Friday, 6 October 2017

Soper trial started

According to getwestlondon, a jury was sworn on 3rd October, and the prosecution will open its case on 10th October.

(Please note, while the trial continues, I will offer no opinion on the subject, will publish no comments offering opinions, and will restrict myself to signposting reports that have appeared in the press.)

Thursday, 10 August 2017

Soper pleads not guilty

There's been a plea and case management hearing. Soper has pleaded not guilty to 18 counts of sexual assault against boys aged under 16. His trial at the Old Bailey will start on October 2.

Monday, 26 June 2017

Ealing WILL be kept in the Inquiry

Following the hearing on 6th June, Alexis Jay, chair of the inquiry, has announced a decision as follows.
Having considered all of the submissions, my decision is that the EBC [English Benedictine Congregation] hearing should take place as planned in November and December 2017 and that evidence in relation to Ealing Abbey/St Benedict's will be heard but not before the relevant criminal proceedings have concluded. Reasons for this decision and my decisions in respect of any other matters will follow.
What this means is that the IICSA hearing in November/December will cover Ampleforth, Downside and Worth. But they have made a definite commitment to hold a further hearing on Ealing at a later date once the forthcoming criminal trial is over. This is different from the original proposal which was to wait until after the trial and them make a decision as to whether any hearings on Ealing were necessary at all.

This at least does provide some reassurance to the Ealing survivors that Ealing Abbey will be looked into, rather than them being left in a limbo for at least a year and a half since they were designated as core participants waiting to know whether they will have anything to participate in. We don't know when the Ealing hearings will take place - it depends on how long the criminal trial takes.

There's no news yet as to whether Fort Augustus will be kept in the inquiry. I wish I had something more positive to say other than that I think there is a strong case for keeping Fort Augustus in, and that must at one time have been accepted by the inquiry otherwise there could have been no justification for designating Fort Augustus survivors as core participants when this happened last year. I hope that reasoning is treated with due weight by the chair.

Friday, 9 June 2017

Fort Augustus, Truth and the IICSA

In his famous 1974 Caltech commencement address Cargo Cult Science, Nobel prizewinning physicist Richard Feynman mused on the standards of truth expected of scientists. It really is a wonderful speech and I recommend you follow the link above and read all of it. But here's the bit that is relevant to what I have to say.
It’s a kind of scientific integrity, a principle of scientific thought that corresponds to a kind of utter honesty—a kind of leaning over backwards.  For example, if you’re doing an experiment, you should report everything that you think might make it invalid—not only what you think is right about it: other causes that could possibly explain your results; and things you thought of that you’ve eliminated by some other experiment, and how they worked—to make sure the other fellow can tell they have been eliminated.

Details that could throw doubt on your interpretation must be given, if you know them.  You must do the best you can—if you know anything at all wrong, or possibly wrong—to explain it.  If you make a theory, for example, and advertise it, or put it out, then you must also put down all the facts that disagree with it, as well as those that agree with it.  There is also a more subtle problem.  When you have put a lot of ideas together to make an elaborate theory, you want to make sure, when explaining what it fits, that those things it fits are not just the things that gave you the idea for the theory; but that the finished theory makes something else come out right, in addition.

In summary, the idea is to try to give all of the information to help others to judge the value of your contribution; not just the information that leads to judgment in one particular direction or another.

The easiest way to explain this idea is to contrast it, for example, with advertising.  Last night I heard that Wesson Oil doesn’t soak through food.  Well, that’s true.  It’s not dishonest; but the thing I’m talking about is not just a matter of not being dishonest, it’s a matter of scientific integrity, which is another level.  The fact that should be added to that advertising statement is that no oils soak through food, if operated at a certain temperature.  If operated at another temperature, they all will—including Wesson Oil.  So it’s the implication which has been conveyed, not the fact, which is true, and the difference is what we have to deal with.
The point he's making that scientists need to hold themselves to a higher standard of truth, they mustn't mislead with technically truthful statements. Advertisers do that all the time, but scientists shouldn't, they are the bearers of an important responsibility to tell the truth without misleading.

Lawyers are also supposed not to lie, they are "officers of the court" and have a duty to the court over and above their duty to their clients. But (in my layman's understanding) their duty can get a bit fuzzy round the edges when there is the opportunity to mislead with technically true statements and they have a client's interests to defend. But the lawyers acting for the IICSA in a very real way don't have a client to defend, they are servants of an inquiry supposedly dedicated to discovering the truth. There should be no need for those sorts of games, no matter how legal they are and how well they fall within the codes they adhere to. The lawyers for the inquiry should be able simply to tell the truth without shading it. We should be able to hold them to that higher standard.

So imagine my disappointment when Ms. Karmy-Jones, counsel to the inquiry for the Roman Catholic investigation, said the following in her initial remarks to the hearing on June 6th.
In relation to core participant status, it must be remembered that when individuals were granted core participant status, it was made plain in the notices of determinations that were sent out that the inquiry is obliged to take a proportionate approach to its investigation and will not be in a position to investigate fully the circumstances of each and every core participant's personal experience. It must be remembered that there is a difference between the status of a core participant and a witness. Individuals have been designated core participants because they have a significant interest in the matters under investigation within the Roman Catholic Church investigation. That allows them to take part in proceedings, to make submissions, to receive relevant disclosure and to be represented at inquiry hearings, but it does not necessarily mean that their evidence will always automatically fall to be adduced or that the inquiry will be in a position to investigate their specific experiences.
Now let me be clear, every single word of that paragraph is true. Ms. Karmy-Jones is absolutely not lying. But nonetheless, in offering true statements, she is seeking to justify a course of action (dropping Ealing and Fort Augustus from the inquiry) with a description of the situation which is incomplete and thereby inaccurate.

Let's talk first about the distinction between a witness and a core participant. Ms. Karmy-Jones is perfectly correct in her description of the difference. It is quite possible for instance that if a large number of survivors from one location all describe similar experiences in their written statements, they might not all get called to give evidence in person in public hearings. The inquiry could with perfect justification decide that a representative sample was sufficient to establish the existence of a pattern and therefore evidence of institutional failure, which after all is what it is supposed to be finding out about.

Let's look next at the "proportionate approach". Yes the statement about a proportionate approach is in every published determination on core participant status. Core participant status can only be justified for people if "they have a significant interest in the matters under investigation". But this is where Ms. Karmy-Jones' point begins to look a bit more shaky. In the context of survivors, awarding CP status can only possibly mean that the inquiry has a definite intention to investigate the institution in which the survivor was abused, or which otherwise failed to prevent the abuse. There is no earthly point in defining survivors as core participants when they are associated with an institution the inquiry has no intention to investigate. This would be disproportionate and and the legal representation for them out of the inquiry budget would be a waste of taxpayers' money.

The inquiry has made determinations awarding core participant status to survivors from both Ealing Abbey/St Benedict's School and Fort Augustus Abbey and school. Ealing is mentioned by name in the scope of the Roman Catholic investigation, while Fort Augustus is not. However, this makes no significant difference, the inquiry's clear intent to investigate both was signalled by the awarding of CP status to both groups of survivors.

Ms Karmy-Jones later said this specifically in the context of Fort Augustus.
It is important to remember two things, and I deal with this in some detail because of the news reports. Firstly, the inquiry's jurisdiction is restricted to England and Wales. And secondly, rather than the specific allegations of abuse, the inquiry's remit is to investigate possible or alleged institutional failings in safeguarding.
The matter that seems to have given rise to concern is an interpretation of a passage from Mr Emmerson's opening at the preliminary hearing in July 2016, set out in Mr Khan's document. But just to remind the parties of what he said, he said:
"The inquiry's scope is limited to England and Wales, but because clergy involved in the Benedictine schools have been moved between Scotland, England and Wales, and because, despite being in Scotland, Fort Augustus Abbey and its schools were affiliated with the English Benedictine Congregation, we will investigate failures in relation to that school as well."
It appears that the last sentence of that passage has been interpreted as meaning that this inquiry will investigate Fort Augustus as a whole, including the nature and extent of allegations of abuse there, and Fort Augustus as an institution's response to it. But we suggest that is incorrect. Mr Emmerson was plainly speaking with the caveat that the scope of the inquiry was limited to England and Wales, and specifically references the issue being the movement of individuals.
If that were so, and if the chair had interpreted the scope of the inquiry in this way, and if as a result there was never any intention to investigate Fort Augustus in general, it would not have been proportionate to designate survivors claiming to have been abused at Fort Augustus as core participants. But they were so designated.

The chair, designated the Fort Augustus survivors some time after Mr. Emmerson's speech which Ms. Karmy-Jones quoted. So she clearly thought she had the right to conduct a general investigation of Fort Augustus and has held that view for some time. It would definitely have been disproportionate to make designations of survivors of abuse at in institution outside the scope of the inquiry. So this proposal not to investigate Fort Augustus in general can't possibly be down merely to a clarification of the intentions the inquiry had all along. This is a definite proposal to change the scope of the investigation.

And the question has to be asked why the decision to propose this change? An obvious answer is that the inquiry is under-resourced and behind schedule, and needs to jettison as many investigations as it can get away with. But if that were true, they wouldn't be able to say so because Professor Jay has promised that the inquiry scope wouldn't be reduced. So they have tried to reduce the scope while kidding everyone (including themselves) that they are doing nothing of the sort. It won't do.

IICSA and publicity

At the hearing on Tuesday, about the only time Professor Jay said anything at all was to condemn the press coverage of the proposal to drop Ealing and Fort Augustus.

When the issue of press coverage was first raised by Ms. Karmy-Jones, Counsel to the inquiry,  Professor Jay. had the following to say, as recorded in the transcript
I want to comment here. We were indeed concerned to see the press coverage. It seemed to suggest that I had made a decision to exclude Fort Augustus and Ealing Abbey. I would like to make it clear that I have not made any such decision.
The only problem is that this isn't what the articles said. The Sunday Post said "Last week, Fort Augustus Abbey was left off the list of schools to be examined by the IICSA later this year." which is strictly correct. The CTI submission did have a list of schools to be examined later this year, and Fort Augustus was not on it. However the end of the article did make it clear no final decision had been made. The last word was given to an IICSA spokeswoman, as follows.
A spokeswoman for the IICSA said the institutions to be examined were still not set in stone – despite the new proposals. She said: “No decisions of any sort have been made about the matters to be considered at the hearing.”
Can't be much clearer than that.

The Times was even more careful in its coverage, saying:
Next week lawyers for Alexis Jay, chairwoman of the Independent Inquiry into Child Sexual Abuse (IICSA), will propose that no evidence be called about decades of abuse of pupils at Ealing Abbey and its adjoining independent school, St Benedict’s.
See that word "propose"? That's not an indication that a decision has already been made. And the Times also carried a response from the IICSA, as follows.
A spokesman for the IICSA said: “No decisions have yet been made about the matters to be considered at the Benedictine hearing that is due to start later this year. Submissions will be heard from inquiry counsel and core participants about this at the preliminary hearing.”
So it's a bit rich for Professor Jay in the hearing itself to complain that it had been suggested that a decision had already been made when both papers went to the trouble of making it clear that a decision hadn't been made. I don't think that Professor Jay deliberately lied in her role as chair, especially in a formal hearing, so I'm going to assume that Professor Jay, in her annoyance that the matter had been made public, was careless in her reading of the articles or careless in her characterisation of them. More care really is needed.

Ms. Karmy-Jones also went on at greater length about this, and part of what she said concerned the effect of the news articles on survivors.
... they are unfortunate, not least because of the very real distress that they will have caused a number of individuals, including core participants and potential witnesses to these matters.
I notice some vary careful wording here, about the distress "they will have caused". Not "they have caused", but "they will have caused". I rather suspect she doesn't have evidence that survivors have been caused distress by the newspaper articles, and of course she mustn't lie . What caused the distress was her own submission to the inquiry (accurately reported) proposing that Ealing and Fort Augustus be dropped. It was in all probability leaked to the press by survivors in their anger at the proposals, and I know for a fact that survivors of my acquaintance were very pleased to see the matter aired in public. One survivor has written to me as follows.
It is not stretching the truth to say that the grotesque proposal to drop Ealing because a trial might be prejudiced by testimony to the IICSA from victims of Benedictine abuse over at least six decades is what caused us all no small distress. Contrary to the IICSA’s opinion that the newspaper articles upset us, we welcomed the media exposés of this monumentally stupid proposal on the IICSA’s part. I spent a few days back in very dark places in my mind as PTSD and the urge to react with extreme violence — as I so often did as a young man — took a brief hold of me. I am afraid that I now see some of the individuals staffing the IICSA more as unwitting allies of pedophiles than of the core participants they should be treating with some modicum of respect.
That is an indication of the extent to which the proposals have caused very real anger among survivors. The Shirley Oaks Survivors Association has already withdrawn co-operation with the inquiry. The high-handed approach of the inquiry is alienating survivors and it's going to have to stop while they still have any survivors willing to participate in the public hearings.

Tuesday, 6 June 2017

Statement following June 6th IICSA Hearing

Today, the inquiry has been discussing a proposal from its own senior lawyers that events at two monasteries and their attached schools should be excluded from the Roman Catholic investigation.
The reason given for dropping Ealing Abbey is a scheduling clash with the forthcoming criminal trial on child abuse charges of a former senior Benedictine monk. The date of this trial has been known to the inquiry for almost six months. The reason given for dropping Fort Augustus is that it is in Scotland, even though it was run by the English Benedictine Congregation and therefore the institutional failure is that of an organisation based in England.

If Professor Jay adopts this recommendation from her senior legal team, she will break a public promise not to reduce the scope of the inquiry’s investigations, made when she was first appointed chair.

There are two troubling aspects to this proposal. The first is that the inquiry’s lawyers thought that a reduction in the scope of the inquiry was an appropriate response to a date conflict for a hearing not due to start for a further five months. It gives the impression that the inquiry is more interested in its own convenience than in a determination to seek the full truth about abuse in the Roman Catholic Church.

Second, the proposal was made a month ago and the inquiry intended that it would remain secret until today's hearing. They expected that abuse survivors from both Ealing and Fort Augustus would co-operate in keeping quiet about a proposal which jeopardises their right to give their evidence in open hearings. The inquiry had no moral right to ask this of them, and inevitably there have been some stories in the press.

The inquiry’s response to these stories has been to demand that, as a condition for receiving further documents, survivors sign a confidentiality undertaking that bars them from speaking in public about any document on any subject that they receive from the inquiry. This is a ludicrous over-reaction, and contrary to the Home Secretary’s explicit instruction to conduct the inquiry with the maximum possible degree of transparency.

In some cases, child sex abuse has not been discovered promptly in part because institutions have used onerous confidentiality obligations to prevent whistleblowers from disclosing concerns which would cause unwelcome publicity. It is ironic to see the inquiry displaying precisely the habits it will have to investigate and expose in others.

This inquiry is extremely important and I want to see it succeed. To do so, it must retain the confidence of the survivors whose evidence will be central. This sorry sequence of events could hardly have been better at undermining their confidence had the inquiry been acting with that deliberate aim in mind.

IICSA and Confidentiality

As, you'll have seen from the previous blog article, I have serious issues over the IICSA's atitude to secrecy. Here are some questions I put to Martin Smith, Chief Solicitor to the IICSA, via my solicitor.

1. What is the legal ground for the Inquiry's demand that I provide a confidentiality undertaking?
(Note: I wholly accept the need to maintain the statutory right of victims to anonymity under the Sexual Offences (Amendment) Act 1992 and I have no intention of breaching that right. That right however exists independently of the Inquiry and is not affected by the presence or absence of a confidentiality undertaking. The Act is however irrelevant to any information that might be provided by the Inquiry that does not disclose the identity of victims, and so the requirement for a general confidentiality undertaking is disproportionate to the aim of assuring victims' anonymity where this has not already been waived.)

2. What legal grounds does the Inquiry have for refusing to provide documentation to a core participant in the absence of such an undertaking?

3. The terms of reference to the inquiry require you to "Conduct the work of the Inquiry in as transparent a manner as possible, consistent with the effective investigation of the matters falling within the terms of reference, and having regard to all the relevant duties of confidentiality". Given this instruction from the Home Secretary, and subsequent emphasis by the Home Affairs Select Committee and others on the importance of transparency in this inquiry, what practical justification is there for imposing on core participants a blanket duty of confidentiality over "all documentation provided ... by the Panel, their secretariat or legal team"?

4. The previous chair of the Inquiry, Justice Lowell Goddard, said in her opening statement on 9 July 2015: "When I accepted my appointment, I said that I was committed to ensuring the Inquiry’s work would be conducted as transparently as possible, and that I would make public statements at regular intervals so that it does not become remote from the public it exists to serve. The principle of transparency is reflected in the terms of reference for the Inquiry and I intend to ensure that this is faithfully implemented. Some aspects of the Inquiry’s work are of course confidential for good reason. However, I am determined to put as much information into the public domain as I properly can, as soon as I can." Has there been any change from this position by the current Panel, and if not, in what way is the demand for a blanket confidentiality undertaking by the Inquiry consistent with this publicly stated approach?

5. In the example of the submission from CTI to the chair about Ealing Abbey etc which will be discussed at the hearing on 6 June, in what way is a requirement to keep this document confidential justified given the Terms of Reference and the promise made by the previous Chair? In other words, what harm is done to "the effective investigation of the matters falling within the terms of reference"?

6. In an article in the Guardian in November 2014, before the inquiry was made statutory (, I emphasised the need for transparency, stating "Child abuse survivors, particularly those abused in institutional settings, are often highly mistrustful and obsessively motivated. It’s hard for those not abused in childhood to understand how devastating it is to be so thoroughly betrayed by the very adults and authorities on whom you depend for your care, and how profoundly that affects your ability to trust anybody in later life." Given the very real and justified reasons for abuse survivors to mistrust those in authority (including the Inquiry itself), have you considered the psychological effect on survivors of requiring them to sign what will be interpreted by them as a gagging order?

7. You should note that from their point of view this requirement will almost certainly be regarded as a hostile act which will undermine their trust in the inquiry.  Their interpretation of this hostility (which exists whether or not you consider it to be rationally based) will hardly be lessened if the documents they are required to keep confidential include proposals that adversely affect their right to be heard in public hearings. In light of the need to maintain the trust of the survivors, have you considered the extent to which such confidentially requirements are likely to be profoundly counterproductive to the work of the Inquiry?

8. Whatever the legal justification (or lack thereof) I can see a practical need to ensure that evidence to be put before the inquiry is not raked over in the press prior to the Panel hearing it. As a practical measure I would have no objection to giving a confidentiality undertaking with regard to evidence not yet in the public domain that will be put before the inquiry in public hearings, until such time as documents containing this evidence are referred to in hearings and are thereby made public. In your view, would such a modified declaration for core participants be a reasonable approach to this matter, and if not, why not?

9. Given both the importance of the subject matter of this Inquiry and the very large sums of public money being spent on it, there is a strong public interest in ensuring that the Inquiry can be held to account by the public in its conduct, notwithstanding its independence from government. Therefore there is a strong justification for making public documents that relate to the Panel's conduct of the inquiry, such as (in the current case) proposals to reduce the previously publicly stated scope of the Inquiry's investigations. What countervailing justification can you offer for requiring that such documents be kept confidential even for a limited time?

10. Have you consulted with the Victims and Survivors Consultative Panel regarding this aspect of the Inquiry's engagement with survivors, and did you follow any advice they gave? If not, why not?

11. Please ensure that the VSCP's advice is sought prior to giving your response to the issues raised above, since this issue falls squarely within the VSCP's terms of reference in providing advice to the Inquiry on how to relate to survivors.

12. Please note that I as a core participant will not accept a response from the Inquiry on these points that is marked "Private and Confidential". These points are not confidential and are part of a conversation in which there is an entirely justified public interest, and I will not correspond on a private footing on public interest matters. There is and can be no question of my approaching you for some kind of consent to publish your reply or any future correspondence on this topic.

Martin Smith sent a reply. It was addressed to my solicitor and marked "Strictly Private and Confidential".

Because I'm barred from receiving documents from the inquiry unless and until I sign the confidentiality undertaking, he had to check with Smith whether I was in fact permitted to see his reply at all. Eventually it was confirmed that I could see it. I'll publish and comment on it as soon as possible. It's pure Sir Humphrey Appleby.