[2002] EWHC 1600 (QB)

Para. No.

1. In the first week of April 1993 a young man called Jason Dabbs pleaded guilty at Newcastle Crown Court to nine counts of indecent assault, and asked that three other similar offences be taken into consideration. All the offences admitted related to children at a local nursery and he was sentenced to seven years imprisonment. He was at the time a student and the offences had occurred while he was on a placement during the course of his studies. This naturally attracted wide publicity and caused anger and concern amongst the public generally, and especially among the parents of young children. The offences had apparently been committed while he was on the nursery premises and indeed in the presence of other adults (who were not in any way implicated in the offences or aware of what was going on). Those particular circumstances were surprising to say the least, and few people had previously addressed the possibility of such abuse taking place within a nursery environment (although, as early as 1987, the report of an inquiry into abuse of primary school children in Cornwall had been published, under the title Child Abuse in Schools).
2. An inquiry was commissioned by the Newcastle City Council pursuant to s.81 of the Children Act 1989, and carried out by an experienced practitioner, Mr Peter Hunt, who made findings and recommendations in September 1994 with a view to avoiding such abuse in the future. Mr Hunt (now His Honour Judge Peter Hunt) pointed out the limitations of his inquiry and specifically that he was not in a position to make findings of abuse on any wider basis than the offences to which Jason Dabbs had pleaded guilty. Nevertheless, he was able to conclude (para. 2.6.27) that the busy atmosphere of a nursery class can provide opportunities for determined paedophiles to abuse their charges without being noticed. This would no doubt be contrary to most people’s intuitive response to such allegations which would, at least up to that time, have been one of incredulity. It is right to say, however, that Mr Hunt’s findings in this respect were consistent with experience of abuse in day nurseries in the United States (see e.g. Nursery Crimes by David Finkelhor, 1988).
3. Meanwhile, within days of Jason Dabbs’ court appearance, and the publicity it attracted, the mother of a small boy at another nursery situated in the centre of Newcastle, Shieldfield, complained to the police that he had been abused by one of the staff at that establishment. The person concerned was Mr Christopher Lillie, who was then a qualified nursery nurse and had been working there, either on a temporary or permanent basis, since 1988. The boy has been referred to throughout these proceedings as either "Child 22" or "the Index Child".
4. It is probably fair to say that this referral to the police triggered the long and complicated chain of events which unfolded over the succeeding months and years and led, eventually, to the trial of these libel actions over no less than 79 days in 2002. I must now attempt to summarise those events.
5. Following the complaint about Child 22, made during the course of the Easter weekend, the matter was referred to Newcastle Social Services Department and also to the Police Child Protection Unit. A meeting took place on 14 April 1993 between the Child Protection Team, the mother and representatives of the Social Services Department. The next day the child was examined by Dr Neela Shabde. The child was at that stage complaining that "Chris" had hurt his bottom, but the examination revealed no signs of penetrative trauma.
6. On 16 April 1993, Child 22 was interviewed by a police officer attached to the Police Child Protection Unit, Helen Foster, who was to play a significant role in the extensive police enquiries over the next 12 months. On the same day, Mr Lillie was informed that he was suspended from duty pending a full investigation. This information was conveyed to him by Joyce Eyeington, who had responsibility within the local authority for the management of day nurseries. A further conversation took place between them on 20 April during which Mrs Eyeington told Mr Lillie that the medical examination of Child 22 had revealed no physical signs of abuse. In the event, Mr Lillie never returned to work.
7. It so happened that Mrs Eyeington’s niece (by marriage), Susan Eyeington, was the officer in charge of Shieldfield Nursery. She was interviewed on 19 April. On 22 April, interviews took place with Susan Elsdon, the member of staff who had responsibility for Child 22 before he came into the care of Mr Lillie, and with Dawn Reed who had been working alongside Mr Lillie in what was known as the "Red Room". That was where Child 22 had been looked after since 1 September 1992.
8. On 27 April, Joyce Eyeington interviewed the child’s uncle and aunt who confirmed that he had told them that "Chris" had hurt his bottom and genitals.
9. Naturally, the suspension of Mr Lillie and the reasons for it presented the nursery management and the local authority with a real problem as to how the parents were to be properly informed about what was going on, given their limited state of knowledge at that time.
10. Meetings were organised at the Nursery at which parents were provided originally with only the barest of detail. They were told that a male member of staff had been suspended.

The widening of the investigation

11. During May 1993, two social workers, Vanessa Lyon and Marion Harris, were made available within the same building as the Nursery should any parent/carer wish to raise concerns. Within a short space of time, information had been obtained from 14 of the families. Accordingly, a "strategy meeting" was arranged for 26 May, for the purpose of discussing developments up to that point and what further action should be taken.
12. After what must have seemed to parents, at least, a long period of delay, a letter was written by Joyce Eyeington on 23 July inviting them to a meeting on 28 July. Thereafter, it seems that meetings were held on a regular basis to offer parents information and support.
13. As is well known, any local authority is under a statutory duty to take action for the protection of a child within its area where there is reasonable cause to suspect that he or she is suffering, or is likely to suffer, "significant harm": s.47 of the Children Act 1989. There were in Newcastle at the time procedures in place to enable that obligation to be carried out. In particular, from time to time, case conferences would take place with respect to any child, or children, suspected of being at risk. In the early stages, it was not possible to come to a firm conclusion as to whether the suspension of Mr Lillie on 16 April had been in itself sufficient to eliminate such risk. A case conference was held on 6 May 1993 following the referral by the mother of Child 22, during which she implicated not only "Chris" but also "Dawn". She reported that her son had described "Dawn" as calling him a "little bastard". In consequence, a second member of staff at the nursery, Dawn Reed, was suspended on 12 May. Meanwhile, on 5 May Mr Lillie had been arrested for questioning in relation to Child 22 and released on bail. Thereafter investigations continued with regard to both suspended members of staff.
14. At the case conference on 6 May, according to the note I have seen, the mother was also referring to a house or houses to which he had been taken, where he had seen a man who hurt him and a "lady who looks like a man". He had also "blacked out completely" when coming away from the park. He required constant reassurance that he was in his own house, and also said that "someone had been putting things in his bottom". He was also reported as referring to a monster and as showing some apprehension at the mention of the word "library". These were to become recurring themes in the Shieldfield inquiry over the following months. At that stage Dr Shabde is recorded as expressing the view that he was a "disturbed little boy", and she recommended a "psychological/psychiatric assessment".
15. At this stage further allegations came to be made by other children attending the nursery, to the effect that they too had been abused by Mr Lillie and/or Miss Reed. (Those allegations have often been referred to as "disclosures", despite the fact that this term had been deprecated in the Report of the Inquiry into the Child Abuse in Cleveland (1987), to which I shall naturally have to refer in much greater detail in due course.)
16. In July 1993, Mr Lillie was re-arrested and Dawn Reed arrested for the first time. Those arrests related to allegations of abuse perpetrated on a small girl (Child 23). At this stage their homes were searched for the first time (and criticism was later to be levelled at the police for not having done so earlier). Although both Claimants were released on bail after questioning on this occasion, they were arrested again in September 1993 in relation to allegations made by a boy known as "Child 10" and, having been charged, they were detained in custody. Miss Reed remained in Low Newton Remand Centre until 23 December, when she was granted bail with a condition of residence at a bail hostel. Mr Lillie remained in custody until the trial began in July 1994. Meanwhile, on 22 October 1993, he had been granted bail by a Judge in Chambers, but as he was leaving Durham Prison he was re-arrested. This was because, on that very day, Child 14 had made an allegation of rape. (Miss Reed was also granted bail and re-arrested on the same day.)

The disciplinary process

17. I was told that considerable resentment grew up among parents at the fact that Mr Lillie and Miss Reed were, during the period of their suspension, continuing to receive their salaries. In any event, the City Council determined to press ahead with disciplinary hearings, despite representations in January 1994 from the Crown Prosecution Service. On 20 January, the Principal Crown Prosecutor, Mr Neil Holdsworth, wrote to the Senior Solicitor at the City Council in the following terms:

"… any proposed disciplinary proceedings would naturally relate to the same issues as in the criminal proceedings. There is, therefore, not only a risk that the criminal proceedings would be prejudiced, by the availability to the defence of ‘abuse of process’ arguments, but the defendants themselves would be unable to defend the disciplinary proceedings properly for fear of self incrimination".

18. Separate hearings took place, in February 1994, as a result of which both Mr Lillie and Miss Reed were dismissed. Although there were appeal hearings, the dismissals were confirmed and it then became possible to discontinue salary payments. Following several adjournments, Mr Lillie’s disciplinary proceedings took place on 14 February 1994 at Durham Prison. The hearing was held there because he was living there on remand at that time. In the event, he decided not to attend in the light of legal advice. It was believed that there was a risk of prejudice to the pending criminal proceedings (and that he would be unlikely to receive a fair hearing). The hearing took place in front of Mr Graham Armstrong, the Assistant Director of Social Services, who heard from some eight witnesses, namely Joyce Eyeington, Andrew Waterworth, Lyn Boyle, Vanessa Lyon, Dr San Lazaro, Kulvinder Chohan, Isabella Hepplewhite and Marion Harris. Apart from Mrs Eyeington and Dr San Lazaro, they were social workers. Mr Lillie was dismissed for what was found to be "gross misconduct". His appeal was dismissed on 9 May 1994 before a body described as the Corporate Disciplinary Appeals Panel.
19. Miss Reed’s disciplinary hearing was held on 21 February 1994, again before Graham Armstrong. She was represented at the hearing by a trade union officer from Unison although she did not herself choose to give evidence. Clearly important was the evidence of Dr San Lazaro, but she was not there to be cross-examined because she was on holiday. Her evidence therefore went by default. She was dismissed the following day, also for "gross misconduct". Her appeal was heard on 11 and 12 May, when her dismissal too was upheld.
20. I need not go into detail about these disciplinary proceedings. They are at the periphery of the present proceedings. I had no wish to comment on them at all. They could hardly be relevant, for example, to the Claimants’ allegations of malice in relation to publications in November 1998.
21. Yet Mr Bishop was keen to lead evidence about them. On 22 May he called a Mr Norman Greig who is a personnel officer at Newcastle City Council. I am not sure what purpose this served. I believe the intention was to demonstrate the fairness of the disciplinary proceedings. If so, the exercise was a failure. Since Mr Bishop specifically brought these hearings into this case, and invites me to make findings about them, I shall reluctantly do so. They carry no conviction at all. Not only were they superficial but, as emerged during the cross-examination of Vanessa Lyon on 23 May 2002, they proceeded on the basis of partial and selective evidence. She did not present the material as a whole to the disciplinary panel for its members to make up their own minds. She edited out what she thought was irrelevant; for example, matters favourable to Miss Reed, such as that Child 14 exonerated her in interviews on 4 and 22 October 1993. Indeed, she omitted altogether the interview of 4 October.
22. The disciplinary hearings did play a part in the evidence, however, since it emerged rather surprisingly that the Review Team had later taken the adverse disciplinary findings as being in themselves evidence that Mr Lillie and Miss Reed had committed sexual abuse on at least some children. That is curious, to say the least, in the light of their much vaunted "independence" from the Council. It is perhaps, even more startling when one calls to mind how perfunctory the hearings had been and how they had been conducted with such indecent haste. Mr Kevin Hattam, the trade union officer who represented Miss Reed, later observed that they were the "strangest" disciplinary proceedings he had experienced as there appeared to be "no evidence". The Council was just "going through the motions". The right thing to have done would have been to wait until the criminal proceedings were concluded, and the two individuals concerned would at least have been free from the inhibitions of legal advice and a pending criminal trial.
23. Neither Mr Lillie nor Miss Reed ever took proceedings for unfair or wrongful dismissal (a point to which the City Council attached considerable importance in the course of submissions in these proceedings). In the circumstances, it was hardly surprising.

The criminal proceedings

24. Eventually, a criminal trial commenced at Newcastle Crown Court on 8 July 1994 before Holland J. There were altogether 11 counts, relating to a total of six children. The children who formed the subject of the criminal proceedings at that time have been referred to in these libel actions as Children 2, 14, 19, 23 and 24 (girls) and Child 10 (a boy). (It is to be noted that the prosecuting authorities took the view at an early stage that there was insufficient evidence to justify criminal proceedings in respect of the original complainant Child 22.)
25. One of the charges Mr Lillie faced in the Crown Court was that of raping Child 14. She was born on 17 November 1988 and began at Shieldfield on 21 January 1991. When she began there, she was in the care of Miss Reed and later, with effect from 16 October 1991, of Mr Lillie. She last attended the Nursery on 22 July 1992. Thus, it would appear that, when the alleged rape took place, she was either two or three years old. Holland J heard submissions for several days and, having considered the video evidence in relation to Child 14, concluded on 13 July 1994 that it should not be admitted in evidence. His Lordship’s reasons were given during the course of a ruling the following day. It was then decided by the Crown Prosecution Service that there was insufficient evidence for the matter to proceed and, on the learned judge’s direction, both Claimants were acquitted. It seems that the Crown took the view that the evidence relating to Child 14 had been the strongest. One of the matters to which Holland J attached significance was that, in the course of two out of the three interviews in which Child 14 participated, she had expressly exonerated Miss Reed of anything untoward. (It will be necessary for me at a later stage to return in much more detail to the content of Child 14’s video interviews.)
26. Since it has been so misunderstood or misrepresented subsequently, it is right that I should summarise the ruling.
27. The learned Judge began by reminding himself that his concern, as the trial Judge, could not be limited to reflecting personal sympathy; it had to reflect his duty to ensure that the criminal proceedings were conducted fairly and in accordance with law. That is why he decided to explain the approach he was adopting fully, so that it would be properly understood by the public.
28. He addressed counts 1, 2, 3 on the indictment first. These consisted of a charge of rape by Mr Lillie of Child 14 (Count 1), indecent assault upon her by Mr Lillie (Count 2) and indecent assault by Miss Reed (Count 3).
29. He pointed out that the child was in the Red Room at Shieldfield Nursery between 4 February 1991 and 2 March 1992. She left the nursery altogether, according to the evidence before him, in August 1992. Since she was born on 17 November 1988, this meant that the alleged offences would have taken place over the period when she was two or three years old.
30. The Judge went on to explain that Child 14 was first interviewed by Vanessa Lyon (the social worker) on 4 October 1993 before a video camera. Four days later, she was examined by Dr San Lazaro who concluded:

"There was unequivocal evidence of previous penetrative damage consistent with blunt trauma with any object from finger size upwards on one or many occasions in the past."

31. A second video interview took place on 13 October between the child and Vanessa Lyon (supported, as she had been on the first occasion, by Constable Helen Foster). A third interview took place on 22 October 1993. So far as those interviews revealed allegations on the part of Child 14, they were made when she was nearly 5 years old.
32. The Judge turned to Count 4 which contained an allegation of joint indecent assault by Mr Lillie and Miss Reed upon [Child 23]. She had been born on 22 February 1990 and was in the care of Mr Lillie and Miss Reed from about August to December 1992 (i.e. beginning when she was two and half years old). She was first interviewed on 12 July 1993 (again before a video camera), when she was three and half. She was examined a week later by Dr San Lazaro who again found a significantly damaged hymen.
33. Count 5 related to [Child 24] and contained a charge of indecent assault by Mr Lillie. She was described as having been in the Red Room from January to November 1992 (her third birthday occurring on 14 August 1992). She was interviewed on 22 June and 30 July 1993. On 18 November of that year Dr San Lazaro made similar findings to those already described.
34. The alleged victim in relation to Counts 6, 7 and 8 was a small boy [Child 10]. The first charge was one of indecent assault by Mr Lillie, the second was of indecent assault by Miss Reed and the third of assault occasioning actual bodily harm by Miss Reed.
35. He was born on 3 July 1989 and was in the Red Room between August 1991 and July 1992. He was interviewed on 18 August 1993 before a video camera and examined by Dr. San Lazaro on 1 September 1993 (when nothing of significance was found). He was just four years old at the stage of interview and speaking of events alleged to have occurred when he would have been two.
36. The learned Judge then turned to Count 9 which related to an allegation of indecent assault by Mr Lillie on [Child 19]. She was born on 7 February 1990 and was in the Red Room from September 1992 until January 1993. She was examined by Dr. Alison Steele on 6 August 1993, when non-specific findings were made (albeit not inconsistent with some degree of trauma). Her video interview took place on 10 August 1993, with a follow up on 2 November 1993. Thus she was three and half years old when interviewed.
37. Counts 10 and 11 related to [Child 2] and consisted of one charge of indecent assault by Mr Lillie and one by Miss Reed. The child was born on 2 September 1989 and was a member of the Red Room from early 1992 until September of that year. The first video interview took place on 22 July and the second on 1 December 1993. She was examined by Dr. San Lazaro on 13 August 1993, who found no significant abnormality.
38. Having reviewed the charges against Mr Lillie and Miss Reed and summarised the various ages of the alleged victims, the learned Judge made three introductory observations:

(1) With the possible exception of [Child 2], no child had made any contemporaneous complaint. Moreover, so far as Child 2 was concerned, having regard to the terms of what she had said, no action was taken at the time.

(2) It was conceded by the Crown that it was impossible, by way of a process of elimination, to prove of any child in respect of whom physical damage was found that access and opportunity to inflict such damage were confined to Mr Lillie and Miss Reed.

(3) Save to the extent that physical findings corroborated the allegation of physical interference (in some cases), and save to the extent that one child could provide "similar fact" support for one or more of the other children, there was no corroboration of the allegations of wrongdoing. Indeed, his Lordship added, to the extent that the children had provided detail as to venue, and as to the circumstances of various alleged incidents, no support had emerged for their contentions (despite extensive police enquiries). Thus, there would be insufficient evidence to prosecute without evidence from at least one child, and preferably more than one.

39. That was the background against which the Crown, through Mr Aidan Marron Q.C., applied under s.32A of the Criminal Justice Act 1988 (inserted by reason of s.54 of the Criminal Justice Act 1991). The Defendants objected to the introduction of the video recordings of the various interviews, and that was the subject of the Judge’s ruling. It had been decided to confine consideration, at least initially, to the recordings made by [Child14] and thus to Counts 1 to 3. This was on the basis that if the Crown failed in that instance, then Mr Marron would not try to secure the admission of any of the remaining video recordings. The Judge explained the background to this decision and gave three reasons why it had been decided to focus on that particular child:

a) In a context in which "age is at a premium", she happened to be the oldest girl.

b) Her allegations were the most serious that had been made (i.e. there was a charge of rape).

c) There was a limited measure of corroboration for her evidence afforded by the physical findings following medical examination.

40. His Lordship then identified the consequences that would follow from a ruling in favour of the Crown’s application. First, the admitted recordings would have to be played to the jury. Secondly, any statement made by Child 14 would be admissible evidence of any fact which could have been admitted by way of direct oral testimony from her: s.32A (6). Thirdly, the child would then be called by the Crown to give evidence, by way of video link, to supplement her evidence in chief to the limited extent permitted by s.32A (5).
41. The three video recordings which the learned Judge viewed (as I have done) lasted in total for three hours. It was necessary to bear that in mind because, if cross-examination of Child 14 were to take place, it would plainly have been desirable for her to have had the opportunity of following that footage (in the usual way, concurrently with the jury). She would need to have it in mind as the necessary point of reference to understand the questions she was likely to be asked.
42. In addressing the exercise of the court’s discretion, the learned Judge asked himself first, "Does such statement [or statements] serve to provide admissible evidence of fact that could have been the subject of admissible, direct oral testimony by [Child 14]?"
43. It was necessary for him, assuming that he concluded that a statement or statements could be classified as prima facie admissible, to address three separate concerns:

1. Was he satisfied that Child 14 was available for cross-examination?
2. Was he satisfied that any rules of court requiring disclosure of the circumstances in which the relevant recordings were made had been complied with?
3. Were the circumstances of the case such that, in the interests of justice, all or part of the recordings should be excluded?

44. His Lordship then turned to consider the matter of admissibility with regard to any statement or statements the child might have made. He bore in mind, in particular, the opinion of the Privy Council in Noor Mohamed v. The King [1949] A.C. 182, 192, and the statutory reflection of those same considerations of policy as later embodied in s.78(1) in the Police and Criminal Evidence Act 1984. His Lordship then considered whether any statement or statements could be said to be discernible within each of the relevant video tapes. As to the first (4 October 1993), he concluded that there were three discernible propositions, each qualifying as a "statement":

1. Mr Lillie exposed himself to her in the toilets of the Nursery in the course of an indecent assault carried out by him on another little girl [who plays no direct part in the present libel proceedings but was known as Child 35].
2. Miss Reed had done nothing at all to her.
3. Child 14, Mr Lillie, Miss Reed and a woman called Moira (apparently another member of staff) had been to Mr Lillie’s house by bus.

45. As to the second video tape (13 October 1993), the learned Judge found again three propositions which qualified:

1. Mr Lillie had put a needle into her bottom (which, in this context, the Judge took to mean her vagina) and also into the other little girl.
2. Miss Reed had also put a needle into her bottom and that of the other girl.
3. All of these events had taken place in the Nursery toilet.

46. Returning to the third video (22 October 1993) the Judge extracted the following "statements":

1. Mr Lillie had acted indecently towards her (initially), and then (finally) had raped her in the toilet of the Nursery.
2. Miss Reed had done nothing to her.
3. Child 14, Mr Lillie, Miss Reed and a woman called Amanda (understood to be another member of staff) had been to Mr Lillie’s house (this time by train), where Mr Lillie was seen to be in bed with a lady called Doreen.

47. The Judge began his consideration of admissibility by addressing the Crown’s case against Miss Reed. He then gave the following important ruling:

"… I do not regard any of the statement[s] as set out by me, as disclosed by the recordings, potentially probative of anything at all against Miss Reed. It affords, in my judgment, no evidence upon which any reasonable jury could convict her upon Count 3.

It is true that the second video includes a description to the indecent assault by Miss Reed that is relied upon, but the first and [third] videos include, effectively, total exculpation of Miss Reed. One of the striking features of both first and [third] videos is the insistence with which [Child 14] seeks to exculpate her, and the fact that she does so upon her own initiative. Indeed, one of the points made by Mr Cosgrove [her counsel] in the course of his cross-examination of WPC Foster and of Mrs Lyon is that nobody picked up and thought to examine, in any way, this piece of initiative on the part of [Child 14].

The statement would only become potentially probative against Miss Reed if the graphic support for her that is initiated by [Child 14] herself – and that is seen on the videos one and three - is put aside. I can see no basis for doing so. I remind myself that no jury can convict Miss Reed upon Count 3 without being sure and satisfied of her guilt. It is manifest on the evidence of [Child 14] (as disclosed in the statement from the three videos) that there could be no basis upon which they could be sure and satisfied. Indeed, there is a rather better basis for being sure and satisfied that she is innocent of that particular charge. Thus, in dealing with Miss Reed, I have no hesitation in ruling that the Crown’s application to adduce that part of the video recordings as making a statement to be relied upon in the furtherance of their prosecution of her fails."

48. The learned Judge then turned to the case against Mr Lillie. In his judgment, it could not be said, in his case, that the relevant statements lacked any potentially probative effect. A possible interpretation of the tapes was of "… a young victim of sexual abuse slowly overcoming constraints imposed by the abuse and abuser, so as to make a full disclosure in response to sympathetic interviewing and effective reassurance".
49. His Lordship then went on to make an evaluation of the prejudicial effect so as to balance it against probative weight. He regarded that exercise as being required by the common law, as well as reflecting the exercise of discretion provided for in s.32A (3) of the 1988 Act.
50. He concluded that the material relating to Mr Lillie could not safely be put before a jury until a full opportunity was afforded for investigation into the history of any complaint. Overwhelming prejudice to Mr Lillie could only be avoided, for example, if there was an opportunity to enquire of the child why nothing he was alleged to have done had been the subject of a contemporaneous complaint by her; why she had made no complaint of assault during her first video interview; why there was no complaint of rape in the second interview; and "above all, as to why the complaint of rape in the third video followed upon an initial cessation of the interview, which cessation had been instigated by her".
51. The learned Judge added that there was a prospect of overwhelming prejudice to Mr Lillie if it was not possible for inquiries to be made on his behalf, of Child 14 in cross-examination, as to why her accounts had varied with regard to Miss Reed. Moreover, the Judge drew attention to the fact that information supplied by the child about any house or flat would not stand up to further investigation. Police inquiries, in other words, had brought forth no confirmation at all. For that reason, he observed, "Those parts of her account cry out for like inquiry…"
52. The main difficulty confronting the learned Judge was that there was really no other way of testing her evidence or exploring the inconsistencies, unless cross-examination were to be permitted. There was no other potential source for answering the queries. His Lordship turned next to the statutory pre-condition for admissibility provided for in s.32A(3)(a); that is to say the child’s availability for cross-examination. He held that she was not so available on any material matter. She would have to be physically present, willing to answer questions put on Mr Lillie’s behalf, and not incompetent; see s.52(2) of the Criminal Justice Act 1991. He added that it was, in his judgment, necessary also for her to have the capacity to give "an intelligible account of events" (a phrase borrowed from an Irish statute: s.27(1) of the Civil Evidence Act 1992).
53. His Lordship held, without hesitation, that Child 14 did not have the capacity to give an intelligible account of material events at the time when the recording was made (i.e. in October 1993). This was based largely upon his viewing of the three hours of material. While emphasising that his conclusion was in no way intended to reflect upon the child, his Lordship pointed out that her incapacity to give an intelligible account was merely a reflection of her age, of the subject-matter, of its emotional impact upon her, and also of the delay between the events under investigation and the interview itself. In other words, she would be cross-examined almost a year after the original interviews, which were themselves concerned with events which had occurred (if at all) at least 15 months earlier. His Lordship, secondly, saw no reason to conclude that her capacity would be materially improved by the time any cross-examination took place. Since she would not have the attention span necessary to view the three hours of video material concurrently with the jury (as confirmed in evidence by a psychologist), she could not appreciate the necessary premise upon which the line of cross-examination would proceed. Further, and in any event, her 1994 memory for events in 1992 would be "speculative".
54. His Lordship confirmed that the very same factors which led him to the conclusion that Child 14 was not "available for cross-examination", for the purposes of s.32A(3), would have operated to lead him to the conclusion that the admission of any such statement by her would have a prejudicial effect far outweighing any probative value.
55. Following Holland J’s decision and the direction to acquit, there was apparently a violent outburst of emotion in court, during which the two Claimants were threatened and reviled.

The steps taken by the City Council meanwhile

56. So far as the City Council was concerned, the acquittals made virtually no difference. One of their representatives, a Mr Flynn who was at that time Deputy Leader, confirmed outside the court that the dismissals still stood and that the Council still regarded them as guilty of "gross misconduct" (i.e. of abusing a number of children in their care, including those in respect of whom they had just been acquitted). Almost immediately, a widespread view took hold that the criminal proceedings had come to a halt as a result of some technicality or inadequacy in the system of justice. Very little attention was paid to the comments of the trial judge as to the state of the evidence; and, in particular, to the remarks made by Child 14 in two of her interviews to the effect that Dawn Reed had done nothing wrong.
57. It is now necessary for me to address, in a little detail, the steps which had been taken in the meantime by the local authority and the statutory context. The government of the day had, in 1988, issued guidance to local authorities under s.7 of the Local Authority Social Services Act 1970. This was intended to facilitate co-operation between various agencies with a view to effective child protection. The guidance operative at the time of the Shieldfield events was that originally published in 1991. It was published under the title Working Together. Each local authority was required to establish an Area Child Protection Committee (ACPC), composed of representatives from the local authority, the police, the health authority, the probation service and other relevant agencies. One of the purposes underlying the establishment of the Area Child Protection Committees was that they should be preventative. It was also, however, intended that there should be a forum for co-ordinating an efficient response to any perceived incidents of child abuse, as they arose.
58. There was a meeting under the auspices of the relevant ACPC in Newcastle on 26 May 1993. By that time 14 families had already been seen by social workers. There were further meetings as events developed. There is a procedure laid down by Part 8 of Working Together for reviewing specific cases. There would certainly be an obligation to carry out a Part 8 Review where a child has died in circumstances where abuse is suspected or confirmed. Nevertheless, an ACPC should always consider whether to carry out such a review where there is a child protection issue likely to give rise to major public concern. It was felt that the criteria had been fulfilled in the case of Shieldfield, because it was perceived that the ACPC had a case of multiple abuse on its hands, and a Part 8 Review was set in motion in the autumn of 1993. Once information had been gathered from all the relevant agencies an "overview" report had to be submitted to the Social Services Inspectorate (SSI) within the Department of Health. In the present case the Part 8 overview report took some time to complete, and was not submitted to the SSI until October 1996.
59. There exists a quite separate regime for dealing with "complaints" from consumers or other members of the public about services provided by a local authority. Relevant provisions are to be found in the Local Authority Social Services (Complaints Procedure) Order 1990 made under s.7B of the 1970 Act. Every local authority is obliged to establish a procedure for considering representations (including complaints) made to it by or on behalf of a "qualifying individual" relating to its social services functions in respect of the individual concerned. A "qualifying individual" is someone for whom the relevant local authority has the power or obligation to provide a service. By reason of the day care obligations arising under s.18 of the Children Act, it was now necessary for the Council to establish a procedure for considering any complaints made by parents/carers with regard to the services at Shieldfield.
60. It is also provided by s.26 (3) of the Children Act that a procedure should be established when considering any representations (including a complaint) from parents/carers of children "in need" as to the discharge of local authority functions (including the provision of day care under s.18 of the 1989 Act). Thus, one way or another, there was a duty upon the City Council to consider complaints relating to the discharge (or failure to discharge) day care duties with regard to Shieldfield.
61. The Newcastle City Council had established a Comments and Complaints Policy in 1991 following the model laid down by the Representation Procedures (Children) Regulations 1991 (SI 1991/894).
62. In 1993 the current procedure was that a complaint should be registered with the Comments and Complaints Unit (part of the Council’s Standards and Quality Assurance Division). It would then be for Mr Bob Hassall (the then complaints officer) to appoint an "investigating officer". Normally, that person would be a local authority employee unconnected with the specific matter under investigation. In an ordinary case, the investigating officer should report to the complaints officer within 28 days upon the outcome of his investigation and the appropriate response to the complainant. In the event that the relevant complainant was not satisfied with the response, it would be open for him or her to request the Complaints Review Panel to investigate the complaint. Such a Panel would comprise an independent chairman, a member of the Social Services Committee of the local authority and an Assistant Director or Principal Assistant of the department (not being directly involved).
63. There was yet a third stage whereby, if the complainant was not satisfied with the recommendation of the Panel to the Director of Social Services, there could be a reference to the Social Services Committee. This three tier complaints structure was in place in 1993 at Newcastle for dealing with complaints made under the 1970 Act or the 1989 Act.
64. It was recognised that there might be occasions when the standard procedure would be inadequate to the task in hand. In this instance, when the complaints were first made about events at Shieldfield, they were registered for investigation in the normal way. Nevertheless, it soon became apparent that there was the possibility of multiple abuse at the hands of Council employees, and it was thought desirable to set up a procedure tailored for this specific case. By the end of 1993, a firm of local solicitors (David Gray & Co) were acting for a number of the Shieldfield parents and, on 20 December, the City Council notified them that an alternative complaints procedure was being set up to investigate and report on the overall situation, in addition to dealing with individual complaints. This was by means of a letter from Jennifer Bernard, the then Director of Social Services.
65. At about the same time, it was resolved that there should be an investigation into the multiple abuse allegations by an ad hoc Review Team. The standard complaints procedure was suspended and the solicitors were notified accordingly by Jennifer Bernard on 23 December. By that time some six complaints had been formally registered, although it was appreciated that more would be forthcoming. In effect, what was being proposed was that there should be an inquiry into what had gone wrong, and that recommendations should be made to avoid similar problems in the future, quite apart from specific complaints. It is right to record that it was being contemplated by Jennifer Bernard as early as 3 December 1993 (in a letter to Det. Insp. Findlay of the Northumbria Police) that the Final Report of the proposed complaints review team would be presented to a public meeting of the social services committee.
66. There is a wide discretion under s.111 of the Local Government Act 1972 to do anything calculated to facilitate the discharge of a local authority’s statutory functions. If the circumstances warrant it, a local authority may thus commission and fund a public inquiry (such as that carried out by Mr Peter Hunt following the Jason Dabbs case). It was decided, however, in the Shieldfield case that it would not be appropriate to set up a similar inquiry. This was partly because of what was at that time perceived to be the cost and inherent delay, and partly because it was believed that an "adversarial" procedure would not be in the best interests of the Shieldfield parents or children. It was also considered that people might feel inhibited in a public forum and that accordingly it would be difficult to establish the full facts.
67. Not surprisingly, however, there was considerable pressure for the hearing to take place in public because, as often on such occasions, there is a fear of a "whitewash" or "cover up". With such considerations in mind, another firm of solicitors made representation to the Secretary of State requesting that a public inquiry be carried out pursuant to s.81 of the Children Act. There would also be the power, if this course were adopted, to compel the attendance of witnesses. This proposal was rejected in August 1994 and then, no doubt reluctantly on the part of some parents, it was decided to accept the City Council’s compromise proposal. It was thus resolved that matters would be investigated by a Review Team, independent of the Council, consisting of members qualified and experienced in matters of social work and child protection. Their task would include both responding to complaints made by individuals and reporting, more generally, upon the running of the nursery and upon the way in which the Social Services Department of the local authority had discharged its responsibilities. To avoid charges of "cover up", it was at an early stage perceived to be necessary that individual complainants, and indeed all those directly involved with the events at Shieldfield, should be fully informed as to the outcome of the inquiry. How this was to be achieved was left until the Report became available (much later than originally anticipated).
68. Although the terms of reference for the Review Team were already being discussed at the end of 1993, they continued to be debated for some time. (I was told that they were not actually finalised until shortly before the Report emerged.) For example, a change was made in September 1996 to enable the Review Team to "consider and report upon relevant concerns raised by parents or persons interviewed", even though this might go outside the notion of dealing with formal "complaints". Another later amendment concerned the machinery for submitting the Report to the City Council. It was specifically provided, in May 1998, that the Report should be submitted to the Council through the Chief Executive (rather than to the Standards Quality and Assurance Division Manager, as would be normal). The reason for this change was that it was perceived as underlining the principle of independence. The terms of reference, as set out in the published report, will be fully identified in due course (see Section 3 below).
69. For reasons which are perhaps understandable, there was considerable delay setting up the Review Team. The plan was that applicants should be considered by a panel consisting of a chief officer of the Council, a senior medical officer nominated by parents and a project manager for NCH Action for Children (the providers of the Independent Persons Scheme under the Children Act). I understand that there was some delay in the parents choosing their representative on the appointments panel but, in any event, candidates were not interviewed until August 1995.
70. There was a short list of ten candidates and the panel eventually appointed Dr Richard Barker, who was at that time Head of the Division of Child and Family Studies at the University of Northumbria (Team Leader), Judith Jones, a former child protection officer, Jacqui Saradjian, a consultant clinical psychologist and Roy Wardell, whose experience lay in the provision of social services by local authorities. It was not thought appropriate that any of the members should have had any legal training or experience. Their activities were overseen by representatives from the Independent Persons Scheme.
71. Between the end of 1995 and the publication of the Report on 12 November 1998, more than 150 witnesses were interviewed by members of the Review Team. It is to be noted that they chose to divide their labours, with the result that not every member of the Team had the opportunity of assessing every witness or, for example, every child interview. They were only working part-time and there were limitations on the resources available to them. There is no doubt that the Team members worked very hard and showed considerable dedication to their task. Mr Bishop suggested, in closing, on behalf of the Review Team that if they had known how much time and effort was going to be involved they would probably have stayed out of it. I am sure they now regret it.
72. Neither Mr Lillie nor Miss Reed agreed to be interviewed by members of the Review Team although they were invited. They made their respective decisions in accordance with legal advice, and neither felt that they would receive a fair hearing. They did not trust the City Council in the light of the procedures adopted over their dismissals and the remarks made following their acquittals at the Crown Court. Subsequently the Review Team was critical of this "refusal to co-operate", as they perceived it, but in the circumstances the Claimants behaved reasonably. It is one thing not to "co-operate". It may be quite another, however, to be wary of placing one’s fate in the hands of individuals who have arrogated to themselves a right or duty to find out whether a citizen has committed serious criminal offences. If such a person would not be afforded any of the basic safeguards which the law has long provided for individuals in jeopardy of such findings, he or she would be fully entitled to regard the process as flawed and unfair. This would be so even if those carrying out the inquiry were open and above-board about their intentions. Here, as I shall describe in due course, they were not.
73. In the meantime, a number of parents had made claims for criminal injuries compensation and substantial sums of money were paid on the basis that the children concerned had been physically and/or sexually abused by Christopher Lillie and Dawn Reed. These claims were supported by Dr Camille San Lazaro, the consultant paediatrician, who played a very significant part in the history of events forming the subject-matter of these proceedings. She was later to admit in the witness box that what she told the Criminal Injuries Compensation Board was (in her words) "exaggerated and overstated".
74. In due course, no less than 47 children sued the Council for damages for negligence. Although not directly relevant to the present proceedings, some of the witnesses were asked about the stage which those claims had reached. It emerged that some had been settled before the libel hearing started and others not. At all events, the basis of the negligence actions was the same as that of the criminal injuries compensation claims, namely that Mr Lillie and/or Miss Reed had abused the children when they were in the care of the Newcastle City Council at Shieldfield.
75. Before I come to the publication of the Review Team Report, which forms the primary subject in matter of the present dispute, it is right that I should introduce the Claimants in more detail in the light of the evidence I have received. Hitherto, so far as the citizens of Newcastle are concerned (and, for that matter, the general public), they have remained rather shadowy figures about whom only limited information has been available, either through the content of the Report or through the media. Since some of that has been distorted or is inaccurate, it is appropriate to introduce them by reference to their background and careers up to the point when they are alleged to have committed these very serious offences against children in their care.
76. Much attention has been focused on their time at Shieldfield, and in particular the period from March 1992 to April 1993 when they were jointly responsible for the children in what was known as the Red Room in the Nursery. Rightly so. Nevertheless, there is a wider context which it is necessary to take into account. For example, there was no suggestion prior to April 1993 that either of them had misbehaved with any child. Nor has there been any suggestion of paedophile activity or indecent assault, or anything similar, having occurred since the time of their suspensions (on 16 April and 12 May 1993 respectively). I therefore now attempt to summarise the wider background of the two Claimants before addressing the allegations made against them.

2) Christopher Lillie and Dawn Reed

a) Mr Christopher Lillie

77. Mr Lillie was born on 10 June 1964 in Wallsend. His parents were separated when he was about five years old and, together with his younger brother and two sisters, he went to live with his mother and the man she then married. He described the period with his mother and stepfather as "a happy time".
78. In May 1977, when Mr Lillie was almost 13, his mother died. At that stage the children went back to live with their natural father, despite not having very much contact with him for about nine years. He had re-married and two children had been born within that marriage. Things did not work out. Mr Lillie and his brother were not happy in the new environment. They began to get into trouble and were, for example, cautioned for shoplifting in August 1979. Mr Lillie also ran away from home for brief periods. Eventually on 6 November 1979 he was put into care, with a placement for two or three months in Clavering House at Blaydon.
79. In January 1980 he was given a two year supervision order after having pleaded guilty to stealing a bicycle. Thereafter, he was moved to Chalfont Road Children’s Home where he remained until September 1981. During this period he was attending Manor Park School in Benton. He took CSE examinations and obtained Grade II passes in Mathematics, Religious Education and Chemistry together with a Grade IV pass in English Language. He left school in May 1980 at the age of 16.
80. My attention was drawn to page 265 of the Review Team Report in which it is suggested that Mr Lillie had been placed in establishments "…in which it appears staff – both male and female – sexually abused children. He may have been exposed to models of vulnerable children being abused as of right by those with power over them". Mr Lillie’s response is that in the two care establishments in which he stayed he never saw or heard of any behaviour of that kind. He was not sexually abused himself; nor was he aware of any such abuse having taken place in those establishments.
81. I was told that Mr Lillie prospered to an extent in care, gaining in self-confidence and getting on particularly well with one of the members of staff (and her husband). He recalled how they gave him practical help when he moved into a council flat in Newcastle after he became too old for the residential home.
82. On leaving school, Mr Lillie faced very high unemployment in the Newcastle area and entered some schemes which were being organised through the Job Centre. He worked for several months as a labourer for Community Industry in Heaton, and subsequently as a baker and shop assistant in the Kew House Delicatessen in Eldon Square. He was also, in about 1983-1984, a catering trainee on a youth opportunity programme in Morden Street. Each of these schemes lasted about six months.
83. During the period 1987–1988 he became an assistant organiser of the Newcastle Children’s Adventure Group ("NCAG"). This lasted for about a year. Subsequently, from 1989 to 1991 he was a relief caseworker for the Social Services Department.
84. Mr Lillie explained the background of his involvement with NCAG, which began in 1979 when he went away on a trip with the group. It was an organisation which provided adventure opportunities for inner city and other disadvantaged people. Because he had admired the work which they were doing for disadvantaged children, he later volunteered in response to a newspaper advertisement. He worked as a volunteer with them from about 1982 during a period of unemployment. He maintained the day to day running of the office and helped to run a summer camp for NCAG, which catered for children between the ages of 6 and 15. They were camping in tents and took part in activities such as canoeing, windsurfing, climbing and walking. He worked at the camp from 1984 to 1989 (with only one exception) and also attended camp in 1991.
85. He decided that this sort of work suited him and that he had the right temperament for it.
86. One of the leaders at NCAG had a child who attended a mother and toddler group run by Gosforth Social Services on Thursday mornings. Since they were looking for volunteers, Mr Lillie went along and decided that he wanted to work with that age group. When that group ceased to function through lack of funds after about a year, Mr Lillie then enrolled at the North Tyneside College for a two year course training to be a Nursery Nurse. Not surprisingly, references were required and he was able to name referees with whom he had worked at NCAG.
87. The nursery training course ran from September 1988 through to the summer of 1990. Again Mr Lillie invited my attention to a passage in the Review Team Report (at page 48) where it is suggested that he had to repeat his final year. This he disputes. They report a Veronica Dawson as stating that his final year did have to be repeated and that he was a "lazy bones". She was described in the Report as being his ex-tutor. In fact, as he points out, she was his tutor for one course only. His overall tutor was a Ms Doreen Bailey who was never interviewed by the Review Team. He accepts that he had some problems on what he describes as the "craft side" (which apparently included such skills as knitting and artwork), and that for those he had little aptitude. His evidence is that, subject to those problems, he worked hard on the course and was motivated to gain his qualification so as to earn a living in nursery work. He referred to the fact that another male student was required to do a third year, and suggested that this may be the source of confusion. At all events, his evidence (which I accept) is that he completed the course in the standard period of two years.
88. The training course consisted partly of academic study and partly of gaining practical experience. The general pattern was that six days were spent in college and four days on a "placement". It happened that his first placement was at the Shieldfield Nursery. He worked at that stage under the supervision of the then Manager, Susan Eyeington. During the first placement he worked with the age group up to three years for nine days and for 37 days with children of three to five years of age. Miss Eyeington apparently recognised that "progress was necessary" in relation to the preparation and organisation of craft work, but she described him as being good at establishing relationships with children and as being aware of each child’s individual needs. So far as she was concerned, he behaved appropriately towards the children and was pleasant and good humoured in his relations with other staff. She also commented that he showed perseverance and commitment to his work.
89. Other placements during his training included work at Raby Street School, Dunston Nursery School, Ashleigh Special School and Monkseaton First School. There was also a "home placement" between January and March 1990 where he was responsible for looking after a baby and a two year old.
90. Mr Lillie found that the work suited him and he considered that he was getting on well at Shieldfield. He decided that this would be the right career for him, despite a certain amount of ‘general prejudice’ to the effect that nursery work should remain a field for women rather than men.
91. Mr Lillie worked as a relief worker at Shieldfield between May and June 1989, for about eight days, to help with money for completing his course. He did the same at Armstrong Road Nursery between 24 July and 20 August 1989 and also for a week at a children’s special needs home. Subsequently he also did a few weekends at various homes for the aged. He accepts too, although he does not have any particular recollection of it, that he is recorded as having worked for a total of five afternoons at Shieldfield between October 1989 and January 1990.
92. As he came towards the end of his two year course, he worked at Shieldfield again in May 1990 so as to cover for Maria Buck, who took maternity leave. Between September and October of the same year he worked at Dunstanburgh Road Nursery as a relief worker. At the stage when he left Shieldfield for Dunstanburgh Road, he received a card from some of the parents at Shieldfield expressing good wishes and saying that he would be missed. One of them was apparently the mother of the girl referred to in this case as Child 14.
93. Just before Maria Buck returned from her leave, another member of staff, Diane Wood, also left for maternity leave and Mr Lillie covered for her as well. He stayed on in a temporary capacity until June 1991. During that summer he did a six week adventure camp with NCAG in Northumberland (and subsequently went on a two week canoeing trip to Norway with two of the NCAG leaders).
94. In September 1991 at the invitation of Susan Eyeington Mr Lillie returned to Shieldfield as a full time temporary nursery officer and remained until he was offered a permanent post there, following the standard interview procedure, in April 1992. (Mr Lillie wished to emphasise that he did not lie in any way in order to be taken on at Shieldfield, since he construes page 47 of the Review Team Report as suggesting that he may have done so.) For almost exactly a year Mr Lillie remained on the staff at Shieldfield, leaving abruptly upon his suspension on 16 April 1993.

b) Miss Dawn Reed

95. Dawn Reed was born in South Shields on 20 December 1970, her mother at that time being aged about 18. Her mother was the second of eight children born to her grandparents. The youngest of her aunts was only seven when Dawn Reed was born. She was brought up by her mother in her grandparents’ home with her aunts. She explained in the course of evidence that she has never referred to her mother’s sisters as "aunts" because, in a sense, they were more like sisters to her. Her mother took the responsibility of looking after her throughout her childhood and did not go out to work until such time as she was old enough to look after herself. She has only ever met her father on one occasion when she was about 19 years of age (i.e. in or about 1989 – 1990). She knows very little about him but understands that his family came from Pakistan, although she does not actually know where he was born.
96. She was keen to make it clear that she was part of a "very large, loving and caring family" and that she had a very happy childhood. Her grandfather, who has since died, was a very proud man who was a former coal-miner. She has said in her statement that there was no time when she was deprived of love, affection or attention. The reason she wished to make this clear was that in the Review Team Report (page 61) the observation is made that "… she had a troubled background and lived with her grandparents for much of her childhood". Miss Reed told me that her background was not in the least bit "troubled". (She was also rather puzzled by a comment in the Report, at page 89, that "... We have been told that Dawn Reed’s ethnicity was not considered with regard to its impact on her as a worker or on the nursery". She has no idea why the issue was raised in the Report, since she has never been conscious of any problems of "ethnicity" at all.)
97. One of the experts called on behalf of the Defendants, Dr William Friedrich, describes her as having grown up with a single parent and a number of "alternate caregivers". He says that she was therefore "at risk for maltreatment even sexual maltreatment". That is speculation. Miss Reed and her mother gave evidence on oath and made clear there were no such problems. One of the recurring features of this case has been the willingness of psychologists, professional or amateur, to impose pre-conceived stereotypes or theories upon the facts of the case. I have had to remind myself that evidence must always come first and theory kept in its proper place.
98. At the time of the trial, Miss Reed was half way through a University law course and apparently doing very well. On this basis, it was put to her in cross-examination by Mr Bishop that she must have under-performed at school, in the sense that she left in July 1987 (aged 16) with only one GCE qualification and several CSE passes. As she accepted, it has subsequently emerged that she has greater capacity and application than this would suggest. Asked for an explanation, she told him that she "fell in love" when she met her future (now former) husband. She spent a lot of time with him and generally enjoying herself, rather than applying herself to her studies.
99. In 1990, when 20 years of age, Miss Reed bought a house with her then boyfriend and moved out of her grandparents’ home. They lived together throughout her time at the Shieldfield Nursery and eventually married in November 1994, a few months after the termination of the criminal proceedings. The marriage lasted for approximately five years, when they split up and divorced. The main reason for this, she explained, was that they were unable to cope with the pressures and emotional turmoil caused by the "lead up to the Report, its publication and its aftermath".
100. Meanwhile, before she left school, Miss Reed had already decided she wished to qualify as a nursery nurse. She chose to go to North Tyneside College in order to train, and began a two year course in September 1987.
101. Miss Reed had a number of outside interests from an early age. She had been active in the Brownies from the age of seven, with one of her friends, and later progressed to the Girl Guides. She was the first Girl Guide locally to achieve the Baden Powell Trefoyle badge, which was apparently introduced shortly beforehand as a replacement for the Queen’s Guide Award. This was the highest distinction available in the Girl Guides.
102. Miss Reed also regularly attended Sunday School in South Shields, when she was small, and later helped in running it by carrying out activities with the children, reading bible stories, creating pictures and making Christmas cards. She was looking after children from the age of seven upwards. The lady who was responsible for the Sunday School at that time was Miss Hazel Singleton, who noticed that she appeared to be "very good with children" and suggested that she might think about becoming a nursery nurse.
103. In due course, Miss Reed trained for a Young Leader’s Certificate to enable her to take on a supervisory role in the Girl Guides. She qualified to serve as a Guide Leader at St John’s Church. Shortly thereafter she gave this interest up for other things; in particular, she wanted to spend more time with her boyfriend and enjoying social activities. She also had begun to do night classes to achieve an A-level in Sociology. While Miss Reed was at North Tyneside College (1987–1989), she continued to live at home with her grandparents. Like Mr Lillie, she divided her time at college between studying and placements. Her courses included child development, child psychology, social studies, health, biology, education, communications, craft, physical education, music and computer awareness.
104. She also set out in her evidence details of the various placements she obtained during her course.
105. She spent 29 days with five to six year olds at the West Jesmond Infants’ School. She also did a home placement as a nanny for 22 days in Jesmond. This was clearly satisfactory as the mother concerned also employed her during summer holidays to look after her four children. At the time, these comprised three girls of eight, three and two years old, respectively, and a baby boy.
106. Miss Reed spent 16 days at the Ingham Infirmary Children’s Ward in South Shields with children up to about five years of age. Then there were 58 days spent at Raby Street Primary School with three to four year olds. There were also 14 days at Ashley Special School, North Shields, with children and young people up to the age of 18. This was a difficult placement from her point of view, as it involved dealing with various age groups where all concerned, in effect, had the minds of young children.
107. When she was 18, Miss Reed did 26 days at Shieldfield with two to four year olds.
108. She told me that all the reports in respect of her placements were positive and drew my attention to the terms of the final report dated 16 June 1989:

"Dawn has continued to show the capabilities noted during her first year. She proves to be very much a part of any team she works with and has equally good relationships with children and staff. She has a quietly confident, caring manner with children and is very perceptive of their needs. She carries out duties reliably and without constant direction, although if unsure always has the confidence to clarify matters with staff. Activities have been planned and carried out with children, showing great adaptability and these are always displayed attractively when completed.

Two of her great strengths are her awareness of the needs of children, especially those with problems and the other is her appropriate handling of parents.

She has been an excellent student in all her placements, resulting in her gaining employment in the family centre where she spent a term".

109. She applied for a temporary Nursery Assistant post at Shieldfield, which was advertised by Newcastle Social Services Department, and was appointed on 19 June 1989 subject to passing her examination. The post was duly confirmed. In the light of subsequent events, it is to be noted that on 8 July 1989 she received confirmation that the Department had received a satisfactory police report on her.
110. A six month probationary period was completed without any problems and in early 1990 she applied for a permanent post. She was interviewed on 13 March 1990 and appointed with effect from 19 March 1990. She was upgraded 18 months later to Nursery Officer with a corresponding pay increase.
111. Until the events of April 1993, there had been nothing to suggest to parents or colleagues that Miss Reed was in any way behaving cruelly or improperly towards children in her care. Nor had anyone noticed anything about the relationship between her and Mr Lillie to suggest that they were anything other than work colleagues. There is no doubt that, for one reason or another, perceptions changed among some parents and colleagues as the months passed and it came to be accepted as received wisdom that multiple abuse had been taking place on a massive scale from 1991 to 1993.
112. It is, therefore, instructive to reflect on one example of the contemporaneous reaction of her colleagues. On 2 June 1993, Diane Wood was interviewed by Joyce Eyeington and Mr Mike Godridge (Assistant Director, Residential and Day Care) in the presence of Mr Kevin Hattam. I was supplied with a transcript. She answered "categorically no" to questions as to whether she had ever seen Miss Reed smack Child 22 or any other child or use inappropriate language. Shortly before the interview terminated, she was asked by Mr Mike Godridge for her impression of Miss Reed as a colleague. She replied as follows:

"I have known Dawn since she was a student. Goodness knows how long that must be now. I can’t think how long it is, but she got the job to work in the parents’ room which, in those days, was a very hard job. I always admired her for her youth and her age to be able to go into a situation like that and cope very well with it.

I have worked with her myself. She had covered the room that I’ve been in on several occasions, when a member of staff has been on the sick, and I have always got on very well with her. She is a very unassuming person. She is a very personable type woman (and I say ‘woman’ because she is not a girl anymore) and I like her an awful lot. To have to listen to what has been said – even the slightest thought of an allegation against her I find totally and utterly ludicrous, because she is such a very, very nice girl – woman I should say – and I hope this doesn’t do her career prospects a downer, because as nursery nurses go she has got a lot more patience with younger ones that I ever, ever had. And I have done that job and, yes, I got a lot out of that job, but probably not as much as Dawn’s got out of the job with the [two to three year olds]. She has got the right personality for it. She is calm, she is cool, she is quiet, she is unassuming. I have a lot of children in my room who have been with Dawn, who are asking now, bit by bit, ‘Where’s Dawn? I haven’t seen Dawn for a long time. I like Dawn. ‘She’s nice’. Not being pushed or pressured by me, or any other member of staff to say those things. So in those respects Dawn is a very nice woman, and I miss her – miss her a lot, and I think we have a lost a very, very valuable member of staff".

113. On 27 May 2002, Diane Wood gave evidence briefly before me. There is no doubt that her perception changed some time later. She told me that what came like a "bombshell" to her, in about October 1993, was when she learnt that the mother of one child in particular [Child 10] had begun to make allegations. Previously, she too had been supportive of Dawn Reed, and indeed wrote a letter of support to her when allegations began to be made. It seems to have been the fact that this mother had changed her mind that persuaded Diane Wood to change her own view. I need say no more about this for the moment (and the evidence in relation to Child 10 is considered in further detail later in the appropriate place), but in setting out the background prior to the events of April and May 1993, I believe it is worth noting the impression she was making on the colleagues with whom she had worked by that time for several years.

3) The Review Team’s Report published on 12 November 1998

114. The Review Team’s report was eventually published on 12 November 1998.
115. Central conclusions with regard to the Claimants were as follows:

Children were hurt, they were hurt involving sexual acts, they were hurt both in the nursery and when they were taken out to other places, some of which were houses, flats and caravans. They were told that some of those places were libraries or Chris Lillie’s home, sometimes other people were present and involved in the hurting, sometimes videos and photographs were taken of them, that the children were very frightened and many were most certainly traumatised by their experiences ( p.224).

That Chris Lillie and Dawn Reed, sometimes in conjunction with other people outside the nursery participated in sexual acts with children at times involved them in the making of illegal child pornography (p.228).

That Chris Lillie also regularly abused children acting alone both inside and outside the nursery. These sexual assaults took place in various places within the nursery, in particular in the toilets adjacent to the Red Room (ibid.).

In addition, the children were physically and emotionally abused both inside and outside the nursery by Dawn Reed and Chris Lillie in order to attempt to ensure the children’s compliance and prevent disclosure of the abuses (ibid.).

There appeared to be a possibility that [the Claimants] had covered their abuse of the children by recording fictional accidents in the Nursery Records for the purpose of disguising either the physical signs of abuse or distress caused thereby (p.244).

From the evidence we have seen, it is clear that Chris Lillie and Dawn Reed had conspired as a pair to abuse children and it is also clear that people outside the nursery were also involved (p.264).

116. On 6 November 1998, it appears that three advance copies of the Report were sent from the printers to the Chief Executive of the City Council and one copy to the Social Services Inspectorate of the Department of Health.
117. On 9 November, a further copy of the Report was supplied to the City Council so that it could be forwarded to the parents of one child, who were by that time in New Zealand. It was accompanied by a letter from the Review Team responding to her parents’ particular complaints.
118. On the publication date, 12 November 1998, the Report was placed before a meeting of the Council’s Day Nursery Complaints Review Panel (a sub-committee of the Policy and Resources Committee). Copies were supplied not only to members of that sub-committee but also to any members of the press and other persons attending who wished to have one.
119. On the same day, the City Council also distributed it by post, courier or by other means to complainants, parents, solicitors and other persons who were perceived as having a legitimate interest in its contents. The Review Team’s individual letters generally accompanied the copies of the Report supplied to the complainants.
120. It appears that the City Council was responsible overall for the distribution of 743 copies of the Report. The circumstances of publication will have to be considered carefully, category by category, when I come to address the arguments on statutory and common law qualified privilege. At all events, the impact of publication was immediate and devastating. It received massive publicity throughout the jurisdiction and, of course, particularly within the Newcastle area. That is hardly surprising. The subject matter of the report was of great interest to the public and the conclusions were striking and a source of great anxiety not only for the parents concerned in this case but also for parents of small children generally.
121. The Report has come under wholesale attack in the course of these proceedings from the Claimants, their legal representatives and expert witnesses. Their criticisms, however, were by no means the first.
122. Shortly after publication, the eminent leading counsel who had appeared in the criminal proceedings (Mr Patrick Cosgrove Q.C. for Miss Reed and Mr Aidan Marron Q.C. for the Crown) penned a letter to the Chief Executive of the City Council making plain their concerns over what they considered to be a travesty. Their letter was in the following terms:

"REPORT: ‘ABUSE IN EARLY YEARS’

Thank you for sending me two copies of the above report. The second I have passed on to Aidan Marron Q.C., who was Leading Counsel for the Crown in the criminal trial of Christopher Lillie and Dawn Reed.

Although I was Leading Counsel for Miss Reed in that trial, I have no continuing professional interest. My continuing interest is in helping to ensure that we can all learn from this case how best to improve the course of justice.

Rightly, there has been much praise of many of the people who were involved in the criminal investigation, such as police officers and social workers. They and others, such as the lawyers in the case, were edging forward in trying to improve their understanding and abilities in these difficult matters. No-one can doubt that the objectives are (a) to protect children, and (b) to do justice by all parties.

I could not agree more with the observation made at the beginning of the Report (page i), namely that: "Given the proposed massive expansion nationally of day care provision in early years settings this case raises important lessons for consideration in relation to the delivery of services to young children outside their families."

It is tragic, therefore, that the Review Team has laboured for so long only to bring forward a report that is fundamentally flawed.

Both academic literature and forensic experience indicate that justice has been hindered by incorrect prejudices that sexual abuse doesn’t happen in the family, or isn’t committed by natural parents, or by women generally, or by a mother, or by caring professionals outside the home. Our increased understanding leads most of us to reject any such prejudices.

Modern prejudices are more likely to be twofold. At one extreme is the prejudgment that complaints of sexual abuse are likely to be the creation of some form of false memory syndrome. At the other extreme is the prejudgment that sexual abuse once suspected is present, and the only difficulty is in obtaining the evidence to prove it.

The Report’s authors implicitly criticise unsolicited correspondents who fall into the trap of the former. There is considerable evidence throughout the Report that they themselves have fallen into the latter prejudgment.

The only safe approach is to keep an open mind in each case, to approach the evidence as objectively as possible in order to discover what it shows. In a free society that is the function of a Court, not the function of investigators, nor of persons with a therapeutic responsibility, nor of teams like the authors of the Report.

It is clear that Professor Davies (see the first paragraph of Appendix 6) has had sight of the Ruling of Mr Justice Holland in the criminal trial, given on 13^th July 1994, but it is not clear whether the authors of the Report have read it.

If they have not done so, they have been grossly negligent. If they have read it, their conduct is disgraceful. Nowhere in the Report is there sufficient reference to the Ruling. That fact and the way in which the Report deals with the issues also dealt with in the Ruling lead to the inevitable misleading, even deception of the Report’s readers.

It should be remembered that Mr Justice Holland delivered his judgment after careful consideration of the evidence.

The Crown Prosecution Service, no doubt acting on the advice of the police and of counsel, brought forward an indictment based on the six best cases (all of them involving Mr Lillie and four of them involving Miss Reed) from the point of view of the prosecution. No-one, to my knowledge, has questioned the industry or judgment of the prosecution in this case.

Of those six, one complainant (identified in the Report as Child F [now Child 14]) was taken as a ‘test case’ for preliminary submissions. The details of how this was done are set out clearly in Mr Justice Holland’s Ruling. The Report’s authors, to be fair, (see pages 148, 225 and 277) also appear to identify this young girl as providing the best evidence in the case.

It is helpful, at this stage, to set out what Mr Justice Holland said about this child’s evidence. In the following quotation I have quoted the Judge verbatim, except that I have substituted ‘Child F’ for the girl’s real name. The passage is to be found at pages 17 and 18 of the Ruling.

‘It is convenient to start with the Crown’s case against Miss Reed. As to this I do not regard any of the statement as set out by me, as disclosed by the recordings, potentially probative of anything at all against Miss Reed. It affords, in my judgment, no evidence upon which any reasonable jury could convict her upon Count 3.’

They should pause in their righteousness and consider these questions. What if Child F is correct? What if Miss Reed is wholly innocent of any abuse? They have purported to find her guilty of a most serious criminal offence, and have done so in direct contravention of their terms of reference (see below), for which there can be no excuse.

Sexual abuse of children is horrendous. Few things approach it for awfulness. One that does is to be wrongly accused of it. There is no justice for abused children if a wrong person is accused, condemned, convicted and punished.

We do not need to look to America, to the Kelly Michaels case, for examples of how people can be falsely accused. Close to home there is the ‘Bishop Auckland satanic abuse case’, for example. And we need look no further than Cleveland to see how misplaced zeal can cause a counter-reaction, and confuse the cause of protection of children.

It may be that the Report’s authors will claim that they could not refer to the Judge’s Ruling because of their Terms of Reference, particularly term 1A (at page 5): "it should be noted, however, that the Review cannot make any finding on matters dealt with by the Criminal Court". If so, that claim would be specious.

In apparent disobedience of that term of reference, the Report does make findings on matters dealt with by the Crown Court, and does so in direct contradiction to the findings made by the Court, although the Report’s authors do not have the candour to draw that to the attention of their readers. A classic example is to be found at page 148.

During September a child who had previously been at the nursery began to disclose abuse by Chris Lillie and Dawn Reed. The child, Child F, was medically examined and clear physical evidence of sexual abuse followed. Over three video interviews, she detailed abuse of herself and other children by Chris Lillie, to a lesser extent by Dawn Reed, and she also mentioned other nursery staff’s names. Her testimony in these videos, which we have seen, is extremely powerful and provided persuasive evidence of her abuse in the nursery and elsewhere.

In at least one other respect there is a material contradiction between the conclusions drawn by Mr Justice Holland and the Report’s authors, and, once again, they do not draw it to the attention of their readers. This concerns the existence or otherwise of any corroborative evidence. I quote (again verbatim) from page 8 of the Judge’s ruling.

"… save to the extent that the physical findings corroborate the fact of physical interference in the case of certain of the children and save to the extent that one child might provide ‘similar fact’ support for one or more of the other children, there is no corroboration of the allegations that are made. Indeed, to the extent that the children have provided detail as to venue and as to the circumstances of various incidents, no support has emerged for their contentions, despite extensive enquiries to see whether any corroborative evidence is available."

The Learned Judge also gives significant details of the ages of the six ‘indictment children’, at various stages. Had they been included in the report, which they weren’t, readers would have been able to make their own assessments in the light of the valuable research reviews contributed by Professors Bull and Davies.

"It is true that the second video includes a description of the indecent assault by Miss Reed that is relied upon, but the first and second videos include, effectively, total exculpation of Miss Reed. One of the striking features of both the first and second videos is the insistence with which [Child F] seeks to exculpate her, and the fact that she does so upon her own initiative. Indeed, one of the points made by Mr Cosgrove in the course of his cross examination of WPC Foster and Mrs Lyon is that nobody picked up and sought to examine, in any way, this piece of initiative on the part of [Child F].

"The statement would only become potentially probative against Miss Reed if the graphic support for her that was initiated by [Child F] herself – and that is seen on videos one and three – is put aside. I can see no basis for doing so. I remind myself that no jury can convict Miss Reed upon count 3 without being sure and satisfied of her guilt. It is manifest on the evidence of [Child F] (as disclosed in the statement from the tree videos) that there could be no basis upon which they could be sure and satisfied. Indeed, there is a rather better basis for being sure and satisfied that she is innocent of that particular charge.

"Thus, in dealing with Miss Reed, I have no hesitation in ruling that Crown’s application to adduce that part of the video recordings as making a statement to be relied upon in the furtherance of their prosecution of her fails."

It may be that the Learned Judge made a slip of the tongue in the second paragraph quoted, and that he meant to refer to the first and third, not the first and second, videos. I rely on my memory for that, and I may be wrong.

In any event, in twenty two years of practice at the bar I have never heard a High Court Judge be so emphatic in an expressed view that the evidence pointed to someone’s innocence, as opposed to it being insufficient to prove his or her guilt.

During the course of the criminal trial, there were groups of people outside the Court protesting on behalf of the children. They had placards saying things like "We believe the kids". On this point at least, Mr Justice Holland believed Child F. Why are others so reluctant so to do?

The Report gives the clear and unequivocal impression that the criminal case against both Defendants collapsed only because of the difficulties in getting children’s evidence admitted in criminal trials, and that, as a result, two guilty paedophiles have wrongly gone free. The final paragraph of the body of the Report (page 303) is an example of this:

"Like many of the professionals who we have interviewed we share the distress of parents that the Shieldfield children were not able in the end to receive justice. We find that there was a failure of the adult world to provide the processes, systems and environment to ensure that child victims of assault are not disadvantaged and are regarded as being as entitled to justice as adults."

Yet we can see from Mr Justice Holland’s Ruling that the primary reason why the not guilty verdict was entered against Miss Reed was that the evidence of the child pointed to her innocence. Why have the Report’s authors hidden that from their readers? Why have they deceived them into thinking otherwise? Why have they misled opinion formers and policy makers like the Council and Members of Parliament? Why have they fed the feeding frenzy of the tabloid press?

There are other elements of the Report which give rise to concern, but the ones canvassed above are particularly grave. The flaws are such that they must bring the reliability and integrity of the whole of the Report into dispute. This is a great pity, as it may well be that many of its insights and judgments have value. It would be a mistake to place reliance upon it, however, as (to adapt a line of the Report at page 130): "Thus, if the [authors] were wrong with one thing they could be wrong and unreliable about everything else".

It would be wrong to pretend that any one of us has the answers to what happened, and what went wrong. That is why people were looking forward to the publication of the Report in the hope that it would give an indication of the best way forward. It is a matter of great disappointment that it does not.

What the Report does highlight is how many of the problems are not to do with the children or their accuracy or reliability, but with the adults, not least in their interpretation of what the child is trying to say. It is clear that the interpretation is not always as objective as the children and those caring for them have a right to expect.

One further area is of continuing concern. The parents of the children have suffered much anguish. The Report finds that children were subject to abuse by a paedophile group and were filmed for pornographic purposes. Given the other flaws in the Report, it would be foolish to rely upon these findings. They may or may not be true. If not true, the authors of the Report are guilty of unnecessarily causing yet more pain to the parents.

It is to be hoped that such a dangerous document does not have a lasting influence.

I appreciate that the Council is now in an impossible position, having agreed to publish the Report without any amendments. I do ask, however, that a copy of Mr Justice Holland’s Ruling (amended only by removing identification of the children) be appended to every copy of the Report that is published or distributed. In this way, readers will have a more balanced picture.

I have yet to decide to whom I will send a copy of this letter, but I would be grateful if you would draw it to the attention, at least, of the appropriate chief officers, the chairs of the relevant committees and to the Leader of the Council.

Within the constraints of time, I would be willing to expand upon any of the points raised, preferably in a face to face meeting."

It was signed by both leaders.

123. Moreover, one of the City Council’s officers, Mr Tom Dervin (Director of Social Services), expressed his own serious reservations about the content of the Report in no uncertain terms in a letter addressed to the Council Leader, the Chief Executive and the Chairman of the Social Services Committee on 22 January 1999:

"…I have spent many hours examining and evaluating the information in the Report and in the complaints, and I feel I must offer you my objective opinion on both of them.

In the context of equivalent major inquiry reports this to me is without exception the wo