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Chapter 32: The response of higher management to investigations, including the Jillings inquiry

Introduction

  32.01  It is of some relevance to the relationship between Clwyd county councillors and the Social Services Department that from 1974 until 1989 no political party had overall control and that until 1987 committee and sub-committee chairmanships were shared between groups, in which the group of independents was prominent. Emlyn Evans, the first Director of Social Services, found that the members were supportive but, apart from a small number of prominent figures, they had neither the inclination nor the ability or experience to give a firm lead; and this last comment applied to successive chairmen of the Social Services Committee. Members saw the Director of Social Services rather than themselves as the employer and the staff as his employees.

32.02  This relationship changed from 1989 when the Labour group became a majority of the elected members. From 1987 Labour members had conducted themselves as the opposition to a coalition of the other groups and, when they became the majority, conduct of the Council's affairs changed quite quickly. In particular, two relevant leading figures emerged. The first, Councillor Dennis Parry, a former Mayor of Holywell and of Delyn Borough, who had been a county councillor from 1981, became chairman of the Labour group in 1990 and its leader in 1991, whereupon he became Leader of the Council, with his own office at Shire Hall. The second leading figure was Councillor Malcolm King, who had been employed by the Council as Centre Manager/Area Organiser of an Intermediate Treatment Centre at Wrexham from 1977 to 1982 and had then become manager of a community project for children and families in Wrexham. Councillor King was elected to the County Council in May 1989 and became Chairman of its Social Services Committee from January 1990, after serving as Vice-Chairman for six months. The result was that these two men played leading roles with John Jevons in all major decision making in relation to the County's social services from 1990 onwards until the County Council ceased to exist on 1 April 1996.

  32.03  By an unhappy coincidence for them the Norris scandal surfaced in June 1990 and major decisions had to be made in the aftermath of the police investigations into Norris' activities at Cartrefle. Up to that point only the prosecution of Thomas and Gillison in 1986 and 1987[435] had raised any public concern about possible abuse in Clwyd community homes (as distinct from private homes): we are not aware of any general public reaction in 1977 to the prosecution of Leslie Wilson[436], perhaps because it concerned his obsessive relationship with one boy only. From June 1990, however, there was persistent public discussion of alleged abuse in the community homes. It is convenient, therefore, for a number of reasons to consider separately in this chapter (a) the response to internal investigations before 1990 and (b) action taken by the Council after 1990 in the light of successive further disclosures.

The response to internal investigations before 1990

  32.04  In this period there were five internal investigations into the affairs of community homes but three of these were into Park House. The latter took place in 1975, 1978 and 1988 and the other two were into Little Acton in 1978 and Chevet Hey in 1986. A sixth inquiry, at the behest of Mr Justice Mars-Jones in 1987, was into the circumstances in which Gillison and Thomas had become employed by the Social Services Department. All these investigations have been outlined earlier in this report but it is necessary to emphasise here the ineffective response of higher management to all of them and the failure to report them promptly and adequately to members of the Council.

  32.05  All three reports about Park House were highly critical. The first investigation was triggered by the actions of a local resident, who drafted a letter for a girl resident to send to the News of the World, in which she complained about her treatment[437]. It was carried out by Gledwyn Jones and Geoffrey Wyatt, who dismissed the girl's complaints but disclosed a number of matters of concern, including the unfamiliarity of staff with the Community Homes Regulations, the need for advice on control and discipline from the Residential and Day Care Officer, the need for a less rigid regime and the failure of the Officer-in-Charge to provide access to case records to residential care staff. This report does not appear to have led directly to any general administrative action. Veronica Pares (RDCO) did produce an undated discussion document entitled "A Guide to Good Practice in Community Homes" for distribution to residential and field staff, although it stated that "the views expressed are personal and must not be quoted as Clwyd policy".

  32.06  The investigation in 1980 was into complaints made by NALGO and staff at the home about various working practices and also about the food and clothing supplied for residents. It was conducted by Pares' co-inspector, Ivor Hughes, who reported that he had found "turmoil and unrest" and that the demands and inclinations of the staff were being met first rather than the needs of the residents (the cook, for example, worked only from 9 am to 1 pm so that she served the staff rather than the children and she was unwilling to change). The relationship between the Officer-in-Charge and her Deputy was so strained that the Inspector regarded it as beyond recall. Two out of four rota visit reports by councillors had been adverse and there were deficiencies in the background information about residents supplied by their social workers[438]. Probable consequences of the report were that both the Officer-in-Charge and her Deputy left Park House by the end of March 1981. The remarkable fact is, however, that the new Officer-in-Charge was not shown a copy of the report nor told of its contents. As far as we are aware, the report did not go beyond senior and middle management and it was not thought necessary or appropriate to put it before councillors.

  32.07  The third Park House report in 1988 contained severe criticisms. A panel of three, comprising a senior officer of the National Children's Homes, the Assistant County Secretary of Clwyd and the Area Social Services Officer for Rhuddlan, had been commissioned to enquire into and consider all aspects of the planning and execution of a holiday at a Butlin's holiday camp, arranged for a group of residents, in the course of which a 13 years old girl resident had had sexual intercourse with a young man staying at the camp[439]. The report, however, went much wider than the panel's terms of reference and set out what we have described as "scathing criticism of the state of residential care in Clwyd at the time". Our summary of the report's findings and recommendations at paragraph 17.84 needs to be re-read to gather their full range and impact. Together, they pointed to serious weaknesses in the management of the residential child care service in Clwyd and underline the validity of many of the criticisms that we ourselves have made.

  32.08  That report was sent to the Director of Social Services on 11 September 1989, but, as we have explained in paragraphs 17.85 and 17.86, its subsequent distribution was very limited. On the evidence before us only Geoffrey Wyatt, John Llewellyn Thomas and Michael Barnes saw it, apart from Gledwyn Jones. It was not shown to the Chief Executive (Mervyn Phillips) and it was not even discussed with the Deputy Director of Social Services (John Jevons), who probably did not see it until he became Director in April 1991. Michael Barnes drafted an immediate response to the report's criticisms but that document appears to have remained a draft only.

  32.09  The most serious aspect of the matter is that the members of the Social Services Committee were not given any adequate account of the circumstances that had given rise to the inquiry or of the report's findings and recommendations. Gledwyn Jones' surprising and lame explanation for this was that he regarded the inquiry as an internal one and that he wanted to "move quickly on to doing something about the recommendations". We are unable to accept this as correct. The truth of the matter is that the report was largely suppressed because it revealed such widespread failings in the administration of the children's services over the preceding 15 years. We think that it is unlikely that he discussed the contents of the report with the Chairman of the Social Services Committee (certainly not with Malcolm King[440]) and his own report to the Social Services (Children and Family Services) Sub-Committee a year later was seriously misleading: it purported to be a response to national concerns and avoided mention of the serious weaknesses identified in Clwyd's own management[441].

  32.10  The report on the Butlins holiday and the response to it are of particular significance in the overall history because they illustrate so clearly the stifling climate that pervaded the Social Services Department, from the Director downwards, until 1990. Self-protection was the dominant thought in any response to criticism or complaint and this was reflected in the Department's management of the business of its committees and sub-committees. It appears that councillors were only permitted to know what it was comfortable for them to hear, even when a claim by an understandably disgruntled mother on behalf of her daughter was threatened.

  32.11  The responses to other inquiries before 1990 were no more satisfactory. We have summarised in paragraph 12.07 the relevant comments made in 1978 by the investigating team into Little Acton on the administrative and organisational difficulties there (apart from their findings in relation to the individuals identified in paragraph 12.06 and Peter Bird). Like the Park House report ten years later the Little Acton Inquiry had drawn attention to weaknesses in the overall management systems in respect of children's residential services. Both Emlyn Evans (Director) and Gledwyn Jones (Deputy Director) were interviewed extensively by the team: we have seen copies of the records of the questions put to them and their answers, from which it is clear that they were fully apprised of the team's concerns. Nevertheless, we have not received evidence of any general managerial response to the report. It was not put before the Management Committee for the three Community Homes in Wrexham. The minutes of that committee's meeting on 8 September 1978 include the following note under the heading of matters arising from the minutes of the previous meeting:

"Reference was made to the problems which had been encountered recently at Little Acton and concern was expressed at the limited amount of information which the members had received. In the event of similar difficulties being encountered elsewhere in the County it was emphasised that a greater degree of liaison between officers and members take place."

  32.12  There is nothing in the committee's minutes for 1978 and 1979 to suggest that its members were ever told the contents of the Little Acton report, save for bare details of the disciplinary action subsequently taken. The attitude of the senior officers seems to have been that it was intended to close Little Acton as soon as practicable and that no wider remedial action was necessary.

  32.13  The investigation into Chevet Hey in 1986 by Geoffrey Wyatt was of a much more limited kind. The immediate problems were opposition by the Officer-in-Charge, Ellis Edwards, and other members of the staff to the return of Paul Wilson after suspension and complaints by Wilson of difficulties in his relationship with Ellis Edwards[442]. However, Wyatt heard evidence from quite a wide range of officers and some residents who asked to see him; and he expressed some views in his report on matters outside the problems linked with Wilson and Ellis Edwards. Thus, he said in his conclusions:

"I was dismayed at what I discovered during my investigations. Chevet Hey is a costly resource and could serve a very important role in the provision of services to children in care but for this to happen its functions and purposes need to be clearly defined and we must have the necessary professional and management skills to promote a sense of excellence about the service that is delivered.

. . . Some of the blame for the state of affairs at Chevet Hey must rest with the management at Shire Hall and the direction, guidance and support they have given to this. There has been far too much activity and not enough action. Senior management have failed to critically examine what was going on at Chevet Hey and did not adequately monitor the standards of service. The general impression that is given is that things were left to drift."

These were remarkable comments from the person with line management responsibility himself.

  32.14  At both Little Acton in 1978 and Chevet Hey in 1986 the Officer charged with putting the community home right was Michael Barnes, but he did not receive a copy of either report. His evidence to us was that he was made aware of the serious concerns of the department about both. At Chevet Hey he was apprised of the overall situation, much of which was apparent, and told to turn the place round. He was asked also to comment on whether Chevet Hey should be closed.

  32.15  In the same year as the Chevet Hey report Michael Barnes and Christopher Thomas[443] presented an eight page document, dated 22 August 1986 and entitled "Report on Child Care - Draft Policies", which was, in effect, an indictment of the existing state of residential child care in the county. In the following quotations the description "Areas" has been substituted for "Districts" to avoid confusion. The authors said, for example, in the Introduction:

"Even though a lot of progress has recently been made in developing a child care strategy and in planning policy, it is still generally true that aims and objectives of the Department (which are not always clear and lack specificity) are weakened by uncertain management. I am not quite sure why this should be but we have noticed that Areas, and indeed residential establishments, have been more isolated and therefore independent from Headquarters. As a result the role of HQ in setting policy and in maintaining practice has become so blurred to the point that some Areas (and some residential settings) find it easy 'to do their own thing' regardless of policy. We are not quite sure whether this cavalier attitude is the cause or the effect of uncertain management."

  32.16  Barnes and Thomas went on to draw attention to what they described as "a marked withdrawal of community based support to residential establishments" evidenced by such developments as the withdrawal of direct psychiatric support, increasing resistance by head teachers to permitting children in care to receive mainstream schooling and the failure of social workers to work with community homes and to use them to best effect. They added:

"On a more practical level, community involvement is affected by failure to promote home contact. Placements out of the area weaken community ties. Frequently disrupted placements have a similar effect. Many social workers find it too easy to discard their clients out of the area and to abandon them 'in care'."

  32.17  Finally, the document contained many helpful comments on the importance of placement policies and care planning. The authors' views were stated most succinctly in the following passage:

"The placement of children needs improving professionally and managerially. Care planning is haphazard, open to abuse and lacks authority. Admission into and discharge from care requires careful monitoring and a very tight control if abuses are not to occur. The present system is arbitrary, dependent more on personal goodwill than a good professional practice and often not in the child's best interest."

 We are not aware, however, of any coherent steps to overhaul Clwyd's procedures and practice before preparations for implementation of the Children Act 1989 began.

  32.18  The other pre-1990 inquiry that needs to be mentioned briefly was the P and Q Inquiry, as it was called, at the request of Mr Justice Mars-Jones in 1987, following the prosecution of Gillison and Thomas. The request by the judge was that an investigation should be carried out by Clwyd's Social Services Department into the circumstances in which those two defendants had come to occupy the positions they held. There followed the most extraordinary delay despite the fact that Michael Barnes, who had been present in court for most of the trial, wrote to the Director of Social Services about the matter on 28 January 1987, only 12 days after the judge had made his request.

 32.19  In that letter Barnes said that he shared the judge's view that there should be a thorough investigation and continued:

"This is, I feel, particularly important since it is clear to me that there are a number of parallels in this case with previous similar incidents notably those occurring at Box Lane [Little Acton] some years ago. In addition there have been other isolated incidents involving actual and suspected sexual abuse by staff members as well as some more recent evidence suggesting that two former members of Care Staff (who, I understand are the subjects of unrelated court proceedings) have also been involved in sex crimes against young children who are in loco parentis with the local authority.

I am sure you will agree that we must do all we can to protect children, especially those in care from this vile abuse.

There are, I believe, a number of lessons to be learned from these events. It is of vital importance, especially in residential care where the capacity to damage is very much greater than in field work that we face up to the need to learn from past mistakes.

I very much hope that the Department will take up the judge's recommendation and will not only consider why the staff members concerned came to be employed by the Social Services Department, but will also examine why cases of this sort are becoming such a common feature of local residential provision. For my part I will gladly provide any information or service which may assist in this process."

  32.20  When the report by the County Secretary, Roger Davies, was eventually presented to the Social Services (Child and Family Services) Sub-Committee nearly four years later, on 16 October 1990, it dealt with the judge's request in the narrowest possible way and absolved the Council from any blame. Moreover, it gave a misleading account of the availability of police checks on prospective employees and made no reference at all to the Department of Health Consultancy Service Index or to the Department of Education's List 99 (the erroneous impression was given that vetting procedures had not been available before 1986). Thus, there was no informed discussion by the Sub-Committee or by officers of the adequacy of Clwyd's recruitment and vetting procedures and no wider consideration was given to the matters that Barnes had specifically raised.

  32.21  The way in which the request by a senior High Court judge, who was himself a native of Clwyd, was dealt with reflects very badly on the administration of Clwyd County Council at the time. It is yet another example of the lack of frankness of its senior staff and their unwillingness to probe deeply. We do not believe that Davies' report would have gone beyond him (it was not signed until 8 October 1990) but for the prosecution of Stephen Norris[444] and a journalist's comment then that the response to Mr Justice Mars-Jones' request had not been made known.

Later investigations

  32.22  There were four more investigations into specific homes or persons between 1990 and 1995 in addition to the overall Jillings inquiry. These investigations were into Cartrefle[445] (1990 to 1992), Frederick Rutter[446] (1992), Cherry Hill[447] (1994) and Foster home E[448] (1995). Of the four, the most important and wide-ranging was the investigation into Cartrefle and we will deal with this and the Jillings inquiry in succeeding sections of this report.

  32.23  The circumstances giving rise to the other three investigations and the relevant findings and recommendations that were made have been sufficiently summarised already in the passages cited below. It should be noted, however, that there were unsatisfactory aspects of all three. Both the Rutter and the Cherry Hill investigations were limited. The Rutter report, apparently drafted by Geoffrey Wyatt, was presented to the Social Services (Children and Family Services) Sub-Committee on 21 October 1992 and one member commented upon its inadequacy. It was far from thorough and the investigation of the supervision and support of children boarded out or in lodgings was little more than cursory. The Cherry Hill investigation, on the other hand, appears to have been quite inconclusive, as we have indicated in Chapter 16. The documents before us point to organisational disarray in dealing with the problem and, most importantly, the danger that victims of sexual abuse might become offenders does not appear to have been addressed adequately. Finally, despite the serious concerns and criticisms expressed by the Review Sub-Committee that considered the placement of E1 in Foster home E, it was their view that managers within the East Division still believed that there had been "no significant errors and lessons to be learnt from the handling of this case".

The Cartrefle Inquiry, 1990 to 1992

  32.24  The investigation into events at Cartrefle leading to the conviction of Stephen Norris took place in two phases. After the Director of Social Services had consulted the Welsh Office and the Area Child Protection Committee had considered the position three management case reviews were established by the Social Services, Education and Health authorities. These reviews were commissioned in November 1990, after the conviction of Norris and some five months after the abuse came to light, and they were completed by June 1991. Clwyd ACPC then appointed a panel of inquiry comprising five members to provide an overview of the case reviews[449]. The panel's report was delivered in February 1992 and an edited version of its conclusions was ultimately presented to the Social Services Committee.

  32.25  The procedure that Clwyd adopted was an attempt to follow the guidance on inter-agency working given in the Department of Health and Welsh Office document "Working Together"[450], at what was then Part Nine[451]. In our opinion, however, it was an error to try to adapt that guidance to circumstances to which it was not intended to apply. The problems that had arisen at Cartrefle were such that a quick and wide investigation within the Social Services Department was called for, embracing the question whether similar problems had arisen or were likely to arise in other community homes and the remedial action that was necessary. As it was, the process was set in train much later than it should have been and the unwieldy involvement of other agencies, followed by an overview, led to further unnecessary delay: it took 15 months to the presentation of the panel's report whereas Working Together envisages action within weeks of discovery of the problems that trigger the review.

  32.26  The key management review of social services was carried out by John Banham, a retired senior officer of Cheshire Social Services Department, who interviewed 60 members of staff. His report was highly commended by the panel and we have summarised some of his conclusions and those of the panel at paragraphs 15.44 to 15.49 of this report. They were, however, highly critical of the review or inquiry procedure adopted by Clwyd, in particular of the delay in putting the arrangements in hand, and commented that it had soon become apparent to them that the key focus of their own review would not be on inter-agency issues.

  32.27  Before leaving this subject it is necessary to note that many of the criticisms by the panel and Banham were directed to the same matters that had been the subject of criticism four years earlier in the report on the Butlin's holiday from Park House and in the Little Acton report of 1978. They were highly critical of the lack of leadership and direction shown by senior management in Clwyd and its lack of awareness of the seriousness of its responsibility to safeguard and promote the welfare of the child: in their view, a change of style and culture was needed to develop an ethos which put the interests of the service user first. They criticised also aspects of the new divisional structure, whilst supporting it in principle. Amongst their criticisms were that the role of Divisional Child Care Managers needed to be defined and that there was a need for co-ordinated, consistent and integrated managerial arrangements across the Social Services Department. They recommended also the appointment of a new headquarters Officer-in-Charge of Child Care Services, equivalent in rank or senior to Divisional Directors, because they did not regard the newly created post of Principal Officer as sufficiently senior. Overall, the weakness of management arrangements was seen as a significant contributory factor to both the poor quality of care at Cartrefle and the failure to protect children living there from abuse.

  32.28  Legal and administrative problems were by no means over when the panel presented its report in February 1992. It was not until 27 October 1992 that a report of the conclusions of the inquiry panel together with the response of the Director of Social Services were put before the Social Services Committee. In the meantime there had been discussions with the Council's insurers and the County Solicitor had been heavily involved in considering whether and, if so, to what extent the report could be published. By 1992 the major police investigation into allegations of abuse in many North Wales children's homes was fully under way and was thought to be giving rise to potential claims against the Council so that the County Solicitor was working closely with solicitors appointed by the insurers in preparation of the Council's defence.

  32.29  The advice tendered by the County Solicitor to the Director of Social Services was that the panel's report was privileged from disclosure in legal proceedings: the Council's insurers were "most anxious therefore, that the report should remain confidential and that any publication, however limited, should be made on the basis that such publication (was) not to be construed as any waiver of public interest immunity in respect of either the document or any documents referred to in the publication". Discussions had taken place also with representatives of the Crown Prosecution Service, who had said that the report must not be published because its publication might prejudice forthcoming or contemplated criminal proceedings and would constitute contempt.

  32.30  These difficulties were resolved by an agreement with the insurers that there should be limited publication of conclusions and recommendations extracted from the report. Discussion by members of the council was, however, to be confined to "the general principles disclosed" and "must not be related to individual circumstances which (might) be the subject of criminal proceedings or give rise to potential claims against the Council".

  32.31  It is not surprising in these circumstances that the Social Services Committee (and the Area Child Protection Committee) received a much censored and anodyne version of the panel's findings and recommendations in preparation for its meeting on 27 October 1992, eight months after the report itself had been presented. Summarised recommendations were set out in one column and against them, in a parallel column, were set reassuring comments by the Director of Social Services (John Jevons) in very general terms about programmes for such matters as management development and training, the preparation of care plans and improvements in the process and practice of reviews. The recommendation that there should be a senior post at Assistant Director level or equivalent for child care services within headquarters was, however, rejected by the Director on the ground that it reflected "a centralist approach directly contrary to the aims of the new department structure (which the Panel supports)".

  32.32  It appears that the summary of the Panel's conclusions and recommendations and the Director's responses were also put before a meeting of the county's community homes managers on 3 November 1992 (not 26 October 1992 as stated in the first draft of the minutes); and they were highly critical of the Director's responses. Michael Nelson, for example, commented that, on reading the Director's answers, he had queried whether they worked for the same organisation: staff felt that recent progress had been overstated, for example, on strategy, staff development and care planning.

  32.33  To this Michael Barnes made the revealing reply that:

"The Director had to take a global view and that comments meant for a wider audience would not appeal to everyone. Sometimes a balance had to be struck between the need to give a factual account (warts and all) and the need to reassure staff and talk up the service."

  Barnes said he was concerned that a totally negative message was not in staff/ children's best interest. He felt that, if the service was to survive, it was important "to highlight glimmers of hope in what otherwise might seem to be a mass of darkness".

  32.34  This meeting helped to emphasise the need for a positive response to the Cartrefle report. On 30 November 1992 the Social Services Management Team commissioned the Principal Officer Children (Jackie Thomas), with assistance from others, to produce by 26 February 1993 an implementation plan in relation to the panel's recommendations, following upon an audit of progress by each Division. According to Jevons, he was unhappy about the quality of Jackie Thomas' response, which disclosed considerable disarray. His evidence to the Tribunal was that a strategy had been formulated by October 1992 but that it was not at that time to be found in a single document. On 30 March 1993 a strategy paper entitled "A Framework for the Development of Services to Children and Families" was approved in committee and it was published the following month. Two years later final responses to the detailed recommendations of the Cartrefle panel were also circulated.

The Jillings inquiry and the Insurers' involvement

  32.35  In paragraphs 2.36 and 2.37 of this report we have given a brief account of the background to this Inquiry, which was set in train when the main part of the major police investigation had been completed. The proposal to set it up was first discussed by the Leader of the Council (Dennis Parry) and the Chairman of the Social Services Committee (Malcolm King) with the Chief Executive (by then, Roger Davies), the Director of Social Services (John Jevons) and the County Solicitor (Andrew Loveridge); and it was approved by the Social Services Committee on 12 January 1994. The Council's insurers were not consulted about the proposal.

  32.36  The stated reason for the inquiry was that the police investigations had been protracted and that considerable further time was likely to elapse beforeany public inquiry could start: it was felt that the Council needed to review the past more quickly than a public inquiry could in order to learn whether anything else needed to be done by the Council to ensure the proper care and protection of children. The panel of inquiry was instructed initially to conduct "an internal investigation for the County Council into the management of its Social Services child care services from 1974 to date with particular reference to those concerns which prompted the investigation by the North Wales Police". It was anticipated that the panel would complete its work by August 1994; its report would be submitted to Loveridge and Jevons and it was intended then to put it before the Council's Policy, Finance and Resources Committee.

  32.37  John Jillings, a retired Director of Social Services for Derbyshire and former President of the Association of Directors of Social Services, agreed to act as chairman of the Panel of inquiry. The other two members were Gerrilyn Smith, a clinical psychologist, and Jane Tunstill, a social work academic, who was subsequently appointed Professor of Social Work at the University of Keele. Draft terms of reference were agreed with the County Council before the panel began its work in March 1994 and finalised in November 1994[452]. The investigation lasted 16 months longer than had been originally envisaged and the Panel's report was completed in February 1996.

  32.38  In the course of its investigation the Panel interviewed a cross section of staff and former staff of the County Council and some other agencies with child protection responsibilities in Wales. They interviewed also some former residents of Clwyd community homes and foster homes: and they saw documents relating to events of the past 20 years. Finally, the Panel also visited a number of homes in Clwyd.

  32.39  The Jillings report, covering the period from 1974 to 1995, ran to 254 pages (excluding six appendices). Its central core was a discussion of, and commentary upon, the investigations and reviews to which we have referred in this chapter coupled with an account of events at Bryn Estyn, including the earlier inquiry in 1971 into the conduct of the Principal at that time, David Ursell[453]. Other sections dealt with mainly administrative and organisational matters under the headings Organisational Overview, Policy and Practice at Divisional Level and Staff Issues; but there were sections also on specific issues for children and young people as service users and additional external influences on child protection.

  32.40  This Tribunal decided at an early stage that the Jillings report should not be admitted in evidence before us. Major reasons for this decision were thatthe report consisted substantially of expressions of opinion on matters which we ourselves were required to investigate afresh and to reach our own conclusions and that it had been presented on 22 February 1996, less than two months before the demise of Clwyd County Council and too late for any response by that authority in terms of positive action. In saying that we do not intend any criticism of the report itself or of the time taken by the Panel to investigate and to formulate its report. Other important reasons for our decision were that, apart from expressions of the Panel's opinions, the contents of the report were largely hearsay in relation to the issues that we had to decide, on which we were to receive direct evidence. Moreover, the form of the report was such that it could not helpfully be used in cross-examination of individual witnesses.

  32.41  The members of the Tribunal were, however, supplied with copies of the Jillings report to enable us to consider the action taken in respect of it after it had been presented to the Director of Social Services and the County Solicitor. It was helpful also to Counsel to the Tribunal in advising as to the evidence that ought to be placed before us.

  32.42  For reasons similar to those set out in paragraph 32.40 we did not consider that it would be appropriate for John Jillings or the other members of the Panel to be called to give evidence before us.

  32.43  Following the receipt of the Jillings report on 22 February 1996 by Andrew Loveridge, it was given very limited circulation. It was seen by the senior officials involved and by the Leader of the Council, who consulted other leading members of the Council nominated by their respective groups. According to Loveridge, "The initial reaction of the Council was one of amazement (at) the number of inaccuracies contained therein and the style and content of the Report". It appears that an effort was made to establish a list of the alleged factual inaccuracies with a view to concurrent publication with the Report and on 7 March 1996 instructions were sent to Leading and Junior Counsel to advise on the question of publication. Supplementary instructions were sent to them shortly afterwards in the light of representations by the North Wales Police and by the Council's insurers and by 20 March 1996 Loveridge had received a Preliminary Joint Opinion, a Joint Opinion and a Supplementary Joint Opinion from Counsel.

  32.44  Counsel instructed were the Honourable Michael Beloff QC and Paul Stinchcombe and they had to consider three main primary problems, namely:

(1)  whether publication of the report might avoid Clwyd's insurance policy, bearing in mind the large number of objections raised by the insurers to any publicity attaching to the report;

(2)  the potential liability of Clwyd for publication of any defamatory comments contained within the report; and

(3)  whether there was any risk to the proper administration of criminal justice through the impact upon any pending trials of publication of the report.

  32.45  In relation to the first problem the view of Counsel was that (a) any formal adoption or approval of the report by Clwyd could be taken as an admission of liability in respect of any cases considered in it which might become the subject of claims by victims of child abuse when in Clwyd's care and (b) any publication of the report so as to bring into the public domain matters which would otherwise be confidential, privileged or protected by public interest immunity, could amount to a waiver of rights to assert the same. In either event there would be a grave risk that Clwyd would have acted in breach of an express condition of its insurance policy (and of a fundamental term), disentitling it from protection in respect of the claims referred to. Counsel advised also that publication to the wider public of even an abridged version of the report would be dangerous.

  32.46  On the second problem, Counsel advised that:

(a)  there was insufficient reciprocity of duty and interest between Clwyd and the public at large to enable the Council to argue that qualified privilege attached to the report if published at large;

(b)  if the Court were to rule that disclosure to members did involve further publication rather than the mere reception of the report by those who had commissioned it, there was a legitimate interest in members in receiving it, even though the Council was about to dissolve, and that the Council could, therefore, invoke the defence of qualified privilege to any claim of libel in respect of that limited publication.

  32.47  In the light of these conclusions Counsel advised that the report should only be made available to members under strictly controlled conditions, observing safeguards suggested by the Council's insurers. In short, each page of the report was to be numbered individually; the report was not to be circulated to members but elected members were to be invited to read it in an appropriate senior officer's room; and, when the report was received by the Policy, Finance and Resources Committee, it was to be dealt with under part 2 of the agenda so that it would be received in private in the absence of the press and public. Members of the Committee were to be instructed also not to discuss the report or its contents with members of the public, particularly representatives of media. On this basis Counsel advised also that there would not be any risk that the good administration of criminal justice would be prejudiced by the actions of Clwyd.

  32.48  The Supplementary Advice of Counsel (identified as Joint Opinion 2) dealt with such matters as the retrieval of copies of the report that had already been distributed (all were to be returned) and the future custody of all copies, subject to the transfer provisions governing property on the demise of Clwyd County Council. Counsel advised that the report could be made available to members within the Council Chamber at the meeting at which it was discussed provided that all copies were returned at the conclusion of the meeting; and they dealt also with the liability of any member to surcharge, if he/she took any action contrary to the express instructions given that exposed Clwyd to liability.

  32.49  The advice of Counsel was accepted and the Policy, Finance and Resources Committee duly received the report at its meeting on 22 March 1996, after earlier discussions between the leading members referred to earlier. The committee dealt with the matter by simply noting the report and agreeing to refer it to the Secretary of State for Wales to assist him in considering whether or not a public inquiry should be instituted. The procedure adopted is not clear but the evidence is that neither members of the committee nor other members of the council read the report. It may have been available in an office for them to read if they wished to do so. The decisions of the committee were approved by the Council at its last meeting on 26 March 1996.

  32.50  The Welsh Office also had sought advice about the feasibility of publishing the Jillings Report and had consulted Treasury Counsel. We have not seen any written opinion given by the latter but in a letter to Loveridge (as Director of Legal and Administration for Flintshire County Council, the designated successor authority to Clwyd in respect of insurance matters), dated 14 May 1996, the Welsh Office did state:

"It is not normal practice for Treasury Counsel's advice to be made available or divulged to third parties in the way that you have suggested. However, I can advise you that while in our discussions with Counsel he has generally endorsed Mr Beloff's opinion on this matter he has indicated that it should be possible to publish an edited version of the Report's recommendations. This could be accompanied by some newly-drafted contextual passages which would explain the basis on which the recommendations are made."

32.51  At this time the Welsh Office was encouraging the successor authorities to produce an edited version of the Jillings recommendations but was unwilling to publish such a document itself. The successor authorities did not, at first, reject the idea of publication and discussed with Jillings the possibility of preparing a "safe" version but they concluded by 6 June 1996 that they could not publish the report and the Secretary of State was so informed. The problem then receded, however, with the Prime Minister's preliminary announcement on 13 June 1996 of the Secretary of State's intention to institute a public inquiry.

  32.52  In the months following the presentation of the Jillings report to Clwyd County Council, it was almost inevitable that there would be allegations of a "cover up" by Clwyd and (less forcefully) criticism of the Welsh Office and the successor authorities for failing to take on the burden of publishing the report after 31 March 1996. We do not accept, however, that these allegations and criticisms were justified. In our judgment leading members and senior officers of Clwyd County Council were bound, in the exercise of reasonable prudence, to accept the authoritative legal advice that they received very promptly and to act accordingly in the short space of time left to them. The Welsh Office was not under any duty to publish the report and the successor authorities were still grappling with the dubious possibility of preparing a "safe" version when the problem ceased to be of major importance with the announcement of this Tribunal of Inquiry.

  32.53  The other target of criticism in this context has been the conduct of the insurers, who were represented by Counsel before this Tribunal. The nature of the criticism was that they had exceeded their proper role in demanding that neither the Cartrefle report nor the Jillings report should be made public. Underlying this criticism was the suggestion that they had improperly prevented elected councillors and local government officers from discharging properly their duty to electors in matters that had given rise to widespread concern.

  32.54  The insurers waived their privilege in respect of their correspondence and discussions with Clwyd County Council about all relevant matters in relation to publication of the Cartrefle and Jillings reports and the conduct of the Jillings inquiry in order that the Tribunal should have a full picture. We have also been given full information (including documents) about the representations made by the Crown Prosecution Service and the North Wales Police. There is no dispute, therefore, about the relevant facts and it has been unnecessary for the insurers or the Crown Prosecution Service to give oral evidence to us.

32.55  It will be helpful to explain that Clwyd County Council's insurers were Municipal Mutual Insurance Ltd (MMI) until 1 April 1993. That company was formed in 1903 by a group of local authorities as a mutual company. It had no share capital and was limited by guarantee; its policy holders were mainly local authorities, who were its members. In 1990, having expanded and diversified, MMI suffered heavy losses with the ultimate result that it ceased to write new business or renew existing policies from the end of September 1992. On 9 March 1993 Zurich Insurance Company (Zurich) bought the right to seek renewal of most of MMI's insurance business, and thereafter Zurich operated that part of its business under the name Zurich Municipal (ZM).

  32.56  Zurich did not assume any liability to creditors of MMI but there was a claims handling agreement under which Zurich provided MMI with claims processing and financial administration services in respect of most of the insurance business written by MMI prior to 30 September 1992. Thus, ZM processes, investigates and settles, on MMI's behalf, claims arising under former MMI policies; but the agreement provides for referral to MMI when, for example, claims based on sexual allegations are received. An experienced claims manager was transferred with other employees of MMI to ZM and he continued to deal with claims against MMI, acting on the advice of a solicitor in private practice with long experience of MMI's local authority business and who advised local authorities on a wide range of matters, not limited to the conduct of litigation in respect of which they were entitled to an indemnity from MMI or subsequently ZM.

  32.57  In view of the way in which matters developed and in the light of our terms of reference, it is unnecessary to record here the details of the discussions and correspondence that took place between 1992 and 1996, which we have studied. One reason for this is that the Crown Prosecution Service vetoed, in effect, publication of the Cartrefle report in 1992 because the major police investigation, involving further allegations against Stephen Norris amongst others, was still being pursued. In our judgment that action by the Crown Prosecution Service, on the basis that contemplated criminal proceedings might be prejudiced, was fully justified and it was not until November 1993 that Norris was sentenced for his earlier offences at Bryn Estyn. We accept also that the insurers were prepared in 1992 (but for the CPS veto) to countenance presentation of the Cartrefle report to an appropriate committee, provided that its confidentiality to the relevant elected members and officers of the Council was preserved. A major concern of the insurers at that stage was that the Council should not be seen to waive public interest immunity that would otherwise attach to the report, or to important parts of it, and to many background documents.

  32.58  The issues that arose in relation to publication of the Jillings report in1996 were more complex but essentially similar to those that arose in 1992 in respect of the Cartrefle report. There was no statutory protection afforded to the Council in libel proceedings other than that provided by the Defamation Act 1952. Moreover, the form of the report was such that it contained a great deal of defamatory material based on hearsay and dealt with some matters that were not within the inquiry's terms of reference. In relation to the insurers' contractual position, apart from the Council's potential liability for defamation, there were further difficulties because of the wish of some councillors to make statements intended to appease public concern but which might be construed as admissions of liability or at least as encouraging further financial claims against the Council. Any public discussion by the Councilwas likely to give added fuel to potential claimants and to undermine to some extent arguments available to the Council on questions of privilege from disclosure.

  32.59  An important distinction between the position in 1996 and that in 1992 was that neither the Crown Prosecution Service nor the North Wales Police objected to publication of the Jillings report on the ground that it might prejudice current or potential criminal proceedings. However, the Chief Constable, in a letter to Loveridge dated 12 March 1996, made substantial criticisms of factual statements in the report and comments in it about the level of co-operation by the police with the Panel; and he referred also to potential liability for defamation. In the first of his concluding paragraphs he said:

"I hope that the issues I have raised are sufficient in themselves to cause the County Council to reflect over the weight they place on some of the unsupported assertions made in the report, and to think very carefully over the potentially actionable consequences of publishing the report as it currently stands."

  32.60  Looking at the part played by the insurers' representatives in this history as a whole, we accept that they acted throughout with the honourable intention of preventing Clwyd County Council, its officers and members from acting in such a way that the insurers would be compelled to repudiate liability for claims by victims of abuse or by persons who alleged that they had been libelled by either report. The insurers' representatives adopted an interventionist role with this objective so that Clwyd knew where it stood in the matter; and, in our judgment, that was strongly preferable to a passive role that might well have led to repudiation, with grave consequences for the Council and many others. In his submissions to the Tribunal Counsel for the insurers said that, in hindsight, they accept that, at times, the tone of the correspondence on their behalf was intemperate and went too far in the demands made of the Council. They accept also that their approach to the dilemma of striking a balance between the duty of a council to seek the truth and identify reforms on one hand and its duty to protect its financial interests on the other may be open to criticism. However, they have been in discussion with the Association of British Insurers and with the Local Government Association and its predecessor with the object of producing guidelines for authorities on the subject of inquiries where insurers may be involved.

  32.61  For our part we do not think that it would be appropriate on the evidence before us to express any stronger criticism of the insurers' conduct in this matter than that indicated in the preceding paragraph. The legal and contractual issues that arise in relation to the conduct of inquiries of the kind that we have discussed and the publication of reports on them are matters of public concern that deserve further consideration at a high level. Those issues themselves involve different specialist questions in tort and contract. Firstly, in relation to the law of defamation, the following questions arise:

(1)  Should there not be a general statutory provision enabling local authorities to institute inquiries into matters of wide public concern and to publish the reports of such inquiries to the public at large with the protection of qualified privilege, whether or not the public has a sufficient interest in receiving the report within the terms of present legislation?

(2)  If not, should not the limits of legitimate publication of such reports be defined in order to safeguard the position of elected members and officers in discharging their public duty?

(3)  If the issues are not considered suitable for legislation, should there not be central government guidance to local authorities on them, including guidance as to the format of inquiries and the content of reports?

(4)  Is similar legislation or guidance desirable for other public authorities that may need to institute inquiries into matters of wide concern?

  We consider that the problems underlying these issues are likely to recur quite frequently and that they are suitable for consideration by the Law Commission.

  32.62  The contractual issues that arise are less suitable for legislation because insurers cannot be compelled to underwrite liabilities and will make their own assessments of risk when they do agree to provide cover. It is highly desirable, however, that there should be an agreed code of practice to guide local authorities in their response to situations of the kind that arose in Clwyd. The Jillings experience raised questions, amongst many others, about:

(1)  The decision to institute an inquiry.

(2)  The advertising of requests for witnesses to come forward to give evidence.

(3)  Disclosure by the local authority of documents to assist the inquiry.

(4)  Evidence to the inquiry by Council staff, particularly senior officers.

(5)  References in the course of the inquiry and in any report to matters, including documents, which might be the subject of claims of privilege in subsequent litigation.

(6)  The extent of circulation of any report and permissible comment by councillors and officers upon it.

  These are all matters of pressing concern on which agreement should be sought and which may require intervention by central government to facilitate it.

  32.63  In the context of these recommendations we draw attention to the report entitled "Ad Hoc Inquiries in Local Government" by a committee presided over bySir Alan Marre KCB, which was commissioned by the Society of Local Authority Chief Executives and the Royal Institute of Public Administration and published in February 1978. Its recommendations included the suggestion that local authorities should, by a change in the law, be given the power to set up formal inquiries, empowered to summon witnesses, require the production of documents and take evidence on oath[454]. The committee proposed also that a code of practice and procedural rules to govern such inquiries would be necessary to ensure that they were both effective and fair[455]. In response to this report the Local Authorities Associations published in 1980 their own comments on the Marre committee's proposals. That response indicated that the Associations had decided not to pursue a request for statutory powers to hold inquiries at that stage; but they endorsed the call for a code of practice and procedural rules, putting forward their own suggested versions of such a code and rules[456]. In our judgment, however, the Associations' proposals on the reporting of inquiries[457] did not deal satisfactorily with the problems that subsequently arose in relation to the Jillings report and the time has come for further consideration to be given to those problems on the lines that we have suggested.

Footnotes:

435   See para 2.07(5) and (6).

436   See para 2.07(2).

437   See para 17.45.

438   For further details, see paras 17.50 to 17.54.

439   See para 17.81 for the full terms of reference, which were apparently drafted and agreed by the panel itself.

440   See para 32.02.

441   See para 17.86.

442   See para 14.20.

443   As Acting Officers-in-Charge of Chevet Hey and Bersham Hall respectively.

444   He was sentenced on 5 October 1990 - see para 2.07(7).

445   See paras 15.42 to 15.50.

446   See paras 26.13 and 26.14.

447   See paras 16.06 to 16.19.

448   See paras 27.43 to 27.52.

449   See paras 15.42 and 15.43 for further details.

450   1988, HMSO.

451   Now Part Eight.

452   See para 2.02.

453   See para 7.03.

454   See paras 4.13 and 4.14 of the report.

455   Ibid, see para 4.15 and the following paragraphs of the same chapter.

456   See paras 12 to 16 and the Appendix to the report.

457   Ibid, see the Appendix, paras 2.13 to 2.17.

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