Examination of Witnesses (Questions 38-59)
MR DAVID ROSE, MR RICHARD WEBSTER AND MR BOB WOFFINDEN
TUESDAY 14 MAY 2002
Chairman
38. Good morning, ladies and gentlemen. Welcome to our witnesses. This is the first session of our inquiry into allegations of abuse in children's homes. I should make clear at the outset that, although we are under great pressure to do so, we are not going to examine in any detail individual cases. Of course, they may be cited where they illustrate a wider point, but we do not wish to get dragged into individual cases because that is not our function. The second point I should mention to witnesses, although I suspect they are well aware of this, is that we have to be careful of the rule on sub judice, so that if a case is before either a court of first instance or the Court of Appeal, then it cannot be referred to by name. If it is before the Criminal Cases Review Commission that is fine. If the CCRC has referred it to the Court of Appeal, then again it is covered by sub judice so we have to be a bit careful there. I think, since this is the first session, I will start by quoting the terms of reference. As I say, we have been under a lot of pressure to widen our terms of reference and we propose to stick as closely as possible to them. The questions in which we are interested are: "Do police methods of "trawling" for evidence involve a disproportionate use of resources and produce unreliable evidence for prosecution?" Two: "Is the Crown Prosecution Service drawing a sensible line about which cases should be prosecuted?" Three: "Should there be a limit—in terms of number of years since the alleged offence took place—on prosecution of cases of child abuse?" Four: "Is there a risk that the advertisement of prospective awards for compensation in child abuse cases encourages people to come forward with fabricated allegations?" And five: "Is there a weakness in the current law on `similar fact' evidence?" Those are the issues on which we hope to concentrate. Can I first of all put a general question to each of our witnesses and ask, starting perhaps with Mr Woffinden, how you became interested in this area?
(Mr Woffinden) Well, obviously I have been interested in miscarriages of justice for some years now, so in a sense I came in through that doorway, a lot of people contacting me saying that in these particular cases they had been wrongly imprisoned. So I had this background of interest in miscarriages of justice and it was natural for me to become concerned about these cases.
39. When did you begin to notice that there was a common thread to them?
(Mr Woffinden) Probably from about 1996 onwards it seemed that all these convictions were being obtained by similar means. So then we tried to put together, initially with Richard when I was writing articles, precisely what was happening.
40. Thank you. Mr Rose?
(Mr Rose) I am a relatively new arrival on the scene. I became interested about two years ago when a lawyer—with whom I had worked very closely some years ago investigating the miscarriage of justice which befell the Tottenham Three, the three men falsely convicted on fabricated evidence of murdering PC Blakelock in the riots at Broadwater Farm—contacted me saying he had been instructed in one of these cases and he was more convinced than he had ever been not only that his client in that particular case was innocent but that the case did fit into a general pattern which was causing him, as an experienced barrister, now a QC, grave concern. He actually gave me Richard Webster's book to read and it was as a result of that that I began to investigate a number of cases.
41. Thank you. You were responsible for making the Panorama programme.
(Mr Rose) Yes, the first thing I did was investigate the case of Roy Shuttleworth, now before the Criminal Cases Review Commission, for Panorama. As part of the research for that programme I looked into a number of other cases too and subsequently I continued to work in the area for The Observer.
42. Thank you. Mr Webster?
(Mr Webster) Unlike Bob Woffinden and David Rose, I am not an investigative journalist. I came into this field because I wrote a fairly substantial intellectual biography of Freud and that may seem a strange route in, but that led me into the field of studying recovered memory and false memory and the origins of that in 1896. I will not go into that now. Having finished that, I thought I would spend three or four weeks looking at false allegations or looking at sexual abuse allegations starting with the Cleveland affair because I felt there were things there that I wanted to understand. That was in early 1996 and it so happened that that coincided with the non-publication of the Jillings report into alleged abuse in North Wales. It also coincided with the beginning of an extremely strong campaign run by The Independent newspaper to try to force upon a reluctant Government a tribunal of inquiry based on the non-publication of the Jillings report. At that time, it seemed to me, that what was happening in North Wales (and I was going on trust from The Independent reports) was the genuine article, that there was massive abuse or had been abuse on a massive scale. Questions were raised about that. I did actually meet some former members of staff from Bryn Estyn and I decided the only thing I could reasonably do was go to North Wales and begin to be an investigative journalist, although I was not one. That is what I started to do. I will not go into details about my investigation, but really, it would be true to say, that by having started investigating North Wales before the Tribunal was ever convened, I then decided I must look over the border in Cheshire and Merseyside and ever since then, on and off, I have been investigating these cases simply because, I think, of the sheer horrifying nature of the miscarriages of justice which they have undoubtedly produced.
43. It is not your case, is it, that all or most of those convicted are miscarriages of justice?
(Mr Webster) Absolutely not, although I think having said that there has to be a reservation. I have always argued that one of the great tragedies of what is happening at the moment is that if we allow into the currency of allegations, without question, the number of false allegations—which I believe we are now doing—then we debase the entire currency of allegations. The victims ultimately of that are the people who genuinely have been sexually abused and I think it is very important that we should recognise that. There is no doubt whatsoever in my mind that there has been sexual abuse and physical abuse in children's homes and indeed in every other kind of home and institution where adults and children reside together. That, I think, is something we should recognise and it is very important that we should not obscure that, but the people who are obscuring it, I would say, are the people who are not being critical about false allegations; not being critical about allegations and not examining them rigorously.
44. Mr Woffinden, I thought I saw you nod at the suggestion that most of those convicted are innocent.
(Mr Woffinden) I think the position we find ourselves in is that we certainly believe that some of those who have been convicted are guilty of some of the things they have been convicted of. That is certainly clear. From my own perspective I have to say that most of the cases I have looked at I have become very concerned about. Obviously one has to add the rider that people are only going to get in touch with me in the first place because they believe they are the victims of a miscarriage of justice and that people who have been correctly convicted are not going to bother to get in touch with me.
45. Is this an area where everyone who is convicted, or just about everyone, protests their innocence? Mr Rose?
(Mr Rose) In trying to answer that question, and also the question you were aiming at earlier, to give perhaps some kind of idea of the proportion of people who may be as criminologists say factually guilty, it might be worth looking at a single home where I have looked at a number of cases, namely Greystone Heath which was formerly near Warrington in Cheshire. Roy Shuttleworth was one of the people convicted there. His case is before the CCRC. He was the main subject of the Panorama programme I made. I looked into the evidence given by each and every one of the seven complainants in that case and I have simply no doubt in my mind that each and every one of them was lying. If you look at the people who have also been convicted from that home, two of them pleaded guilty, Alan Langshaw and Dennis Grain. Neither, to directly answer the question you raised, has ever protested their innocence or suggested that they were in any sense a victim of a miscarriage of justice. Of the other two convicted from Greystone Heath, one is a man called Brian Percival who I have absolutely no doubt was innocent and his conviction was quashed by the Court of Appeal; the fifth individual is called Keith Laverack who protested his innocence. From what I know of his case—and I have not looked at it in exhaustive detail—I think there are serious grounds for concern. If we take that sample of five individuals who worked at that home over approximately a 15 or 20 year period, I would say that two were factually guilty and three were innocent.
46. Mr Woffinden?
(Mr Woffinden) We believe we are dealing with a considerable problem here that certainly has not been fully recognised yet. If I could just refer to this piece in the press notice where whoever has written this has said "People convicted of sexually abusing children are more likely to continue protesting their innocence than any other category of prisoner", I know of no evidence to support that.
47. I said that really as an observation and from the vast quantity of letters I receive on this subject because people know I have taken an interest in miscarriages of justice over the years. It seems to me that quite a lot of them have a case to answer but are not facing up to that.
(Mr Webster) I am afraid I cannot give details but I do recall a university academic who I believe came from the University of Southampton who, some years ago, took that proposition, the one which Bob has referred to, and examined it. He came to the conclusion that it may be the case that the reverse was true. I am sorry I cannot provide details with that. There is one other point which I think it is important to raise when we are talking about those who are indeed guilty of some of the crimes which are alleged against them. I am not going to name the person, but David just now talked about some people who had not protested their innocence. He is quite right. However, one of those people I interviewed in prison because I wanted to know more about the background to that case. That was an extremely telling interview because what he told me was that he was indeed guilty of the indecent assaults, or at least some of the indecent assaults, which were on his very long indictment. Indeed, he also said that he was relieved; he felt relieved when he was finally arrested and questioned on these counts because he felt he had, I think he put it, gone off the rails. He also said that what he never anticipated was that, when he went to the police station in the spirit of wanting to help the police establish what had gone on, he would find himself facing a large number of much more serious counts than he had ever engaged in. He said that he had never engaged in the act of buggery with anyone and the terms in which he said that were, to me, convincing. What he was, in effect, saying—he was not complaining about his conviction, he was not complaining about his sentence—was that he had been advised by his barrister to plead guilty because that would lessen his sentence; to plead guilty both to those things he had done and to those things he had not. I have interviewed in prison another prisoner in the company of the solicitor, Chris Saltrese, who will be giving evidence to this committee, who has said almost exactly the same thing. I have absolutely no reason to doubt that. It is also true that Christian Wolmar who, I think it would be fair to say, is at the polar opposite—or was when he wrote his book about this issue on the other side from the three of us who sit here—actually singles out that point and endorses it from his own experience. I think the reality is—and this is a frightening reality—that in this climate it is impossible, I would say, absolutely impossible, for anyone who is genuinely guilty of some offences, if they have been the subject of a police trawling operation, for them not to find themselves facing a very significant number of allegations of which they are not guilty, and very difficult for them to plead not guilty.
48. Mr Webster addressed this point earlier; perhaps I can ask the other two witnesses. We accept, do we not, that an enormous amount of child abuse went on in institutions where, as Mr Webster put it, adults and children live together, in years gone by. Do we accept that or not?
(Mr Woffinden) We certainly accept that, but what I think we are saying is that the amount that did go on has been magnified in recent years by methods such as that which Richard has just mentioned. The general public perception has become, I think, that most of these care homes were being run by bunches of paedophiles throughout the seventies and eighties. That is obviously a completely inaccurate perception.
49. Can you just give us some idea of the number and scale of police investigations into past cases of child abuse. Any ideas?
(Mr Rose) There have been to date over 90 either concluded or on-going investigations involving, I believe, at least 34 of the 43 police forces in England and Wales and others in Scotland and I suppose Northern Ireland if one includes Kincora. If I could pick up on the question you asked Mr Woffinden just now, I think that the media has played an extremely negative role here in inflating the scale of allegation. It becomes a kind of self-reinforcing loop as the impression is constantly created and fed through the media that these homes were all sort of charnel-houses of violence and paedophilia, so more allegations are encouraged so that the compensation culture is fostered and you get a sort of self-justifying self-sustaining spiral effect. If we take one specific example which clearly had an enormously powerful effect, it was the BBC drama Care shown about 18 months ago which was an extraordinary mendacious representation of what it was really like in North Wales children's homes. An element of sexual and physical abuse did take place at those homes, it is virtually certain, but what was portrayed was a version of a real life case which, really without any reliable evidence at all, was then used to create this picture of rings of paedophiles outside the home who were preying on boys from the home who were then passed around. These things never happened and when a television station and a newspaper—regrettably my own, The Observer—on the basis of this extremely unreliable evidence had the temerity to suggest that this had gone on, they were sued and went down for very large sums of damages. Those alleged to have been part of this fictitious paedophile ring walked away with, as I say, a very large libel victory. Just apropos that I think one idea which I would like very much to plant in the minds of the committee is this: in none of these cases, in no example of these 90-odd investigations has a so-called paedophile ring ever come to light. There were no paedophile rings in care homes and similar institutions in this country. There were individual paedophiles and abusers operating in some cases with impunity for some years. There were no rings.
50. And the other two witnesses agree with that last point, do they?
(Mr Webster) Yes, I think it is terribly important that we recognise the extent to which the mythology of the paedophile ring centred on children's homes is precisely that: it is a mythology. That myth started and there was much reference to it at the time in the House of Commons in relation to Kincora. I am afraid I do not have the dates of Kincora but we are talking I think early 1980s in Belfast, of course. I think it should be placed on record that the BBC journalist who has investigated that case most thoroughly, and, I have to say, rather credulously in relation to allegations, has gone out of his way to make it absolutely clear that stories that Kincora was the centre of a paedophile ring have no substance whatsoever and those allegations have never been made by the complainants who were there.[1] I do not want to get sidetracked into Kincora, but going back to the scale of what is going on, I think it is instructive to look at individual police operations. There is one individual police operation which is in South Wales, it is not the South Wales Police Force, it is the other one, Gwent. They are investigating or have been investigating Ty Mawr which had a secure unit so it had some of the most difficult teenagers. They identified seven thousand former residents of Ty Mawr and it was their intention, when they set out on their investigation, to interview all seven thousand. When I spoke to a senior police officer some two years ago they had then clocked up three thousand witnesses whom they had already interviewed. From those interviews they had identified a hundred suspects. Allegations had been made against no fewer than a hundred former members of staff. I think one of the things which is interesting about this Ty Mawr investigation is that during, I think it was in 1990 or 1991, Ty Mawr was the subject of an investigation which was conducted by Gareth Williams QC (as he then was, later to be Lord Williams of Mostyn) and he was satisfied. I believe he conducted a very thorough investigation and a very sensitive one. He was satisfied that there had been no sexual abuse and no serious physical abuse. He did criticise a regime of cuffing and minor physical violence. We could go on and go through other investigations in South Wales which, I have to say, I believe is where one of the most dangerous trawling operations is being conducted by the South Wales Police. Again, this is now going back a year or so. It has been reported that they had investigated at that point 81 different homes and that they had trawled allegations against 581 suspects. Even if we look at just those two tiny corners of what is happening nationally, I think it brings home something of the scale of what is happening. I would also say that it is my own considered view, and I know that this is shared by some lawyers, that it is likely that when we are talking about 581 suspects being identified, the vast majority—and I am thinking of well in excess of 80 per cent, possibly in excess of 90 per cent—of those people will be completely innocent.
51. Just sticking with Mr Webster for a moment, you say in your memorandum that the emergence of trawling dates from a shift in the law in 1991. I think you refer to the Boardman case. Are you aware that the police were adopting a different sort of approach to these sorts of investigation before 1991, and if so how did it differ?
(Mr Webster) I think that the problem so far as the police were concerned—and I do not think it is something which they saw as a problem—was that so far as those seeking convictions in care home cases before 1991 it was rightly, I believe, difficult to obtain those convictions in the court. I say rightly because when we are dealing with long delayed cases, allegations referring back to events which supposedly happened 20 or 30 years ago, that in itself creates the conditions for dangerous trials. It was very difficult and, as I say, rightly difficult for police to get convictions. When the law was changed in the case of DPP v P in the House of Lords in 1991 (I have talked about this in my memo and I will not go into the details now) what the House of Lords did at that point was to remove one of the vital safeguards against wrongful convictions by striking out the demand for there to be striking similarities between allegations before those allegations could be admitted in a single trial. There was huge pressure on the House of Lords throughout the 1990s and, indeed, it goes back much further than that to the very beginning of the 20th century, to lower the threshold of evidence precisely in order to get convictions where convictions had previously been difficult to get. There was an increasing disregard for the problem which that brought with it, namely that if you lower the threshold of evidence the reason that the threshold of admissibility is there is in order to protect innocent people from being wrongly convicted. At a certain point, particularly in the 1990s, it seemed that the House of Lords no longer took account of that in their rulings and it was no other person than Gerard Elias QC, Counsel to the North Wales Tribunal who in his opening statement to the Tribunal actually made specific reference to this House of Lords ruling and said that previously—I think I am remembering his words correctly—the issue of obtaining convictions had been clouded by the matter of corroboration and that by removing the demand, or by simplifying it, it was easier to get convictions as a result of the 1991 House of Lords decision.[2]
52. I just want to deal with this in layman's terms. What did the Lords say? That it was enough to have a number of similar allegations and that you did not need any corroboration apart from the allegation itself? Is that what they said?
(Mr Webster) Yes. I think we have to recall that this happened in two stages. When similar fact evidence was admitted originally—which is normally excluded because of its prejudicial charge—the classic cases involved murder cases where there was no dispute about the facts that were being admitted. There was no dispute in the case of R v Smith in 1915 that three of the women that Smith, the defendant, had recently married, had all died in their baths shortly after they had made financial arrangements in his favour. There was no dispute about that. There was no question, as one of their Lordships said in 1975 in a judgment, of any of the witnesses for the prosecution telling lies. What happened was that in 1946, under pressure to get convictions specifically against homosexuals, or alleged homosexuals, there was a decision taken basically to allow allegations which, of course, might be false, to be admitted on a similar fact basis. At the time, or certainly subsequently, the House of Lords was very much aware of the danger that what this in practice meant, or might mean, is that an innocent man might find himself facing a series of false allegations. One of the ways in which those might have come about was that they might have been concocted. This was something against which the House of Lords wanted there to be safeguards and in the 1975 Boardman judgment which was crucial in the history of all this, they said quite clearly—or one of their Lordships said quite clearly—that if there was any question of contamination of the witnesses having, if you like, gleaned their allegations from some common source which was not the criminal conduct of the defendant, then those should not be admitted as similar fact evidence. Also, it was always felt—and indeed still is felt by most lawyers—that you cannot prove that a man committed one crime by offering evidence that he committed another crime. The exception was made, originally in these murder cases, that if there were striking similarities, such as those in the Brides in the Bath case to which I have already referred, then it could be argued that in a sense logically the two crimes were so closely related, were so strikingly similar, that evidence in relation to one could be logically probative in relation to another crime. What the House of Lords decided in 1991 was that they would do away with the criterion of striking similarity and basically allow evidence in on the basis of mere similarity.
53. Just to clarify that point, is it right that after 1991 the mere volume of accusations was sufficient.
(Mr Woffinden) That is right. The first major case you get after this change in the law in 1991 is the Frank Beck case which is one I have looked at myself. In that case Frank Beck faced a ragbag of allegations of sexual and physical assault against adolescents and children. Frank Beck was the first fully qualified care work ever employed by Leicestershire County Council and he had had a very good reputation prior to these rumours gathering in the area. A lot of allegations were put against him. When the case went to trial he did not have a QC. Some of the allegations were disposed of at trial and he was convicted on others. The judge clearly felt that he was a seriously evil person and sent him down for five life sentences. Frank Beck himself had always said he would be happy to plead guilty to the physical assault charges. This had been in the 1980s. He had led a rather robust regime at this care home, but he was always absolutely emphatic that he had never committed any sexual offences against children or adolescents. What happened then, of course, was that he had just arranged to get a strikingly good legal team. He had taken his case to Anthony Scrivener QC (one of the major QCs at the time) and then he died after a game of badminton in prison. Almost simultaneously his solicitor was also killed in a traffic accident. This actually had a devastating effect on this whole process because it meant that the Frank Beck case could never be properly re-investigated at appeal, so the myths about that case gathered pace, I think.
54. Yes, very briefly Mr Rose.
(Mr Rose) Just to clarify this point, the case of P does not actually say you can corroborate by volume, but the effect of the judgment is that is what it led to. What the judgment says is that you do not have to have striking similarity. So, to take a hypothetical case, you could have a sexual abuser who always used a particular method of grooming his victims, as paedophiles do, and would then carry out a specific type of assault in a way that really did indicate that an individual had, for the sake of argument, a particular kink. There you could see a pattern that would have some logical probative value if aired in court. Once that striking similarity thing is removed and so all you have to say is that this person likes abusing boys in his care—which is what it comes down to—then, of course, the gates are open and the pressure is on the police to go and find as many victims as possible to stand up this allegation. They have an initial allegation, then find as many people as possible who simply have to be boys who were at the home and say they were abused in whatever way, in whatever circumstances, in whatever place by this man. Mike McConville, Professor of Law at Warwick University now on secondment as Chancellor of the University of Hong Kong said in my Panorama film that what you have is a series of individually weak worthless allegations which prop each other up like a wigwam. If you imagine a wigwam, the more poles you have the stronger the wigwam will appear to be. In fact you can take away three, four, five even ten (if you have twenty poles—as there are in some of these cases) and it will still stand up.
(Mr Webster) He also used the even more striking image of two drunks propping themselves up in the street, which I think is even more apt in that it points to the unreliability and weakness of the allegations concerned.
David Winnick
55. Any miscarriage of justice is absolutely deplorable and should be put right, but the impression that I, for one, got today was that the amount of sexual abuse which happens in children's homes has been—I think Mr Rose used the word—magnified. Can I put to you a different view point, namely that the amount of sexual abuse which has been going on has been far more extensive than what has come out up until recently. Indeed, to a very large extent there has been, until a few years ago, a cover up. Far from being magnified one would argue that far too much sexual abuse and violent abuse against children, who have no defence being in such homes, went unreported, no charges were ever made. Do you think there is any substance to such allegations?
(Mr Rose) I think in a sense we are both right. I think it is absolutely true that a large amount of physical abuse and a certain amount of sexual abuse was, in effect, covered up for many, many years. Victims who did complain were often ignored. Although in some cases they were not ignored and their cases were investigated thoroughly contemporaneously and in some cases did lead to successful prosecutions. I do think the extent to which there was an alleged climate of fear has been exaggerated. I think there were people who did complain contemporaneously and were taken seriously, but I would broadly agree that there was abuse that did not get taken seriously.
56. Over a period of years.
(Mr Rose) Over a period of years.
57. And many, many lives were damaged as a result of that. You do not deny that?
(Mr Rose) I do not deny that for one second and I do not think any of us would. However, I think we now have a situation where many more lives are being irreparably damaged, often people who are at the end of their careers or in retirement who have in fact led blameless lives, working selflessly for poor salaries with very difficult youngsters, who suddenly find a knock on the door and at the end of a gruelling and humiliating process a fifteen year prison sentence. I would like to make the point that for somebody of, say, 67, a 15 year prison sentence is probably a death sentence.
58. For anyone who is innocent, who is in prison and is innocent, that is deplorable. We would not like it to happen to us and there is no reason why it should happen to anyone else. But, Mr Woffinden, I got the impression, perhaps wrongly, that when Mr Rose—and indeed very early on in the evidence given, Mr Webster—said there had been widespread sexual abuse of children which went unreported, that children's allegations were not taken up by the authorities in any way whatsoever (I have perhaps put a word or two into your mouth, Mr Rose) do you agree with that, Mr Woffinden?
(Mr Woffinden) I think I have answered this already when I said that obviously most of the people coming to me are coming to me because they believe themselves to be victims of miscarriages of justice.
59. I understand that, but do you accept what Mr Rose and Mr Webster said?
(Mr Woffinden) In a sense I have no information on which to determine that. Obviously I believe the broad suggestion that yes, abuse went on and that it was tolerated or unrecognised for some years and there was certainly more physical abuse than sexual abuse. I would like to put in one other thought here, which is that in a sense there are two windows of opportunity for people if they were abused in care homes to make their feelings known. The first was in the short or medium term after the offence had occurred. The second was after there began to be national concern about what had gone on which, we might say broadly, was from the 1990s onwards. In a lot of the cases we are dealing with at the moment where people are coming forward now with allegations against particular care workers, there is actually no history at all of these people having complained at an earlier stage at either of these windows of opportunity which I have identified. People have tried to claim that they said something about it at the time, but quite often those suggestions have not really been proved in court.
1 Note by witness: Chris Moore, The Kincora Scandal: Political Cover-Up and Intrigue in Northern Ireland, Marino Books, Dublin, 1996, p.7. Back
2 Note by witness: `In relation to allegations of sexual abuse . . . questions of corroboration clouded the issue for much of the period, but at least since the House of Lords decision in DPP v P (1991), the prosecution of those against whom more than one similar offence (or type of offence) is alleged has been made procedurally and evidentially easier.' (Gerald Elias QC, North Wales Tribunal Opening Statement, Press Copy). Back
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