MEMORANDUM 53
Submitted by Keith Robinson, Jackson Canter Solicitors (CA 199)
1. I am aware that you are conducting an inquiry into possible miscarriages of justice arising from the conduct of investigations into alleged abuse at Children's Homes.
2. Some of these allegations relate to incidents which occurred many years ago.
3. You are particularly interested in the "trawling" accusations against the Police.
4. You are concerned about the Crown Prosecutions' role.
5. You are concerned about time limits.
6. You are also concerned as to whether people are encouraged to fabricate or exaggerate allegations in order to receive compensation.
The reason my attention was drawn to your Committee and its inquiry were by the reported comments to you by a Mr Rose who is a Reporter with The Observer Newspaper.
He makes various allegations against me and my Firm which I will deal with first before going on to the wider issues.
MR ROSE'S EVIDENCE TO THE COMMITTEE
Apparently during the course of his evidence Mr Rose informed you that he had spoken to me. I do not remember speaking to him although during the course of my involvement with these types of cases over the last seven years (details are set out below) I have spoken to a number of Journalists. The exact number of cases that Jackson and Canter now have in this field are between 150 and 200 and Mr Rose is mistaken if he believes that I told him that a high proportion of those clients were referred to me by the Police. What I said to him was that the vast majority of those clients had been to the Police to give evidence and made statements against their abusers. The referrals to Jackson and Canter have come from many forms and only a minority have come through direct referrals from the Police. Mr Rose refers to John Robins, a Police Officer whom I have met on two or three occasions in order to obtain from him information about the background to the Homes that the Police and ourselves have investigated. It must be remembered that the Police investigated the criminal proceedings, we investigated the civil proceedings.
I have also cross-examined John Robins at a number of CICA applications by my clients. Other than that I have no connection whatsoever with John Robins.
How Mr Rose can interpret this as a "symbiotic relationship" is bizarre.
The dictionary definition suggests that in effect John Robins and I cannot live without each other from a professional point of view. This is wholly inaccurate as the above hopefully points out.
The reason I have dealt with Mr Rose's comments is because although it specifically deals with my firm it has a wider importance for your Committee's consideration.
My experience with the Police has been even-handed with both the Claimant's Legal Advisers and the Defendants' Legal Advisers.
Indeed you may well be referred to what is known as the Cambridge Protocol whereby information can only be obtained from the Police in relation to unused material by an application being made to the Court and the application in effect has three Parties to it, firstly the Applicants, secondly the Defendants and thirdly the Police Force involved in the criminal investigation.
Only when a Judge had decided that all Parties are happy to release the information in the format set out by the Cambridge Protocol will an Order be made.
That information is then looked at at the same time by both the Claimants' and the Defendants' Legal Advisers in the presence of a Police Officer.
This is an entirely appropriate process and is fair to both Claimants and Defendants.
In my dealings with Merseyside Police I have to say that they have been scrupulously fair to me.
They have not issued information to me when a trial has been pending and the criminal statements of my clients have not been released to me despite me obtaining my clients' authority to obtain them until the criminal trial has been completed.
Again in my experience the Police have been extremely concerned that the evidence that they have obtained is not tainted by the Claimants' Solicitors' actions or by the Claimants' instructing various Solicitors to obtain compensation for them.
I believe therefore that Mr Rose's evidence gives a wrong overall impression and I hope that you will consider my evidence set out in this document closely and carefully.
THE GENERAL ISSUES
There is a ground swell of opinion especially from organisations like FACT which suggest that the pendulum has swung too far towards Claimants in relation to these type of cases.
If anything I believe the pendulum has swung too far towards the Defendants and that people who are capable of the most horrific crimes are hiding behind "abuse of process". In dealing with the issue therefore of miscarriages of Justice I would urge upon the Committee and Parliament to allow the Court to decide for each and every case both in the criminal Trial and civil Trial which may follow thereafter who is culpable or not as the case may be or who is liable or not as the case may be respectively.
It is my belief that it is not the role of Parliament to interfere or fetter the judicial discretion or impartiality and these cases should not be set apart from the rest of the Legal System as such a response by Parliament would, I believe, lead to unnecessary interference of the judicial process.
If the criminal Court Judges have been able to find abuse of process where they believe it exists, juries have convicted abusers where they believe the abuse has taken place.
I ask the question "What is wrong with that"?
Turning now to your specific concerns I will deal with them in order:
1. The word "trawling" has taken on a life of its own.
In my view this is no more than the police taking the precaution of obtaining corroborative evidence.
As you know these allegations relate to alleged offences which took place many years ago and therefore the police have been sometimes, in my view, over vigilant in obtaining that corroborative evidence but one can see where their caution comes from.
It is also the case that Mr Smith for example told the police that he was not abused at Home A, but he was abused at Home B, and if at the time that allegation is made Home B has not been investigated it is right that the police should start investigating those allegations relating to Home B, and seek evidence from other inmates at that Home at the time in question.
That seems to me to be a proper way forward by the police and if they didn't do that there would be an outcry because they were not investigating the allegations properly and fully.
The police are in a "no win situation". What I can tell you is that I have had a number of clients who have been distressed by the way in which the police have not investigated all the allegations that have been made and I believe that one of my clients in particular will be writing to you specifically about this point because he received a copy of the Home Affairs Press Notice and was so incensed by the contents that he has written to you separately from me.
The police are damned if they don't investigate. The police are damned if they do.
The question of the Crown Prosecution's role in this matter is more difficult for me as I do not know how that relationship impacts on the police and therefore I do not believe that I should comment thereon.
In relation to the time limits, I do not believe that time limits should be imposed by Parliament and again the Judiciary should have a discretion. Is it right that someone in their 80's or 90's who is alleged to be a war criminal should be taken through the judicial process. My answer to that would be "yes, it is right". If he is too old or too frail to stand Trial or he feels there is abuse of process then the requisite application can be made to the Court by his Legal Advisors.
However, it would be wrong of Parliament to impose their own arbitrary time limits without allowing the Judiciary to use their discretion in each and every case.
In a recent civil trial which has just been completed at Liverpool in relation to a small group Home owned by Liverpool City Council in Ternhall Road, Liverpool there were arguments used by the defence to say that the Limitation Act should apply so that it wasn't possible for the City Council to have a fair trial.
The Judge dismantled this argument in his judgement and allowed the cases to be successfully fought by the Claimants under the provisions of Section 33 of that Act and this applied the three year limit in relation to negligence cases imposed by the Act and therefore dis-applied Section 11 of that Act.
The Judge did not do that in an arbitrary manner. He did not deal with it on a generic basis for the whole group.
He dealt with each and every individual Claimant one by one to see whether proper discretion should be applied.
This was an entirely proper way of proceeding. The City Council may have won the argument on the day. The fact that they did not does not mean that there has been a miscarriage of justice.
As a postscript of the above I can tell you that the allegations that were being made by half of the Claimants occurred in the 1960s and two abusers of children went to prison for their involvement.
I would say that that is our Legal System working well.
In relation to the issue as to whether advertisement of respective awards of compensation in child abuse cases encourages people to come forward with fabricated allegations is a risk worth taking for the following reasons:
1. It is more than likely that if someone does come forward with a fabricated allegation they will be found out very early on in either the criminal or civil process.
2. In the criminal process the police were extremely well trained in considering the Complainant they have in front of them in assessing whether he or she is going to be a strong or weak witness.
Secondly, during the course of any criminal trial the witnesses for the Prosecution are at question almost from the beginning of their cross examination about their motivation which it is alleged is inspired only by the hope of obtaining compensation.
Thirdly, any Criminal Injuries application is vigorously examined by the CICA and the majority of cases' awards are not given until the Applicants actually go before the Panel to adduce evidence after being turned down twice by the CICA and using their procedures.
Fourthly, the Lawyer who deals with the civil action is going to be very aware that he may have someone in front of him who is simply jumping on the bandwagon. Virtually the first step that that Civil Lawyer takes is to have the Claimant examined by a psychologist or psychiatrist and some of the Claimants are sifted at that point and told that they can go no further.
Sixthly, Leading Counsel and Junior Counsel will then analyse the statements of each and every Claimant in a Group Action to decide whether any of the Claimants are not being wholly truthful and build up a picture of the allegations that are being made generally by all the Claimants. If one statement seems at odds with the other statements then clearly there is a problem and that particular Claimant's evidence would be revisited and vigorously examined.
Finally of course, in the civil proceedings the Claimant will, where possible, not be subject to cross examination.
All this is distressing to any legitimate Claimant but because of the wrong that has been done to them they are in the main determined to go through the whole unpleasant process.
If at the end of the day they obtain compensation for the wrongs that have been done to them then I would say that that is an appropriate way forward rather than denying them the opportunity.
If would be a very brave fraudster indeed who, in finding out about the investigation, puts himself forward as someone who was abused when he wasn't.
It neither helps the police nor the Claimants' Solicitors in the civil matters to allow such a person to be part of the investigation or the Group Civil Litigation Action.
It would have been interesting for the Committee if they had been in Court during the recent Ternhall Road Litigation to hear the evidence of the Claimants and to hear their harrowing tales and the effect that it has had on them even now some 35 years later.
The Committee could then judge for themselves whether fabrication had taken place in this particular case or not.
I would hold that case out as an individual case which illustrates generality of the situation.
June 2002
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