IICSA Benedictine hearings day 1

The morning of day 1 was taken up with initial submissions from Counsel to the inquiry and the legal representatives of the various core participants. An important issue raised was the amount of documentation which had been disclosed very late.

At the hearing back in June, the inquiry had indicated the all the necessary documents would be disclosed by the end of October. This has proved hopelessly optimistic. By 31 October, 2,036 documents totalling 28,184 pages had been provided by the inquiry to the legal representatives of the core participants. However, after 31 October, a further 3,178 documents have been provided, another 34,282 pages.

It has been quite impossible to read all of this and so ensure that all the right questions are asked during the hearing. I spent every spare evening and weekend for about 2 months before the start of the hearings going through documents and identifying questions that needed to be asked in the inquiry, but I wasn't by any means reading everything. I went through the indexes provided, looking at the description of a document as shown in the index to see what might be interesting, and then read those documents only. Even so, I haven't had a chance to go through all the indexes, and I have no idea what I might have missed because of misleading descriptions in the index.

If the inquiry is to be able to ask the right questions, the core participants themselves - especially the survivors - need the opportunity to go through all of this. They have been involved in the events the documents describe and will often be able to spot the significance of a document in a way that the lawyers might not recognise by themselves.

(By the way, apart from the documents that have been listed on the website and brought up in evidence during the hearings, I can't disclose anything I've seen. I had to sign a confidentiality undertaking as a condition of getting to see the documents at all.)

Prior to the hearings, a number of lawyers complained about the impossibility of going through all of this, and the IICSA conceded two important points.

• That the normal 4 days' notice they required for any question somebody wanted to have asked could be cut to 2 days
• In the event that something important in the document is discovered in the documents which was is covered in this round of hearings, the IICSA would leave open the possibility that a witness could be recalled to address the matter at the next hearing within the Benedictine case study.

The latter point of course remains entirely at the chair's discretion.

Even this left a very unsatisfactory position. Mr Sam Stein (who represents 13 complainant core participants) spoke expressing the frustration that many felt.

During the lead-up to this investigation, we have had disclosure on a daily basis. I will give you a synopsis in a moment of quite what that disclosure has been like. There has been no time to consider or even properly consider these documents. This relates to an inquiry or investigation date that's been set up long ago.
I have listened and spoken to Ms Karmy-Jones before this afternoon, I have spoken to her about the
19 disclosure problem, and we have tried to come to, if you like, a united view.


The difficulty from the core participant survivor perspective is that we don't, as yet, have a coherent explanation for this difficulty with disclosure. What we do have is a partial explanation for a large part of these failures in disclosure that's been referred to in the note for disclosure for the part 1 EBC case study hearing, a note dated 2 November 2017.

I am going to read the two relevant paragraphs. This is a note from counsel to the inquiry. It is dated 2 November. In that sense, it is a product of its time, because we have had disclosure problems after that date.

"Late disclosure", page 3, paragraph 10: "The inquiry has received late disclosure of large tranches of material from the English Benedictine Congregation, including Downside Abbey and School and CSAS. In relation to the EBC, including Downside Abbey and School, since September we have received over 10,000 pages of material, predominantly from Downside Abbey and School, and that was in response to the inquiry's rule 9 request sent on 15 January 2016."

May I repeat that date: 15 January 2016. The note goes on to say: "The inquiry is working through this material as quickly as possible but has inevitably been unable to review and prepare it for disclosure to core participants by 31 October."

Paragraph 11: "We were notified in late October of yet further material that has been identified as falling within the scope of the inquiry's rule 9 request in January 2016. We do not yet have a page count for this material, but will endeavour to review it and disclose any relevant material to core participants as quickly as possible. The inquiry has asked Downside Abbey and School to prepare a witness statement explaining the manner in which they have conducted searches to identify material relevant to the inquiry's disclosure requests and the reasons for this late discovery and disclosure of
9 relevant material. It is anticipated that this statement will be disclosed to core participants by 17 November 2017."

So that was as matters stood on 2 November of this year. We then do have, indeed, on 17 November, a statement from Dom Leo Davis dated 17 November of this year where there is set out within that particular document the response, if you like, regarding this late disclosure. If I read from that document, paragraphs 35 and 36:

"In April 2017, it was agreed with the inquiry that a further tranche of additional newly generated material will be provided on 1 July 2017. As before, newly generated material was identified by the school. A list was sent on 23 June 2017. Further newly generated material was disclosed on 1 August 2017 following the receipt of a section 21 notice on 28 July 2017 consisting of material including child protection, the Plenary Governor's meeting minutes and Safeguarding Subcommittee meeting minutes created during the course of 2017 and the resubmission of the 2016 versions of the same. Counsel to the inquiry proposed Downside as a selected institution by way of written submissions on 3 May 2017. Further rule 9 requests were issued to another EBC institution. No further request was made to Downside.

"On 28 July 2017, the chair to the inquiry confirmed her decision that Downside be selected for the EBC case study hearing in November/December 2017."

Now, the rest of this particular document sets out a history of the way that apparently material has been looked for, discovered within the grounds of the abbey, essentially in cupboards, in long rooms, as it is described, mixed up with catering supplies and mixed up with documents that relate to other matters clearly not relevant to this inquiry. So it is a long list and long justification of why there have been problems, it seems. But the heart of this document appears to be at those two paragraphs, 35 and 36, blame being placed by the author of this document onto this inquiry, becauseit seems that the way it is being presented is, "Well, we were chosen rather late as a case study and, therefore, being chosen rather late as a case study, what has happened is that we have only just been therefore confronted with the reality that this is actually going to be something we need to take seriously and therefore it has all been a bit of a problem".

Now, none of that copes with the fact that the initial request for documentation goes back to January 2016. What has happened since that time, if we just look at last week, on 23 November 2017, 111 documents relating to Ampleforth and Downside were put on the CP, the core participants' database, Relativity, which is the machinery that's used for the finding of documents by core participants. This material related to the EBC, Downside Abbey, various individuals, North Yorkshire City Council, North Yorkshire Police and Ofsted. That's the 23rd.

26 November 2017, 68 documents relating to Ampleforth and Downside. A third witness statement on behalf of Downside from Abbot Madden and, indeed, another document from Dom Davis. On Saturday, we had documents provided by counsel to the inquiry setting out, if you like, schedules and items that were going to be useful for this inquiry.

So, in reality, taking last week, going through to this weekend, as just a snapshot, because it would take too long to go through all of the other late disclosures, core participants have had no chance whatsoever to deal with this material. Their representatives have been going through the material as fast as we possibly can. We have learnt, and I think I have got this right, from Ms Karmy-Jones that there may be further material to come. We are left in a position whereby we can only, it seems, try to do our best in an awkward situation.

Later, he described the impossibility of managing this snowdrift of paper.

What is a core participant? Under rule 5 of the inquiry rules, it relates to a person who has played or may have played a direct and significant role in relation to the matters to which the inquiry relates. Those designated as core participants will be provided with electronic disclosure of evidence relevant to the particular subject matter of the inquiry. They have the right to make opening and closing statements. They have the right to suggest lines of questioning. They have the right to apply to the inquiry panel to ask questions of witnesses during a hearing.

Do you mind if I ask a rhetorical question -- I don't expect an answer -- to say this: how exactly is that going to be done with such late disclosure? How is a core participant meant to exercise those rights? How are the legal representatives meant to advise their core participant clients as to the different aspects and ways that we can potentially deal with matters on their behalf? Have you considered when core participants actually get this material? Because we note, of course, that the inquiry, understandably, is saying, "Well, hang on, there is a problem here with disclosure to us", but let's look at, in fact, the knock-on effect of the disclosure to the core participant. The core participant doesn't get it, nor their representative, does not get this material when the inquiry gets it. So the inquiry gets this somewhat in advance. They have to do their job, understandably, and we accept it must be done, of redaction and filter in relation to this material.

So the core participant is very much at the end of the list in terms of disclosure. Not only that, the core participant has, through their legal representatives, to comply with timetables in making submissions, in making requests to question witnesses. All of these are timetables that compress the ability of core participants and their representatives to deal with, take on board, and actually consider the material, let alone make such requests, and we can see the effect of it that has happened so far in relation to this investigation, in that the four days which was originally set as being the period of time in order to make such submissions has now been narrowed down to two days, but it is the core participants who are given the least amount of time to handle the material, the least amount of time to
 actually look at it and the least amount of time to act on it. Guess what: it is the core participant survivors who have in the past been ignored, let down by judicial tribunals, let down sometimes by lawyers, let down and abused by the institutions in which they placed their trust in this case and went to their schools.

It is quite hard, from the core participant survivor perspective, to learn, as it seems we are being told by counsel to the inquiry, that this in fact relates to late disclosure from those very institutions that are under examination within this part of the investigation.

What's the practical end result? Well, it seems that we are left with nothing else other than being able to just say to this inquiry that what we will do is battle on regardless. We could of course apply for an adjournment. We could ask for this investigation to be taken out of this time slot and be put into whatever time would be available next year. But there are core participants that have made plans to give evidence before this inquiry during this period of time. They have made personal plans. They have discussed matters with their employers, with their families and they have made travel arrangements, and they are facing coming along to this investigation and this inquiry to talk about what happened to them in the past. It would, we submit, be directly unfair to those core participants to apply for an adjournment to take this matter out, yet it is also those core participants, some of them witnesses before this part of the investigation, that have got the problem of coping with the failures of disclosure.

Ms Gallafent representing Downside and the EBC made some points to the effect that it wasn't Downside's fault. Ms Karmy-Jones for the inquiry also made some points in response, and then after a short adjournement Professor Jay made the following statement from the chair.

The panel and I have had the opportunity for a short discussion on the matters just raised, and of course we entirely agree that the matter of disclosure is extremely important, as so many people have already stated.

If it comes late to the inquiry, it therefore goes late to core participants, and that's a matter of very great regret. We have heard from Ms Gallafent an explanation, but it doesn't alter the fact that it is a significant inconvenience to all of us preparing for the inquiry's hearings.

Whether any blame can be attributed to an individual or an institution may be a matter of evidence, and no doubt we will consider that if it arises in the course of these hearings.

Finally on this point, I want to say that we do wish to make the point that we do not want to preclude or deter people bringing forward relevant material outwith the agreed framework.

As to the issue of questions, we will of course be as flexible as possible in considering any applications for questions outwith the usual time period.

So in summary, we are keeping to the predefined timetable and everybody will just have to make the best of it.

A criminal trial run this way would collapse. In fact, it has been in the news these last few days about how criminal trials have collapsed because of late disclosure of documentation to the defense. But apparently this is an acceptable way to run a public inquiry - the evidence has to be squeezed into the timetable, rather than the timetable being adjusted to accommodate the evidence.