CAMPAIGN ON BEHALF OF FALSELY ACCUSED CARERS AND TEACHERS

Vol
23 F.A.C.T.ION
FACT, INFORMATION, OPINION and NEWS
July
2010

The Tide is
Turning
Following the General Election there are signs that the tide is turning in matters Have Your Say
of criminal justice and State regulation. The first sign was when David Cameron Perhaps the most surprising
announced that the Government intends to ensure that defendants in rape cases development of all is Nick Clegg’s
should not be named unless convicted. The proposal sparked a furious response decision to consult with the general
in Parliament and elsewhere and for a while it seemed that the Government public regarding those laws which
would water down their suggestion. Now it appears that they might extend the need to be repealed.
legal right of anonymity to other crimes which carry the greatest social stigma, in Nick Clegg said, “We're working to
an attempt to limit the “reputational damage” caused to the lives and careers of create a more open and less
anyone falsely accused. intrusive society through our
The Prime Minister justified the Government’s plans by saying, “We know that a Programme for Government. We
lot of people are falsely accused, whose careers and lives can be blighted … In want to restore Britain’s traditions
some cases, people have committed suicide.” of freedom and fairness, and free
Nick Clegg is reported as saying, “Our coalition agreement also states that we will our society of unnecessary laws and
give anonymity to teachers accused by pupils and take other measures to protect regulations.
against false accusations. We have not yet discounted any options. “Whatever “The Your Freedom website
our conclusions, I can make it absolutely clear that we have no intention of http://yourfreedom.hmg.gov.uk/
extending similar protections to rape defendants once convicted. The media will gives you the chance to tell us
be able to report the cases of convicted defendants in the usual way.” which laws and regulations you
Since taking office the Government has also announced that The General think we should get rid of.
Teaching Council for England is to be axed amid claims that it has failed to “Your feedback will inform
improve classroom standards or provide value for money. Michael Gove, the government policy and some of
Education Secretary, said the government wanted to trust teachers – not your proposals could end up making
“busybody and patronise them” when regulating the profession and advising the it into bills we bring before
government over improvements to classroom methods. Parliament to change the law.
The Home Secretary, Theresa May, has also issued a statement to the House of We've had an excellent response so
Commons stating that there is to be a review of the entire vetting and barring
continued on back page, col 1 continued on back page, col 2

Have you thought about sponsoring an edition of FACTion?

July 2010 Page 1
 Falsely Accused Carers and Teachers Editorial

F.A.C.T. is a voluntary organisation which supports carers CHAIRMAN’S REPORT

and teachers who have been falsely accused and/or
wrongly convicted of child abuse, and campaigns on their A report this week (June 21st) by the Manifesto Club, an
behalf for changes in investigative practice, and for organisation which campaigns against what it refers to as ‘the
reform of the criminal justice system. hyper-regulation of everyday life’ states that charities have
been forced to pay £350 million to carry out criminal record
Committee and Editorial Team checks on their volunteer helpers. This is the price of
F.A.C.T. is managed by a national committee who can be
bureaucratic intrusion into the backgrounds of four million
contacted as follows: people who as volunteers set out to help those less fortunate
than themselves. Spokesperson Josie Appleton stated that
Chairman George (jensenijensen@aol.com)
the regulations imposed upon such volunteers is completely
out of all proportion with the everyday nature of their
Secretary Michael (sec@factuk.org)
activities.
02920 777499
Treasurer Ian Just what are these activities; listening to children read, doing
01905 778170 a crossword with an elderly person, helping with the local
church Sunday school etc. Mistrust has become a default
Lobbying Jim
position and those who wish to help are effectively treated as
01873 830493
criminals.
Membership Joy & Ian
01594 529 237 Gloucester Cathedral Flower Guild has been hit by this
Press Vacant nonsense and as a result have refused to have their past lives
examined for convictions and cautions in a revolt that is likely
Prison/Family Support Joy to have them barred from helping in the future. This edict also
01594 529 237 includes those who welcome visitors to the Cathedral or guide
tourists around the building and now precludes the guides from
accompanying visitors into the crypt unless they are in pairs!
Contact and Correspondence
Asked why the flower arrangers need checks the reply was “ If
All correspondence should be sent to:
you are not checked we will have paedophiles infiltrating the
The Correspondence Sec.
flower guild” another ‘reason’ was “It is because we use the
PO Box 3074
Cardiff same toilet as the choirboys, even though the choirboys are
Wales, never in the building at the same time as we are”.
CF3 3WZ
We have become utterly obsessed with the belief that around
every corner there lies in wait some wretched individual who
FACTion:
is determined to abuse any and every child, but the system will
FACTion is produced at approximately bi-monthly
intervals at the national committee’s discretion, and avert such happenings. If you have a clear check that proves
is provided free of charge to F.A.C.T. members. that you are to be trusted with the vulnerable, or does it?
Remember that the woman who abused those children at the
The editorial team welcome articles for publication, Little Ted Nursery was checked and cleared, she was to be
of between 150 and 1,500 words, and letters of not
trusted, until of course it was proved that that was not the case.
more than 200 words. These should be sent,
preferably by email to: faction@factuk.org or by post The ISA consultation meeting held on October 30th 2008 issued
to FACTion, P.O. Box 3074, Cardiff, CF3 3WZ.
a report consisting of twelve paragraphs and the Children,
The editorial team reserve the right to edit any Schools and Families inquiry resulted in a five page (27
article or letter sent for publication. paragraph) report which has been largely ignored and teachers
and their families are still being pilloried as a result of
All submissions must be accompanied by your name
allegations, many of which have no substance whatsoever.
and address which, on request, will be withheld from
publication. The new government has stated that they intend to ‘review’
the requirements of the vetting and barring scheme to
The views contained in FACTion do not necessarily
simplify the system it cannot come too soon nor be too
represent those of F.A.C.T., or its national
committee. exhaustive

Contributors are reminded that FACTion is also

published on the internet and therefore is, George
potentially, available for everyone to read.

Page 2 July 2010

 British Airways Accused of Conference Report
Branding All Men Sex Offenders - update The F.A.C.T. Spring Conference was
again held in Birmingham under the
In our last edition we commented on the case of a businessmen who was
Chairmanship of George Jensen. While
suing British Airways for sex discrimination after a steward forced him to
the attendance was a little lower than
change seats with his pregnant wife because a child he didn’t know was it had been in the past there were two
sitting next to him. excellent speakers. The first was
The BBC have since reported that BA has compensated the businessman Professor Conway, a leading
researcher in memory, and Head of
and have apologised to him, but denied their policy was discriminatory.
the Institute of Psychological Sciences
He complained to the airline by letter and the airline confirmed the policy, at the University of Leeds. Professor
stating it related to adult males travelling alone. He argued that he was Conway explained that about 25 years
being treated differently to female passengers and therefore BA was ago he started researching autobio-
graphical memory (memories for our
breaking the law.
own lives) which at that point wasn’t
Slough Court were told that the businessman said he felt he was treated as investigated at all, but is now one of
if he was a potential child molester. “I felt humiliated and outraged. They the major areas of memory research.
accuse you of being some kind of child molester just because you are Professor Conway gave a very
sitting next to someone.” interesting and stimulating talk based
on a research project Memory and the
BA is understood to have admitted sex discrimination and agreed to pay Law published in 2008 (Revised 2010),
£2,161 in costs and £750 in damages. After the hearing the business man using case examples to illustrate his
said he would donate the damages payout and £2,250 of his own money to point.
the child protection charities Kidscape and Orphans in the Wild. In particular he highlighted several
points:-
Ÿ Memories are records of people’s
Chris Saltrese Solicitors experiences of events and are not
mail@chrissaltrese.co.uk www.chrissaltrese.co.uk/ necessarily a record of the events
themselves. In this respect, they
Chris Saltrese Solicitors is a law firm providing a premium service in representing are unlike other recording media
clients accused of sexual offences and domestic violence, in criminal proceedings. such as videos or audio
We have unrivalled expertise in these areas, both regionally and nationally. recordings, to which they should
not be compared.
Many of our clients face allegations as a result of:
Ÿ Memory is not only of
Ÿ domestic or relationship disputes,
experienced events but is also
Ÿ contact disputes, affected by ones knowledge of life
Ÿ mental health problems, and experiences, i.e. schools,
Ÿ financial incentives occupations, achievements,
failures, etc. As a general rule
and have no prior experience of the criminal justice system. Often these
memory is more likely to be
allegations involve uncorroborated, historic allegations.
accurate when it is of the
In this complex arena specialist legal advice and representation is vital especially as knowledge of a person’s life than
recent changes in the law, designed to convict genuine offenders, also put the when it is of specific experienced
innocent at greater risk of injustice.
events.
We particularly welcome carers, teachers, and health care professionals who have
Ÿ Remembering is a constructive
been accused of abuse and are likely to be subject to a criminal investigation.
process. Memories are mental
Where allegations have been made we would be happy to advise, whether or not constructions that bring together
criminal investigations are underway. different types of knowledge in an
For further information please contact act of remembering. As a
Chris Saltrese Solicitors consequence, memory is prone to
error and is easily influenced by
13 Scarisbrick New Road
the recall environment, including
Southport, PR8 6PU
police interviews and cross-
Phone: 01704 535 512 examination in court.
continued on page 4, col 1

July 2010 Page 3

continued from page 3, col 2
Ÿ Memories for experienced events
are always incomplete. Memories
are time compressed fragmentary
records of experience. Any
account of a memory will feature
forgotten details and gaps, and
this must not be taken as any sort
of indicator of accuracy. Accounts
of memories that do not feature
forgetting and gaps are highly
unusual.
Ÿ Memories typically contain only a
few highly specific details. Detailed
recollection of the specific time
and date of experiences is
normally poor, as is highly specific
information such as the precise
recall of spoken conversations. As
a general rule, a high degree of
very specific detail in a long-term
memory is unusual.
Ÿ Recall of a single or several highly
specific details does not guarantee
that a memory is accurate or even
that it actually occurred. In
general, the only way to establish
the truth of a memory is with
independent corroborating
evidence.
Ÿ The content of memories arises
from an individual’s
comprehension of an experience,
both conscious and non-conscious.
This content can be further
modified and changed by
subsequent recall.
Ÿ People can remember events that
they have not in reality
experienced. This does not
necessarily entail deliberate
deception. For example, an event
that was imagined, maybe a blend
of a number of different events, or
one that makes personal sense for
some other reason, can come to
be genuinely experienced as a
memory, (these are often referred
to as ‘confabulations’).
Following his talk there was a very
lively question and answer session.
A full transcript of Professor Conway’s
talk is available to F.A.C.T. members
from the National Secretary.
Page 4
Satish Sekar
The second speaker was Satish Sekar, an investigative journalist and author of
‘Fitted Up’. Satish started doing miscarriages of justice work over twenty years
ago with the remarkable case of the ‘Cardiff Five’.
A full transcription of Satesh’s talk is available to F.A.C.T. members from the
National Secretary.
“The ‘Cardiff Five’ was the first case in British history which was resolved by
the conviction of the truly guilty after a miscarriage of justice and because of
that, they can’t argue anymore about innocence. It’s not a case that their
convictions were only quashed as being unsafe and unsatisfactory.
Well it took a long time. I started investigating this case in about February of
1991 which was shortly after the wrongful convictions were secured. It took
another almost two years to get the Court of Appeal to quash the convictions.
It was one of these cases where you absolutely knew for certain that it was
going to be overturned because it was unusual. And the unusual part of it isn’t
that it miscarried, what is unusual is so much went wrong in one case.
You find a lot of elements in this particular miscarriage of justice. There was
non-disclosure, there was pressure on witnesses, there was pressure on
suspects, there was alibi evidence that was absolutely ignored. It is now
beyond doubt accepted, one of the men who went to gaol for this crime was
actually working on a ship eight miles away on the night of the murder.
Unfortunately I can’t go into too much detail because this case is now sub
judice.
Right now, I’m just going to give one quote which I found and used that is, I
think, very apt and it is:
“The truth is that more mischief hath come to good men by these kind of
approvements, by false accusations of desperate villains than benefit to the
public by the discovery and convicting of real offenders”.
The reason that quote is so important is threefold: (i) the content of the quote
itself; (ii) the person who said it, and (iii) when it was said.
It was said by Chief Justice Sir Matthew Hale and the time it was said is 1650.
That basically tells you how long this has been going on in terms of
accusations of people who have more to gain than the establishing of the
truth. For one of the most eminent jurists of his time, Chief Justice Hale, to be
saying that tells you how bad the situation was.
How far have we come since then? We still have these kinds of approvements
that Hale wrote so tellingly against. We still have accomplice testimony, we
still have supergrass testimony, we have prison informers.
However you want to look at them, and in your case, you have accusations of
people whose memories have been, well, ‘found’ from somewhere, concocted
in some cases, no doubt.
Now there are questions that need to be asked here because the Police were
totally wrong to have arrested these five men because there was clear
evidence they were innocent. It’s easy to blame South Wales Police for this
miscarriage of justice, they’re the easy target. They have some responsibility
for it but you also have to ask a couple of questions. Why did the CPS not
apply its own Code for Crown Prosecutors. Secondly, if the Police get approval
for prosecutions and if they get convictions using these methods, why would
they change unless you actually tell them, ‘No this is not acceptable, you
continued on page 6, col 1
July 2010
 Dr David Southall Wins Appeal Biblical Justice
Suspended paediatrician Dr. David Southall has won an appeal against the Gener- If a malicious witness comes
al Medical Council in his first step towards restoring his career. forward and accuses someone of a
crime, then both the accuser and
Three Court of Appeal judges ruled that the GMC's fitness to practice panel
accused must appear before the
should give more detailed reasons for finding him guilty of serious professional
LORD by coming to the priests and
misconduct in 2007.
judges in office at that time. The
Dr Southall remains struck off the medical register for child protection work fol- judges must investigate the case
lowing the GMC finding him guilty of serious professional misconduct after it con-
thoroughly. If the accuser has
cluded he had abused his position by accusing a mother of drugging and
brought false charges against his
murdering her son.
fellow Israelite, you must impose
The consultant was instructed as an expert witness and interviewed the mother on the accuser the sentence he
in the presence of a social worker. The mother claimed Dr Southall accused her of intended for the other person. In
murdering her son, an allegation strongly denied by the consultant who insisted this way, you will purge such evil
that he had only raised it as one possible scenario to explain her son's death. The
from among you. Then the rest of
social worker backed the Dr Southall's account but the GMC decided to accept
the people will hear about it and
the evidence of the mother.
be afraid to do such an evil thing.
The Court of Appeal found the GMC panel had not given adequate reasons why it
Deuteronomy 19:16-20 (a modern
chose to accept the mother's evidence over that of Dr Southall and the social
worker. Lord Justice Leveson said: "I would allow this appeal, although I must
translation called The New Living
make it clear that this conclusion is not a condemnation of Mrs M or a vindication Translation).
for Dr Southall and should not be seen as either. On any showing, the panel will
have to consider what penalties should be imposed in relation to the other Mrs Doreen Shalders
proved charges." I'm sure you'll be sorry to learn
Many paediatricians are concerned that the GMC is over-reactive to public opin- that Doreen Shalders died on 14th
ion and the media. They criticise conflicting judicial messages given by the GMC May. Doreen was Andy Shalder's
when in the Baby P case they suspended Dr Al Sabah for not being more wary and mum and a keen supporter of
challenging of parents who might be deceitful, yet they also suspended Dr South- F.A.C.T. when able to travel.
all for doing just that. She passed away peacefully having
In April 2008 doctors attending the annual meeting of the Royal College of Paedi- been admitted to hospital on 12th
atrics and Child Health (RCPCH) showed their support for Dr Southall when they May.
passed a motion stating that, "The College continues to have grave concerns over
We pass on our condolences to
the current GMC procedures in child protection."
family and friends.

McSparran McCormick
McSparran McCormick is a family firm of solicitors based in Glasgow
with a well deserved reputation for its advocacy and for its
friendly, efficient and professional service.

We firmly believe that everyone has a right to justice.

We specialise in educational law, employment law,

adult incapacity law, civil litigation and criminal law.
If you have been falsely or wrongly accused then contact:
McSparran McCormick
Waterloo Chambers, 19 Waterloo Street, Glasgow, G2 6AH
Forthcoming birthdays
Tel: 0141 248 7962
Email: mail@mcsparranmccormick.co.uk HAPPY
Kevin 7th August
Brian 22nd October
When choosing any Solicitor, always make that decision in the
light of the reputation of the Solicitor, his experience and qualifications BIRTHDAY

July 2010 Page 5

continued from page 4
cannot do it this way, this is not
going to be admissible in court’.
Unless there is pressure put on – and
I’m not talking about on the Police –
but also on the CPS. They need to be
held accountable. So I thought, ‘Well,
you know what, I want some answers
to this. Why didn’t you apply your
Code for Crown Prosecutors?’
You also have the issue of the Judge.
Because in a Court of Appeal
judgment they’re very, very careful
not to criticise Mr Justice Leonard,
and fair enough. There were things
he could have done but he’s certainly
not the major villain of this piece. I
would say that the Court of Appeal
did a damage limitation exercise. And
this is the key point. Every single
layer of the criminal justice system
failed and failed miserably in this one
case. And that’s why it is so
important because it is the case that
you turn to when they say, ‘Well,
there’s no smoke without fire’ or
‘They wouldn’t have said this’ and
‘Juries aren’t that impressed’. You
can actually point out, ‘In this case
there were also false memories’.
Memory that was put by these
witnesses as fact in the original trial
but was demolished to such an
extent they were subsequently
convicted of perjury for these same
memories. The key point with all of
this is that there should be far more
accountability by the police and by
others.”
After completing his presentation
Satesh answered numerous
questions from the floor.
Fitted In (1997) is published by The
Fitted-In Project: ISBN 0 - 9527325 - 0 -
5. Price: £10.99 Available from
www.fittedin.com/ or from the author
by email Satish@fittedin.com
Satish Sekar's work has been widely
praised. He also does consultancy work
on legal and forensic science issues. He
has a life-long interest in sport and
justice which culminated in the
foundation of Empower-Sport.
Page 6
Criminal Cases Review Commission
Some thoughts by George Jensen
I have been struck by two fairly recent items of opinion which have appeared in
the media. The first published in The Independent (the sister publication to that
illustrious Sunday newspaper which falsified evidence in the North Wales abuse
investigations and paid dearly in the civil court via the inventiveness of Dean
Nelson). The item to which I refer was dated September 27th 2008 and was a
report of an interview with Professor Zellick, the outgoing chairman of the
Criminal Cases Review Commission (CCRC). The second was taken from the BBC
News Channel on February 10th of this year and was a report based upon the
observations of the incoming chairman of the CCRC who was to replace
Professor Zellick, namely Richard Foster.
Dealing with Professor Zellick’s comments first, one must question why it took
him until he had retired before he gained courage to speak of the apparent
failure of the CCRC to properly carry out its remit. What exactly did Professor
Zellick say? He made observations on a number of aspects of the appeals
procedure. He warned that top Appeal Judges are failing to correct miscarriages
of justice where they suspect the jury has come to a wrong verdict; he went on
to say “The Court of Appeal should order re-trials in cases that have a ‘lurking
doubt’ about the safety of the conviction”. He also warned against ‘very
dubious’ expert evidence, and misquoting Sir William Blackstone (1773 – 1780)
he said that, “It is far better that 10 guilty men go free than one innocent man is
wrongly convicted”. He claimed that when he had raised this argument with
members of the judiciary he had been ‘admonished’ for asking judges to
‘second guess’ the jury. His response apparently was to the effect that we have
a trial by judge and jury, not just a jury. Let us consider that observation by the
Appeal Judges with the statement made by the Government on February 20th
last year:
“It should be noted that, in criminal proceedings, the prosecution must prove
that the accused is guilty beyond reasonable doubt – a very high standard of
proof. Additionally the Judge has the discretion, where the evidence is
uncorroborated and there are concerns that it is unreliable, to warn the jury
to exercise caution when considering it.”
Regretably such warnings are seldom if ever delivered with sufficient authority
to ensure that the jury are conscious of the sometimes obvious shortcomings in
the prosecution case.
We have an additional reason to question the Government’s statement. It is a
matter of popular belief that in any form of trial regarding sexual offences the
approach of the police, Crown Prosecution Service and the Courts is to presume
guilt, you must therefore prove your innocence! The vast majority of the
allegations which have brought men to trial in cases of alleged historic abuse
were uncorroborated. I have never actually heard of any judge advising a jury to
take into consideration that the evidence is uncorroborated. The only form of
corroboration being the allegations made by other plaintiffs, which is wholly
unsatisfactory.
“Where there is reason to believe that a jury has returned a guilty verdict in
the face of contrary evidence, there is nothing to prevent the defendant from
appealing against conviction in the normal way. Additionally it is not the case
that the Court of Appeal Criminal Division requires fresh evidence to allow an
appeal” (Government spokesperson).
July 2010
There are several aspects of this I can find little evidence that he
statement which will strike a was bold in sifting out miscarriages
familiar chord with many men of justice when he was the Chief
who have been convicted. There Executive at the CPS, and that
are in fact a number of things does not exactly fill me with
that preclude an appeal; the little
delight or enthusiasm. My advice
matter of convincing the single
to him would be to read two
judge of the rightness of one’s
case; the almost impossible task documents which might give him
of convincing the CCRC of the cause to be genuinely bolder.
integrity of one’s case, and the Firstly the report of the Home
insistence that there must be new Affairs Select Committee 2002,
evidence. This latter requirement (HC836) into ‘The Conduct of
has been pursued by both the Investigations into Past Cases of
appeal court and by the CCRC in an apparent total contradiction of the Abuse in Residential
statement made by the Government which is reproduced above. Establishments’ and secondly the
The final point that I would make regarding the opportunity for appeal is the excellent and extremely well
delay which is experienced by men who have been convicted and imprisoned. It researched book, ‘The Secret of
would appear that if an individual is subject to a lengthy prison sentence, it is Bryn Estyn’ by Richard Webster.
the signal for delay, the apparent attitude being that he/she is not going
I regret to say that in the future
anywhere for the next few years, so why hurry!
there is the possibility of media
I turn now to the statement made by the new head of the CCRC, Richard Foster, intrusion into the courts. Mr
previously the Chief Executive of the Crown Prosecution Service. He claims that Foster is in favour of TV coverage
he wants to be ‘bolder’ about challenging cases, “we shall go as far as we prop- whilst the new Director of Public
erly can” to refer case to the Appeal Court. We shall see! It is interesting to con-
Prosecutions, Kier Starmer Q.C is
sider that statement with the report I have submitted on the CCRC conference
in favour of broadcasts. The
(see page 12)!
possible saving grace is that the
In the year 2007 – 2008, the total number of referrals made to the CCRC was Justice Secretary, Jack Straw (at
1,087 cases. Of this number only 27 were referred to the Appeal Court. This
present) is not in favour of either,
was the lowest number since the CCRC was set up in 1997; less than 3%!
whether the new government will
If you are sitting in prison awaiting the CCRC to consider your case you may pursue this is questionable.
wait a long time, given that Richard Foster continues to quote the mantra: “The GAJ
CCRC has the power to refer case to the Court of Appeal where there is a ‘real
possibility’ that the conviction will be overturned or the sentence reduced”. Keran Henderson
From experience I know it is extremely difficult to persuade the CCRC that one Loses Appeal
has a legitimate case to refer. Unfortunately the Court of Appeal
The CCRC’s interpretation of its referral criteria is determined by this governing has today (17 June) dismissed the
statute: the CCRC can only refer convictions back to the appeal courts if it is felt appeal against conviction of Keran
that there is a “real possibility” that the conviction will not be upheld. Henderson who was convicted of
This binds the CCRC to the criteria of the appeal courts, putting it in the role of the manslaughter of 11 month-old
second-guessing what the Appeal Court may make of a referral, and preventing Maeve Sheppard on 13 November
independent investigations into applications to determine whether applicants 2007.
could be actually innocent. As it clearly states on the CCRC’s website, “The CCRC
do not consider innocence or guilt, but whether there is new evidence or argu- Jim Watts Awaiting
ment that may cast doubt on the safety of an original decision.” (see my report Appeal Court Decision
on the CCRC stakeholders conference).
The Appeal Court has reserved its
Mr Foster continues by quoting some of the cases which have been referred, judgement in the case of Jim
they are almost without exception cases of universal publicity and where the Watts whose appeal was heard of
entire country is aware of the case in question. the 8th July.
He goes on to state, “Might we be a bit more bolder still? Well I’m quite a bold The Court Room was packed with
person by nature and I will be talking to people and encouraging them to be as many supporters and friends.
bold as we possibly can”. A decision is expected shortly.

July 2010 Page 7

 Time to Be Heard
The chair of a panel set up to
acknowledge and record accounts of
abuse in residential child care in
Scotland has defended its approach
over fears it will exclude some victims
and lead to false allegations being
made.
Tom Shaw, former Chief Inspector of
Education & Training in Northern
Ireland, is to head up a three person
pilot forum, dubbed Time to be Heard.
The forum will invite 100 former
residents of homes run by the charity
Quarriers to come forward and tell
their stories, to test the format.
However Mr Shaw and government
officials have faced criticism over the
pilot scheme amid claims that it has
been watered down, with the
“accountability” element dropped and
that it will be too close to government.
David Whelan, spokesman for Former
Boys and Girls Abused of Quarriers
Homes (FBGA) said the forum would
not provide what his group wished to
see – proper accountability for
organisations which had been
responsible for historic abuse.
He said: “I am concerned this process
is just a talking shop and we don’t
want that. Just going to talk about
things is not going to resolve any
issues. Institutions need to take on full
responsibility for what occurred.”
He added that many former Quarriers
residents were concerned that the
format would encourage false claims,
which would devalue the stories of
genuine abuse survivors. “The process
needs to be robust and to ask
questions. It has to be credible.”
Last month the Scottish Centre for
Human Rights said that the
government should develop a
reparations programme which
included compensation for individuals
affected by historic childhood abuse
and look at developing laws to
encourage apologies by institutions.
Mr Whelan said the FBGA welcomed
the SCHR report and called for it to be
implemented in full.
Page 8
Children’s Home Critic Jailed For Sex Attacks
A charity boss who gave evidence to the Home Affairs Select Committee in 2002
when they examined issues to do with past abuse in children’s homes has
admitted making nearly 9,000 child porn images.
Matthew Byrne, 38, faced a total of 32 charges including rape, false
imprisonment and violent sex attacks on seven different women.
He was jailed indefinitely for a sadistic “campaign of violence” against
prostitutes.
Byrne came to prominence when as Project Co-ordinator he represented Fire
and Ice, a Merseyside based victim support group who were very vocal during
the North Wales and North West children homes scandals. Byrne was regarded
as a “leading light” of Liverpool as the boss of the Young Person’s Advisory
Service.
Byrne, who was ordered to serve a minimum of three-and-a-half years behind
bars, was finally brought to justice after he was caught photographing young
girls. When police raided his home they discovered he had turned a front
bedroom into a secret sex chamber and had a vast collection of obscene pictures
of children, as well as violent pornography.
Alistair Edie, defending, said Byrne accepted he had been “out of control” in his
desperation for sexual gratification.
Byrne admitted five counts of sexual assault as well as nine charges of
possessing nearly 9,000 indecent images of children and a further charge of
outraging public decency.
In 2002 Byrne gave evidence to the Home Affairs Select Committee who were
examining issues to do with past abuse in childrens’ homes
“My name is Matthew Byrne from an organisation called Fire and Ice. Fire and
Ice is a Merseyside-based, self-help project run by and for adult men who have
experienced child abuse, especially those who have suffered abuse in child care
institutions. We support men who have experienced abuse and their families by
Clarke and Hartland
029 2048 3181
Solicitors www.clarkeandhartland.co.uk
48 The Parade
Roath enq@clarkeandhartland.co.uk
Cardiff, CF24 3AB
Clarke and Hartland Solicitors are a well established firm of solicitors based in
Cardiff with over 20 years legal experience.
We provide a range of legal services and also specialise
in CRIMINAL DEFENCE work.
We have developed a reputation for excellence throughout
Cardiff and the surrounding area.
We offer personal attention with a professional,
friendly, reliable and efficient service and competitive rates.
We provide high quality legal services which you can rely on.
Clarke and Hartland have successfully defended a number
of cases where allegations have been made against
carers, teachers, and other professionals.
July 2010
providing a one-to-one service with group support, publishing material and Case Law - Appeal
acting as a group focus for them to empower them. Our group has two clear
aims. We aim to enable men who have experienced child abuse and their
Compensation
families to make positive change to their lives. We also aim to make the care Supreme Court Hearing
experience safe for children and young people today. Over the past two years we AB v Nugent Care Society: GR v
have been operating, we have supported over 300 men and their families across Wirral Metropolitan Borough
Merseyside, most of whom have experience of Operation Care, Operation Van Council [2009] EWCA Civ 827
Gough and Operation Granite”. These cases concern issues about
Mr Byrne was scathing in his criticism of residential child care and adamantly the extent to which compensation
refused to acknowledge that false allegations might have been made. At one should be provided (or limited) in
point he said that he knew of no one who had made a false allegation. He also cases where there are allegations of
insisted there was no link between the possibility of financial compensation and sexual abuse at children’s homes.
false allegations and was very dismissive of the influence of recovered memories In the first case, the defendant was a
on the investigative process. Roman Catholic organisation running
“Everybody who has walked into Fire and Ice and who has wanted to make homes and in the second case the
contact with Fire and Ice was abused. We believe they were abused. That is what defendant was a local authority.
our project is based upon. We do not seek any more information than that Both were being sued for negligence
because our project is built upon the support needs, to make sure that those arising out of the claims of sexual
individuals can go and lead positive lives, despite what has happened to them abuse, which had allegedly occurred
while in the care of the local authority”. in the 1970s.
In what must now seem to be somewhat ironic Mr Byrne was asked why The appeal arose in a group action in
individuals did not make complaints at the time of their alleged abuse and what which there are a total of over 50
he thought of “trawling”. claimants, some of whom were at St
“I believe that an innocent child who had experienced this kind of abuse in a care Aidan’s and some of whom were at a
establishment in the Merseyside region had nowhere to go with these similar institution called St Vincent’s
experiences. He could not even trust an adult and resented the power and the in Formby.
authority that abused him. That is quite significant. If you are abused by power In a complex judgment Lord Clarke
and authority, you are hardly going to walk into a police station or go to reviews the operation of ss14 and 33
somebody else and say, "Let me tell you about my child abuse. You are going to of the Limitation Act 1980 in the
show it in other ways...” light of the recent Lords decision in
“The effects of what we call the knock on the door by the policeman who wants A v Hoare. He starts by considering
to start talking about your time in a home are not about pressure but about, in the relevant principles and case law
our case, the man himself—in other cases the survivor—putting that into context and then goes on to review the facts
with his whole life. On reflection, it is one of the most damaging things that can of each appeal. In the first case, he
happen. It is not about fabricating evidence to lock up somebody you did not agrees with the trial judge’s exercise
particularly like in the children's home but about having to engage for the first of discretion, allowing two of the
time in 20 or 30 years with something that you have tired to hide, about which three claimants to pursue their
you have been embarrassed.” claims. In the second case, he also
found that the Judge had been
“When a policeman knocks on that door, he takes you back to being a 10 year
correct to find that the claimants
old boy in a children's home, frightened and scared about what is going to
had knowledge of their injuries at an
happen to you the next time. You have to deal with that. Trawling might be one
earlier date so the cases fell into the
of the most effective ways to do this but the trawling must be done with an
discretion offered under s33 rather
insight into how victims of child abuse can get the best out of it and can best be
than that under s14.
supported.”.
The Supreme Court ruled that in the
It is clear that Mr Byrne was harbouring dark secrets of his own. What is
Nugent Care Society case Irwin J was
scandalous about his situation is that he not only used genuine victims of abuse
correct to hold that DVB had
as a cover for his predilections but also the good name of Fire and Ice and the
significant knowledge such that he
many care workers in the Northwest and elsewhere who, what ever he says,
failed to bring his claim within the
have been falsely accused of child abuse. F.A.C.T takes no pleasure in his
primary limitation period. On the
conviction and is saddened that he did not use his talents to better effect.
other hand, although Irwin J
continued on page 11

July 2010 Page 9

 Judge rules fair trial
not possible
Alleged abuse too far in the past
says Judge
For the first time, a judge has barred a
claim on the grounds that a fair trial
could not be held because the case
was brought so long after the events
complained of.
In a case involving Wirral Council the
claimant alleged abuse by her mother
and step-father and that the local
authority had failed to protect her
from the abuse by failing to take her
into care.
Kathy Perrin, lawyer for Wirral local
authority, said the ruling was
potentially of significant benefit to
local authorities.
"Local authorities continually face
claims from adults who allege that they
were neglected or abused at home and
that the authority ought to have taken
them into care," she said. "The alleged
consequences are often serious
psychiatric conditions caused by the
abuse, with an impact on educational
attainment and earnings potential –
the claims can be high value."
Perrin said in the past local authorities
had had trouble mounting defences in
such cases as witnesses such as social
workers involved at the time were
usually retired or deceased and
records had often been lost.
"In the past, courts have been
reluctant to accept the defence that
it's not possible to hold a fair trial so
long after the alleged abuse. However,
as a result of this most recent trial,
local authorities now have an
authoritative reference to assert this
defence in other cases."
Claimants abused as children have
until their 21st birthday to bring a
claim or until they are 23 if they can
establish a later date of knowledge.
After that the court has discretion to
allow them to proceed provided the
judge considers there can still be a fair
trial.
Extracted from Community Care 12th Feb
2010. Author Molly Garboden
Page 10
F.A.C.T. AGM
The F.A.C.T. AGM will take place in Birmingham on Saturday 11th of September
and will be followed by its annual Autumn Conference. Details of the speakers
will be announced shortly.
This year a number of vacancies on the national committee will occur. Michael
has indicated he will not be standing as National Secretary but hopes to
continue in some other role and to retain responsibility as the co-ordinating
editor of FACTion and of F.A.C.T’s website.
The national committee has also been informed that Michael will no longer be
able to provide representation to F.A.C.T. members and that different
arrangements will have to be made for the help-line.
Speaking after the recent national committee meeting Michael said that he no
longer finds it possible to keep up with the demands of a universal phone help-
line and that some new arrangements will be necessary. It is hoped that it will
be possible to filter help line requests through the web site which will be
developed to contain better information and advice for those who need it.
Most of those who access the help-line do so via the F.A.C.T. web site so
hopefully those who need information or advice will still be able to obtain it.
Contact will still be possible through PO Box 3074
George has also given advance notice that he intends to stand down as
Chairman this year. George kindly agreed to be Chairman for 12 months last
year. Like Michael both he and his wife Iris who has acted as Correspondence
and Minute Secretary have suffered ill heath this past year and have been
advised to cut down their activities.
The National Committee is grateful that Michael, George and Iris have been
able to give advance notice of their intentions and would be pleased to speak to
any F.A.C.T. member who would be interested in assisting with general
administration or taking on a specific role, such as liaison with the Press and
Media and/or Government Agencies and statutory bodies, or in any Committee
vacancy. For further details please contact any Committee member.
CrimeTeam
We specialise in all aspects of criminal defence work including
Magistrates Courts, Crown Court Advocacy, High Court, including
the Court of Appeal and referrals to the CCRC
We also advise UK wide on prison law including:-
Ÿ Prison Adjudications Ÿ Tariff Representation
Ÿ Sentence Planning Ÿ Lifer panels
Ÿ Re-Categorisation Ÿ Human Rights Issues
We are the managing firm of the Historical Abuse Appeal Panel
(HAAP) and have an unrivalled reputation for dealing with
abuse allegations in a historical context, especially those where
multiple or serious sexual offences are alleged to have taken place.
Crime-Team is a division of Jordans LLP
4 Priory Place, Doncaster, DN1 1BP
01302 365 374
July 2010
 continued from page 9
For the Common Good
misdirected himself in one respect,
Four Ways to Fix a Broken Legal System
he was right to exercise the
The land of the free has become a legal minefield, says Philip K. Howard --
discretion of the court under section
especially for teachers and doctors, whose work has been paralyzed by fear of
33 of the 1980 Act to permit JPM to
suits. What's the answer? An American lawyer has four propositions for
continue with his actions. He was
simplifying US law.
entitled to do the same in the case
I have always been interested in the relationship of formal structures and human of DVB. It follows that, as regards
behaviour. If you build a wide road out to the outskirts of town people will move JPM and DVB, the appeals of the
there. Well, law is also a powerful driver of human behavior. And what I'd like to defendant in the Nugent Care
discuss today is the need to overhaul and simplify the law to release the energy and Society case must be dismissed.
passion of Americans so that we can begin to address the challenges of our society.
The Supreme Court also ruled that In
A couple of years ago I was hiking near Cody, Wyoming. It was in a grizzly bear
the Wirral case the Judge was
preserve, although no one told me that before we went. And our guide was a local
correct to hold that the claimant had
science teacher. She was wholly unconcerned about the bears, but she was terrified
significant knowledge such that he
of lawyers. The story started pouring out. She'd just been involved in an episode
failed to bring his claim within the
where a parent had threatened to sue the school because she lowered the grade of
primary limitation period but he was
the student by 10 percent when he turned the paper in late. The principal didn't
want to stand up to the parent because he didn't want to get dragged into some also entitled to exercise his
legal proceedings. So, she had to go to meeting after meeting, same arguments discretion under section 33 to allow
made over and over again. After 30 days of sleepless nights she finally capitulated, the claimant’s claim to proceed. It
and raised the grade. She said, "Life is too short, I just can't keep going with this." follows that both parties’ appeals
are dismissed.
About the same time, she was going to take two students to a leadership conference
in Laramie, which is a couple of hours away, and she was going to drive them in her For further details see
car, but the school said, "No, you can't drive them in the car for liability reasons. You www.familylawweek.co.uk/site.aspx
have to go in a school bus." So, they provided a bus that held 60 people and drove ?i=ed38112
the three of them back and forth several hours to Laramie.
Her husband is also a science teacher, and he takes his biology class on a hike in the
nearby national park. But he was told he couldn't go on the hike this year because Watson Woodhouse
one of the students in the class was disabled, so the other 25 students didn't get to
Solicitors
go on the hike either. At the end of this day I could have filled a book just with stories
Norfolk Place
about law from this one teacher.
Berwick Hills
Now, we've been taught to believe that law is the foundation of freedom. But
somehow or another in the last couple of decades the land of the free has become a Middlesbrough
legal minefield. It's really changed our lives in ways that are sort of imperceptible. TS3 7PB
And yet, when you pull back, you see it all the time. It's changed the way we talk. I
was talking to a pediatrician friend in North Carolina. He said, "Well you know I don't 01642 247656
deal with patients the same way anymore, you wouldn't want to say something off Ranked as a leading criminal
the cuff that might be used against you." This is a doctor, whose life is caring for
solicitors in the North East
people. My own law firm has a list of questions that I'm not allowed to ask when
interviewing candidates. Such as the sinister question, bulging with hidden motives Criminal Law
and innuendo, "Where are you from?" (Laughter) Prison Law
Now for 20 years, tort reformers have been sounding the alarm that lawsuits are out Actions Against
of control. And we read every once in while, about these crazy lawsuits, like the guy the Police
in the District of Columbia who sued his dry cleaners for 54 million dollars because
they lost his pair of pants. The case went on for two years. I think he's still appealing
Personal Injury
the case. Family, Housing and
But the reality is, these crazy cases are relatively rare. They don't usually win. And Mental Health
the total of direct tort cost in this country is about two percent, which is twice as
much as in other countries. But, as taxes go, hardly crippling. But the direct costs are We also provide a 24 hour,
really only the tip of the iceberg. 7 days a week response to any
What's happened here, again, almost without our knowing, is, our culture has client arrested and seeking
changed. People no longer feel free to act on their best judgment. So, what do we do assistance in the Police Station.
Continued on page 12

July 2010 Page 11

 continued from page 11
about it? We certainly don't want to
give up the rights, when people do
something wrong, to seek redress in
the courts. We need regulation to
make sure people don't pollute and
such. We lack even a vocabulary to
deal with this problem. And that's
because we have the wrong frame of
reference.
We've been trained to think that the
way to look at every dispute, every
issue, is a matter of kind of individual
rights. And so we peer through a legal
microscope, and look at everything. Is
it possible that there are extenuating
circumstances that explain why Johnny
turned his paper in late in Cody,
Wyoming? Is it possible that the
doctor might have done something
differently when the sick person gets
sicker. And of course the hindsight bias
is perfect. There is always a different
scenario that you can sketch out
where it's possible that something
could have been done differently.
And yet, we've been trained to squint
into this legal microscope, hoping that
we can judge any dispute against the
standard of a perfect society, where
everyone will agree what's fair, and
where accidents will be extinct, risk
will be no more. Of course this is
Utopia, it's a formula for paralysis, not
freedom. It's not the basis of the rule
of law, it's not the basis of a free
society. So, now I have the first of four
propositions I'm going to leave with
you about how you simplify the law.
You've got to judge law mainly by its
effect on the broader society, not
individual disputes. Absolutely vital.
So, let's pull back from the anecdote
for a second and look at our society
from high above. Is it working? What
will the macro data show us? Well, the
healthcare system has been
transformed. A culture pervaded with
defensiveness. Universal distrust of
the system of justice. Universal
practice of defensive medicine. It's
very hard to measure because there
are mixed motives. Doctors can make
more on ordering tests sometimes.
continued on page 14 col 1
Page 12
CCRC Stakeholders Conference
Miscarriages of Justice
F.A.C.T was kindly invited by the CCRC to attend special one-day stakeholders’
conference on miscarriages of justice on Tuesday 30 March, 2010 in
Birmingham.
On arriving, the one factor which had caught my immediate attention was the
title of the conference: Was this for real, some official body admitting
miscarriages of justice do actually occur? I recalled that the Government
response to the HASC report of October 2002 was to question the meaning of
the term ‘miscarriage of justice’, and then went on to use those same words
later in their response!
However, I digress; the day was both interesting and informative and for me at
any rate brought into focus some of the factors which I had previously failed to
properly understand; and of course brought some new confusion!
The speakers were;
Professor Cheryl Thomas, Faculty of Law, University College London who
addressed the topic ‘Are Juries Fair’? This lecture was based on research carried
out and published in a book of the same title.
Dr Stephanie Roberts, School of Law, University of Westminster; who spoke on
the subject ‘Innocence and Safety’.
There was an opportunity for a question and answer period after each of the
speakers which was followed by coffee;.
The third speaker of the morning was;
Gerry Sinclair, Chief Executive of the Scottish Criminal Cases Review Commission
who spoke on, ‘The CCRC Test’ and drew the differences between the Scottish and
English Commissions.
The Question and Answer session of this address was followed by a panel
discussion which in reality was an opportunity to ask questions on any allied subject
to the panel which comprised; David Jessel, a commissioner from the CCRC who
was the Chairman for the day – Lord Justice Hooper from the Court of Appeal
-Professor Cheryl Thomas –Dr Stephanie Roberts – Gerry Sinclair and Ben Seamarks
Case review Manager, CCRC.
The afternoon session was entitled ‘How Effective is the Commission’, and it is
necessary and fair to say that there was considerable constructive criticism of the
CCRC from both practitioners (solicitors) and academics. The first speaker was;
Laurie Elks, author of Righting Miscarriages of Justice, posed the question ‘Does
the CCRC refer as many cases as it should?’
The final speaker for the day was Campbell Malone, Chairman of the Criminal
Appeal Lawyers Association who offered ‘A Practitioners Perspective’.
The last session of the day was a second panel, this being composed of; David
Jessel- Lord Justice Hooper, Laurie Elks, Campbell Malone, Dr Hannah Quirk
(School of Law, Manchester University), and David Robinson, Case Review
Manager CCRC.
You will I believe, see that this was a very long but valuable day for your
representatives, and I am pleased to inform you that both asked what we believed
to be pertinent questions which because of limitations on space I will not repeat
in this article, there being far more important matters to bring to the attention of
readers.
July 2010
 I shall start with a matter which has been the source of much criticism of the CCRC most simplistic level, the appellant is
over the years, that is that the CCRC must second guess the appeal court when arguing the jury made a mistake and
considering whether or not to refer a case to that court. The CCRC are restricted he or she was wrongly convicted.
in law with regard to the terms under which a referral may be made to the appeal These grounds necessarily involve the
court. The scope of the commission’s remit is set out in section 13 of the 1995, Court to some extent trespassing on
Criminal Appeal Act. This sets out the test for referral; the role of the jury and the difficulty
(1) A reference of a conviction, verdict, finding or sentence shall not be made comes from determining how far the
under any of sections 9 to 12 unless;- Court are allowed or should be
allowed to do this”.
(a) The Commission considers that there is a real possibility that the
conviction,verdict, finding or sentence would not be upheld were the Dr Roberts discussed the concept of
reference to be made. the ‘lurking doubt’ which was created
by Lord Justice Widgery in 1968 and
(b) The Commission so consider;-
requires the Appeal Court (or the
(i) in the case of a conviction, verdict or finding, because of an CCRC) to form a subjective view about
argument , or evidence, not raised in the proceedings which the correctness of the jury’s verdict.
led to it or on any appeal, or application for leave to appeal This does not require any criticism of
against it, or the trial and that where there is no
(ii) in the case of a sentence, because of an argument on a point new evidence there is a question
of law, or Information, not so raised, and an appeal against hanging over the conviction which
the conviction, verdict, finding or sentence has been may require to be examined most
determined or leave to appeal against it has been refused. closely.
(2) Nothing in subsection (1) (b) (i) or (c) shall prevent the making of a reference I must strongly emphasize that I am
if it appears to the Commission that there are exceptional circumstances not legally qualified and the above is
which justify making it. simply my lay understanding of the
Readers will note that the requirement of 1(a) effectively determines that the matters which were addressed at the
commission cannot refer unless there is reason to believe that the appeal court conference and which I believe will be
will in fact uphold the appeal. In effect the case review manager has very little of interest to those of our members
discretion on whether he/she will refer a case. (Though one may make a personal who have been the subject of such
submission/application to the CCRC it is, in view of the restrictive test which must experiences at the hands of either the
be applied, advisable to seek the services of a qualified and experienced appeal Court or the CCRC.
solicitor). George.
I shall start with a point which has caused me some considerable concern over
the years, that is the Appeal Court’s judgement of ‘unsafe’. As I understand it the Apologies
role of the Appeal Court is not to find guilt or innocence but to examine the detail We apologise for the delay in
presented before it and determine whether, given the evidence at the trial, the sending out FACTion on time but
jury came to a proper decision. If there is overwhelming evidence that the this has been due to the
appellant is innocent (DNA for example which proves unquestionably that the unexpected illnesss of key
personnel. Our next FACTion will
defendant could not have committed the offence) then the court judgement will
appear shortly after the AGM and
be to that effect, otherwise if the court is of the opinion that there is some doubt
Autumn conference.
then it will make the unsafe judgement.
As it clearly states on the CCRC’s website, the CCRC “do not consider innocence AGM and Conference
or guilt, but whether there is new evidence or a new argument that may cast
The Autumn conference and AGM
doubt on the safety of an original decision”. will be on Saturday 11th
Turning to the address to the conference by Dr Stephanie Roberts whose subject September. Details of the AGM will
‘Innocence and safety’ was most revealing and was based on her research the be sent out in mid August.
findings of which appeared in the Justice Journal No.86.
In her introduction she states, “Although the Court of Criminal Appeal was Christmas Gathering
originally created in 1907 it was amended by the Criminal Appeal Act 1966 (s1), Our Annual Christmas Gathering
to remedy wrongful convictions, the general feeling has been that it has never and vigil will take place in
fulfilled this function. The main difficulties associated with the Court have Birmingham on Saturday 11th
stemmed from its function in deciding appeals on factual grounds where, at its December.

July 2010 Page 13

continued from page 12..
And also they no longer even know
what's right or wrong. But reliable
estimates raise between 60 billion and
200 billion dollars per year. That's
enough to provide care to all the
people in America, who don't have it.
The trial lawyers say, "Well this legal
fear makes doctors practice better
medicine." Well that's been studied
too, by the Institute of Medicine and
others. Turns out that's not the case.
The fear has chilled professional
interaction so thousands of tragic
errors occur because doctors are
afraid to speak up, "Are you sure
that's the right dosage?" Because
they're not sure, and they don't want
to take legal responsibility.
Let's go to schools. As we saw with
the teacher in Cody, Wyoming, she
seems to be affected by the law.
Well it turns out the schools are
literally drowning in law. You could
have a separate section of a law
library around each of the following
legal concepts. Due process, special
education, no child left behind, zero
tolerance, work rules. It goes on. We
did a study of all the rules that affect
one school in New York. The board of
ed had no idea. Tens of thousands of
discreet rules, 60 steps to suspend a
student from school. It's a formula
for paralysis. What's the effect of
that? One is a decline in order.
Again, studies have shown it's
directly attributable to the rise of
due process. Public agenda did a
survey for us a couple of years ago
where they found that 43 percent of
the high school teachers in America
say that they spend at least half of
their time maintaining order in the
classroom. That means those
students are getting half the learning
they're supposed to, because if one
child is disrupting the class no one
can learn. And what happens when
the teacher tries to assert order?
They're threatened with a legal
claim. We also surveyed that. 78
percent of the middle and high
Page 14
school teachers in America have been threatened by their students with
violating your rights with lawsuits by their students. They are threatening their
students. It's not that they usually sue. It's not that they would win, but it's an
indication of the corrosion of authority.
And how has this system of law worked for government? It doesn't seem to be
working very well does it? Neither in Sacramento nor in Washington. The other
day at the State of the Union speech, President Obama said, and I think we could
all agree with this goal, "From the first railroads, to the interstate highway
system, our nation has always been the first to compete. There is no reason
Europe or China should have the fastest trains." Well, actually there is a reason,
environmental review has evolved into a process of no pebble left unturned for
any major project taking the better part of a decade, then followed by years of
litigation, by anybody who doesn't like the project.
Then, just staying above the Earth for one more second, people are acting like
idiots, (Laughter) all across the country. (Applause) Idiots. A couple of years ago,
Broward county, Florida, banned running at recess. (Laughter) That means all
the boys are going to be ADD. I mean it's just absolutely a formula for failure.
My favorite though, are all the warning labels. Caution, contents are hot, on
billions of coffee cups. Archeologists will dig us up in a thousand years and they
won't know about defensive medicine and stuff, but they'll see all these labels,
contents are extremely hot. They'll think it was some kind of aphrodisiac. That's
the only explanation. Because why would you have to tell people that something
was actually hot? My favorite warning was one on a five inch fishing lure. I grew
up in the south and whiled away the summers fishing. Five inch fishing lure, it's a
big fishing lure, with a three pronged hook in the back, and outside it said,
"Harmful if swallowed." (Laughter)
So, none of these people are doing what they think is right. And why not? They
don't trust the law. Why don't they trust the law? Because it gives us the worst
of both worlds. It's random. Anybody can sue for almost anything and take it to a
jury. Not even an effort at consistency. And it's also too detailed. In the areas
that are regulated, there are so many rules no human could possibly know it.
Well how do you fix it? We could spend 10,000 lifetimes trying to prune this
legal jungle. But the challenge here is not one of just amending the law. Because
the hurdle for success is trust.
People, for law to be the platform for freedom, people have to trust it. So, that's
my second proposition. Trust is an essential condition to a free society. Life is
complicated enough without legal fear. But law is different than other kinds of
uncertainties. Because it carries with it the power of state. And so the state can
come in. It actually changes the way people think. It's like having a little lawyer
on your shoulders all day long, whispering in you ear, "Could that go wrong?
Might that go wrong?" It drives people from the smart part of the brain that
dark, deep well of the subconscious, where instincts and experience, and all the
other factors of creativity, and good judgment are. It drives us to the thin veneer
of conscious logic.
Pretty soon the doctor is saying, "Well, I doubt if that headache could be a
tumor, but who would protect me if it were, so maybe I'll just order the MRI."
So, then you've wasted 200 billion dollars in unnecessary tests. If you make
people self conscious about their judgments, studies show you will make them
make worse judgments. If you tell the pianist to think about how she's hitting
the notes when she's playing the piece, she can't play the piece. Self
consciousness is the enemy of accomplishment. Edison stated it best. He said,
"Hell, we ain't got no rules around here, we're trying to accomplish something.
July 2010
So, how do you restore trust? Tweaking the law is clearly not good enough. And everybody, not just on the
tort reform, which is a great idea, lowers your cost if you're a business person, disgruntled person. You can't run a
but it's like a band-aid on this gaping wound of distrust. States with extensive society by the lowest common
tort reform still suffer all these pathologies. So, what's needed is not just to denominator.
limit claims, but actually create a dry ground of freedom. It turns out that So, what's needed is a basic shift in
freedom actually has a formal structure. And it is this: law sets boundaries, and philosophy. We can pull the plug on
on one side of those boundaries are all the things you can't do or must do. You a lot of this stuff if we shift our
can't steal. You've got to pay your taxes. But those same boundaries are philosophy. We've been taught that
supposed to define and protect a dry ground of freedom. authority is the enemy of freedom.
Isaiah Berlin put it this way, "Law sets frontiers, not artificially drawn, within It's not true. Authority, in fact, is
which men shall be inviable." We've forgotten that second part. Those dikes essential to freedom. Law is a
have burst. People wade through law all day long. So, what's needed now is to human institution. Responsibility is a
rebuild these boundaries. And it's especially important to rebuild them for human institution. If teachers don't
lawsuits. Because what people can sue for establishes the boundaries for have authority to run the classroom,
everybody else's freedom. If someone brings a lawsuit over, a kid fell off the to maintain order, everybody's
seesaw, it doesn't matter what happens in the lawsuit, all the seesaws will learning suffers. If the judge doesn't
disappear. Because no one will want to take the risk of a lawsuit. And that's have the authority to toss out
what's happened. There are no seesaws, jungle gyms, merry-go-rounds, unreasonable claims then all of us go
climbing ropes, nothing that would interest a kid over the age of four, because through the day looking over our
there is no risk associated with it. shoulders. If the environmental
So, how do we rebuild it? Life is too complex for a software program. All these agency can't decide that the power
choices involve value judgments, and social norms, not objective facts. And so lines are good for the environment,
here is the fourth proposition. This is what we have, the philosophy we have to then there is no way to bring the
change to. And there are two essential elements of it. We have to simplify the power from the windfarms to the
law. We have to migrate from all this complexity towards general principles and city. A free society requires red lights
goals. The constitution is only 16 pages long. Worked pretty well for 200 years. and green lights, otherwise it soon
descends into gridlock. That's what's
Law has to be simple enough so that people can internalize it in their daily
happened to America. Look around.
choices. If they can't internalize it they won't trust it. And how do you make it
simple? Because life is complex. And here is the hardest and biggest change. So, what the world needs now, is to
We have to restore the authority to judges and officials to interpret and apply restore the authority to make
the law. (Applause) We have to rehumanize the law. To make law simple so common choices. It's the only way to
that you feel free, the people in charge have to be free to use their judgment to get our freedom back. And it's the
interpret and apply the law in accord with reasonable social norms. As you're only way to release the energy and
going down, and walking down the sidewalk during the day you have to think, passion needed so that we can meet
that if there is a dispute, there is somebody in society who sees it as their job to the challenges of our time. Thank
affirmatively protect you if you are acting reasonably. That person doesn't exist you. (Applause)
today. Attorney Philip K. Howard founded the
nonpartisan group Common Good to
This is the hardest hurdle. It's actually not very hard. 98 percent of cases this is combat this culture and reform several key
a piece of cake. Maybe you've got a claim in small claims court for your lost pair areas of the US legal system. Among
of pants for $100, but not in a court of general jurisdiction for millions of Common Good’s suggestions: specialized
dollars. Case dismissed without prejudice or refiling in small claims court. Takes health care courts, which would give lower
five minutes. That's it. It's not that hard. but smarter awards, and a project with the
NYC Board of Ed and the Teachers Union to
But it's a hard hurdle because we got into this legal quicksand because we woke overhaul the disciplinary system in New
up in the 1960s to all these really bad values, racism, gender discrimination, York public schools. He recently founded
pollution. They were bad values. And we wanted to create a legal system where New Talk, with the mission to foster
no one could have bad values anymore. The problem is, we created a system productive, nonpartisan discussion on even
more tough issues -- economics, health
where we eliminated the right to have good values. It doesn't mean that people
care, government. This speech and other
in authority can do whatever they want. They are still bounded by legal goals like it can be accessed at www.ted.com
and principles. The teacher is accountable to the principal. The judge is Reproduced with permission.
accountable to an appellate court. The president is accountable to voters. But Ed Note: We would be very pleased to have
the accountabilities up the line judging the decision against the effect on your comments on any aspect of this
speech.

July 2010 Page 15

continued from front page, col 1
scheme including criminal records regimes, with a scaling
back to “common-sense levels”
With immediate effect the commencement of voluntary
registration with the new Vetting and Barring Scheme
(VBS) in England, Wales and Northern Ireland, which was
due to begin on 26 July, will be brought to a halt.
Mrs May told the BBC that the measures were
“draconian”.
“You were assumed to be guilty until you were proven
innocent, and told you were able to work with children,”
she said.
“All sorts of groups out there were deeply concerned
about this and how it was going to affect them.
“There were schools where they were very concerned that
foreign exchanges could be finished as a result of this,
parents were worried about looking after other people’s
children after school.”
A statement from the Home Office also said the proposed
scheme “unduly infringes on civil liberties”.
continued from front page, col 2
far, receiving thousands of ideas, comments and votes.
“So if you see an idea here that you agree with, then rate it
to move it up the list. If you have more to say about an idea,
then add your comment. Or submit your own idea if it isn't
yet on the site (the search box is a good way to check). And
remember - we want you to suggest ideas for removing
laws and regulations, rather than ideas for creating them.
“It’s time to have your say. After all – it’s your freedom.”
A F.A.C.T. spokesman said this site represents an excellent
opportunity for F.A.C.T. members, their families and
supporters to influence public policy.
Perhaps we should start by asking for Part V of the Police
Act 1997 to be reviewed particularly with regard to Sect 115
(7) which permits Chief Constables to provide soft
intelligence, which might amount to no more than mere
gossip and does NOT relate to a conviction, which they
might consider relevant to an employment application.
Go to the Your Freedom web site. This time you can make a
difference. http://www.yourfreedom.hmg.gov.uk

Manchester Children
Compensated for
Children’s Homes
Abuse
Victims of child abuse at three
children’s homes in Manchester will
receive compensation from the city
council, it has been confirmed.
Manchester City Council is to settle
the claims of 163 people who were
sexually and physically abused at
three homes from the 1950s to the
1990s.
It comes after 168 other victims were
awarded a total of £2.26m in 2007.
Police investigated 66 children’s
homes in Greater Manchester from
1997 to 2002, and prosecuted several
people.
The victims say they were abused at
Rosehill in Northenden, Broome
House in Didsbury, and Mobberley
Boys School in Knutsford, run by the
council’s social services department.
The settlement means the victims
will not have to give evidence in
court, but will have to accept a
reduced amount in compensation,
solicitors Abney Garsden McDonald
said.
Solicitor Peter Garsden said: “The
decision by Manchester City Council
to avoid the costs and the time
involved in contested litigation is
very welcome indeed.
“The claimants want an apology for
the abuse they suffered in the past,
not technical arguments designed to
defeat their valid claims.
The Royal College of
Nursing to Launch a
Judicial Review
The Royal College of Nursing is
launching a judicial review of a
vetting scheme it fears will breach
nurses’ human rights and have
“catastrophic” consequences for
their careers.
The move also follows concerns the
controversial vetting and barring
scheme would make nurses overly
cautious about comforting or being
left alone with patients.
The RCN believes the scheme
breaches nurses’ rights to a fair trial
and to privacy.
The scheme, introduced last October,
is aimed at protecting children and
vulnerable adults and will eventually
require all nurses to register with the
Independent Safeguarding Authority.
Law Commission
The Law Commission is seeking
proposals for its Eleventh Programme
which is due to begin in the summer
of 2011. Correspondents have until
the 15th October 2010 to submit a
suggestion by online questionnaire.
Anyone can propose any area of the
law which he or she considers to be
in need of reform. You can submit a
proposal in one of three ways:
online,
www.lawcom.org.uk/questionnaire/
by printing off a questionnaire, filling
it in and posting it to the
Commission, or completing the
questionnaire in Word and emailing
it to the Commission.
Feedback
We welcome feedback on any article
published in FACTion.
Please send us your comments by
post or email.

Page 16 July 2010