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Preparations for the hearings

  1      Leading Counsel to the Tribunal, Gerard Elias QC, made his opening speech on 21 and 22 January 1997, seven months after the setting up of the Tribunal had first been announced by the Secretary of State for Wales and just under five months after the members of the Tribunal had been formally appointed. This was the very minimum period required for preparation, having regard to the large number of potential witnesses to be seen, the enormous number of documents to be inspected and the widespread dispersal of both documents and sources of information that had occurred on local government reorganisation with effect from 1 April 1996.

  2      All three Counsel to the Tribunal were fully engaged in the preparations from early in September 1996 onwards. By that time the Treasury Solicitor had appointed a small team of lawyers, led by Brian McHenry (who had wide experience of public inquiries) as Solicitor to the Tribunal, to instruct Counsel and supervise a large group of up to 30 (from time to time) paralegals and two trainee solicitors in the preliminary work. This involved at first the examination of some 9,500 unsorted children's files, numerous staff files and 3,500 statements made to the police as well as the records of both former County Councils and of about 85 children's homes. In the end 12,000 documents were scanned into the Tribunal's database, including documents extracted from the large number of files submitted by the Welsh Office.

  3      A Chief Administrative Officer to the Tribunal, Evan Hughes, was seconded from the staff of the Welsh Office and he had a team of eight working under him to provide administrative and financial support. He was responsible, under the Welsh Office budget holder, for authorising expenditure and dealt with all the ancillary services as well as the processing of bills. There was a memorandum of understanding with the Welsh Office.

  4      We were fortunate to secure about half of the former but new headquarters of the Alyn and Deeside District Council at Ewloe in Flintshire, near major road junctions, as the venue for our hearings and as the office for the Tribunal and the main part of its staff. It was necessary, however, to obtain separate accommodation at the Shire Hall, Mold, for the purpose of housing many of the documents and carrying out the initial trawl through them. The former Council Chamber at Ewloe was specially adapted for the hearings with convenient working space for Counsel and solicitors and seating accommodation for the public.

  5      Preliminary matters that had to be negotiated under the leadership of the Welsh Office and with the guidance of its legal adviser, David Lambert, included the appointment of a witness interviewing team (WIT) comprised of former detective officers of the South Wales Police and adjacent forces, the engagement of a witness support service (The Bridge Child Care Development Service[929]), including a detailed specification of the service to be provided, and the provision of a Live Note transcript service by Sellars Imago, including document imaging. A Press Officer, David Norbury, was appointed in January 1997.

  6      Inspection of the statements to the police disclosed that about 650 former children in care had made complaints of abuse of varying gravity. The Tribunal itself advertised its proceedings widely with a request that complainants should make themselves known and about 100 persons responded to this request. In addition, the Tribunal's legal team selected at random as potential witnesses 600 former residents of children's homes in North Wales (about ten per cent) who were not known to have made any complaint. The members of the WIT were eventually able to interview 400 widely dispersed witnesses and travelled over 80,000 miles.

  7      The Tribunal decided that, as a general rule, we would receive evidence of abuse only from complainants who could be traced and who were willing to make a statement to the Tribunal. This involved, for most of them, making a statement to a member of the Tribunal's WIT, who was provided with a proforma containing guidance as to how the interview should be conducted; and complainants were informed that they could have their solicitor present at the interview, if they wished, and of the availability of the support service, if they required it.

  8      Two major problems intensified the work of the Tribunal's legal team throughout the preparation for the hearings and the subsequent proceedings. The first of these was the need to draft "Salmon letters" to all those who were alleged to have been guilty of abuse and to those who were likely to be the subject of other criticism, giving adequate particulars of what was said against them. In the case of alleged abusers, the problem was mainly one of timing because the evidence of the complainants had to be obtained before the letters could be drafted. Most of the alleged abusers had been interviewed by the police so that they had at least a general recollection of what might be alleged but the Salmon letters had to be based on the available up to date evidence, which, in some cases, included new allegations. To our great regret many Salmon letters had to be posted for this reason during the pre-Christmas period because of the urgent need to begin the hearings.

  9      The Salmon letters addressed to administrators and some others presented the different problem of diffuseness. They had to be drafted before the Tribunal's legal team had received any clear evidence of divisions of responsibility within the two former social services departments and the Welsh Office; and, even if the legal team had received some preliminary evidence about this, it would still have been necessary for the Salmon letters to have been drafted in wide terms, covering a broad range of issues. The result was that some Salmon letter recipients had to undertake considerable work, referring to forgotten files, in order to deal with the matters raised in the letters. Moreover, it was inevitable that informal interrogatories had to be addressed to some of the recipients, after their statements had been received in order to remedy omissions or clarify matters that remained unclear.

  10    I confess that I have not been able to devise a practical solution to the problem of over-diffuse Salmon letters. If matters of potential criticism are omitted, the Tribunal is open to the criticism of unfairness unless it grants an appropriate adjournment; and successive adjournments would cause major difficulties for everyone involved. A form of preliminary hearing or investigation could take place before each Salmon letter in this category was sent out, but that would also lengthen the hearings considerably in any complex case; and the procedure would not necessarily lead to a more concise statement of issues unless the relevant lines and areas of responsibility were clear cut. It may be that our own procedure was the only practicable one open to us, having regard to the fact that we had to investigate nearly a quarter of a century of administrative and other activity.

  11    The other main problem was that of disclosure of documents to the interested parties. Public interest immunity from disclosure was claimed by the successor authorities as a matter of principle in respect of a large proportion of the two former social services departments' documents, particularly the children's files and staff personal records. In the event, we adopted a procedure whereby the initial selection of relevant documents for each witness was made on a broad basis by the paralegal team under supervision; a narrower selection was then made on the basis of relevance by the Tribunal's legal team; and the final choice was made by me after weighing the public interest issue. The result was that all relevant documents, as far as the Tribunal was aware of them, were disclosed. In the case of police documents (other than statements to the police) they were divided, by agreement between the Tribunal's Counsel and Counsel for the North Wales Police, into two categories, namely, documents that could be copied by the parties and those that could be inspected but not copied. Inspection of documents and disclosure were made subject to appropriate undertakings limiting the use of information or documents to the purposes of the Tribunal. Parties were at liberty to apply for disclosure of any specific documents that had been withheld.

  12    On the basis of these procedures, core bundles containing all the main relevant documents were formed. These were, however, too large and unwieldy for repeated reference to in the course of a witness' evidence. A relevant smaller bundle was therefore prepared by the Tribunal's legal team for each witness; any other documents required by any of the parties were added to it; and the witness was then able to read and cope with the selected bundle before and in the course of giving evidence.

  13    On the whole, the procedure for disclosure of documents worked quite well with the co-operation of Counsel and solicitors but the volume of documentation to be absorbed in a short time undoubtedly imposed considerable strain on those most closely involved, including some witnesses. There were comparatively few complaints of being taken by surprise and short adjournments were granted whenever asked for on the ground of late disclosure. The Tribunal itself was assisted greatly in assimilating and dealing with the documents and in all other respects by its Clerk, Fiona Walkingshaw, a solicitor who joined us full time in December 1996, after secondment by the Welsh Office to the European Commission in Brussels, and who remained as de facto Secretary to the Tribunal until the presentation of our report.

Preliminary hearings

  14    It was necessary for the Tribunal to hold four preliminary hearings at intervals of five or six weeks beginning on 10 September 1996, mainly to deal with questions of representation. Before our first hearing HM Attorney-General authorised the Tribunal to say that anything any witness said in evidence before the inquiry would not be used in evidence against him or her in any criminal proceedings, except in relation to any offence of perjury or perverting the course of justice.

  15    We decided at the first preliminary hearing to grant anonymity to complainants of physical or sexual abuse and to persons against whom such an allegation was or was likely to be made, in the terms set out in paragraph 1.08 of our report and for the reasons given in the following paragraph of the report. On 11 and 12 February 1997 an application was made by Leading Counsel on behalf of the British Broadcasting Corporation, the Liverpool Daily Post and the Western Mail that we should set aside this "direction". The application was refused and the Tribunal's reasons for rejecting it, as explained by me on 12 February 1997, are annexed to this Appendix together with the revised notice given to the press and media after the application.

  16    We indicated at the first preliminary hearing that any complainant who made a written statement to the Tribunal would be granted representation by Counsel and solicitor, if he/she wished to be represented. We did so on the grounds that it was necessary in the public interest that their views on a range of issues should be put to the Tribunal with professional assistance. It was necessary also that persons against whom they made allegations should be cross-examined on their behalf and that they should have the protection of legal representation when dealing with any counter-allegations that might be made against them.

  17    The obvious problem was that a wide range of solicitors had already been consulted by complainants, some in connection with civil claims and other firms because of their known experience of inquiries into child abuse of a similar kind. Without going into unnecessary details, it became possible by agreement for one silk and two juniors to represent 119 of the complainants and for a separate junior Counsel to represent 18 other complainants. One firm of solicitors acted for 45 of the complainants and another for 18 whilst 61 were represented by 16 firms, forming a Wales and Chester Group led by Gwilym Hughes and Partners for the purpose of joint representation by Counsel[930]. The other 14 complainants were represented by 11 firms of solicitors. In this way nearly all the complainants who gave oral evidence to the Tribunal were legally represented as well as a small number of those who gave written statements but who were not called.

  18    A similar approach to the problem of representation of Salmon letter recipients was adopted as a result of very helpful co-operation by them and by their solicitors. In the event 103 of these recipients were represented by Anna Pauffley QC and Rachel Langdale. The 103 were mainly former residential care workers, including Officers-in-Charge, but some were former senior officers of the Social Services Departments. Representation of other Salmon letter recipients was more diffuse but some former teachers at Bryn Estyn, for example, were jointly represented.

  19    An early objection to these arrangements when they were at the discussion stage was that there were potential conflicts of interest between clients within the same group. A similar problem in more acute form had been faced and overcome, however, in the course of the Aberfan Tribunal's hearings despite wide joint representation, and we considered that the range of experienced Counsel instructed on behalf of the various parties was sufficient to enable any conflict to be accommodated without professional embarrassment. In the event we are not aware that any difficulty arose and we are satisfied that each of the "parties" who required legal representation was fully and fairly represented.

  20    In any prolonged inquiry of this kind the question of legal representation is inextricably linked with the issue of costs, which, in other forms of litigation, would be dealt with separately. In the present inquiry few of the "parties" had sufficient means to meet the cost of their own legal representation. On the other hand the Tribunal itself had no power to make any order for costs: it could only make a recommendation to the Secretary of State for Wales, who had set up the inquiry, that the costs of a particular party should be met out of public funds.

  21    Guidance on this subject was given by HM Attorney-General in answer to a Parliamentary question on 29 January 1990[931] in the following terms:

"Tribunals and Public Inquiries can be set up in a variety of ways. So far as ad hoc tribunals and inquiries are concerned the Government already pays the administrative costs. So far as the costs of legal representation of parties to any inquiry are concerned, where the Government have a discretion they always take careful account of the recommendations on costs of the Tribunal or inquiry concerned. In general, the Government accept the need to pay out of public funds the reasonable costs of any necessary party to the inquiry who would be prejudiced in seeking representation were he in any doubt about funds becoming available. The Government do not accept that the costs of substantial bodies should be met from public funds unless there are special circumstances."

  22    Since the Tribunal's hearings ended the Treasury Solicitor's Department has issued a memorandum[932] containing further guidance on the payment of costs, dealing with such matters as the basis of representation, the control of costs and the process of assessment, including provision for appeals.

  23    A particular problem that arose in this inquiry was that several of the Salmon letter recipients were members or former members of trades unions which had a discretion, usually to be exercised by the union's executive committee, as to whether or not the member or former member should be given support in the form of legal aid in defending himself/herself against allegations in relation to the performance of his/her duties whilst still a member. It is not surprising that, with varying degrees of hesitation, all but two of the relevant trades unions decided against giving legal support in this inquiry and we do not know of any means by which that decision could be challenged successfully. In these circumstances the Tribunal felt bound to recommend that the costs of the past and present members of the unions that had made that decision should be met out of public funds in the light of the Attorney-General's guidance.

  24    The other two trades unions declined to make a decision either way before the Tribunal made its own decision on the costs issue; and Counsel representing the seven Salmon letter recipients affected by this refusal renewed his application that the Tribunal should recommend that his clients' costs be paid out of public funds on the penultimate day of our sittings. Faced with this situation, we agreed to make the recommendation to the Secretary of State for Wales that was sought but to inform him of the background circumstances in which it was made. The Tribunal's dilemma on this issue highlights a real difficulty about the Attorney-General's statement in 1990. Underlying that difficulty is the question whether a "party" whose union agrees to provide legal support is less meritorious than one whose union refuses to do so.

The Tribunal's hearings

  25    As we have said in paragraph 1.11 of the report, we sat on 201 days between 21 January 1997 and 7 April 1998 to hear evidence and submissions. In all 264 witnesses gave oral evidence and we received the written evidence of 311 further witnesses. Evidence was read for a wide variety of reasons, including the deaths of some witnesses, but the range of reasons need not be canvassed here. No important evidence on an abuse issue was read in the face of objections to it. The contents of much of the written evidence that was read were not agreed but it was possible to agree a number of substantial written statements.

  26    Counsel for the various "parties" were invited to make opening statements on their clients' behalf at the conclusion of the opening address by Leading Counsel to the Tribunal.

  27    For convenience, the evidence was divided into successive phases. In Phase 1 we heard the main evidence of alleged abuse (including evidence from alleged abusers), dealing with the various categories of residential establishments in Clwyd and Gwynedd in turn. In Phase 2 we heard the evidence of senior staff and officers from Officer-in-Charge of residential homes upwards to Directors of Social Services. Phase 3 comprised the evidence of the Welsh Office and Phase 4 that of the North Wales Police. In Phase 5 we dealt with Chief Executives and Councillors whilst Phase 6 covered the role of the insurers and Phase 7 the evidence of the six successor authorities.

  28    This division into phases was helpful for a number of reasons. The most important was that it enabled the Tribunal's legal team to formulate an orderly time-table for serving Salmon letters on higher officials and for their responses. Another benefit was that Counsel to the Tribunal were able to present opening statements at the beginning of each phase, clarifying the issues in the light of evidence that had already been given and the Salmon letter responses as well as inter-party discussions in the course of the hearings. Counsel for some of the "parties" chose to make opening statements at the beginning of the phase affecting them.

  29    In view of the distances those involved in the hearings had to travel, the length of the Inquiry, the number of clients to be seen and the documentation, the Tribunal sat for four days each week from 2 pm on Mondays to 1 pm on Fridays, daily from 10.30 am to 1 pm and from 2 pm to 4.30 pm. We sat in sessions of about six weeks with short breaks in between to enable the preparatory work for each session to be completed in the intervals.

  30    Although there are some advocates of wholly inquisitorial proceedings in investigations of this kind, in which the questioning is conducted almost exclusively by the Tribunal itself or Counsel on its behalf, I reached the firm conclusion that such a procedure would be inappropriate in this inquiry. It was essential, in my view, that complainants should be given a full opportunity to put relevant matters based on their own special knowledge to persons against whom they made allegations. Conversely, it was equally important that alleged abusers should have their cases put as they wished to the complainants who made allegations against them. This adversarial factor in the proceedings was inescapable, having regard to the nature of the allegations that the Tribunal had to consider.

  31    In the event Counsel for the many parties exercised proper restraint in questioning the witnesses and there were comparatively few occasions when I had to intervene because of the nature or manner of cross-examination. There were a small number of regrettable incidents and some complainants resented "being put in the dock" as they would describe it but most of them recognised that it was inevitable that their allegations would be challenged by close questioning. It must be said also that Counsel were economical in their cross-examinations with the result that no witness was detained for an excessive time.

  32    In order to save time the written statements to the Tribunal by complainants called to give evidence and any earlier statements to the police that they confirmed were taken as read and formed part of their evidence. Complainants were called by Counsel for the Tribunal and then cross-examined and re-examined in an agreed order. All other witnesses were witnesses of the Tribunal but Salmon letter recipients were led in evidence initially by their own Counsel in order to introduce themselves and to amplify or clarify any matters in their written statements to the Tribunal that they wished to before they were cross-examined.

  33    At the conclusion of the evidence on 12 March 1998, Counsel and solicitors were given time to prepare full written submissions, including any recommendations that their clients wished to make. The Tribunal read these submissions before convening again on 31 March 1998 for a week to hear final oral submissions, limited to 30 minutes for each "party" or group of "parties". Leading Counsel to the Tribunal then made concluding oral submissions supplemented by detailed written submissions.

  34    We held a well attended seminar on 6 and 7 May 1998 to discuss possible recommendations that the Tribunal might make. The expert panel at this seminar comprised Sir William Utting CB, Sir Ronald Hadfield QPM, DL, Adrianne Jones CBE, Brian Briscoe, and Dr Anthony Baker[933]. Questions were addressed to the panel by Counsel to the Tribunal and by other Counsel and solicitors on behalf of the "parties", supplemented by questions from members of the Tribunal.