Thursday 22 September 2016

On the trail of the IICSAthon Part 2: Still waters running deep and the trigger that opened the floodgates

On the trail of the IICSAthon

Part 2: Still waters running deep and the trigger that opened the floodgates

When the Association of Child Abuse Lawyers was launched in 1997, it did so at a peak of public, political and media concern about the scale of institutional child abuse and claims of widespread paedophile rings and networks organised and covered up by people in power.

This wasn't the first time this had happened, and nor would it be the last. Unsubstantiated claims of rings and networks had arisen between 1988 and 91 – at that time focussed on alleged domestic abuse 'feeding' a speculative hierarchy of abusers in authority, secretly connected through freemasonry, but in reality devil-worshippers whose modus operandi and means of power was to ritually sexually abuse and sacrifice children.

While these bizarre claims foundered on the lack of evidence amid the contamination of fundamentalist Christian beliefs, Hollywood horror movies and suggestive narrative fabrication, the beliefs of some social workers and police at the time led to 'trawls' of former children's home residents for abuse victims and suspects.

The 'trawl' investigations adopted the conspiracy assumptions and methodology: whatever
might lie on the surface was an indicator of a much larger 'hidden history' – both within the institutions, and, adopting the therapeutic ideology of 'recovered memory' within the minds of potential victims themselves.

After the Frank Beck case in 1991, a determined culture of 'trawling' took hold, initially in North Wales. It soon spread to neighbouring Cheshire where a young solicitor, Peter Garsden, whose firm was smarting from the downturn in the property market in the wake of the 1992 Black Wednesday stockmarket crash, saw the potential to redress the needs of victims through facilitating compensation claims.

Mr Garsden began to build a new client base on the back of media publicity about the investigation. The police were appealing for victims, Garsden for compensation clients. He was a personable solicitor who cared about his clients. Often they were vague and difficult to work with. They might be drug addicts or alcoholics, men with a history of offending, broken relationships and violence.

For many solicitors they would be a waste of time and space, but for Peter Garsden they became his mission and purpose in life.

Peter Garsden was not the first or sole historic child abuse lawyer determined to obtain financial redress for his clients. The stage was set by a struggle in the civil courts over compensation to overcome time limits involving domestic 'repressed memory' in Stubbings and Webb which stalled when the House of Lords determined intentional assaults were subject to an adult three year time limit to bring a claim – and the civil case brought following the Beck conviction against the local authority. The latter was a success including a six figure single award. It signalled a green light for future mass claims post-conviction.

Where Peter Garsden differed was that he was one of the first compensation solicitors to become ideologically committed to the narrative cause. Not only did he believe in controversial 'repressed' and 'recovered' memory as a reason why claims had not surfaced earlier, which the balance of scientific consensus viewed to be 'false' or unreliable, but he was also prone to believe in cover-ups and conspiracies – the 'dark forces' he linked to 'Satanic covens' where alleged hidden paedophilia was a stock-in-trade.

As such he adopted a proactive role in the mounting trawls, swapping information and claimants with the police 'symbiotically' as he was to explain to journalist David Rose in a Panorama TV probe in 2000:

'It very quickly became apparent that it was important for us and the police to have a symbiotic relationship.... For example, the police would want us to refer any new complaints of abuse that they didn't know about to them, because it would help them in their process. We depended on them, because we wanted as much information about the pending criminal trials as possible.'

This heuristic partnership began to ring alarm bells for the prosecution, reaching a point where a senior officer in the Merseyside force in charge of Operation Care, one of the leading 'trawls', wrote to Mr Garsden to warn them off bringing civil claims until the criminal trials had been decided, for fear of disclosing a financial motive to make false allegations.

The officer in point, Det Sup John Robbins, who had previously been a 'Satanic abuse' investigative believer in the earlier discredited cases, would subsequently retire, only to take up a position at Mr Garsden's firm in connection with compensation claims resulting from the very trawls he had been in charge of investigating.

Matters came to a head in 2002 when the House of Commons Home Affairs Select Committee launched an inquiry into the Children's Home trawls. By then 37 out of 41 police forces had conducted largescale historical investigations nationwide.

With the police and solicitors exchanging clients, Peter Garsden at this time would claim to have between 700 and 800 claims on his books just from the Cheshire, Manchester and Merseyside trawls. Only a small fraction of these claimants had ever given evidence in criminal trials, but a single conviction from a home could spawn multiple additional compensation claimants, even in respect of the accused who were acquitted or were not prosecuted. These were in fact the overwhelming majority of suspects with some convictions being later quashed by the Court of Appeal.

Relationships between the police and compensation solicitors became formalised and distanced. Indeed Mr Garsden, in giving evidence to the inquiry was to rescind his prior assessment – now describing the relationship as one-sided with the police trying to shake the probing of compensation lawyers off.

"The accurate way of describing the relationship is unilateral because, quite frankly, to the police I am a pain in the neck and they wish that I did not exist because I cause them so many problems with their prosecutions because I am repeatedly asking for information that they would rather have nothing to do with me but they accept the fact that civil litigation does exist, it is a realistic possibility so they have to find a way around that".

The possibility of a compensation motive leading to distorted or fabricated claims was not the only danger in the close relationship between claims lawyers and the police. There was a real risk of evidence being contaminated through direct and indirect information sharing – a flaw to which the initial police trawls themselves were vulnerable.

And just as the compensation motive and contamination risks were being heightened, the higher criminal courts, seemingly unaware of the emerging symbiotic parallel universe of civil compensation claims, made it easier to convict by allowing broadly similar allegations to be used as mutually corroborative evidence.

Thus by a pincer movement, not only was it likely that more innocent people were being wrongly prosecuted, but also that they were more likely to be wrongly convicted.

But in 1997, when ACAL was founded, there was little public awareness of the dangers. Rather there was a great sense of foreboding and expectation. The North Wales trials had ended in a handful of convictions and no 'ring' evidence, but the trawl craze had spread and there was a political and media campaign of disbelief as to the non-existence of a 'cover-up' and conspiracies.

Finally, in what would become a foreshadowing of the campaign to set up IICSA two decades later, the John Major Conservative government, stung by rumours of the involvement of government ministers in the purported 'ring', in the face of a coming general election, set up a judicial Tribunal of Inquiry in 1996 covering alleged children's home abuse in North Wales beyond the convictions.

Chaired by retired High Court judge Sir Ronald Waterhouse, the Tribunal invited all potential complainants to make submissions. All parties would be guaranteed costs of legal representation and findings would ease the path to compensation settlements.

Thus it was an opportune moment for the gathering shoal of child abuse compensation lawyers to form their own association – one which put the 'victims' or claimants at the heart of its mission.

Coming from the ideological wing of child abuse theories, Peter Garsden found soul mates in at least some of the prominent founders. Chair Lee Moore was a former commercial barrister and a self-styled 'satanic abuse' 'recovered memory' survivor. She would conduct witness training for complainants in civil and criminal trials. Psychotherapist Sue Richardson was a fellow believer in 'satanic abuse' graduating from having been the lead social worker in the Cleveland controversy. Criticism in the subsequent inquiry resulted in her losing her job, but she developed her interest in 'recovered memory' through becoming a therapist and networking across Europe with like-minded professionals and campaigners.

A therapeutic concept of justice was central to the ACAL mission. Victims were hidden behind the walls of their own criminality while perpetrators hid behind reputation and power. Bad character was the mask of the innocent good, and good the guilty bad.

Mr Garsden was to expound the shared beliefs when giving evidence to the HASC in 2002
"There is this concept of repressed memory and it is psychologically accepted, and it is called different things, it is called disassociation but the only way in which the claimant can cope with this awful event that has taken place is to build a concrete wall around them. It is like fire and ice, if you like. It is a cold exterior and a fire inside and they protect themselves from the outside world with this huge shield until one day the police knock on the door and say "Excuse me, we are investigating such and such a home, is there anything you want to tell me about it? We understand you were there"? Suddenly it puts a crack in that block of ice and the flames gush out." [11.6.02 : 526]

But the 'repressed' or 'dissociated' memory trigger was only the first stage of the healing process. The initial 'healing reaction' was often chaotic and self-destructive:

"They often try and put sticking plaster over the wounds but they cannot stop it, once the crack starts it gushes out and often, having been stable, they descend into drink, drugs, depression, mutilation, all the other symptoms I have talked about and that starts when the police knock on their door. You can understand why they do not necessarily call all of them to give evidence because they simply could not cope with it and the same applies with us."

This peculiar rationale, would be used to support a post-accusation diagnosis of delayed 'post traumatic stress disorder' supporting the compensation claims without the claimants ever having to face cross-examination in a criminal or civil court.

With his commitment and experience of using the media to harvest the mass trawl claims, Mr Garsden became the ACAL press officer launching a website and newsletter where the key members set out their stall.

Through the trawl investigations and the Waterhouse Inquiry, child abuse compensation law became a rapidly expanding and remunerative field. But the road to civil compensation claims had become rocky. Legal precedent was not enamoured by 'recovered memory', or failure to connect cause and effect explanations as to time limits for claims – a hurdle not encountered in criminal cases in the UK because, unlike in the civil courts (and criminal ones in the USA), there was no time limit for prosecutions. So whereas in civil claims 'recovered memory' and the absence of awareness was a hotly contested protestation, it was scarcely mentioned in the criminal courts – and when it was, it was usually to ill-effect for the prosecution case.

There was also the question of liability and damages. Few if any of the defendants were worth suing, even if it were legally possible. The bodies who ran the institutions might be liable, but only if negligence was admitted or proved. And while politically, local authorities were only too happy to settle without admission of liability, insurance companies were less sanguine.

And thus it came to pass, through the gates of ACAL, that a series of test cases would rise through the courts. In time, nearly all the barriers would fall and potential liability for alleged historic abuse would defeat time limits, terms of employment contracts and even employment itself.

The law of tort for personal injury liability in respect of alleged historic sexual abuse would be turned inside out and upside down.

During the height of the trawl years, individual ACAL lawyers began to coordinate 'group actions' where a large number of claims were bundled together to negotiate settlements under a lead solicitor.

These would be publicised to give notice of a closure date, including in prisons.
But media reports of settlements would give rise to further claims. In Manchester alone, Peter Garsden has mounted three group claims covering the same homes consecutively.

The danger of promoting exaggerated and false claims and in the process widening the net of wrongful conviction and increased public and media credulity was alien to ACAL. Not only was it invested in positive outcomes for their own financial gain in addition to claimants, but in order to stay solvent and grow, there had to be a constant supply of more hidden past abuse scandals and potential victims.

But while the trials and group action claims gave rise to expansion,
as the cases were cleared up, ACAL business interests lay in the discovery of bigger and wider scandals even as the historical source was running dry.

There was a need for a new business model to ease the difficulties of lawyers and clients. In Ireland an open-handed redress scheme following an inquiry into abuse in Catholic institutions had led to Irish Industrial schools settlements, where compensation neared a billion and legal costs 200 million Euros.

Mr Garsden had long championed a similar system for abuse compensation in the UK across the board as he explained to the Chris Mullin, the Chair of Select Committee inquiry in 2002:

The Catholic church abuse scandals had ricocheted around the Anglo-American world since the 1980s. In the US clerical abuse scandals had stripped the Catholic church of moral authority and resources in settlements.

In 2011 clerical abuse campaigners were in talks about an across the board form of redress with the Catholic church. But in October 2011 negotiations broke down .

Cases involving clergy in the UK were met on a case by case basis. Not only was the church wary of 'floodgates', but the fundamental principle of vicarious liability was disputed in relation to self-employed priests. Thus if an action failed on liability of the church, then the only recourse was to sue the offender, who was either of limited or no means, or dead.

But in the High Court in November 2011 ,sealed in July 2012 by the Court of Appeal, there was a breakthrough. In the most significant test case ruling to date the concept of no fault vicarious liability was extended. It was no longer necessary for a body to employ an alleged abuser. Vicarious strict liability – meaning without any direct fault – could accrue to a body with deep pockets having a 'close connection' akin to employment.

The case in point – a single complainant historic accusation against a deceased Catholic priest – concerned the relationship with the Diocese, as parish priests were self-employed.

It was a significant triumph for ACAL and campaigners. The churches quaked, anticipating the judgment to extend not just to priests, but voluntary workers and charities. Announcing an intention to appeal to the Supreme Court (which was refused) the Diocese issued a warning as to potential effects

"This case is not, and has never been, about seeking to avoid or delay the payment of compensation to victims with valid claims. The Diocese has for years been offering support to clerical abuse victims, and the law rightly allows victims to sue for damages on grounds of negligence, or, of course, to seek redress from the actual perpetrators of the abuse.

"This case is about fundamental legal principles involving the very nature of civil society and religious freedom. It would be disastrous if, in seeking to provide redress for victims of harm, the law put intolerable new pressures on the voluntary sector. ."

But no sooner had the principle been decided in the Court of Appeal, than a bombshell exploded in the media from a completely different direction. The deceased entertainer, clown prince BBC 'national treasure' and indefatigable charity fundraiser Sir Jimmy Savile, was about to be 'exposed' as a serial paedophile.

The story – an ITV documentary by media gumshoe former police officer Mark Williams-Thomas – was trailed heavily in the print and online media before the broadcast on October 3rd. A smattering of accusers were lined up to tell their stories and there was a backstory of 'cover-ups' – the police and the BBC were implicated, even since Savile's death the previous year.

It was the perfect storm for a child abuse scandal, out-manoeuvring and incorporating all the previous institutional shocking revelations at a stroke.

Hot off the blocks, child abuse compensation solicitor Liz Dux wasted no time in reaping the potential of clients. In a round of media appearances she spelt out the opportunities:
(13.10.12 Channel 4 News)

The age of ACAL had come to fruition. They had opened the floodgates and a renewed era of speculative witchhunting was up and running.

But not all was happy in the house of the PI Lawyers. There were other clouds on the horizon through restrictions on legal aid and no-win no fee arrangements. Child abuse compensation was moving out of its niche market. There were big players moving in who threatened to pull the rug from under the feet of pioneers such as Peter Garsden.

And Liz Dux, still posted as being at the respected law firm Russell, Jones and Walker in the Savile October 2012 media fest, would become the leading light. For RJW had already been consumed by an immigrant predator – as would be a whole swathe of leading ACAL lawyers, including Pannones the hitherto field leader in the UK.

The marauder was Slater and Gordon, the Australian stock market listed firm who had entered the UK by stealth, making Liz Dux a director even while still marketed as RJW. How big was the hidden pool of 'victims',who would become liable and through what means?

But for Slater and Gordon, it wasn't just a matter of servicing clients and recompensing partners and employees. They had shareholders to satisfy. Investors whose only interest was the bottom line of profit and loss. Adventures abroad could herald a bonanza – or could result in doom and gloom threatening disaster. The stakes were high, and the chips likewise.

In the wider PI field where S&G had their main investment, 'compensation culture' was getting a bad name in the UK. Child abuse claims could be tricky and expensive, not to mention emotionally draining. But they were also a potential media shop window for compassionate concern, building up a profile of trust in the gargantuan incomer.

The question was this: could media support, public concern and claimant volume turn around image, satisfy the claimsmakers and deliver a hefty dividend for the shareholders? S&G satisfied this in the shortrun by a riproaring campaign of costly acquisitions in the UK. The share price zoomed on the back of confidence and expectations. Now they had to deliver.

The cottage industry pioneered by the likes of Peter Garsden had become industrialised. And the hunt was on not just for the claims, but for a mass expansion of the deep-pocketed blamed.

Next: Following the trail of the IICSAthon Pt 3 Functional anatomy – an evolutionary guide.