With the resignations last year of New Zealand judge Dame Lowell Goddard, chair of the Independent Inquiry into Child Sexual Abuse, and of Ben Emmerson QC, lead counsel to the inquiry, it might have been hoped that their replacements would at last bring some fresh, coherent thinking to bear on the case of the late Lord Janner of Braunstone. Sadly, not only have those hopes now been dashed with the perpetuation of political correctness at the expense of common justice but recent developments have aggravated the inquiry’s blatant disregard for due process.
The IICSA’s primary remit is the scrutiny of institutional failures to protect children from sexual abuse. One of the chief concerns is that of failures by the police to investigate allegations and prosecute offenders. The ultimate purpose of the inquiry is supposedly to learn lessons and recommend procedural gold standards – not to put dead men on trial.
It goes without saying that the duty on the authorities to follow up a complaint can never be contingent on its truth, which is irrelevant to the issue of official neglect. Yet it was Emmerson who, while paying lip-service to this disconnect, contrived with Goddard’s tacit approval a wholly spurious pretext by which the inquiry could proceed to make determinations on the truth of allegations.
The inquiry panel’s task, he implied, includes assessing the impact on genuine victims caused by the perfunctory dismissal of their complaints and this would necessitate deciding if a complaint is genuine.
That argument was palpably false. The IICSA is not a court of law awarding damages for breaches of the duty of care.
Nor is it a disciplinary tribunal with powers to admonish and sanction officials. It has no business using “pain and suffering” as a pretext for purporting to assess the truth of allegations. It can be taken as read that genuine complainants who have been let down by the authorities will be profoundly aggrieved. You do not need a protracted and vastly expensive foray into a totally irrelevant issue to conclude the obvious.
Professor Alexis Jay, Goddard’s replacement, has made a show of being more circumspect. In her Provisional Notice of Determination issued on 16 December last year, she stated that “as a matter of logic, it may not be necessary for a finding of fact to be made on the truth or otherwise of a specific allegation of child sexual abuse in order to examine the institutional response to that allegation”.
The topic, she noted, was “fact specific” and one on which she could not yet take a firm view but would be kept under consideration as the investigation continued. But such findings, she declared, should only be made where relevant to the discharge of the inquiry’s overall Terms of Reference and it is fair in all the circumstances “including the inability of Lord Janner to respond to the allegations”.
In her Notice of Determination of 11 April, this year, Jay did not resile from her earlier statement.
These are all weasel words not in the least redeemed by her emollient language. She was being advised in this by the replacement leading counsel to the inquiry, so it must be assumed that her words were chosen with the greatest of care.
To say that adjudicating on the truth of allegations “may not” be necessary conveys the clear sense that they will usually be necessary and yet she makes no attempt to explain why such findings will normally be relevant in an investigation of institutional failure. There will of course be very rare and extreme instances where an allegation made to the police was transparently invented and was sensibly taken no further.
In such a case the IICSA panel need only validate the police judgment that the account was incapable of credit. The issue would not be whether it was true. But in the vast majority of cases summary dismissal would have been indefensible and in these cases the truth or otherwise of the complaint is wholly irrelevant to the issue of official neglect.
The obvious conclusion is that Jay remains intent on permitting the panel to determine the truth of allegations on the basis of the faux reasoning conjured up under Goddard.
Furthermore, the Janner investigations will still be falling far short of acknowledged standards of due process. His children will enjoy no inherent right to cross-examine complainants but in the discretion of the chair and panel may only be permitted to do so “sparingly”.
Again, there continues to be no basic disclosure programme as to complainant backgrounds, as in civil and criminal justice, and the panel will necessarily focus on the superficial plausibility of witnesses.
Quite aside from determining the truth of the complaints, it is far from clear why the IICSA needs to investigate all the Janner complaints in order to recommend minimum standards. As his son Daniel, himself a distinguished QC, cogently submitted to the inquiry, it is difficult to see why the complaints against his father were being singled out for a full-scale investigation.
Putting a dead man on trial with significantly fewer safeguards than in the trial of living defendants has become all the more egregious for one reason alone if for no other. All 33 civil actions against the Janner estate have now either been disallowed or dropped.
Let us not forget that many of them were initiated only in response to advertisements in prison or prison magazines luring would-be litigants with the bait of winning damages.
- David Wolchover, barrister and contributing co-editor of Witness Testimony in Sexual Cases