Examination of Witnesses (Questions 340-359)
MR PETER GARSDEN AND MS FRANCES SWAINE
TUESDAY 11 JUNE 2002
340. I think it would be helpful to know how Ms Swaine came into this type of work.
(Ms Swaine) In 1991 I was approached by a journalist from The Observer who had written an article about a discovery he had made about children who had been migrated from this country to primarily Australia and New Zealand, child migrants who had been sent by various charitable bodies in this country, the Roman Catholic Church primarily and other associations like Barnados and so forth, to Australia and he had discovered that a lot of these children had not had a happy life over there at all and had suffered various types of abuse while within the organisations there. Sadly, the British Government had not really kept an eye on what happened to them when they got to Australia and New Zealand, and in fact there was a Health Committee inquiry into this about three years ago which I gave evidence to then. I was sent by my firm to Australia on a trip to see exactly what had happened, and this was not primarily at that time to find out about sexual abuse, but what I discovered when I got there through what was in fact a horrendous ten days was disclosure by many grown men and women who had been abused in the 1950s and 1960s primarily again by the Catholic Church, brothers running the Catholic institutions, and again there were other institutions there. It was thought at the time that I was investigating it that those cases could be brought to the English courts. It transpired in fact that the cases were brought in Australia and have mostly been settled there.
341. When you say "abuse", do you mean physical abuse or sexual abuse?
(Ms Swaine) Well, the cases that I dealt with were primarily sexual abuse, but the suffering that the children had had covered the full gamut of what happens in children's institutions and that was my introduction to the work. I had about 300 clients between 1991 and 1995 when we decided that due to limitation problems primarily, we were not going to be able to proceed any further, but it was at the time when there did not appear to be anyone else in this country dealing with those cases.
342. You say you had limitation problems, but I thought there were no limitations involved in this area.
(Ms Swaine) Well, the limitation law, for cases stretching back into the 1940s and 1950s the limitation law is much more complex than a lot of what you will be hearing about in evidence to the Committee today. I think primarily today we all handle cases in the 1960s and 1970s where the limitations law were changed yet again and caused problems because of the Section 33 discretion.
343. Would you agree with what Mr Garsden has said?
(Ms Swaine) I think I would agree as his experience sounds very similar to mine. I did not nearly lose a marriage, but I nearly did have a breakdown. At the time there was nobody to counsel anybody who had had the effects of so much disclosure by people who had never disclosed before and as far as looking at wrongful disclosure or memories that were falsely made up, I do not think it would have occurred to me at the time, or since in looking back, that any of that was driven by compensation. It was people who were reliving memories, fearful memories, and were really looking for apology and help rather than the desire for any money, even though that perhaps came later.
344. You are the Association of Personal Injury Lawyers. Are you also a member of the Association of Child Abuse Lawyers?
(Ms Swaine) I am, yes.
345. What percentage of your work is taken up with cases of this kind?
(Ms Swaine) It is probably about 20 per cent nowadays. I specialise in abuse of children who have learning difficulties, not so much adults generally in children's homes.
346. So most of your work is taken up with abuse of children of one form or another?
(Ms Swaine) No, it is a mixture. It is about 20 per cent which is taken up with abuse of children overall.
347. Whereas in Mr Garsden's case it sounds like 100 per cent. Is that right?
(Mr Garsden) Yes, that is correct, me and about 20 others.
348. Do you concede, and we touched on this a moment ago, Ms Swaine, that some former inhabitants of children's homes make false claims?
(Ms Swaine) I have never come across it. I think it was something which before, reading some of the evidence before the Committee, was being suggested. I thought I would touch upon it simply because it was evidence which appeared to have been given before, but it is not something that I have ever come across myself.
349. So you believe all the claimants who come to you?
(Ms Swaine) I have not experienced anybody coming to me whose claim appears to have been made up in any sense whatsoever.
350. Are you aware of cases that have collapsed because witnesses have clearly given false evidence?
(Ms Swaine) Well, I do not deal with any criminal work so I simply look at civil litigation claims, and I have not undertaken any criminal cases and I primarily work in negligence civil litigation in the courts. I have not undertaken any that have collapsed because the criminal case has collapsed.
351. I see, so they would not tend to come to you if they had collapsed, but you would deal with a valid conviction or something?
(Ms Swaine) Yes.
352. Do you concede that people remembering events of 20 or 30 years can make mistakes?
(Ms Swaine) I think as a general principle, that must be true, but as far as
353. Well, as to identity, for example.
(Ms Swaine) I think most people who have been abused will remember the actual act itself and will have living pictures which they rehearse again and again throughout their lifetime. I cannot imagine any people who have spoken to me about them by giving statements making them up.
354. But do you concede that cases have fallen apart or perhaps they have never reached court because once the records have been examined, it becomes clear that the person against whom the allegation is made was not in the home at the same time as the complainant? Do you recognise that?
(Ms Swaine) Well, it is not something which has ever happened to me and we would always make a very careful examination of social work records, records from the homes, records from various doctors who were available at the time. The records from the home, if available, and the social work records usually specify the people who were dealing with the children concerned and it would be something where theoretically, it has not happened to me, but theoretically I would have a concern about somebody who made a complaint about somebody who appeared not to be working in a children's home and I might have to advise that client that it was unlikely that there would be any point in proceeding if it appeared that the person was not there.
355. But it has never happened to you?
(Ms Swaine) That is a generality, but it has never happened to me.
356. Mr Garsden, do you concede that sometimes inhabitants of care homes make false claims?
(Mr Garsden) I can only give the same reply as my friend. I think you have to look at this in the round rather than the narrow. I think the danger has been, from the evidence that I have read, that what we are here concentrating on is a tiny, tiny slice of the complete and whole child abuse sex offenders market, if I can be as crude as that, and inevitably you will have received the statistics as to how many people have been investigated by the police, how many of those end up giving evidence and being prosecuted, how many witnesses are interviewed in comparison to the number that actually appeared before the court, and, even further than that, the number of those who are able to establish a sound conviction as a complainant and then the number of complainants that go on to claim compensation. You will find that the vast majority of the abusers brought before the courts plead guilty, 80 per cent I think it is, and a tiny proportion of those who are investigated by the police end up facing charges, so what we have here is not a large number of falsely accused victims of a police system that creates injustice, but rather a huge number of sex offenders walking the streets of this country who are never, ever punished for what they have done wrong and that is because the victims or the survivors, as they now are, find it very hard to come forward and make statements.
357. Well, it might also be because after a lapse of 20 or 30 years it is very difficult to have evidence which would satisfy a court.
(Mr Garsden) Of course it is and we have a very good, one of the best court systems in the world and the veracity of that is evidence. I think what you are talking about here, a typical example, perhaps the worst example I have come across is a man operating in a home who has pleaded not guilty and still maintains his innocence over 20/30 years, who faced 40 to 50 allegations of abuse, who stands two trials because they are severed because there are two different homes, who put these complainants in the box over a two or a three-day period, with highly-skilled QCs accusing them of telling lies over and over and over again, witnesses who have criminal records as long as your arm who are listened to by juries and their evidence, believe you me, is far too rigorously tested, and the amount of damage it causes them when they give evidence beggars belief, and the juries, after hearing that, still believe them. They then go on and appeal, they apply for leave to appeal or appeal and are refused and when they are in prison, the relatives of them who cannot believe that they have done anything wrong simply because they are often the fathers of the children speak very loudly of their innocence and not surprisingly so, and those same people languishing in prison want to establish their innocence and quite rightly so. It is a tiny slice of the overall market, a tiny, tiny slice and we must not be led into believing in this Committee that that is typical of the child abuse market, if I can put it as crudely as that, because it is not.
358. But you do concede that there will be some, albeit a small number, of people who have been wrongly accused?
(Mr Garsden) I do not know whether there are any wrongly accused people or not. If there are, then I will do everything I can to extricate them from prison and give them compensation. One must believe that if one is to believe in the system of justice in this country.
359. You represent how many cases?
(Mr Garsden) We at the office deal with about 400 individual cases. We co-ordinate as group lead solicitors about 400 further cases, but the number of cases grows every day.