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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Lillie & Anor v Newcastle City Council & Ors [2002] EWHC 1600 (QB) (30 July 2002) URL: http://www.bailii.org/ew/cases/EWHC/QB/2002/1600.html Cite as: [2002] EWHC 1600 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| CHRISTOPHER LILLIE & DAWN REED |
Claimants |
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| - and - |
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| (1) NEWCASTLE CITY COUNCIL (2) RICHARD BARKER (3) JUDITH JONES (4) JACQUI SARADJIAN (5) ROY WARDELL |
Defendants |
____________________
Mr G Bishop, Mr I Christie and Ms S Mansoori (instructed by Wragge & Co) for the
Newcastle City Council and the Review Team
Hearing dates : From 11th January 2002 to 20th June 2002
____________________
Crown Copyright ©
| Para. No | ||
| 1. | The factual background | |
| The events of April 1993 | 1 | |
| The widening of the investigation | 11 | |
| The disciplinary process | 17 | |
| The criminal proceedings | 24 | |
| The steps taken by the City Council meanwhile | 56 | |
| 2. | Christopher Lillie and Dawn Reed | 77 |
| 3. | The Review Team's Report published on 12 November 1998 | 114 |
| 4. | Media coverage of the Case | |
| The Newcastle Chronicle | 141 | |
| Other media coverage | 294 | |
| 5. | The issues raised in the litigation | 322 |
| 6. | What is the correct approach to justification? | 354 |
| 7. | The expert evidence relevant to child abuse | |
| Introduction | 381 | |
| Dr Jane Watkeys and Dr Kathryn Ward: The paediatric evidence | 383 | |
| Professor Maggie Bruck and Professor William Friedrich: The "disclosures" | 401 | |
| Dr Sandra Hewitt and Dr Hamish Cameron: Child Behaviour | 473 | |
| 8. | The evidence of multiple abuse | |
| General Introduction | 503 | |
| The evidence of Dr Camille San Lazaro | 540 | |
| Child 1 | 559 | |
| Child 2 | 588 | |
| Child 3 | 604 | |
| Child 4 | 614 | |
| Child 5 | 623 | |
| Child 6 | 634 | |
| Child 7 | 643 | |
| Child 8 | 663 | |
| Child 10 | 672 | |
| Child 11 | 711 | |
| Child 12 | 726 | |
| Child 14 | 737 | |
| Child 15 | 803 | |
| Child 17 | 807 | |
| Child 18 | 822 | |
| Child 19 | 827 | |
| Child 21 | 840 | |
| Child 22 | 860 | |
| Child 23 | 900 | |
| Child 24 | 921 | |
| Child 25 | 949 | |
| Child 26 | 969 | |
| Child 27 | 981 | |
| Child 28 | 997 | |
| Child 29 | 1008 | |
| Child 30 | 1020 | |
| Child 31 | 1034 | |
| 9. | The evidence called for the claimants on the abuse issue | 1051 |
| 10 | The privilege issues for the Review Team | 1085 |
| 11 | The Review Team's Terms of Reference | 1096 |
| 12 | The evidence of the Review Team defendants. | 1129 |
| 13 | Findings on the allegations of malice against the Review Team | 1284 |
| 14 | The privilege issues for the Newcastle City Council | 1400 |
| 15 | The City Council's evidence on qualified privilege and malice | |
| General Introduction | 1452 | |
| The "one-off" approach to publishing the Report | 1459 | |
| Mr Dervin | 1466 | |
| Mr Lavery | 1478 | |
| Mr Bell | 1488 | |
| Mr Arnold | 1492 | |
| Mr Flynn | 1502 | |
| Mr Poll | 1513 | |
| Mr Scott | 1523 | |
| Overall Conclusion | 1532 | |
| 16 | Compensation | 1534 |
| 17 | A brief summary of findings | 1552 |
Mr Justice Eady :
1) The factual background
The events of April 1993
The widening of the investigation
The disciplinary process
" any proposed disciplinary proceedings would naturally relate to the same issues as in the criminal proceedings. There is, therefore, not only a risk that the criminal proceedings would be prejudiced, by the availability to the defence of 'abuse of process' arguments, but the defendants themselves would be unable to defend the disciplinary proceedings properly for fear of self incrimination".
The criminal proceedings
"There was unequivocal evidence of previous penetrative damage consistent with blunt trauma with any object from finger size upwards on one or many occasions in the past."
(1) With the possible exception of [Child 2], no child had made any contemporaneous complaint. Moreover, so far as Child 2 was concerned, having regard to the terms of what she had said, no action was taken at the time.
(2) It was conceded by the Crown that it was impossible, by way of a process of elimination, to prove of any child in respect of whom physical damage was found that access and opportunity to inflict such damage were confined to Mr Lillie and Miss Reed.
(3) Save to the extent that physical findings corroborated the allegation of physical interference (in some cases), and save to the extent that one child could provide "similar fact" support for one or more of the other children, there was no corroboration of the allegations of wrongdoing. Indeed, his Lordship added, to the extent that the children had provided detail as to venue, and as to the circumstances of various alleged incidents, no support had emerged for their contentions (despite extensive police enquiries). Thus, there would be insufficient evidence to prosecute without evidence from at least one child, and preferably more than one.
a) In a context in which "age is at a premium", she happened to be the oldest girl.
b) Her allegations were the most serious that had been made (i.e. there was a charge of rape).
c) There was a limited measure of corroboration for her evidence afforded by the physical findings following medical examination.
i) Was he satisfied that Child 14 was available for cross-examination?
ii) Was he satisfied that any rules of court requiring disclosure of the circumstances in which the relevant recordings were made had been complied with?
iii) Were the circumstances of the case such that, in the interests of justice, all or part of the recordings should be excluded?
i) Mr Lillie exposed himself to her in the toilets of the Nursery in the course of an indecent assault carried out by him on another little girl [who plays no direct part in the present libel proceedings but was known as Child 35].
ii) Miss Reed had done nothing at all to her.
iii) Child 14, Mr Lillie, Miss Reed and a woman called Moira (apparently another member of staff) had been to Mr Lillie's house by bus.
i) Mr Lillie had put a needle into her bottom (which, in this context, the Judge took to mean her vagina) and also into the other little girl.
ii) Miss Reed had also put a needle into her bottom and that of the other girl.
iii) All of these events had taken place in the Nursery toilet.
i) Mr Lillie had acted indecently towards her (initially), and then (finally) had raped her in the toilet of the Nursery.
ii) Miss Reed had done nothing to her.
iii) Child 14, Mr Lillie, Miss Reed and a woman called Amanda (understood to be another member of staff) had been to Mr Lillie's house (this time by train), where Mr Lillie was seen to be in bed with a lady called Doreen.
" I do not regard any of the statement[s] as set out by me, as disclosed by the recordings, potentially probative of anything at all against Miss Reed. It affords, in my judgment, no evidence upon which any reasonable jury could convict her upon Count 3.
It is true that the second video includes a description to the indecent assault by Miss Reed that is relied upon, but the first and [third] videos include, effectively, total exculpation of Miss Reed. One of the striking features of both first and [third] videos is the insistence with which [Child 14] seeks to exculpate her, and the fact that she does so upon her own initiative. Indeed, one of the points made by Mr Cosgrove [her counsel] in the course of his cross-examination of WPC Foster and of Mrs Lyon is that nobody picked up and thought to examine, in any way, this piece of initiative on the part of [Child 14].
The statement would only become potentially probative against Miss Reed if the graphic support for her that is initiated by [Child 14] herself and that is seen on the videos one and three - is put aside. I can see no basis for doing so. I remind myself that no jury can convict Miss Reed upon Count 3 without being sure and satisfied of her guilt. It is manifest on the evidence of [Child 14] (as disclosed in the statement from the three videos) that there could be no basis upon which they could be sure and satisfied. Indeed, there is a rather better basis for being sure and satisfied that she is innocent of that particular charge. Thus, in dealing with Miss Reed, I have no hesitation in ruling that the Crown's application to adduce that part of the video recordings as making a statement to be relied upon in the furtherance of their prosecution of her fails."
The steps taken by the City Council meanwhile
2) Christopher Lillie and Dawn Reed
a) Mr Christopher Lillie
b) Miss Dawn Reed
"Dawn has continued to show the capabilities noted during her first year. She proves to be very much a part of any team she works with and has equally good relationships with children and staff. She has a quietly confident, caring manner with children and is very perceptive of their needs. She carries out duties reliably and without constant direction, although if unsure always has the confidence to clarify matters with staff. Activities have been planned and carried out with children, showing great adaptability and these are always displayed attractively when completed.
Two of her great strengths are her awareness of the needs of children, especially those with problems and the other is her appropriate handling of parents.
She has been an excellent student in all her placements, resulting in her gaining employment in the family centre where she spent a term".
"I have known Dawn since she was a student. Goodness knows how long that must be now. I can't think how long it is, but she got the job to work in the parents' room which, in those days, was a very hard job. I always admired her for her youth and her age to be able to go into a situation like that and cope very well with it.
I have worked with her myself. She had covered the room that I've been in on several occasions, when a member of staff has been on the sick, and I have always got on very well with her. She is a very unassuming person. She is a very personable type woman (and I say 'woman' because she is not a girl anymore) and I like her an awful lot. To have to listen to what has been said even the slightest thought of an allegation against her I find totally and utterly ludicrous, because she is such a very, very nice girl woman I should say and I hope this doesn't do her career prospects a downer, because as nursery nurses go she has got a lot more patience with younger ones that I ever, ever had. And I have done that job and, yes, I got a lot out of that job, but probably not as much as Dawn's got out of the job with the [two to three year olds]. She has got the right personality for it. She is calm, she is cool, she is quiet, she is unassuming. I have a lot of children in my room who have been with Dawn, who are asking now, bit by bit, 'Where's Dawn? I haven't seen Dawn for a long time. I like Dawn. 'She's nice'. Not being pushed or pressured by me, or any other member of staff to say those things. So in those respects Dawn is a very nice woman, and I miss her miss her a lot, and I think we have a lost a very, very valuable member of staff".
3) The Review Team's Report published on 12 November 1998
Children were hurt, they were hurt involving sexual acts, they were hurt both in the nursery and when they were taken out to other places, some of which were houses, flats and caravans. They were told that some of those places were libraries or Chris Lillie's home, sometimes other people were present and involved in the hurting, sometimes videos and photographs were taken of them, that the children were very frightened and many were most certainly traumatised by their experiences ( p.224).
That Chris Lillie and Dawn Reed, sometimes in conjunction with other people outside the nursery participated in sexual acts with children at times involved them in the making of illegal child pornography (p.228).
That Chris Lillie also regularly abused children acting alone both inside and outside the nursery. These sexual assaults took place in various places within the nursery, in particular in the toilets adjacent to the Red Room (ibid.).
In addition, the children were physically and emotionally abused both inside and outside the nursery by Dawn Reed and Chris Lillie in order to attempt to ensure the children's compliance and prevent disclosure of the abuses (ibid.).
There appeared to be a possibility that [the Claimants] had covered their abuse of the children by recording fictional accidents in the Nursery Records for the purpose of disguising either the physical signs of abuse or distress caused thereby (p.244).
From the evidence we have seen, it is clear that Chris Lillie and Dawn Reed had conspired as a pair to abuse children and it is also clear that people outside the nursery were also involved (p.264).
"REPORT: 'ABUSE IN EARLY YEARS'
Thank you for sending me two copies of the above report. The second I have passed on to Aidan Marron Q.C., who was Leading Counsel for the Crown in the criminal trial of Christopher Lillie and Dawn Reed.
Although I was Leading Counsel for Miss Reed in that trial, I have no continuing professional interest. My continuing interest is in helping to ensure that we can all learn from this case how best to improve the course of justice.
Rightly, there has been much praise of many of the people who were involved in the criminal investigation, such as police officers and social workers. They and others, such as the lawyers in the case, were edging forward in trying to improve their understanding and abilities in these difficult matters. No-one can doubt that the objectives are (a) to protect children, and (b) to do justice by all parties.
I could not agree more with the observation made at the beginning of the Report (page i), namely that: "Given the proposed massive expansion nationally of day care provision in early years settings this case raises important lessons for consideration in relation to the delivery of services to young children outside their families."
It is tragic, therefore, that the Review Team has laboured for so long only to bring forward a report that is fundamentally flawed.
Both academic literature and forensic experience indicate that justice has been hindered by incorrect prejudices that sexual abuse doesn't happen in the family, or isn't committed by natural parents, or by women generally, or by a mother, or by caring professionals outside the home. Our increased understanding leads most of us to reject any such prejudices.
Modern prejudices are more likely to be twofold. At one extreme is the prejudgment that complaints of sexual abuse are likely to be the creation of some form of false memory syndrome. At the other extreme is the prejudgment that sexual abuse once suspected is present, and the only difficulty is in obtaining the evidence to prove it.
The Report's authors implicitly criticise unsolicited correspondents who fall into the trap of the former. There is considerable evidence throughout the Report that they themselves have fallen into the latter prejudgment.
The only safe approach is to keep an open mind in each case, to approach the evidence as objectively as possible in order to discover what it shows. In a free society that is the function of a Court, not the function of investigators, nor of persons with a therapeutic responsibility, nor of teams like the authors of the Report.
It is clear that Professor Davies (see the first paragraph of Appendix 6) has had sight of the Ruling of Mr Justice Holland in the criminal trial, given on 13th July 1994, but it is not clear whether the authors of the Report have read it.
If they have not done so, they have been grossly negligent. If they have read it, their conduct is disgraceful. Nowhere in the Report is there sufficient reference to the Ruling. That fact and the way in which the Report deals with the issues also dealt with in the Ruling lead to the inevitable misleading, even deception of the Report's readers.
It should be remembered that Mr Justice Holland delivered his judgment after careful consideration of the evidence.
The Crown Prosecution Service, no doubt acting on the advice of the police and of counsel, brought forward an indictment based on the six best cases (all of them involving Mr Lillie and four of them involving Miss Reed) from the point of view of the prosecution. No-one, to my knowledge, has questioned the industry or judgment of the prosecution in this case.
Of those six, one complainant (identified in the Report as Child F [now Child 14]) was taken as a 'test case' for preliminary submissions. The details of how this was done are set out clearly in Mr Justice Holland's Ruling. The Report's authors, to be fair, (see pages 148, 225 and 277) also appear to identify this young girl as providing the best evidence in the case.
It is helpful, at this stage, to set out what Mr Justice Holland said about this child's evidence. In the following quotation I have quoted the Judge verbatim, except that I have substituted 'Child F' for the girl's real name. The passage is to be found at pages 17 and 18 of the Ruling.
'It is convenient to start with the Crown's case against Miss Reed. As to this I do not regard any of the statement as set out by me, as disclosed by the recordings, potentially probative of anything at all against Miss Reed. It affords, in my judgment, no evidence upon which any reasonable jury could convict her upon Count 3.'
They should pause in their righteousness and consider these questions. What if Child F is correct? What if Miss Reed is wholly innocent of any abuse? They have purported to find her guilty of a most serious criminal offence, and have done so in direct contravention of their terms of reference (see below), for which there can be no excuse.
Sexual abuse of children is horrendous. Few things approach it for awfulness. One that does is to be wrongly accused of it. There is no justice for abused children if a wrong person is accused, condemned, convicted and punished.
We do not need to look to America, to the Kelly Michaels case, for examples of how people can be falsely accused. Close to home there is the 'Bishop Auckland satanic abuse case', for example. And we need look no further than Cleveland to see how misplaced zeal can cause a counter-reaction, and confuse the cause of protection of children.
It may be that the Report's authors will claim that they could not refer to the Judge's Ruling because of their Terms of Reference, particularly term 1A (at page 5): "it should be noted, however, that the Review cannot make any finding on matters dealt with by the Criminal Court". If so, that claim would be specious.
In apparent disobedience of that term of reference, the Report does make findings on matters dealt with by the Crown Court, and does so in direct contradiction to the findings made by the Court, although the Report's authors do not have the candour to draw that to the attention of their readers. A classic example is to be found at page 148.
During September a child who had previously been at the nursery began to disclose abuse by Chris Lillie and Dawn Reed. The child, Child F, was medically examined and clear physical evidence of sexual abuse followed. Over three video interviews, she detailed abuse of herself and other children by Chris Lillie, to a lesser extent by Dawn Reed, and she also mentioned other nursery staff's names. Her testimony in these videos, which we have seen, is extremely powerful and provided persuasive evidence of her abuse in the nursery and elsewhere.
In at least one other respect there is a material contradiction between the conclusions drawn by Mr Justice Holland and the Report's authors, and, once again, they do not draw it to the attention of their readers. This concerns the existence or otherwise of any corroborative evidence. I quote (again verbatim) from page 8 of the Judge's ruling.
" save to the extent that the physical findings corroborate the fact of physical interference in the case of certain of the children and save to the extent that one child might provide 'similar fact' support for one or more of the other children, there is no corroboration of the allegations that are made. Indeed, to the extent that the children have provided detail as to venue and as to the circumstances of various incidents, no support has emerged for their contentions, despite extensive enquiries to see whether any corroborative evidence is available."
The Learned Judge also gives significant details of the ages of the six 'indictment children', at various stages. Had they been included in the report, which they weren't, readers would have been able to make their own assessments in the light of the valuable research reviews contributed by Professors Bull and Davies.
"It is true that the second video includes a description of the indecent assault by Miss Reed that is relied upon, but the first and second videos include, effectively, total exculpation of Miss Reed. One of the striking features of both the first and second videos is the insistence with which [Child F] seeks to exculpate her, and the fact that she does so upon her own initiative. Indeed, one of the points made by Mr Cosgrove in the course of his cross examination of WPC Foster and Mrs Lyon is that nobody picked up and sought to examine, in any way, this piece of initiative on the part of [Child F].
"The statement would only become potentially probative against Miss Reed if the graphic support for her that was initiated by [Child F] herself and that is seen on videos one and three is put aside. I can see no basis for doing so. I remind myself that no jury can convict Miss Reed upon count 3 without being sure and satisfied of her guilt. It is manifest on the evidence of [Child F] (as disclosed in the statement from the tree videos) that there could be no basis upon which they could be sure and satisfied. Indeed, there is a rather better basis for being sure and satisfied that she is innocent of that particular charge.
"Thus, in dealing with Miss Reed, I have no hesitation in ruling that Crown's application to adduce that part of the video recordings as making a statement to be relied upon in the furtherance of their prosecution of her fails."
It may be that the Learned Judge made a slip of the tongue in the second paragraph quoted, and that he meant to refer to the first and third, not the first and second, videos. I rely on my memory for that, and I may be wrong.
In any event, in twenty two years of practice at the bar I have never heard a High Court Judge be so emphatic in an expressed view that the evidence pointed to someone's innocence, as opposed to it being insufficient to prove his or her guilt.
During the course of the criminal trial, there were groups of people outside the Court protesting on behalf of the children. They had placards saying things like "We believe the kids". On this point at least, Mr Justice Holland believed Child F. Why are others so reluctant so to do?
The Report gives the clear and unequivocal impression that the criminal case against both Defendants collapsed only because of the difficulties in getting children's evidence admitted in criminal trials, and that, as a result, two guilty paedophiles have wrongly gone free. The final paragraph of the body of the Report (page 303) is an example of this:
"Like many of the professionals who we have interviewed we share the distress of parents that the Shieldfield children were not able in the end to receive justice. We find that there was a failure of the adult world to provide the processes, systems and environment to ensure that child victims of assault are not disadvantaged and are regarded as being as entitled to justice as adults."
Yet we can see from Mr Justice Holland's Ruling that the primary reason why the not guilty verdict was entered against Miss Reed was that the evidence of the child pointed to her innocence. Why have the Report's authors hidden that from their readers? Why have they deceived them into thinking otherwise? Why have they misled opinion formers and policy makers like the Council and Members of Parliament? Why have they fed the feeding frenzy of the tabloid press?
There are other elements of the Report which give rise to concern, but the ones canvassed above are particularly grave. The flaws are such that they must bring the reliability and integrity of the whole of the Report into dispute. This is a great pity, as it may well be that many of its insights and judgments have value. It would be a mistake to place reliance upon it, however, as (to adapt a line of the Report at page 130): "Thus, if the [authors] were wrong with one thing they could be wrong and unreliable about everything else".
It would be wrong to pretend that any one of us has the answers to what happened, and what went wrong. That is why people were looking forward to the publication of the Report in the hope that it would give an indication of the best way forward. It is a matter of great disappointment that it does not.
What the Report does highlight is how many of the problems are not to do with the children or their accuracy or reliability, but with the adults, not least in their interpretation of what the child is trying to say. It is clear that the interpretation is not always as objective as the children and those caring for them have a right to expect.
One further area is of continuing concern. The parents of the children have suffered much anguish. The Report finds that children were subject to abuse by a paedophile group and were filmed for pornographic purposes. Given the other flaws in the Report, it would be foolish to rely upon these findings. They may or may not be true. If not true, the authors of the Report are guilty of unnecessarily causing yet more pain to the parents.
It is to be hoped that such a dangerous document does not have a lasting influence.
I appreciate that the Council is now in an impossible position, having agreed to publish the Report without any amendments. I do ask, however, that a copy of Mr Justice Holland's Ruling (amended only by removing identification of the children) be appended to every copy of