Fall out from libel case prompts calls for overhaul of review procedures

The libel case of two Newcastle nursery workers accused in a
council report of sexually abusing children in their charge has
left no winners.

Christopher Lillie and Dawn Reed may have been exonerated of the
charges and awarded £200,000 each in libel damages by last
week’s High Court ruling, but since the accusations were first made
against them nine years ago they have endured a nightmare.

Meanwhile, the parents and families of the 53 children who Reed
and Lillie were accused of abusing at the Shieldfield nursery are
left uncertain as to what, if anything, happened.

Mr Justice Eady found that the four authors of the report into
the case, Abuse in Early Years, commissioned by Newcastle Council
and published in 1998, acted in malice in coming to their
conclusions. This meant they lost their individual right to legal
protection against libel claims – an unusual ruling which seriously
undermines the authors’ credibility.

The council indemnified the review panel members – Richard
Barker, a social worker in an academic post at the University of
Northumbria; Roy Wardell, a former director of social services for
Barnsley Council; Jacqui Saradjian, a clinical psychologist; and
Judith Jones, a senior social worker – so that their £2m bill
for damages and costs will be covered by insurance. A separate
action against the council failed, the judge upholding its defence
of qualified privilege.

The remaining £2m in costs will be met by Newcastle Council
tax payers, some of whom demanded that the council act after Lillie
and Reed were brought to criminal trial in 1994 and acquitted of
sexual abuse charges on direction of the judge.

The latest judgement will almost certainly have major
repercussions for local authorities and the way they approach
future inquiries.

In concluding there was no basis for the review team’s
allegations, Mr Justice Eady called the review process a “shambles”
that denied Reed and Lillie basic legal safeguards. He said the
team had “fallen under the spell” of Camille San Lazaro – the
paediatrician who examined the children and diagnosed sexual abuse
– who was “apparently prepared habitually to overstate and
exaggerate”.

Other criticisms included failing to notify the accused pair of
the charges against them, outline the evidence or give them an
opportunity to respond.

Mr Justice Eady said it was “mainly the council’s fault” for
sanctioning an inquiry into allegations that were tantamount to
criminal offences, with a view to ultimately publishing a report,
but without appropriate safeguards for the accused.

The findings pose huge questions about the working practices of
review teams. Although the team received legal advice while
producing the report, legal experts have criticised the decision
not to have a lawyer sitting on the review panel.

“Local authorities must pick competent people to conduct
inquiries,” says child care legal specialist Allan Levy, QC. He
believes the problem comes down to a lack of basic understanding of
legal procedures.

“Review panel members need to behave fairly, honestly and
thoughtfully. You need to assess evidence, weigh up the credibility
of the witnesses and give appropriate weight to the facts. You’ve
got to be able to pick out what’s prejudicial and what’s probative,
behave in a judicial manner and view all relevant matters fairly,”
says Levy.

He believes that councils should work in partnership with other
bodies to pick review panel members collectively, possibly from a
government-compiled list of approved people, and that one member
should be an experienced lawyer.

Later this year the Society of Local Authority Chief Executives
is to publish good practice guidelines for councils to follow when
commissioning and publishing reviews. The Association of Directors
of Social Services, which contributed to the consultation, expects
that the Newcastle case will give the guidelines added
significance.

ADSS president Mike Leadbetter believes the challenge is to find
an inquiry system where people can be justly represented without it
becoming an expensive process.

“One option would be for inquiries to be held in public and be
given a mandatory authority to call witnesses and for them to be
properly legally represented. The problem with that is that nobody
sneezes without a lawyer, legal fees would run into millions and it
could inhibit openness,” says Leadbetter.

However, he says the litigation path would be an easy option,
and would not necessarily best serve natural justice and
accountability. He says an alternative could be for local
authorities to sign up to protocols governing review procedures,
linking them to insurance.

Leadbetter says the consequences of the Newcastle case will be
that reviews are more time consuming and expensive, which could
divert money from front-line services.

“I can understand these families [in the Newcastle case] wanting
justice but all these factors have to be weighed up in terms of
costs versus services,” he says.

One danger of the Newcastle ruling is that councils may now deem
it too legally risky to either commission reviews, publish their
findings or apportion blame.

The Law Commission has just finished consulting on the legal
implications of local authority reports with the aim of producing
its findings in the second half of next year.

It calls for possible reform in qualified privilege and
defamation laws and a code of practice for the conduct of council
inquiries.

The Law Commission’s project manager for the publication of
local authority reports, Christina Hughes, says by their nature
review panel investigations need to be flexible. “They can’t be
prescriptive as you can’t tell people how to carry out inquiries,”
she says.

However, Hughes does not believe the Newcastle case will set a
precedent in terms of making councils more reluctant to publish
reports.

“I don’t think we can generalise. Local authorities will look at
individual cases and what kind of information should be published
and provided to the public,” she says.

Tom Dervin, director of social services at Newcastle Council
since 1998, believes the case should change the way councils
approach reviews. “If a court has given a decision on a case I
don’t think a council should consider doing any investigations on
it. If there’s going to be any kind of inquiry it must be done
within existing legislation such as a part 8 review,” he says.

Dervin believes there needs to be legislation on when inquiries
should be commissioned and what they look at. He also says a
government committee headed by a senior legal person could make
decisions on when inquiries should be commissioned.

“You can’t have a review team without a very senior legal person
on the panel. One of the difficulties of child protection is that
you’re going to have allegations of abuse all the time so you have
to take a very objective and measured approach,” adds Dervin.

Campaign group Falsely Accused Carers and Teachers believes the
mistakes made in the Newcastle case could still happen. Phil
Fiddler, national committee member for the group, says police and
social workers are still making basic mistakes when investigating
sexual abuse claims against employees.

“Investigations should be carried out by a team of police and
social workers from outside the area and an independent body should
oversee the process to make sure guidelines are followed.”

He believes that the case reflects badly on social workers and
could discourage people from joining the profession.

However, sources close to the review team point out that every
word the review team wrote was scrutinised by a legal expert with
an independent person attending interviews. They also claim that
the High Court verdict could see a return to the days of secretive,
internal reports from which no one learns anything and it may deter
social care professionals from working on review panels.

If that is the legacy of the Newcastle case then reform of the
review process will need to be introduced rapidly if the
profession’s integrity is to be maintained and the system is to
protect the public adequately.