Following the trail of the IICSAthon Part One – The Dark Force that Dare not Speak its Name

Following the trail of the IICSAthon

Part One – The Dark Force that Dare not Speak its Name

Yesterday in the Times David Aaronovitch mounted a powerful argument as to why the beleaguered IICSA inquiry should not only be disbanded, but should have never been set up in the first place.

In summary, its scope is too broad, as echoed in the former chair Dame Lowell Goddard's critique, and it was founded on a McCarthyite hysteria about a VIP ring which has since deflated to virtual extinction.

Mr Aaronovitch documents how the crusading zeal of select politicians, journalists and campaigners forced the hand of the then Home Secretary to set up an inquiry. This then became a pawn in the hands of alleged victims and their supporters, leading to the current sorry state of affairs whereby an initial limited inquiry led by a judge became statutory and chaired by an 'independent' overseas judge only for her to jump ship (or be pushed) and leaving a colossal legalistic behemoth now under the chairmanship of a person originally appointed as a social work 'expert' who has no legal qualifications or expertise.

The one interested party in the presumptive IICSA crusade Mr Aaronovitch failed to mention was personal injury lawyers.

But no matter, because even prior to his article, solicitor Peter Garsden tweeted a link to his own article in defence of IICSA accusing 'dark forces' of attempting to bring it down.

  

Mr Garsden, a founder of the Association of Child Abuse Lawyers who represents claimants in making compensation claims against institutions, stated that to abandon the inquiry would be a dereliction of duty to the thousands of 'survivors' who have pinned their hopes of justice on a successful outcome.

He includes the proposed hearings concerning the late Lord Greville Janner, adding that he represents some of the accusers and that it is their 'only chance' to receive justice at a public hearing.

There has indeed been a great deal of clamour and controversy about the Janner hearings. For a start they concern alleged abuse by an individual whereas the remit of the inquiry is institutional failings. Secondly, the mode of inquiry precludes the rules of evidence in a civil or criminal court that would ensure fairness. And thirdly, and most importantly, Lord Janner is not able to mount a defence.

But Mr Garsden is wrong when he says this is the accusers' only public recourse to justice. On the contrary, the way has been opened up by the family contesting civil claims against Lord Janner's estate. His son Daniel Janner, a criminal QC himself, has argued persuasively that the matter in the civil court should he heard in advance of any hearings by IICSA, an argument which has been fiercely opposed by another leading ACAL solicitor, Liz Dux of Slater and Gordon.

It was Ms Dux whose voice rang out in the media protesting against the decision not to prosecute the ailing Lord Janner, when he was still alive, and also when he had passed – absurd though that might be in fact and law.

On the face of it, it might seem odd that lawyers demanding justice for their clients supported a criminal prosecution, 'for their voices to be heard', but object to a civil trial, where their voices can be heard and liability decided, in favour of an inquiry which can go no further than a 'finding of fact'. For the inquiry is not empowered to establish liability for alleged offences. It merely provides a staging post on the way.

And here we come to the heart of the matter and the IICSA project. To a man, woman and lawyer, the interested parties will protest 'it's not about money. It's about justice/accountability/closure'. But while that may be true of some victims, the overwhelming majority, signed up to the various survivor groups and ACAL lawyers – which included until recently the now defunct Public Interest Lawyers headed by Phil Shiner, currently under investigation – are looking for monetary compensation.

The Victims and Survivors consultative panel, vocal in its protestations to keep the IICSA ball rolling through NAPAC spokesman Peter Saunders (who Aaronvotich pointed out as being one of the leaders of the original presumptive witchhunt) is in the process of addressing the central aim – the setting up of a reparations scheme.

A reparations scheme need not include cash handouts, but it most probably will. When a similar open-handed scheme was set up in concert with the Irish Industrial Schools Inquiry, it attracted thousands more to make claims. There was no need for proof. Personal injury firms, many based in the UK, promoted the scheme far and wide – and received ample fees for their endeavours.

There is no reason to think that claims would not expand exponentially in the UK were such a scheme to be launched.

Meanwhile in Australia, where a smaller scale Royal Commission has been in progress over a number of years, the setting up of a reparations scheme has triggered yet more controversy and dispute. Claimants,(who do, or did, not want money), say proposed amounts are derisory given their suffering. Questions are also being asked as to whether claimants who have previously received compensation for abuse should be permitted further awards on the basis of extended institutional liability both within and without the scheme. And the institutions who are blamed – not the alleged offenders – are disputing whether they should be held liable to foot the compensation bill or the state.

Because remember, these inquiries do not establish liability, only 'facts' which may provide the basis of an inference for legal liability.

There is little doubt that IICSA – were it ever to get to the point of findings – would come up against similar problems, multiplied.

And the Janner case? The civil case is in respect of Lord Janner's personal estate. Even on the balance of probability, it may be hard for the claimants to establish their case, which would be subject to rigorous cross-examination even in the absence of the testator. It could be a very costly gamble for the legal teams involved on a conditional fee basis, particularly Slater and Gordon the listed Australian law firm reeling from massive losses through its UK acquisitions.

Rather then, the quasi-judicial 'findings' of IICSA, shorn of due process and with legal costs guaranteed.

Any positive 'findings' could then be utilised in an attempt at settlement in the civil dispute or be channelled into the 'reparations' kitty.

This is but the latest episode of the ACAL crusade in making a mockery of justice and patsies of us all.

Part Two will follow shortly as to ACAL and the floodgates of injustice.

Janner v Beck and the conspiracy cloud atlas

With the announcement by the CPS that Lord Janner will not be prosecuted despite ‘credible evidence’ of serious sexual offences, the clock has been turned back to 1991 and the conviction of Frank Beck.

The Beck case was the first high-profile trawling operation in children’s homes. 

It formed the template for the massive police investigations across Britain in the following decade, beginning with the North Wales enquiry which has been resurrected in Operation Pallial.

At the core of these investigations was a belief by the police that paedophiles had infiltrated children’s homes on a massive scale and were farming children out to powerful people running rings and networks of abuse.

The Beck investigation began in 1989 at the height of claims about ‘satanic abuse’ sweeping Britain.

These had originally centred on impoverished dysfunctional families, with social workers imposing their beliefs on vulnerable young children.

As the social workers became locked into the self-reinforcing belief system, they began to posit a great chain of ritual abuse stretching to the highest in the land.

The fundamental flaws in this approach were exposed in a joint police and social services enquiry and family court cases with the findings later confirmed in a Government commissioned investigation by Professor Jean La Fontaine.

But back in 1989 there was an expectant air, with the potential victims extended to children’s homes.

The homes were, it was thought, the nursery slopes of a vast industry of child exploitation beginning with sexual abuse, moving on to commercial child pornography, snuff movies and the satanic overlords.

The homes were the lower and crossover levels of ‘organised abuse’ – the name adopted once the satanic claims came under critical scrutiny.  The term was ambiguous: was the ‘organisation’ the home, or the nature of the abuse?

For many it was an acceptable obfuscation of the satanic theories retaining the essential core belief in a massive interconnected conspiracy which had been successfully covered-up by powerful forces including senior police and politicians largely through allusions to corruption in freemasonry.

Adopting the modus operandi of the social workers, the police thought that victims would not, or could not, voluntarily complain.

This was not merely because they might be disbelieved or intimidated.  They were psychologically unable to speak out unless pressed - or led.

Sometimes this translated into being induced by the prospect of compensation.

In fact it was assumed that the nature of the abuse was such that victims may have no conscious recall at all. ‘Recovered’ and ‘dissociated’ memory – a cornerstone of the satanic abuse claims - became an accepted part of the interrogative investigative arsenal.

Frank Beck was a maverick social worker who had successfully managed a string of children’s homes in Leicestershire.  He had long courted controversy through his own use of behavioural therapeutic techniques based on the psychobabble theories popular in the 70s.

The overarching theory at the time was that the cause of child and adult disturbance was maternal rejection.  The cure was to ‘regress’ teenagers back to infancy and begin the developmental process
over again.

This included the bizarre practice of giving adolescents feeding bottles, or even nappies, while treating them like infants within a nurturing and loving environment, allowing them to develop the sense of security that had been previously lacking.

At the time it seemed as if these techniques had a measure of success and Beck was able to pursue his methods without censure, even though this included provoking children’s anger to breaking point in order to destroy their defences and begin the process of ‘regression’.

When the police began to look into these practices, they quickly formed the belief that the ‘therapy’ was a smokescreen; a means of making children vulnerable to horrendous sexual abuse.

But while castigating Beck’s ‘regression’ methods and theories, the police happily employed the rationale of ‘recovered memory’, gathering a mounting number of serious allegations against Beck.

Yet, as with subsequent investigations, as the enquiry progressed, the original hypothesis receded.

They expected to find evidence of child pornography and snuff movies connected to the hierarchy of ‘rings’ leading to the Shangri-La of the network controllers.  

But while the allegations were horrific enough, they remained rooted to the day to day mundanities of life in the homes.

Although others were charged with Beck, the end product for the prosecution was based on the force of Beck’s personality alone in successfully abusing children without prior detection.

Beck meanwhile protested his innocence: he had been framed.  But lacking any clear perspective of the trawling philosophy and its provenance, he adopted a conspiracy theory of his own.  There was indeed a network of powerful paedophiles at large, but far from feeding them, it was his own rear-
guard attempts to expose this which had led to his framing.

Thus the trump card for Beck in his defence became Greville Janner: a boy at a home had confided in him about abuse by Janner and because he tried to protect him from his incursions, he had become the victim of a massive witchhunt.

He firstly shouted out Janner’s name at a remand hearing.  This caused a furore ensuring that the subsequent two month trial would be swamped with media interest.

In due course  Beck mounted his defence with evidence of letters to a boy and correspondence from Beck to Janner which he claimed was to warn him off.

The alleged victim, Paul Winston, gave evidence in Beck’s defence telling of visits to the House of Commons and stays in the Leicester Holiday Inn.

Janner of course was not a witness.  He had denied the allegations and had been voluntarily interviewed by the police at his own request.  After the trial, he told the House of Commons that he and his family had befriended a boy, as had many others at the time, in order to improve his welfare and life prospects but this had soured, with the net result being false allegations in support of Beck.

At trial, evidence from Winston was inconsistent and the correspondence from Beck to Janner went no further than requesting him not to send presents, as this incited the jealousy of other residents.

The prosecution called the Janner defence a ‘red herring’ and urged the jury to discount this and the concomitant conspiracy theory.

Beck was in due course convicted of the major part of the charges and sentenced to five life sentences and 26 years.  He became dubbed as 'a monster' while the now familiar questions of how it could have happened under the auspices of the council and without prior detection by the police ran
rampant in the press.

A subsequent enquiry by Andrew Kirkwood QC carefully documented the rise and fall of Beck and the convictions of other care workers for minor sexual offences within the county over the years.

With hindsight there were numerous ‘warning signs’ and overlooked irregularities.  

But try as he might, he could not find evidence of a ring, or networks of freemasons involved in systematic cover-ups.

As with the prosecution, it was said to be the power of Beck’s personality that had dazzled to deceive.  The monster had been caged, but the mystery of how he had remained at large remained
unsolved.

Soon Beck and the Janner defence became forgotten, overtaken by the much larger trawl investigations elsewhere.  Beck died from a heart attack in prison in 1994, still protesting his innocence.

In the wake of the Beck case, it was the North Wales cases that adopted the mantle of conspiracy.

Once again, it was the police investigations themselves which fuelled, and were fuelled by, the theories, but once the evidence was sifted, there was nothing but a string of allegations against individuals.

And so once more the puzzle of how the extent of abuse could have happened without detection led to speculation and inquiries.

The Waterhouse Tribunal was specifically aimed at establishing, whether, beyond the convictions, there was an organised network in charge.

The conclusion, not without the Tribunal having invited a flood of  additional  claims against individual care workers, was in the negative.

However with the dawning of the internet age and social media, conspiracy theories, once confined to fringe publications such as Scallywag, Lobster and the occasional insinuation in Private Eye, went viral.

And there were powerful interests in the chase.  Mohammed Fayed, the former owner of Harrods who bore a grudge against the British establishment for refusing him citizenship, bought into the idea that the Establishment was indeed controlled by corrupt homosexuals and paedophiles.

And when his son and Princess Diana died in a car crash occurring under his patronage, he was determined to pin the blame on this very same establishment conspiracy - which could heuristically be extended to royalty in his cause.

And then came Jimmy Savile and the hundreds of alleged offences ‘hiding in plain sight’.  Operation Yewtree, posited on Savile being at the centre of a celebrity ring or network, was launched.

The sudden mushrooming of claims about Savile ignited fresh interest in conspiracies.  Wasting no time, the North Wales activists unplugged the genie in the Waterhouse bottle.

While the McAlpine claim collapsed in ignominy for the BBC, a fresh inquiry into Waterhouse was launched with a new major police investigation into North Wales care homes and outside networks, Operation Pallial.

And so it continues.  The overarching Goddard enquiry is tasked with examining the entire framework of alleged rings, networks and cover-ups.

Janner complainants will enjoy immunity from both defamation and effective defence in being able to give evidence to the enquiry, in the manner of 'ceremonial confirmation' demanded by complainants.

Meanwhile a High Court Judge, Sir Richard Henriques has been tasked to examine the failure to previously prosecute Janner.  It will be interesting to see his findings.  The CPS say there was sufficient evidence to prosecute in 1991.

But is that the case?  The only complainant then was Winston.  His evidence at Beck’s trial was inconsistent.  He may have had a criminal record.  At that time, there was a mandatory corroboration warning given to juries and other safeguards which have since fallen by the wayside.

A single complainant case in a non-domestic historical case in such circumstances would have had scant chance of success.

And there was another problem.  As Winston had given evidence for Beck, his evidence at a Janner trial, if accepted, could undermine the safety of the Beck conviction, forming a ground of appeal.

Meanwhile the defence might claim, in the light of the Beck conviction, that Winston was a Beck stooge, undermining his credibility.

It’s easy to see how the odds on conviction might be calculated without any need for a high-ranking cover-up.

It is of course true that other complainants have since emerged.  But then the Janner story has had a long period of gestation in the public domain. 

Interestingly the latest crop of complainants are all said to be from care homes in Leicester, yet none other than Winston made any allegations against Janner at the time of the Beck trawl.

So where does this leave Beck?

Was he, as the conspiracy theorists and the police originally believed, part of an organised hierarchy of abuse?

Or was he innocent – framed by the conspiracy extending to the police operation?

If the former, did he try and defend himself by grassing on Janner, exposing ‘the tip of the iceberg’?

Or if the latter, does this mean that other innocent people have been ‘framed’ to protect the guilty?

In general, the conspiracy theorists take it as read that those indicted in trawls are guilty.

But if  the guilt of Beck were to  be presumed, the ‘Janner defence’ would have been potentially self-incriminating, since it could have revealed Beck to have been part of a chain of iniquity far outstripping the offences with which he was charged.

And since that time, no other defendant in trawl cases has put forward a similar defence.

So the puzzle remains.  How is it that so many got away with so much for so long if there weren’t powerful interests protecting them?

There is an alternative.  Anyone looking into the rise of the trawls and exponential growth in historic allegations will see that there is a triad in common throughout.

It is the belief in past sexual abuse as a hidden cause of life problems; the belief in the ubiquity of paedophiles extending to rings and networks, and the growth of the compensation industry.

By some strange alchemy, these ingredients arose in the late 80s at exactly the same time, and to the same effect.

The inflation of belief may net true allegations, but it can also create an undifferentiated mass of false and exaggerated claims.  Distilling life’s problems through the prism of abuse on invitation is a way of excusing personal faults and shortcomings with the bonus of financial gain.

This alternative would explain how it is that the conspiracy theories not only refuse to go away, but become magnified.

As an increasing number of people are convicted for serious historic offences, the implausibility of this happening on an ever-widening scale without prior detection becomes magnified.  Thus the conspiracy theories are reinforced.

But if, on the other hand, some, or many, of the people are innocent and wrongly convicted, then the failure is explained by the fact there was nothing to detect.

However, if wrongful prosecutions and convictions are not detected, then not only is it  a personal tragedy for those involved, it also wrong foots the entire criminal justice system, the media and public opinion.

The failure to detect miscarriages of justice, and the flaws within the criminal justice system leading to them, increases the likelihood of an escalating rate of wrongful prosecutions and convictions, because the flaws leading to this, rather than being rectified, are reinforced and magnified.

So what of Beck?  Could he have been innocent, at least of the most serious charges, and if so why did he point to Janner and a conspiracy theory?

Janner may or may not be guilty of some things.  But it’s possible both that the prosecution were right about it being a ‘red herring’ and that Beck was largely innocent.

Confronted with the mass of allegations, he would have wondered what it was that had caused this.

He knew he had enemies within the council, but could, or would, they have manufactured a witch-hunt against him of this magnitude and scale?

But Beck was not immune to the mood music of the age – the conspiracy theory.  Whatever the truth of the Winston claim re Janner, here was a member of the elite implicated in abuse.

Just as complainants may convince themselves that abuse, real or imagined, is the sole cause of their life’s problems, so could Beck have come to think that Janner, and the powerful elite, were the sole cause of his difficulties.

That he had that kind of obsessional personality is indicated by his faith in half-
baked methods such as ‘regression therapy’.

The irony is that in attempting to defend himself, Beck would fuel the conspiracy bandwagon that has, as part of the collateral damage, condemned countless innocent men and women for non-existent offences.  

“We walked in clouds and could not see our way,” was an epitaph by one of the remorseful Salem witch finders.

Has something similar happened with the trawls and their ever-expanding legacy?  

And if so, who, or what, will guide the criminal justice system back on the right path?

CPS guidelines and the Pinocchio effect

The trial  had all the hallmarks of ‘grooming’ – a gang of adults luring a vulnerable young girl into sex, drugs, prostitution and trafficking.  

But last week, six weeks after it began, the juggernaut case ground to a halt.
 

In an unusual move, Judge James O’Mahoney ruled that the complainant’s evidence was too unreliable to be put to the jury.

While she was undoubtedly a vulnerable witness with an unhappy life history, he said her evidence was replete with lies and contradictions as against the known facts.  

The seven defendants, Roma Slovaks, as was the complainant, walked free.

The newspaper report stated that the judge criticised the investigation ‘ “the police had asked leading questions, had failed to consider the girl’s “tendency to confabulate”, had failed to challenge inconsistencies in her evidence and had failed to restrict the number and length of interviews with the teenager.

‘He said there had been a serious lack of neutrality during police interviews with officers telling the girl, “I know you have told the truth”, and “I think it's awful what you’ve gone through”.’

With such manifest flaws, it might be asked how the multimillion pound case got past the Crown Prosecution Service.   

But the answer is simple, it was in line with their guidelines.

For when interviewing complainants, investigators are led to expect that

• They may give inconsistent and contradictory accounts

• They may need to be repeatedly interviewed giving piecemeal accounts, sometimes  saving the worst until last 

• The fact of inconsistency and contradiction may be symptom of abuse and confirmatory supporting evidence

• The complainants are victims.

The danger of confabulation in such circumstances is not recognised at all.  Yet it is a fundamental risk, not just in this case but in all grooming and historic cases where ‘case building’ relies heavily on a progressive narrative by complainants, and where there is a presumption of victimhood. 

In multi-complainant cases the risk is greater because not only are potential complainants allowed to be told about what others are claiming, leading to the possibility of cross-contamination, but there is a greater likelihood of the case being decided by the jury where the lurid similarity of claims may prompt a jury to convict on dubious grounds.

For the fact is that the term ‘vulnerable’ when applied to witnesses who have a history of difficult and wayward behaviour, or as GMC police chief Sir Peter Fahy termed it ‘putting themselves at risk’, does not only mean they are open to sexual exploitation, but can also mean they are open to suggestion by their saviours – the police, social workers and allied multiagency services.

While it is undoubtedly true that these cases are tricky to investigate, and that serious crimes may have been committed, the CPS guidelines are in fact a rehash of the notorious ‘child sexual abuse accommodation syndrome’ which fuelled the ‘satanic abuse’ daycare cases such as McMartin and a host of miscarriages of justice.  

Such ‘counterintuitive’ theories, while popular within the sexual abuse industry, have no empirical basis and when used as an investigative tool may massively inflate claims, building a phantom shared narrative.   

It may then become very difficult to distinguish the real from the imagined with genuine offences becoming submerged within fantasy, or even overlooked.

However, the most imminent danger is that of miscarriages of justice.  For not only are the CPS guidelines a template for investigation and prosecution, but judges may now direct the jury to similar effect.  

Under the rubric of ‘myth busting’ in the Crown Court specimen direction benchbook, juries can be told that (at pp361-2) inconsistencies may be a result of trauma caused by the offence, and may discount them in coming to a verdict. 

These directions have been upheld by the Court of Appeal.

Not only is this presumptive, since in order for the jury to consider the evidence in this way, they have to decide that the offence was committed, but it undermines the standard of proof.

Where a case depends substantially on oral testimony, the only way a jury can be sure of guilt is by examining the cogency and consistency of testimony.  

Of course there will be cases where the defendant’s evidence is poor and that can support the prosecution, but in many cases all that may be possible for the defendant to give is a flat denial, with nothing other than the complainant’s evidence to rely on.  

If a complainant’s evidence is seriously inconsistent, then the only fair and rational verdict is to acquit.  

Of course it does not mean that a complainant is necessarily lying or mistaken about the offence, but insofar as the burden of proof is on the prosecution and the standard of proof is to be sure of guilt, then acquittal is the only safe conclusion. 

With the police and CPS falling over themselves in conducting mass investigations into CSE, and other historic inquiries, Judge O’Mahoney’s intervention is as timely as it is exceptional.

While there are still judges who believe in the principle of the ascendancy of cogency and consistency in evidence, it has been discarded by the CPS in this field, and compromised by the Judicial Studies Board.  

The safeguards to the integrity of justice in England and Wales have not only been eroded, but are hanging by a thread.