Examination of Witnesses (Questions 520-539)
MR PETER GARSDEN AND MS FRANCES SWAINE
TUESDAY 11 JUNE 2002
(Mr Garsden) It is probably about half I would say. I am guessing because I have not looked at these statistics nor are they available so I do not want you to rely on them. I am giving you a guestimate at say slightly more than half. If you take the number of claimants who have given statements to the police and been through the investigation process, I would say it is about 98/99 per cent.
521. So for half, say, of your clients, they have had their day in court?
(Mr Garsden) Yes, but a different type of day in court because our claim is not against the abuser, it is against the managers of the home. They see the managers as being primarily responsible for what was going on because what has happened has been these very clever paedophile/sex offenders have infiltrated the child care system and either blind eyes have been turned or they have been naive at what was going on. Often these individuals are not unpleasant, they are different characters of sex offenders. Not all of them are violent and cruel, some of them are quite soft and appealing to the victim and that is how they get round them, that is part of the grooming process. They do not see them as necessarily the target of their anger. Often these men are substitute fathers when they have had either no father or an inadequate father relationship.
522. The target you are talking about is the establishment really?
(Mr Garsden) Yes.
523. Do you agree with that?
(Ms Swaine) Yes. You did ask a question as to whether any clients or potential clients went away having had the whole process explained to them and I am not sure that I can give you a percentage figure but certainly I would always make known to anybody the process that had to be gone through, including the fact that it was fairly unlikely that the defendant was going to admit liability immediately so it would not be an open and shut, over in a few months case. Some clients do decide that it is too traumatic for them to string on over a long period of time and they do go away. I would say maybe between five and ten per cent, that is just a guess.
(Mr Garsden) Yes, I would agree with that. Perhaps I misunderstood the background to your question. I think what you were saying was when they find out how little money they may get, would they go away, and the answer to that is no. I interpreted that to be what you were saying. The reality is these clients find it very difficult to go through the process. Every time they come and see us it reminds them what happened and they are going through the same process over and over again. Often cases which start do not finish because they basically cannot face speaking to us about it and going through the process because it is once in Crown Court, then the CICA, then coming to see us, then seeing our doctor, then seeing the defendant's doctor, then maybe in the Crown Court and if you multiply that by two, because of cross-examination, you are having to repeat this whole story 15 or 16 times and that is very damaging.
524. Some actually go away and do not claim off anybody?
(Mr Garsden) Yes.
(Ms Swaine) Yes.
525. Do you know of how many cases where judges have refused to extend the limitation period in relation to cases of past abuse? If so, what were the reasons given?
(Mr Garsden) Very, very few.
526. Most times judges have.
(Mr Garsden) Yes, they do but very, very rarely do they not exercise discretion in favour of the claimant. You can only read the North Wales judgments, there are two sets of North Wales judgments, and in each case limitation was an issue. There is this concept of repressed memory and it is psychologically accepted, and it is called different things, it is called disassociation but the only way in which the claimant can cope with this awful event that has taken place is to build a concrete wall around them. It is like fire and ice, if you like. It is a cold exterior and a fire inside and they protect themselves from the outside world with this huge shield until one day the police knock on the door and say "Excuse me, we are investigating such and such a home, is there anything you want to tell me about it? We understand you were there"? Suddenly it puts a crack in that block of ice and the flames gush out. They often try and put sticking plaster over the wounds but they cannot stop it, once the crack starts it gushes out and often, having been stable, they descend into drink, drugs, depression, mutilation, all the other symptoms I have talked about and that starts when the police knock on their door. You can understand why they do not necessarily call all of them to give evidence because they simply could not cope with it and the same applies with us.
527. You say the police knock on the door and some of the accusations we have heard are that, of course, that actually stimulates the people to make accusations when they have not been abused.
(Mr Garsden) Yes.
528. Can I say that this Committee genuinely wants to look at this subject and there has been an inference today from you that we have made our minds up already. I think the point is that we want to hear the evidence. It is right if there has been abuse that adults who are abused as children should find justice and it is right, also, that we do not want to have people accused who have not been. Would you like to say whether you feel there are people who actually make up statements when the police approach them in the way you have just said?
(Mr Garsden) I think I am the wrong person to answer that question. I know the police are going to have their own day of evidence and I really think that is a question that they are better off answering than me. What I can tell you about my knowledge of the police investigations, and I have dealt with three areasCheshire, Manchester and Merseysideis that right from the word go there have been regulations within the police force, and I am sure they will tell you this, that have forbidden any mention of compensation whatsoever. The individual testament I have of that is the first client who knocked on my door. In those days they were advising claimants who had not given evidence in the Crown Court to seek legal advice, they do not do that any more, they only do it after the case is over. Even he did not know why he was being advised to go and see a solicitor, and they often do not, I think less so these days than then. Before you start a major investigation in the police force you have to have a memorandum of operation, they call it something different, and they will tell you more about this, but it sets out exactly what you are going to do, what the rules are, and how it is going to happen and how much it will cost and so on. I know that in these manuals, way back to when I first started in 1994, the discussion of compensation has been forbidden but it is not a perfect system, obviously, nor is our system of justice perfect and I am sure you will be able to quote examples of breaches in any system. My experience is I do not think, if it is true, that is anything other than a minority rather than a majority.
(Ms Swaine) I think under the Police Victim's Charterwhich your last witness talked aboutit is a duty of the police officer to tell a potential claimant that he should seek legal advice if he believes that they should do.
529. My question really was whether the police knocking on the door actually encourages complaints which might not be justified? I wonder if you have anything to comment on that, Ms Swaine?
(Ms Swaine) I can only say that I have never come across any that I think are unjustified ones.
530. One of our witnessesI cannot remember whoasserted that despite some of these very large investigations which have taken place all over the country, and despite a couple of public inquiries, no evidence of a paedophile ring as opposed to individual cases of abuse has been uncovered. Would you agree with that?
(Mr Garsden) I think you are playing with words.
531. I am not playing, I am just quoting.
(Mr Garsden) I do not mean you personally, I mean one. They are playing with words and presenting the argument to their advantage. I think it is public knowledge that in the 1970s there was an organisation called the Paedophile Information Exchange, PIE as it was known. You can read about that in Christian Woolmar's book which you may or may not have read.
(Mr Garsden) That was what you might call a paedophile ring because it was an organisation of individuals whose purpose it was to be interested
533. No, we do understand that.
(Mr Garsden) This was the time we were talking about.
534. No. The suggestion isand I just want to bounce this off youthat in none of the investigations which has secured a conviction, and neither of the subsequent public inquiries, has any evidence of a paedophile ring been uncovered.
(Mr Garsden) Yes.
535. Now my question to you is is that true?
(Mr Garsden) Yes, I am sorry if I digressed, I was coming on to that. What you have is not the paedophile ring but a paedophile club. If you look at the evidence, and I have talked to the police about this, they do not want to investigate a conspiracy because it is very, very hard to prosecute a conspiracy successfully because you have to prove links between each and every individual. They would far rather prosecute individual abusers separately, it is far easier and far more successful. Therefore in any of the press releases and interviews they were very wary of ever suggesting that there was a paedophile ring. I do not think they were interested in investigating that evidence. I think what you find is that in the homes that I am looking at there was more than one paedophile/sex offender, call him what you will, operating at that home at the same time. There is limited evidence, also, of two sex offenders abusing a boy at the same time in tandem or evidence of one abusing and one watching. That is certainly in the minority, generally it is a one to one situation which takes place in private. So if you believe that they were each operating independently of each other at the same time in the same home, a collection of buildings which was very close, where there were only perhaps between 50 and 100 children then it beggar's belief that they did not each know what the other was doing.
536. Does a criminal conviction against an abuser make a significant strengthening of the claimant's case for compensation?
(Mr Garsden) It is only one part really of the case. Unlike the police we do not only have to prove fault, and that is what you are talking about. The conviction is only a tiny part of the fault. Our argument is in most of these cases that the homes were run in such an inadequate way that abuse was likely to emerge and take place. The fact that it took place is only one small part of a civil case, before that we have to prove the case is within time and that we have satisfied the limitation rules. What the case is really about is not that at all, it is about how badly damaged the individual was because the defendants will usually fight these cases on the basis "Well, you were buggered before you went into care, you were buggered in care, what is the difference? Where is the damage?" putting it in a very crude sort of way.
537. The insurers have said to us, for example, Norwich Union: "Where an alleged abuser has been convicted by the criminal courts beyond all reasonable doubt, it is almost impossible for insurers handling any subsequent claim for compensation in a civil court to defend liability . . .". They are saying as far as they are concerned once the criminal conviction has been delivered, particularly with these class actions, the group actions, then it is just a question of how much they pay out.
(Ms Swaine) My guess would be that is probably accurate looking at it from an insurance perspective but that does not mean to say that is what they say the first time they get a letter from us setting out the particular claimant is making a civil claim. Insurers do not necessarily pay up even though they know they are probably going to have to in the end. They might be hanging on for all sorts of reasons, including perhaps the case will go away, perhaps the evidence will diminish over time.
538. That is what they talk about.
(Mr Garsden) Yes. I am interested that you have referred to Norwich Union because they are one of the only insurance companies that I know of that have made a wholesale decision to try and avoid liability on any of their insurance policies in any children's homes whatsoever. I had a very tragic situation where we were bringing claims for historical abuse against a home that is still running and still are pursuing those claims and they faced, even though they are still running the home for present day victims, having to shut down because the insurers were trying to avoid liability on their insurance policy, claiming this was a criminal act not an act of negligence, frankly, and fortunately that decision was overturned and they were forced to honour their obligations. That is the background of the Norwich Union.
539. That was the Norwich Union, I could have quoted Zurich and others which have given evidence.
(Mr Garsden) Sure.