IICSA: a challenge to due process?

As the IICSA launches under its fourth chair, David Wolchover and Anthony Heaton-Armstrong ask how radically the Jay Review has reined in its objectives in wake of criticisms about deficit of due process

Coming at a time of mounting public disquiet over the actions and management of the Independent Inquiry into Child Sexual Abuse (IICSA), the mysterious resignations of its third chair, Dame Lowell Goddard, its leading counsel, Ben Emmerson QC, and other legal staff gave replacement chair, Professor Alexis Jay, pause to take stock. 

In October 2016 Jay announced that a comprehensive review would be swiftly undertaken and, as good as her word, it was released in December (‘The Jay Review’).

Does it meet the chief concerns of its critics?

As is very well known, the IICSA has set itself two primary goals. First, it is seeking to assemble as complete a nationwide picture as it can of the incidence of child abuse in families and institutions across the decades. Its other main objective is to examine failures: (a) by institutions to protect children from abuse; and (b) by the authorities (eg social services and the police) to investigate allegations of abuse and prosecute offenders, and to recommend correctives.

The Inquiry has been widely criticised as unwieldy and unmanageable, and the question remains whether the scope of its two primary exercises is not over-ambitious. There have been several major inquiries into child sexual abuse, most notably perhaps the Cleveland, Rotherham and BBC inquiries and the Hart Inquiry into abuse at the Kincora Boys’ Home in East Belfast, the report on which was published in January. From their cumulative findings it has become shockingly obvious that abuse in both families and institutions is endemic. But it is by no means a given that the IICSA’s investigation will throw any further significant light on the factors which cause – and, through institutional and professional neglect, permit – some adults to exploit child vulnerability for sexual purposes.

One welcome change under Jay is to channel many more complaints through what the Inquiry has named the ‘Truth Project’, the programme in which putative victims and survivors will be able to give their accounts to a trained facilitator in private (see Sandra Laville, The Guardian, 6 October 2016). This will be a source of research and analysis and possibly even of information for referral to the police. Whether Truth Project is an apt title may be questionable given that no determinations on the truth or otherwise of what is revealed in the private sessions can be meaningful or feasible; indeed the Inquiry has been quite clear in stating that no such determinations can have any legal consequences. It is far better to gather the research material in this way than in public hearings, with all the attendant adverse due process implications we consider below.

Adjudicating on the truth of allegations

The purpose of examining instances of institutional failure to protect children and to investigate or prosecute is to work towards the improvement of practice and procedures in the present and future – the setting of gold standards – by learning what went wrong in the past. However, scrutiny of relatively few specific cases may be more than sufficient to identify general patterns of failure from which suitable remedial protocols can be formulated.

There is an obvious distinction between the failure to investigate an allegation and the question of its truth and the IICSA has expanded its remit to embrace, in some cases, inquiries into the truth of the allegations themselves. When a complaint of abuse is made to the police, they are duty bound to act on it and not peremptorily to dismiss it out of hand. Clearly, that duty can never be contingent upon the truth of the complaint, which bears no relevance to the issue of neglect. Of course in order to determine whether there was a failure properly to investigate a complaint it might be necessary, in the absence of any original written statement, to establish from complainants what exactly they claim they originally told the police, but that is all.

However, addressing the first public hearing of the IICSA, Emmerson professed to argue that the truth of an allegation was relevant to the question of failure. He did so by contending in effect that the Inquiry was bound to assess the emotional impact of a failure on genuine complainants and this necessitated determining whether their allegations were true (see transcript, 9 March 2016, p 11).

But impact is surely irrelevant. The IICSA is not a court of law assessing and awarding damages for tortious breaches of the duty of care. In any event, it may be taken as read that genuine complainants will be profoundly aggrieved and could well suffer emotional trauma when the police have let them down. Conducting a protracted inquiry to determine what is manifestly obvious is surely otiose. By contrast, false complainants will suffer no legitimate distress (apart perhaps from the chagrin of getting egg on their face). It seems extraordinary that the IICSA could ever have contemplated harnessing such a self-evident distinction as a justification for adjudicating on the truth of allegations.

The Jay Review makes clear that the IICSA remains committed to its pursuit of research, including, notably, the planned public inquiry into the multiple allegations against in particular the late politicians Lord Janner of Braunstone QC and Cyril Smith. The ostensible aim is to examine the failure to prosecute both men (in Smith’s case at all and in Janner’s case until it was too late to put him on trial). In doing so the avowed intention is to make findings as to the truth of the underlying allegations against them.

Quite apart from the superfluity of such adjudications, the planned hearings are saddled with procedural infelicities. In keeping with ‘standard practice in public inquiries... questions will normally be asked by counsel to the Inquiry, whose role will include, where necessary, the exploration of witness credibility’ (Lowell Goddard, writing in the Observer, 3 April 2016).

Given the Inquiry’s avowed commitment to protecting victims this is unlikely to involve the most exacting or rigorous of inquisitions. Affected parties will enjoy no right to cross-examine directly although they may be allowed to do so ‘if fairness requires it’ (ibid). On 1 July 2016 the Janner family was informed in writing that all proposed questions would have to be asked through counsel to the Inquiry. It is perhaps little wonder that they then withdrew from involvement in the proceedings, although they have now come back on board and are seeking core participant status (James Gillespie, ‘Janner’s QC son to fight in abuse inquiry,’ The Sunday Times, 8 January 2017).

The importance of disclosure protocols

A further inherent frailty of the proposed hearings is that they will necessarily lack the participation of the one witness who could give key exculpatory evidence going to the heart of the allegation – the deceased accused. These two deficiencies might have been mitigated to a limited degree by the adoption of a regime corresponding to that statutorily provided in criminal trials: the routine disclosure of a range of background information of the sort which experience shows occasionally leads to the exposure of falsehood but which in any event may tend to cast doubt on a complainant’s account.

While it is true that statutory provisions governing public inquiries do require relevant evidence to be handed to participants it is unlikely that the Inquiry’s support staff will be routinely researching reports from social services, schools, healthcare agencies, employers or the police, or trawling social media, CCTV recordings, documents containing previous inconsistent statements, previously unsubstantiated or false complaints and claims to the Criminal Injuries Compensation Authority which have been declined. We formally challenged Justice Goddard on this in writing but received no meaningful response. The Jay Review is also silent about it. Given the Inquiry’s declared commitment to a protective ethos the operation of a criminal case style disclosure protocol seems unlikely.

Yet the key importance of disclosing such material in sexual assault cases was stressed by Lord Thomas of Cwmgiedd, the Lord Chief Justice, who in an address at Gray’s Inn in March 2016 warned significantly that disclosure was ‘probably the biggest problem all parts of the common law justice system face’ (reported in the Evening Standard, 2 April 2016).

Goddard’s avowal that she was ‘committed to ensuring that we hear all relevant testimony’ (Observer, 13 April 2016) flew in the face of the fact that the panel will be forced to fall back on the arguably superficial plausibility of complainant-witnesses. The cogency of witness demeanour – as a guide to credibility – was formerly a mantra of the common law yet in recent years it has been frequently challenged on high judicial authority.

An illustration of the danger posed by reliance on demeanour to the exclusion of substantive evidence is provided by the root and branch discrediting of ‘Nick,’ the Operation Midland informant whose accounts of the so-called Westminster homicidal paedophile ring were notoriously described by the senior investigator in charge as ‘credible and true’. Even experienced police officers can be utterly hoodwinked by a plausible fantasist.

A new face for the Inquiry?

The question remains whether, under Jay, the IICSA will continue with its plan to make findings on the truth or otherwise of underlying allegations against the now-deceased Janner, Smith and others. The Review’s lengthy Annex A on the Janner hearings was entirely silent on that question and suggests that when the Review was issued, the Inquiry was still determined to persevere with its plan.

However, with the appointment of Brian Altman QC as leading counsel to the Inquiry a sea change may well be in the offing. Altman has enjoyed a long career at the coal face of crime, with an instinctive regard for adversarial cross-examination and disclosure and a wariness of demeanour. Yet if the Inquiry nonetheless remains wedded to the plan it may not survive challenge by judicial review.

On 27 February the IICSA commenced its first public evidence hearings, beginning with the alleged sexual abuse perpetrated on many of the British children who were sent in large numbers to Australia and other Commonwealth countries after World War 2. Hitherto the names of alleged abusers have been redacted from the documentation but there have been calls during the hearings for them to be ‘named and shamed’, leading counsel for one of the interested groups having invoked the principle of ‘open justice’. It is difficult to see how naming in the absence of due process can be characterised as justice (open or otherwise) and it is less than encouraging that a witness was subsequently permitted to mention two alleged perpetrators by their monastic sobriquets, necessarily facilitating contextual identification.

Contributors David Wolchover and Anthony Heaton-Armstrong, are two of four joint editors of Witness Testimony in Sexual Cases: Evidential, Investigative and Scientific Perspectives, OUP 2016

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David Wolchover

David has been in practice at the criminal Bar since Call in 1971 and was formerly Head of Chambers at 7 Bell Yard. He is a joint editor of Witness Testimony in Sexual Cases, OUP and author of a number of books and articles on criminal evidence and procedure.

Anthony Heaton-Armstrong

Anthony prosecutes and defends in cases involving allegations of serious sexual assault and has written extensively on dislosure issues. He is one of four joint editors of Witness Testimony in Sexual Cases, OUP.