was recalling to Helen Foster that she had been raped when Vanessa Lyon was embarrassed to note that the video equipment was not working. Hence the need for re-enactment.
  118. This was not a satisfactory passage in the evidence. Vanessa Lyon was at pains to distance herself from the video equipment and to say how untechnical she was. She could not even switch on her own video equipment at home. This is difficult to reconcile with the fact that there were various Shieldfield interviews when she herself was operating the camera (e.g. Child 19 and Child 21).
  119. I do not wish to be unfair to either of these women. Neither claims to have a clear memory of what actually happened. Mr Bishop submits that it is clear that there was simply a glitch in that an entirely voluntary "disclosure" was taking place, but not recorded for the prosaic reason that the untechnical Mrs Lyon forgot to switch on the machine. Holland J clearly thought this gap cried out for an explanation. It still does. In light of their memory lapses, I am not prepared to conclude that either Miss Foster or Mrs Lyon was lying. Nevertheless, I am not prepared to "buy" the explanation that somebody "forgot" to record Child 14 all of a sudden and spontaneously making the most serious allegation in the Shieldfield story (i.e. that which resulted in a charge of rape). What happened between 11.39 and 11.51 on 22 October 1993 is unlikely now to be finally resolved, but what is clear is that it triggered Mr Lillie's re-arrest at Durham a couple of hours later at 14.10 hrs.
  120. The Memorandum of Good Practice makes clear that there should be "a record of what occurred during any interval(s), including all periods away from the interviewing facility". This is obviously because it may become "…important to be able to demonstrate that the child was not prompted or coached between interviews". It has not been possible to demonstrate that in this instance, where it was especially important to do so because of the demonstrable history of pressure on this child and her previous resistance to making the allegations.
  121. Mr Bishop wanted to introduce an expert report after closing submissions to explain how the video and recording equipment in the suite actually worked. It was to the effect that one could look through the viewfinder and see and hear what was going on in the interview without the equipment actually recording. Unfortunately this evidence could not be agreed and I decided that it would not be right to take this into account without giving Miss Page an opportunity to explore it fully. I do not therefore propose to attach any weight to it (just as I decided to ignore Professor Bruck's post-trial supplementary report). In any event, Mrs Lyon did not have any recollection, nine years on, of actually looking through the equipment.
  122. In the meantime, Dr San Lazaro had apparently put together a report between 12.10 and 12.20, in double quick time, which was compatible with the allegation of rape made between 11.50 and 11.55. In fact, her relevant witness statement (at least in the typed version) appears to be dated the following day. Dr San Lazaro has no recollection of this incident which, if it happened, is rather surprising in view of its importance in the criminal proceedings and the "race against time". It is possible that she jotted something down "from memory" (as she did with her generic report to the C.I.C.B.) but it is not now feasible to come to a firm conclusion.
  123. One can have no confidence in this flawed process at all. I have already cited what Professor Bruck said generally (at paragraphs 409-416 above). She described Child 14's third interview as one of the most coercive and abusive interviews she had ever reviewed, with no consideration being shown for the child's feelings. After the 13 minute gap, she appeared to her to be quite different in demeanour, i.e. "totally subdued by her interrogators".
  124. One does not need to be an expert to recoil at the whole exercise. I agree with Professor Bruck's assessment that "the evidence that was produced was so tainted that it is unreliable". Despite this, the Review Team described the child's evidence as powerful and compelling. They praised the interviewers and publicly stated that there were no leading questions. The clear implication is that there was consistency over three interviews, when obviously there was not.
  125. It seems that three days after Mr Lillie was re-arrested at Durham the child was telling her mother that she had been in bed with Mr Lillie and Miss Reed who were indulging in mutual oral sex and using a vibrator. A little later, in November, she added that she had been rubbed all over with a vibrator herself and had been put in a bath after she had been in bed with Mr Lillie and Miss Reed after making videos.
  126. On 16 November 1993, Child 14 referred to the name of a man with a certain disability (which I do not need to spell out), and to a woman with red hair. The mother of Child 23 had provided the names of these persons to Child 14's mother. They were obviously relayed to Child 14, who identified them as having been involved in some way in abuse. The police investigated this and found no evidence for it whatever. The Review Team knew this. Nevertheless, the smear was incorporated into the Report at pages 211, 213 and 269.
  127. Following the final "disclosure" of 22 October, the social services records disclose over several months various demands made by the mother for money from the local authority. She wanted to be paid for telephone bills, costs of re-housing, decorating, a kitchen unit, a shower unit, rubber sheets, a new bed, a washing machine, a wardrobe and a floor covering. She received a number of payments. I do not believe it would be right, however, for me to draw the inference that the pressures on the child were financially motivated. I have to assess the evidence in a broader context.
  128. The child appeared in 1997 in two television programmes when she was aged eight. One was a Channel 4 programme called Death of a Childhood and the other was the Panorama programme about female abusers. She was seen in shadow, but would be recognisable to those who knew her. She was invited to recount for the public at large the details of the abuse and rape she was alleged to have undergone more than five years before.
  129. It was obvious that Mr Wardell was shocked (perhaps naively) by the fact that these broadcasters had been party to such exploitation. It is indeed difficult to understand what could be gained by her reliving such horrible experiences. It appears that money again changed hands, but the mother said she could not remember how much. She thought it was probably no more than a "token" sum, in each case, to compensate for the use of her home for filming.
  130. The motivation for putting the child through this is hard to follow. The mother explained in cross-examination that it was not revenge, but rather a desire to overcome the injustice her daughter had suffered through the criminal justice system by proving to everyone that she could give a cogent account. Miss Page cast doubt on this evidence by referring to unguarded remarks she had made to Professor Barker:
  131. "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".
  132. In the light of this Miss Page suggested to her that vengeance must have been a significant factor. This was again denied. I do not need to decide what the motive was, since it does not really affect my task.
  133. It is desperately sad that the events at Shieldfield can have had such an apparently all consuming effect upon a family. But the truth is that the account that Child 14 was giving, when she was nearly nine, was quite different from what she had said earlier. That may not be very surprising since she was purporting to recall events when she was two or three years old. What is more worrying is that in the unedited interview I was shown, with Su Pennington, Child 14 on several occasions said that she could not remember what happened. She did not appear to be in any distress, but merely smiled rather shyly when she said she had forgotten. In due course, she came out with the allegations of abuse (including rape) but they were now different. They located the incident not at Shieldfield but at a house reached by a metro journey behind a red (not black) door. Curiously, there is nothing in the mother's witness statement about this version at all. Miss Page asked whether this was because the mother did not believe that version. No clear answer was received. The mother's position was that she believed everything her daughter had told her (clearly taking no account of contradictions or inconsistencies).
  134. Miss Page also called upon the Review Team, through Mr Bishop, to make clear their position on the plea of justification. They preferred, however, to keep a low profile. They did not wish to adopt any of the 1997 versions. I see no reason to ascribe this to any scruple or fastidious judgment on their part. They were quite prepared to allege against Mr Lillie and Miss Reed anything they felt they could get away with, but even they must have recognised that they could not adopt contradictory positions and would simply have to plump for one or the other.
  135. As I have already recorded, Mr Wardell's position about the Panorama programme was that it did not affect their thinking about the credibility of Child 14's evidence. They tried to put it out of their minds.
  136. As to the Channel 4 programme, this involved a dramatic reconstruction of the Child's distress. She was referred to as "Louise" and the mother as "Jenny". The child is shown holding Barbie dolls and stroking one of them. She then portrays a pretend nightmare, calling out "Mum, Mum". The mother comes into the bedroom, asks if she needs to go to the toilet and carries her. She is described by her mother as prone to depression and is portrayed as rolling about with a large teddy bear. She refers to her peers as "going around dead happy, but I'm like the only one going around dead sad".
  137. Her mother describes how the child, at the time she was in Shieldfield Nursery, had "a lot of cystitis" and sores, but she put this down at the time to "fizzy pop" and to the fact that "I left her in a wet nappy all day". The implication is that, with the benefit of hindsight, the explanation is that the cystitis and sores were caused by abuse "by two staff members at this nursery - one of them male".
  138. Like the other children, Child 14 had made no contemporaneous complaint. This was covered in the programme by the child explaining that Mr Lillie and Miss Reed had threatened her: "They says, keep it a secret. I didn't tell them because they said … not see your mam or dad or your family any more". The commentator adds that it was therefore over a year before "Jenny" suspected.
  139. The mother is quoted as saying:
  140. "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).
  141. The child then describes being taken to a place with a red door where "they did things but I don't like to talk about it – like they had a big camera".
  142. The mother was clearly less inhibited. She went on to describe how Dawn Reed had inserted a needle into her vagina, by way of introducing a relaxant. She told how photos were taken, a video recording was made, and how oral sex had taken place. This despite the child's persistent (and spirited) insistence on exonerating Dawn Reed (e.g. "Dawn done nothing. Say Dawn can come out today").
  143. There was then shown an extract from the child's first video interview of 4 October 1993. As I have already described, there was no allegation of misbehaviour against Dawn Reed and no allegation of assault involving herself. Despite this the Review Team falsely summarised it at page 41 of the Report as containing allegations of rape and the use of a video camera, as though they had completely muddled up her 1997 allegations with the 1993 version (while claiming to have put the 1997 allegations out of their minds). At all events, her mother described for the Channel 4 viewers why on 4 October 1993 "she didn't really say very much". Her explanation for the child's reticence was, "She didn't know what she could tell them and, like, what she could be, like, trusted to tell them". The daughter added, "It's a bit embarrassing, like, because you don't know them".
  144. Chief Inspector Campbell Findlay then contributed by saying that he did not agree with Holland J's decision. Then Child 14 expresses her view about how child evidence should be approached in the criminal courts: "If I was a judge, I would let children have one chance. Then if they didn't think they were telling the truth, they just wouldn't get any more chances". It is difficult to make much sense of this, since I have no idea what she meant by "any more chances" but it reflects an attitude to be found among various adults in the course of this case (including Mr Wardell). The approach taken is that if one does not believe the child's remarks if they could be construed as allegations of rape, sadism or indecent assault (rejecting any inconsistent or exculpatory statements), then one must be dismissing the children as dishonest.
  145. I am not going to comment further on these broadcast items. Suffice to say, they have done nothing to change my view either as to the weight to be attached to her three video interviews in October 1993 or as to the Review Team's misrepresentations about them. In the light of the Civil Evidence Act 1995 and the Lord Chancellor's order of 1993, relating to children's evidence, all of the material I have referred to above is admissible. It is all a matter of weight for the fact-finding tribunal. I would like to make it clear, therefore, that I have no confidence in any of the allegations of misconduct made by Child 14 or her mother. The concerns expressed by Holland J so clearly in 1994 remain as valid today and nothing revealed subsequently has gone any way to allay them.
  146. Child 15

  147. Child 15 is an interesting case. He was seen playing quite happily on the video recording of the visit to the soft play centre on Mr Lillie's birthday in June 1991. He was born on 7 May 1988 and attended Shieldfield more or less on a full time basis between 3 September 1991 and 25 August 1992. He was never in the Red Room with Mr Lillie or Miss Reed or under their care in any other room. There were no medical findings. When Dr San Lazaro went into the witness box, Child 15 was one of those she first mentioned in respect of whom she had changed her mind.
  148. This child's first disclosure came in February 1996, when he was nearly eight years old and no less than three and a half years after leaving the Nursery. It happened in the course of therapy at Barnardo's. It may well be, therefore, iatrogenic (see Chapter 5 by Richard J. Lawlor in Expert Witnesses in Child Abuse Cases, eds. Stephen J Ceci and Helene Hembrooke).
  149. What he actually alleged was that Mr Lillie had hurt his genitals by rubbing hard, and this happened many times. The mother was visited by police officers in October 1993 and she told them that she had no concerns about her son. She has not provided evidence for these proceedings. It appears, therefore, that she may well be an example of what Dr Cameron described in his evidence about the group phenomenon – a parent standing out against the group belief (see paragraph 487 above). It is true that Professor Friedrich asserted that, "He had internalised this fear of Lillie and Reed to such a degree that he continued to be acting as if he were under threat even several years after discharge from the nursery", but I am not prepared to give this any weight at all. It is bare assertion.
  150. Inevitably, the time came when the allegations about this child were dropped by the Review Team – albeit somewhat late in the day, on 13 May. The usual costs consequences followed.
  151. Child 17

  152. This child was born on 2 May 1990 and entered the Nursery in September 1992 in the Red Room, where he remained in the care of Christopher Lillie and Dawn Reed until their suspensions. He continued to attend Shieldfield Nursery until September 1994 (usually for two days a week). He was living with his father, who managed to care for him largely on his own.
  153. No concerns were expressed until 13 months after Mr Lillie's suspension. At this point, Child 17 was in the Yellow Room with a number of other children who had already made allegations of abuse. In particular, Child 23 was in the room with him. She by this time was already undergoing therapy under Mr Rick Telford.
  154. On 17 May 1994, she blurted out in class (at the age of 4 years and 3 months) the curious sentence "[Child 17] has got bad feelings". There is an apparently full manuscript record of what then passed between them. She then said that he had bad feelings because of "what happened to him". The boy appeared to be taking no notice, when Child 23 went on to tell "Gillian" (the relevant member of staff), "Chris and Dawn tickled [Child 17's] fairy bum with a crayon and hurt him and poked him". The boy looked angry and denied it. The Defendants argue that he over-reacted and that his anger shows that Child 23 had hit the nail on the head. I do not see why it is not explicable as embarrassment or confusion at personal and intrusive remarks made in front of a member of staff. Even very young children can feel awkward and embarrassed at such comments.
  155. The phrase "bad feelings" sounds as though it comes straight out of Child 23's ongoing therapy. This is borne out by a document in the bundle relating to her. It is a letter of 13 June 1994 in which Mr Telford, Head Occupational Therapist at the Fleming Nuffield unit, records how she had been attending weekly since 21 March 1994. He said "[Child 23] has been able to talk to other Shieldfield children telling them to go to the Nuffield to get rid of their bad feelings". From this it emerges clearly that Mr Telford was proceeding on the assumption that abuse had taken place at Shieldfield and he implied that Child 23 (and perhaps others undergoing therapy) were being encouraged to go out and bring in others with "bad feelings".
  156. It is clear from the Cleveland Report, and indeed common sense, that a distinction has to be drawn between spontaneous disclosures emerging in the course of a properly controlled interview and what might be said in therapy. (See also the observations on iatrogenic harm by Richard J. Lawlor in chapter 5 of Expert Witnesses in Child Abuse Cases, 1998, eds. Stephen J. Ceci and Helene Hembrooke.) It appears that a further danger would be that of one child's therapy experiences being communicated to others, particularly if a child has been encouraged to go out and "cold canvass" other children who may have been abused or generally proselytise for the perceived benefits of therapy.
  157. The other "disclosures" emerged not only at the Nursery, in conversation with Child 23 and Gillian Smith (whom the Review Team did not interview), but also at home with his father. References were made to Mr Lillie having thrown "a crayon down the hill" and to Child 17 having been to Christopher Lillie's house. He also told his father that Chris and Dawn had been "put in a cage" – this is obviously something deriving directly or indirectly from adults and might fairly be classified as "negative stereotyping".
  158. There is no doubt that "crayon" allegations figured significantly in what Child 17 said, in particular suggesting that crayons had been used on Child 4 and Child 5. There were also references to people dying. Most notably, accordingly to Gillian Smith's record, he referred to Child 23 having died, when he was actually talking to this child on 18 May 1994. This is quite likely to be a confused recollection of what others had alleged about Christopher Lillie and Dawn Reed, rather than something that they had told Child 17. The Defendants invoke his reference to death as evidence of his having been threatened over a year earlier, but he appears to have placed some emphasis on the fact that, whatever Chris and Dawn had said about people dying, nobody had died. In so far as it is wise at all to place reliance on what children of this age are saying, such comments are as consistent with scepticism as with succumbing to threats.
  159. Sure enough, within days of his first "disclosure", someone from the Social Services turned up together with Constable Helen Foster. Matters developed from there.
  160. It is important to note that Child 17 was in communication not only with Child 23 but also with Child 4 and Child 5. Child 4 was talking about Chris and Dawn being naughty on 17 May 1994 (the very same day as Child 23's reference to "bad feelings"), and she had just been referred for therapy because of her poor relationship with her mother. This does not seem to have been implemented until August. Child 5 did not begin therapy until later in the year, but she too began to "disclose" in May 1994 and in due course began to talk of "crayons" and "fairies" – both concepts which could have been picked up from Child 23.
  161. The scope for cross-contamination is obvious and needed to be carefully addressed. This is now recognised quite explicitly in the Review Team's closing submissions. Mr Wardell appeared rather grumpy at this suggestion, and thought it wholly unrealistic that this could have happened. The long dialogue, as apparently recorded by Gillian Smith on 17 and 18 May 1994 (but never explored by the Review Team with her), had all the "hallmarks" of reflecting genuine disclosures by Child 17, so far as Mr Wardell was concerned. If there were commonly recognised hallmarks whereby to judge accurate disclosures, life would be much easier for paediatricians and other professionals involved. Unfortunately, there are not.
  162. In the Review Team's response to Child 17's father, on 11 November 1998, they told him that they had seen medical evidence that a number of children, including Child 17, had suffered sexual and other forms of abuse during the time that they had a place at the nursery. This is somewhat surprising since Dr San Lazaro had said, following an examination on 13 June 1994, that Child 17 was "overtly normal" and that "minor changes that were seen could not be specifically attributable to trauma", and were probably normal for him. She was, I think, referring to his anus. Dr San Lazaro is generally not backward in making findings of penetrative abuse, and it is noteworthy that she definitely did not do so in the case of Child 17. She acknowledged the "possibility" of significant damage having been inflicted in the past, but no more. I find it difficult to see how that could be said to be fairly reflected in the Review Team's letter of 11 November 1998. But Mr Wardell saw no inconsistency. A "possibility" was enough for him. He was content to equate that with "medical evidence" of sexual abuse. This time it was not Dr San Lazaro "beefing up" her findings; it was the Review Team. Nevertheless, by the end of the case, Child 17 had been relegated to a position three from bottom of the Review Team's list of likely victims.
  163. There were behaviours in Child 17's case to which significance has been attached - rather more than to his "relatively few" disclosures (Professor Friedrich). The behaviours were described by Dr Sandra Hewitt as "not rich with specific detail", but involved some element of sexualised behaviour at the Nursery.
  164. Various examples of incontinence are relied upon from the Day Books occurring between 2 years 4 months and 2 years 9 months. But these are difficult to pin down as indicative of sexual abuse. As to "sexualised behaviour", he was spotted on 1 February 1994 licking toys and equipment. The Day Book also records licking or kissing of other children on 14 and 21 June of the same year.
  165. On 11 May he was noted to be observing a girl's bottom. On 22 June it seems that another child was seen on top of him making what were interpreted as sexualised movements. By 28 June he was recorded in the Yellow Room disclosure book as claiming to having had cars, bricks and crayons put in his bottom.
  166. It is submitted that although Child 17 "did not make a disclosure until May 1994 when he was in the Yellow Room, his disclosures cannot be explained simply as 'Yellow Room Contamination'". I would not "dismiss" his statements at all, but I do regard the powerful contaminating influences in that Room, at that time, as impossible to ignore.
  167. Child 18

  168. Child 18 was born on 22 October 1989. She is one of those who started life at Shieldfield under the care of Mr Lillie and Miss Reed before they moved to the Red Room. She had joined them on 5 November 1991 and moved with them into the Red Room at the end of February 1992. She progressed to the Yellow Room on 22 September 1992.
  169. Her first "disclosure" came seven months later in April 1993. She was thus one of the very first to disclose, if that is a correct interpretation. She appears to have said to her mother while in the bath the somewhat enigmatic remark "Someone playing with us didn't hurt my bum". She was asked a leading question; namely whether it was a lady teacher or Chris. She apparently replied "Chris" (it can only be "apparent" because there was no parental evidence adduced). Other allegations appear to have been made at about the same time to the effect that her mother was not to wash her in the perineal area because Chris had punched her there. A few weeks later, on the other hand, she was touching herself between the legs and said that she had learnt it at the nursery. By September 1993 there was the very serious allegation that while Miss Reed had held her legs Mr Lillie had held her head; and they had tickled her vagina. By this time, she had been out of their care for just over a year.
  170. In January 1994 the story was that she had been to the seaside with Dawn and Chris (presumably some 18 months earlier, or more). Another unidentified male had been present. She had been held upside down and sand was put in her "Nicky" (vagina).
  171. There was the by now familiar cluster of "traumatic stress behaviours" (e.g. clinginess, wetting, fear of lifts and monsters). There was also said to be a reluctance to go past Red Barns. As with other children, however, any such reluctance can only have been induced by other people investing Red Barns with some sinister significance, since Child 18 left Mr Lillie's care over three months before he moved to Red Barns.
  172. Genital and anal findings were of no significance. No parental evidence was given and, on 13 May, the child was duly dropped from the Review Team's defence of justification. They were ordered to bear the costs.
  173. Child 19

  174. Child 19 was one of the children in respect of whom charges of indecent assault were brought. She was born on 7 February 1990 and entered the Nursery, in the Red Room, on 10 September 1992. She moved on to the Yellow Room a few weeks before her third birthday. (Thus, when her GP wrote in July 1993 that she "was in the class taken by the accused person for almost 1 year until Easter 1993", that is simply inaccurate.) She was withdrawn from Shieldfield in July 1993. She was therefore present during the three months following Mr Lillie's suspension. It is necessary, however, to take account of the fact that her attendance was more sporadic towards the end and that for the first three weeks of June 1993 she was on holiday in the United States.
  175. Her mother had a meeting on 3 August with a social worker and Helen Foster, during which she was given advice as to how to question the child. The introduction was by reference to her daughter's earlier complaint of vulval soreness. It is significant, however, that the mother had told the social worker that this had occurred some time after Easter (i.e. several months after moving to the Yellow Room). The Review Team have suggested that, on a proper reading of the Social Services records, the mother's account embraced soreness earlier. The mother at the time seemed to believe that she had moved to the Yellow Room at Easter. She was putting the soreness "since moving to the Yellow Room". Thus, it could have been earlier. The Review Team also submit that soreness while in the Yellow Room was consistent with Mr Lillie and/or Miss Reed having taken the opportunity for abuse while she was in the Yellow Room. This is somewhat unfair on Miss Reed, however, since the child did not accuse her of doing anything. Furthermore, vulval soreness in itself is an unsure guide to abuse.
  176. Her mother, who gave evidence on 11 March, readily acknowledged that there was nothing unusual in a small girl about such a symptom. Nevertheless, having asked the child on 3 August if she could remember having a "sore fairy", the mother then asked her if anyone had touched her while she had been at Shieldfield. She said "They call him Chris". She apparently said that she had been touched "inside". It is a slightly curious way of describing him and Miss Page suggests that it might reflect the fact that Child 19 had been exposed to a good deal of talk in the Yellow Room over that summer about Chris and Dawn and what they were supposed to do to "bums" and vaginas. On the other hand, it is submitted for the Defendants that "They call him Chris" is simply a local (Geordie) expression equivalent to "His name is Chris".
  177. Another contributory factor could well be that the mother (obviously through understandable anxiety) had asked her in the previous May whether anyone (or possibly "Chris") had ever touched her at the Nursery. For example, the mother told the police on 6 August 1993 that when she heard of the suspension she asked her daughter "outright if Chris had ever touched her fairy". Although Child 19 denied this at the time, it could have sown a seed which accounted for her answer in August.
  178. On 10 August there is the first of two video interviews. Helen Foster made no progress and therefore the mother was invited to join in questioning her daughter to try and elicit the "disclosure" made to her on 3 August. The next stage was that an aunt was invited to come in and the police officer left the room. This was unsatisfactory to say the least. The child was subjected to leading questions, pleading, ticking off and the offer of rewards. These included clothes for a Barbie doll, a "sleep-over" with her aunt, and "a McDonald's". Despite all this, there was no disclosure of sexual abuse. Moreover, there was actually no indication of her resisting because of fear or threats. She asked to be allowed home. She was told, variously, to stop being silly, to stop telling fibs and that she would not be allowed home until she gave the required information. Still nothing came of it.
  179. On 12 August 1993, there was a medical examination by Dr Alison Steele which revealed a notch at around 9 o'clock. It is agreed by the experts that this would not be diagnostic of sexual abuse.
  180. There was a second video interview on 2 November 1993. She opened by saying, "I'm going to tell you all about Chris". She was asked who he was, and replied "My other school". She said that he touched her "fairy" and that it happened inside. She was asked on how many occasions, and said "yesterday". She referred also to the fact that "the police got him". That is a recurring theme in the Shieldfield investigation. Manifestly, it could only come from an adult. There is some confusion apparently, since she describes Chris and Dawn as though they were other children.
  181. The nub of Child 19's disclosure on 2 November was that whatever it was happened in the lavatory at Shieldfield. What "Chris" did was to put his finger outside her knickers; it did not hurt, and he said "sorry". This took place in the presence of "loads" of other children. He was fully dressed and nothing else occurred. She was not threatened or told to keep it a secret. She told her mother as soon as it happened. She, like other children, referred to Mr Lillie as being "in a cage where the policeman's took him". That is also a phrase that seems to have been in common usage in the Yellow Room. There is nothing that would appear to qualify as "a clear statement by the child" (see paragraph 387 above). Dr San Lazaro, however, told the Criminal Injuries Compensation Board that the earlier statement (in August 1993) represented a "clear statement indicating that she had been traumatised in the vaginal area".
  182. It is true that she also appears to have given an account involving a finger "inside" her in response to further questioning by Helen Foster but she also said he "put his hand in". When asked where, she twice indicated her waist. She later told Dr Fundudis in therapy that he had touched her on the "fairy" when "on the toilet". But this seems to me to be neither spontaneous nor unequivocal. The Defendants argue that her disclosure remained "pure" and "demonstrably untainted at least into January 1994". I am afraid I do not know what that means.
  183. Since none of this amounts to very much, more reliance is placed on behaviour. In particular, it is said that there was regression and daytime wetting. There were occasions when the Nursery provided different clothes when she was picked up, but some of this could be accounted for by other factors such as playing with water. But there is very little in the Day Book about wetting, except two entries for 18 and 25 February 1993, after she was in the Yellow Room. This seems inconclusive.
  184. I should also bear in mind that she had said to her mother that she loved "Chris" and that he loved her. It is unclear how these statements came to be made or what her affect was at the time. It does not necessarily imply anything sexual or improper. Similarly with another of the behavioural symptoms. There was apparently some cheekiness and answering back to her mother. If that were taken to be a symptom of sexual abuse, no adult would be safe.
  185. There was also mention in the mother's witness statement of nightmares starting while Child 19 was at the Nursery, although this was not apparently mentioned to the social workers at the time. An obsession with dying was another factor relied upon, but this does not seem to have been mentioned either.
  186. By 6 June 1995 Dr San Lazaro was writing that the child had not shown serious signs of emotional disturbance earlier on, but that psychiatric assessment had revealed that "the family have been highly stressed by this incident and that [Child 19's] statements had altered her mother's feelings towards her". She added that it was difficult to know "how these children will behave within the background of anger, recrimination and loss of trust that has been generated by this incident".
  187. Child 21

  188. I heard evidence from Child 21's mother on 12 and 13 March. There is no doubt that she believes her daughter was abused by Christopher Lillie and Dawn Reed. She was controlled and dignified in the witness box, but I believe she found it a stressful experience and it took considerable courage for her to go through the ordeal. An incident that has clearly stuck in her mind over the years, and to which she attaches significance, is that she found her daughter when she went to collect her one day in the lavatories at Shieldfield. She was standing outside the door of a cubicle near the washbasins with her knickers round her ankles. Meanwhile, Mr Lillie was still inside the cubicle wearing rubber gloves. As she entered, the mother heard Mr Lillie say "Now wash your hands, [Child 21]".
  189. When, cross-examined, it emerged that the mother had been unaware all these years that the staff had been required to wear disposable rubber gloves when taking the children to the lavatory. In some way she seemed to associate the use of rubber gloves with child abuse. She said she thought, remarkably, that everyone at the Nursery was toilet-trained and that Christopher Lillie was not "authorised to be with children in the toilet". Needless to say, this was all in retrospect. She had seen no reason to make any complaint at the time. There is nothing in this point at all. The mother felt uneasy about the incident with hindsight and, given the atmosphere that later developed at Shieldfield, one can hardly blame her, but there is nothing of substance in the episode.
  190. The child was born on 31 August 1989. The mother knew that two of her nephews had been to the Nursery, and had no problems, and she was therefore happy to send her daughter. She began in the Baby Room on 21 October 1991 and moved to the Red Room in February 1992 just before Christopher Lillie joined Dawn Reed there. She normally attended three days a week from 10 until 3. The child left the Red Room in August 1992. This means that, for whatever reason, the social worker Marion Harris was wrong when she recorded on 24 May 1993 that Child 21 had been in the Red Room "since October 1992".
  191. She left in the summer of 1993 and moved on to another school in September. At some point thereafter (which her mother did not specify), she began to talk about how she and other girls at the school had been inserting pencils into their vaginas. By 16 September 1993 she recounted that Mr Lillie had inserted scissors in her anus and that Mr Lillie and Miss Reed had inserted scissors in each other's "bums". She was by now four years old and purporting to recall an incident which, if it involved being taken out of the Nursery by the Claimants, could only have happened when she was aged two. Although the Defendants only suggest that there are "reasonable grounds to suspect" that some of the abuse occurred outside the Nursery, it is hardly feasible to suppose it could have happened on the premises.
  192. On 28 September 1993 she alleged to her mother that Chris and Dawn had taken "all the children" to a flat or house which "stunk of dog shit". On this outing, apparently, Mr Lillie and Miss Reed had stripped off and wet the bed. Child 21 had been raped by Mr Lillie and she [Child 21] had bitten Miss Reed's vulva. The very grave allegation the Review Team make is that Miss Reed was present when the child was raped by Mr Lillie and that she herself forced the child "to perform oral sex on her". She is also said to have been threatened that her mother would die if she revealed the abuse. These allegations need to be assessed with care. (It will be remembered that Child 21 was not one of the six "indictment children".)
  193. There is a medical report from Dr San Lazaro dated 24 September 1993, which revealed a small disruption to the hymen in the 3 o'clock position. Otherwise, there were no abnormalities either within the hymen or the anus. Dr Ward agrees that there was nothing diagnostic of penetrative abuse. It is theoretically possible, according to Dr San Lazaro, that a two year old could be raped and still retain an intact hymen. It is also, according to her, possible that scissors could be inserted in a child's bottom without leaving signs of damage. I am concerned, however, with probabilities – not with fanciful possibilities. The small disruption in the hymen is consistent with no penetrative damage and also with prodding with a pencil (although I cannot be sure that the insertion of pencils occurred, if it occurred at all, prior to the medical examination). I have to remember, in any case, that the expert evidence is that self-injury in that area would be highly unlikely because the hymen is so sensitive and such activity would be very painful. It is in all the circumstances, therefore, unclear how far (if at all) a pencil was inserted.
  194. Dr San Lazaro's findings came under the spotlight on 16 May. The report of the examination, which took place on 24 September 1993, records her as giving "a very good history of trauma". That gives the clear impression that she had "disclosed" to Dr San Lazaro. On closer inspection, it emerged that this was not the case and that what she had originally recorded was "finger at vaginal area" as something indicated not at this interview but beforehand to the mother. (This is a very important distinction, as becomes apparent when one focuses on how that information came to be imparted to the mother.) Dr San Lazaro said: "I cannot explain that. It is too long ago for me to remember what happened".
  195. Miss Page then turned to physical findings. There was recorded a small disruption of the hymen at 3 o'clock, but the hymen was otherwise normal. Dr San Lazaro agreed that terminology was used in a rather confused way, accepting that "disruption" was sometimes used to describe a normal variant or non-specific finding. It was put to her that a 3 o'clock "indentation" or "disruption" was not significant. Dr San Lazaro's evidence was that she must have excluded a "normal variant" because she reported whatever it was as "diagnostic of minor trauma". That is not satisfactory. It has about it a kind of circularity. It is especially unsatisfactory given Dr San Lazaro's lack of objectivity and admitted proneness to let emotion cloud her judgment. I would not trust her findings without corroboration, save perhaps in the case of "barn door" certainty (to use her expression). This is certainly not such a case.
  196. Rather surprisingly, this child was deemed on 26 November 1993 in need of screening for a sexually transmitted disease, but this was not carried out until 30 March 1994. Dr San Lazaro wrote to her mother on 26 April with the negative results and observed, "You will be relieved". Miss Page wanted to know why her mother had been kept in suspense over this concern, for some four to five months, when there was no evidence of any relevant symptoms in November 1993 (i.e. fifteen months after leaving the Red Room). There was nothing in the notes to suggest grounds for concern. Rather startlingly, Dr San Lazaro said in answer:
  197. "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.
  198. By the time Dr San Lazaro came to write to the Criminal Injuries Compensation Board, on 1 December 1994, she had "beefed up" her findings in a remarkable way. By then she was describing a tear in the hymen compatible with an object having been inserted.
  199. She admitted that she used the words "tear", "disruption" and "scar" interchangeably and "… sometimes even to describe something normal". There is no consistency at all and I cannot place any reliance on Dr San Lazaro's claim to the C.I.C.B. that she had found a "tear compatible with an object". In the light of her records from the examination a year earlier, it is clear that this was one of her customary "overstatements" by way of advocacy. She also informed them that Child 21 had been in contact with a paedophile ring. She had no evidence of that but lent the claim her professional authority.
  200. The allegations that Child 21 was making by September 1993 are so implausible and lurid that I could not accept them as accurate without some element of corroboration. There is none. It is necessary to remember that she remained from April to August 1993 in the hot house atmosphere at Shieldfield, where rumours and stories were flying around. Indeed, she was a "victim" in the Yellow Room of the highly sexualised Child 87 who was one day found astride her simulating intercourse. The Defendants submit that "children were not talking amongst themselves and copying one another". This is said to be demonstrated by the fact that none of the children Child 21 was in contact with at that stage repeated what she said (in particular, Children 10, 11, 19, 23 and 27). I agree that there is no direct badge of copying, but it is putting it too high to say that it has been shown that children were not talking amongst themselves. That seems contrary to the probabilities.
  201. Although her "disclosures" had certainly hotted up by September, her video interview on 6 August 1993 was rather more low key. She raised the subject of Mr Lillie and clearly knew that she was there to talk about him. She also used the expression (that one sees elsewhere) that he was "locked in a cage". An adult had obviously been giving her negative messages about him prior to the interview. The mother accepted that she had probably told her that the police had "Chris" and that she was safe from him.
  202. In the interview she alleged that he had "smacked us" and, importantly, that this took place when other teachers were there (Patricia and Diane). Yet again, there is no confirmation from the relevant staff. She seems, therefore, to have been locating the alleged incident in the Nursery itself, and no reference was made to any outside location. Considerable pressure was exerted by Helen Foster and the mother and various inconsistent answers were given. She denied that anyone had touched her "minnie" but was pressed further by Helen Foster, who asked her "Do I need to talk to any more silly people who have touched your minnie?" She replied "Teddy". Helen Foster and her mother then tried to get her to say she had been touched, and she was invited to draw a naked man and show what bit of his body he used to touch her "minnie" with. She asked for a handkerchief to blow her nose and that was the conclusion of the interview. Meanwhile, she was chided for being "silly" and at one point (perhaps for the sake of being left alone) she made the meaningless allegation that "Chris" had "cut me bum off". There was no second interview.
  203. It defies belief that the Review Team could possibly assure the public that the questions were not in any way leading.
  204. Considerable reliance is placed on Child 21's behaviour. Dr Sandra Hewitt offered the conclusion that "the combination of behaviours related to trauma and atypical sexuality are strong indicators that Child 21 suffered trauma as a result of sexual abuse during the period she was in the Red Room" (i.e. between 2 February and 9 August 1992).
  205. Professor Friedrich found her clear demonstration to her mother of having been "sexually touched" very convincing. It is necessary, however, to see this in context. In or about April 1993 she was asking her mother to check her bottom, and her mother asked her who wiped her bottom at the Nursery. She replied "Chris". This obviously would not have been current information by that time. She had for the last eight months been in the care of four other (female) staff at the nursery.
  206. Up to that time, perhaps surprisingly, the mother seemed unaware that Mr Lillie had any specific responsibility for her daughter. This despite the fact that she had been directly under his (and Miss Reed's) care for as long as six months during the previous year. This lack of awareness may possibly account for the inaccurate information Marion Harris was given on 24 May 1993.
  207. The demonstration of "sexual touching" was carried out in response to a quite specific question from the mother as to how Christopher Lillie "had wiped her bum". The child then demonstrated what in some other circumstances could easily be interpreted as "sexual", but it is quite wrong to leave out the important context of the question asked. Once again, I find Professor Friedrich wide of the mark.
  208. As to other aspects of behaviour, it is worthy of note that neither bedwetting or nightmares were mentioned to the police when a statement was taken (by Helen Foster) on 20 August 1993. Moreover, it is appropriate to have some regard to the best contemporaneous records that we now have in order to see how far current memory is borne out. In this case, the Day Books do not appear to disclose a serious regression in day time bladder control. There is only one entry for Child 21 (on 9 March 1992). The mother was very frank in saying that she kept no notes at the time and could not be sure as to dates. As in other cases, in attempting to assess the probabilities, I must allow a considerable margin for the influence of hindsight.
  209. Child 22

  210. This boy was born on 20 November 1990. He entered Shieldfield in May 1992 and was transferred to the Red Room in September of that year. Known for some time as "the Index Child", his statements to his mother on 7 April 1993 were the first to raise the spectre of child abuse at Shieldfield Nursery. He suggested to her first that "Chris" had hurt his bottom and then, by way of demonstration, that "Chris" had inserted his fingers into his anus and hurt him. This appears to have arisen because the mother chose that day to ask him why he was upset when she took him to the Nursery. That was, as it happens, the very day that Jason Dabbs was given saturation coverage in the media. His mother reported the matter to the police over the Easter weekend (on 11 April) and police inquiries developed from there, culminating in the collapse of the criminal proceedings 15 months later. When the matter was raised with Mr Lillie for the first time, all he could think of by way of a possible explanation, if indeed he had hurt the child's bottom, was that he had done so accidentally in the course of a nappy-change. He was suspended on 16 April.
  211. The child was seen by Dr Shabde on 15 April and by Dr San Lazaro on 29 April 1993. Dr Shabde recorded that the physical findings were normal and that there was no evidence of anal penetrative trauma. The only apparently unusual item of note was that he had been on iron tablets since about December 1992 (aged just two) for treatment of anaemia. These can sometimes lead to constipation with associated soreness. (It may be significant that the mother was reporting to the GP in May 1993 that since Christmas he would only go to the lavatory on "odd days".) During the examination, Child 22 did confirm to Dr Shabde that "Chris" had hurt him, but he gave no further detail. It appears that, on the day after he was seen by Dr Shabde, Child 22 visited his GP because of a history of abdominal pain, diarrhoea and vomiting (first apparently noted on 15 February 1993). There were no abnormal medical findings. By way of background, it seems that relations between the mother and the GP had not been altogether happy. In a referral letter with respect to anaemia, following a visit to the surgery the previous month, on 16 March 1993, the GP described the mother as "extremely anxious and indeed often aggressive". (She herself, it seems, had a history of anaemia and suffered thyroid problems for which she was receiving medication. It was accepted that this would have had a significant adverse impact on the reliability of her memory.)
  212. By the time Child 22 was seen by Dr San Lazaro on 29 April, his mother was reporting further allegations and behavioural changes. He had been exhibiting episodes of "trance-like behaviour" when visiting a park. Since there was a normal EEG, this was perceived as likely to be of emotional origin. He referred to being frightened of a "black door" and had been noted (by his mother) to kneel and put his bottom in the air during nappy-changing. Something similar was later to be described by the mother of Child 1, who also made reference to "black doors". Significantly, however, her observation of the phenomenon took place the very morning after a visit from the mother of Child 22.
  213. Child 22 also alleged that an object had been inserted into his anus. No formal statement was taken from the child, as he was perceived as not being of sufficient maturity. Dr Shabde thought this unfortunate, since in her opinion he would have been articulate enough for the purpose.
  214. Nevertheless, on 16 April there was a recorded interview with the boy, those present being his mother, Helen Foster and Mr Waterworth of Social Services. Nothing was forthcoming of any significance although he was asked many questions including if all his "bits" were OK and whether he had anything that was sore. He said that his tummy was. There were many attempts by Helen Foster to get him to identify the person who had changed his nappies at school. Eventually he was asked whether it was "Chris", to which he said "yes". He was then asked whether he liked him changing his nappy, to which he also said "yes".
  215. He was then asked specifically whether it hurt when he changed his nappy. He replied that it did. Later he was questioned as follows:
  216. "Q: Do you know your teacher Chris at the nursery school?
    A: (Nods)
    Q: Has he ever hurt you?
    A: He hasn't
    Q: He hasn't. Has anybody ever hurt you?
    A: No
    Q: Somewhere where you didn't want them to hurt you? (a curiously phrased question in itself)
    A: No
    Q: I thought you said somebody had hurt you at nursery and you didn't want to go back.
    A: No."
  217. The interview yielded no evidence of abuse. In so far as he was claiming to have been hurt (as opposed to denying it), the context is clearly that of nappy changing. Yet at page 101 of their Report the Review Team summarise the interview by saying merely that "… at that point little of evidential value emerged". That is only a fair summary if one proceeds on the basis of ignoring evidence favourable to Mr Lillie.
  218. The Defendants submit that it is hardly surprising that the child did not repeat his "disclosure" on video because he was only 29 months old and was in the company of people he did not know very well. It is necessary to bear in mind that he did not simply clam up. He answered the questions but exonerating Mr Lillie. What hurt was having his nappy changed. Nobody seems prepared to acknowledge the fact that it is possible to interpret the video interview and the earlier remarks to members of his family as compatible in this respect.
  219. There are obvious difficulties of interpretation here. Pain associated with nappy-changing could be caused by accidental injury, or be linked to the history of diarrhoea and abdominal pain. On the other hand, abdominal pain and diarrhoea could have a psychosomatic origin. This could be brought about by anxiety or emotional disturbance of any kind. That would include stress flowing from sexual or physical abuse, or from some other origin. Conversely, constipation caused by iron tablets can lead to discomfort or pain.
  220. I have already noted that the mother herself was undergoing some stress at the time, as recorded in the GP's notes; indeed, on one occasion she was described as "frantic". Whether these factors communicated themselves to the child can only be a matter for speculation.
  221. There was disagreement as to this child's comprehension and articulacy. Dr Shabde thought him, for his age, articulate. Dawn Reed and Christopher Lillie did not. They commented upon his tendency to parrot what he was told, in the sense that he did not always answer a question but would repeat the last words of the question. Dawn Reed was cross-examined by Mr Bishop about these matters. She said he had poor language skills, comprehension and vocabulary. If she tried to explain that he should not be aggressive, or point scissors at other children, he carried on doing it. He would mimic the play of others but not join in.
  222. There might seem little point in my attempting to adjudicate on such a difference of opinion. It would be an issue on which subjective impressions could easily differ and the matter can, in any case, only be of marginal significance in the case of a two year old. Yet the Review Team sought to attach importance to these differing views. On page 30 of their Report, they actually appear to be accusing Mrs Eyeington of dissembling over Child 22's speech. I am quite satisfied that this was unwarranted. Moreover, I do not simply have to rely on the evidence of Mr Lillie and Miss Reed for judging Child 22's speech quality at the time. Dr San Lazaro asserted in her generic report of November 1994 that it was because of "his poor language development" that the investigation was inconclusive. There is also the contemporaneous comment of Helen Foster, "He was unable to talk clearly or form sentences". Moreover, she confirmed that view in the witness box on 22 May. Similar remarks were made to the Review Team in January 1997 by Detective Inspector Campbell Findlay. He may not have been in a position to make a personal judgment about it, but it does seem clear that there was at least a genuine difference of opinion. Dr Shabde gave evidence on 21 May and stuck to her guns but nothing of significance emerged. (I should add that the boy has done very well at school in the intervening years and there is no suggestion that he was in some way intellectually impaired.)
  223. When assessing the reliability of Dr Shabde's opinions about Child 22, I must also bear in mind that in her report of 21 April 1993 she was hopelessly wide of the mark in recording that there was no history of behavioural problems. I do not say this in a critical way. She could only proceed on the information she was given.
  224. There was no consistency in the mother's descriptions of Child 22's behaviour over the relevant period. It is entirely clear to me that during the first few months at Shieldfield, spent in the Baby Room, there were constant behavioural problems which cannot conceivably be attributed to abuse by Christopher Lillie or Dawn Reed. Also, his patterns of sleep were poor before he even arrived at the Nursery.
  225. In the Red Room, to which he was moved because of these recurring behavioural problems, they continued, in the sense that it was regularly being recorded that he was showing aggression to his peers and also to dolls and toys. Ironically, his mother was initially reporting that the move to the Red Room had led to some improvement.
  226. In her statement of 26 April 1993, she was saying, "[Child 22] seemed to enjoy attending nursery and got on well with Dawn and Chris. He was always happy to go to nursery and was willing to talk about what he had done". She suggested in the witness box that she was in no fit state to give a statement on that occasion, but Helen Foster denied this and said it would have been quite unprofessional to take a statement in such circumstances. I can see no reason for the mother to have been so confused as to say that the child got on well with Mr Lillie and Miss Reed if she meant to say the opposite. The mother then placed her son's change in attitude at somewhere between 20 November and 25 December 1992. He had entered the Red Room in September 1992. The account she gave to Joyce Eyeington was consistent with this. There would thus seem to have been more than two trouble free months with Mr Lillie and Miss Reed so far as the mother was then concerned. The Review Team, however, at page 30 of their Report shifted his changed behaviour back in time to the point where he entered the Red Room. It may be unfair to conclude that this was done to make the story fit their conclusions, since the mother's account varied significantly over the years and they may have opted for a later version.
  227. It is crucial to understand that, according to this early account of the mother, the child seemed not to be too well in the run up to Christmas 1992. There was vomiting, coughing and a sore tummy. He began to complain of a sore bottom at about that time, and this continued while he was attending the nursery after the Christmas break. On one occasion his mother noticed blood in the nappy and, not unreasonably, linked this with what she describes as a "weeping" sore at his anus. She applied cream and decided that if she saw any further blood this would merit a visit to the GP – "but it was fine". The significance of this is blindingly obvious. It was part of Mr Lillie's responsibilities during this period to change the child's nappy and, if he was suffering from a sore bottom (and, for good measure, what his mother described as "loose stools"), there would be plenty of scope for Mr Lillie to become associated in his mind with pain or discomfort at the time of nappy changes. Mr Lillie's first thought, when Joyce Eyeington put the accusation to him in April, was that he might have hurt him inadvertently when performing that task. Far from being a lame excuse, it seems eminently reasonable as being the likely explanation. Furthermore, it ties in with the child's video interview of 16 April.
  228. The mother rejected that explanation in her police statement on the ground that the child had not mentioned Dawn Reed as also hurting his bottom. This reasoning is bizarre to say the least. Her logic appears to be that since both Dawn Reed and Christopher Lillie were responsible for changing Child 22's nappy from time to time, if he made a statement involving only one of them the allegation must relate to some other activity than changing his nappy. It is, of course, in any event a complete non sequitur. It is also to be noted that the fact that Child 22 did not mention "Dawn" on the same occasion as "Chris" has not inhibited anyone subsequently (including the mother of Child 22) from implicating her in the abuse as well.
  229. One of the mother's most startling allegations was made from the witness box on the morning of 22 March, when she asserted that even the boy's anaemia had been caused by sexual abuse. She said that they were making him bleed so much through repeated acts of buggery. All I need say is that this hardly squares with the medical evidence. More importantly, however, the suggestion was just plucked out of thin air in the middle of what I can only describe as a rant. If nasty allegations of sadism could be conjured up so readily in the witness box, I cannot believe that greater restraint has always been maintained in less formal surroundings.
  230. By 12 May 1993, the mother appeared to be telling journalists that Child 22's personality had changed dramatically since 7 April. If this was indeed the case, then one explanation might be that he was reflecting her own stress and anxiety arising from her "discovery" on that very day that he had been abused. She is recorded as telling a Brenda Hickman (Crime Reporter of the Journal) that:
  231. "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."
  232. Consistent with this would be a GP note made in May 1993 under the heading "Other Symptoms of Disturbance" to the effect that "All since Easter 1993".
  233. After the interview with the journalist, the mother told the Review Team that Campbell Findlay came round and told her off. He told her "No bull shit. I don't want you talking to anyone".
  234. The police had to pay her a visit at the end of July 1993 in order to warn her against putting words in people's mouths. By that time it had been decided that there was no sufficient evidence to justify criminal proceedings in respect of her son, but she seems to have remained active in spreading her views and suspicions. She had, for example, visited the mother of Child 23 at the beginning of May and caused her to worry about her daughter. She also supplied Mr Lillie's address, with the result that Child 23's father went round and assaulted him. She also visited the mother of Child 1 on 26 June and expressed her concerns. Indeed, by the time of their July visit, the police were fearful that she might be jeopardising the whole investigation. Whether their visit was at all effective, and whether it was made sufficiently early, I am unable to tell at this distance of time.
  235. When the spectre of child abuse first loomed over Shieldfield, following the allegations of Child 22's mother from 11 April 1993 onwards, not everyone took it seriously. For example, the father of Child 7 said on 19 March 2002 that he thought nothing of it at the time because she regarded herself and her child as the centre of the universe. She was always kicking up a fuss about something. Her own daughter apparently commented that she was sick of hearing about it. Others, of course, especially in the wake of the Jason Dabbs publicity of the previous week, felt bound to act upon her allegations (i.e. the Newcastle Social Services, the police, the City Council and Mrs Joyce Eyeington). As Patricia Thompson put it in her statement:
  236. "… 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."
  237. I am reminded in this context of the words of Lord Nicholls in Re H at page 592, where he said:
  238. "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."
  239. For whatever reason, it has become clear with the benefit of hindsight that the mother of Child 22 is a completely unreliable "historian". Her accounts changed radically over time. For example, she was not even consistent over what (if anything) she knew by 11 April about the Jason Dabbs case. She told Joyce Eyeington that when her son first complained on 7 April she was hesitant about following it through because the police would think she was a neurotic mother who had read about Jason Dabbs. It appears that she told Joyce Eyeington that she had not even read about it. According to Mrs Eyeington's memorandum of 25 April, she had heard about it but was not interested. The truth is, of course, that if she was worried on 7 April for the reason she gave, she must have known at least something of the Dabbs case at that stage. If this was so, she would be no different from the majority of Newcastle's citizens since the Jason Dabbs case was big news that very day. This timing could be just a very remarkable coincidence but, realistically, it seems to me that the Jason Dabbs publicity must at the least have been a contributing factor in turning her thoughts to child abuse on 7 April. What she now says is:
  240. "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".
  241. It was in the mother's statement of 26 April 1993 that the notion of the "black door" first appeared on the scene:
  242. "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.
  243. By the time the mother of Child 22 was interviewed by journalists on 28 November 1998, she was dating the child's behavioural changes back to May 1992, when he started at Shieldfield. This is hardly consistent with the account she was giving in April 1993 and, in particular, with the history she must have given to Dr Shabde on 15 April for her to conclude that there was no history of behavioural problems. This point was picked up in a letter from one of the doctors in the GP practice on 6 May 1993, who pointed out that Dr Shabde's note did not accord with their knowledge of the patient.
  244. As the mother frankly acknowledged, she had for some time been suffering from a thyroid problem which can affect the memory. Moreover, she accepts that her memory was suffering for this reason at the end of 1992. She claimed, however, that medication had subsequently brought these problems under control. There are some records, however, which suggest that she sometimes failed to take her tablets.
  245. On 20 May 1993, there is a note to the effect that she was telling Pat Thompson that Christopher Lillie was paid £100 for taking children from the Nursery to be abused by paedophiles. This she apparently based upon a passing remark made by the child when the milk lady came to the door. When she asked how much she owed, Child 22 piped up "£100". The milk lady responded laughingly that she wished she could collect such a sum. It seems a long step for the mother to conclude from this casual exchange that the only reason why her son could have mentioned £100 would be that Christopher Lillie had been demanding similar sums for supplying the children for paedophiles. It is not difficult to understand how a mother in such circumstances might fear the worst, but I cannot possibly treat this allegation as having any rational basis or evidential weight. It is another product of a fevered imagination. Patricia Thompson, the social worker, told her that it was dangerous to jump to such conclusions, but it was her view that the mother of Child 22 "had already made her mind up about what had happened".
  246. I have little doubt that Pat Thompson was correct, but this unhappily introduces a real problem as to how reliable the mother's evidence is in relation to any behaviour or disclosures she reported. She was quite obviously looking for signs of abuse in her own child, and trying to find evidence of it from other Shieldfield children. That may be quite understandable, but it poses a real danger of over-interpretation both for her and for others.
  247. The mother seems to have become obsessed with the notion of a paedophile ring. I would not dream of criticising her. Like many of the parents, this horrendous notion had a profound effect on her life. Moreover, there is no doubt that there were various people over the succeeding years who were prepared to cultivate this belief so that it took a firmer and firmer hold. One of them was Dr San Lazaro. But I must approach the issue in the light of the evidence, rather than seeking to empathise with their fears and suspicions - and evidence is there none.
  248. The child one day in October 1993 pointed to a picture of a well known singer and said that this man had hurt him. It was obviously untrue, but the mother sought to invest it with significance by concluding that a local resident of similar physical appearance must have been abusing him on the procurement of Mr Lillie. She found out where such a person lived, and proceeded to spread the story that he was a paedophile. The police pursued the suggestion and, as I have noted elsewhere, found nothing whatever to support it. The mother of Child 22 believes it to this day, and no doubt always will. She asked rhetorically in the witness box how her child could possibly have described to her that the man had a downstairs flat with a bed in the front room, if he had not been taken there for abuse. The answer was, however, not far to seek as Miss Page pointed out. The witness had to accept that she had kept the house under watch and had herself peered in through the windows. At one stage she described the occupant as "a big fat slob" and added, "when I think about him having my child, I could kill him". I am not suggesting that she is dishonest, but I have to proceed on the basis that she has been irrational and obsessive about it.
  249. Another common feature in the behavioural symptoms noted by the Defendants is the reference by various Shieldfield children to clowns and masks. The origin of this theme is, once again, to be found in the account of this mother. She passed these notions on to others. It seems to derive from an incident at Child 22's birthday party in November 1992. It was noted by those present (the mother and aunt of Child 22) that some of the children present from Shieldfield were upset by the female entertainers wearing clowns' masks. It seems that later the same entertainers reappeared wearing animal heads. This too apparently caused upset. From the video, it certainly would appear that Child 1 was upset. There may have been others.
  250. What is puzzling is how this is supposed to be linked to child abuse. Children aged two could be upset by clowns or people wearing animal heads if they were not used to it. There is nothing very surprising about it. I fail to grasp the logic which requires me to assume that the fear stemmed from their having been abused by other adults, in other unspecified places, who happened to be wearing clown masks. Such a link requires to be established by solid evidence.
  251. Libraries played a significant part in Child 22's disclosures. He was in the Central Library one day when his mother asked him to be quiet because they were in a library, whereupon he began screaming and had to be taken out. From this I am invited to infer that he was screaming because he associated the concept of a "library" with abuse. Other children have also mentioned "libraries" or "libraries with few books" as places where abuse is supposed to have taken place. The explanation is said to be that Mr Lillie and Miss Reed took children to places for abuse but described them to the victims as "libraries" to give a colour of respectability in case anyone asked where they had been.
  252. This child apparently mentioned an occasion when Mr Lillie left him at a library after he had eaten his pie and hurt his genitals. He also referred to Mr Lillie having taken his clothes off but Dawn Reed putting them back on. He was two and a half years old at the time the allegation was made (3 June 1993) and obviously younger at the time of the supposed incident. He is also supposed to have been encouraged by Miss Reed to give Mr Lillie oral sex. This all sounds horrendous, of course, but my difficulty is to know precisely how these statements came to be elicited and the extent to which the mother's anxieties and obsession with sex abuse might have been communicated to the son. These concerns certainly seem to have conveyed themselves to other adults (e.g. the parents of Child 1 and Child 23) and thus contributed significantly to the dynamic of the "Shieldfield scandal".
  253. This is a factor to be given particular attention in view of the child's tendency to mimic and parrot what others have said (echolalia). It is said that the Claimants have invented this characteristic in order to discredit the child. I do not accept that. Both Claimants have a fairly detailed recollection of his mannerisms and behaviour. That is not surprising in view of the enormous impact he had on their lives in April and May 1993 (and indeed subsequently) but I do not find anything in the contemporaneous documents obviously inconsistent with their accounts of him in evidence. Their evidence on these matters I found persuasive.
  254. By November 1993 Dr San Lazaro was reporting that Child 22 was making dramatic and bizarre allegations. From having said on 16 April that he had not been hurt (or, if he had, only in the context of nappy changing), the story has become totally different. He was apparently claiming to have been tied up and had a drill inserted in his genitals and/or anus. This was after months of pressured questioning about abuse and I am not persuaded that it was in any way to be relied upon as a voluntary and unprompted disclosure. It is just fantasy.
  255. Ms Jones in her evidence put it more diplomatically. She had no difficulty accepting this child's early disclosures but said "As time went on, it would be difficult to judge how far you could place weight on some of the later disclosures". Unfortunately, however, one looks in vain to find any such caution or discrimination reflected in the Report itself. Moreover, I need to focus on how late is "later". Judging by the assessment of Pat Thompson (that the mother had made up her mind at least by May), I should be wary of her claims from a very early stage. She clearly kick-started the rumours about a paedophile ring very early in the inquiry and passed them on to others. It is a pity that Ms Jones and her colleagues did not exercise caution when addressing the source of those allegations. The mother was still active in promulgating the wickedness of the Claimants in 1999 when she apparently received £250 from "Best" magazine for her story. This was published under the heading "My Son's Courage" and told how she had uncovered "the most shocking child abuse scandal of the decade". She was quoted as saying:
  256. "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".

    Child 23

  257. Child 23 was born on 27 February 1990. She was at Shieldfield for about two years until August 1994. She was in the Red Room, under the care of Mr Lillie and Miss Reed from 1 September to 20 November 1992. Her mother gave evidence on 27 March. I found her to be a careful, moderate and truthful witness. She told me that her daughter had got on with both the carers and appeared to enjoy being at the Nursery. She was moved up relatively quickly to another room because, as Mr Lillie explained at the time, she was not obtaining sufficient mental stimulation in the Red Room.
  258. Child 23 was examined by Dr San Lazaro on 20 July 1993 (three months after Mr Lillie's suspension). This followed the mother's having heard of allegations of sexual abuse at the Nursery, originally from the mother of Child 22 who called on her out of the blue on Saturday 1 May. That very evening her mother questioned her as to whether anyone had touched her bottom. She is now unclear as to exactly how she put it, but there seems to be little doubt it was a leading question in some form. In May 1993 she was recounting it to social workers as "Did anyone touch your bottom?" By July it was "Has anyone touched your bum or your fairy?". Child 23 alleged that "Chris" had touched her on or near the vulva and that she did not like it. She said he tickled her bum "hard". It is said that she illustrated this to her mother by reference to a doll, which she had in her hand, by tickling it between the legs. It is only fair to record that the Review Team attach particular significance to this "disclosure" because they say that it cannot be explained as bare assent to a leading question or as parroting a phrase the mother had used. It is the child who is said to have used the notion of "tickling hard" quite spontaneously. At all events, the mother made no record of what the child said on 1 May; nor did she report it to Pat Thompson until 17 or 18 May.
  259. The Review Team rely upon the account given by the mother of this first "disclosure" to Mrs Saradjian on 29 November 1995. But Miss Page points out that there are three new elements that have crept in over the two and a half year interval. First, the account now incorporates a reference to Dawn Reed as well as "Chris". Secondly, the mother's question (and therefore the child's answer) includes a reference to being "hurt". Thirdly, there is one of the most unpleasant allegations adopted by the Review Team against these Claimants. The suggestion is that the child is supposed to have told her mother that they had threatened her that dogs would scratch her vulva if she told anyone. It is strange that this nasty allegation should only see the light of day for the first time in November 1995. Everyone accepts that it is right to trace back the allegations attributed to children to the proper time and context in which they were first uttered (if at all). That is certainly what the Review Team were advised to do by Professor Davies. In the light of the later significant accretions, it is especially important in the case of Child 23 to focus on the nearest contemporaneous account.
  260. At interview with Dr San Lazaro, the child is supposed to have confirmed the allegation and told her that Mr Lillie had used a crayon. This is of some importance, because it has been argued on the Claimants' behalf (i) that Child 23 was the source of the other references to crayons being used for insertion, and (ii) that Child 23 had answered in her video interview of 12 July by reference to a crayon for the simple reason that this was what her eye happened to fall upon when she was asked by the interviewer what had been used to hurt her.
  261. Between her first disclosure on 1 May and the interview of 12 July there seems to have been some pressure on the child. Her mother, for example, told the police that she had "checked her story" on a couple of occasions. It is not possible for anyone now to determine the content of those conversations, but it is obvious that whatever was said could have had a significant impact on later accounts given by the mother and daughter. What is more, her father had reacted quite emotionally to her first statement (understandably so). He clearly got angry and, having obtained his current address from the mother of Child 22, went round to Red Barns on 10 May and punched Mr Lillie. He was also claiming as early as 18 May (to Joyce Eyeington) that Mr Lillie was supplying children to a local paedophile ring. This is highly likely to have derived mainly from the mother of Child 22. But, given all that was happening, it would be reasonable to assume that this highly charged atmosphere would have impacted on the child prior to her interview.
  262. At the time of her first "disclosure" on 1 May Mr Lillie had already been suspended but not Miss Reed. By the time of the video interview, Miss Reed too had been suspended. It was during the interview that Child 23 first made any allegation against her. For Miss Reed she was, of course, the "Index Child". She too is then accused of "tickling".
  263. This interview Dr Cameron did not believe had about it the "ring of truth". She seemed too uninvolved and (like, for example, Child 11) not to show any sign of mentally reliving an unpleasant experience. He spoke of the distinction between historical truth and narrative truth. His comments about her general affect in interview are naturally entitled to considerable respect, in the light of his experience, but I should not lose sight of the principle that the assessment of witnesses (even in these circumstances) is ultimately for the judge as the tribunal of fact. My own reaction was similar to that of Dr Cameron.
  264. Attention has been drawn to a discrepancy between Dr San Lazaro's type-written statement and her manuscript notes. Dr Ward pointed out that the allegation that a member of staff had put a crayon into her vulva and caused bleeding into her knickers appears in the former but not in the latter. Miss Page emphasises that, if a child had indeed told her in interview that a member of staff had done this, then it should have been carefully recorded. Anyone who knows anything about child abuse would know (as I have discovered from the evidence) that it is elementary to make a record of a clear and unequivocal allegation of abuse made by a child – especially one as startling as this. Dr San Lazaro agreed that there should have been a "better record". She said that she dictated the statement "on the spot" and the manuscript notes were merely an aide-memoire. I am left in the position that I cannot be confident as to how much additional information (if any) came from the child, when talking to Dr San Lazaro, over and above what emerged in her recent video interview. Dr San Lazaro is unfortunately prone to glossing or muddling things she has been told and, in some cases, attributing statements to children which came from adults (a classic example being the burning of Child 1's underpants).
  265. Looking back at earlier events, the mother then remembered behaviour on the child's part pre-dating Mr Lillie's suspension, which is now relied upon with hindsight in support of the allegation of abuse and especially of penetrative injury. At the end of October 1992, the child complained of soreness in the genital area and a reluctance to use the lavatory at least by herself. The GP's note of 15 October 1992 records a 2-3 day history of abdominal pain and also pain on passing urine. There was no evidence of infection. There were also respiratory problems at about that time but, more significantly, on 18 December 1992 it was noted that the child seemed always to have thrush, and cream was prescribed for associated soreness. A similar problem was recorded much later, in July 1995. That fact naturally must weigh heavily in the balance against drawing an inference that earlier such problems (i.e. before 20 November 1992) should be attributed to abuse by Mr Lillie.
  266. In view of how common urinary problems are, and vulval soreness, it is manifestly important to focus on timing before attributing it to child abuse. The Review Team in their Report refer to "a number of children" developing urinary tract problems from trying to retain urine and others developing problems with constipation. They lump these symptoms all together and seek to give the impression that they are attributable in every case to "being afraid of going to the toilet". Thus the perception arises that these common childhood problems derive from abuse having occurred in lavatories at Shieldfield.
  267. The mother was also referring to incidents of nightmares prior to Christmas 1992 and to her complaining of a hissing or scraping noise in her bedroom. This may be a case where memory is unreliable to some extent. In May 1993 the nightmare scenario was being placed at around Christmas 1992, which would be a month after leaving the Red Room. Now the recollection is that the nightmares were happening during the Red Room period but cleared up by about Christmas. It may not matter greatly, since the nightmares apparently occurred fairly closely together in time.
  268. Another possible area of confused memory relates to day time wetting. The Red Room Day Books do not provide any confirmation for this problem. They may not be wholly accurate but, if it was a persistent problem in the Red Room, experience of the Day Books suggests that there would be a record at least of the general pattern. The mother recalls one instance when Dawn Reed reported to her that Child 23 had "wet herself again". She explained that this had come about through playing with water. Dawn Reed added, according to the mother, that she (Dawn Reed) was liable to wet herself when playing with water. The mother thought this remark odd. If it happened, and I have no reason to doubt it, it sounds as though it was a light-hearted off-the-cuff remark intended to reassure the mother that there was no particular significance in the episode.
  269. It seems that on 25 October 1993 Child 23 referred to having been in Christopher Lillie's flat with Child 2 and they were both naked. The two children did not, however, overlap in the Red Room. There was thus no opportunity for Mr Lillie to spirit them both out of the Nursery at the same time and take them to the other side of Newcastle where he then lived.
  270. One aspect of Child 23's behavioural patterns that is worthy of note is that she does not seem to have been upset about anything at the school. She was even, as her mother accepted, "unfazed" by the medical examination. That very much ties in with Dr Cameron's observation about her video interview. There does not seem to have been any problem in getting on with Christopher Lillie or Dawn Reed when she was under their care. The mother did say that after she had left the Red Room she proved reluctant, on one occasion, to go back to be temporarily looked after. But she recognised that this might have been because her daughter had settled in her new environment and felt she had outgrown the Red Room.
  271. There was damage to the hymen apparently diagnostic of penetrative abuse. There was, however, a further episode of bleeding into her underwear on 3 December 1993 (months after any contact with Dawn Reed or Christopher Lillie). She then had a small denuded area on the labia minora, which was thought to be the source of the bleeding. The mother dismissed this, however, as being due to the child's using soap in the vaginal area. This was not an explanation that impressed Dr Watkeys. Dr Ward observed, "The aetiology of the bleeding remains unsolved but was likely to be traumatic caused by either Child 23 herself or another individual".
  272. It is also to be borne in mind that Dr Desai, who examined her on the December visit in Dr San Lazaro's absence, noted that there was no other evidence of trauma. This would appear to be inconsistent with what Dr San Lazaro had recorded. I have very much in mind that Dr Desai, being less experienced than Dr San Lazaro, could have missed something, but it naturally raises a doubt as to the quality of Dr San Lazaro's findings in respect of a "barn door" child.
  273. That is not, however, the full extent of the diagnostic problem in connection with this child. Miss Page relies on "extremely serious inconsistencies" in Dr San Lazaro's records. It is said that this is one of the cases where she "beefed up" her findings for the benefit of a police statement. She there refers to a "central deep tear", whereas her contemporaneous records appear consistent with a "partial" tear or tears. There was no reference on that occasion to depth. Moreover, Miss Page argues that it is possible to misinterpret a normal variant as a "partial tear". She goes so far as to suggest that the phraseology "deep tear" must have been a fabrication. I am not able to conclude that it was dishonest, although I am only too well aware of Dr San Lazaro's accepted role of "advocate" for the children. I am especially cautious, for that reason, in the cases where she has put something different into a later account such as in a police statement or C.I.C.B. report.
  274. Dr San Lazaro indicated 3 partial tears on her printed form and also ticked "gross hymenal loss", although her drawing does not appear to show such loss. Nor does it show a "deep tear". Miss Page submits that at this distance of time, and in view of the inconsistencies in the documents, I cannot be satisfied whether there was one tear or more, or if whatever tear there was could be classified as "partial" or "deep", or whether there was in fact loss of tissue. It naturally raises a doubt as to loss of tissue, and the existence of a deep tear, that Dr Desai spotted nothing abnormal on her December genital examination. Dr San Lazaro did, however, describe her as "the paediatrician who had no know-how in observing the hymen. …I do not say that of Dr Desai of my own knowledge. I just know that junior and middle grade paediatricians, and indeed the consultant paediatricians of the RVI and in most district hospitals, recognise that they are not experts at displaying or identifying injuries to the hymen".
  275. Another factor of these records giving rise to doubt as to the nature of the findings is that Dr San Lazaro referred to lateral "nodular scarring". This is quite possibly a record of a nodular but congenital feature rather than scarring caused by trauma.
  276. Professor Bruck pointed out, in relation to this child, that she was one of those who mentioned a variety of other identifiable adults being present when the incidents occurred. One, in particular, was said three times to have been there when "Chris" hurt her bum with a crayon. That particular person had nothing to do with the Nursery. This is a point which fundamentally undermines the reliability of the child's accounts. It is inconceivable that Mr Lillie would have abused her in the presence of that other person. There are undoubtedly elements of confusion and fantasy and it is impossible to conclude now (as Dr Ward and Dr Watkeys confirm) how or when the child incurred such trauma as Dr San Lazaro detected.
  277. Mr Bishop argues that even if Child 23 had been abused by some other person, in or about December 1993, this would not prove that she had not also been abused by the Claimants. This is to address the burden of proof in a rather misleading way. It is for the Defendants, surely, to prove that despite the possibility of abuse by some other person Child 23 was in fact abused by Mr Lillie and/or Dawn Reed. In view of the obvious measure of agreement between Dr Ward and Dr Watkeys, I do not see how that could be achieved. This is one of many factors underlining the importance of eliminating all other possible candidates before attaching such abuse to Mr Lillie and/or Miss Reed.
  278. Child 24

  279. Child 24 was one of the six "indictment children". She was also, by the time of closing submissions, placed in the forefront of the Defendants' case on justification. She was their strongest example of child abuse by the Claimants. She was born on 14 August 1989 and began at Shieldfield, in the Baby Room, on 21 October 1991. She moved to the Red Room on 21 February 1992 and from there to the Yellow Room on 3 September 1992. There were two visits to the Red Room on 1 and 3 September but, otherwise, her last visit had been at the end of July 1992. Her final day at the Nursery was 5 February 1993. Thereafter she apparently had no direct contact with other Shieldfield pupils. There was clearly an unhappy family background to the extent that she had a father who was sometimes given to violence - although not against her directly. She did, however, begin her interview on 30 July 1993 by telling Helen Foster of an occasion when she was frightened by her father (and apparently some "friends") kicking the door. Thereafter, although she liked to see him, contact apparently ceased.
  280. Her mother gave evidence on 11 March. She was a quiet and moderate witness who seemed to me to be clearly doing her best to recollect the events she was asked to recall. In respect of Child 24 there was found "unequivocal evidence of previous trauma compatible with full penetration through the hymenal orifice" (Dr Kate Ward). She was examined under anaesthesia on 18 November 1993. There was found apparently a central deep transection throughout the width of the hymen at 6 o'clock. There was also nodular scarring of the hymen which was gaping (that in itself is not significant since she was anaesthetised). Also, disruption of the hymenal margin was noted at 3 o'clock. Both free edges were thickened, and there was marked attenuation. Things were not quite so straightforward, however, as they appeared to be.
  281. On 16 May Dr San Lazaro was questioned about her findings. In her police witness statement she purported to record a deep central scar on 12 December 1993. A further lateral indentation was noted at 3 o'clock. This is to be contrasted with the medical report prepared shortly beforehand following examination under anaesthetic on 18 November. There the description was of "at least two deep tears" with accompanying nodular scarring. She accepted that there were inconsistencies and that she would do better now, but Miss Page suggested that in 1993 (six years on from Cleveland) no one could have been in any doubt about the need for scrupulous care and accuracy in recording findings. This would perhaps be especially so in the case of criminal proceedings – Child 24 being one of the indictment children. Dr San Lazaro accepted it was embarrassing to see errors of this nature.
  282. Miss Page submitted that such was the unfortunate state of the records, coupled with Dr San Lazaro's lack of objectivity where Shieldfield was concerned, that I cannot be satisfied that Child 24 did exhibit diagnostic signs of abuse. I am naturally doubtful, but I believe I should accept that there was evidence of penetrative damage. I cannot find what it was exactly, because of Dr San Lazaro's inconsistent records. But, unless she imagined or invented the whole thing, it does look as though there was some scarring. It could just be nodules, but I think scarring seems more likely. When or how it occurred is quite another matter.
  283. She was also asked why she did not take the opportunity while the child was under anaesthetic to crystallise her findings by photography so as to record the evidence of penetrative injury. She said it was not commonly done in those days.
  284. Dr Sandra Hewitt described her as showing early and prolonged signs of traumatic stress behaviour and of unusual sexual behaviour. Professor Friedrich referred to her ability to demonstrate penetration and other indications of inappropriate sexual knowledge. There was also the worrying feature of self-injurious behaviour (biting her arms or scratching her legs if upset).
  285. It seems that her mother first learned of what had happened at Shieldfield from a friend ("JT"). This led to her questioning Child 24 about Shieldfield on a Bank Holiday at the end of May 1993. She told her that she knew someone had been "naughty" at the Nursery and it would be all right to talk to her about it. She went quiet at first and then spoke of going to a library and a flat with Chris and Dawn. She described Mr Lillie as wearing boxer shorts, of an old woman with a horrible face and of a dog called "Shelly". She mentioned other children being present, whether on that occasion or on other occasions. Children mentioned were Child 2, Child 8, Child 22 and Child 23.
  286. Much weight is attached by Mr Bishop to the fact that Child 24 appears to have described Mr Lillie's dog as "cream, brown and black". There are, however, a number of factors to be borne in mind:
  287. 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).
  288. It emerges from Marion Harris' note of 22 June 1993 that the first broaching of the subject by the mother went as follows:
  289. "…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".
  290. It is to be noted that in this (the earliest) record there is no mention of boxer shorts. It is recorded also that, apart from being present, no allegation was made against Dawn Reed. Moreover, it is most unfortunate that the mother got off on the wrong foot (by Cleveland standards) by negative stereotyping. I cannot possibly be confident that the allegation of Mr Lillie taking all his clothes off was volunteered rather than prompted by a leading question. This child was bombarded by leading questions that summer (as emerges from the video interviews) and there is no reason to suppose that the first questioning by the mother was any exception.
  291. It is noteworthy also that the (by no means uncommon) assertions about the police having "got" him are generally intended as reassurance. Normally reassurance is required if a child is reluctant or unwilling to say something. Since this formula was introduced on this occasion, that would tend to suggest that the child was not willing (at first) to make allegations.
  292. I cannot ignore, either, the evidence that Child 24 did not overlap in the same room at Shieldfield with Child 8. Moreover, there is no evidence that Mr Lillie and Miss Reed ever took any children out of the Nursery, on their own, who were not in their direct care. Child 22 and Child 24 only overlapped on the 1 and 3 September 1992. Child 23 and Child 24 appear to have overlapped (if at all) for a maximum of 2 days, but a different two days (i.e. not 1 and 3 September 1992). It is therefore not a practical option for those identified children to have gone out on such a trip.
  293. Boxer shorts first appear on the records in a police statement of 16 August 1993. The statement appears to be something of an amalgam, however, as it also has the formulation (already seen in June 1993) that "Chris took his clothes off in front of other people and smacked her on her bum.".
  294. There is another statement of the mother's which is of some interest. This refers to a statement of 25 November 1993, but is itself undated and unsigned. This gives a different account of how the mother came to learn of the Shieldfield suspensions: "I found out about the allegations of abuse through a network of friends originating from information from [the mother of Child 23]…. I only found out about the allegations in June 1993 and using my own initiative I contacted the RVI to say my daughter may have been abused… Social Services only became involved when they were contacted in turn by Dr Lazaro and I received a visit from Vanessa Lyon alone and it was after that that my name went on the mailing list and so I was kept informed about other meetings which were being held. My third complaint therefore is that Social Services Department took no steps to notify me that my daughter had been at risk of abuse whilst at the nursery".
  295. This document appears to me to throw doubt on the notion that there was no scope for cross-contamination of ideas before Child 24's first allegations, and also to reduce the likelihood that her allegations were unprompted, spontaneous and freely volunteered. It is true that the mother now denies the accuracy of the document, but the doubt remains. I cannot assume that someone simply made up its contents out of nothing.
  296. Her mother took her first to the hospital casualty department and then social services staff visited her and arranged for an examination by Dr San Lazaro. There were two video-taped interviews. The first was on 22 June 1993. It is an unfortunate aspect of this interview, as Professor Bruck pointed out, that the interviewers used the word "naughty" more than 50 times. (I make it a total of 76 times.) All this elicited, however, was an allegation that, "He smacked my bum".
  297. This is difficult to interpret because on one view a child will sometimes, in response to pressure and negative stereotyping, come up with the worst thing he or she can think of (i.e. smacking). On the other hand, as Professor Bruck acknowledges, children who have been sexually abused sometimes begin to disclose by reference to physical abuse such as hitting or smacking.
  298. The allegations of sexual abuse came later. Sometimes this can happen as a result of interviews suggesting such matters or supplying sexual information to the child. Naturally, however, one is sceptical of such an attribution in the case of a child with apparently diagnostic physical findings.
  299. I return to the first interview and to other unsatisfactory features of it. It lasted for an hour and a half (clearly excessive). It also involved the unacceptable pressure, from one point, of three interviewers (the police officer, the mother and the friend). The child resisted all pressures (including the offer of a "McDonald's") to "tell" that Chris and Dawn had done anything "naughty". The pressure continues despite her claim to have a headache. The most that emerges is a smack of the "bum".
  300. It has to be remembered that she left the Red Room some nine months before (aged 3), and that it is by no means entirely clear that she recalls "Chris and Dawn" as members of staff. In particular, one of the things she recalls is that "Chris can't do his laces" (which might suggest that she is thinking of another child). It is necessary to bear in mind, however, that another parent suggested that the idea of not being able to do up shoelaces was a means of belittling Christopher Lillie suggested by Dr San Lazaro, for the purpose of making him seem less frightening. This is something of a problem. Not only is it a form of negative stereotyping, but it is conceivable that it would bring Christopher Lillie to mind artificially when the child might otherwise have forgotten him to a greater or lesser extent.
  301. There was a ten minute supplemental interview a short while after the long one concluded (or possibly as a continuation of it). This was conducted by the mother's friend. Child 24 seems bored by this time and only interested in playing. She said, variously, that she was wearing the same dress as she had on at the interview, that Chris had his clothes on and that he had them off. Dawn was present when Chris smacked her, but on this occasion she described the smack as being to the head rather than the "bum". She was then released for the "McDonald's".
  302. A further interview took place on 30 July when Mr Lillie was said to have poked her in the "bum" and vagina. She linked the incident also to Child 2, who is said to have been given the same treatment. She also made the comment that Child 2 would have to come back for interview. That clearly reveals that some communication had taken place as to what had been going on. It would be quite unrealistic for me to treat Child 24 as having been beyond the scope of cross-contamination since 5 February. In the course of this interview, despite several attempts by Helen Foster to encourage Child 24 to say differently, she nevertheless said persistently that when the incident happened she was wearing her dress and knickers. There then followed a grotesque series of questions by Helen Foster:
  303. "Q: What clothes did he [Chris] have on?
    A: Don't know.
    - - - - - - - - - - - - - - - - - - -
    Q: Have you seen Chris's willy?
    A: No
    Q: Have you seen anybody's?
    A: No
    - - - - - - - - - - - - - - -
    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?
    A: [Non-committal]
    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?
    A: Up.
    Q: Up? And what else did it look like, apart from pointing up?
    A: Bum".
  304. In responding "up", she was giving the answer she perceived was required. This was a travesty and was thoroughly irresponsible. It is the sort of behaviour that can lead to the gravest miscarriages of justice. Helen Foster persisted and asked the child if anyone else had seen it. She replied that Child 2 had and, asked if Dawn had also seen it, she assented to this too. Having badgered the child into apparently assenting to an erection, she then tries for ejaculation as well. This only results in a series of quite meaningless answers about black urine.
  305. As if this were not bad enough, the mother is then brought in to participate in the interview and, shortly afterwards, the friend ("JT"). After a good deal of questioning by the officer, the mother and the friend, Child 24 is prepared to say (implausibly) that Mr Lillie inserted all his fingers into her vagina. This resulted from a question by the mother "Did he use all his fingers?". Helen Foster then intervened and asked "Did it go inside?" This brings a nod. She herself had been unsuccessful for well over a half an hour. The sexual assault allegations she was desperate to extract only emerged once the mother's friend came into the room. She got things moving briskly by asking the child without further ado to show how Chris had poked her. The mother then elicited the allegation that all his fingers had been used. One is left with the overall impression that she is going along with any suggestions put to her (as happened, for example, with Child 27).
  306. As so often, when addressing the children's interviews, I find myself wondering how the Review Team could conceivably have assured their readers that there were no leading questions.
  307. Both interviews are tainted by the pressure to which the child was subjected and the "disclosures" elicited appear to be neither consistent nor freely volunteered. It means that I can give them very little weight. Furthermore, if all this took place on camera, I can see no reason to have confidence in the proposition that on earlier unrecorded occasions there was a scrupulous avoidance of such pressures.
  308. There was then an incident on 2 August when the child escorted various adults to premises to which it was being suggested that she had been taken for abusive purposes. Vanessa Lyon recorded, "She showed us a flat where she was taken by the alleged perpetrators". This led nowhere.
  309. The position in relation to Child 24 is especially unsatisfactory. On the one hand, it looks as though there was evidence at least indicative of penetrative trauma when she was examined in November 1993 (14 to 16 months after leaving the Red Room). Yet there are "embarrassing" errors and inconsistencies which throw the medical findings into a state of uncertainty. Moreover, the interviewing process was truly hopeless. It is thus impossible to come to any clear conclusion as to what happened, when or who (if anyone) was involved. What is clear, however, in my judgment, is that there was no opportunity for this child to have been taken by Mr Lillie or Miss Reed to Red Barnes (where the dog lived) as early as July (or even September) 1992; nor could she have gone on any such trip with Child 8, Child 22 and Child 23 who were identified by her as having been present.
  310. Child 25

  311. Child 25 is one of the oldest concerned in this litigation. She was born on 20 December 1986 and attended at Shieldfield between January 1989 and August 1991. In those circumstances, it is not surprising that Mr Lillie said that he had no recollection of her at all. Although he worked on a temporary basis for some of the time she was there, any contact would have been at most sporadic. It does appear, however, that Miss Reed overlapped with her while in the Red Room. She remembers Child 25 as having behavioural problems and as being something of a "bull in a china shop", but only recalls her in the Baby Room. She thought it highly unlikely that she or Mr Lillie would ever have been left alone with her.
  312. There is no doubt that this child has had a difficult life, to some extent connected with the fact that her mother suffered from manic depression. She has herself exhibited extreme behaviour, and was in due course diagnosed as suffering from attention deficit hyperactivity disorder. She was also for a long time suffering from vulval soreness and urinary tract infection. Her problems pre-dated her time at Shieldfield and also have continued thereafter until the present time. Indeed, at one stage her father was of the opinion that her extreme behaviour had settled down as a result of her regular attendance at Shieldfield. It appears that there came a time when she had to attend Shieldfield more or less daily because of her mother's problems. Her father agreed in his evidence on 18 March that it may very well have been at the time when her mother was admitted to hospital in March 1989 because she was suicidal and depressed.
  313. The father's attention was drawn to a letter dated 11 July 1989 from Dr S Wressell, a senior registrar in child psychiatry, who was reporting to her then GP that she had spoken to Mrs Eyeington at the Day Nursery, who had in turn described a change in Child 25's behaviour over the last few months:
  314. "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."
  315. There were episodes during her time at Shieldfield when she was having trouble with urinary tract infection, because of E-coli, and later the same year with thrush.
  316. It would clearly be a serious mistake to tie in any of child 25's extreme behavioural symptoms with sexual abuse at Shieldfield Nursery. It is true that, when he read of the Shieldfield problems (probably the criminal proceedings) in the newspapers, her father understandably made a connection with the benefit of hindsight but, as I have already indicated, it is impossible to make any such link with confidence because the patterns of eccentric behaviour seem to have been a regular feature of her life from a very young age.
  317. As for medical findings, Child 25 was seen first by Dr San Lazaro in July 1994 (almost three years after she left the Nursery). She seems to have given the child's mother the impression that there was some evidence of abuse. Certainly the mother reported to Edna Davis of Barnardo's that "Dr Lazaro had found physical evidence that [Child 25] had been sexually abused". This must have added greatly to her pre-existing stress and anxiety. She apparently found labial adhesions and nodular scarring at 11 o'clock. Dr Ward has pointed out that, although Dr San Lazaro's conclusion that there was a well healed trauma was reasonable in the light of medical knowledge at the time, subsequent publications would tend to diminish the significance of her findings. Furthermore, by the time Dr San Lazaro saw this child, her mindset had long been fixed along the tramlines that the mere fact of having been to Shieldfield constituted some evidence of abuse in itself (as she seemed to admit in relation to Child 6). Her report of 11 July also contains the muddled and uninformative sentence: "Her history of repeated reviews both by the psychiatrists and with renal problems does suggest a history which looked at in retrospect is highly suspicious of repetitive trauma to this little girl".
  318. In any event, it was being noted at least in March 1994, when she was seven years old, that she was stripping off her clothes in an uninhibited way in front of people and regularly touching her private parts. Whether this originated because of her persistent vulval irritation can only be a matter for speculation, but it cannot be ignored in this context.
  319. Against Child 25's unusual history, it is very difficult to attach much weight to the opinions expressed by Dr Sandra Hewitt and Professor Friedrich.
  320. Dr Hewitt offered the opinion that:
  321. "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".
  322. Professor Friedrich referred to Child 25 exhibiting self injurious behaviour, sleep problems and stereotypic drawings that had a strong trauma link. He added:
  323. "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.
  324. Because they were only disclosed late, I assume that neither of these experts had the benefit of the child's medical records. Indeed, Miss Page herself only obtained them over the weekend immediately prior to the father giving evidence on 18 March. Those background records clearly put a very different complexion on the child's behavioural patterns. Neither of them was asked in cross-examination about Child 25 or, specifically, as to whether their opinions would have been revised in the light of the unusual background. Having seen those experts give evidence, I do not think I would have found their answers to such questions particularly helpful one way or the other. In my judgment the background is clearly critical.
  325. As to the "stereotypic drawings" referred to by Professor Friedrich, it is certainly the case that Child 25 seemed to be drawing a great many clowns at one stage during her life. In particular, it emerged from Barnardo's reports dated 3 May 1994 and 20 February 1995 that she appeared to be drawing clowns frequently for pleasure. The entry on 3 May 1994, for example, states, "[Child 25] enjoys making things and drawing things – mainly clowns, people and houses".
  326. It is also clear that she had a fear of monsters for a considerable period of time. Her psychotherapist, Edna Davis, recorded on 23 February 1996:
  327. "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.
  328. There is a note from Barnardo's (Barbara McKay) recording the meeting of 3 May 1994 between herself, Edna Davis, Marion Harris and Child 25's mother, in which it is observed that the mother "explained that [Child 25] has not actually disclosed sexual abuse". There is a further note of Edna Davis dated 26 January 1995, in which she summarises the play therapy undertaken to that date with Child 25. The conclusion is recorded as follows:
  329. "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".
  330. It does seem, however, clear that there is no unequivocal statement of abuse by Child 25 that can be attributed to Christopher Lillie or Dawn Reed. The adverse conclusions drawn by experts so far appear to be based on behaviour, which is much more likely to be explained by the other factors I have mentioned. The case provides a vivid warning about jumping to conclusions on an incomplete story.
  331. By the end of the trial Child 25 had been placed last in the Review Team's list on the basis that she represented their weakest case. That is perhaps not surprising, but she remained in contention to the bitter end. She was never withdrawn. What is said is that:
  332. "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".
  333. Resort to the concept of "the totality of the evidence" illustrates the backs to the wall nature of the case. What is perhaps the most unpleasant aspect of it, in the light of the mother's background, is expressed in the following submission:
  334. "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".
  335. During a therapy play session in 1994 it was recorded:
  336. "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."
  337. I believe I am being invited to infer from this material that Miss Reed tried to abuse her and threatened that her mother would die, but it would appear from the statement that no abuse actually took place.
  338. Reliance is also placed on a Social Services diary sheet entry of 29 June 1994 (reporting a phone call from "Alison") to the effect that Child 25 had said in play therapy "that she is frightened that if she says anything her mum will die and talks about being hurt by Chris and Dawn". These are described as the "key disclosures", but play therapy disclosures are notoriously unreliable and I cannot possibly have confidence that "Chris and Dawn" were mentioned as a duo entirely spontaneously. That is particularly so in the case of a child who never experienced them as a pair at all. It is much more likely to have been suggested in some way.
  339. Child 26

  340. Child 26 was born on 11 November 1990. She began at Shieldfield in the Baby Room on 26 February 1992 and, after three introductory visits, moved to the Red Room on 26 November 1992. She remained there until the suspensions and beyond, finally leaving the Nursery in November 1993. It is obvious that she was therefore in and around Shieldfield following the suspensions and during the period of anxiety and rumour. (Somewhat confusingly, perhaps, she had a brother called "Chris".)
  341. It was against that background that her grandmother spotted her (in September) bouncing a teddy bear between her legs. The grandmother questioned her about this (in what terms is unclear) and the child said words to the effect "tickle, tickle here", while pointing to her vagina. She was asked who had "done that" to her (certain obvious assumptions being made), and she replied "Chris and Dawn". Up to this time, according to Dr Ward, there was no history of disclosure, physical symptoms or behavioural disturbance. Dr Hewitt describes the record as "sparse". Once, however, behaviours began to be recorded, she was prepared to classify them as associated with traumatic stress. I have referred already to the logical flaws in this process when summarising the evidence of Dr Cameron, but in any event Dr Hewitt was prepared to make the leap and to conclude that "the pattern of behaviours indicates that Child 26 suffered trauma in the Red Room". This is one of a number of conclusions that look remarkably positive for a witness who denied that she was in a position to make any diagnosis.
  342. This child (or at least someone with the same first name) was mentioned by Child 6 as having been present when her "Jenny" was smacked by Dawn with a spoon. It is certainly the case that the two children overlapped in the Red Room from January 1993. Child 26 herself, however, does not mention any other child as having been involved in abuse.
  343. In her medical report, Dr San Lazaro claimed that Child 26 during interview on 1 October 1993 "pointed to the vaginal and anal area and said that she had been hurt there by Chris". The actual notes of the interview, however, do not record that any identified person (let alone Mr Lillie) had been responsible for hurting her. Had the child identified Mr Lillie, it would have been her first "disclosure" of an indecent assault by him and, therefore, vital to record at the time. So much is elementary.
  344. Dr San Lazaro's evidence on this (on 16 May) was, "I am not sure that everything that she said was recorded. I cannot be sure with this passage of time about the accuracy. I cannot be sure of whether something is missing or not".
  345. Miss Page asked her to explain whether the inconsistency was just "appalling sloppiness" or "mischievous embroidery". She said that she would not have reported something the child did not say but that her records were "less than adequate". Unfortunately, that will not do. There are too many other examples of "embroidery". It may be that she honestly believed what she wrote at the time she wrote it. From my point of view, however, that makes little difference. For whatever reason, she just cannot be relied upon to provide reliable data for the experts to interpret.
  346. Another allegation in her report of 8 October was that the child had "also mentioned being taken to another house from the school". It purports to record a disclosure from the child going to an important part of the Review Team's defence of justification. I asked Dr San Lazaro where this came from. Her only reply was, "I am afraid that might not be in my notes as well". In other words, it is impossible to say whether the child said this to Dr San Lazaro, or a parent reported the child as earlier making some such claim, or whether it is simply another example of the doctor's "beefing up" her reports as a creative "advocate".
  347. Miss Page turned to the physical findings. The report referred to an "awkward shaped hymen". She naturally asked Dr San Lazaro if this was merely a mis-transcription in the process of dictation and whether it should actually read as "orchid shaped". At first the witness denied this. She said it reflected "a hymen which was not smooth and crescentic but was, in a sense, angulated" When it was pointed out that she had actually ticked a box for "orchid shaped", she then accepted that this was how the report should read. That would mean, she said:
  348. "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."
  349. The significance of this was the need to try to understand which she had found and in precisely which location. She described "nodular scarring and disruption at the left anterior edge at around the 3 o'clock position". The drawing she had made was similar to that for Child 21. Miss Page suggested that they could both be described as a "squiggle at 1 o'clock". In the case of a crescentic hymen, notches are apparently quite common in the "horns" of the crescent (i.e. at about 11 o'clock and 1 o'clock). That is an important piece of information because a disruption at either of those points could be perfectly normal. Also, as Dr Watkeys confirmed, notches and indentations can be confused with tears.
  350. The position remains unclear. Nevertheless, at the time the doctor was prepared to conclude that some penetrative damage had occurred to the hymen, supportive of the intrusion of a finger. It is impossible to be sure about this. I am inclined to think that this was over-interpretation of a nodule or notch.
  351. Another difficult problem is that she recorded "swelling/redness ++". If there was swelling, this would positively suggest a need to eliminate the possibility of ongoing abuse. There had been no opportunity for Mr Lillie or Miss Reed to interfere with her for many months. It would be a reasonable interpretation of her notes that there had indeed been swelling (as opposed to simply redness). Dr San Lazaro, however, thought she had probably simply intended to record redness and had forgotten to cross out "swelling". We cannot now tell. If there was redness alone (even "++"), this could have a quite innocent explanation. It is to be noted that she had earlier that summer been taken to her GP with genital soreness and urinary symptoms.
  352. Child 26 was one of those who dropped out of the case on 13 May when the plea of justification was withdrawn (with the usual costs consequences).
  353. Child 27

  354. Child 27 was born on 20 February 1990 and began at Shieldfield on 18 November 1991 in the Orange Room but under the care of Mr Lillie and Miss Reed. He moved with them to the Red Room on 2 March 1992. He moved on in mid-November 1992 and left Shieldfield altogether in July 1993. Mr Lillie had no recollection of him.
  355. He was not examined by Dr San Lazaro but by Dr Steele. She found no diagnostic signs of physical abuse, but as Dr Ward points out this does not exclude the possibility. She also referred to behavioural problems such as chronic soiling and enuresis, as well as disruptive and challenging behaviour. She fairly made the point, however, that these could have been related to problems within the family. There was regular violence in the home, for example, but the mother made clear that, even though his father was "quite nasty" to him, he would "never have physically hit him".
  356. The Defendants make no allegation against Miss Reed in relation to this child, but she has a clear recollection of him because he would just stand and wet himself or dirty himself where he stood. She had to sluice him down on one occasion in a bath on the Nursery premises. She described in evidence how she always thought he was crying out for something, but she did not know what it was.
  357. One of the points made on the Defendants' behalf is that the "sluicing" of Child 27 did not find its way into the Day Book. I am invited to take that into account in the context of the Day Books being incomplete. There is no doubt of that. On many occasions the Day Books are brief and uninformative.
  358. The principal focus of the Defendants was the child's limited verbal accounts to his mother (not recorded on video). The first allegation seems to have been in August 1993 just after leaving Shieldfield. He was apparently referring back at least nine months to the period when he was aged between 21 and 33 months old. What he said was that "Chris" had flicked his "bum" with his fingers and turned his penis round with his hand. Later the same month he repeated the allegation, and said that he did not like "Chris". He also placed the incident in someone's room who might have been either "Diane" or "Dawn". It is difficult to know what to make of this, bearing in mind the long gap and questionable reliability of a child's memory over such a period.
  359. Moreover, the nature of the allegations cannot necessarily be characterised as sexual. As with several of the children, it is essential to remember that Mr Lillie and Miss Reed would have had legitimate and routine reasons for touching the children in the genital and perineal region – especially having regard to his incontinence. The boy had, of course, been in the Yellow Room during the Spring and Summer of 1993 when parents and children were anxiously concentrating on the subject of sexual abuse. It is not therefore possible to attach with confidence the sinister significance to his remarks which they might merit if taken in isolation. Professor Bruck made the important point that sometimes, with statements that adults "imbue with a lot of meaning", it takes "a very skilled interviewer" to follow up and to try to understand exactly what the child is saying. That was, of course, not available in the present case.
  360. Child 27's mother gave evidence on 12 March. She was a calm and quiet witness - so quiet in fact that she had to be positioned in the well of the court in front of counsel so that they could hear what she was saying. Her evidence was low-key and straightforward. She said that the child was wetting and soiling himself every day when he first went to the Nursery and that she regularly had to bring back dirty clothes. There was one occasion when Dawn Reed told her that "he needs a good smack" (although Miss Reed does not accept that she would have said that). After a few weeks he began screaming and crying when he went to the Nursery, and so she decided to "put him in full-time thinking he would settle". He had always been a bad sleeper but the problem worsened while he was at Shieldfield. There was also "a chronic problem of aggression to his peers". (He had, for example, hit his brother over the head with a hammer.) There was in addition a speech development problem, for which he was receiving help from a speech therapist at the Nursery and which was being monitored while he was in the Red Room. She remembered the meeting at which parents were told that a member of staff had been suspended because of allegations of child abuse. She was naturally shocked.
  361. When the child began to talk about the Nursery some time later, "he was pushing on the thigh of his leg saying he was doing that to my bum".
  362. There were clearly elements of fantasy in what the child had said to his mother. For example, he told her that he had been to Mr Lillie's mother's house, that she now lived in London and that she "had a green budgie". Mr Lillie's mother had, of course, died many years ago. One could no doubt go through a speculative exercise of constructing an alternative scenario; for example, that he had been taken to someone else's house and abused there (with or without a budgerigar). But it would not be evidence.
  363. The child said that the house was in the Battlefield area near St. Dominic's (close to Red Barns), but once again it is necessary to recall that the child left Mr Lillie's care before he moved to Red Barns (albeit only a few weeks before).
  364. He appears to have alleged to his mother that Mr Lillie ejaculated over his stomach, but the court has to be wary in receiving such information from an anxious parent because of the possible overlay of interpretation based on adult experience. Nor does one have the full context of the conversation and how the allegation came to be made. He also alleged that "red stuff – he thought it must have been blood – came out of his own".
  365. A particular problem so far as this child's disclosures are concerned is how they came to be elicited. It appears that in August 1993, on first contact with Social Services, Kulvinder Chohan and Julie Kinghorn were advising her to question him "about whether he had been upset or hurt by anybody". Unfortunately, his mother has no clear recollection of how she or her mother questioned the boy.
  366. A potentially significant entry in the Red Room Day Book for 28 October 1992 was made by Dawn Reed. She recorded that Child 27 was tearful while being changed after he soiled his pants. She noted redness around the anus and asked if he was sore. She then noted "Tears came down [Child 27's] face. There did not appear to be a reason for this". I do not believe that this was a cunning double bluff on Dawn Reed's part to divert attention from her abuse of the child. The mother also gave evidence about an occasion when he had a sore bottom and said that after she heard about the allegations in the Spring of 1993, "It all fitted in". It appears, however, that her own mother had raised the possibility of abuse earlier because of the sore bottom: "She like wondered to herself if anything could have been done to him, but she thought it couldn't because he was in the nursery and like – and he was only like in her care, my care and the nursery's care". This conversation may be one reason why with the benefit of hindsight the child's mother thought it "all fitted in".
  367. At about the same time, after the rumours of child abuse began doing the rounds at Shieldfield, her then husband (whom she had married in 1992) took to drink. "He was drunk continuously 24 hours a day … and he was overdosing". She said that during this period "he was nasty to all my kids". Later in 1993 the mother and children left him and went to a refuge. This is an especially sad example of the fallout from the Shieldfield "scandal" if the mother's evidence is correct (and I have no reason to doubt it). The husband had himself been abused in care and began drinking because he could not cope with the possibility that his own son had been abused. Things went from bad to worse, the marriage broke up and eventually the husband died in January 2001.
  368. Given this very distressing background, it is worthy of note that Dr Steele recorded her thoughts as follows on 12 August 1993: "I have little doubt that [Child 27] has suffered sexual abuse whilst in the care of the male nursery worker under investigation despite the lack of clear physical signs". It is unfortunate that she should have leapt to such a conclusion without taking full account of the other seriously disturbing features of the child's life that could account for the symptoms on which she based her judgment. She actually went on to say, "However, it is difficult to assess how much of his behaviour is due to this and how much is due to considerable problems within his family". The Defendants are now prepared to acknowledge that one explanation for Child 27's behaviour might be the family situation, but they draw attention to the possibility that children with problem families are targeted by paedophiles who hope that unusual behaviour will be put down to the domestic situation. In this case, however, the bulk of those problems post-dated the Claimants' suspensions from Shieldfield and the explanation thus carries little conviction. Indeed, the boy had left the Red Room six months before that. His father's drinking and violence largely stemmed from the sex abuse allegations.
  369. We all watched the video interview with Child 27 on 11 April in the presence of Professors Bruck and Friedrich and Dr Cameron. It yielded nothing at all. Professor Bruck described the boy as "catatonic" for a large part of the interview. Julie Kinghorn was supposed to be the interviewer but she handed over to the mother until she re-entered the room and terminated the process altogether. She explained that she was doing so because the stage had been reached where he was simply saying "yes" to everything he was asked. So far as I have observed, that is the only example of a police officer recognising this hazard and acting on it. It illustrates, of course, the fundamental difficulty about the Shieldfield interviews as a whole. How is one supposed to distinguish between a genuine allegation and a child saying "yes" for the sake of a quiet life? The short answer is that in the absence of corroboration one cannot.
  370. Child 28

  371. Child 28 was born on 25 February 1991 and joined Shieldfield in June 1992. She first entered the Baby Room and joined the Red Room in January 1993. She left the Nursery finally on 29 July 1994. Her parents both gave evidence on 25 March. The mother told me that she had settled in well after about two weeks in the Baby Room but shortly after going into the Red Room she became "clingy".
  372. The first symptom she noticed was sleep disturbance; she wanted to come into her parents' bed. But this she placed in mid-1993. She also noticed masturbation and Child 28 from time to time was observed trying to insert beads from one of her games into her vagina. Other behavioural factors referred to were aggression and excessive wetting.
  373. There is no video-taped interview in the case of Child 28 and I am left therefore with behaviour and statements as reported by others. It is necessary to be cautious in both these categories of evidence as to when things occurred and whether there were other aspects of the child's circumstances at the relevant times to contribute to them.
  374. The mother was quite agitated and anxious in giving her evidence. This unfortunate history has clearly had a considerable impact on her, as it has in various ways on most of the parents. Understandably so. Two of her suggestions from the witness box suggest that these anxieties may have taken their toll in distorting her perceptions. First, she alleged that Mr Lillie and Miss Reed used to tranquillise her daughter for the purpose of sexual abuse and, indeed, that there were times when she noticed that she was still tranquillised when she picked her up from the Nursery (although she appears to have done nothing about it at the time). She referred also to a reluctance to go in a bath in February 1995, and this she attributes to Mr Lillie and Miss Reed having given her cold baths to rouse her from the effects of their tranquillisers.
  375. The second particularly striking suggestion, when she was being asked about the Red Room Day Books, was that they are simply not to be relied upon because they are later forgeries. The implication seems to be that Dawn Reed wrote them up after her suspension either for the first time or as substitutes for the originals. Either way this highly unlikely scenario would require the active co-operation of other members of staff in the wake of the suspensions. I can give no weight at all to this proposition.
  376. This is a case in which worrying "disclosures" from the child were made much later which are now relied upon as accurate. It is necessary to approach them with caution as some of them seem to have been triggered by therapy. This was because of a referral by Dr San Lazaro on 18 October 1994 – for the very reason that the child had made no allegations. As the Cleveland Report makes clear, such material can often be misleading. In March 1995, for example, the child referred to being kicked downstairs by "Daddy". This is two years after the suspensions. It is suggested that it cannot relate to the child's father, and is in that respect unreliable. I am quite prepared to accept that. But I do not see why I should convert it into an allegation about Mr Lillie. If the statement is unreliable, it cannot be given weight for any purpose.
  377. It is important to have regard to such contemporaneous material as remains available. On 13 October 1994 the mother's account was that Child 28 had enjoyed attending Nursery throughout. She also recorded that there was only one aspect of her behaviour that caused her concern while she was in the Red Room and that was masturbation. What she now says is that there were "so many symptoms". She relates how the child became clingy and distressed after going into the Red Room, but that was not the contemporaneous account.
  378. The medical findings were explored on 16 May with Dr San Lazaro. She was examined in October 1994 (some 18 months after Christopher Lillie was suspended). She appeared to have recorded a complete linear scar at the 5 o'clock position, but went on to attribute what she saw to a "previous transection". She said it was "well healed" and that "in months to come it will probably not be visible". There is a degree of subjective interpretation about this, as to which I have to be wary in respect of Dr San Lazaro. She would know of the lapse of time since the child had last been in contact with Mr Lillie and Miss Reed. This could well have played a part in her deciding that what she was looking at was a "well healed" scar.
  379. I have to be particularly cautious in the light of her claim that it would probably in future not be visible. Miss Page put to her that a complete transection would never heal to obscurity. This was on the instructions of Dr Watkeys. Dr San Lazaro would not give a straight answer. She said, first, "I believe that certain types of injuries to the hymen can heal to obscurity" but was pressed further and was prepared to say, " I think that a complete transection in a pre-pubescent girl can heal to disappearance". In so far as Dr Watkeys differs on that important proposition, I prefer without hesitation the evidence of Dr Watkeys. The possibility thus begins to emerge that what Dr San Lazaro actually saw was not evidence of transection at all, nor a scar, but a natural linear indentation.
  380. The holistic approach led Dr San Lazaro to assert boldly that Child 28 had unequivocal signs of penetration to the hymen; that a considerable time had elapsed since the incident; and that there was no suggestion of ongoing trauma to her. The whole description is coloured by her assumption that the child had been penetrated by Christopher Lillie at least 18 months earlier. In other words, she starts off with the presumption of what her evidence is adduced to prove. Even Dr San Lazaro accepted that it is impossible to age any lesion and that the timing of a penetrative injury would have to depend on history rather than clinical findings.
  381. She readily concluded in her "Medical Evaluation and Opinion" that there had been "gross exposure to multiple abusers". This was four months after Mr Lillie and Miss Reed had been acquitted of the criminal charges. There was a total lack of professional objectivity.
  382. Child 29

  383. Child 29 was born on 13 March 1990. She began at Shieldfield in the Baby Room on 19 March 1992 and moved to the Red Room in the care of Mr Lillie and Miss Reed on 19 June 1992. She left at just under three years of age on 26 February 1993 for financial reasons. There was no oral disclosure of sexual abuse on her part and no video interview. The matters relied upon by the Defendants relate mainly to behaviour.
  384. She was examined by Dr San Lazaro on 26 October 1993, who found nothing diagnostic of sexual abuse. There was, however, at the 5 o'clock position some degree of hymenal distortion, together with thickening, adhesions and altered vascularity. Dr San Lazaro considered the possibility of these findings relating to something congenital but thought that past trauma was the more likely explanation. The reason the child's mother was given for this was a non-medical one, namely that Child 29 had been under the care of Mr Lillie and Miss Reed. This provides a further clear warning about Dr San Lazaro's objectivity. Dr Ward pointed out that a report by Berenson in the American Journal of Obstetrics and Gynaecology, 2000, 182: 820-834, has suggested that notches and altered vascularity are no more common in abused that in non-abused children.
  385. The mother of Child 29 gave evidence on 25 March. (By coincidence she also happens to be stepmother to Child 18.) Miss Page in cross-examination invited her to consider the fact that in October 1992 her partner had moved in to live with them and that, for the first time, Child 29 found herself (aged two and a half) having to share her mother's attention with someone else. The child within a couple of days showed aversion to the partner. The mother admitted that she originally put this down to natural jealousy. She may well have been right to do so.
  386. One of the main behavioural symptoms relied upon was regression in bladder control. There was regular daytime wetting and also at night. This was challenged by Miss Page by reference to the Red Room Day Book. As in some other cases, this mother would not accept these as an accurate record and she preferred her own recollection that the day time wetting became a regular feature in the Red Room, and it required her to supply extra pairs of knickers. It was virtually an everyday occurrence, she believed.
  387. She went so far as to suggest that Christopher Lillie had written the records up after her daughter's departure (presumably therefore at some point between 26 February and 16 April 1993). The theory presumably is that, in order to disguise what he must have known were symptoms of his abuse of Child 29, he deliberately wrote a false record to downplay the wetting. That is altogether fanciful. It would have been difficult to achieve without the connivance of management at the Nursery and, in any event, it does not accord with the general pattern of Day Book entries, whereby neither Christopher Lillie nor Dawn Reed was reticent about entering details of wetting and the need for changed clothes.
  388. Miss Page also suggested that hindsight had influenced her thinking on the matter. The mother told me that she had been on courses about child abuse over the intervening years in order to be able to offer her daughter support. That is, of course, one factor that could have enabled her to attach a different significance to earlier patterns of behaviour. Miss Page drew attention to another contemporaneous record, namely the notes of a meeting with Kulvinder Chohan dated 4 November 1993 when she had actually told her that Child 29 had liked her time at Shieldfield and, indeed, on some occasions had proved reluctant to leave. She talked in a positive way about Mr Lillie and Miss Reed after she had left, and on one occasion actually went back to pay them a visit.
  389. Another aspect of the child's behaviour thought to be significant is that she came to show a fear of clowns. Her mother said that she had been to a circus in April or May 1992 when she had seen clowns without any adverse reaction. But, later that year, it seems she developed a phobia which meant that she would not go near them. It is difficult to assess this, since one has no idea how often or in what circumstances the child would have encountered clowns. It is a recurring theme in this case, and so far as some children are concerned it seemed to focus on what happened at Child 22's birthday party in November 1992. So far as I am aware, however, Child 29 did not attend. There was an occasion when she said that Chris had "put a clown to the window" but it conveys nothing significant to me or, so far as I can gather, to her mother or anyone else. In these circumstances, I cannot draw any inference adverse to Mr Lillie. There is no evidence that he ever dressed as a clown, still less that he did so in circumstances involving abuse. The mother attached significance to this issue because Dr San Lazaro told her that other Shieldfield children had similar fears. Once again, Dr San Lazaro is stepping outside her purely professional role and contributing to the general dynamic of the Shieldfield "scandal".
  390. Child 29 is also said to have developed an aversion to men in beards and was frightened at Santa's grotto in 1992. Her mother was under the impression that Mr Lillie had dressed up as Santa Claus for Christmas 1992. Others too have spoken of children being frightened of Santa Claus at various stages. This may be connected with the fact that some press coverage referred to Mr Lillie dressing up as Santa Claus or included photographs of someone dressed up as Santa Claus under the false impression that they were of him. In fact, he never did so. She also said that there was some point (presumably between June 1992 and February 1993) when Mr Lillie grew a beard. I am not aware of any other evidence about this. In any event, none of this takes matters any further so far as sexual abuse is concerned.
  391. Reference was made to Child 29 having drawn children with sellotape over their mouths. Her mother was asked what significance she attached to this in the context of the present case. She did not attach any significance to it. Accordingly, I do not propose to do so either.
  392. Apparently, on 8 February 1994, a psychotherapist called Dr McArdle expressed the view that Child 29 might have been physically assaulted rather than sexually. She had at some stage alleged that Miss Reed had smacked her. This does not square with the account given to Kulvinder Chohan as to the child having enjoyed her time at the Nursery and being keen to go back. In any case, it is quite apparent to me that it would be contrary to Miss Reed's nature to smack or hurt a child. She told me on several occasions, with some feeling, that she had never smacked a child. I believe her. Moreover, it was so contrary to the practice and culture at the Nursery that I do not believe it would have gone unnoticed. None of her colleagues has suggested anything violent in her behaviour towards children. Indeed, the picture I have from the evidence is that she was a very calm even-tempered person.
  393. Other familiar Shieldfield themes were mentioned in the case of Child 29 too. There was a strong dislike of lifts, for example. Whereas the child had got into a lift without any trouble when she was two and a half years old (which would be September 1992), her mother later had to drag her into a lift to get her to the dentist. I have to ask myself whether it is more rational to explain this by positing that she had been taken by Mr Lillie and Miss Reed to some unidentified block of flats for sexual abuse, and acquired her dislike of lifts for that reason (on an unspecified date or dates between September 1992 and February 1993), or by concluding that she did not want to go to the dentist. In the state of the evidence before me, I would think the latter the more plausible explanation. But what matters is that her fear of lifts, taken by itself, does not provide me with evidence of sexual abuse against either of the Claimants.
  394. Yet again, the subject of injections cropped up. Child 29 is said to have a fear of injections. When she was given a pre-school booster at the age of four (i.e. some time after March 1994) she "flipped". Again, however, this does not provide me with evidence of sexual abuse in itself. If there were evidence, in other cases, of the Claimants injecting children to facilitate sexual abuse, it would be easier to infer something comparably sinister for Child 29. But the scenario has simply not been proved. I was told by Dr Cameron that it is commonplace in young children to react strongly against needles, syringes and injections. He also told me that there are valium-based drugs which can be used to enable a doctor (or indeed anyone else) to carry out painful or intrusive procedures on patients without their being aware of it, at the time or later. He entered the important caveat, however, that the administration of such drugs requires skill and, what is more, it would very difficult to use such drugs in the case of a small child because the dose would be so difficult to judge. Either it would be too low, and would have no effect, or too high and the child might die. This evidence was unchallenged. Such drugs could only be available over the counter on prescription or, presumably, from some illicit source. Police inquiries threw up not a scintilla of evidence to support this sinister hypothesis.
  395. Child 30

  396. Child 30 was born on 26 September 1990. He began at Shieldfield at under two and a half years of age in January 1993. He was in the joint care of Mr Lillie and Miss Reed until the suspensions. He left the Nursery altogether in January 1994. I understand that he normally attended no more than one day a week. He usually attended roughly from 9.30 a.m. to 2.30 or 3.30 p.m. Miss Page put to the mother that he attended nine such sessions only prior to Mr Lillie's suspension when he was present, and she did not demur. Those dates were as follows: 11, 18, 25 January ; 1 and 15 February; 15, 22 and 29 March; 5 April 1993.
  397. When examined by Dr San Lazaro on 11 June 1993 she found nothing diagnostic of sexual abuse. Such anal characteristics as she found were non-specific (flattening of the skin folds and pigmentation). Dr Ward, therefore, emphasised that it was important to take account of the whole picture. She, together with Professor Friedrich and Dr Hewitt, consider that his sexualised and self-injurious behaviour do point to a probability of sexual abuse in the Red Room.
  398. Here is another child who is said (like Child 10 and Child 22) to have been tied up and had knives put in his bottom. It was also suggested (to his mother on 31 October 1993) that "they" poked his eyes with their fingers and banged his head with both hands. Doing something to the eyes is an allegation raised also in connection with Child 7. I was told that two of the mothers with whom Dr San Lazaro was in regular telephone contact were those of Child 7 and Child 30 (see paragraph 670 above). Whether there is any connection I have no idea, but it is clear that unfortunately Dr San Lazaro was not averse to passing on allegations between parents (see e.g. Child 29). The mother has a diary entry for 11 July 1993 to the effect that Dr San Lazaro had phoned and "no bones about it – something has happened".
  399. Child 30 was interviewed on 28 July 1993 (shortly after the arrests in respect of Child 23). There was nothing revealed about Mr Lillie or Miss Reed. He was even contradictory as to whether he recalled them at all, although it would be surprising if he had forgotten them altogether after three months. He declined to say that "Chris" had ever done anything "nasty" or that he "didn't like". When he was asked if he liked "Chris" at one point, he said "no". But it appeared that he did not like his current teacher (Catherine) either. The interview amounts to precisely nothing.
  400. In November 1993, he said he had been locked in cupboards, and mentioned a white ambulance and a bed being cranked up. Mr Bishop suggested in cross-examination that perhaps there had been a hospital bed, capable of adjustment, on the floor above the Shieldfield Nursery but that led nowhere. It may conceivably be relevant that Dr San Lazaro has an adjustable bed for examinations in the Lindisfarne suite. She described this in her evidence on 13 May. Of course, I cannot conclude that this is what the child had in mind, but it is at least something from his direct experience rather than deriving from a speculative scenario.
  401. On 30 November 1993, a number of striking allegations were made to his mother, including that "Chris and Dawn go like a fish". He claimed to have blown a raspberry on Mr Lillie's private parts. That is clearly a potentially important allegation. He is also said to have "proffered" his bottom to his mother (a phrase used by Professor Friedrich in relation to Child 1). That is much less specific and any significance it may have depends so much on context (as with Child 1). There was apparently an occasion when his mother threatened to spank him and he backed away with the words, "No, no smacking bum, bum" – I do not find that either surprising or sinister. Marion Harris was told about this by the mother on 22 June 1993.
  402. There are other troubling behaviour traits, in particular an unusual focus on his own genitals including apparently smacking himself in that region. He is also said to have put his finger in his brother's bottom and to have reported crayons being inserted in his own anus. However equivocal some of the other children's behaviour may have been, this child does appear to have been exhibiting behaviour that can be described as "sexualised". Dr Hewitt described the quality of the behaviours she had seen as "significant and atypical".
  403. His mother gave evidence on 25 April. She was asked about Child 32 whose mother had been a friend of hers at that time. This was because Child 30 mentioned that child as having been present when he was taken somewhere in a white ambulance. He said that "they" hurt Child 32. In testing the plausibility of any such scenario, Miss Page pointed out that the two children overlapped in the Red Room only on 15, 22 and 29 March and on 5 April. If there were any opportunity for them both to be taken out by Mr Lillie in a white ambulance (an inherently unlikely occurrence in any case), it would have to have occurred on one of those days. There is nothing to corroborate it whatever. It is, however, necessary to bear in mind that the two children did spend a good deal more time together after the suspensions (during the time Newcastle had become a "rumour mill", as it was put to Professor Barker on 17 May). By now, the phenomenon is familiar of children "disclosing" stories involving their current or most recent companions but not necessarily grounded in reality.
  404. The mother of Child 30 was one of those who were told by Dr San Lazaro that her son had a streptococcal infection that was very rarely found. There is no reason whatever to suppose that it was indicative of sexual transmission. Apparently Dr San Lazaro did not tell her that it was, but instead of putting her mind at rest she left the information hanging in the air as a source of anxiety. Moreover, in January 1996 the mother was clearly linking the infection with abuse at Shieldfield in the course of her interviews with the Review Team. She said that he had suffered physically from a bleeding bottom as well as a lot of stress.
  405. It is perhaps also relevant to note that Child 30 had been attached to Christopher Lillie and tended to call him "Daddy", as he did most men with whom he came into contact.
  406. The mother said she was aware of the possibility of sexual abuse, not least through having done a certificate of education herself. She regarded the extent and nature of her son's unusual behaviours as indicative of some form of trauma. An example she gave is of going on a holiday in the Lake District in April 1993 when the child checked in all the cupboards. There was also a later incident recorded in her personal notes in June 1993 when the child was upset at a story in which a bear was shut in a cupboard. I do not find it possible, however, to conclude from these incidents that they show that Dawn Reed had shut him in a cupboard as part of a pattern of abuse.
  407. The child also reacted adversely on different occasions to the noise from a fizzy drinks machine and from a pneumatic drill. Not in itself significant, but I believe I am being asked to infer that this is consistent with one or other of the Claimants having used a vibrator in his presence. There is no conceivable evidential basis for doing so.
  408. Like other parents, this mother went through great stress and anxiety during 1993 and later. It is entirely understandable. She recorded as much in her diary, for example on 28 July 1993. It seems that little was done to put her mind at rest. On the contrary, there was a general tendency towards raising awareness of child abuse. By 21 October 1993, she was meeting Marietta Higgs through a parent from the Jason Dabbs nursery. In 1995 she attended the Nursery Crimes Conference addressed by Mrs Saradjian.
  409. There was a sore anus on 14 September 1993. There was a reference by the child to a knife in the bottom. As experts have pointed out, however, children at that age may describe a soreness in the bottom as being like a knife. The expression is not necessarily to be taken literally. Miss Page pointed out that it appeared that he might have been suffering from worms at the time. There was also a reference to knives on 29 October 1993.
  410. Child 31

  411. Child 31 is the youngest of the children, having been born on 7 September 1992. She attended in the Baby Room, two days a week, from the age of five months until she was eighteen months old. Because of her immaturity, there is virtually no verbal disclosure and certainly no video interview. The evidence relied upon is partly behavioural and partly medical findings, the significance of which was fundamentally disputed by the experts. When Christopher Lillie was suspended, she was just over six months old. Because she was in the Baby Room neither Mr Lillie nor Miss Reed has any recollection of her.
  412. Child 31's mother was the first parent to give evidence, having been interposed in the course of the Claimants' case on 28 January. There is no doubt that she has believed for many years that her child was subjected to penetrative abuse by Christopher Lillie on one or more occasions during the first year of life. It takes little imagination to envisage the strong feelings that such a belief must have engendered. Her evidence, however, did not betray this in any way. She was calm, dignified and clear. What she had to say was primarily relevant to the behavioural changes she noticed in the child, but there was also the negative evidence to the effect that she knew of no opportunity for her to have been abused over the relevant period other than at the Nursery.
  413. One of the puzzling features about this case is that all seemed well until about September or October 1993, when she returned to Shieldfield after an extended holiday in Central America over the Summer. There was sleep disturbance and at least one bad nightmare. There were also cries during her sleep. Two weeks after her return to Shieldfield, there was also noticed aggression and bad temper. There had apparently, however, been no cause for concern prior to Mr Lillie's suspension in April nor in the six months following (equivalent to fifty per cent of her life). It is possible, of course, that the return to Shieldfield sparked memories of earlier abuse in that environment which had hitherto been suppressed. But it is impossible to conclude that this was in fact the case. It involves speculation or theorising on incomplete information. It is one of those cases where I am invited to see the symptoms in a wider context. If there were an established pattern, or even perhaps one proved instance, of Mr Lillie trying to penetrate babies, then it might be argued that they are likely to be attributable to that same perversion. In the absence of such evidence, however, one has to focus on the case in hand.
  414. Central to the Defendants' case are the medical findings. Dr San Lazaro and Dr Ward are of the view that these reveal evidence diagnostic of penetrative abuse.
  415. The child was examined on 15 October 1993. Dr San Lazaro recorded a thickened, wide hymenal orifice with deep disruptions at the 3 and 9 o'clock positions. Miss Page drew her attention, however, to the drawing which did not appear to be showing deep tears – nor was it labelled with a description. The witness was asked, therefore, whether she would interpret it as showing notches, clefts, indentations or partial tears. In particular, one has to have in mind that there is sometimes a tendency in features which are congenital to find a natural symmetry. That is so, for example, with hymenal bands. Where symmetrical features appear, the possibility of something congenital should at least be addressed. Dr San Lazaro admitted, not surprisingly, that she could not remember how representative the drawing of her findings actually was.
  416. There was another sketch which the witness said must have been a "practice" drawing. She believes that she was trying to see how best she could define what she had seen. She added, "This is a child who has the oestrogen effect on the hymen and I think it must have been terribly difficult to draw". She agreed that Miss Page was correct when she put to her that all that one could gather, combining all this together, was that there were present disruptions at 3 and 9 o'clock which were neither such as to reach the base of the hymen nor in the posterior portion.
  417. She put quite clearly to Dr San Lazaro that there simply was no indication of penetrating injury. She accepted that it was difficult:
  418. "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).
  419. The witness added that she was sure that she would have taken care to establish that they were indeed disruptions because it was not something she would want to believe. On the other hand, she acknowledged that it is usually quite difficult to look into the hymenal orifice and to examine such small babies "because of the amount of tissue around".
  420. Dr Watkeys, on the other hand, is prepared to conclude as follows:
  421. "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".
  422. It is therefore clear that the medical evidence is to say the least equivocal, giving rise to opportunities for genuine difference of expert opinion as to their significance. The case provides just one illustration of how little is really known about this tiny and variable membrane. Because of the oestrogen factor, it tends to be fleshy and more difficult to assess in children of this very young age.
  423. Returning, therefore, to the behavioural evidence, I need to take account of the comments of Dr Sandra Hewitt:
  424. "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".
  425. There is in fact no direct or reliable evidence that Mr Lillie changed Child 31's nappy. Nor is there anything to link him with bags. Nor is there any verbal account to "anchor the source of the trauma". Moreover, there is nothing to explain the long gap in time before any behavioural symptoms emerged.
  426. In so far as there is some evidence from other children (Child 6, Child 23 and Child 18) which could be interpreted as suggesting that a baby (even a baby with fair hair) was present at a location outside the Nursery I have to discount this. There is no evidence to support the proposition that a baby could have been taken out of the Baby Room and gone missing for an hour or two without any of the staff noticing. However chaotic the administration at Shieldfield was, or may have been, no criticism has been levelled at members of the Baby Room staff. I was told that it was a very high staff/baby ratio (sometimes even one to one). The idea that a baby could have simply gone missing is fanciful. It is equally fanciful to suggest that Mr Lillie and/or Miss Reed could have taken a baby out of the room and abused her in the presence of or with the connivance of any of those staff members.
  427. The Defendants' case therefore must depend upon the abuse having been carried out by Mr Lillie in the Baby Room itself with a stealth comparable to that of Jason Dabbs. Since he was never authorised to carry out the task of nappy changing, this allegation turns upon the fall-back theory of the crayon inserted up the leg of a nappy and/or of elasticated training pants. Of course, if one is determined to find Mr Lillie guilty of causing penetrative injury to Child 31, there are various theoretical means that one can construct whereby this could have been carried out. That is not, however, the process I am engaged upon. I am looking for evidence upon which to conclude that he probably did so. I will return to this theme of elasticated pants shortly when considering the evidence of the Claimants themselves.
  428. I should add that on 21 March the mother of Child 22 claimed that she had seen Christopher Lillie changing nappies a number of times in the Baby Room. I do not accept that as an accurate recollection. It does not accord with the rather strict rules about the handling of babies, and in other respects I have noted that the mother Child 22 cannot be accepted as an "accurate historian".
  429. In therapy, Child 31 referred to "Chris and Dawn" but it is important to note the evidence of Dr Cameron in this context. He described it as "out of the question" that Child 31 could then give a verbal account of any abuse which occurred when she was a baby of no more than six months old. That evidence would surprise no one with even the most cursory knowledge of child development. I accept it.
  430. What this demonstrates, however, is the downside of therapy for supposedly abused children (as recognised in the Cleveland Report). The child can only have acquired the belief that she was abused as a baby from being told about it at a later stage.
  431. 9) The evidence called for the Claimants on the abuse issue

  432. Unlike the Review Team, I have had the opportunity to consider the sworn testimony of the two Claimants as to the allegations of abuse, including their cross-examination on behalf of both sets of Defendants. The criminal proceedings in 1994 never reached the stage when they would have had the opportunity of giving their accounts, and accordingly this is the first time that their case has been heard. The Newcastle Chronicle had reported parents as expressing the wish for Mr Lillie and Miss Reed to be subjected to cross-examination. That has now happened.
  433. It is nowadays to some extent unfashionable to focus on a witness's "demeanour", but there comes a point when the fact-finding tribunal has to decide by some means whether or not particular testimony is or is not credible. It is not always possible to account for such findings by reference solely to logical analysis. Jurors are often told to apply their common sense and general experience of people in coming to their conclusions on the evidence. I must obviously do the same.
  434. Miss Reed was in the witness box for six days (from 18 to 25 January), for most of that time under cross-examination. She was cross-examined by Mr Bishop for over three and a half days, and by Miss Sharp for one and a half days. Much of this exercise was unproductive, as it consisted of "putting" the Defendants' case that she had participated in multiple child abuse, including rape and buggery, whereas her response was that nothing untoward had happened. Miss Sharp isolated four instances of what she described herself on 24 January as "lies" for the purpose of undermining Miss Reed's credibility. It is right that I should address these individually.
  435. First, it was said that she lied during a police interview about whether she had seen Mr Lillie's dog at the Nursery. In fact, he never possessed a dog himself but was often to be seen with a dog called "Ben" belonging to his girlfriend, Lorraine Kelly. He was living in her flat from December 1992 and took her dog for walks. Miss Reed was asked in a police interview whether he had brought the dog to the Shieldfield Nursery. Her reply was that she had not seen it. That is ambiguous, in the sense that it could have meant that she had never seen the dog at all, or merely that she had not seen it at the Nursery. Miss Sharp's suggestion was that it meant the former, and that this must have been a deliberately false answer to the police officers. This was on the basis that she told me she had seen the dog - on one occasion only (just outside the Nursery premises).
  436. It was put to Miss Reed that, if she had in 2002 a clear memory of a dog outside the Nursery that was "black, shaggy and overweight", it was odd that she had not mentioned it to the police when she was questioned in 1993. I do not find this point impressive. First, the answer given was ambiguous, and could certainly be reasonably construed as an answer to the actual police question, namely "Has he ever had his dog into the nursery?" Secondly, I cannot see how it would profit Miss Reed to tell the police that she had never seen the dog if, as she told the court in these proceedings, she had seen it once outside. There would be no point.
  437. The second "lie" attributed to Miss Reed related to the circumstances in which Mr Lillie had, on one occasion, taken Child 1 out with him when he was going back to his flat to collect something. According to his evidence, in this court, Mr Lillie was on his way to his flat because he had forgotten some item and simply offered, on the spur of the moment, to take Child 1 with him to settle him down and take him off Miss Reed's hands. But, as Miss Sharp points out, that was not what Miss Reed told the police when questioned in interview on 26 July 1993. She was asked on that occasion whether she would tell the officers if she knew of anything improper that Mr Lillie had done. She replied in the affirmative. She went on to explain, at the officers' invitation, why it would be important for her to do so. She replied by saying, "If something like that had happened, then that person should not be working with children". Yet she did not tell the police that Mr Lillie had taken Child 1 to his home. She had only informed them that, "The only way we could settle him [Child 1] was to take him out for a little walk, and we would take turns the two mornings [Child 1] was there." She further explained that, "Usually we just walked along the shops".
  438. It was suggested by Miss Sharp that if she knew, at that time, that Mr Lillie had taken Child 1 to his home on one occasion, she should have told them. She replied that she thought she had told them. Miss Sharp then pointed out that when interviewed by two journalists, Mr Webster and Mr Woffinden, in December 1998, she told them that she had no recollection of Mr Lillie taking Child 1 to his home. She was asked, therefore, how it came about that she had no such recollection 1998 but a clear memory in 2002. She thought the explanation might be, on reflection, that she had read it somewhere. Miss Sharp was putting to her that she must have picked the information up years after the event, from the two journalists in 1998, and had not been told at the time by Mr Lillie that he was taking Child 1 to his flat (contrary to her evidence in 2002).
  439. It was further suggested that Miss Reed was now backing Mr Lillie's own account (i.e. that he had told her where he was going with Child 1 before he left the Nursery) when knowing it to be false. The motive for this, as put by Miss Sharp, would be to protect herself since, as she accepts, if Mr Lillie was guilty of abuse, she would have been bound to know of it.
  440. It is obvious that Miss Reed cannot have been giving an accurate account to the journalists in 1998 and to the court in 2002. Either she remembered Mr Lillie telling her that he was taking Child 1 to his flat, or she did not. Is it more likely that she made a conscious decision to lie to the court in 2002 to back up Mr Lillie's story, or that she took the information on board from her 1998 interview and, by the time she produced her witness statement, had come to believe that it was part of her own knowledge of what had taken place six years earlier?
  441. I think the latter is more likely (especially since she had not read Mr Lillie's statement before going into the witness box). I think Miss Sharp was hitting the nail on the head when she put it to her "… the information that Chris had taken this little boy on his own came from either Mr Webster or Mr Woffinden".
  442. Thirdly, Miss Sharp turned to the subject of Child 23. She had been asked by police (in the July 1993 interview) if she had taken Child 23 out and, if so, whether it would be recorded in the Nursery Day Book. She replied that she could not remember if Child 23 had been taken out of the Nursery (although children certainly were taken out on a regular basis). She did, however, add that she would expect any such outing to be in the book. She had told the police officers that it was the usual practice to fill in the book but that, like any paperwork, it built up and several days might sometimes go by without the record being completed. She could not be sure, therefore, that an outing would have been recorded. Miss Sharp highlighted what appeared to be a difference of emphasis in Miss Reed's evidence before the court. Here, she had not given the impression that outings would routinely be recorded, but rather that an outing would only be mentioned in a Day Book if there was something worthy of note. On the basis of this, Miss Sharp suggested, she had not given a true account to the police in 1993. Miss Reed's answer was, "I answered their questions to the best of my ability".
  443. Miss Sharp was building up towards putting to Miss Reed that she had been pretending to the police that most outings were on the record whereas, in fact, she and Mr Lillie routinely took children out to Mr Lillie's flat, or other unspecified locations, in order to abuse the children, without putting anything in the book. She never quite put it that way, however, and I am not in any event persuaded that the interview will bear that interpretation. After all, nobody has proceeded on the basis that recorded outings were necessarily to be taken as accurately recorded or as reflecting only innocent expeditions. For example, there was a trip to Whitley Bay on 10 February 1993, during which pebbles were gathered for the newly acquired Nursery fish tank. (Incidentally, the City Council disclosed the receipt for the fish tank, which was dated 8 February.) Mr Lillie's unchallenged evidence was that a third member of staff (also called Dawn) had accompanied them. Furthermore, records were disclosed to show that three adults had indeed claimed travel expenses for such a trip. That did not stop Mr Bishop putting that it was merely a cover for abuse and that, because there was drizzle in the area on 10 February 1993, the more likely explanation is that children were taken to an unspecified address near Whitley Bay for child abuse. In those circumstances, I cannot quite see how a calculated lie to the police about record-keeping would have assisted Miss Reed. The police would not have been likely to take Day Book entries at face value any more than was Mr Bishop.
  444. I cannot see how the Review Team can possibly float the rumour about child abuse in Whitley Bay without taking the trouble to find out what the other Dawn (a home carer) had to say about the matter. She needed to be interviewed and asked whether she had disappeared for a time so as to leave an opportunity for Mr Lillie and Miss Reed to go off and abuse the children. Unless they took the trouble to do that, they could not responsibly adopt the stance that the Whitley Bay trip was for purposes of abusing the children concerned without implicating her. Yet that is what they have done. It does not reflect well on them.
  445. The fourth point related to whether or not Miss Reed knew where Mr Lillie lived. The Defendants' case is that the two of them were conducting an unhealthy sexual relationship with each other, and that she had been to his flat in Red Barns (to which he moved with his girlfriend in December 1992) on numerous occasions. Her case (and, for that matter, his) has always been that they were merely working colleagues who did not mix socially, and who had no sexual interest in each other of any kind. According to Miss Reed, she knew no more about his home arrangements, in early 1993, than that he lived with his girlfriend (Lorraine Kelly) somewhere near the nursery. Miss Sharp sought to undermine this account by cross-examining her about another part of her evidence, during which she had said that (after Mr Lillie's suspension in April 1993) she had dropped him off after a party given by one of the staff (called "Ros"). She had dropped Susan Elsdon off first and then Christopher Lillie.
  446. Miss Sharp developed her attack in this way:
  447. "…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".
  448. Following this exchange, Miss Sharp went on to suggest that Miss Reed must have deliberately misled the police in July 1993 (only a month or two afterwards), when she told them, "I only know he moved in with his girlfriend round the corner somewhere". Her point was that, if Miss Reed had dropped Mr Lillie off in the vicinity of Red Barns after the party, she would have known by July where he lived.
  449. It is clear to me that the police were not interested in whether Miss Reed had discovered where Mr Lillie was living through dropping him off after a party in the aftermath of his suspension. They were interested to know whether she was telling them the truth in denying that she knew where he lived before his suspension. That was when she was supposed to have visited the flat and taken part in orgies of child abuse. In all the circumstances, this seems to me to be a non-point.
  450. What I have to decide is whether any of these four points undermines Miss Reed's credibility with regard to her evidence as a whole. It was put to her by Miss Sharp that these provided instances of "very important pieces of information" in respect of which she had given the police a false account. I have taken some time to go through them because, as I understand it, they represent the high point of the week-long cross-examination to which her evidence was subjected. I do not believe her evidence was undermined in any way by these points. In my judgment, the days of public cross-examination yielded nothing of any significance. I believed Miss Reed's evidence. I feel rather like Mr Hattam, her former trade union representative, who expressed the view so many years before that she was "either innocent or a brilliant liar". I wish to make it clear that I am not deciding this case merely on the basis of standard of proof and saying that I have not been persuaded by the Defendants' evidence. The position is rather that I found Miss Reed's evidence wholly persuasive. I have no hesitation, therefore, in ruling out Mr Hattam's second alternative.
  451. It is necessary for me to remember also that, if Miss Reed had wished to save her own skin, she was given the opportunity by police officers in 1993. She told me that it was made clear to her by police officers that if she were to, in effect, "dish the dirt" on Christopher Lillie, then the police might well not proceed against her. It had been put a little more indirectly, but the purpose was explained to her by her then solicitor. Her response was that she was simply not prepared to tell lies even if it meant that she too would have to face charges of child abuse. I believe that without a shadow of a doubt. The police must have been conscious of the weakness of the evidence against Mr Lillie, and it would have made all the difference if Miss Reed could fill some of the gaps for them.
  452. As for Mr Lillie, it seemed that during his cross-examination by Mr Bishop there were two points to which the court was invited to attach particular significance. First, a little time was spent viewing a video of Mr Lillie's 27th birthday party in June 1991, when he took the children to the local soft play centre together with various other adults (including parents and staff, although I could not tell exactly how many were present). On the basis of this material, it was suggested that Mr Lillie was over-physical with these children and going beyond the boundaries of propriety. Mr Lillie and one of the mothers, and from time to time some of the children, were rolling about in a large tank of soft balls which were bouncing up and down. From time to time he would grab a child and tip it into the tank and then throw some of the balls at him or her. I did not find this footage helpful in the sense of demonstrating an inclination towards paedophilia.
  453. Another point taken in relation to the video was that there was a credit at the end of the performance, admittedly typed in by Mr Lillie, in which he acknowledged the contribution from "the little darlings of Shieldfield Nursery". Mr Bishop put to him that it was a curious way of referring to young children (and, implicitly, unhealthy). Again, this is not a point which assisted me, one way or the other, in deciding whether to conclude that Mr Lillie was guilty of paedophilia and child abuse. It is more consistent with harmless and light-hearted irony.
  454. A separate point taken by Mr Bishop was that in one of the Day Books Mr Lillie had recorded, on 31 January 1992, in respect of Child 14 that she had arrived at the Nursery in a flimsy garment with see-through sleeves. Mr Bishop put to Mr Lillie that this too was rather an unhealthy comment and that it provided some evidence that he found the child "attractive". Mr Lillie's response was that he was recording the fact in the Day Book because it was 31 January, a very cold day, and the child had arrived unsuitably dressed for the weather. It seems to me that this is a far more plausible explanation than that Mr Lillie was recording in the Day Book, for all to see, his lustful musings about a 3 year old. It is worthy of note that the origin of this rather fanciful suggestion is to be found in the mother's statement to the Review Team after she had seen, or had drawn to her attention, the 31 January entry (implicitly critical of her). She returned to the point in her evidence before me in March. She told me that she remembered the garment still (ten years later). She said that her child was always appropriately dressed and that there was nothing "see through" about the sleeves. The garment had been made specially on a knitting machine. For the reason I have already given, I am unable to attach any sinister significance to this episode.
  455. Mr Lillie was also cross-examined on the subject of nappies and/or elasticated training pants. It was necessary for the Review Team (and at that stage also the Newcastle Chronicle) to prove that he had abused the youngest of the children concerned, namely Child 31. She was a baby and at all material times therefore in the Baby Room. The only reliable evidence is that at Shieldfield the rule was that only Baby Room staff were allowed to perform any of the intimate tasks for the babies, including nappy changing; what is more, a baby could only go out of the Nursery if accompanied by a member of the Baby Room staff. One or two of the children have made reference to a baby being present at some location outside the Nursery, where he or she could have been abused by Christopher Lillie and/or Dawn Reed. But I am quite satisfied that there is no evidence to suggest that either of them took Child 31 or any other baby out of the Nursery at all – let alone without any member of the Baby Room staff accompanying.
  456. Mr Lillie accepted on 28 January, at the beginning of his cross-examination, that he did go into the Baby Room not only to collect or deposit toys but also to bring in the tea trolley and to talk to staff, but he denied that he would pick up or "handle" babies while he was there. It was put to him on 4 February that he had sometimes covered for other staff at lunch times. He said he did not recall having done this but, if he had, he could have "handled" babies on that temporary footing.
  457. Maria Buck did not give oral evidence, but I was asked to read parts of her witness statement. In this context, she said that he came into the Baby Room sometimes when it was not "necessary" to do so. He was told by Carol Welsh and Susan Elsdon (neither of whom attended as witnesses) that he was not supposed to do this. She added:
  458. "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".
  459. He was asked by Mr Bishop why he could not just have pushed a child to prevent it getting out of the room – rather than picking them up. He replied that it was "just a natural thing to do". He added, "If a child is next to the door, you pick them up to carry them into the room".
  460. The Review Team had to come up with a scenario that would have enabled Mr Lillie to cause penetrative abuse without being spotted. What was put to the Claimants was that Mr Lillie would have been able to take a crayon and go in to the Baby Room and, if not actually able to change Child 31, he would then have slid the crayon up the side of her nappy or elasticated pants, while no one was looking. He was asked "… the elasticated leg is very easy to put your hand up, is it not?" He could thus have achieved penetrative injury by means of a perverted variant of keyhole surgery. It was this suggestion that led Miss Reed to comment that she would never have envisaged anyone doing some of the things alleged against them in this case unless she had read of them in the Defendants' pleaded case. This was clearly one of those allegations she merely thought "sick".
  461. The Review Team's approach would seem to be that the Jason Dabbs case opened everyone's eyes to the possibilities of abuse in the nursery environment and that the Nursery staff were just complacent in thinking that lightning could not strike twice. No doubt the training pants scenario is physically possible, given a crayon of suitable length and flexibility, but I need not to lose sight of certain guiding principles (especially having regard to Lord Nicholls' exposition in Re H). First, there is an elementary distinction between what is likely or probable and that which is merely physically possible. Secondly, the more serious (or, for that matter, the more fanciful) an hypothesis, the more compelling the evidence required to support it. Here there is no evidence that Mr Lillie or Miss Reed did this perverted act, and they have both denied it under cross-examination. The inference is invited, I suppose, from two facts alleged: (1) that Dr San Lazaro claimed to have found evidence of penetrative abuse to Child 31, and (2) that Mr Lillie has a propensity for using crayons to achieve penetration. (That is itself is controversial, however, and first surfaces in Child 23's video interview of 12 July 1993, which I consider elsewhere.) Suffice to say that cross-examination on this front made no inroads.
  462. It is interesting that, although on page 269 of the Report the Team chose to assert that Mr Lillie's explanation with regard to the photographs taken from his home "was probably false", this was not put in cross-examination. This is probably because the Team (and Mr Bishop) actually knew that the police had found nothing untoward about them. They had been told as much on 22 January 1997 by Detective Inspector Findlay. It is, therefore, striking that they sought to bolster their conclusions in the Report by this gratuitous remark (based on nothing). It is just an example of an unsupported smear. It is based on no weighing or analysis of conflicting evidence. There was none disclosed on the face of the Report. Nor did any of the Review Team give evidence that any meaningful analysis had been carried out behind the scenes.
  463. There was another factor placed right in the forefront of Mr Bishop's closing submissions, and to that I must now turn. Miss Reed explained how during the car journey from Ros's party in April or early May 1993 Mr Lillie had told her something of the allegations he was then facing. These related at that stage to Child 22. According to Miss Reed's recollection, he told her that he was being accused of using a crayon on the child. That was not part of the case against him so far as Child 22 was concerned. It would, therefore, be an odd story for him to pass on to Miss Reed. Nonetheless, she did confirm (on 23 January) that this was indeed what he had told her. Mr Bishop regards this as a "dead giveaway". He said it marked Mr Lillie out as "the man who knew too much". He drew the analogy of the suspect husband whose wife's body has just been found in the woods, and he says to the police "but I have never been to Sherwood Forest" – when no one has mentioned Sherwood Forest. There was no reason for Mr Lillie to mention crayons to Miss Reed if that formed no part of the Child 22 allegations. So why should Miss Reed have been persuaded that he did?
  464. Miss Page referred to Child 23 as the "index child" for Miss Reed. She was the first child in respect of whom Miss Reed was tackled by the police. Child 23 was, of course, the one who mentioned a crayon in her police interview in July. This is a possible explanation for the prominence of crayons in Miss Reed's mind from then on in the context of child abuse. Miss Page suggests that it simply transferred itself, in her mental process, from her first police allegations to Mr Lillie's. It seems to me a possible explanation, and at least as likely as Mr Lillie introducing it by mistake in his account of Child 22's allegations when relating them to Miss Reed. I need to have in mind too the Defendants' overall case. On their version of events, the conversation could hardly have gone as suggested, since Miss Reed was fully implicated. The version of the conversation for which they now contend would not have been at all plausible between two paedophiles who were on their own and knew that they had been caught out.
  465. Mr Bishop referred to Mr Lillie having told lies in the course of his evidence, for which there can be no other explanation (he submits) than that he was trying to cover up his child abuse. First, he denied that his sisters had been taken into care (as alleged by Child 14's mother) when he eventually had to admit they had (once documents were shown to him). He also denied any knowledge of his being cautioned for a burglary. Mr Bishop argues that he cannot have forgotten the burglary. I agree that it does seem unlikely, unless perhaps he had over the years suppressed the memory. Mr Bishop also placed reliance on the fact that Mr Lillie did not reveal either his conviction for stealing the bicycle or the burglary caution when he applied for his job.
  466. This led to a discussion on the effect of the Rehabilitation of Offenders Act and the various orders made under the statute. It emerged that even in respect of "spent" convictions anyone applying to work with children should disclose. Mr Lillie said that he had not disclosed his conviction when he applied to join the Army, because he had been told there was no need, and he simply took the same course when he applied to work with children. This in itself is rather inconclusive, since I am not sure on the evidence that Mr Lillie necessarily realised that he should disclose. It is, however, necessary to keep a sense of proportion. No one suggests that the theft of a bicycle by a 15 year old, still less a burglary (for which he was cautioned), could be to Mr Lillie's credit. He is now 38 years old, and was some 10 years younger when the child abuse is alleged to have taken place. I have to ask myself whether the fact that the offences were committed, or his subsequent non-disclosure of them, so redounds to his discredit that I should disbelieve him on his primary evidence about the issues in this case. I must, I believe, give them some weight but what really matters so much more is the impression he made in the witness box. I can only state my own conclusions in the light of the evidence as a whole.
  467. Mr Lillie is a somewhat more taciturn character than Miss Reed. Although calm and by nature somewhat "laid back", he is shy (or was at the time), as he himself admits. He may not be overburdened by "presentation skills" but I found his evidence just as credible as I did in the case of Miss Reed. I have no doubt that positions have been so deeply entrenched over the years that few, if any, of the original protagonists are likely to change their views in the light of anything I say. In fairness, therefore, I wish to state my conclusions in the light of their extensive periods in the witness-box, and indeed of the 74 days of the trial before the evidence finally concluded on 27 May. I am entirely satisfied of Mr Lillie's and Miss Reed's innocence. No doubt others will disagree, but I hope that at least nobody will portray the outcome as turning on a legal technicality.
  468. 10) The privilege issues for the Review Team

  469. The primary publication by the Review Team was clearly that in November 1998 to the City Council, which had commissioned it some three years before. The four members of the Team were being remunerated in accordance with contractual arrangements. In those circumstances, Mr Bishop contends that they were under a legal, social and/or moral duty to publish to the Council by whatever was the appropriate channel. Accordingly, this aspect of the qualified privilege argument is one of the more straightforward to resolve. In my judgment, there can be no doubt that there was a prima facie privilege for that communication. It arose, however, purely as a matter of contract. I am unable to see, apart from that, how these four individuals were subject to any social or moral duty to publish their Report.
  470. One argument that has been raised on behalf of the Claimants is that in certain respects the Team went beyond the Terms of Reference and, correspondingly, took themselves outside the protection of qualified privilege. In particular, the argument is directed towards the expressed conclusions to the effect that the Claimants had abused children in their care (including those in respect of whom they had been acquitted in July 1994).
  471. I have already referred to the manuscript change to the Terms of Reference made in July 1994, with a view to permitting investigation into the extent of the Claimants' alleged abuse. Leaving aside matters of drafting, however, Mr Bishop submits that it was an inevitable and necessary part of the Review Team's task to come to a conclusion as to whether or not the Claimants had in fact abused any, and if so how many, children. He argues that without such a conclusion the basis of the Report would have been entirely hypothetical and its recommendations worthless. Moreover, the Review Team would not have been addressing the specific complaints made by parents (which was perceived as one of their primary purposes).
  472. Inevitably, reference was made in this context to the words of Lord Diplock in Horrocks v. Lowe [1975] A.C. 135,151:
  473. "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 [1917] 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."
  474. There has sometimes been argument as to whether or not Lord Diplock's remarks at that point in his speech are in fact consistent with those of Lord Dunedin in Adam v. Ward [1917] A.C. 309, but for many years that passage has been treated as definitive. Indeed, if and in so far as there is any inconsistency with the earlier House of Lords decision, it would now be necessary to resolve it by reference to the terms and aims of Article 10 of the European Convention on Human Rights. There is little doubt that Lord Diplock's test would be less restrictive (or "chilling") towards freedom of communication. I intend to approach the matter by asking whether any material within the Report that could be characterised as not being "really necessary to the fulfilment of the particular duty or the protection of the particular interest upon which the privilege is founded" provides evidence from which malice could be inferred. It would not be appropriate to regard such material as detracting from the prima facie privilege attaching to the Report as a whole or, indeed, as leaving some part or parts of the Report outside its protection.
  475. The traditional approach to malice, at least in the quarter of a century since their Lordships' decision in Horrocks v. Lowe, is that it is for the claimant in a libel action to prove the defendant "malicious", in the sense of demonstrating either that he had no honest belief in the words complained of or, at least, that the dominant motive in publishing those words was to damage the claimant's reputation. It was recognised by Lord Diplock that recklessness too had a role to play, as in other areas of law. Thus, malice could be demonstrated if a claimant proved the defendant to have been genuinely indifferent to the truth or falsity of the defamatory allegations.
  476. I am not aware of any example of malice having been found (in a case where the judge or jury concluded that the relevant defendant was honest) simply on the basis that the dominant motive was to injure the claimant. It is, in the light of Lord Diplock's speech, at any rate a theoretical possibility. It may be, however, that it is an increasingly remote one in the light of recent authorities.
  477. It is now clear, for example, in the light of Albert Cheng v. Paul [2001] E.M.L.R. 777 that in the context of fair comment the issue of malice requires to be judged solely by the test of honesty; there is no room to find malice on the basis of "dominant motive" in circumstances where a claimant fails to demonstrate that the comment was not made honestly. Moreover, in the specific context of what is often referred to as "Reynolds privilege" the concept of malice has receded somewhat into the background. That is because issues formerly thought to be relevant only to malice now come into play at the stage of determining whether there is a prima facie case of qualified privilege (in particular, the application of Lord Nicholls' ten non-exhaustive tests: Reynolds v. Times Newspapers [2001] 2 A.C. 127, 205). As Lord Phillips M.R. observed in Loutchansky v. Times Newspapers Ltd [2002] 1 All E.R. 652 at para. 33:
  478. "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".
  479. By a parity of reasoning, in the present case, Miss Sharp has argued that there could be little room nowadays for "dominant motive" in the context of statutory qualified privilege, since the underlying policy relates to the public's entitlement to be informed through the media of information within the categories identified by Parliament (specifically in the Defamation Act 1996) as attracting such privilege. Indeed, one could argue convincingly that in such a context the state of mind of the journalist or publisher concerned (being effectively no more than a conduit) is quite irrelevant to the considerations underlying the privilege. Those are matters that might have been more aptly considered in the context of the Chronicle's arguments as to privilege when relaying the contents of the Review Team's Report. But the argument merely provides an illustration of how "dominant motive" appears to be nowadays more of an endangered species of malice than ever.
  480. In the context of the Review Team's publication to the City Council, it seems to me that these theoretical arguments are largely unnecessary. If I come to the conclusion, in the light of the evidence as a whole, that the members of the Review Team were acting in good faith in the compilation of their Report, and that they honestly believed its contents to be true, however imperfect their reasoning processes may have been, then there would be little scope for a finding of malice to defeat the prima facie defence of privilege. In any event, if I were to come to the conclusion that their primary purpose was to improve the administration of child nurseries, and other similar institutions, and ultimately the protection of children, there would be no scope in this case for an adverse finding of "dominant motive".
  481. In the light of these considerations, I now turn to consider the Review Team's Terms of Reference.
  482. 11) The Review Team's Terms of Reference

  483. No witness had a good word to say about the shifting sands that were supposed to provide the Terms of Reference for the Review Team's independent inquiry into Shieldfield (see paragraph 129 above). Mr Henry Warne with remarkable insouciance described them as "not perfect". But he thought they could be made to work with goodwill and co-operation from all sides. That is sloppy thinking for an experienced lawyer. He did not regard it, however, as his role to amend them "unless strictly necessary". Jennifer Bernard said: "The way in which we were trying to frame the terms of reference did move because we learned from how we phrased things. Questions were raised. Complaints came in. So I am afraid I cannot be certain where we were when I left [April 1997]". Nobody within the City Council appeared to have any responsibility for or control over this critical issue. Even more worryingly, there is a memorandum of Mr Warne dated 24 July 1996 which appears to suggest that Professor Barker was claiming that he could "adjust" the Review Team's terms of reference himself as they went along. Mr Brian Scott thought them "extremely muddled and confusing… very difficult to follow in many respects". I would certainly endorse that view.
  484. It is right, out of fairness, to explain that although he was at all material times Assistant Head of Legal Services Mr Scott had no direct involvement in the Review Team's inquiry until July 1998. Were it not so, he could clearly be criticised for not expressing his view about the Terms of Reference much earlier. As it is, the person ultimately responsible would appear to be Henry Warne, who was Head of Administration from December 1994 to June 1998. It is certainly true that the Terms of Reference were in draft before he arrived, but there was almost a year in which to focus on their remit before the Review Team began its task.
  485. No one owned up to having drafted them, although the principal candidates put forward were Mr Stephenson (a lawyer who left in 1994) and Mr Hassall who is still employed by the Newcastle City Council. Neither gave evidence. From a purely construction point of view, it matters not. The words must speak for themselves, however opaquely. On the other hand, the intention or understanding of Council employees could be relevant in the malice context. One of the factors prayed in aid by Miss Page is that it should have been obvious to those officers who studied the Review Team's Report, between 6 and 12 November 1998, that the Team had exceeded the terms of reference. Either, therefore, the Report went outside the scope of privilege altogether, or their willingness to publish extraneous defamatory material would provide evidence of bad faith.
  486. There is no doubt that from the time of the criminal trial (8-14 July 1994), or shortly afterwards, it was expressed as a limitation upon the Review Team that they would, at least, not make findings on matters dealt with before the criminal court. Exactly how or why that amendment came about is unclear, but there was in evidence a document dated 11 July 1994 bearing Mr Hassall's name and containing the manuscript amendment that became the final version of Term 1A. Also, there is no doubt that some people within the Council were taking the view that the Team should not "point the finger" (i.e. at whoever was supposed to be responsible for the abuse). This appeared, for example, in an article in the Journal in August 1995 as a statement attributed to Jennifer Bernard: "…the inquiry's brief isn't to look at whether or not children were abused, as the council has already acknowledged that they probably were… We want to make it absolutely sure we have learned all the lessons from what happened". She had no recollection of this and thought the Journal might just have been "journalistic". Henry Warne, Bob Hassall and Jennifer Bernard appear from a memorandum of 7 February 1995 to have had a meeting or discussion in which they seem to have emphasised that the process was "not about reviewing forensic evidence nor determining whether abuse took place or not". This was consistent with the stance taken by Mr Hassall at a meeting of parents on 20 July 1994 where he said that the City Council could not re-run the trial or comment on the guilt or otherwise of the accused.
  487. There is also a memorandum of June 1995 from Mr Hassall addressed to Mr Warne and Ms Bernard to the effect that the Review Team would not be "reviewing the issue of whether abuse occurred, and if so who were the perpetrators". He added that the Review Team would accordingly only need limited overview or access to clinical and forensic notes.
  488. Moreover, as late as May 1997, Professor Barker was claiming in a letter to Mr Lillie's solicitors that they would not be "re-visiting" the criminal trial. That was, of course, consistent with paragraph 1A of the Terms of Reference to the effect that "… the Review cannot make any finding on matters dealt with by the Criminal Court".
  489. It seems that at some stage (possibly as early as July 1994) Ms Bernard had come to a different conclusion. She told me on 1 March:
  490. "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).
  491. Even more confusingly, Professor Barker was writing to Mr Warne on 19 September 1997 to the effect that the terms of reference "were framed deliberately widely … to allow us to investigate what happened and why". He seems to be saying there that this was a task acknowledged from the outset. If so, I find it difficult to reconcile with his stance in the earlier letter to Mr Lillie's solicitor.
  492. If anyone had properly thought through the implications, it should have been quite obvious that the Team would not be in a position to pronounce in a public Report upon the guilt of Christopher Lillie or Dawn Reed of criminal offences, for a number of reasons:
  493. 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.
  494. Even Ms Bernard appeared to recognise the problem in cross-examination:
  495. "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".
  496. The matter had, however, clearly not been thought through. Miss Page asked whether anyone within the City Council ever addressed the rights of Mr Lillie and Miss Reed at all in setting up the inquiry. This seemed to come as a novel suggestion to Ms Bernard:
  497. "… 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".
  498. She added that she knew that they had already had the opportunity to be represented for the disciplinary process, including the appellate procedure, and to challenge their dismissal through the industrial tribunal route. She did not seem to have any grip of the issue. I was not clear whether she was saying that culpability was to be "assumed" or not. It would perhaps, if anything, make more sense than the alternative scenario she appeared to be putting forward; namely, that even though Mr Lillie and Miss Reed had been acquitted of 11 counts at Newcastle Crown Court the Review Team were "almost having another look at it". Surely everyone involved (parents, charge payers, employees and ex-employees) was entitled, at the very least, to have the purposes and methods of the Review Team carefully thought about and defined. Mr Warne should have got a grip. He had long enough to do so and, if he did not have the necessary experience, he could have taken advice from counsel.
  499. Nevertheless, there came a time when minds generally were made up (e.g. Henry Warne's mind for one), so that it became the received wisdom that the Review Team not only could but should investigate the allegations of abuse. That was certainly the case of the Review Team themselves. The explanation given was essentially twofold. First, unless they did so, they would not be able to address or rule upon the parental complaints – some of which directly alleged abuse. Secondly, they could not find out "what went wrong", or make recommendations for the future, unless they were in a position to make findings that abuse had happened.
  500. Despite this major shift in the perception of the Review Team's task, no one thought to revise the terms of reference. In particular, no one thought to abrogate provision 1A of the terms of reference. It seemed just to wither on the vine. (This may be because Henry Warne appeared to think that it had no application anyway: "I therefore took the view that it was open to them to investigate questions, on the question of whether abuse had occurred and, if so, by whom".) Nor did anyone point out that, if they were going to meddle to all intents and purposes in the area of criminal guilt, they would need a wholly different modus operandi so as to remove some of the constraints identified above. Mr Warne seemed to suggest in evidence that what was required was "a social services type judgment on the matter" which was "not done according to the rules of criminal law".
  501. In this context, Ms Jones gave some evidence which may be of significance. She said on 15 February that, before she even signed the contract, she had a conversation with Mr Warne in October 1995:
  502. "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".
  503. Ms Jones had clearly raised a fundamentally important point with Mr Warne. An experienced lawyer should have spotted the difficulty in any event, but even if he was unable to see the wood for the trees the fact remains that the problem was spelt out for him by Ms Jones with stark simplicity. To give the answer he apparently gave her (in effect to see how she got on in "uncharted waters") was utterly hopeless. Much time and money could have been saved (to say nothing of injustice) if the nettle had been grasped at that time.
  504. The Council should clearly have confined the Review Team to addressing any defects in their own systems and procedures or those of the Day Nursery. They should have strictly enforced the provision in the original terms of reference, to the effect that they steer clear of re-opening the issues before the Crown Court and certainly not attempt to address completely new allegations of assault and rape. In so far as parents' individual complaints needed to be addressed, that exercise should have been kept quite separate from conclusions that were to be set out in a public report.
  505. Henry Warne made reference to an earlier inquiry which had taken place into a residential home called Meadowdale. He seemed to think it provided an analogy or precedent for the Shieldfield review. It is fair to say that he did not have a clear recollection of the circumstances, but a crucial difference was that in the Meadowdale report the perpetrators of the abuse were not named in the Report for public consumption. Mr Warne considered that it was a matter for the Review Team's discretion as to whether they publicly condemned Christopher Lillie and Dawn Reed. The only "constraints" would be those of defamation.
  506. As Ms Jones seems to have perceived from the start, they were as a team wholly unsuited and unequipped to make findings of criminal guilt; and yet the City Council launched them on these "uncharted waters" in the most irresponsible manner. The Council has only itself to blame for the mess in which it now finds itself.
  507. Instead of identifying the dangers as the months went past, and restricting the terms of reference, things were allowed to deteriorate.
  508. There was an amendment in September 1996 to enable the Review Team to address matters falling short of actual parental complaints. They were to be able to consider and report on "relevant concerns" raised not only by parents but also by witnesses. This was clearly intended to make a difference and, in particular, to widen the scope of the inquiry, but it introduces further uncertainty. First, it extends the inquiry into matters that concerned parents but which they had not chosen to complain about. Secondly, it enabled even the "concerns" of witnesses to be considered. But, at the same time, the concerns had to be "relevant" to the inquiry. That must mean either "relevant" to the existing inquiry, as defined by the pre-existing terms of reference (including 1A), or it is simply unclear.
  509. The difficulties about the Review Team making findings tantamount to criminal guilt, and in particular with a view to pronouncing their conclusions publicly, should have been obvious from Mr Peter Hunt's Report into the Jason Dabbs affair, since the Team had read it and indeed had consulted Mr Hunt for his advice. He pointed out at para 2.3.5 that he was simply not in a position to make findings as to instances of abuse beyond those admitted by Jason Dabbs through his pleas of guilty. The two main reasons he explains; namely, that the video interviews with child complainants were tainted by leading questions, and that it was not thought appropriate to test or challenge parental evidence. Both these considerations were at least as relevant to the case of Shieldfield. Anyone with an elementary sense of fairness who thought about the matter, and certainly any of the City Council's legal advisers who were asked to consider the terms of reference, should have foreseen the hopelessness of the task.
  510. It is all very well to say that the Review Team's approach was child-centred, or based upon the "child protection" model, but the fact is that those methods are not usually adopted when the intention is to produce a public pronouncement tantamount to findings that offences of indecent assault or rape have been committed. Short of actually depriving them of their liberty, the Review Team's pronouncements had a very similar effect on the Claimants' lives and reputations to that which would have been brought about by criminal convictions – but without being preceded by any of the usual safeguards of the criminal process.
  511. Even if it be said that some of the parental complaints could not be addressed without making findings of assault, or other forms of abuse, it does not follow that such findings had to be made public. The responsibility for dealing with complaints is, in any event, clearly that of the local authority in accordance with the provisions of the Children Act 1989. If the Council wished to contract out the investigative responsibility, it remained its own duty to respond to parents, as Mr Dervin ultimately did. There is no obvious public policy requirement for the Review Team (having no statutory status whatever) to be accorded privilege for making public their views on whether abuse had occurred.
  512. In this context, Miss Page referred to a Home Office circular providing guidance for police officers on the limited circumstances in which it might be appropriate to reveal the identities or whereabouts of convicted paedophiles. Given those constraints, she argues, it could hardly be appropriate for (still less the duty of) the City Council (or, for that matter, the Review Team) to broadcast these very serious allegations of multiple abuse against Christopher Lillie and Dawn Reed.
  513. I need to bear in mind, however, that it was Lord Diplock's clear view in Horrocks v. Lowe [1975] A.C. 135 that the inclusion of extraneous or irrelevant matter in a publication that was prima facie the subject of privilege would go to the issue of malice. It is important, therefore, to focus on what the Review Team's individual states of mind were on the issue of the terms of reference. If they genuinely believed that everything they did was within the terms of reference, however misguidedly, then the inclusion of the extraneous findings would not in itself show malice.
  514. In my judgment they most certainly exceeded their originally expressed terms of reference, which cannot reasonably be construed, in the context of an obligation to make their findings public, as entitling them to make public pronouncements of guilt against individual citizens, in effect, of serious criminal offences (especially, of course, offences in respect of which they had been acquitted in the Crown Court). It would be so fundamentally in conflict with human rights that it would be an unreasonable interpretation. Nonetheless, I believe that the Review Team thought (almost incredibly) that they had the right to do this. This is to a large extent the fault of the City Council in not properly addressing the terms of reference in the first place or, at the very least, not rendering them clear and providing strict limits to publication once it became apparent that they were expected to look into individual claims of abuse. It is also partly explicable on the basis of the Review Team's naivetι and lack of judgment. Miss Page submits that I must stick to the objective test and rule that, because the findings of sexual abuse were outside the written Terms of Reference on any reasonable construction, the defence of qualified privilege cannot avail them:
  515. "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".
  516. I naturally understand the force of these submissions, but the Team were given to believe by the City Council that the Terms of Reference had in fact been expanded in accordance with Mr Henry Warne's superficial and ill judged view "…that it was open to them to investigate questions, on the question of whether abuse had occurred and, if so, by whom". He was the lawyer. The Review Team were lay persons. Even though this had the consequence that they departed from the restrictions of the original terms of reference in a fundamental way, it seems to me that I cannot conclude that they stepped outside the protection of qualified privilege. They were being required to make findings (albeit inconsistently with paragraph 1A) by those who were instructing and paying them to carry out the Review. The terms had, in effect, been changed.
  517. An argument raised at one stage was that the restriction imposed by paragraph 1A was not intended to prevent findings or comments upon the Claimants' "guilt" (despite what Mr Hassall, for example, was saying in July 1994 and June 1995). The suggestion was made that its purpose was the very narrow one of stopping any challenge to the Judge's ruling under the Criminal Justice Act 1988. This seems to me to be quite untenable. It could not conceivably have been within the remit of this Team to re-open issues of admissibility already dealt with by a court. There would be no occasion for them to do so. The matter had been finally disposed of; nor did they have any locus or qualifications to act in a quasi-appellate capacity. It cannot, therefore, have been in anyone's contemplation that they would do so when the restriction was drafted in or about July 1994 and put in the forefront of the Terms of Reference. The only reasonable interpretation is that apparently adopted by Mr Hassall at the parents' meeting in July 1994 and by him, together with Mr Warne and Ms Bernard, on 7 February 1995.
  518. The Team clearly felt frustrated by even the very loose constraints imposed upon them by the Council, but went along with them for reasons explained at page 19 of the Report:
  519. "… 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".
  520. As will shortly emerge, any claim to have accorded Christopher Lillie or Dawn Reed "natural justice" in the course of this inquiry has no contact with reality. I cannot believe that the Review Team knew what is meant by the principles of natural justice and they badly needed guidance. To have let them loose "on the question of whether abuse had occurred and, if so, by whom" was to invite disaster on a massive scale.
  521. One of the arguments raised in defence of the Terms of Reference was that they had been "run past" the Social Services Inspectorate without objection. That may be a relevant factor on the good faith of those involved but it does not in my judgment affect the substance of the matter.
  522. In my ruling of 28 February 2002, I characterised this situation as a "shambles", and it still seems to me to be an appropriate description. The Council had only themselves to blame for this mess, since on Mr Scott's own evidence they let the matter proceed on the basis of instructions to the Review Team that were "extremely muddled and confusing". Since their activities were to have such a profound impact on the lives of Mr Lillie and Miss Reed, they at least might legitimately feel cheated over this undisciplined and casual attitude. So too might the general public, and those funding the City Council in particular. It is they who have had to bear the cost of this dire episode.
  523. 12) The evidence of the Review Team Defendants

  524. Professor Barker went into the witness box on 6 February and was giving evidence, with various interruptions, until 15 February. He also returned briefly on 17 May. He was cross-examined at length, primarily on the issues of the qualified privilege defence pleaded by the Review Team and of his own alleged malice.
  525. I have no wish to be disparaging about the witness personally or professionally. It may be that he has achieved a great deal in his chosen field. Nevertheless, it is my duty to express my conclusions about his important evidence in this case. As a witness, he did not impress. His evidence was rambling and defensive. One reason why he remained in the witness box for so long was that he seemed incapable of giving a straight answer to a straight question. It was difficult to follow at the time, and little better on the transcript. Much of it was waffle. More significantly, however, I am afraid that there were certain respects in which I found it impossible to believe what he was saying.
  526. It is necessary to preface my findings by some general observations. First, the principal focus of Miss Page's patient cross-examination was upon the Review Team's methodology and the states of mind of its various members during the preparation of the Report. She sought to expose their reasoning processes as being deeply flawed, and to demonstrate that the explanation lay not in incompetence but in bad faith.
  527. Right at the outset of the case I recognised that such was the enormous amount of detail that it would be impossible to "put" everything to the central witnesses. That would not be consistent with efficiency or economy. It is especially difficult with witnesses who fence with counsel or avoid answering questions. I made it clear too that I would always be receptive to a witness being recalled, if necessary, or to dealing with points in writing. This is not a case which, therefore, lends itself to a just resolution of issues on a nice determination of whether an aspect of the case was "put" or not.
  528. Two facts emerged with clarity. Professor Barker and his colleagues believed that the Claimants were guilty of child abuse on a very extensive scale, as summarised in their Report, at the time it was published. I am equally satisfied that, despite their protestations, some of them had formed that view at the outset of their inquiry and never wavered. This presents an interesting scenario in the context of the law's concept of express malice. On one superficial view, I suppose one might think that the "honest belief" in the truth of what they alleged would be enough to get them home on malice, however defective their reasoning process. I am not sure that this is an analysis which does justice to Lord Diplock's exposition in Horrocks v. Lowe [1975] A.C. 135. I do not believe that it can be the law that it will always be an answer to claim zealotry, or that one was only doing one's bigoted best. (That is not, of course, how these Defendants put their case in any event.) In the last analysis, it must depend on whether one has published the words complained of in good faith.
  529. A police officer who, believing an accused person to be guilty, bends the rules in order to secure a conviction would be acting in bad faith. The question here is not dissimilar. If the Review Team's approach to the evidence was to ignore or distort such parts of it as did not fit in with their pre-conceived notions, that too would suggest bad faith. On such a hypothesis, they would not necessarily be seeking to mislead their readers as to the accuracy of their conclusions, but they might well be intending to deceive them into accepting that those conclusions were based on a solid evidential foundation, reflected in the 300 and more pages of the Report.
  530. The Report has been described by defence counsel as being authoritative and as having a high status; they suggest it is a document which it was in the public interest to communicate widely. The Review Team were undoubtedly holding it out as such also. If, however, it was on close examination as flawed as Miss Page and others have contended, that might be due to wilful suppression and misrepresentation, or it might be through (say) bumbling incompetence – or a bit of both. Yet that is an important distinction in the context of the plea of malice.
  531. It emerged early on in Professor Barker's testimony that he has a fundamentally different attitude towards the weighing and analysis of evidence from that of a lawyer. At several points, it became apparent that he is rather dismissive of what he called "a forensic approach". He resorted from time to time to impressionistic mode, referring to his "professional judgment" and to discussions in academic and other published work. His colleagues were similarly minded. Indeed, Ms Jones voluntarily espoused the word "impressionistic". Yet the issue of whether any given individual has raped or assaulted a small child, or for that matter upwards of 60 small children, is not a matter of impression, theory, opinion or speculation. It should be a question of fact.
  532. The Professor is entitled to be disparaging about the criminal justice system, or "forensic analysis", or the testing of evidence in cross-examination. Many people are. Such criticism from the sidelines may or may not be made on an informed basis. But surely when such a critic steps forward to take on the responsibility of condemning a fellow citizen as being guilty of such wicked behaviour, a little humility may be thought appropriate. One would certainly expect a willingness to address the strength or weakness of the factual evidence relevant to the individual concerned.
  533. Such decisions must be taken in the realm of hard fact, and speculation has no place. Juries are told not to speculate and to concentrate on the evidence. That is not because of some quaint old tradition, or because lawyers are out of touch; it is the nature of deductive reasoning. In the weighing of criminal guilt, what is required is dispassionate analysis and ego must be suppressed. Yet that is not Professor Barker's style.
  534. In response to some of Miss Page's questions, he was keen to show that he could see through the game of lawyers and referred to her adversarial approach and to her "close forensic analysis". But his having "seen through" the nature of cross-examination did not mean that it was inappropriate, or that Miss Page should slink away. What it demonstrated was that Professor Barker knew perfectly well that careful analysis of the evidence was going to show up flaws in his Report. This was the reason why he was resistant to it. He realised that their approach had been impressionistic and speculative. He thus had to take the stance that careful analysis would be as inapplicable as it might be in assessing (say) certain propositions of religious faith. What that reveals, however, is that Professor Barker had eschewed rational analysis in the approach to his task from the outset, thinking it no doubt too pedestrian. Accordingly, any flaws demonstrated by such an analysis of his Team's approach might prove not to be the result of the incompetent attempts of an inexperienced team, doing its best to grapple with unfamiliar rigour. It might be explicable rather by their conscious rejection of the very methodology that was required for the task they undertook. If that is the case, it is by no means obvious where the notion of malice fits into that set of circumstances. Much might depend on how frank they were, or were not, in the Report and the claims made for their methodology.
  535. Two rather striking examples of Professor Barker's shaky grip on the concept of evidence were thrown up early in his cross-examination. They illustrate the problem. It became quite clear that he regarded the findings in the Claimants' respective disciplinary proceedings as being in themselves some evidence (albeit naturally not conclusive) of actual guilt. He was asked why, when some of the children had identified members of the Nursery staff other than Mr Lillie and Miss Reed as present on occasions of abuse, the Team had discounted the child's evidence but not in relation to the two primary suspects. Part of the explanation he gave was that they, unlike the two Claimants, had not been the subject of disciplinary proceedings. That is a startling proposition. It was surely the Review Team who were supposed to be investigating the factual position rather than assuming from the outset that the disciplinary inquiry had got it right 18 months before.
  536. As on other occasions, it was very difficult to find out what Professor Barker was saying about the influence of the disciplinary findings on the Review Team. He said (on 7 February) that "the fact that they had been dismissed did play a part in our decisions". He was asked to confirm whether it influenced them in their findings that they were guilty. To this he responded, with his customary obscurity:
  537. "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".
  538. When one comes up for air, the position remains the same; in other words, the fact that they had been dismissed "played a part" in the Review Team's own conclusions. In his witness statement (para. 306), Professor Barker had pitched it even higher, and described "the information presented to the disciplinary hearings and the results of the disciplinary hearings" as being "one of the main influences in our reaching the conclusions set out in the report" (emphasis added).
  539. Even more disconcerting was the second example. The Professor was asked how he had come to the conclusion (witness statement at para. 202) that Mr Lillie was sexually motivated in his behaviour, whereas Miss Reed, according to him, had been drawn into the production of child pornography for financial reasons. This he described on 8 February as a "tentative conclusion based upon my professional judgment". He said he derived it from the impression that she had been in financial difficulties. If it were the case that Miss Reed had been finding it difficult to make ends meet, it may be that she would not be the only nursery nurse in the country in that predicament. It would be hard indeed if this were to bring them all under suspicion of generating child pornography. It is, of course, an obvious non sequitur. As it happens, however, when they were exploring Miss Reed's financial position, the Review Team were actually told by Detective Inspector Findlay, at an interview in January 1997, that the police were not aware of any financial problems on her part. This underlines the worrying proposition that Professor Barker was simply speculating.
  540. Instead of recognising this, however, when it was pointed out to him by Miss Page, Professor Barker turned through 180 degrees and responded immediately (as he thought tellingly) that the reason why Miss Reed was not in financial difficulty was that she had probably benefited from the proceeds of child pornography. This shows a cast of mind, closed to all reason, whereby whatever piece of evidence may be produced, however inconsistent with the last, it is perceived as supporting the basic unchallengeable datum that abuse occurred. It is not an unfamiliar cast of mind, but it is one that is not normally associated with university professors.
  541. It is necessary to bear in mind exactly what the Team's stark findings and conclusions were in this context (page 282):
  542. "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".
  543. The readers of the Report would not imagine that the Review Team was simply speculating on this serious allegation of involvement in commercial pornography. The reasonable reader would feel entitled to presume that such a specific conclusion was based on something solid. In fact, there was no evidence thrown up by police inquiries either of a paedophile ring or of child pornography. Surely the readers were entitled to know that.
  544. Miss Page also queried the attribution of financial motive by reference to some of the allegations against Miss Reed which could not conceivably have been so motivated; for example, sticking cutlery up the bottoms and vaginas of small children when no cameras were present. To this there was no cogent response.
  545. On similar lines was Miss Page's invitation to Professor Barker to identify any child in respect of whom his or her allegations had been discounted as unreliable. Professor Barker could not think of one and said he would go away and see if he could come up with such an example. He later cited one, and one only. This was Child 50. The complaint that was rejected was in relation to "an unusual bruise on his leg" which Professor Barker concluded simply could not be linked to Christopher Lillie. There is certainly no indication for any reader of the Report that any of these very grave allegations against Mr Lillie or Miss Reed was actually rejected or found to be unsustainable. It looks as though every allegation mentioned in the Report, however outlandish, has been upheld. Yet the reader will look in vain for the reasons underlying such conclusions.
  546. It is necessary now to turn to the aspects of his evidence I found myself simply disbelieving. Miss Page was putting the proposition to Professor Barker that, far from keeping an open mind, he had always assumed guilt. She referred him to various contemporaneous documents.
  547. Attention was drawn to a Progress Report from the Review Team dated February 1996 (when they were no more than a few months into their three year inquiry). I was told that this document was the work of Professor Barker and Mr Wardell. It referred to multiple abuse having occurred (without the slightest qualification). Professor Barker said airily that it was just "clumsy wording" and did not represent their actual view at that time. I do not believe him. (Some weeks later, on 1 March, Miss Moira Luccock of the Independent Persons Scheme rather gave the game away when she said that it had already become "clear" that they were "dealing with a multiple abuse situation" before the Review Team began its inquiry.)
  548. At about the same time, in February 1996, there was an interview with Ms Bernard who had taken over as Director of Social Services. Reference was again made to Mr Lillie and Miss Reed as "the abusers". Professor Barker said that, with the benefit of hindsight, he would wish that the word "alleged" had been inserted but it did not mean that their minds were made up at that stage. Again, I do not believe him.
  549. Even earlier in the process, in November 1995, there was an interview with the mother of Child 9 (no longer relied upon as part of the case of justification). Reference is made in that note again to "the abusers". This was a summary of the interview – not in direct speech. Professor Barker said that the description "abuser" must have been quoted from the mother. It did not represent his perception at that stage. Again, I do not believe him. It is part of a consistent pattern. In re-examination, Mr Bishop drew attention to other documents, more carefully drafted, where the Claimants were not so labelled. But this does not in my view serve in any way to refute the point. In the nature of things, more is revealed when the mask slips than when it is kept in position.
  550. Another revealing episode was the way in which correspondence was handled between the Review Team and Mr Lillie's advisers, at the stage when they were inviting him to attend for interview. Miss Page put to Professor Barker that Mr Lillie and Miss Reed were simply "second class citizens" compared to other witnesses. For example, Joyce Eyeington gave evidence about the "47 complaints" alleged by the Review Team to have been made about her. In fact, a large number were quite wrongly directed at her, but what matters for present purposes is that she had received advance written notification of the supposed complaints against her, so that she would have an opportunity of dealing with them in interview if she wished. Nothing comparable was sent to Mr Lillie or Miss Reed.
  551. When, on 18 April 1997, Mr Lillie's solicitor wrote to ask the nature of the complaints he would have to answer, he received a remarkable letter dated 7 May by way of response. I shall come to it very shortly but it is necessary to bear in mind, in this context, that the Review Team described their procedures on pages 18-21 of the Report, where the following claim was made:
  552. "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'"
  553. The claim was also made that, in the case of witnesses who were the subject of substantial complaints, the Review Team sent "Salmon letters".
  554. It was pointed out (also on page 21 of the Report) that Mr Lillie and Miss Reed had refused to be interviewed. Since they are recorded as having had the greatest number of complaints against them, by far, the clear implication is that they so refused after receiving a "Salmon letter". Mr Henry Warne told me (on 28 February) that he presumed that specific allegations had been put to them in their letters of invitation. Most people would make that assumption.
  555. Miss Page gave Professor Barker an opportunity to deal with this allegation in the following terms:
  556. "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".
  557. This answer, of course, took matters no further. Earlier Miss Page had tried in vain to obtain an answer as to why Mr Lillie and Miss Reed were treated differently by the Review Team from other witnesses. This had led to a rhapsody about legal advice, which was nothing to the point:
  558. "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 purchaser–provider 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".
  559. I have set out these passages to illustrate how one had to fight through the verbiage in order to understand what Professor Barker's case was.
  560. Against that background, I set out the terms of the letter of 7 May 1997:
  561. "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.
    (signed)
    DR RICHARD W BARKER
    TEAM LEADER"
  562. The sentence suggesting that the criminal trial would in no way be re-visited is, to put it politely, disingenuous. Not only had the Review Team made up their minds about Mr Lillie by this stage, but it must have been obvious to them that they were addressing allegations made in relation to each and every one of the six children named in the indictment in the 1994 criminal proceedings. They were quite likely to find him guilty of abuse in relation to all of them, as well as many other children besides, and of rape in relation to Child 14. (Professor Barker and Mr Wardell had viewed the video recordings some nine months previously.)
  563. It is necessary to assess this letter against the background that Mr Henry Warne, and the members of the Review Team themselves, decided at some point that they were going to have to "re-visit" the criminal trial as part of their task ("whether abuse had occurred and, if so, by whom"). It appears that this had been recognised well before May 1997. Jennifer Bernard thought it no later than the time when the video interviews were obtained (i.e. the previous Summer).
  564. Miss Page put to Professor Barker that the promise not to re-visit the criminal proceedings was simply a "lie". As so often in cross-examination, he said that he had received legal advice but did not intend to waive privilege in respect of it. He would not, however, accept that the sentence was untrue.
  565. The exchange went as follows:
  566. "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".
  567. The matter needs no elaboration from me, since anyone reading the letter of 7 May (intended to lure him for interview) could not conceivably imagine that the Review Team would be broadcasting, on publication of their Report, that Mr Lillie had in fact committed all the offences of which he had been acquitted several years earlier. The sentence was bound to mislead and, therefore, I have no doubt that it was intended to do so. I am not prepared to assume that he would or even might have been advised by responsible lawyers to say something that was so obviously false.
  568. This was compounded by the fact that the Review Team held Mr Lillie's silence against him when setting out their conclusions. Professor Barker admitted as much in reply to me. Miss Page pointed out to him that, since he had received no indication of the specific charges, it could hardly be said to be fair to criticise him for not responding (whether orally or in writing). Professor Barker's approach seems to have been that Mr Lillie and his lawyers could surely have worked it out for themselves! Indeed Mr Wardell made the rather sarcastic comment on 22 February, " I imagine the lawyers must be the most ill informed people in the world if they did not know that".
  569. It is against this background that the Team included the following sentence in their Report (at page 228):
  570. "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".
  571. It is also manifest that the claim made on page 23 of the Report is, as Miss Page suggested, untrue:
  572. "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.
  573. An unusual feature of the Defendants' case is that it is integral to the plea of justification that Mr Lillie and Miss Reed were conducting a bizarre and perverted sexual relationship confined to their paedophile interests. It is always to be remembered that they were not portrayed as two paedophiles who happened by chance to be operating independently in the same nursery. They are accused by the Review Team of also having sexual relations with one another of various kinds, including sexual intercourse, oral sex and sticking scissors up each other's bottoms.
  574. There was no evidence of their having any social relationship outside the Nursery, or of any signs of mutual attraction. Indeed, there was evidence that Miss Reed had found Mr Lillie in some respects irritating to work with and perceived him, sometimes, as inclined to "skive off" out of the Red Room, leaving her to cope on her own. Not only did she tell me that this was so, although she did not make too much of it, but there was evidence from colleagues that this had been her attitude at the time.
  575. Apart from this, each of them had a partner with whom they had set up home. Miss Reed had done so with her boyfriend Mark in 1990 and was living with him at all material times, eventually marrying a few months after the acquittals in July 1994. Mr Lillie had moved in with Lorraine Kelly in December 1992, after going out with her (or as she described it, "courting") for about six months. Professor Barker thought none of this significant. He referred in his witness statement to "couples" abusing children jointly and cited the example, rather chillingly, of Fred and Rose West. What he failed to address at all was the fact that there was no evidence of these Claimants being a "couple" in any ordinary sense of that term.
  576. Mrs Saradjian's evidence on this subject was "breezy" rather than analytical:
  577. "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".
    She added:
    "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".
  578. Miss Page put to her that there was no shred of evidence for such a relationship. She replied, "No, except for what the children describe and what the children say".
  579. I wish to be very clear about this. I am conscious of the fact that it is no answer to an allegation of child abuse, or paedophilia, that one leads an outwardly "normal" or "respectable" life with an established partner, whether heterosexual or homosexual. Although judges are supposed to be out of touch, one unchallengeable proposition is that every one of them is thoroughly familiar with the prevalence of child abuse and the wide variety of lifestyles of those charged with such offences. Let it be crystal clear, therefore, that I am not suggesting that the fact that Christopher Lillie had a steady partner (who gave evidence before me, and is still with him nine years later), or that Dawn Reed had a partner (with whom she "fell in love" at the age of 15 and married when she was nearly 24), renders paedophilic tendencies inherently unlikely. What I do suggest, however, is that it is truly remarkable that Professor Barker and his colleagues seem to have thought that there was nothing implausible about this "non-couple", against that background, conducting an ad hoc sexual relationship during working hours outside the Nursery, without any single adult (for example, a colleague or one of their individual partners) noticing. No one suggested that there was any precedent for this situation. Of course, there appears to be no limit to the scope of human depravity, and one should approach such allegations with an open mind, but it would at least be worth looking into. In fact, it was looked into by the police, and there was found absolutely nothing to confirm it. Moreover, Det. Sgt. O'Hara expressed his incredulity to the Review Team in interview. Yet this seems to have given the Review Team no pause for thought.
  580. In his witness statement Professor Barker had this to say on the subject:
  581. "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.
  582. Miss Page's cross-examination began with the case of Child 4. It was an especially striking set of allegations. It is said that cutlery was inserted into her vagina by Miss Reed, which led to bleeding; yet, remarkably, medical evidence revealed no abnormality of the hymen at all. As in every case, however, where the physical findings were negative, the caveat was entered that "the absence of physical findings does not necessarily mean abuse has not taken place".
  583. It was as good a place as any to begin testing the methodology of the Review Team. Professor Barker agreed with the general proposition that the more serious the allegation, the more cogent the evidence required to prove it. His avowed approach thus accords exactly with that of the Court of Appeal in Hornal v. Neuberger Products (cited above). It was appropriate, therefore, to ask Professor Barker how he satisfied himself that this test, which he willingly set himself and his colleagues, had been fulfilled in the case of Child 4. There seems to be little doubt from the content of the Report itself that they purported to be so satisfied. So much is apparent from pages 209-212. There is no doubt either that, by 5 January 1996, the mother of Child 4 had given written permission for the Review Team to look at her medical records. Yet, in at least two (and possibly three) meetings which the Review Team held with the paediatrician, Dr San Lazaro, there is no record of their querying or discussing the absence of physical findings with her.
  584. On 7 February 2002, Professor Barker acknowledged that, as a layman, he would have found it surprising that there should appear no evidence of damage to the hymen if a knife had truly been inserted and caused bleeding. If that is so, it is surely inexplicable that, before finding the allegation proved, the point was not raised with a paediatrician. This is against the background of Professor Barker's claim in his witness statement that one of the other "main influences" in reaching their conclusions was the medical information gathered by Dr San Lazaro.
  585. Professor Barker had also accepted that it would be inappropriate to reproduce the words of one child to convey what had happened to another child. He agreed that, where a child's words were quoted, there was an intention to inform readers that the disclosure was such that the Team were satisfied it could be relied upon. This further underlines the importance of testing Child 4's own evidence for these grave allegations.
  586. Miss Page put to Professor Barker that it was very important to check if the medical evidence cast doubt on Child 4's serious allegations because, if it did, the rest of her evidence might legitimately be thrown into doubt. The response was a characteristic example of waffle:
  587. "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.
  588. The statements of Child 4 were also used by the Review Team to support their conclusions that Mr Lillie and Miss Reed injected not only her but other children with "analgesics" to facilitate their sexual abuse. She was also one of the children (referred to on page 209 of the Report) who apparently contended that "Jackie" had wiped her blood away following the insertion of an object into her vagina. There is no realistic possibility, in my judgment, that "Jackie" referred to anyone other than a member of the Shieldfield staff with that name. Yet the Report records that this member of staff (Jackie Bell) denied what the child was saying (albeit without recording whether the Review Team believed the denial). Yet again this seemed to give the Team no reason to query the child's account. (Later Judith Jones suggested that it might have been another Jackie who wiped the blood away – someone who had at some stage worked in the kitchens – but she was never interviewed. If she truly believed that this woman was the relevant "Jackie", clearly she should have been approached for her account.)
  589. One of the striking failures of the Review Team was not to make any appraisal of claims by any child (including Child 4) to the effect that other members of staff were present during instances of abuse. If those members of staff denied the child's claims, and the Review Team accepted the denial, it is hard to see how this would not undermine their confidence in the child's other evidence. For example, with Child 4, her suggestion that "Jackie wiped away the blood after she had the cutlery inserted into her vagina" was very important. If it was not true, why should the fundamental allegation itself not equally be open to doubt? The child's account would entail apparently (i) that Child 4 was taken to somewhere away from the Nursery, (ii) that objects were inserted, (iii) that there was bleeding, (iv) that "Jackie" was present, or at least nearby, and (v) that "Jackie" wiped away the blood. Which of these propositions did the Review Team reject and why not the others? Professor Barker no doubt regarded these questions as over-analytical. He considered that "all of them were possible on the basis of what that child had said". One of the many bizarre twists and turns in this litigation was that Mr Bishop suddenly remembered, well into his own evidence (and after cross-examining the Claimants about it) that this allegation was supposed to have been withdrawn. But that seemed to surprise the Review Team as much as everyone else.
  590. Miss Page also asked Professor Barker about the fact that Child 2 apparently indicated no less than three other members of staff (i.e. Diane, Jackie and Trisha) as being present. There was a rather feeble attempt to suggest that the child may have been referring to three other people who happened to have the same names, but this was manifest nonsense. If the Review Team concluded that those three women were not implicated in or condoning the assaults, why were they so happy to assume that the allegations were accurate so far as these Claimants were concerned? There was, of course, no cogent or comprehensible answer.
  591. The Review Team have a standard method for dealing with inaccuracies and inconsistencies in children's statements which is reflected on page 208 of the Report:
  592. "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.
  593. Child 14 was clearly of central importance (for the reasons explained by Holland J in 1994) – and not least for assessing the intellectual honesty of the Review Team. Professor Barker told me that he, like Holland J, had viewed all three hours of the video interviews. I believe that all members of the Review Team had done so. At all events, it is glaringly obvious that the child's evidence was not obtained in accordance with the Cleveland guidelines or the Memorandum of Good Practice based upon them. As it happens, Professor Bruck (the expert called on behalf of the Claimants) regarded it as one of the worst examples she had encountered. Holland J had raised in his ruling of July 1994 a number of fundamental concerns about it (which I have identified above). No objective person could fail to recognise that these concerns needed, at the very least, to be addressed. Despite this, the Report contained the claim that the questions were in no way "leading". This is manifestly absurd.
  594. There are real concerns as to why the Review Team did not inquire into that interview. I was told by Mrs Saradjian that they had received a letter from the police force asking them to "go easy" on Helen Foster, who had conducted the interview, and the Team were anxious not to upset her. The transcript of their interview with Detective Inspector Campbell Findlay expressly refers to that letter. Unhappily, it had gone missing. When it went missing, and how it went missing, no one appeared to know. It eventually turned up on or about 18 April. It was dated 19 December 1996 and the relevant passages were as follows:
  595. "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".
  596. Professor Barker's reply of 17 January 1997, so far as material, was in these terms:
  597. "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".
  598. This exchange is a classic illustration of how unsuited the Review Team was, and how inappropriate its procedures, for determining guilt or innocence on the part of Mr Lillie and Miss Reed. One has only to envisage how unthinkable it would be for a court to enter into an under-the-counter arrangement with the police to "go easy" on a prosecution witness. It would almost certainly be regarded as a perversion of the course of justice. Professor Barker and his colleagues probably knew no better. It demonstrates how ill equipped they were for the task – something which should have been glaringly obvious to at least the lawyers on the Newcastle City Council staff at the time (whenever it was) when it was decided to permit them to re-open the issues of rape and indecent assault. The particular problem here was not just that it was inherently inappropriate, and compromised the Review Team's much vaunted "independence", but that neither the readers in general nor the "accused" in particular could possibly know that they were cosying up to the police in this way. They chose to withold questions that needed asking; they declined to challenge in any way the police questioning of these children. Despite this, they pronounced a clean bill of health to the public while claiming to be "robust". They described Helen Foster as having been an "impressive witness" to the inquiry – but without revealing how Mrs Saradjian had complied with the "go easy" letter and refrained from probing.
  599. An interesting sequel was that when she gave evidence on 22 May Helen Foster said she knew nothing about the exchange. She had not supplied the information for the 19 December letter; nor had she been consulted. She was clearly rather unhappy that she had been described in the terms there set out. She had not had to have any time off and was particularly concerned at the suggestion that the case had taken a toll on her "mentally". I must conclude that the officer who wrote the letter about Miss Foster (Detective Chief Inspector Machell) was only too well aware of the flawed methods adopted in the video interviews and wanted to head off criticism. Her "welfare and wellbeing" provided an excuse.
  600. On the Team's relations with the police, it is necessary also to bear in mind what passed between them and Detective Chief Inspector Blue on 20 March 1996. He was not very willing to release the video tapes to the Review Team at that stage because the Child Protection Unit had only finished their training on the Memorandum of Good Practice in May 1993. Accordingly, the interviewing techniques were at a very early stage. He wished to emphasise that they had come on in "leaps and bounds" and changed "dramatically" since that time. He was concerned that any criticisms made might make it more difficult for the future to obtain the participation of social workers in child interviews. The Review Team, on the other hand, were keen to obtain the interviews if they possibly could, mainly because some of the parents wanted them to view the tapes:
  601. "… 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.
  602. The clear implication of the conversation was that the Team would, in exchange for access to the tapes, not make any criticisms of the early efforts at applying the Memorandum guidelines. The Team's offer was really encapsulated in the following words:
  603. "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".
  604. This was hardly an arms length relationship but unfortunately the readers of the Report would not know, when reading about the child interviews, of these semi- official nudges and winks. One cannot fail to notice that the observations of the Review Team on the video interviews, as ultimately contained in the Report, were exactly in line with what they were offering before they had even seen them (for "profound" one merely substitutes "powerful"). It is thus tolerably clear that the reason why they wanted access to the videos was not to assess them in any way critically as evidence, or to appraise the extent to which they provided reliable accounts of abuse, but so that they could emote about them in the Report for the benefit of parents.
  605. The Team's approach to the interviews clearly called for some straight answers from Professor Barker. He said that he and Roy Wardell had viewed the video interviews in 1996 and seemed to accept that they were the members of the Team responsible for its overall assessment of the weight to be attached to that material. I shall return to this issue shortly.
  606. Another striking aspect of Professor Barker's evidence was that relating to the identifiable adults who fell under suspicion as a result of remarks made by some of the children (Child 4, Child 22 and Child 23). Some of the descriptions they gave of other adults being present, on occasions when abuse was supposed to have taken place, led some people with local knowledge to interpret them as referring to specific people. Three of the persons concerned had rather striking physical appearances, and suspicion for a time fell upon them. I am not going to give the physical descriptions in the body of this judgment, but everyone participating in the inquiries and in these proceedings knew who they were. This is potentially very important, because it provided apparent corroboration for what the children were saying. It would be difficult to dismiss their suggestions as fantasy if the descriptions corresponded to readily identifiable local residents. For this reason, it was especially important to examine and test what was said about them.
  607. The police did pursue these matters and checked out the persons concerned, with a view to seeing if there was corroboration for what the children were saying, and if there was evidence to justify criminal proceedings against any of the individuals. Nothing emerged from those inquiries to suggest that any of the persons had been involved, directly or indirectly, in child abuse. On the face of it, therefore, there was nothing to confirm or enhance what the children were saying. Indeed, if the persons did correspond to the descriptions given, the result of police inquiries would rather go the other way and cast doubt upon the children's accounts. It was thus an important matter for the Review Team to address. They did so on pages 213-17 of the Report. The clear impression was there given that the police inquiries had thrown up some relevant information consistent with, or tending to confirm, the involvement of one or more such persons in paedophile activity. For example, on page 217 it was said:
  608. "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".
  609. It is necessary to see what information the Review Team did have from the police to justify that passage. My attention was drawn to an interview with the police officer in charge of the investigation, Detective Inspector Findlay. From that transcript, it appeared to be quite clear that the officer told the Review Team members that there was nothing to put any of the people concerned "into the frame" and that he had no evidence. Helen Foster was able to confirm this from the witness box – by which time her note books had been made available. It thus began to look very much as though the Review Team had drafted the passages in their Report mischievously in order to stoke up the fires of suspicion against the various persons concerned. That would have been dishonest, irresponsible and potentially dangerous.
  610. Miss Page pressed Professor Barker on this at some length (as she so often had to, because he would not focus on what she was asking). On 12 February, I pressed him also. I said to him that it was very important that, if the Review Team had some evidence, apart from what was recorded in the Findlay interview, to back up what they said in the Report, he should now reveal it. It seemed obvious that this was a necessary step for the Review Team to take, in order to rebut the charge of dishonesty. It could not have been explained more clearly to him.
  611. Still Professor Barker rambled and procrastinated. He said that Mr Findlay had implied that there was some evidence (albeit not enough to justify criminal proceedings), but he was unable to identify the words which were said to give rise to this implication. Any such implication would, of course, have contradicted what the officer actually said (i.e. that he had no evidence). Every opportunity was given to Professor Barker to focus on the issue and to do himself justice. Unfortunately, he did not take that opportunity. Judith Jones and Mrs Saradjian did, in due course, have the grace to admit that they did not have any such information. Mr Wardell had not been present at the interview with Mr Findlay. Although he read the transcript, he knew that the tape had been switched off at one point. He seemed to think that something had been said off the record to justify the words in the Report. He accepted, however, that only those present could know if this was so.
  612. It was interesting to note that on 8 February Professor Barker used this formula of "implication" by the police also in relation to pornography:
  613. "…..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".
  614. Another individual who fell under suspicion as being present with a camcorder (for the implied purpose of pornographic filming) was also addressed. His first name was used in the Report. Again, I do not believe it to be fair to use it in the judgment because he remained as a nursery assistant (and so far as I know still works with children 10 years on). The Report implies (again at page 213) that there was some truth in this grave allegation. The Review Team did not approach the man concerned, or give him an opportunity to put their suspicions to rest. The truth is that the police had "no concerns" about him. That is clear from the statement of Vanessa Lyon in these proceedings, and the Review Team was told as much in the course of the inquiries.
  615. Miss Page pointed out what it was that had originally given legitimacy to the Review Team's enquiries into this young man. His name appeared in a "complaint" made by the mother of Child 11. When eventually the Review Team wrote to set out their findings in relation to her complaints, the letter contained no reference to him. Miss Page put to Professor Barker that it was thus fair to conclude that he had been eliminated from their inquiries. He said that he did not know. His attention was drawn to the fact that, on 29 October 1993, Vanessa Lyon told Child 11's mother that there were "no concerns" about him. The significance of this matter is, of course, that five years later the Report gives the name of the young man, and leaves the implication in the reader's mind that he was still "in the frame" for pornographic filming. Professor Barker indicated that his memory led him to believe that there was "some other evidence about him". He was, however, unable to specify what it was. He suggested that the right person to ask, in this context, would be Mrs Saradjian.
  616. Professor Barker was asked why the young man's name was left in the Report in the light of the negative reply the Review Team had given to the mother of Child 11 with regard to "Complaint 18". There, it was said that such connection as he had with any children at Shieldfield was "non-sinister". No satisfactory answer was forthcoming (over no less than 14 pages of transcript: 12 February pages 22-36). Accordingly, the matter was left to see what Mrs Saradjian had to say about it. In fact, when she was asked about the "camcorder" reference in the Report, on 21 February, all Mrs Saradjian said was that the Team had simply been reporting what the children had said. The cupboard was again bare.
  617. These passages in the Report, so plainly smearing identifiable individuals with paedophile tendencies, give rise to very grave concerns to which I shall have to return when I resolve the issue of the Team's good faith. At the time the Report was published, the Team could not know of the frightening vigilante acts of August 2000 against supposed paedophiles, but even then they must have realised the risks to which they were subjecting these innocent citizens.
  618. One of the main aspects of the Claimants' case on malice was centred upon the way the Review Team dealt with the ruling of Holland J, and the concerns he expressed about the video evidence of Child 14. When Miss Page came to cross-examine Professor Barker about these matters, it emerged that he had not seen the videos since 1996. This was despite the very serious allegations of misrepresentation and distortion pleaded in the Reply (served in March 2001), and the fact that the video tapes had been available for some five months. I found this surprising, but acceded to a request that we should rise early on 13 February in order for him to prepare to deal with any matters that might be put to him. I made it clear that I would not welcome any further applications of that kind, since it was reasonable in my view to expect the Review Team to have read and understood the case against them before going into the witness box.
  619. I have set out a full summary of Holland J's ruling and cited the most important passage, in which he identified with stark clarity the concerns he had about Child 14's evidence. Professor Barker's approach was that the Review Team had more evidence before them than the Judge and were therefore entitled to come to a different conclusion; in any event, they were applying a different standard of proof, and were not constrained by a "forensic" approach. I noted that on various occasions in cross-examination Professor Barker used the term "forensic" as a term of disapprobation.
  620. The Professor's attitude towards the learned trial Judge's ruling can perhaps best be gauged from the following extract from his evidence. He was being asked, specifically, about the point which the Judge had made about matters which "cried out" for enquiry if Child 14's disclosures were safely to be evaluated; in particular, he was concerned that no detail given by the child of any alleged trip to a house or flat with the Claimants stood up to any further investigation. Miss Page proceeded as follows:
  621. "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".
  622. I find it difficult to grasp what further evidence the Review Team could have had, such as would be effective to subvert the logic of the learned Judge's ruling. Certainly Professor Barker never enlightened me. Also, I put specifically to him that if the child was, in two of the video interviews, actually exculpating Miss Reed the standard of proof would be irrelevant. He responded that he believed that a psychologist had told him that the child was probably saying the opposite of what she meant.
  623. It is necessary to be wary of this Humpty Dumpty approach to words, since it pervades the entire Report and the Review Team's evidence. It betokens a mindset which leads to the following examples of how to approach evidence:
  624. 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.
  625. As an approach to weighing evidence, this is unscientific and irrational. (I put it that way in order to avoid comparison with anything that Professor Barker might perceive as "forensic".)
  626. When a person is responsibly investigating facts in order to see whether they support a particular hypothesis, it is necessary to have some notion of what would be capable of refuting the hypothesis before one starts the inquiry. In this case, I find it impossible to grasp what the Review Team would have regarded as refuting the basic proposition that Mr Lillie and/or Miss Reed were child abusers.
  627. Miss Page put to Professor Barker that they had deliberately suppressed the concerns voiced by Holland J. I have no doubt that the process was intellectually dishonest; the question I have to address is whether it was done in bad faith. Having properly read them, one could only ignore the comments made by Holland J about Child 14's evidence if one was very stupid, blinded by prejudice or utterly mischievous. Not every one of those three hypotheses is necessarily to be equated with the legal concept of "express malice". Thus, it was important to focus on what was, or could have been, the explanation here. This was the purpose of Miss Page's painstaking cross-examination. But Professor Barker did not seem to understand this. He chided her more than once for being partial and selective, and adopting a "forensic" approach, although he generously recognised that she was only doing her job. He was not prepared to leave it to Mr Bishop or to the court to ensure that he was not unfairly treated. He was, of course, wide of the mark. Miss Page put her case with clarity and economy, but Professor Barker either could not or would not deal with it. He seemed to find her questions a minor irritant that could be brushed aside, rather like the ruling of Holland J. The telling criticisms made by Mr Cosgrove and Mr Marron were clearly ignored by the Review Team.
  628. Miss Page asked Professor Barker about suppressing the Judge's comments:
  629. "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.
  630. Miss Page then invited Professor Barker to talk us through the factors he had in mind that enabled him to conclude, without reference to Holland J, that Child 14's evidence was extremely "powerful" and "persuasive". He replied:
  631. "I mean that seems to me to be something that it would be very difficult to do in this context."
  632. The exchange continued:
  633. "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".
  634. Unfortunately, towards the end of that passage, various alarm bells rang in the building and Professor Barker felt distracted. I therefore invited Miss Page to put the question again. When she did so, Professor Barker said that he was satisfied that he had answered it. Professor Barker went on to say that the Review Team were looking at the matter more widely than Holland J; that is to say, that they were concerned with broader issues than the admissibility of video evidence in a criminal trial. In response to me, he gave a further explanation:
  635. "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".
  636. A little later Miss Page asked Professor Barker to consider an apparent difference between the approach adopted in the Report itself and in his own witness statement for these proceedings. She quoted to him a passage which included the following:
  637. "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".
  638. The point which Miss Page wished Professor Barker to address was that this did not appear to sit comfortably with the comment in the Report to the effect that Child 14's video interviews were "powerful" and "persuasive". First, Professor Barker tried to suggest that, in referring to the videos as being inconclusive, he was addressing the total number of videos he had seen with Mr Wardell in 1996 – not specifically those relating to Child 14. In the light of the passage Miss Page had quoted to him, set out above, I find it difficult to accept that. In fact, it is obviously untrue.
  639. Shortly thereafter, he took a slightly different stance:
  640. "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".
  641. This appears to be suggesting that, although Professor Barker himself regarded the Child 14 videos as "inconclusive", he was prepared to go along with the statement on page 148 of the Report, to the effect that they provided "powerful and persuasive evidence" that she had been abused. If true, this would hardly be a very principled way of assessing material relied upon for the purposes of establishing rape. It would mean that the readers of the Report would be deprived not only of the concerns expressed by the trial Judge about her statements but also of the fact that Professor Barker privately regarded these "persuasive" videos as "inconclusive". That is as clear an example as one could expect to see of a defendant claiming to espouse one proposition while believing another. It would be dishonest.
  642. I was troubled about this matter and queried it when Mrs Saradjian asserted (on 20 February), "I think all four of us agreed that they were powerful and persuasive videos in relation to a lot of issues". I asked if she recalled anyone at the time expressing reservations about their being "inconclusive". She replied that "there were aspects of them that were inconclusive". I asked what they were. Her answer I found confusing:
  643. "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".
  644. Thus, it emerged that a second member of the Review Team thought "aspects" of the Child 14 interviews were "inconclusive". Despite my invitation, she did not identify what they were. But it is reasonably clear that she thought there were questions which the interviewer needed to ask (no doubt, in particular, probing inconsistencies). Yet this was not conveyed in the Report. The interviews are presented simply as powerful and persuasive evidence against Mr Lillie – and presumably also Miss Reed. Again, I find it difficult to reconcile this statement with her private reservations.
  645. A remarkable piece of sloppiness in the Report (if that is what it is) is to be found on page 41. There is a supposed "chronology" which contains the item that, on 4 October 1993, during her first video interview, Child 14 alleges rape. She did nothing of the sort. She did not even make an allegation of indecent assault against herself during that video interview. The actual entry reads, confusingly, as follows: "alleges rape being videoed". Whether that is intended to mean that she was alleging that she had been raped while being recorded on video tape, or whether it means simply that she alleged (a) that she had been raped and (b) that she had been video-recorded doing some other activity, does not for present purposes matter, since nowhere in the three video recordings does Child 14 make reference to being video-taped at all. I found it profoundly worrying that this Review Team could have included the false suggestion in their chronology that Child 14 alleged rape on 4 October. I am afraid I do not understand how any honest and responsible person can throw allegations of rape around so casually. (It is possible that this notion of Child 14 being video-taped came from the Panorama programme of October 1997, when it was publicly alleged that a cameraman had been present.)
  646. The consequence was that a reader of the Report would be bound to draw the conclusion not only that Child 14 had alleged rape on 4 October (the date of her first interview) but that "over three interviews" she had been consistent. That is a gross distortion. It is so gross that four intelligent people could not have promulgated it by mistake or oversight. It is true that they did not have the advantage of transcripts, but they did have the clear summary of the three interviews contained in the ruling of Holland J (which Mr Wardell described as "very helpful").
  647. On 14 February, much time was taken up in cross-examination of the Professor by going through in detail the transcripts of Child 14's three video interviews. Central though Child 14 is to the plea of malice, not much was gained by this exercise since there was little Professor Barker could say. He could have answered for the most part compendiously without addressing individual passages. His response was effectively that he formed an impression that the child was telling the truth. Although he had read the judgment of Holland J, he regarded it as a matter going only to admissibility. Their exercise was broader and qualitatively different from that of the Judge and, what is more, they had more information to go on. That was a short and simple position to take. It did not improve with repetition. For my purposes, the validity or otherwise of the Review Team's stance can be judged mostly by reference to the recorded interviews and to the Judge's observations about them. He saw what the Review Team saw (Child 14's videos have apparently been viewed by all four members). The child's "disclosures" and the inconsistencies or contradictions remain static for all to see – except, of course, the readers of the Report.
  648. Cross-examination on this front was, however, not wholly unproductive. It emerged that some elementary questions, or lines of inquiry, thrown up by the interviews were simply not pursued. For example, although the child at no stage spoke of any indecent assault upon her outside the nursery, she did speak in a confusing way about supposed visits to either a flat or a house, where there were dogs and hamsters and a backyard in which to play. She variously described the mode of travel (bus or train). She also spoke on different occasions of being accompanied by different members of staff (Amanda and Moira). She did not speak of going to such places accompanied only by Mr Lillie and/or Miss Reed. Even though the child does not speak of any assault upon her during any such visit, she did mention in the first video having seen "Chris" in bed with someone called "Doreen" (conceivably a childish corruption of "Dawn" or "Dawn Reed"). That would be manifestly inappropriate behaviour, if not an actual assault, and Professor Barker was entitled to observe that it might reasonably come within the definition of "abuse".
  649. Crucial, therefore, one might think, to question the members of staff alleged to have been present, Amanda and Moira. It emerged in cross-examination that this was not done. Moira Martin was interviewed but not even asked about this. Whether this was an "oversight" was not clear, but in any event there was a gaping hole in the evidence before the Review Team such as would surely at least inhibit them from accepting the child's confused account. As for Amanda Caisley, she was not interviewed. Apparently she did not accept the invitation, but the Review Team did not ask her even in writing to confirm or deny what the child was alleging about her presence. One might perhaps understand (just) how such inquiries were overlooked if the Review Team had simply failed to spot the potential significance of such witnesses (however unlikely that would seem), but they did appear to attach significance to it in the body of their Report (at page 148). They actually cite the fact that over three videos Child 14 detailed abuse of herself and other children by Christopher Lillie and to a lesser extent Dawn Reed, "and she also mentioned other nursery staff's names" (emphasis added). Since her testimony is then described as "persuasive evidence of her abuse in the nursery and elsewhere", the Review Team would appear to be pointing to the "other nursery staff" as complicit. Indeed on page 240 of the Report they say more generally:
  650. "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…"
  651. That is a remarkable allegation to leave hanging in the air when the Review Team know perfectly well that there is no shred of evidence to link any of the other Shieldfield staff with child abuse.
  652. There is another shift of emphasis at page 282 of the Report:
  653. "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".
  654. Again the staff are at the same time absolved and implicated. The prose has the same treacle like quality as other parts of the Report, in the sense that it is impossible to pin any precise meaning on the passage. It is obviously intended to smear somebody but there is no specific evidence to enable one to see which of the staff were "groomed" or who did the grooming. Presumably Mr Lillie and/or Miss Reed "groomed" other members of staff, but there is no way of knowing how this was done or to how many staff. No evidence emerged in the course of the trial to support the proposition. If there had been any material in support, surely it would have been put to one or other of the Claimants.
  655. It is true that on page 213 of the Report the Review Team conclude "We accept that Chris Lillie and Dawn Reed were the only nursery staff involved in the abuse". This is on the basis that "… there is no evidence that any other staff of the nursery were involved in the abuse of children". Yet they qualify this by saying, "Two children did suggest that a third member of staff was involved; but they each named a different person, so that their allegations were uncorroborated". This is less than clear, since it hardly squares with what is said in the passages at pages 148 and 240 quoted above; nor did the children actually suggest that any other member of staff was "involved" in abuse (as opposed to being present on trips out of the nursery). Indeed, that is part of the Review Team's own case – one of the excuses they put forward for not asking the other members of staff about it. Moreover, it is misleading to give the impression that two children identified one other member of staff as being involved. Child 2 mentioned three. Child 14 mentioned two. None of this, in any case, meets the essential point that no checks were made for the purpose of testing the plausibility of the children's accounts.
  656. Other persons said to have been present included children identified as "Lucy" and "Sam" (Sam being described as Christopher Lillie's daughter). There was nothing to confirm who they were, or whether they existed. Whoever "Sam" was, she obviously could not be Mr Lillie's daughter. It would seem that Child 14 was aware of two children with that name but I shall not spell out who they were for obvious reasons. Neither, however, has provided any corroboration.
  657. Turning to the abuse alleged to have taken place in the Nursery, part of Child 14's account involved a needle being put into Child 35 and Child 10. It would thus be elementary to check whether this matched any allegation being made by either of those children. If it did not, it would surely raise a question mark. It is to be noted that the mothers of Child 14 and Child 10 were friends, and that Child 14's mother had, apparently, passed on to her the allegation relating to her son. The boy himself, however, said nothing about having a needle stuck into him, in the Nursery, although he did refer to "a nail with water in the plastic bit" – but only in response to a leading question from his mother. His various accounts of alleged abuse all took place at "Jo's" flat. As far as one can tell, the only "Jo" in contention would be a friend of his mother, whose flat was never visited by Mr Lillie or Miss Reed (according to the evidence). He never mentioned needles in his video interviews. Child 35 also happened to be a friend of Child 14 outside the nursery and the mothers also knew each other.
  658. It also emerged in cross-examination that the Review Team had not reacted to, or explored, the possible inconsistency between the accounts given by Child 14 over alleged abuse in the Nursery in the first and second interviews. From page 12 of the transcript of the second interview, it seems that an account was given of a needle incident when neither Child 35 nor anyone else was present. Nobody explored whether this was supposed to be a second occasion from that described in the first video, or an inconsistent account of the same incident. As for Child 35 herself, there was no corroboration (as Ms Jones accepted in the course of cross-examination).
  659. Eventually Professor Barker had to admit that the claim on page 221 of the Report that Child 14 had not been subjected to leading questions was, in hindsight, not appropriately worded. He could hardly do otherwise. In my view it was completely unsustainable. Indeed, Professor Bruck observed of part of the material, "This is one of the most coercive and abusive interviews that I have ever reviewed". She said that "almost every known suggestive technique was used, and we will never be able to know what, if anything, had actually happened to [Child 14]". That is a matter, of course, in one sense of expert evidence. On the other hand, it is also a matter of common sense. Professor Barker, however, did attempt to qualify his admission by saying that in his view, in so far as any of the questions had been "leading", this was only to the extent permitted by the Memorandum of Good Practice with regard to younger age groups. Professor Barker thinks that leading questions should be permitted with under-fives. That is a view to which he is entitled and others no doubt agree with him. It is nonetheless a controversial view. As Mr Wardell put it, "…clearly you need some time to prompt a younger child – and then we get to the difficult legal bits".
  660. It is true that they can point to the memorandum for some support in this respect. What matters for present purposes, however, is that this is not what the Review Team told the public. They said that there were no leading questions – that is undeniably false, as they surely knew.
  661. One of the most important reservations expressed by Holland J was to the effect that the allegation of rape from Child 14 came only at the end of the third video interview and, what is more, after the child had requested to terminate the interview. Thirteen minutes after that termination, it was resumed and the crucial allegation was then made. When Miss Page asked Professor Barker about this, his reply was as follows:
  662. "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'".
  663. This is not satisfactory, since any fair-minded person (I emphasise that I am not speaking merely of lawyers or judges) would surely recognise that the cessation of the interview, followed by an allegation of rape upon its resumption, was extremely "fishy". It may be that there is some explanation, but I cannot see how a proper assessment can be made of Child 14's videos without at least addressing the point. In the words of Holland J, it is one of the matters that "cried out for inquiry". Professor Barker said that he was satisfied that nothing untoward had happened outside the room while the tape was switched off, but it is a matter that needs to be fully explained and, surely, properly accounted for in the Report, so as to give its readers a solid basis for concluding that the Child's evidence of rape was "powerful".
  664. As the learned trial judge had pointed out, one of the most worrying features of the way the "disclosures" were extracted from Child 14 related to the 13 minute interruption in her third interview, following which for the first time an allegation of rape came out (as though rehearsed). I asked Professor Barker how the Review Team had approached this vital issue. The answer he gave was this:
  665. "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".
  666. In so far as that is intelligible, it seems to me to disclose the remarkable fact that no critical inquiry or analysis was directed towards this at all. Thus, the incident which the learned Judge had described as requiring to be looked into "above all" was brushed aside. In due course, I shall have to decide whether this should be attributed to sloppiness or ignorance, or whether it was indeed mischievous. Miss Page summarised her case to Professor Barker at the end of her cross-examination as follows:
  667. "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."
  668. That would probably serve as a neat summary of the important issues of malice which I must shortly decide.
  669. I decided that I was unable to place reliance upon anything said by Professor Barker, for any significant purpose, unless it was independently corroborated. That in itself, of course, by no means leads to the inevitable conclusion that I should find him malicious.
  670. Ms Judith Jones was giving her evidence from 15-19 February. I found her altogether a more impressive witness. She struck me as careful, thoughtful and intelligent. She was also determined to demonstrate that she had been objective in her approach to the Review Team's task. She clearly recognised at least some of the difficulties and delicacies of the endeavour they were invited to embark upon; and I believe her when she says she was conscious of them at the time. I was interested that, at an early stage of her evidence, she confirmed that she had seen the Amicus Brief from the Kelly Michaels case and also the 20:20 video recording dealing with the suggestibility of young children. She observed that anyone setting out to inquire into questions such as those which had arisen at Shieldfield would be "mad" to attempt it without taking account of the researches, as they then stood, of Ceci and Bruck. I had been somewhat surprised that Professor Barker had not addressed that topic at all when in the witness box.
  671. Ms Jones also expressly recognised in court the principal problems inherent in the video interviews of the children. In particular, she identified the "leading" nature of the questions (not something to be found on page 221 of the Report) and the absence of cross-examination, or indeed any form of testing, with regard to the "disclosures" passed on through parents. The question inevitably arises, therefore, as to what impact these considerations had (if any) upon the Team's reasoning processes or ultimate conclusions. From the Report itself one cannot tell.
  672. I found it difficult to reconcile Ms Jones' stance in oral evidence with that adopted in her witness statement (paragraphs 178-80), where she seemed to be taking the simplistic position that the Claimants' case entailed either "panic" on the parents' part or the proposition that there was a criminal conspiracy among parents to fabricate the charges in order to secure financial compensation. She is obviously experienced and intelligent enough to know that this would be a distortion of the Claimants' case. I therefore cannot understand why this position was allowed to be reflected in her witness statement.
  673. Impressive though she was, there were inevitably important aspects of the Team's methodology which Ms Jones found herself struggling to defend.
  674. As I have already made clear, I found myself attaching particular significance to the claim made on page 269 of the Report:
  675. "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".
  676. It was possible to test the claim, which embodies within it a serious allegation, against the recorded contents of the interview with Detective Inspector Findlay on 22 January 1997. The clear implication of the Report is that there was evidence that the person concerned was involved in paedophilia or child abuse, as the children's evidence could be construed as suggesting, but that the police did not believe that such evidence was strong enough to be used in court. It is manifest on checking the content of the interview that Detective Inspector Findlay said nothing of the sort. (His actual words were, "… I just could not find out anything which would support that story. We were aware that all we had was what these children and parents were saying – some very young children – babies".) He rather said that there was no evidence, and no basis for "putting him in the frame". That remains as true today as it was nine years ago. It was confirmed by Miss Foster from the witness box.
  677. There is a passage in the course of the transcript where it appears that for a time, at the officer's request, the tape was switched off. Both Professor Barker and Ms Jones referred to this in seeking to prop up the allegation made in the body of the Report. Ms Jones was, however, frank enough within a short space of time to admit that nothing was said during that unrecorded part of the interview to suggest that the police did indeed have evidence to link the man in question with paedophilia. Professor Barker had characteristically tried to fudge the issue. That did him no credit at all. An important question for me to address therefore, in due course, will be whether that important allegation at page 269 of the Report (intended to lend credibility to the children's "disclosures") was genuinely just "poorly worded" through carelessness, or whether it was a deliberate slant to bolster the case which the Review Team wished to put across.
  678. This concern cannot be dismissed as picking holes in the detail of the Report. It represents the main foundation of the Review Team's endorsement of the "paedophile ring", which was one of their most dramatic conclusions. It received enormous publicity and accounted for much of the venom directed at the Claimants. It was an allegation that had been doing the rounds for some years, fostered to some extent by Dr San Lazaro who actually made the assertion to the Criminal Injuries Compensation Board at the end of 1994. (It later emerged, however, on 16 May 2002, that Dr San Lazaro has a quirky and shifting definition of a paedophile "ring". She thought it could, for example, embrace one adult with several victims.) But it was the publication of the Report under the cloak of privilege which really gave the allegation its currency. Yet Campbell Findlay had told the Team that he had not got any evidence of a paedophile ring in Newcastle. He added, "If I had, I would do something about it".
  679. Another area of the Defendants' evidence which seemed to me very weak was that concerned with the questions asked of other members of staff. Where particular children identified other members of staff as having accompanied them on abusive trips organised by Mr Lillie and/or Miss Reed, it was clearly vital to seek their account. I have already mentioned it in the context of Professor Barker, but it is in my judgment of such importance that it needs to be considered when judging malice in relation to each of the Team members. Ms Jones sought to deal with this by saying that the individuals concerned had already been extensively questioned by police officers and others, and that the Review Team were conscious that not only had the police found no evidence of abuse but that the children themselves were not actually alleging abuse. I found this unconvincing. Indeed, it does not square with the passages in the Report (at pages 148 and 240) where the Team actually refer to "other nursery staff" in a context which, far from being exculpatory, would suggest that they were in some way complicit (see paragraph 1226 above).
  680. Where a child alleges that Mr Lillie and Miss Reed were participating in some form of sexual activity in front of them, at a location outside the nursery, anyone named as being present should plainly have been asked (a) whether any such expedition ever took place and (b) whether during the course of the visit any opportunity for such sexual activity had ever arisen. Quite unaccountably, this was not done. The importance of this hardly needs to be stated. If it would, otherwise, be a case of the Claimants' word against one or other of the children, it would obviously be right to check out any other individual identified by a child who might corroborate or refute these grave allegations. There is nothing "forensic" about it; it is simply common sense.
  681. Despite the fact that these members of staff were not questioned, the Review Team appeared to be ready to state their conclusions (or rather speculate) in the Report (at page 240). Not only did they leave open the possibility that the members of staff might actually have been involved in abuse themselves but they put forward the alternative theory that Mr Lillie and Miss Reed had put the children up to making "these often isolated disclosures so that if any disclosures were made they were all the more unbelievable".
  682. This suggestion I find utterly fanciful. One has only to try and visualise how this could be achieved to appreciate how unreal it is. To take Child 2 as an example, it seems to be suggested that she was cowed into silence but, for good measure, was also persuaded that three other members of staff were involved when she must have known perfectly well that they were not (i.e. Diane, Jackie and Trisha).
  683. One aspect of her evidence in which she seemed to be readier for frank disclosure than Professor Barker was that in which Ms Jones was questioned as to when she reached the conclusion that multiple abuse had taken place at the nursery. She recognised that that point arrived at around August 1996 (i.e. more than 2 years before the Report came out). This was, very approximately, about a year earlier than was admitted by Professor Barker. On the other hand, like Professor Barker, Mrs Saradjian and Ms Jones said that they had reached their conclusions about Mr Lillie some time earlier than they had reached the decision about Miss Reed. I had difficulty with this, since their joint responsibility is an integral part of the Review Team's case, based upon their interpretation of what the children had "disclosed". There is a conceptual difficulty about believing that one participant in a joint activity was doing it but not the other. It is like the surreal notion of one hand clapping.
  684. Ms Jones told me that what had impressed her, and her colleagues, were the "core consistencies" in the children's statements. She was, however, frank enough to volunteer that the later statements were likely to be more unreliable for a number of reasons, including possible cross-contamination between children and/or parents and the impact of therapy. She said this particularly with regard to the later statements made by the mother of Child 22. This is to an extent understandable but it is necessary, in carrying the reasoning through, to identify the dividing line and to decide what proportion of the statements are to be put to one side as "unreliable". This was not done.
  685. Later she cited "research" tending to show that a substantial proportion of pre-school children can retain a good memory for up to 12 months, but that the present state of knowledge does not suggest that there is much support for reliable memory beyond that length of time. That is clearly important in this case if she is right, because many of the statements relied upon by the Defendants, by way of justification, relate to events alleged to have taken place well over a year earlier. On the other hand, Mrs Saradjian's view seemed to be in no way inhibited by the same "research" watershed of 12 months. This was a point that should have been followed through and, once again, a dividing line drawn so that the Team (and their readers) could see which statements related to events more than a year earlier. It would have applied, for example, to all of child 14's allegations. As it was, the Team chose to cast no doubt on any of the dozens of allegations and appeared to accept every statement mentioned in the Report.
  686. Miss Page was concerned to explore to what extent the Review Team had set out to test for "consistency", whether within the contents of one child's individual disclosures or as between those of various children. But the whole notion of "testing" appeared alien to them. They did not regard it as their function to "challenge".
  687. Mrs Saradjian went into the witness box on the afternoon of 19 February and concluded her evidence on 22 February. She was clearly thoughtful and intelligent, and has made a particular study as a clinical psychologist of sexual abuse by females. I formed the impression early on, however, that she lacks objectivity about the evidence relating to Shieldfield Nursery. She displayed a strong antipathy to Mr Lillie and Miss Reed which is, of course, entirely consistent with genuine belief in their guilt. She told me that she had set out on the task from 1995 with an open mind and a determination to approach the evidence objectively. I am sure she believes that, and I have no doubt either that she has believed for a long time that the overall conclusions in the Report are true.
  688. Unfortunately, Mrs Saradjian approached cross-examination as though it was a debate. She was reluctant to admit anything, even the glaringly obvious, but rather tended to cite another argument in order to demonstrate that the admission, if made, would be irrelevant. She criticised the Claimants for not having co-operated with the Review Team by submitting themselves for interview. She, like other members of the Team, failed to grasp at all how unrealistic the suggestion was. The Claimants did not trust them or the Newcastle City Council. Moreover, had they been told frankly that the intention was to re-open the allegations in respect of the six indictment children, they would surely have been astonished and fully entitled to tell them to jump in the lake.
  689. In any event, I am quite satisfied that if the Claimants had agreed to be interviewed by the Review Team, it would have made not the slightest difference. Now that the Claimants have given evidence on oath, for day after day, Mrs Saradjian still criticised them for not offering a realistic explanation for the children's allegations and unusual behaviours. They were hardly in a position to do so. They had no idea what was going on amongst parents and children, police officers, doctors, social workers and therapists following their suspension. More significantly, it was a comment that rather gave the game away. Mrs Saradjian even now regards the burden as upon the Claimants to prove their innocence. I have no doubt that this was her attitude from the day she was appointed. On page 219 of the Report (which I believe she wrote) it is also said that "…the perpetrators have never been able to offer an alternative explanation to account for the children's knowledge and disclosures".
  690. Mrs Saradjian's attitude was similar to that of Professor Barker who was asked on 7 February whether he held their "silence" against Mr Lillie and Miss Reed (i.e. their refusal to be interviewed). He replied that it weighed against them to some extent but it was by no means conclusive.
  691. Further illustrations of this mindset are to be found in questions asked during some of the Review Team's interviews. I have in mind particularly the interview of Julie Kinghorn on 30 May 1997. Although Mrs Saradjian was not present on this occasion, the other three members were. One of them made the following observations to the witness:
  692. "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".
  693. Again, during the interview with Helen Foster on 14 February 1997, Mrs Saradjian (being the only Team member present) commented of Mr Lillie and Miss Reed, "I have been astounded by the confidence of them, especially the constant denials really, and the confidence with which those denials were occurred [sic] in the face of what was going on". Hardly consistent with an open mind.
  694. Mrs Saradjian's combative debating style in cross-examination convinced me of her utter commitment. She was persuaded long ago of the Claimants' guilt and has reinforced that belief by a battery of intellectual arguments over the years as to why she is right. What she is not, however, if she ever was, is open-minded. Her knee-jerk reaction is always to dispel doubts by reference to other possible explanations, however fanciful the hypothesis. She was a great advocate (that was indeed the role she played in cross-examination) of the "whole picture" theory (i.e. that they cannot all be wrong). She would, I know, be horrified and offended at my failure to acknowledge her objectivity and independence. She spoke of her commitment to "get it right". I took particular note, for example, of her determination to trace back the Child 4 allegations to their original source. They date, at the very earliest, from June 1994 (i.e. a year after the "hue and cry" began and thus on the wrong side of Ms Jones' watershed for reliable infant memory). Little attention, however, appears to have been given to the "hot-house effect" of cross-contamination between children exchanging concepts and scenarios which they cannot fully have understood – particularly in the Yellow Room in 1994. No account was ever taken of the mother's first reaction, a year earlier, that Child 4 was "gobby" and likely to say "anything". That means that she was at that stage of her development suggestible and unreliable.
  695. I must state my own conclusions about Mrs Saradjian, however offensive she may find them. She combines a quick mind and, as I have acknowledged, considerable intellectual vigour with an unwillingness to re-examine fundamental assumptions. One of the most telling revelations about Child 4 is to be found in the Nursery records dated 17 May 1994, the day before her first video interview, where she is recorded as saying, "My mummy says that Dawn and Chris are naughty and they are in prison". That would surely ring alarm bells in any objective observer. The teacher (Fiona) even recorded how she talked to Child 4 a little about her seeing Helen Foster the following day and talking to them about her feelings. Moreover, it can hardly be ignored that the child was saying on 14 June 1994, "They didn't do anything". There are also other references on 29 April to the concept of "naughtiness", which can only have been implanted by adults (directly or indirectly).
  696. None of this was taken into account, or if it was (and Mrs Saradjian claimed to have been through the Day-Books), it seems to have been brushed aside as of no relevance. I gradually came to the conclusion that Mrs Saradjian's intellectual accomplishments were devoted, in this instance at least, not so much to the objective assessment of what went on but to the adversarial task of marshalling the most powerful case against the Claimants – inevitably a selective and misleading exercise. The irony is that while the Review Team publicly aspired to the inquisitorial approach (and despised the adversarial) they lacked the necessary objectivity for the former and were, ultimately, exposed by the latter.
  697. Yet bias and lack of objectivity are definitely not, in themselves, to be equated to malice (although they can sometimes provide evidence of indifference to truth).
  698. In the end, of course, the real test of Mrs Saradjian's evidence was how she coped with the glaring deficiencies in the content of the Report itself. Despite all her undoubted qualities, she was unable to respond to the unanswerable. The Report in fundamental respects simply contained misrepresentations of fact.
  699. Mrs Saradjian wrote that part of the Report which contains page 220. The claim is there made that:
  700. "… 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".
  701. It is a very bold claim. It fails to take account of what was going on at Shieldfield Nursery in 1993-4 - especially the fevered atmosphere that required a special book to be kept of "disclosures" that children in the Yellow Room might make in the course of their daily routine. It fails also to take into account the potential for contamination, or even abuse, through the very process of investigation by police and social workers. The Cleveland Report was almost "old hat" by the time the Review Team were setting about their task, and they all knew it well. Yet little weight was given to the potential, to which it drew attention, for such abuse arising in the investigative process. That is surprising in this of all cases, where such risks at least had to be addressed and, if possible, discounted on a reasoned basis.
  702. The problem seems to have been ignored or brushed aside, as far as I can tell. Indeed, to my astonishment Mr Wardell (during the afternoon of 22 February) claimed that contamination between children was unlikely:
  703. "I just said that it was unrealistic to expect children to play together like that and contaminate each other."
  704. He appeared to think that "contamination was never a major and significant issue", on the basis that under fives would not get together in a plot to "drop Chris Lillie and Dawn Reed in it". As someone of his experience must surely have understood, it has never been suggested that the issue was one of malicious "plotting" or concoction. If the Review Team carefully considered the implications of the Ceci and Bruck research, as Ms Jones suggested they did, so much would have been obvious. As the Review Team must have realised, the problem is not likely to be that of conspiracy or plotting, but rather cross-contamination through hearing each other's "disclosures" and discussing the various dramatic scenarios suggested.
  705. As Dr Hamish Cameron observed, children are inclined with "an exciting taboo topic" to dwell more and more on the subject should parents, as authority figures, "give permission" to the child to talk more about it. The danger is that excitement grows and the story becomes elaborated by the child's imagination. I am conscious of the enormous wealth of practical experience among the Review Team members. As a layman I must respect that and beware of resorting glibly to that elusive commodity "common sense", which can be so deceptive in specialist areas. Nevertheless, I must say that in this respect I found Dr Cameron's observations much more realistic.
  706. It seems that by about mid-day on 25 February Mr Wardell had become more flexible on the possibility of cross-contamination. He then acknowledged:
  707. "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".
  708. It is not easy to reconcile all of these statements, but I do not believe it would be unfair for me to conclude that during their deliberations Mrs Saradjian was "particularly concerned" about the possibility of contamination and that Mr Wardell (despite what he said on 22 February) knew also that the "danger of contamination" was "inevitable". That is why it would have been so vital for them to have set out their reasoning processes (in so far as there were any) which enabled them to dismiss contamination in the Shieldfield environment (for example in the Yellow Room through the indirect influence of therapists at the Nuffield via Child 23 and others upon Child 4, Child 5 and Child 17).
  709. Mr Wardell himself had recognised (on 22 February) that, even though children may "disclose" after a considerable lapse of time quite commonly, it would nonetheless be appropriate to probe further: "You would cover the obvious things like, 'why did you not say it before?' … But the later the first disclosure from what it is alleged took place, the more questions one would ask the child to authenticate it". Ms Jones, too, on 15 February had acknowledged (specifically in the context of Child 22) that: "… as time went on, it would be difficult to judge how far you could place weight on some of the later disclosures that came out, but I think I thought that anyway about most of the people".
  710. There is unfortunately no evidence that the factor was carefully addressed, at all, in order to enable the Team to give their clear assurance to everyone that it could be eliminated. This assurance is difficult to reconcile with the Defendants' own case in their closing submissions:
  711. "It is accepted that by mid–1994 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.
  712. The Review Team's bold conclusion at pages 220-221 of the Report cannot be put down to naivety, especially in the light of what Helen Foster told Mrs Saradjian in interview on 19 February 1997:
  713. "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.
  714. Another factor was recorded by Lyn Boyle in the minutes of a meeting on 22 November 1993:
  715. "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."
  716. A similar warning was given by Det. Sgt. O'Hara on 18 April 1997 (this time to Professor Barker and Judith Jones):
  717. "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".)
  718. In the light of those comments, it is difficult to understand why Mrs Saradjian wrote what she did (as quoted above from pages 220-221), and why the other members of the Review Team assented to it. They manifestly knew it was an issue, and they must have realised that (as Miss Foster confirmed on 22 May 2002) the police had done nothing to check what cross-contamination there was – indeed there was little they could do. It is true that Miss Foster and Detective Inspector Findlay paid a visit to the mother of Child 22 at the end of July 1993 and politely warned her off, as they had reason to believe that she had been going about putting words in people's mouths. By this time, however, it could simply have been too late. Whatever she was doing, she had already had three months in which to do it.
  719. Because nothing effective had been done to monitor the situation in 1993-1994, there was simply no evidence available to the Review Team in 1995-1998 whereby they could conclude (in Mr Wardell's words) that contamination had never been "a major and significant issue".
  720. I do not believe that it would be helpful for me to rehearse the Review Team's evidence at any greater length. On some of the central defamatory allegations, since the facts speak for themselves, there was little of relevance they could say. In the light of their written and oral evidence, and the content of the Report, I must now turn to consider the plea of malice.
  721. 13) Findings on the allegations of malice against the Review Team

  722. It is relatively simple to state the classic definitions of malice from the leading cases, but not always so easy to apply the principles to particular facts. Here, for example, the Report contains statements which are obviously false, many where it is impossible to know the evidence upon which specific findings of fact were based, and fundamental flaws in the reasoning process. None of these factors, however, can of itself demonstrate malice. Yet I cannot proceed on the basis that any of the Review Team members was not intelligent enough to spot them – still less all four of them. I must treat them all, it seems to me, as being very intelligent. They have all held down responsible jobs. Indeed, the intelligence of Ms Jones, Mrs Saradjian and Mr Wardell was obvious when they were in the witness box. That of Professor Barker may have been somewhat obscured by the process of cross-examination. Yet, despite that, somehow they all managed to promulgate this influential document with all its imperfections.
  723. There is room for debate as to how this came about. It is hardly surprising that in respect of some of the more glaring errors Miss Page accused them of deliberate misrepresentation or "lies". Their responses were interesting; they were generally low key and dead pan. There was resort to ready formulae which gave every impression of being rehearsed. Each of the Defendants would produce, from time to time, a mantra to the effect that he or she had approached the task fairly and honestly, and had believed what they said at the time it was written. Alternatively, they would resort to such nebulous concepts as the overall picture, the evidence as a whole, the "core consistencies" and the application of professional judgment or experience. Sometimes, too, reference was made to everything having been done in accordance with legal advice (not revealed). These responses were pulled out as trump cards as if to prevent any further probing on the subject in hand.
  724. Mr Bishop submitted that, with the best will in the world, mistakes ("some major, some minor") will always be made, as this case has amply demonstrated.
  725. Although Mr Bishop in his submissions suggested that there could be silly errors or mistakes, in seeking to distance his Clients from findings of bad faith, it was interesting that this was not the way the Review Team witnesses put it themselves. They did not appear to accept that there were significant mistakes. They for the most part seemed to want to defend the Report even with hindsight. Their case was put, in closing, on a conditional basis:
  726. "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".
  727. The problem is that I have to make a decision, on the basis of their evidence, whether or not any of them was motivated by malice in publishing the Report. It cannot be an answer merely to say that, in general terms, they honestly believed that each of the Claimants was guilty of multiple abuse. Miss Page, of course, invites me to hold that they did not have such an honest belief, or that they did not care whether the allegations were true or false. They were merely bent on assuaging the pressure from parents and others. If that were established, I could find malice. It does not necessarily follow, however, that if it is not established malice would fall by the wayside.
  728. I need to address certain other possible scenarios. Suppose that the Defendants genuinely believed the overall conclusions but (contrary to their own case) were merely careless or sloppy in compiling the Report. Suppose, on the other hand, that they had twisted or manipulated the evidence so as to give a spurious authority to the Report and its published conclusions. I have little doubt that the former conclusion would be inconsistent with malice, but that the latter would enable me to find malice established. On such an hypothesis, the Defendants might believe that the Claimants were child abusers but that is not the same as believing in the truth of the words complained of.
  729. Another possibility is that each of these people was so blinded by prejudice that any skewing of the evidence, or any misrepresentation of its effect, was unconscious. Such a scenario, perhaps more theoretical than real, would not necessarily be consistent with malice.
  730. Interestingly, Miss Page drew my attention in the context of recklessness to the decision of the New Zealand Court of Appeal of 21 June 2000 in Lange v. Atkinson [2000] N.Z.C.A. 95 following the remission by the Privy Council ([2000] 1 N.Z.L.R. 257). As is well known, it was decided in that jurisdiction not to adopt the same approach as that of their Lordships in Reynolds v. Times Newspapers [2001] 2 A.C. 127 because it would add to the uncertainty and chilling effect present in this area of the law. Miss Page was, however, rather focussing upon what was said in the judgment (at paragraphs 42 to 49) on the misuse of an occasion of privilege. There the court was canvassing the distinction between various states of mind and in particular between carelessness and recklessness, but not seeking to point a contrast between the law of England and that of New Zealand. The court was, on the contrary, explaining the law in the light of Horrocks v. Lowe. It is true that the discussion took place in the context of s.19 of the New Zealand Defamation Act of 1992, but it was said to have been "designed to reflect the common law concept of malice".
  731. The reader is reminded of the underlying purpose of the defence and of the possibility that an occasion of privilege can sometimes be used for an improper purpose. It was recognised that, where defamatory words are disseminated to a wide audience on what is prima facie an occasion of qualified privilege, the motives of the publisher, and whether or not there was a genuine belief in the truth of the statements, will warrant close scrutiny. Should the publisher be unable to disclose a responsible basis for asserting such a genuine belief, a jury might be prepared to infer that none existed: See e.g. Reynolds v. Times Newspapers [2001] 2 A.C. 127, 214, [1999] 3 W.L.R. 1010, 1036 (per Lord Steyn). So too a publisher who is reckless or indifferent to the truth of the words will be unable to assert a genuine belief. The discussion continued as follows:
  732. "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 [1975] 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 [1996] 3 N.Z.L.R. 24, 45".
  733. Mr Bishop argues that this exposition of the law has no application in England. He submits that it is inconsistent with English law and should thus not even be accorded persuasive authority. In particular, I take him to be submitting that in England courts should follow the clear distinction between carelessness and recklessness when determining issues of malice; they should have no truck with the notion that recklessness should "take its colour from the nature of the occasion" or that failing to take reasonable care and indifference to truth can "shade into each other". These propositions, however, are advanced as being consistent with Lord Diplock in Horrocks v Lowe and with Lord Steyn in Three Rivers District Council v. Governor of the Bank of England [2000] 3 All E.R. 1. As a matter of first impression, the New Zealand Court's reasoning does not appear to be contrary to the law of England. It is interesting to note also the introduction of the concept of "responsibility" into the context of considering the truth or falsity of the defamatory statement, and also the "responsible use" of a privileged occasion. This is very close to the notion of responsible journalism now regularly investigated in England following Reynolds.
  734. I do not believe, therefore, that Mr Bishop is construing the judgment correctly when he submitted that I was being invited by Miss Page to depart form Horrocks v. Lowe and conclude "that a test of reasonableness or responsibility should suffice to defeat the claim of qualified privilege". The New Zealand court was attempting to explain some of the factors that may need to be considered in deciding whether a case of recklessness has been made out. It was expressly stated that indifference to truth is not the same thing conceptually as failing to take reasonable care. Mr Bishop argues that "No amount of carelessness, prejudice or bias can turn honestly held beliefs into ones that are not honestly held. By an elision, the New Zealand court has turned the traditional subjective test of malice into an objective one". I do not believe that is a fair interpretation. No one can know what goes on in the mind of another except by examining the available evidence. Carelessness can never be equated to indifference to truth but, depending on the circumstances, it may be some evidence of it.
  735. Nevertheless, he rightly points out that in Loutchansky v. Times Newspapers Ltd (No.2) [2002] 1 All E.R. 652 (at para. 25) the Court of Appeal did refer to the New Zealand Court as having "redefined the concept of actual malice to provide a stronger safeguard against abuse". I should, therefore, steer clear of the New Zealand Court's terminology, however cogent and persuasive, lest I be thought in so doing to depart from Horrocks v. Lowe, within the confines of which I should look for the English law of malice.
  736. I understand that Miss Page would wish me to take the reasoning of the New Zealand Court into account in determining whether or not the Review Team had a genuine belief in some of the claims they were making in their Report for the evidence supporting widespread abuse, pornography and the participation of the Claimants in a paedophile ring. The effect of her submission would be that a perfunctory level of consideration in a situation where the allegations are of the utmost gravity, and intended to receive widespread publicity, can be taken into account as part of the evidence to be weighed in deciding whether to draw an inference of indifference to truth. While recognising that carelessness in itself is not to be equated with recklessness, it would have seemed to me that this proposition is unexceptionable as a matter of English law, if the matter were free from authority in England, but the Court of Appeal have approached the Lange decision as redefining the concept of malice and I should not therefore go down that road.
  737. There is no doubt that the Review Team adopted a quite different approach to the assessment of the evidence before them from that familiar to lawyers. It seems to have been to a large extent "impressionistic". They seem to have thought it at least equally valid. They said that their approach was akin to that adopted in a child protection conference when deciding whether to remove a child from a particular environment. Such decisions are not normally announced to the public, however, as findings of guilt. What I need to focus upon, making all due allowance for their chosen approach, is whether they acted in good faith. After all, they claimed publicly to be weighing a great deal of evidence dispassionately and to be applying a standard of proof akin to that in civil litigation. They said (at page 276), in the context of "public figures", that they should not have to prove their innocence and that "they have the right to be judged by exactly the same legal and evidential standards as any other citizens". It is therefore possible to make an assessment of whether they did what they claimed in relation to these two citizens.
  738. The Team were ready and willing to ask almost all those they interviewed what they thought had happened at Shieldfield Nursery. In other words, they were inviting speculation, rumour, guesswork and gossip and treating it as part of the corpus of evidence upon which they made their decisions. Why this was thought to have any value, I cannot see. It was surely part of the Team's responsibility to bring objectivity and independence to a highly fraught situation in which emotions had been running high. Parents were naturally deeply concerned about what, if anything, had happened to their children. Council employees and others were nervous about being accused of impropriety or inefficiency and losing their jobs. In that atmosphere, what was required was a cool and dispassionate appraisal of the facts. A careful distinction needed to be drawn between the evidence and suspicion. Unhappily, they sold the pass early on by deciding to conflate the two almost as a matter of policy. As Mr Wardell observed on 25 February:
  739. "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".
  740. This approach is seriously flawed, but once it was adopted, at the very least, the readers were entitled to see clearly spelt out the difference between fact and opinion, so as to enable them to make some attempt at forming a view as to the validity of the opinions.
  741. Unfortunately, the distinction between gossip and fact was not made clear on the face of the Report, so as to enable even careful readers to spot the difference. For example, they sought to stereotype Dawn Reed as coming from a "troubled" background and, indeed, this theme was picked up by one of their experts (Dr Friedrich).
  742. This was said by Mrs Saradjian to have come from a former nursery worker called Dymphna Donnelly (known as "Donna") who left in 1990 and who, according to Dawn Reed, hardly knew her. Mrs Saradjian said in evidence that this woman had told her that Dawn Reed had described her own background as "troubled". This sounded implausible and indeed quite inconsistent with Dawn Reed's own attitude towards her family background (and her mother's sworn evidence). Upon closer examination, the story was said to have come via Dymphna Donnelly from an unnamed "mutual friend". That simply will not do. That is third hand gossip. Mr Bishop pointed out that Professor Barker had also referred to Carol Welsh telling them that Dawn Reed "appeared to have a troubled background". Yet this did not greatly assist, since no solid basis for the claim was produced. A reader would have assumed that the Team had such a basis for casting her in that light. When Dymphna Donnelly finally came to give evidence on 24 April, none of this was addressed. She had nothing relevant to say. Her main point seemed to be that Mr Lillie had gatecrashed a party when he was about 25 and presented himself for a lift in someone's car without being invited. At this point I felt that the Defendants' case was drawing close to the bottom of the barrel.
  743. Another aspect of stereotyping in the Report was to include the proposition that Dawn Reed had lived with her grandmother when growing up. Of course, literally that was true but the crucial fact omitted was that she also lived with her mother in a somewhat extended three generational family environment. The Team knew this. It becomes obvious that the Team included these vague allegations about Dawn Reed as established fact because they thought they would be treated by the readers as providing significant support for the image they had decided to portray.
  744. The attitude taken by Mrs Saradjian was that Dawn Reed could have come along and spoken to the Team and provided them with the relevant information; since she had chosen not to, the Team were entitled to reach such conclusions on what they had (i.e. in this instance gossip). It was thus, in a sense, her own fault that she was misrepresented. So much for independence and objectivity. I thought Mrs Saradjian's off the cuff response very revealing. Still, however, these are aspects of the Report that are consistent with prejudice and undisciplined mental processes. Such matters, standing alone, are not to be equated with the concept of express malice.
  745. Although the Team appeared to set such store by people's "opinions", there was an obvious slant in the process of selecting which to rely upon and which to reject. They chose to omit opinion if it was favourable to Miss Reed. The classic case was that of Mr Kevin Hattam, her trade union representative, who had said that either she was innocent or "a brilliant liar". Professor Barker regarded him as biased. It was therefore inappropriate to give any weight to his assessment, even though the Review Team had been especially keen to invite his impression (since he had seen more of Miss Reed than most other witnesses). Moreover, Mr Hattam's reservations about the disciplinary proceedings (being the "strangest" he had ever encountered) could be put to one side because they had it from Mr Graham Armstrong himself that the disciplinary procedures had been fair.
  746. Another assessment the Team chose to ignore was that of Det. Sgt O'Hara, given in interview on 18 April 1997. He expressed his opinion that Dawn Reed was not a child abuser. The Team's response was "So you are still struggling with that a bit?". This observation to the police officer (which might be thought a little patronising) is echoed in the Report (page 113), where the Team commented that "Joyce Eyeington was frank with us when she said that she struggled to believe the allegations". It appears that the Review Team were operating on certain assumptions, such that anyone who gave Christopher Lillie or Dawn Reed the benefit of the doubt must either be biased or "struggling" to overcome prejudice.
  747. They went on to inform Sgt. O'Hara that Mr Lillie and Miss Reed had chosen to work together. This was incorrect as it happens, although another member of staff (Carol Welsh) was under the impression during her interview, in August 1996, that they had opted to stay together. The officer said this was "news to me". He then recalled how he had addressed the possibility of a sexual relationship between Mr Lillie and Miss Reed and concluded "I very much doubt it". This the Review Team also brushed aside with the banal words, "Well, they say opposites attract". Professor Barker simply dismissed the officer's views on the footing that he was "operating on a basis of having a stereotype of what abusers of children were like, which Dawn Reed did not fit".
  748. It began to emerge in the course of the trial that the Review Team had an ambivalent relationship with the police. They appeared to feel beholden to them for allowing them to see the video recorded interviews with the children (as the parents had requested). Some members of the Team appeared to think that there was an agreement or understanding with the police that, in return, they would not criticise social workers and/or police officers over the way the interviews were handled. Mr Wardell, on the other hand, did not believe this to be the case. Eventually, Professor Barker admitted, "My memory is that there probably was".
  749. There is no doubt that the Team were reminded by the police in writing that there is a statutory scheme for dealing with police complaints and, accordingly, they formed the view that it was no part of their function to criticise police officers. I was also told by Mrs Saradjian that there was a letter from the police asking them, in effect, to "go easy" on Helen Foster when interviewing her. The letter was only produced late in the day (on 18 April) and I have set it out above together with Professor Barker's reply (see paragraphs 1186-1187). Detective Inspector Findlay referred in interview to that letter, in which she had apparently been described as being "upset" by the inquiry. He said: "Did you get that letter about Helen Foster? …I really mean it. I want you to give very serious consideration to that; this enquiry had a terrible effect on her".
  750. Mrs Saradjian said that they did not want to upset her further. Miss Foster was the officer who conducted or supervised the controversial interviews with Child 14. It was to her, therefore, that questions needed to be directed as to the serious issues raised by Holland J when the trial collapsed. Mrs Saradjian accepted that there were questions they would have liked to ask – but they chose not to. Again, very revealing. It begins to look as though they were indifferent to the answers – answers which Holland J had explained were so crucial. Indifference to the truth can, of course, in certain circumstances provide evidence of malice.
  751. I strongly suspect that if it had not been for a passing reference to it in the Campbell Findlay interview the "go easy" letter from the police would never have seen the light of day (as it eventually did only on 18 April 2002).
  752. So far as the suspicious gap in the tape recording of this interview is concerned, they accepted, without even questioning it, the explanation that Helen Foster had forgotten to ensure that the tape was switched on.
  753. This is a very important aspect of the Report. The Team gave the world its assurance (which the readers had to take at face value) that the child's evidence of rape was "powerful" and "persuasive" and, by strong implication, also consistent over three separate interviews. Even in 2002, Mr Wardell ventured to suggest in his evidence in chief that the videos were "of an exceptionally high standard". Yet the truth was that Professor Barker, at least, regarded them as "inconclusive". In certain respects, so too did Mrs Saradjian.
  754. It is to be remembered how critical that last section of the third interview was for Mr Lillie. He had just been given bail on 22 October 1993 when, after the child had finally got round to accusing him of rape, he was immediately re-arrested and thereafter remained in custody for the next nine months. The accusation of rape was made in circumstances powerfully castigated by Professor Bruck (see paragraphs 416 and 782 above).
  755. Yet none of this was questioned by the Review Team. The readers were not to know that they were "going easy" on Helen Foster. They were entitled to assume that the matters had been independently and carefully investigated and that Holland J's concerns would have been thoroughly addressed. The Team felt qualified to ladle out praise to Helen Foster and other officers. It was thus vital for the public to know that they were not being even-handed. It was a one-way valve. They regarded themselves as disqualified from criticising and, what is more, had not asked questions that needed to be asked (and this as a matter of policy).
  756. There is thus, to say the least, a hollow ring to the Team's claim on page 24 of their Report that they had uncovered "as full a picture of the events under investigation as is humanly possible". It was ludicrous to make such a claim when they set out to empathise with witnesses and proceeded on the uncritical footing that they were being told the truth. Moira Luccock of the Independent Persons Scheme was asked about the inquiry process that she and her colleagues had been overseeing (and to which they gave a clean bill of health):
  757. "… 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".
  758. It is true that she said this specifically in the context of complainants rather than police officers, but it has not been suggested that the Team adopted a more testing process in some cases than others. Such an approach may be suitable for some forms of inquiry but its limitations are obvious. It is certainly not a legitimate way of determining issues of guilt or innocence of criminal offences such as rape or indecent assault with a view to publication. Yet the Team were not frank with their readers about the limitations of their inquiry. They tried to have it both ways by claiming publicly to have been "robust" and to have provided "as full a picture … as is humanly possible".
  759. The members of the Review Team knew about the worrying break in the tape. They knew it was "unfortunate", and Mrs Saradjian accepted it looked "fishy". But none of this was mentioned. They shut their eyes to it and refrained from asking the questions that cried out to be asked. Readers would assume that the fulsome praise of the interviewers would have only been included in the Report after an exhaustive exploration of their methods. It turns out that this was simply not done. They had been reminded that it was not for them to investigate criticisms of the police. Yet the other side of the coin would surely be that they were equally disqualified from covering them with glory.
  760. Mr Wardell was in difficulty over the gap in the tape. On the whole, he came across as a decent man trying to be as frank as he could. He seemed modest, level-headed and restrained in his account of the Review Team's task. Weasel words did not come naturally to him, but even he succumbed on this occasion. I asked him on 22 February whether he was then saying only that he found Child 14's second interview "powerful", or whether as the Report states he found all three "powerful". He replied:
  761. "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.
  762. Moreover, the Team members were not just neutral or silent. They gave an assurance generally that there were no leading questions. On 8 February Professor Barker went so far as to concede that "… it was too strong a statement on reflection". He repeated that concession on 17 May. That is a classic example of Professor Barker's trying to hedge his bets. He knows the assurance was untrue. Each of the four members of the Review Team had viewed the Child 14 video-taped interviews. Moreover, each Team member had seen Professor Barker's note of the Child 10 interview in which he expressly refers to "leading" questions. Each of them therefore knew it to be untrue. It was obviously untrue, and the readers had no way of forming a contrary opinion.
  763. In the light of these matters, I am afraid that I have been unable to come to any other conclusion than that the bland assurances given to the public about Child 14's video evidence were not given in good faith. There is just too much brushed under the carpet for it to be explicable by carelessness or accident. The police were obviously anxious to keep Mr Lillie in custody. He was about to get bail, and the only way he could be re-arrested was if a solid new allegation came into their hands. An allegation of rape was obtained in the most oppressive circumstances, at the end of a third hour long interview, and only after the tape had been mysteriously switched off for 15 minutes. Armed with that, the police went straight off to re-arrest Mr Lillie and to deprive him of his liberty until he was acquitted the following July. Yet the Review Team deliberately refrained from exploring any of this with the police; instead they reassured the public that nothing was amiss. It was conceivable that the suspicious circumstances surrounding the events of 22 October 1993 could be explained quite innocently. But that had not happened by November 1998. The Council had a right to be told the truth and the Review Team misled them.
  764. No account was taken, either, of the fact that Child 14 herself appeared on Panorama in 1997 on the same programme as Mrs Saradjian, and gave yet another version of what happened to her. This was not apparently thought in any way to undermine her reliability. Indeed, on 22 February Mr Wardell told me that it did not affect the Team:
  765. "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.
  766. The other insurmountable hurdle for the Review Team is that part of the Report where they appear to claim corroboration for the allegations of a paedophile ring and involvement in pornography. They did not need to make such grave and disturbing allegations. The simple truth is that no evidence was found to corroborate them. Yet the Review Team wished to convey these horrible smears to the public as being justified by their three years of careful investigations. They grossly misrepresented the position in at least four respects. As I have already explained, the police were satisfied (1) that there were no concerns about the named young man with the camcorder, and (2) that there was nothing to put the older man of distinctive appearance, or (3) the man with a disability, or (4) the woman with red hair "in the frame" for child abuse. Unfortunately, the public were not to know this. They were given the impression at pages 217 and 269 of the Report that the police investigations had provided corroboration for what the children had said (or rather for what various adults had construed them as saying).
  767. The Team witnesses tried swearing by the card. They suggested that what they meant was that the police had found that people existed physically corresponding to the descriptions given by the children or their parents. What obviously mattered, however, was not whether such persons existed but whether they had ever been present on occasions of child abuse. That was emphatically not corroborated. There was no point in mentioning them in the Report unless it was to suggest that there were grounds to link them with paedophilia. The explanation given, therefore, was feeble and disingenuous.
  768. The argument was raised by the Review Team in closing that it was not only the Review Team who "considered" or "concluded" that other people were involved in abusing the children. They cite individuals who expressed "opinions" to their inquiry, but it is crucial to focus on the distinction between opinion, surmise or guess-work on the one hand and evidence on the other. Particular examples cited were Julie Kinghorn, Helen Foster, Vanessa Lyon and Dr San Lazaro. The Review Team can hold whatever opinions they wish, but they were being paid to look into the facts and present a measured appraisal of the evidence. It is that which they chose to misrepresent. The personal opinions of Vanessa Lyon and Dr San Lazaro are not evidence. They were lacking in balance and objectivity, but the Review Team as private individuals were entitled to agree with them. Yet the Report was supposed to be authoritative and what they were not entitled to do was to pretend that the police had found corroborative evidence. Neither Julie Kinghorn nor Helen Foster ever gave any support for that proposition.
  769. The Review Team praised the police for their vigour and, in particular, they praised Mr Campbell Findlay. I have little doubt that, if he had dug up a shred of evidence to support the paedophile theory, he would have pursued it to a conclusion. Any police officer involved in the inquiry would be under a duty to protect local children from exploitation and abuse. Yet nothing was found to link any of the "suspects" to impropriety of any kind. What the Team did was dishonest. They told the public that these "vigorous" police officers had turned up (unspecified) evidence but that it was not strong enough to be used in court. In other words, these hardworking officers were subtly portrayed as having been let down once again by the inadequacies of the law of evidence. I will not permit that to be brushed over. It was a mischievous falsehood. It put not only the Claimants in danger but several other quite innocent people (against whom nothing has been turned up in the last nine years).
  770. What is said on the Defendants' behalf in their closing submissions is that "the paragraph could be better phrased to make it clear that it was the children's evidence and not any other evidence". This is said to be clearly attributable to "loose thinking and/or wording and not evil intent". That was not how it was put by the Review Team in evidence. Professor Barker tried to shelter behind a proposition which could not be tested or refuted – namely, that Campbell Findlay had said something off the record (to the effect that they had found some corroboration). That was not true. The other two Defendants who had been present (Mrs Saradjian and Ms Jones) accepted that nothing had been said off the record to confirm the particular identifiable individual's involvement in paedophilia.
  771. One can also detect the same subtle techniques at work on page 100 of the Report in relation to Child 22 where the negative anal findings are converted into "no conclusive forensic evidence of penetrative trauma" (emphasis added). Again the false impression is given that there was some evidence.
  772. I cannot see how these grave allegations can have been given currency and the apparent stamp of authority in the Report without the Review Team knowing exactly what they were doing. They each went through the Report line by line and approved it. They knew what the police had been saying about lack of corroboration, but despite this they allowed it to go forward as part of their conclusions that there were solid grounds to corroborate the Claimants as being part of a paedophile ring, together with some of those identifiable local residents, and as also being engaged in child pornography. This is deeply worrying.
  773. This matter is closely linked with the passage at page 269 of the Report which refers to photographs taken from the flat where Mr Lillie had been living. Not only did Mr Lillie and Lorraine Kelly go into the witness box and explain about the photographs, but the Review Team were told years ago by the police that, after going through everything with a fine tooth comb, they had found nothing to support any suggestion of impropriety or pornography. Yet, for no reason whatsoever, the Review Team chose to announce to the public that Mr Lillie's explanation for the photographs "was probably false". Since Detective Inspector Findlay had been painstakingly through them all, and they had not, it is difficult to see how they could say that in good faith. It was deliberately and gratuitously added.
  774. Between pages 209 and 217 of the Report, various striking examples are given of child abuse and, in particular, of penetrative injuries. It is baldly stated that:
  775. "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.
  776. They had not even discussed the matter with Dr San Lazaro in interview, despite the fact that the mother had waived confidentiality in respect of medical records. Professor Barker admitted that to him, as a layman, it had seemed unlikely that such an example of penetrative abuse would be consistent with no physical findings, but they all apparently so lacked curiosity about this serious example that they did not pursue it with a paediatrician. Again this betrays at the very least a determination not to pursue elementary lines of inquiry which could conceivably undermine their conclusions on these desperately grave allegations.
  777. Moreover, no concern appears to have arisen over the mother's developing and changing story. In 1997, on Panorama, the story had become embellished by the presence of Mr Lillie who was said to have been "laughing" while the cutlery was inserted. This detail was introduced at least four and half years after the event could possibly have happened. The mother then alleged that this outlandish piece of cruelty by Dawn Reed happened more than once. Yet none of this gave the Review Team pause for thought at all.
  778. I have already referred at some length when considering the Review Team's evidence (at paragraphs 1225-1230 above) to their failure to explore with staff members the children's allegations that one or more of them had been present on visits to places outside the nursery when abuse is supposed to have taken place. This too was such an obvious line of inquiry to be pursued. I can only conclude once again that the Review Team did not want to know. Despite this, they represented to their readers that they had come to their devastating conclusions after a painstaking analysis of the evidence. Some of their readers clearly believed that. For example, Jennifer Bernard said that she had been so persuaded. She had already left the employ of Newcastle City Council by the time the Report came out and I have no idea how carefully she read it, but it did not take very long for others to see through it (e.g. Mr Dervin, Mr Cosgrove and Mr Marron).
  779. From time to time, Mr Bishop tentatively sought support for his Review Team clients from the attendance of representatives from the Independent Persons Scheme. I am quite sure that those involved in that Scheme often do an excellent job in trying to ensure fairness in the kind of inquiries for which their services would normally be required. On the other hand, most of them would not have the relevant knowledge or expertise for determining "charges" against Mr Lillie and Miss Reed. As Moira Luccock pointed out on 1 March, the Shieldfield experience was unusual if not unique; that is to say, the attempt to carry out an investigation generally as well as dealing with individual complaints. They normally deal with "single complainants".
  780. It is against that background that Moira Luccock's views have to be assessed. Mr Bishop introduced the opinions she expressed at paragraphs 32 and 35 of her witness statement. She described the Review Team's investigative process as "open, detailed, thorough and fair" and expressed the view that the Review Team's conclusions were "based on a comprehensive analysis of the evidence collected". There was no "inherent bias against Lillie and Reed" and, moreover, they "came to their findings after the conclusion of a thorough investigation". (It is ironic, perhaps, that she should be making such a claim when she had already told me, shortly beforehand, that even before the Review Team began its task it had become "clear" that the Council was "dealing with a multiple abuse situation".)
  781. I have no doubt at all that those are the honest beliefs of Moira Luccock and her colleagues. Yet I am bound to come to my own conclusion on these matters on what I have read and heard in this trial. My conclusion is quite the opposite. With the benefit of fuller investigation, it is apparent to me that Moira Luccock's assessment is simply unsustainable.
  782. I mentioned earlier that for a fact-finding tribunal it is especially helpful to focus on moments when a witness's mask slips. During the course of the City Council's evidence, other examples of Professor Barker's true character came to light from contemporaneous documents. First, there was the incident involving Mr Hattam. He was a trade union representative whom various staff members wished to have accompany them when being interviewed by the Review Team. Various City Council witnesses recalled this controversy which had flared up in 1996. Professor Barker (perhaps with the assent of one or more of his colleagues) took objection to these witnesses being represented by the union official of their choice. The reason he gave over the telephone to Mr Warne on 24 July 1996 was that Mr Hattam was biased because he seemed to believe that Dawn Reed was innocent.
  783. The relevant paragraphs from Mr Warne's note should be set out in full:
  784. "[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".
  785. It is not easy to understand such a mentality. Yet the episode sheds a flood of light on Professor Barker's lack of objectivity and his willingness to use his position to bully.
  786. Secondly, there was the unpleasant attitude displayed at around the same time to one of the City Council's solicitors, Ms Barbara Milligan, who dared to question Professor Barker's summons to attend upon the Review Team and be interviewed. She wondered exactly how she could help and what areas they wished to ask her about. She not unreasonably inquired by letter in April 1996. Professor Barker responded by telephone on 29 April (according to a contemporaneous note) that it should be enough that they had asked her to attend. He also said to her over the telephone, according to the City Council note I was shown, that the only other people who had declined this summons were Christopher Lillie and Dawn Reed. He asked if she really wanted to find herself in that company. Not surprisingly, she did not care for his tone. For sheer nastiness, it takes the biscuit.
  787. After a three month gap, Professor Barker returned to the witness box on 17 May in order to deal with these apparently telling conversations. As to Miss Milligan, he said that he had not seen the note of 29 April 1996 until recently and he was somewhat shocked by it. Miss Milligan had obviously got it wrong. He remembered the conversation. Mr Wardell was in the room at the time and had complimented him on how polite he had been, especially in view of Miss Milligan's "aggression".
  788. He had to agree that Miss Milligan could only know that the only two people who had declined to meet the Review Team were Christopher Lillie and Dawn Reed if she had been told as much by him. He agreed that he also told her that, if she refused, her name would be put in a list at the back of the Report (the only other candidates at that stage, as it happens, being the two Claimants). Those admissions take Professor Barker right up to the wire – he draws back only from accepting that he issued a warning as recorded. I do not believe that Miss Milligan, a senior solicitor, would have recorded the "warning" in those terms if it had not happened. She could hardly mistake it; nor had she any reason to make it up.
  789. Miss Page pointed out that a similar "warning" had been given to Joyce Eyeington. It is set out in her witness statement and was not challenged when she gave evidence. She too was told that it would look bad if she did not come and meet the Review Team. Her name would be included in the list.
  790. Henry Warne had made another note. This was dated 19 April 1996 and concerned yet another potential solicitor witness, Mr Stefan Cross. Mr Warne recorded that Professor Barker was saying that he would write to Mr Cross with a "final warning" that he would be listed as one of the few people refusing to attend. He told him also that otherwise it was only Christopher Lillie and Dawn Reed who were refusing. According to Professor Barker, Mr Warne has also got it wrong. But I do not find it credible that both Mr Warne and Miss Milligan had got hold of the wrong end of the stick. The pattern is a consistent one. I think Miss Milligan's record is likely to be accurate.
  791. So far as Mr Hattam is concerned, Professor Barker rather surprisingly said that he personally did not have a problem about what Mr Hattam believed. His objections were rather based on the fact that some nursery workers and some social workers did not want to be represented by Mr Hattam because it was perceived (either by them or by parents) that he would have a conflict of interest. It is difficult to see what would be the nature of the conflict. Yet this seemed to be a new allegation. I had never heard of it before. There seemed to be no record of such concerns. Nor was Professor Barker able to identify any of the individuals who were supposed to be concerned. It did shortly afterwards emerge that there was at least one person who did not wish to be accompanied by Mr Hattam. Vanessa Lyon told me on 23 May that she had been vigorously cross-examined by Mr Hattam during the disciplinary proceedings and would rather have another trade union officer when she came to be interviewed. This was, however, a matter of personal distaste and nothing to do with any conflict of interest.
  792. Vanessa Lyon's evidence thus supports Professor Barker's recollection up to a point. But yet again there were contemporaneous documents which appeared inconsistent with his claim to be neutral over Mr Hattam. He was shown a note of 23 July 1996 of a meeting between Ms Bernard, Mr Armstrong and Mr Warne in which it was recorded as being Dr Barker who was "unhappy" about Mr Hattam representing nursery staff. Once again Professor Barker deftly shifted his ground. He might have been "unhappy" after all – but only because of the perceptions of others (that Mr Hattam was in a position of conflict).
  793. There was the other note of Mr Warne (quoted above) dated the next day. He recorded Professor Barker's view (expressed on the telephone) that Mr Hattam had a "strong personal bias" which rendered him unsuitable to accompany staff when being interviewed. Once again Professor Barker claimed that Mr Warne had got it wrong. That one sentence alone was inaccurate. I am quite satisfied, however, that he was accurately recording Professor Barker's stance which, at that time, was something of a bone of contention. The attitude of the union was, in effect, that it was none of Professor Barker's business. Employees could be accompanied by a trade union official of their own choice.
  794. As Miss Page pointed out, if the position truly was that some members of staff wanted him, and others (e.g. Vanessa Lyon) did not, that was easily accommodated. There was no problem. The only issue that gave rise to these discussions was the fact that Professor Barker was trying to interfere by precluding some witnesses from having the trade union official of choice.
  795. This was a matter on which Moira Luccock of the Independent Persons Scheme also gave evidence. On 1 March she said she recalled the issue, at least in general terms. It seems to have been her recollection also that the matter was raised by Professor Barker rather than staff. What she said was this:
  796. "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".
  797. The matter was finally resolved when Barbara Hann, the UNISON Branch Secretary, wrote to Jennifer Bernard on 30 July 1996, pointing out that her members at Shieldfield Nursery were extremely concerned, as they had great confidence in Kevin Hattam, and wished to be represented by him. She pointed out that it was illogical for them to be deprived of his services when he had acted for them in the Part 8 review. She added, "UNISON therefore feels it must insist that Kevin is permitted to represent the members". Professor Barker then gave way and informed Jennifer Bernard that, "having made their point", the Review Team would no longer object (see her memorandum to Mr Warne of 1 August 1996). Barbara Hann was in a position to stand up to Professor Barker. Others were not so fortunate.
  798. What is revealing about these episodes is not so much that Professor Barker was becoming too big for his boots, but that he was plainly incapable of keeping an open mind or approaching the search for information dispassionately. In my judgment it is manifest from what he said to Ms Milligan that his claim in February 2002 to have retained an open mind about Dawn Reed until December 1997 was simply not truthful. Nor was the claim (at page 19 of the Report) to have guaranteed "natural justice for all those involved".
  799. Another strange and revealing aspect of the Team's approach to evidence relates to their own experts. They instructed entirely appropriate people to give them advice on some of the matters confronting them, namely Professors Ray Bull and Graham Davies. They are undoubtedly well known experts in the field of child sex abuse investigation.
  800. Unfortunately, those experts were unable to review the video recorded interviews of the children. Nor did the team, even allowing for that important limitation, invite their comments on the quality of the children's disclosures. It was regrettable that the Review Team did not even disclose their letters of instruction to Professor Bull until after the trial was over (on 31 May 2002). They did not disclose those to Professor Davies. What does emerge, however, is that Professor Bull was not supplied with any material about the video interviews or about the children's statements or how they evolved.
  801. Turning to what these experts had been able to provide, I find it curious that the Team seem to have ignored or put to one side the advice received. In particular, Professor Davies at paragraph 9 of his Report sets out the guidelines for good interviewing practice. When comparing his guidance, however, with what went on so far as the Shieldfield children are concerned, it soon becomes apparent that it was not consistent. Nor did they appear to take account of Professor Davies' warning that, even after statements have been elicited through suggestive techniques (intentionally or otherwise), they can nonetheless give the appearance of being spontaneous.
  802. They do, however, address (at pages 220-221 of the Report) Professor Davies' warning against over-zealous questioning. They conclude that in the Shieldfield case the children's evidence could not be explained by "… 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". That conclusion is something Professor Bruck is unable to understand in the light of what they had seen. I too am unable to understand it in the case of persons of their experience, unless they were setting out to misrepresent the situation, safe in the knowledge that their readers would not have the primary evidence and, therefore, lacked the ability to form any opinion of their own. They had to take what the Review Team said on trust. It is, I am afraid, difficult to avoid the conclusion that this trust was abused.
  803. Although the Report (pages 219-20) claims that the Team considered the children's statements in the light of Professor Davies' advice to scrutinise the history of the children's statements, and whether the name of the accused was suggested to the child, there is no evidence that they in fact did so. Readers would, on the other hand, assume that they had done precisely that in arriving at their conclusions and giving their assurances (for example, as to the lack of parental pressure and of suggestive questioning).
  804. Miss Page illustrated the significance of this in relation to the claim that the Team were "convinced of the spontaneity of disclosures particularly in relation to ….. the use of cameras, and syringes". They did not scrutinise the history of the children's statements. This may be partly because it was contrary to their policy of not testing the parents' evidence and partly because they did not take the trouble to do so. It is, however, quite wrong to give the impression that their conclusion was based on careful scrutiny. That is a false claim, just as the Team made false claims about the absence of leading questions, and the supposed corroboration for the paedophile ring and for the taking of pornographic pictures by a named individual with a camcorder. Miss Page invited me to trace through the allegation about syringes to show how "careful scrutiny" would have shown anything but spontaneity.
  805. There are three children primarily relevant to "syringes", Child 4, Child 10 and Child 12. In relation to Child 4, the Team included (at pages 212-3) reference to a child describing injections in the arms, legs and bottoms [sic] that "make me go whoo", allied with the suggestions that "they hurt my fairy" but after injections "it did not hurt". This derives from Child 4's mother's interview with Mrs Saradjian on 8 November 1995. There is no earlier record of the child saying anything to this effect. Prior to publication of the Report, three years later, there was no "scrutiny" of the history of the child's statements, careful or otherwise. The mother has said in these proceedings that the child made claims to that effect only in or later than July 1995. It is extraordinary that the Team showed no interest in establishing this at the time, while claiming to have followed Professor Davies' advice "as far as it was possible to do so". The readers of the Report were surely entitled to know that the allegation first surfaced well over two years after the suspensions. They knew nothing as to the circumstances in which the child (as opposed to the mother) made these statements but yet claim to be "convinced" as to their spontaneity. What they did know was that Child 4 had over the intervening period been subject to a good deal of questioning and to a real risk of cross-contamination (see paras. 615-619 above).
  806. The claim in the Report cannot be true either in relation to Child 12. The words they attributed to him (at pages 212-13) were "nice juice into bottom so it would not hurt". This wording derives from an interview by Ms Jones as late as 8 April 1997. Dr San Lazaro comes on the scene at this point, because she saw the boy on 11 November 1993 and introduced the notion of a syringe. She produced one for him, invited him to use it to transfer juice from one receptacle to another and allowed him to take it home and play with it. That is almost certainly where the notion of "juice" came from. The Review Team knew nothing of this because they had not heeded Professor Davies' advice to scrutinise the history. Again, they could hardly be convinced of the child's spontaneity.
  807. It is right to say that the child is recorded by social workers on or about 9 November 1993 as having told his mother that he had been in bed with "Chris and Dawn" and they had "put a needle up his bottom" (no reference to "juice" or "not hurting"). It is necessary to see this in context. It was the same day that the mother rang for advice about a "wriggly bottom". The GP notes associated this with itching and referred the mother to Dr San Lazaro who saw him two days later. The wriggly bottom appears to have been associated with an anal discharge, and the streptococcal infection was diagnosed. None of this had anything to do with the Claimants. The child was clearly, however, focusing on anal discomfort. The reference to "a needle up his bottom" may have been a pure coincidence of timing but it seems unlikely. To what extent or how Mr Lillie and Miss Reed came into the conversation about the anal discharge or the "wriggly bottom" cannot now be determined. I am certainly not going to assume that their names were mentioned spontaneously and independently of the current discomfort.
  808. The Review Team did also have a note from Kulvinder Chohan to the effect that the child had retracted the allegations on video.
  809. As for Child 10, the relevant passage in the Report is "… another said needles in his bottom 'make him dead'". The words come from the mother's interviews with Mrs Saradjian on 8 and 17 November 1995. Miss Page takes the point that the Review Team altered the sense because what the mother is recorded as saying is "[Child 10] also talked about Dawn putting needles into his bottom that were supposed to make him dead". There is no other record of a similar allegation ever being made by Child 10. I am not convinced that the omission of the italicised words makes a significant difference. What is, however, clear is that Mrs Saradjian did not follow Professor Davies' advice and explore the timing or background to the child's statement. In the words of Ms Jones, "our job was not to cross-examine the parents".
  810. It is thus important to note what has subsequently emerged. In particular, it is accepted in the mother's witness statement that she led the child (understandably) as a result of having passed on to her the allegations apparently made by child 14 in October 1993 involving Child 10 in the context of needles. There is also a contemporaneous note of Helen Foster dated 23 October 1993, which was available to the Review Team and records the mother as having asked the boy if he had been hurt with a needle. He responded, according to this record, that he had not been hurt but it was "a nail with water in the plastic bit that was put on the cheek part" of his bottom. In the light of this background, it is obviously regrettable that the readers were not informed of the circumstances in which the child's comment was elicited (since it could hardly be said to have been spontaneous) or the fact that the emotive words "make him dead" derive from the mother (not the child) two and a half years after the "Shieldfield scandal" had first blown up. Nothing was said by Child 10 in either video interview about needles despite (as Professor Barker expressly noted on viewing them) a number of "leading questions, very focused on getting answers".
  811. Readers of the Report, in the light of such information, might well want to know how it was that the Review Team could have become "convinced of the spontaneity" of the child's alleged disclosure that "needles in his bottom 'make him dead'". Once again it is difficult to see how they could make such a claim. I do not see how this can be categorised as a "regrettable error" or as something which was just "badly expressed". The Review Team gave a positive assurance which cannot have been true.
  812. Mr Bishop argued, generally, that even if the false statements in the Report are not to be categorised as unfortunate slips it would not defeat qualified privilege since they honestly believed that the Claimants used syringes or needles to drug the children. That would be a complete answer to the plea of malice even if this belief were arrived at by a process of reasoning which contained a few unfortunate blips. Lord Diplock himself, of course, makes it quite clear that an honestly expressed belief may be protected notwithstanding its derivation from faulty reasoning. Here, however, I do not accept that the proposition is sufficient to dispose of the Claimants' case.
  813. Many people in Newcastle believed prior to the Review Team's appointment that the Claimants were large scale child abusers. There would be no surprises if the Review Team merely joined the crowd. What mattered about the Review Team, on the other hand, was not their personal beliefs but rather the assurances they were giving to the public about the strength of the evidence in support of the widely held beliefs, following three years of supposedly rigorous and impartial analysis. That is what they were paid for (I was told they received £364,810.61). It was this supposedly detailed consideration of the evidence which distinguished them from the general public and underlay their claim to be able to accuse the Claimants under cover of privilege.
  814. What was so damning in their Report is not that Ms Jones or Professor Barker as individuals assumed, for example, that the disciplinary findings of 1994 were justified but that they and their colleagues were vouching for the evidence. If they misrepresented the state of the evidence, that is very serious indeed. It would suggest that the protection offered by the law was being abused.
  815. I have already mentioned the further warning notes sounded by Helen Foster about parental pressures in her interview with Mrs Saradjian (see paragraphs 1278 above). To pretend that contamination or pressure "could" have no bearing on the case without even addressing her concerns was a gross misrepresentation.
  816. The Defendants submit that "the probability of a team of professionals conspiring … to produce a deliberately misleading document is remote indeed".
  817. At the beginning of the trial I was sceptical about the allegations of malice against the Review Team. I was conscious of the need to prove bad faith in relation to each of its four members and that findings of malice are, accordingly, very rare. I said as much in my ruling of 7 February when I permitted the plea to go forward beyond the close of the Claimants' case. Yet, having thought about the issue constantly over the many weeks of this trial, I am in the end left in no doubt that the qualified privilege to which the Team would otherwise be entitled is vitiated by express malice. They abused the occasion for which they had striven so hard to ensure that blanket protection. Its four members consciously, after a detailed consideration of the material assembled before them, set out to misrepresent the state of the evidence available to support their joint belief that Mr Lillie and Miss Reed and other local residents were child abusers (and indeed abusers on a massive scale) and to give readers the impression that statements by parents and/or children had been corroborated by police inquiries.
  818. Moreover, so far as the accounts of these very young children were concerned, the assurance was given quite deliberately that (leaving aside altogether contradictions and inconsistencies) what they were saying was untainted by suggestions, leading questions or cross-contamination. They knew the contrary to be the case. Yet they even went so far as to assert (on page 102) that interviewers at the time "went to great lengths to the [sic] follow the Memorandum of Guidance literally, to almost have to treat children as though they were adult witnesses" because they were afraid of being accused of "leading" a child. (It is clear that the Review Team actually thought that even more leading questions should have been asked.)
  819. Professor Barker clearly recognises this problem. He admitted in February that the passage (at pages 220-221) was overstated but, significantly, when he returned to the witness box in May, he chose to raise the topic again even though he was not asked about it. He said the claim was rather "strong". Whether he raised it because of a guilty conscience, or just because he recognises the weakness of their position, I know not. Even by that time, Professor Barker had not disclosed his rather scanty notes of the video interviews, but he did so on 31 May. It then emerged that he himself had noted "some leading questions, very focused on getting answers" in relation to Child 10's second interview. This was shared with his three colleagues but not, of course, with the readers of the Report. Mrs Saradjian stated her position on 20 February. She actually wrote the passage on page 221 (to the effect that the questions were not in any way leading). She now says, however, that the claims might have been "slightly strong" but "there were not overwhelmingly leading questions throughout the videos". That is double-speak. Mr Wardell accepted that it would be "the easiest thing in the world to take the videos and find 25 examples of a leading question". Also, as I have already recorded, Ms Jones in the witness box recognised the leading nature of the interview questioning. What is clear is that they all chose to make a blatantly false claim which is quite indefensible. Yet the assurance is given on page 23 of the Report that its contents had been checked for accuracy and consistency.
  820. More generally, the Review Team were full of praise for the interviewing techniques (page iv):
  821. "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".
  822. This is difficult to understand in the light of the actual content of the interviews themselves. Helen Foster herself accepts that things would be done differently today. She was inexperienced at the time because the memorandum of good practice was only just beginning to be implemented. Moreover, she herself was fresh from instruction on the subject and was, at the time, only in her mid-twenties. Indeed in another part of the Report, the Review Team comment in relation to Helen Foster's interview of Child 22 as follows (p.100):
  823. "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".
  824. It is hard to reconcile the lavish praise for Helen Foster (at page iv) with this observation. Two factors come into play, however, which may help to explain the apparent inconsistency. First, it seems that Professor Barker (and, through his cursory notes, possibly the other members of the Review Team) was labouring under the mis-apprehension that it was D.C. Peter Smith who had interviewed Child 22. In any event, neither he nor Helen Foster was mentioned by name on page 100. Therefore the readers would not be aware of the inconsistency. The Review Team's adverse comment here seems to derive from the fact that the interview yielded "little of evidential value" (p.101). In other words, they are prepared to praise an officer if her interview yields allegations which can be construed as adverse to Mr Lillie but to criticise the same officer if the child appears to exculpate him. It can hardly be said that an interview is of little evidential value if the child expressly states (as Child 22 did) that he liked Christopher Lillie changing his nappy and, what is more, that nobody had hurt him at the Nursery.
  825. In any event, why Marion Harris was mentioned in this context is incomprehensible, since she carried out none of the relevant interviews. Mr Bishop says the wording was just badly expressed and they were intending to praise Marion Harris for her work generally, but that is not what they said.
  826. At page 102 of the Report the Review Team assert of Child 22, "Here was a child who would later allege that he had been taken to houses which he did not know, to be hurt by someone who had told him that his mother approved and knew". This allegation cannot be tracked down to any statement by the child or even by his mother. Mr Bishop took the point, when Miss Page sought to rely on this, that the allegation had never been put to any Review Team member. I am not sure this is a valid criticism, since if his clients wished to source the allegation the information could easily have been placed before the court. Neither side has felt at all inhibited about sending me additional material since the case concluded. I made it clear that I welcomed anything they wished to present.
  827. I also find it odd that two members of the Review Team (Ms Jones and Mrs Saradjian) left the viewing to Professor Barker and Mr Wardell, save in respect of Child 22 and Child 14, and yet were quite prepared to join in the general hymn of praise. One is left with the firm impression that they were going through the motions. How can they possibly be "struck by the quality of the work" in video interviewing if they have not seen it? It is merely formulaic. They were supplied with no more than eight pages of cursory notes by professor Barker covering 18 videos – not disclosed until 31 May 2002 (three days after the evidence concluded and three months after their cross-examination) – one of which expressly refers to "leading questions" directed at Child 10.
  828. Miss Page at the beginning and the end of the trial explained why, in her submissions, the Review Team were making so many misrepresentations, all consistently in one direction. It could not be a series of haphazard errors, she argued. It is on the balance of probabilities only explicable as a "stitch up".
  829. I do not need to adopt her phraseology, but to anyone who has read the Report, and considered the many pages of evidence from the Review Team, the facts speak for themselves. The Team made a number of claims in the Report which they must have known to be false. I should now attempt to gather together and summarise the most striking examples:
  830. 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.
  831. No doubt it could be argued that these false claims made in the Report betoken a cavalier approach to the evidence from which it would be fair only to infer recklessness (i.e. indifference to portraying an accurate picture of the evidence). In view of what they knew, however, and the consistent pattern of their false claims, I can only infer that they were aware that these specific claims were untrue.
  832. Indeed, the Defendants' submission through Mr Bishop is that it is inherently probable that a Report of over 300 pages will contain a considerable number of errors. I do not accept that this is necessarily the case, especially where it is claimed by the Review Team themselves that they checked it line by line. I am certainly not prepared to explain these falsehoods on that basis because, as I have said, they point consistently in one direction and go to fundamental conclusions in the Report.
  833. One can test it this way. Suppose a reader were to subtract two of the false statements from the Report, by way of example, and to substitute the truth; the overall impact of the Report would be significantly altered. I will take first the assurance that there were no leading questions in the video interviews. The truth is quite the opposite. The Review Team now accept that the sentence should have been "phrased differently". For convenience, I will phrase it differently using the words of the Defendants' own expert Dr Friedrich from his supplementary report:
  834. "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).
  835. The second false statement I will use is that from page 269 of the Report that "the evidence was not strong enough to be used in court". Suppose one substitutes the truth:
  836. "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).
  837. I do not believe it could seriously be suggested that, if the Report had contained these true statements instead of the false ones, its overall message and impact would have been no different.
  838. Take away from the Report the paedophile ring. Take away pornographic filming. Take away "powerful" and reliable disclosures made by the children in police interviews. It would be a quite different report. These fundamental untruths cannot be put down as "accidental errors"; nor yet to the proposition that "drafting is itself a particular legal skill" (as it was put in closing). Mr Bishop emphasised that it is not necessarily malicious to mis-state a fact. He said (again quite correctly) that it may be possible to account for such mistakes because of mis-remembering what one has been told or mis-reading a document. The pattern here, however, is so consistent, and on such fundamental findings, that it would take convincing explanations by the Defendants as to how such mistakes had occurred. None were forthcoming. Professor Barker, for example, did not say that he had made a mistake and mis-remembered what he had been told by Campbell Findlay. He tried to pretend that Campbell Findlay had said something when the tape was switched off. It is, of course, for the Claimants to prove that the members of the Review Team knew that what they wrote was false when they wrote it, approved it or promulgated it. I accept that. The burden has been discharged, since I do not believe that all the mis-statements of essential facts could possibly have survived the detailed checking and discussions that went into the formulation of this Report. After all, it is not the Defendants' own case that they did not bother to check any of the relevant material before they wrote these misrepresentations. That would, of course, be strong evidence of indifference to truth. What they claim is that the Report was drafted over months and carefully checked by each of them.
  839. There are certainly other flaws in the Report such as, for example, that they were significantly influenced in arriving at their conclusions by the outcome of the disciplinary proceedings, by the Claimants' silence (on legal advice) at the time of the disciplinary proceedings and during their own review, and by the findings of Dr San Lazaro which are in so many ways now open to question. Those flaws, however, do not demonstrate malice in themselves since they could be explicable by either defective reasoning or misfortune. But one is left with an irreducible minimum of knowingly false claims which cannot be explained on such a charitable basis.
  840. Some of the statements made about the Claimants and about the evidence available to the Team were cavalier, in the sense that they disclose a perfunctory level of consideration when viewed "against the substance, gravity and width of the publication" (see the above citation from Lange v. Atkinson), so as to be consistent with a finding of indifference to truth. To take but one example, they claimed on page 41 of the Report that Child 14 alleged rape in her first video interview when she did nothing of the kind. This is surely not one of those cases where it could possibly be claimed that "a genuine belief in truth after relatively hasty and incomplete consideration may be sufficient to satisfy the dictates of the occasion" (see Lange at paragraph 48). By whatever standard, it seems to me that this statement was made recklessly. Yet, in the end, the case on malice succeeds because the Claimants have demonstrated, in the respects I have identified, knowledge on the part of each relevant Defendant that the material they were putting forward to support their conclusions was being misrepresented to their readers. Even if, therefore, Mr Bishop is correct (as I am assuming) in saying that I should not take the New Zealand decision into account at all when considering the notion of recklessness, as a matter of English law, it would make no difference to the outcome.
  841. Mr Bishop emphasised that, when shorn of the accumulated learning on the subject, the issue of malice is in essence about motive. He asked me to focus on what possible motive the Review Team could have for wishing to damage the Claimants. The answer is, I believe, intimately connected to the history of their inquiry and the muddle over the terms of reference.
  842. As Mr Wardell put it they had, when they began their task, two names on "a piece of paper". That is to say, they had Christopher Lillie and Dawn Reed as the likely perpetrators of multiple abuse. He went on to say that they might have added other names in due course, if evidence had emerged; alternatively, they might have removed one or both of the primary candidates. There is, however, no evidence to suggest that it ever entered their heads to remove either of these names. They were working throughout on the basis that there had been multiple abuse and that all the "evidence" pointed to those two people.
  843. As Moira Luccock made clear, everyone at the City Council had decided that they were dealing with a multiple abuse situation. What is more, the Claimants had been suspended and dismissed on exactly that basis. As Professor Barker made clear, those findings constituted "one of the main influences" upon the Team's conclusions. That was obviously not something that emerged. They knew about it before they even started.
  844. Their inquiry was directed originally, and primarily, to making recommendations for the future and dealing with parental complaints. It only became apparent later, and apparently incidentally, that they could only expect to perform those tasks if they also made findings as to what had happened and who was responsible. It seems that their main concern with the Claimants was not to investigate with an open mind, or to appraise the quality of the evidence against them, but rather to offer thoughts on what had motivated them and how to avoid the appointment of paedophiles in the future. In so far as it became part of their task to pronounce upon their guilt of multiple criminal offences, their procedures were quite unsuited to performing it with any semblance of fairness or natural justice. What they did was to assemble arguments, theories and selective bits of evidence and use them to justify the assumptions they had made from the outset.
  845. They claim now to have had open minds throughout a large part of their inquiry process. For reasons I have set out I do not believe that, but it would simply not have been in any way compatible with their methodology. They deliberately chose to proceed on the footing that complainants believed what they were saying and that they were not to be challenged or tested. The findings against the Claimants were made almost as a matter of formality. They were just seen as two "perpetrators" or "abusers" who were to be tidied away to make room for the Team to get on with their recommendations and pronouncements. That is why in my judgment they treated them as they did and how they came to distort and misrepresent the evidence against them.
  846. The Review Team chose to promulgate to the Council and to the wider public what was recognised within days (by Mr Cosgrove and Mr Marron, in particular) to be a specious and disreputable document. They must have appreciated the harm they would do to the Claimants and indeed the physical risks to which they were choosing to subject them. But they were left to learn about these horrendous allegations for the first time through saturation media coverage. That lacked not only fairness but also humanity. Yet the Team even made the false claim that they had been given advance warning of the allegations and findings and a chance to respond.
  847. I find my conclusion depressing and I am sorry that I have had to draw it. But it is unavoidable.
  848. I have little doubt that the Review Team thought they could publish more or less whatever they wanted about Christopher Lillie and Dawn Reed with no consequences adverse to themselves. (Nor do I doubt that Mr Flynn thought the same when he made his arrogant claim that they were guilty immediately after they had been acquitted. I expect Dr San Lazaro took the same approach when she made her "overstated and exaggerated" assertions to the Criminal Injuries Compensation Board.) Not only did the Team have advice about qualified privilege, but they almost certainly assumed (as would the Council members and officers) that this beleaguered pair would not have the resources to claim legal redress. They were undoubtedly right about that. Had it not been for the introduction of the contingency fee arrangements a few years ago, and the courage and dogged determination of their various legal advisers, the Review Team's methods would not have been uncovered. They and the Council would simply have ignored Mr Cosgrove and Mr Marron. A significant injustice would thus have gone unnoticed.
  849. Yet by the end of the case it seems that the Review Team were even directing their sights on Mr Marron. It will be recalled that he was the Queen's Counsel who led for the prosecution against Mr Lillie and Miss Reed in 1994. He was one of the first (along with Mr Cosgrove) to blow the whistle on the Review Team's methods (see section 3 above). He had nothing to gain and was clearly acting simply out of a regard for fairness and decency. The Review Team, however, submit:
  850. "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".
  851. This contention contains a misrepresentation and a misunderstanding. The misrepresentation is as to what Holland J had said about what was probative of Miss Reed's innocence. He did not say that "the evidence in the case" was more probative of Miss Reed's innocence than guilt. What he said was confined to the interviews of Child 14 (i.e. the Crown's strongest case). What his Lordship said was that there was no basis upon which a jury could be sure and satisfied, on the evidence of Child 14, that Miss Reed was guilty of Count 3. He added that there was "a rather better basis for being sure and satisfied that she is innocent of that particular charge".
  852. The misunderstanding is as to the role of a conscientious prosecutor. What Mr Marron did, as I have already explained, was to seek a ruling from the trial Judge under s.32A of the Criminal Justice Act 1988 in respect of the confusing and contradictory evidence of a four year old child about events alleged to have taken place when she was either two or three years old. Mr Marron had a sensitive and difficult task. What he did was entirely proper and it is unfortunate that the Review Team should take the opportunity in these proceedings to suggest that his conduct was "open to serious criticism". It was quite inappropriate. However much the Review
  853. 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

  854. Because the City Council relied upon various privilege arguments, I was required to take a closer look at the circumstances in which it came to publish the Report on 12 November 1998 and thereafter. It had been decided long before the Report was written that it ought to be published come what may – and whatever it contained. The reasoning was perhaps commendable in general terms; namely, that the inquiry should be carried out independently of the City Council and uninfluenced by it. It would command no confidence from the public at large, and parents in particular, if it could be perceived as lending itself to a "cover up".
  855. The four people selected for the Review Team were supposed to investigate what had happened, what had gone wrong (if anything), and to make recommendations to minimise the risk of similar problems in the future. It was on the cards that they would find fault with Council employees, past or present, and it was thought important that they should be free to do so without interference. Moreover, it was thought from an early stage that one of the conditions necessary for true independence was that the Report should be published unedited. This was a regular theme in the evidence of Council witnesses and I have no doubt that this was the general view from the period before the appointment of the Review Team right the way through to publication.
  856. One of the main problems, however, was that this philosophy was taken to unnecessary lengths. Obviously if officers or elected members were in some way to tamper with the content of the Report, or to censor it for reasons of self-protection, that would defeat the object. But I am quite sure that no one wished to do this. The perception grew at some point, however, that it was necessary for the Report to be published by the Council very shortly after it was received - not only without alteration but without even being seen by any of the democratically elected members. I believe that this was a requirement of Professor Barker, to whom everyone deferred.
  857. There were two reasons given for this by Council officers, some of whom I found to be impressive witnesses and clearly public servants of integrity. The two reasons were the maintenance of independence and the avoidance of leaks prior to the official publication date. Past experience showed that the City Council tended to leak like a sieve and, unless a very tight rein was kept on the distribution of advance copies, the Review Team's conclusions would find their way piecemeal into the press.
  858. Everyone was very conscious of the need to ensure qualified privilege for the publication of the Report, whenever it took place, because of the seriously defamatory nature of its content. Advice was taken accordingly. Qualified privilege became the primary focus. I have not been told about the advice received, and there is no reason why I should, but I have seen nothing in the evidence to suggest that anyone analysed closely the underlying purpose of the statutory privilege accorded by the legislature to local government affairs (most especially, of course, by the amendments made in 1985 to the Local Government Act 1972). The privilege is given to local authorities in the specified circumstances. If such a body, as here, contracts out any of its functions to an outside body, the limits of qualified privilege need closely to be examined. For example, there is a statutory duty on local authorities to provide a mechanism for dealing with complaints relating to childcare under the Children Act 1989. For understandable reasons, the City Council's responsibility in this regard was to an extent delegated to the Review Team. Yet the Review Team had no particular status as a matter of law; they had the benefit of no statutory privilege in themselves, and they were neither members nor officers of a local authority.
  859. It was thus perceived as necessary to ensure that, notwithstanding their independence of the City Council, protection should be arranged for publication of their Report. Although it was never described in this way, it was decided in effect that their publication should be channeled through the local authority, as a mere conduit, in such a way as to try and maintain independence while at the same time taking advantage of the statutory protection devised by Parliament for local authorities. Miss Page has characterised this exercise as a "sham". At all events, it needs to be looked at very closely.
  860. The curious situation arose whereby the officers who were allowed to see advance copies (acting in accordance with legal advice, and in good faith) were required to sign a document when they received them. It purported to be an undertaking "to whomsoever it may concern" that they would not copy the Report:
  861. "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".
  862. It is clear from the context of the document as a whole that the "consequences" referred to related to the publication of defamatory material outside the scope of qualified privilege.
  863. Mr Dervin agreed in the witness box, although I believe that he had never thought of it in this way previously, that one of the effects of his undertaking was to promise to keep the contents of the Report, commissioned and paid for by the local authority, away from any of the elected members whose servant he was. The plan was apparently that none of them should see it in advance of the public. I suspected that this undertaking was required by Professor Barker. That was in due course confirmed by Mr Flynn in his evidence on 6 March. In any event, it gives rise to a very odd state of affairs.
  864. I leave out of account, for the moment, the practical difficulty about avoiding leaks and thus publications of defamatory allegations outside the protection of privilege, but the other reason for these dubious security measures was that, if any of the elected members were even to read the Report, or parts of it, prior to publication, this would in some way compromise the independence of the Review Team's conclusions. I simply do not follow that. If it was not altered in any way, the Report would remain that of the Review Team.
  865. This febrile thinking led to other oddities. For example, it is the normal rule that a report to be placed before a Council committee or sub-committee should be available three days in advance. If this is not to be honoured, then the committee or at least the chairman has to address the matter and sanction the omission for reasons of urgency. One finds, therefore, a report for the meeting of 12 November 1998 of the Policy and Resources Day Nursery Complaints Review Panel containing a heading "Reason for Urgency".
  866. This passage purports to identify the reason of urgency justifying the departure from normal protocol. It does not say that the reason for abridging time was because people could not be trusted not to leak the contents to the press. Nor does it say that it was one of Professor Barker's demands. What it does say, however, makes very little sense at all:
  867. "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".
  868. Any stipulation to the effect that the Report was not to be published until 12 November is, quite obviously, wholly independent of whether it was possible to distribute the Report in advance of the meeting. Thus there is a complete non sequitur (unless, of course, one equates even limited internal distribution with publication).
  869. There seemed to be something of a muddle also over when the Council actually received the Report. In accordance with the final version of the Review Team's terms of reference, as amended with the approval of the Panel at a meeting in May 1998, delivery of the Report was effected on 6 November when the Chief Executive received it on the Council's behalf. Despite this, however, the joint officers' report for the 12 November meeting describes the objective as follows:
  870. "Synopsis
    The purpose of this report is to formally receive on behalf of the Council the Report of the Independent Complaints Review Team."
  871. It is difficult to see how the purpose of a "report" could be formally to receive a Report. I presume that this must be a misprint for "the purpose of this meeting". Be that as it may, the Report had already been received six days earlier when placed in Mr Lavery's hands.
  872. Despite this, paragraph 6.1 of the same document contains the sentence, "the Council only became aware of the Team's recommendations today and so an immediate response cannot be made".
  873. Miss Page suggests that this is somewhat disingenuous, since the Council (through the Chief Executive and other officers) had received the Report six days earlier. It would appear to be true, however, that elected members were only permitted to see the content of the Report for the first time on 12 November.
  874. One of the stipulations in the final version of the Terms of Reference, to which I have already referred, was that the Report was to be presented to the City Council through its Chief Executive (i.e. Mr Kevin Lavery), but that it would be for the local authority to decide the publication date. Moreover, an element of discretion was reserved to the local authority to amend the contents of the Report for very limited reasons (matters of "public interest immunity"). What I find difficult to comprehend is how it was proposed that any such discretion on the part of the local authority (i.e. the elected members) could be exercised at all if they were not to see it before the very meeting designed to be the vehicle for onward publication to the world at large.
  875. Another unfathomable problem is how "public interest immunity" could have any bearing on the issues relating to publication in this context. Mr Scott said he could not understand this. If he, as one of the Council's legal advisers, could not understand it, it is difficult to see how any one else was supposed to.
  876. In my view, the Council officers were trying to achieve a reconciliation of two essentially inconsistent objectives and, in the process, tied themselves in knots. The two objectives were to publish through Council procedures, to achieve qualified privilege, while on the other hand purporting to maintain the Report as that of the Review Team, untouched by Council hands.
  877. Against that background, Miss Page developed a detailed argument directed to showing that the Council's officers failed in their objective of bringing the 12 November publication by the Council within any of the statutory provisions contained within Part VA of the Local Government Act 1972.
  878. It is necessary to set out the relevant provisions:
  879. 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.]
  880. Miss Page began by pointing out that the statutory defence under s.100H(5) of the Act applies to certain publications by local authorities to the public and to the media, but does not extend to publications by third parties to local authorities. So far as the Review Team are concerned, they would have to depend upon common law privilege for publication of their Report to the Council. She argued that any publication by the Review Team outside the umbrella of that protection would escape the provisions both of the common law and statute (including, for example, any observations made at a press conference).
  881. Miss Page argues that the Council would have had the power to publish the Report in accordance with s.111 of the 1972 Act (in other words for reasons of legitimately facilitating its lawful functions) but, in that context, reliance would have to be placed on the common law rather than the very specific provisions of Part VA of the 1972 Act.
  882. The Council relies upon a statutory duty (by reference to Part VA of the Act):
  883. 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.
  884. Miss Page has responded to these contentions as follows:
  885. 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.
  886. The first issue to consider, therefore, is the apparently sterile one of whether the Review Team's Report should be regarded as a "report" or a "background paper". The officers of the City Council seem to have proceeded on the basis that it fell into both categories (as borne out by the evidence of Mr Poll and Mr Scott). Miss Page argues that the officers' joint report was in fact correct when it described the document as a "background paper".
  887. Miss Page submits that in the light of the statutory provisions the distinction between the two concepts, far from being sterile, is actually of importance, since the legislature has decided to set up a quite different regime of disclosure obligations as between the two categories.
  888. The Review Team's Report was not, of course, generated by the City Council itself but (as its officers kept emphasising in the course of their evidence) by an independent body. To qualify as a "report" within the terms of Part VA of the Act, Miss Page submits that a document has to be generated by or on behalf of the officers of the Council for the Council itself. In this context, she points to the "proper officer" provisions within Part VA and cited, by way of example, s.100B(2):
  889. "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".
  890. Accordingly, it would appear to be necessary for the proper officer to consider the contents of each report in order to consider whether or not it should be published: s.100B(2). It is necessary also to have regard in this context to s.100D(5) which defines "background papers" by reference to the proper officer's "opinion".
  891. Miss Page submits that the functions of a "proper officer", as contemplated by these provisions, could only be exercised by an officer who was, if not an author of the report itself, at least someone in a position to gain immediate access to the report before presentation to the relevant committee. Such functions could not be exercised in relation to a document emanating from outside the Council – especially one the contents of which were so jealously guarded as those of the Review Team's Report. I am not sure why this would necessarily be the case, since if appropriate a proper officer could withhold or redact parts of an external report commissioned by the Council.
  892. Miss Page argues also that her interpretation of the "proper officer" provisions of the statute is consistent with the internal provisions of the City Council's own internal rules (at least in the most up-to-date version available to her).
  893. In any event, the argument goes, the Review Team's Report was not a "report for the meeting" of the Panel on 12 November 1998. It was, in truth, a report for the City Council (and had already been presented to the Chief Executive on 6 November to receive it on the Council's behalf). Had the Review Team's Report itself been a "report for the meeting", there would have been no need for the joint officers' report that was in fact submitted.
  894. One can also readily see from the content of the Report itself that it was not making recommendations for the consideration, adoption or implementation of the relevant sub-committee (or Panel). Some of the recommendations, indeed, went beyond the scope of the City Council altogether, but it is nonetheless clear that those more directly concerned with the Council's affairs were for consideration (and ultimately implementation) either by the Council itself or by other committees or sub-committees (in particular, of course, those with responsibilities for the provision of education, nursery facilities and childcare).
  895. In view of the purely "formal" nature of the Panel meeting on 12 November, which was emphasised at the time and during the course of the officers' evidence during this case, it is clear that the Review Team's Report was not to be considered (with a view to adoption or rejection) but rather to be "received". It was only provided to the members of the sub-committee shortly in advance of the meeting (at the "pre-meeting" shortly beforehand). Nor did it accompany the joint officers' report.
  896. Miss Page accordingly invites me to rule, as a matter of statutory construction, that the Report did not have the status of a "report for the meeting". It can only have had the status of a "background paper". The important consequence of such a ruling would be, she submits, that the City Council has throughout proceeded on an interpretation of Part VA of the 1972 Act which was entirely erroneous. More specifically, s.100B(2) provided no legal basis for publishing the Report itself to the public; s.100B(7)(a) did not provide any legitimate basis for supplying it to newspapers; s.100C(1)(d) did not provide any such basis for making it available for inspection by the public; s.100H(2) did not provide any such basis for supplying copies to members of the public on demand; and, most importantly, for her purposes, the publication of the Report did not have the benefit of the statutory defence as being a "report for the meeting": see s.100H(5) and s.100H(6)(d). Thus, it would be necessary to judge the availability to the Council of a statutory defence not in the light of the provisions pleaded, but rather according to ss.100D, 100H(5) and 1000H(6)(e).
  897. Miss Page therefore next addressed the question of whether the Review Team's Report was a "background paper" within s.100D. It is provided by s.100H(5) that statutory privilege shall attach to the publication of any defamatory matter in any "accessible document" for a meeting to which the subsection applies, where it –
  898. "(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".
  899. Accessible documents are defined to include "any copy of the whole or part of the background papers for a report for the meeting, within the meaning of section 100D above": s.100H(6)(e).
  900. There is a further definition of "background papers for a report" in s.100D(5):
  901. "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".
  902. Thus, argues Miss Page, in order to qualify as a "background paper for a report", it is not sufficient that a document should merely relate to the subject matter of the relevant report. There would appear to be a requirement for the exercise of a discretion by the "proper officer" or at any rate the formation of an opinion by that officer. In this instance, the relevant "report" (to which the Review Team's Report is said to have been a background paper) would appear to have had as the "proper officer" Mr Kevin Lavery, the Chief Executive, since he was the first-named author. (At least that would appear to be the position according to the Newcastle Charter Schedule 4, Part D, although this may not have been in effect at the material time.)
  903. Miss Page argues that Mr Lavery did not actually address his mind to the relevant issues identified in s.100D(5) or form an "opinion" on either of them. Since that is, according to her argument, a pre-requisite for a document to be classified as a "background paper for a report", Miss Page argues that the Review Team's Report does not fall under that head of privilege. She accepts, however, that it would still be open to the Council to argue, by way of alternative, that the document was protected by common law privilege (in accordance with a traditional duty/interest test or the more recently expounded principles in Reynolds v. Times Newspapers Ltd).
  904. An alternative argument raised by Miss Page is that, assuming Mr Lavery to have directed his mind to the issues raised under s.100D(5), there could have been no lawful exercise of the relevant discretion. She puts the matter in three ways:
  905. 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.
  906. It is necessary to consider whether Miss Page is correct, as a matter of law, to speak of a "discretion" in the context of s.100D(5), since it is concerned with the formation of opinions (i.e. as to the relationship between the joint officers' report and the Review Team's Report). It is possible to form an opinion without exercising a discretion.
  907. In any event, Miss Page argued that the Council failed to address its mind to the question of whether or not the presence of "exempt information" within the Review Team's Report entailed that it should not be published. That failure would, she submits, render it unlawful to make it available to the public. She points out that s.100D(4)(a) makes it clear that there is no requirement for any document to be listed if it discloses exempt information.
  908. There is no dispute but that the Review Team's Report did contain exempt information (i.e. within paras. 1, 4, 6, 12 or 14 of Schedule 12A). That is not to say, however, that it would be unlawful to publish it. It had been decided in advance of the production of the Review Team's Report that it should be published unamended, and even regardless of its contents. Miss Page suggests that it was incumbent on the Council to consider whether or not the Report should be included as a background paper at all given that it contained exempt information. Mr Scott dealt with this matter in his evidence. He said that it was his view that it was for the relevant "proper officer" to consider whether or not it was likely that the committee would wish to exclude the public or press from a meeting for the reason that there might be disclosure of exempt information. If he came to the conclusion that it was likely, then he would "pink" the relevant material (to indicate, in accordance with convention, that it was a matter to be addressed by the committee). That is a matter he would have to make a judgment upon in advance of the relevant meeting. That is, of course, quite different from there being an obligation on the committee itself to exercise a discretion in that context.
  909. Mr Bishop's submissions on exempt and confidential information were as follows. Schedule 12A to the Act identifies some 15 classes of "exempt" information. They are widely drawn and include many items that are routinely discussed in relevant meetings or contained within "accessible documents". If for some particular reason it is considered appropriate to withhold any such information from public access, then a discretion may be exercised accordingly, but it would be reviewable judicially. Thus, it is required that the grounds for excluding the public must be specified. There seems to be a general presumption of public access and, correspondingly, there would be no question of reviewing a decision not to withhold public access. Those submissions seem to me correct. I am unable to conclude that there was anything unlawful about the failure to exclude any of the "exempt" material (e.g. references to City Council employees). Nor does the inclusion of such information detract from the protection of privilege otherwise available.
  910. As to "confidential information", it will be noted that the term is very narrowly defined in this statutory context: see s.100A(3) set out above. If there should be any material within the definition there would arise an obligation (rather than a mere discretion) not to reveal it publicly. I cannot think of anything here which would qualify as "confidential". I believe that it was being suggested that some of the detail about Mr Lillie's early years (such as his time in care or his conviction at the age of 15) might be classified as confidential, but it seems highly technical in this context. More significantly, for present purposes, if any publication of the Report were the subject of prima facie privilege, I cannot believe that the incidental inclusion of such detail would destroy the privilege.
  911. In so far as it matters (and in view of the terms of the statute, I suppose it must), the status of the Report vis ΰ vis the 12 November meeting would in my judgment be that of a background paper. It was not a report for the meeting in any ordinary sense. They were not going to consider it or discuss it; indeed, they were not supposed to read it even. They were just to receive it for onward transmission to other decision makers. Statutory privilege would thus come into play to protect the publication of the Report as a background paper. This is highly technical but it is a matter of trying to fit a unique situation, which would never have been contemplated by the draftsman, into the straitjacket of this statutory framework.
  912. Furthermore, as to the Council officers' earlier publications, for example to central government through the S.S.I., and to one set of parents who lived abroad, those would be protected on the footing of a common and corresponding legitimate interest in accordance with the common law.
  913. Finally, I should address the alternative s.111 argument. The Council is given a very wide power to take steps for facilitating its lawful functions. That does not, it seems to me, afford in itself a separate form of statutory privilege, but it does provide a context in which to make a judgment about any legal, social or moral duty to publish to the world at large if statutory privilege does not avail. In other words, I should ask the question whether the Council would have been protected any way, and without going through the so-called "charade" of setting up a committee meeting as a peg for statutory privilege.
  914. I believe there is a powerful argument for concluding that a local authority does have an obligation to tell the public (and, in particular, its own charge payers and the consumers of its public services) what has gone wrong, to account for it and to explain how matters are going to be ordered in the future to avoid similar problems: see e.g. Alexander v. Arts Council of Wales [2001] 1 W.L.R. 1840 (where it was held that the defendant had a duty to explain its actions in relation to public funding). That is not to say necessarily that common law protection should be available over and above the very wide privilege accorded by the legislature in the Local Government Act. Nevertheless, I believe that the public had a right to know what (if anything) had happened at Shieldfield. Having appointed an independent review team to inquire and report, at public expense, it is difficult to see why the Council should not be protected in publishing the results. If the Terms of Reference can be criticised, or the particular Review Team exceeded their terms of reference (if they did), or they made errors, or even if they were malicious, it does not seem to me that the public is any the less entitled to know what has been going on; or the Council under any less of a duty to tell them.
  915. I am not sure that privilege would have been upheld a few years ago for communications made outside council meetings or which fell outside a specific statutory veil of protection. But now I believe that public policy would be interpreted in such a way as to protect even a general publication as an exercise in open (local) government. Freedom of communication would prevail. It may be argued that public policy has swung too far in that direction against the interests of those whose reputations may have been damaged in the process. It is always important to remember that there is no public interest in misinformation: see e.g. the words of Lord Hobhouse in Reynolds. But, in so far as I can gauge public policy as now expounded in recent judicial decisions, I consider that reputation would be regarded as sufficiently protected in circumstances of this kind by the availability of remedies in respect of malicious or, in some cases, negligent mis-statements.
  916. 15) The City Council's evidence on qualified privilege and malice

    General Introduction
  917. A number of witnesses gave evidence for the Council relevant to both qualified privilege and malice. But Miss Page confined her allegations of bad faith to certain individuals for whose motivation and states of mind she seeks to make the City Council vicariously liable. Those she identified in her Amended Reply, for which I gave permission on 28 February. The individuals are Mr Lavery, Mr Bell, Mr Dervin, Mr Scott and Mr Flynn. It is elementary that what matters is whether any of them were motivated ("actuated") by malice in the publication by the Council of the Review Team Report on or after 12 November 1998. What may or may not have happened to the Claimants in 1993 and 1994, with regard to their suspensions and the disciplinary procedures, is not directly relevant.
  918. What emerged as a general picture is that the Council and its staff were determined to get the Report published irrespective of its contents, and that members would have no chance to read it prior to the morning of 12 November 1998. They would not see it before the public obtained it, but would receive it more or less simultaneously with those persons present at the meeting. This meant that there would be no opportunity to apply any kind of discriminating judgment or exercise of discretion in relation to its contents.
  919. There was a "pre-meeting" on 12 November for the Panel members. Then came the meeting at 10.00 am, which "merged" with a press conference. Miss Page argues that the whole exercise was an irresponsible "sham", intended to bring the Review Team's Report (whatever it contained) under the umbrella of statutory privilege. No one at the Council cared what allegations it might contain about Christopher Lillie and Dawn Reed, and all they were interested in was making the publication water tight from a suit for defamation.
  920. There is much in what Miss Page submits. This was a "one off" exercise in a number of respects, and clearly fell outside everyone's day to day experience of local government affairs. Legal advice was taken to ensure that what they were proposing to do was lawful, and as to the most efficient way of achieving this objective. It seems to me, however, that the critical question for statutory privilege, in its various forms, is whether the Council members and staff managed to set up a meeting, as they intended. If they did, their motives for doing so would probably not matter. Merely by virtue of the meeting's status, the statutory consequences would follow. As Miss Sharp argued in her opening submissions, some five weeks before her clients bowed out of the case, there would appear to be little room to defeat statutory privilege by reference to a dominant motive on the part of any of those instrumental in getting the report into the public domain (see Lord Phillips M.R. in Loutchansky v. Times Newspapers Ltd. [2002] 1 All E.R. 652 and paras. 1092-1093 above).
  921. It would be necessary to show bad faith on the part of one or more of the pleaded individuals in order to defeat the protection of statutory privilege. I should thus remember the significant role here played by legal advice at almost every turn. I do not know what the advice was, although one can make an informed guess. But it does not matter. It is extremely difficult to envisage circumstances in which a person can be held to have acted in bad faith (leaving aside "dominant motive") if the course of action under challenge has been recommended or sanctioned by legal advice.
  922. There is no doubt that a number of people on the Council's staff believed in November 1998 that Christopher Lillie and Dawn Reed had been guilty of physical, emotional and sexual abuse at Shieldfield; they believed that, in some cases at least, since the disciplinary proceedings in early 1994. The outcome of the criminal proceedings made no difference. Moreover, unlike the Review Team, it is difficult to be confident that anyone who read the Report between 6 and 12 November 1998 had any reason to believe that any part of the Report was untrue or misrepresented the facts.
  923. I shall consider the witnesses in turn. Some others did not give evidence orally, and I was invited to read and take into account their statements, and to attach such weight as I thought right to them. Before turning to the evidence of the individual witnesses, however, I need briefly to summarise the context in which they were working in the run up to publication.
  924. The "one-off" approach to publishing the Report
  925. In setting up the "pre-meeting" and press conference to launch the Review Team's Report on 12 November 1998, the various Council officers responsible were guided by legal advice in respect of which privilege has not been waived. It is not, therefore, possible to come to any definitive conclusion as to what was passing through their minds throughout the relevant period.
  926. What is clear, on the other hand, is that Professor Barker was to a large extent "calling the shots". He was also receiving legal advice independently of the Council. He was apparently keen that his Report should be published under the cloak of common law and/or statutory privilege shortly after the document was handed to the Chief Executive (in accordance with the resolution of 29 May 1998). He did not wish it to be seen by any of the elected members before it was released to the parents and general public. The reasoning appears to have been partly to protect the "independence" of the Review Team and partly for fear of leaks to the press before the appointed day.
  927. In the circumstances, it is not altogether surprising that Miss Page referred to the Council as "lending" the protection of the statutory privilege without any judgment or discretion being exercised by anyone on the Council's behalf. She referred to the "formal" meeting of the relevant sub-committee as a sham since it was simply set up to give the Review Team's Report the status of a "report" and/or "background paper" under the provisions of the Local Government Act 1972 (as amended). It was a sham because the members were to do nothing with the Report other than "receive" it formally. They were not to discuss it; nor indeed could they do so, since there had been no opportunity to read it beforehand. Only certain officers had been allowed by Professor Barker to read the Report, between 6 and 12 November. Professor Barker had wanted an even shorter period, but the officers found themselves negotiating with him to allow slightly longer. This seems very curious given that the elected members had commissioned the Report and the Review Team were being paid out of public funds. The tail might be thought to be wagging the dog.
  928. Despite the unusual circumstances, everything had to be fitted into the statutory framework and terminology in order to achieve the all important protection of qualified privilege. Miss Page argues that the officers were putting the cart before the horse. Normally, one thinks of privilege serving a particular policy objective (e.g. the right of the public to be fully informed as to what is going on in local government). Here the officers were starting with the objective of achieving qualified privilege for the Report – whatever its content and whether or not it actually served the public interest. In reality, that is what was happening.
  929. It is clear from the evidence of all those involved that they were proceeding from the datum that the Report was to be published without any consideration of its contents. Mr Brian Scott said that it was inconceivable that the Report should not be published in its entirety. Mr Kevin Lavery (former Chief Executive) said that they did not even discuss the possibility of not publishing. They would not have published, however, if the Report had been "perverse". But since it was not, and merely confirmed their suspicions, the question did not arise. They did not really care what it said, although it was expected to make findings of abuse and to confirm the Council's official view that Christopher Lillie and Dawn Reed were guilty of gross misconduct. So long as qualified privilege was assured, they were simply not bothered. Mr Arnold told me:
  930. "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.
  931. Because of the desire for secrecy, the Report was not included with the agendas sent out to the members attending the meeting of 12 November. Had the Report been sent, three days in advance, it would have to have been made available for public inspection in accordance with s.100B or 100D. This had to be avoided. Therefore, it was perceived as necessary to apply the statutory provisions relating to "urgency". It is within the chairman's power to propose a resolution that the relevant committee should accept such a document notwithstanding that it has not been provided three days before: s.100B(4)(b). Here, of course, there was no urgency in the ordinary sense of that term. The only reason for not supplying it to the members in the usual way was the diktat of Professor Barker. The artificiality of the exercise is demonstrated by the joint officers' report which purported to identify the nature of the "urgency". The Report had been in the hands of the Chief Executive since 6 November and could have been provided. The true reason for not giving three days notice was that Professor Barker wished to keep it from the elected members until 12 November. That may or may not be legitimate but it is nothing to do with "urgency".
  932. Another curiosity is to be found in the officers' report, and in the short statement drafted for and to be read out by Mr Flynn as leader, which falsely suggests that the Review Team's Report had been received very shortly before the meeting.
  933. Mr Dervin
  934. I should perhaps at the outset say that Mr Dervin is something of a special case. It is clear from his letter of 22 January 1999 (quoted at para. 123 above) that he, at some point, saw major drawbacks in the Report. When he realised that is hard to say, but I believe I should accept his evidence that this only dawned on him when he was studying it in detail for the purposes of providing answers to complainants, in his capacity as Director of Social Services. I cannot be confident, even on a balance of probabilities, that he was aware prior to 12 November 1998 that the Report was fundamentally flawed, or that it failed in significant respects to justify its proclaimed conclusions (e.g. as to a paedophile ring, pornography or the rape of Child 14).
  935. At first impression, Mr Dervin's letter looks rather courageous in demonstrating a willingness to rock the boat. On closer inspection, however, this appears not to be the case. I do not believe that he was acting in bad faith at any material time. His attitude savours more of cynicism and betrays the characteristics of a "Jobsworth".
  936. The letter makes clear that at least by 22 January Mr Dervin realised that the Report had fundamental defects, which he expressly identifies, and also that there was considerable doubt over the validity of its attribution of child abuse to Christopher Lillie and Dawn Reed:
  937. "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".
  938. In the witness box on 5 March, rather surprisingly, Mr Dervin sought to down-play his criticisms of the Report and even suggested that he was more concerned with such trivia as "split infinitives", poor style and "inappropriate grammar". He knows as well as I do that his letter of 22 January was recording serious misgivings over substance.
  939. It then became apparent why he was trying to shift his ground. Having admitted to Miss Page that he was "not very happy" about the Report, he was asked why he had expressed his conclusion in the letter "off the record". He replied:
  940. "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".
  941. The last paragraph of the letter in my judgment plainly means to express scepticism about the Review Team's overall conclusion that Christopher Lillie and Dawn Reed were child abusers, for the very reason they were so chaotic and disorganised. Mr Dervin tried to stand the sentence on its head, and pretended that it meant that he was surprised that the Review Team had taken "five years" (actually three years) to arrive at the conclusion that they were abusers, whereas it had only taken him five weeks to arrive at the same conclusion. He seems to be suggesting that the fact that they were "disorganised and chaotic" as abusers gave them away. The evidence was "so overt". He was clearly in difficulty.
  942. A little later he tried to suggest to Miss Page that:
  943. "… 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".
  944. She asked him for an example of this "well-known thing" and he cited that of Myra Hindley and Ian Brady. Miss Page pointed out that they were a couple, to which Mr Dervin replied, "They were not married was the point I made". This was feeble stuff.
  945. The reason why Mr Dervin was trying to do "the splits" was because in that letter he was "preparing us for the way forward in dealing with the compensation claims". In other words, he was writing confidentially because the defects in the Report, and indeed the weakness of their overall conclusion that Christopher Lillie and Dawn Reed were child abusers, could be brushed under the carpet in the context of the Shieldfield review (which he described by saying "we had now put that part of the process behind us"). On the other hand, they might be turned to the Council's advantage when it came to defending claims for compensation. The Council officers were quite happy to condemn these two people when it suited them but wished to wriggle out of the consequences when their employer was called upon to take financial responsibility for what they had done. They did not wish to do anything that might disadvantage the Council over the compensation claims (just as in these proceedings the Council was not prepared to justify the allegations of child abuse, for the same reason).
  946. I suggested to Mr Dervin that this was something of a double standard because he was recommending taking a different stance over the conclusions of the Review Team if it should be useful to do so in defending the compensation claim. He replied:
  947. "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".
  948. This is cynicism of a high order. Publish the gravely defamatory conclusions of the Review Team about two former employees, provided qualified privilege can be assured, but then take advantage of the obvious defects in the Report when it comes to paying out. The two positions, of course, are simply irreconcilable. Mr Dervin would have done better to recognise that, and to stick to the position that he did not spot the weakness of the Report, despite his careful reading, prior to publication and could not therefore have questioned the wisdom or desirability of broadcasting it to the world at large. In trying to subvert the obvious meaning of his letter, he tied himself in knots. It was an unedifying spectacle that did neither him nor his employer any credit.
  949. As so often in this case, if one wants to know what a witness was really thinking it is necessary to look at the unguarded comments in the contemporaneous documents, rather than taking the oral evidence at face value. I have no doubt that Mr Dervin had, at least by 22 January 1999, grave doubts about the methods, the reasoning and the conclusions of the Review Team. He had been obliged to focus on them because he was required to respond to the parents' complaints on behalf of the Council, and he was very "cagey" in doing so. He was not prepared to endorse all of the Team's conclusions personally, but he felt that he had to go along with the Council's stance as far as he could. It was an unenviable task, but he cannot hide his recognition of the Report's fundamental weaknesses.
  950. Mr Lavery
  951. I need to consider the evidence of each of the other relevant Council witnesses in turn. Mr Lavery spoke in evidence of having given an undertaking to Professor Barker not to republish to anyone (including elected members of the Council which employed him) any of the contents of the Report he received on 6 November on behalf of the local authority. Miss Page asked him what right Professor Barker had to require such an undertaking and to dictate to the Council's employees how it was to be published.
  952. Mr Lavery thought it was reasonable because he regarded the Report as being that of the independent Review Team and, in any event, he was guided throughout by legal advice.
  953. Part of the standard confidentiality undertaking Professor Barker required included the words that the (primary) recipient (e.g. Mr Lavery) would advise any further recipient "of the consequences" should he or she make any further communication. He told Miss Page he was not sure what those "consequences" were. I am quite satisfied, however, from the context that they related to the risk of publishing outside the scope of qualified privilege. The Review Team and the relevant Council staff were almost certainly advised, in order to cover themselves, that the contents should be kept under wraps so far as possible until such time as they could bring it into the public domain by means of statutory privilege.
  954. He explained how the Core Team had been appointed under the chairmanship of David Bell to handle the issues of when and how the Review Team Report was to be published. Once it was in place he did not keep up with the detailed planning.
  955. As to publication itself, he said that "our highest concerns were around the parents and their children". He added that the City Council was merely publishing the independent Review Team's Report and was concerned to ensure a response to the concerns revealed by its contents. Asked if he thought about the appropriateness of publishing the names of Christopher Lillie and Dawn Reed, he replied:
  956. "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".
  957. He had not addressed the question of whether the two former employees should have been given advance warning of the contents. Nor had anyone prior to 12 November expressed any doubts as to the principle that the Report should be published in its entirety or as to any of its findings. There would have been an opportunity to raise "any major concerns" but no one did so.
  958. A particular point on which Mr Lavery was cross-examined was the reaction of the Council to Mr Cosgrove's letter. Its effect was summarised and placed before the Council, but Mr Cosgrove did not reply promptly to a letter asking whether he had any objection to his letter being made public. Mr Lavery would have been content for the full letter from Mr Cosgrove to be made generally available to the Council, rather than merely summarising his concerns on an anonymous basis, but he simply did not respond in time.
  959. As for the ruling of Holland J, it was true that Mr Cosgrove was requesting, for the sake of accuracy and balance, that a copy of it should be scheduled to the Review Team Report, but Mr Lavery took the view that it was inappropriate to do so. The Review Team Report "should be able to stand on its own merits". He said "We all felt that it was a reasonable and authoritative report".
  960. He denied being indifferent to the truth of the contents (in the context of "recklessness", as explained by Lord Diplock in Horrocks v. Lowe). He and his colleagues had accepted its contents as accurate and as reflecting their own suspicions (albeit more critical than had been anticipated).
  961. I am quite satisfied that there is no basis on which I could find that Mr Lavery acted in bad faith. Miss Page is entitled to criticise the way the Council handled the Report and appeared to abdicate any responsibility for carefully considering the content of the Report before it went out under the umbrella of local authority privilege. But that is a separate issue from the legal concept of express malice.
  962. Mr Bell
  963. David Bell also gave evidence on 4 March. He is a former teacher who became Director of Education and Libraries for Newcastle City Council in 1995. His involvement in the Shieldfield inquiry did not begin until May 1998. He was at that stage "asked to lead the preparations to the point of publication", it having become apparent that the Review Team Report was imminent. He was one of those who received a copy on 6 November. He acted on legal advice received from Mr Brian Scott.
  964. He was cross-examined about what passed between the City Council and Professor Barker as to the timing of the publication and the restricted availability of the Report beforehand. He described it several times as a matter of "negotiation" rather than Professor Barker simply laying down the law.
  965. He described how he read the report on 6 and 8 November 1998 and formed the view that it was consistent with the terms of reference: "I read it very, very carefully and I was very careful to ensure that it satisfied the detail of the original terms of reference".
  966. This was a difficult test to perform, whether for a lawyer or a layman, and he was working to a tight schedule. I am quite sure that Mr Bell is a conscientious man and one of integrity, and he was doing his best in the light of legal advice and unfamiliar circumstances. I certainly had no difficulty in rejecting the allegation of malice against him. He concluded in the short time available to him that the Review Team had done a thorough job over three and a half years and that it was in the public interest for the Council to publish their conclusions in full. He thought it extremely compelling. I have no doubt that this was an honest conclusion.
  967. Mr Arnold
  968. The next witness was Mr Peter Arnold, who was from May 1998 leader of the opposition on the City Council. He explained how the Review Team inquiry had cross-party support. He became a member of the Policy and Resources Day Nursery Complaints Review Team Panel (on becoming leader of the opposition). He gave evidence on 5 March. I formed the impression that he too was a decent man who coped with a difficult situation honourably and in good faith.
  969. Mr Arnold was asked in cross-examination about one of the curiosities of the publication arrangements, which was relevant to the issue of qualified privilege (as opposed to malice). This was the fact that the City Council sent out a press release on 11 November 1998 announcing a press conference for 10 a.m. the following day. It was sent to the Newcastle Chronicle and no doubt other media organisations. It contained the following announcement:
  970. "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.".
  971. The significance of this for Miss Page was, of course, that statutory privilege for the Report's publication was predicated upon its being either a report or a background paper for a meeting of the Council. That defence would be jeopardised if a meeting of the local authority was by-passed and the Report simply released at a press conference.
  972. I was told that there was to be a properly constituted meeting of the Panel on 12 November that would "merge" into a press conference. That may or may not be unusual, but the question I have to consider is whether there was a duly convened meeting of the Panel. That cannot be determined by the fact of a press release announcing a press conference. Mr Lavery had told me the previous day, whatever the press release might have said, that the meeting at 10 a.m. was a meeting of the Panel. I am sceptical about much in this case, but I have no difficulty in accepting that, in the unusual and confused circumstances prevailing in the lead up to publication, an inaccurate (or at least incomplete) press release went out to the media. It does not affect the substance. Miss Page made the point that the press release was the work of the very experienced Ms Hillary (who was not called to give evidence). Since she was directly involved herself as a member of the core team herself, it was submitted that she must be taken as knowing what she was doing. It does not follow, however, that the announcement of a press conference necessarily means that there was not also a committee meeting (albeit brief and formal).
  973. On the other hand, there is some difficulty in understanding exactly how the decision was made to effect publication of the Report via that meeting of the Panel. This was explored with Mr Arnold:
  974. "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."
  975. This discloses a remarkable state of affairs. The elected members had simply handed over the responsibility for investigating these matters to four outsiders and appear to have agreed to publish whatever they chose to include in their Report under (as Miss Page put it) "the imprimatur of Newcastle City Council".
  976. Mr Arnold was pressed as to his duty under the Local Government Code "to serve the public interest". He replied:
  977. "My belief then was, and still is, that the public interest was served best by full disclosure of the recommendations of the Review Team."
  978. Miss Page asked, not unreasonably, how he could have formed such a view if he did not know at the time what the Review Team had said. He replied that his conscience was clear since it was for the members of the public, and others, to make their own judgments. Once again, it seems to me that these are perfectly fair criticisms to make of the way the elected members and officers behaved. But it is not necessarily the case that any of those involved was acting in bad faith. I have no reason to think that Mr Arnold believed the conclusions of the Review Team to be false or that he was reckless.
  979. Miss Page also asked him if he knew, prior to publication, that Mr Lillie and Miss Reed had been given no notice of the grave and manifold allegations against them. He did not.
  980. This all goes back, however, in my judgment to the unfair and undisciplined way in which the Review Team conducted themselves and to the vague and confusing terms of reference. I entirely accept that the City Council has to take responsibility for letting this state of affairs develop, but it was certainly not Mr Arnold's fault. Moreover, however hopeless the terms of reference may have been, that does not go to establish malice on the part of any of the named individuals as a motivation for the publications complained of in these libel proceedings.
  981. Mr Flynn
  982. Mr Tony Flynn gave evidence on 6 March. He has been a councillor since 1980. He was Deputy Leader at the time the concerns about Shieldfield arose in 1993 and has now been Leader for seven years. It will be recalled that in July 1994 it was he who pronounced Mr Lillie and Miss Reed guilty at the Civic Centre immediately after their acquittals. He did this without reading the ruling of Holland J or even being told of his serious concerns about the quality of evidence.
  983. He was not one of those who saw the Review Team Report prior to its presentation at the meeting on 12 November 1998. He knew that it had been "legally checked and that it was fair for us as a local authority to produce it". By "legally checked" I assume he meant that advice had been received that its publication would attract qualified privilege. He told me:
  984. "… 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".
  985. Since the Report was packed with the gravest of defamatory allegations, the only matter on which their counsel could in practice be advising would be that of qualified privilege in all relevant forms.
  986. He explained also that when he had made his pronouncement four years earlier after Holland J's ruling he was simply acting on legal advice. The Council had established its position "after the disciplinary", and that appeared to be that – "there could never be any going back from it".
  987. He went on to say that the City Council had "highly qualified officers, Chief Executive, legal officers, other very qualified officers" and, when he was advised that it was the consensus of opinion that the local authority should respond in this way, then he accepted it. He took umbrage, however, when Miss Page queried whether there was any point in having elected members if it was all "down to the officers". He replied, "With respect, I think that is an insult".
  988. When it came to the setting up of the Review Team, however, Mr Flynn was less receptive to the benefits of legal advice. At one stage, it seemed that parents were requesting that the inquiry be chaired by an experienced lawyer, and that they should be offered legal representation. For example, solicitors acting for the parents wrote to Mr Hassall on 10 June 1994 and emphasised the need to meet the requirements of natural justice and to ensure that panel members should provide the appropriate skill and expertise to carry out the review properly. In particular, there would have to be a knowledge and understanding of legal practices and procedures. Similar views were expressed at the meeting with parents on 20 July 1994. At that time Mr Flynn was apparently stating "that it was not the Authority's intention for the Review Team to be adversarial, and there was a danger of this happening once lawyers were involved".
  989. This may have been a significant factor in what went wrong. There may be a number of reasons why the City Council decided to reject the option of having lawyers involved, including perhaps the perception that it would be less expensive. Unfortunately, however, it seems that "the requirements of natural justice" were jettisoned along with "the appropriate skill and expertise".
  990. This issue was clearly central and closely linked to the muddle over the Review Team's terms of reference. It is just conceivable that one might institute an inquiry (public or private) with a brief to identify individuals as guilty of indecent assault and/or rape, but it would clearly need to be hedged by safeguards for the "accused" of the traditional kind (including, for example, notification of the precise "charges" and of the evidence, an opportunity for legal representation, to challenge or test evidence, and so on). On the other hand, if one eschews that approach (because of expense or any other reason) and opts for an inquisitorial but informal mode of inquiry, then it should be plain as a pikestaff that the remit should be appropriately circumscribed. It would be unthinkable that such a procedure could yield a fair resolution of such issues.
  991. The truth is, of course, that the Council having taken its immovable position on the guilt of Mr Lillie and Miss Reed, it would hardly occur to them that there could be any outcome of the inquiry inconsistent with that datum. That position would appear to be encapsulated in the Journal in August 1995 where it was said that there was no intention for the inquiry to "point the finger" or investigate whether or not children were abused – since the Council had already acknowledged that they probably were. (I accept that Ms Bernard has no recollection of this, and does not accept that she was accurately quoted, but I am quite satisfied that this was the Council's approach to the matter.)
  992. Mr Flynn also confirmed that the Report could simply have been handed out at a press conference on 12 November 1998 but that a panel meeting needed to be set up because "on legal advice" they needed to have the protection of qualified privilege. In other words, the Panel meeting on 12 November was purely formal and had no purpose other than to serve as a peg on which to hang statutory privilege. It was in this context, no doubt, that the meeting timed for 10.00 a.m. came to be described in a press release the day before as a "press conference".
  993. The fact remains, however, that Mr Flynn was acting throughout on legal advice. Whether he was right or wrong about the decision to speak out in July 1994, or as to the appropriate means of dealing with parental complaints, or as to his acceptance of Professor Barker's wishes on the mode of publication in November 1998, what he was doing was on legal advice and, no doubt, in accordance with what he believed to be the right way of dealing with a highly unusual and worrying situation. I see no evidence of malice.
  994. Mr Poll
  995. On 6-7 March Mr Poll also gave evidence on some of these matters. Although he was not alleged to have been malicious himself, his evidence was certainly relevant to the City Council's defence of qualified privilege. Since June 1998 he has held the post of Head of Democratic Services. Prior to that time he was principal committee administrator. When Mr Warne left, he took over administrative responsibility for the Shieldfield Review. It was the first involvement he had. Mr Brian Scott took over the responsibility for the legal aspects.
  996. Mr Poll has great experience of handling local authority committees so as to ensure that they are conducted in accordance with the requirements of law. He has dealt regularly with such matters as the preparation of agendas, the giving of proper notice, and compliance with the openness requirements of the Local Government Act. As far as he was concerned, the Review Team's Report had a dual status. It was a report in its own right and it was a background paper to the covering report for the meeting of the Panel on 12 November. He was referring to the joint officers' report (dated itself 12 November) from the Chief Executive, Director of Education and Libraries, Director of Social Services and Head of Legal Services. This was for explaining the background to councillors in readiness for their "formal" meeting. (It contained two somewhat economical claims. First, there was the supposed reason for "urgency" – "… it has not been possible to distribute the Report in advance of the meeting". Secondly, there was the assertion that "The Council only became aware of the Team's recommendations today and so an immediate response cannot be made".) It is quite true that at the foot of that Report there appears a note to the effect that the Review Team's Report is a "background paper".
  997. He was clearly troubled by the fact that it was being witheld from the public, which he would have considered to be contrary to the openness requirements of s.100 of the Act. He said it was treated in a manner he had never encountered before. His department had to ensure access according to a "legitimate interest" test, which had no statutory basis of any kind. He had never come across it before or since. It apparently derived from legal advice, in respect of which privilege has not been waived.
  998. Also, unlike other Council witnesses, he was conscious of a change in procedure having been agreed with the Review Team, which was not entirely compatible with the amendment to the Terms of Reference on 29 May 1998. At that stage what was laid down was that the Team's Report was to be submitted to the City Council through the Chief Executive (an event which apparently happened on 6 November when Mr Lavery received his copy). At some later point, it was agreed with the Review Team that it was to be formally "received" at the Panel meeting on 12 November. Mr Poll said that his understanding was in accordance with this latter arrangement. That is what he said in his own report of 12 November. There was never any information on the public record to reveal that the Report was actually received on 6 November.
  999. I found this all rather puzzling. Those officers who received the Report on 6 November 1998 had no status to receive it save in their capacity as officers of the Council. They must surely have received it on behalf of the Council. Ergo, the Council received it on 6 November – whatever Professor Barker or anyone else may deem to have occurred.
  1000. The agenda for the Panel Meeting on 12 November had quite correctly been made available to the public at least three days before the meeting. It also contained an item relating to the Review Team Report. What was unusual was that the Report itself had not been made available for inspection. Mr Poll had therefore perceived it to be necessary for a specific finding of urgency by the Chairman of the meeting and for that to be minuted.
  1001. The problem is that there are only certain circumstances in which these openness provisions may be by-passed in the name of urgency. It could be achieved if the meeting had to be convened on less than three days' notice or the item in question had to be added to the agenda in a correspondingly shorter time. Neither of those considerations applied. Mr Poll's understanding of the "urgency" requirement was that "we had not received the Report in sufficient time to comply with the Act. So this was a compromise, if you like".
  1002. In truth, of course, the Report had been received on 6 November and the only factor inhibiting compliance with the usual obligations was the undertaking given to Professor Barker – which was nothing to do with urgency. Whenever the Panel meeting had taken place, and however long before the meeting the Report was received, he would still have insisted that the elected members should not see it in advance. Mr Poll said he had never come across anything comparable. It is intuitively unattractive to keep secrets from the elected members, and that is presumably why there is no statutory peg on which to hang such a unique procedure. Professor Barker was in this sense a law unto himself.
  1003. Mr Poll was a meticulous and very helpful witness in explaining the way such matters work in practice, although I need to remember that in so far as any question of pure law is concerned (and, in particular, whether there was non-compliance in relation to the promulgation of the Report) I must decide the issue as a matter of construction. That may have a bearing on Miss Page's submissions on statutory privilege, but the technicalities canvassed in Mr Poll's evidence, and also with Mr Scott, do tend to underline the pitfalls for layman and lawyer alike. It very much confirms, in the context of malice, how dependent all the main protagonists would inevitably have been on legal advice.
  1004. Mr Poll gave evidence on another unusual feature of the case; namely the ad hoc procedure adopted by his staff for vetting access to the content of the Report after 12 November. It is true to say that it may not have been operated evenly, or always achieved the desired objective, but it seems that the purpose was to check with anyone applying in person or by telephone as to their interest in the matter. It seems to have nothing to do with the openness provisions of the 1972 Act (as amended), but rather to have been devised on the advice of a lawyer or lawyers with a view, if necessary, to establishing a common and corresponding interest between the Council and any such applicants for the purpose of common law privilege. I can only presume that this was to provide a safety net if the statutory tightrope gave way. To some extent, therefore, the Council staff were being more restrictive as to the distribution of this document than would normally be the case with reports supplied to its committees. I am not sure that the time spent on this issue actually took matters very much further but, again, it shows how determined everyone was to achieve the protection of qualified privilege by whatever means was appropriate and how much they looked to the lawyers for an answer.
  1005. Mr Scott
  1006. The final witness who found himself in Miss Page's sights, as a target for a finding of malice, was Mr Brian Scott. He gave evidence on 7 and 8 March. He is a very experienced local government lawyer. He came into the Shieldfield story at a very late stage and it cannot have been easy to deal with the situation he faced. I had no difficulty, however, in concluding that he did his best to act professionally and I have no doubt that whatever he did was in good faith. I do not believe he thought he was helping the members or other officers to devise a "sham" by dressing up the publication of the Report in such a way as to give Professor Barker and his colleagues a cloak of statutory privilege to which they were not entitled. He, like the others, regarded it as an important commitment on the part of the Council to publish the outcome (while recognising that there were serious allegations being made against a number of Council staff, past or present). Part of his brief was therefore to try to ensure that advice was received, and given, and procedures properly complied with, so as to minimise the risk of any claim for defamation. As far as he was concerned, the meeting was a properly constituted meeting of a Council committee (and not a press conference "dressed up").
  1007. As I have said, he conceded that the terms of reference were muddled and difficult to follow. It may well be that if he had advised on them from the outset some of the unhappy outcome, for all concerned, could have been avoided. But he had to deal with a fait accompli and, so far as he could assess it, he did not think that the content of the Report involved going outside the Review Team's remit. Whether he is right or wrong on that vexed question does not matter for present purposes, since I have to come to my own conclusion about it. There is, however, no reason to suppose that his conclusion was anything but honest.
  1008. One matter he addressed early in his evidence was the curious reference to "public interest immunity" in sub-paragraph (e) of the instructions as to how the review was to be conducted (see paragraph 129 above). It is a concept often encountered in the context of Social Services files, and particularly in relation to criminal proceedings involving children in care. But here Mr Scott found it difficult to interpret. So did I. He explained the matter very clearly:
  1009. "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)".
  1010. He added that the concept of public interest immunity had no relevance to personal files and could not see why it was mentioned in that context. He agreed with Mr Bishop that the phrase seemed to have been sprinkled around the terms of reference "like confetti".
  1011. It is important also to address Mr Scott's evidence about the exercise of discretion by a "proper officer" and whether discretion was exercised at all with regard to matters that might be withheld from the public as being confidential, or as falling within the definition of "exempt information". I must bear in mind that background context against which Mr Scott approached the matter; in particular, the fundamental assumption (settled before he even arrived) that nothing was to be held back.
  1012. In cross-examination the nub of the case on malice can be derived from the following exchange:
  1013. "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".
  1014. He was also criticised for not giving Christopher Lillie or Dawn Reed any advance notice of the allegations in the Report. His response was that he did not address it personally but assumed that all persons who should have been notified were duly notified. It was, in my judgment, an astonishing omission that they received no advance warning of the "charges" the Team were considering or of the grave findings that were going to be made. But that is the fault of the Review Team. I do not think Mr Scott can be blamed for that omission. On the wider question, I believe that he was acting in good faith, that he did what he believed to be his duty and that he had no reason between 6 and 12 November to believe that the Report contained anything false. He had no opportunity to check it or test it.
  1015. Miss Page also put to Mr Scott:
  1016. "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?"
  1017. He denied that this was so. As a matter of fact, I have seen no evidence that anyone at the City Council (any more than the Review Team) cared about Christopher Lillie or Dawn Reed and the impact the Report was likely to have upon them. They were in practice, whatever the protestations, treated as being "beyond the pale". As was said, on several occasions, their primary concern was with the parents and "victims". Nevertheless, that in no way entails malice in the sense with which I am concerned. What matters is not indifference to the Claimants, but rather indifference to truth or falsity. As to that, Mr Scott said:
  1018. "We were not indifferent. We engaged a Review Team to investigate the circumstances in relation to these events over a long period of time".
    Overall Conclusion
  1019. So much then for malice. It is obvious that the main objective in all these "one off" manoeuvrings was simply to achieve qualified privilege. There was a good deal of cynicism and a determination to get the Report into the public domain with impunity for all concerned. The City Council, on one interpretation, wanted to wash its hands of the whole affair and leave it up to the Review Team but wished to retain their usual statutory privilege. Nevertheless, since there was a Panel Meeting on 12 November, on proper notice, it seems to me that they achieved their purpose. The fact that it "merged" with a press conference, and the fact that the Chairman approved the Report as being introduced on a spurious "urgency" basis, are not matters which detract from the status of the 12 November gathering as a Committee meeting. Thus statutory privilege in accordance with the 1972 Act would automatically "kick in".
  1020. In these circumstances, however cynical those involved in the process may have been, and however ill judged were the terms of reference laid down for the Review Team, it seems to me clear that they achieved their objective of publishing the Report under the cloak of privilege. Since none of the identified officers, or Mr Flynn, can be categorised as "actuated by express malice", it must follow that the City Council is entitled to judgment. That is not to say, of course, that the Council's acts and omissions over the Review Team terms of reference may not have some bearing on the issue of costs.
  1021. 16) Compensation

  1022. At this stage I must turn to consider the appropriate sums to award against the Review Team by way of general compensatory damages. There is a claim for special damages also, but that is to be dealt with at a later hearing if necessary.
  1023. The purpose of libel damages is threefold. First, they are to compensate for hurt feelings, distress, embarrassment, anxiety and (in some cases, such as this) fear of physical attack. Second, damages are required to compensate for injury to reputation. Thirdly, they can also serve the legitimate purpose of vindicating or restoring reputation; that is to say, they may serve as an outward and visible sign to interested bystanders that the relevant defamatory allegations were untrue.
  1024. Many factors need to be taken into account in deciding the right figure or bracket for the purpose of achieving, in any given case, those three objectives.
  1025. It is, for example, necessary to have regard to how serious the allegations were, the extent to which they were believed, for how long they have gone uncorrected, whether there has been a retraction or apology, the scale of publication or re-publication. In this case, all the considerations point inevitably to the need for substantial compensation.
  1026. The allegations made, and persisted in throughout the trial, were very grave indeed. With the possible exception of murder, it is difficult to think of any charge more calculated to lead to the revulsion and condemnation of a person's fellow citizens than that of the systematic and sadistic abuse of children. I have set out earlier in this judgment the main conclusions of the Review Team, which are in terms as grave as one could imagine.
  1027. As the Review Team knew and intended, those conclusions were bound to receive massive publicity both nationally and locally. They must have appreciated too that the Claimants' lives would never be the same again. It would not have taken much imagination to visualise the virulence of the reactions they would stir up in the general public. The two Claimants recalled in evidence how they had to leave in haste their homes, families and career prospects. They had to go into hiding.
  1028. Unaccountably, however, they were given no warning of what was to come. They could only pick it up from the media reports. I have already recounted how the Review Team claimed in their Report to have given forewarning "where particular people have been significantly criticised" prior to publication and allowed a chance to respond. This was not true in the Claimants' case. It seems that because they declined to come and be interviewed by the Review Team, for reasons which were wholly understandable, they were put beyond the pale and deemed unworthy of fair or even humane treatment.
  1029. There has never been any retraction or apology. On the contrary, the wildest and most serious allegations have been pursued by the Review Team by way of justification. They were also pursued by the Newcastle Chronicle until they withdrew on 23 February 2002, but not by the Newcastle City Council (for tactical reasons). The Review Team have maintained that case down to the moment of this judgment except in relation to the various children with whom they realised, sooner or later, that they could not persist. They continued to allege abuse in respect of over 20 children. They have done about as much as they could to aggravate the damages. Even when the children were withdrawn from the plea of justification, on 13 May, there was no recognition that the allegations were false.
  1030. Time and again the gist of their conclusions was regurgitated – not least in more than 100 articles published in the Newcastle Chronicle. Even though the publishers withdrew from the case, after the Claimants' evidence and almost at the conclusion of the Review Team members' own evidence, those articles cannot be excluded from consideration. The main thrust of their attack derives from the Report. The Review Team to that extent, therefore, must bear responsibility in law for such republication, in accordance with the long-established principles in Speight v. Gosnay (1891) 60 L.J. Q.B. 231 (see also now McManus v. Beckham [2002] E.W.C.A. Civ 939). They are not, however, responsible in law to the extent that newspapers went off on a frolic of their own and published matter not deriving from the content of the Report.
  1031. Of course, the Review Team proceeded on the footing that whatever they published would be protected by qualified privilege. In that event, they would have avoided liability not only in respect of their original publication to the City Council in November 1998 but also for any republication flowing from that. If and in so far as their original publication may be vitiated by malice, then they become exposed to liability correspondingly for the republications.
  1032. It is therefore necessary to compensate for massive and prolonged publicity given to the Team's conclusions. The persistence in the pleas of justification is an aggravating feature. It is necessary also to take account of the distress caused to the Claimants, day after day, as they have sat in court and been obliged to listen to these grave allegations being given further currency. Although it goes almost without saying that such distress would have been caused, as a matter of fact I have been able to observe it time and again as the trial has progressed. I believe it was an additional and unforeseen element in their distress to hear how casually their reputations had been treated by some of the witnesses – not least the Review Team. It was also particularly galling to hear how Professor Friedrich's expert report fell apart, and for it to be revealed how he had pronounced on their guilt in the light of the video interviews without even bothering to watch them first. It must have been humiliating to see someone treating their livelihoods and reputations with such casual indifference. Time and again, in respect of different children, he was declaring them to have been abused on the flimsiest of grounds. He was going through the motions of producing a Report and oral evidence simply because he perceived that this was what was required of him.
  1033. Dr San Lazaro admitted, nine years on, how flawed her methods had been and how she had exaggerated evidence when seeking compensation for the children. Naturally, the Review Team cannot be held responsible for her actions at that time, but they have to bear some responsibility for putting her evidence before this court as though she was even now, in spite of her admissions, a credible witness to whose evidence significant weight could be attached on these allegations of multiple abuse.
  1034. There was also the maintenance of unsustainable smears about paedophile rings and commercial pornography. The Review Team knew the police had no evidence for any of this and yet they have persisted in the allegations to this day, presumably in the hope that something will stick.
  1035. There are so many aggravating features about this case that have to be taken into account. A few years ago the Court of Appeal sought to lay down guidance on the subject of defamation damages in an attempt to achieve proportionality, consistency and compliance with the values of Article 10 of the Convention: Rantzen v. Mirror Group (1986) Ltd [1994] Q.B. 670 and John v. M.G.N. Ltd [1997] Q.B. 568.
  1036. It is fair to say that it was generally recognised for a time, as a matter of convention, that there was a ceiling in the region of £150,000 for general compensatory damages and that the gravity of defamatory publications had to be assessed in particular cases on a scale in accordance with that upper limit. It was also acknowledged, for the first time, that it was desirable in keeping libel damages in proportion to pay attention to personal injury awards. Since those decisions, of course, it is fair to say that the level of such damages has been uplifted in accordance with Heil v. Rankin [2000] P.I.Q.R. Q187.
  1037. I am quite satisfied that each of the Claimants have merited an award at the highest permitted level. Indeed, they have earned it several times over because of the scale, gravity and persistence of the allegations and of the aggravating factors. I have no doubt that a few years ago they would have been awarded much higher sums. But I must bring their compensation into line with the current policy in such matters. I could attempt to award separate sums in respect of different publications and thus arrive at a higher overall figure. In some respects, however, this would be an artificial exercise.
  1038. Mr Bishop recognises that the effective ceiling nowadays in libel actions may be taken to have risen to £200,000, but he says that it is only to be kept in reserve for the most serious cases. He submits that I should leave a gap to take account of the really serious cases and not go to the top of the bracket. I find it difficult to imagine what could be more serious than the present allegations.
  1039. I propose to say no more than that each Claimant is amply entitled to the maximum level now permitted. I should award £200,000 each. In view of what they have been through since November 1998, it is hardly excessive by anyone's standards. What matters primarily is that they are entitled to be vindicated and recognised as innocent citizens who should, in my judgment, be free to exist for what remains of their lives untouched by the stigma of child abuse.
  1040. 17) A brief summary of findings

  1041. I have found that the allegations of child abuse against Christopher Lillie and Dawn Reed are untrue. In these libel proceedings it was part of the Review Team's defence that these allegations were true. That defence therefore fails.
  1042. I have concluded also that there is no basis for the Review Team's allegations in their Report of November 1998 ("Abuse in Early Years") about the existence of a paedophile ring involving Shieldfield children or their exploitation for pornographic purposes (see sections 8 and 9).
  1043. It was never part of the Newcastle City Council's defence that the allegations against Christopher Lillie and Dawn Reed were true. They took this stance, I was told, for tactical reasons. They are or were defending claims for compensation by parents over the abuse alleged to have been suffered while in their care. In those proceedings the City Council were making no admission that such abuse had taken place and could not, therefore, be seen to be making inconsistent allegations in the libel actions. They nevertheless fully indemnified the Review Team in the conduct of their case.
  1044. The City Council preferred to rely on the defence of qualified privilege on various grounds. I have upheld their defence of privilege. The Claimants argued that certain named officers and the leader of the Council were maliciously motivated in arranging the publication of the Review Team's Report in November 1998. I heard evidence from all those individuals and rejected the claim that any of them was malicious. Accordingly, the City Council is entitled to judgment (see sections 14 and 15).
  1045. The Review Team also raised qualified privilege as a defence. Those four Defendants were engaged by the City Council in 1995 to carry out a review as to what went wrong at Shieldfield and to respond to parents' individual complaints/allegations against various individuals or departments within the City Council. They looked into matters for three years and were paid, I was told, well over £350,000 for their work. They and the City Council took legal advice with a view to ensuring, so far as possible, that when their conclusions were published they would all be protected by the defence of qualified privilege if sued for libel. The Review Team delivered their Report in accordance with their contractual obligation to the City Council on 6 November (via the Chief Executive). That limited publication was protected by qualified privilege at common law (see sections 10 and 11).
  1046. It is true that the Review Team stipulated that no elected member of the City Council was to see the Report prior to publication to the wider public on 12 November 1998. That may seem odd, since it was the City Council who hired them to inquire and report. Nevertheless, I am satisfied that a meeting of a Council committee (albeit a brief and purely formal one) was duly called and constituted for 10 a.m. on 12 November and that the Report, which was formally "received" by the Committee, was thereafter published in such a way as to attract the very wide privilege accorded by the Local Government Act 1972 (as amended). Although the Review Team were responsible for the wide dissemination of their Report through that channel, they too would be entitled to take advantage of that protection by way of privilege (see sections 14 and 15).
  1047. Unfortunately, however, I have also held that the four members of the Review Team were malicious in the promulgation of their Report. They have thus forfeited their protection in respect of the limited publication of the Report on 6 November and the much wider publicity it attracted thereafter. That is because they included in their Report a number of fundamental claims which they must have known to be untrue and which cannot be explained on the basis of incompetence or mere carelessness (see sections 12 and 13).
  1048. Accordingly, the Claimants are each entitled to judgment against the Review Team. The allegations made against them were of the utmost gravity and received sustained and widespread coverage. I decided, therefore, that each Claimant was entitled to what is now generally recognised to be the maximum amount for compensatory damages in libel proceedings. I award each of them £200,000 (see section 16). What matters primarily is that they are entitled to be vindicated and recognised as innocent citizens who should, in my judgment, be free to exist for what remains of their lives untouched by the stigma of child abuse.
  1049. Although the City Council is entitled to judgment, I wish to make clear that the terms on which the Review Team was appointed and the methodology they adopted were wholly unsuited to the task they were eventually required by the City Council to perform. The Claimants had been acquitted of charges in respect of some of the Shieldfield children in July 1994 and it was originally stipulated, therefore, that the Review Team should "not make any finding on matters dealt with by the criminal court". Despite this they, in effect, found them guilty of serious sex offences (including rape) not only in respect of the very children involved in the 1993-1994 criminal charges but also in respect of countless others (sometimes put at about 60 and on other occasions up to 1450). They were encouraged in this folly by the Council including through officers with legal qualifications. The result was that they proceeded to make their findings without any of the elementary safeguards being accorded to the two citizens in jeopardy.
  1050. For example, the "accused" were not notified of exactly what was alleged against them, or told what the evidence was, or given an opportunity of testing it or responding. They were invited to come and speak to the Review Team but were not given any indication of what they would be asked about (despite a request through solicitors), and Mr Lillie was told falsely that they would not be re-visiting the criminal charges of which he had been acquitted. Inevitably, they were advised to have nothing to do with it.
  1051. When the Review Team had made their findings, neither Claimant was forewarned of the conclusions or when they were to be published. They were left to learn of the allegations through the media.
  1052. Although parents had been calling for a public inquiry in 1994, their legal advisers were pressing for procedures compliant with the principles of natural justice. That was clearly right, but the Council allowed the team to proceed as they thought fit, and natural justice seems to have fallen by the wayside.
  1053. I characterised these arrangements in a ruling in February as a "shambles". That still seems to me to be an apt description. The fault cannot be laid entirely at the door of the Review Team since none of them was legally qualified, and I concluded at an early stage that it was mainly the Council's fault for sanctioning an inquiry into the commission of acts tantamount to criminal offences, with a view to the ultimate publication of a report, but without appropriate safeguards for the "accused". The exercise has cost a vast amount of money for the citizens of Newcastle and I have no doubt years of unnecessary heartache for many of those directly involved. Unhappily, the Council has only itself to blame.

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