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  6.01  The nature and scope of the Tribunal's inquiry have given rise to a number of special, but not unique, evidential problems. One obvious difficulty is that most of the witnesses have given evidence to us about events that occurred many years ago. Thus, the majority of the complainants of abuse are now in the age range of 25 to 35 years and gave evidence about events that occurred in the first half of their teens or earlier. Moreover, all but a few of them had not made any complaint of abuse before the major police investigation began in 1991 and some had not complained until later than that. In these circumstances any documentary or other supporting evidence of incidents to which they referred was likely to be difficult to trace and patchy at best. As for members of the care and teaching staffs at the children's homes and social workers involved in the complainants' care, against whom allegations of abuse or neglect have been made, they have had to reach back in their memories far in time and have been in equally obvious difficulty in seeking oral or documentary evidence to support what they have had to say.

6.02  Having regard to these difficulties and the scale of the alleged physical and sexual abuse that has emerged in the evidence we do not consider that it would be either practicable or appropriate for us to attempt to reach firm conclusions on each specific allegation that has been made to us. We made it clear at the outset of the hearings that we did not propose to conduct a series of criminal or quasi-criminal trials of individual allegations, not least because the format and procedure of a tribunal of inquiry are unsuitable for such a purpose. The range of matters to be covered in the course of the Tribunal's hearings has been such that it would have been impracticable and wastefully expensive to undertake a detailed examination of each specific incident, bearing in mind the overall objectives of the Inquiry underlying our terms of reference. The first requirement of those terms of reference is that we should "inquire into the abuse of children in care in the former county council areas of Gwynedd and Clwyd since 1974" and we interpret that as a requirement that we should hear the available evidence of the alleged abuse and reach such conclusions as we feel properly able to as to its scale and when and where it occurred as a necessary preliminary to examining the other matters specified in the terms of reference and to formulating relevant recommendations.

  6.03  At the conclusion of the hearings of evidence before us, Counsel on behalf of Salmon letter recipients (SLRs), ie those who are alleged to have committed acts of abuse against individual complainants, made a number of submissions to us about the nature of the findings that we should make and our approach to the evidence of abuse. In particular, it was submitted that we should not make any findings of fact implicating individuals in our report because the full evidence in relation to specific allegations that would be available at a criminal trial, including character evidence, has not been heard and because some allegations emerged very late in the proceedings so that the alleged abuser was at a disadvantage in dealing with them. It was pointed out that Anna Pauffley QC and Rachel Langdale represented more than 100 different SLRs so that attention to each individual's case was inevitably restricted and it was suggested that, in any event, it was unnecessary to make findings against specific individuals in order to make final recommendations.

  6.04  A further submission on behalf of the SLRs was that, before making any general finding about the level and nature of abuse in any particular home, the Tribunal needed to be sure about it and about any comment upon it. In support of this proposition Counsel cited the following passage from the report of the Royal Commission on Tribunals of Inquiry 1966, which appears in that report under the heading "Should there be an appeal from the findings of the Tribunal?":

"These Tribunals have no questions of law to decide. It is true that whether or not there is any evidence to support a finding is a question of law. Having regard, however, to the experience and high standing of the members appointed to these Tribunals and their natural reluctance to make any finding reflecting on any person unless it is established beyond doubt by the most cogent evidence, it seems highly unlikely that any such finding would ever be made without any evidence to support it."[62]

  6.05  It would be inappropriate for us to become involved in an argument about legal semantics and, in the end, these legal points made on behalf of the SLRs are of academic significance only because we are sure of the correctness of the findings of fact that we make in our report. In our judgment, however, the proceedings before the Tribunal have been civil proceedings rather than criminal proceedings and the standard of proof to be applied is that applicable to the former. Since the Royal Commission reported in 1966, the courts have had to consider quite frequently the standard of proof applicable to civil proceedings in which grave allegations are made, including many cases in the Family Division in which the allegation has been of sexual abuse of a child. We take the correct approach, therefore, to be that enunciated by Lord Nicholls of Birkenhead in his speech in In re H (minors) (1996) AC 563 with which the majority of the House of Lords agreed. At page 586 D to G, Lord Nicholls said:

"The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his under-age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established."

  6.06  In the present proceedings before us the nature and volume of evidence from former children in care have been such as to enable us to reach firm conclusions about the pattern of behaviour of the more prominent SLRs and we state those findings in our report. In reaching those conclusions we have had fully in mind the many criticisms that have been levelled against the complainants both generally and individually. Thus, it has been suggested that their complaints have been made belatedly because they have become aware of the possibility of compensation[63] comparatively recently and that there has been collusion between them to fabricate similar complaints against particular individuals. The length of the delay in making complaints has been stressed and it has been suggested that investigating police officers encouraged the complainants to make allegations by telling them of their right to claim compensation. Reliance has been placed by the SLRs also on the disturbed backgrounds of most of the complainants, their failure to respond co-operatively to residential care, their bitterness about their subsequent failures in life, which they attribute to their time in care, and, in very many cases, their long criminal records, involving petty dishonesty and, in some cases, serious crime resulting in long sentences of imprisonment.

  6.07  Despite these substantial criticisms and other allied attacks upon the credibility of individual witnesses, including the paucity of direct corroboration in relation to most specific incidents, we have been impressed generally by the sincerity of the overwhelming majority of the complainants that we have heard and their own conviction that they are telling the truth about what occurred to them in care. Indeed, no one who has sat through the Tribunal's hearings and listened to their evidence impartially can have failed to have been impressed by what they have said and their stated motivation now in coming forward to give evidence. That is not to say that the evidence has always been accurate. Inaccuracies have been demonstrated from time to time in cross-examination on the basis of contemporary documents, including statements taken from others, and some of these inaccuracies may be the result of deliberate exaggeration or innocent embellishment in retrospect due to the lapse of time. We have in mind also that many alleged assaults occurred in circumstances in which a member of staff had been provoked by the victim or had to deal with an eruption of violence that had already occurred. What has been most striking, however, is the similarity in the accounts of conditions in particular homes given by former children in care from widely separate areas of the country and between whom there was no contact when they were in the home or afterwards.

  6.08  We have been urged, by Counsel on behalf of the SLRs already referred to, not to name in our report any alleged "perpetrator of child abuse" against whom we feel able to make a finding. The grounds of this are, firstly, that the individuals concerned have not had the same opportunity to challenge the case against them as they would have done in criminal or inter-party civil proceedings; secondly, that the consequences of naming a perpetrator of child abuse in a public report would have many of the consequences of a criminal conviction and would be likely to attract even greater publicity; and, thirdly, the paramount importance of protecting a specific child, which is the governing principle in family or child care proceedings, does not apply to the proceedings before this Tribunal.

  6.09  We should say at once that we accept without reservation the gravity of a finding of sexual abuse and it will be apparent from our report that there are very few such findings in our report except those that we make in respect of persons who have already been convicted of sexual offences against children in care. The reasons for this are that the allegations against other specific individuals have in general, been very few in number, have not been corroborated and are so distant in time that, in our view, no one could safely conclude that the abuse had occurred without the risk of grave injustice to the alleged perpetrator. In respect of those individuals who have already been convicted of relevant offences against children in care, however, our approach has been that, in the absence of a successful appeal, the convictions are evidence that the offences were committed and that it has not been within our jurisdiction to question the correctness of those convictions, unless (possibly) fresh evidence were to be tendered going to the root of the convictions.

  6.10  In the event no such fresh evidence has been submitted and none of the convicted persons referred to in Chapter 2 has appealed against conviction successfully. We have, however, heard evidence from additional witnesses not named in the specific charges before the courts that dealt with the principal offenders and we have evaluated this additional evidence in reaching our conclusions about the scale of the abuse that occurred. Similarly, we have heard evidence from witnesses in support of charges that were ordered by the relevant court to remain upon the court's file and have assessed that evidence for the same purpose.

  6.11  Conversely, we have not deemed it appropriate to question the correctness of verdicts of juries in respect of those SLRs who have been acquitted of all or some of the charges laid against them in the absence of compelling fresh evidence in support of those allegations. We have not considered ourselves to be bound by any 'res judicata' principle in this respect but we acknowledge the force of the 'double jeopardy' objection to re-investigation of these cases. Again, however, we have not been faced with any practical difficulty because no fresh evidence of substance has been put before us in those cases.

  6.12  A similar potential problem has presented itself in respect of the allegations of sexual abuse made against Gordon Anglesea, a former superintendent in the North Wales Police. As we have recounted at paragraphs 2.24 to 2.32, Anglesea brought libel proceedings against the Independent on Sunday, the Observer, HTV Ltd and Private Eye in respect of allegations that he had been guilty of very serious sexual misconduct at Bryn Estyn and on 6 December 1994 the jury found in his favour. This verdict was, of course, given in civil rather than criminal proceedings but, having regard to the way in which the central issue in the case was put to the jury by the trial judge, we can see no reason in principle for distinguishing the verdict from an acquittal. In considering the allegations against Anglesea, therefore, we have looked carefully for any compelling fresh evidence that would drive us to a conclusion contrary to that of the civil jury. The case against Anglesea is considered in detail in Chapter 9, because it has formed an important part of the inquiry, but in the end we have been unable to accept that it would be right for us to find against Mr Anglesea on the evidence presented to us.

  6.13  The question of "naming names" has been a problem throughout our inquiry. We have explained in paragraphs 1.08 and 1.09 of this report the ruling that we made at the outset in relation to the reporting of the names of complainants and alleged abusers as the inquiry proceeded and our reasons for it. As far as the complainants of sexual abuse are concerned, it appears to us that section 1 of the Sexual Offences (Amendment) Act 1992 will apply to our report and it is not lawfully open to us to name them, whether or not one or two of them may have been identified in the past in the press or on television with or without their written consent[64]. This statutory embargo does not apply to complaints of physical abuse but one practical difficulty is that a substantial number of complainants have alleged both physical and sexual abuse and our account of the history might well appear to be distorted if we were to name those complainants in respect of part only of their overall allegations. Quite apart from this technical problem, we have to remember that all these witnesses have come forward in adulthood to reveal circumstances of their childhood that still cause them pain in recollection and which may well be unknown to members of their present families and close associates. We have decided, therefore, in the general public interest, to preserve in our report the anonymity of all the complainants and we are satisfied that the impact of what we have to say will not be significantly diminished by this decision.

  6.14  Similar reasoning does not apply to the alleged abusers. In the first place, they do not have any statutory right to anonymity. Secondly, many of them have already been named in widely reported court proceedings so that no proper purpose would be served by not identifying them in our report. Thirdly, the essential purpose of our anonymity ruling in respect of them, namely, to encourage witnesses to come forward and to give evidence as freely as possible, has now been served. Fourthly, the potential injustice that could have arisen because of the inevitable delay between the reporting of the allegations in evidence and the Tribunal's findings about them does not now arise.

  6.15  Nevertheless, we consider that we should exercise a restrictive discretion in naming alleged abusers in our report. We have, for example, been able to give assurances in advance to a substantial number of persons in this broad category because of the comparative triviality of the allegations against them or the very limited number of minor allegations made against them over a long period. In other cases no assurance has been given but we do not consider that the evidence against particular individuals has been such as to warrant naming them, bearing in mind the climate in which they were working.

  6.16  In our judgment, however, we would be failing in our duty if we did not identify in our report:

(a)  those persons who have already been the subject of relevant court proceedings;

(b)  individuals against whom a significant number of complaints have been made, with our assessment of them;

(c)  other persons who have figured prominently in the evidence, whether or not they have been the subject of substantial complaints;

(d)  a limited number of persons who should be identified in the public interest in order to deal with current rumours; and

(e)  persons who have not been the subject of allegations of abuse but who were in positions of responsibility and whose acts and omissions are relevant to our full terms of reference, including council officials and police officers, but who have not had the benefit of any anonymity ruling by the Tribunal.

  Such identification is, in our view, essential to enable us to report coherently and fully upon the evidence that we have heard and as a basis for our recommendations. This paragraph must be read, however, subject to the caveat that we are unable to report at all upon some allegations because they are the subject of ongoing police investigations or proceedings: a summary of the latest developments in respect of these is given in paragraphs 50.29 to 50.32.

  6.17  The general approach of the Tribunal to the gathering of evidence from complainants was that each potential witness would be interviewed by a member of the Tribunal's investigating team and would be required to confirm or comment upon any earlier statements made by that witness to the police. Any complainant thus interviewed who was available and willing to give relevant evidence would then be called to give oral evidence and subjected to cross-examination. This procedure was followed in respect of most of the complainant witnesses. However, one witness, who is discussed fully in Chapter 9[65], insisted on preparing his own statement with the assistance of his solicitors and was permitted to do so. Some complainants could not be traced after they had been interviewed and others were unwilling to give oral evidence. In those cases it was agreed that their written evidence including any earlier statements to the police should be incorporated in the transcript but on the footing that the contents of the statements were not agreed. In a small number of cases potential witnesses were not called or written statements were excluded because there were clear pointers to their unreliability.

  6.18  Written statements were also admitted for a variety of other reasons. Some related to incidents that had already been the subject of court proceedings. Others were read because they dealt with relatively minor matters, by way of corroboration or otherwise, or contained complaints at the bottom end of the scale. In a limited number of cases statements to the police were read because the witness had not been found or could not be interviewed for another substantial reason. On behalf of staff in the homes, social workers, local authority officials and the North Wales Police numerous other written statements were admitted because their contents were not in substantial dispute (eg general character evidence or accounts of procedure or conditions in particular homes) or because they dealt with issues in respect of which it was unnecessary for the Tribunal to reach a concluded view. In several cases also the statements of potential witnesses who had died, including that of Peter Norman Howarth, were read.

  6.19  On behalf of the SLRs implicated in allegations of abuse it has been submitted boldly that it would be inappropriate for the Tribunal to place any reliance upon the contents of statements that were read but this is obviously much too wide a proposition. We have assessed the written statements before us in the appropriate conventional way, having firmly in mind that they have not been subject to cross-examination. The evidence in them has been very useful in filling out the general picture before us and in giving us a much wider cross-section of views about the relevant issues but we have not based any of our findings adverse to individuals upon the contents of the written statements, except in the very small number of cases in which the facts were admitted or virtually indisputable. In the result overall the Tribunal has had an unusually full opportunity to assess the evidence of the many witnesses who gave evidence orally, not only on the basis of their recent statements to the Tribunal but also in the light of their earlier successive statements to the police, in some cases their statements to care workers at the time when incidents occurred and often statements to the police or to others by witnesses alleged to have been present at the time.

  6.20  The findings of fact and expressions of view in this report are those of the full Tribunal.

Footnotes:

62   See para 134 of the report of the Royal Commission on Tribunals of Inquiry 1966, November 1966, Cmnd 3121.

63   The Tribunal was provided, by Counsel to the insurers, with a table listing those individuals who as at 10 March 1998, had instituted civil proceedings against Clwyd County Council, Gwynedd County Council or those two former authorities jointly. The table shows that a total of 104 claims had been made as of that date, 60 of which were notified to the insurers after 16 June 1998.

64   Section 5(2) of the Sexual Offences (Amendment) Act 1992.

65   See paras 9.32 to 9.34.