M v Secretary of State

The applicant was born in 1962 and is now 40 years old. He obtained a degree in chemistry from the University of London and thereafter took a post as an analytical chemist with a company in London. In his leisure time the applicant undertook voluntary work with disabled children. He found this to be enjoyable and rewarding. In 1986 the applicant resigned from his job in order to work with children full time. In 1987-8 he undertook a PGCE course and, in September 1988, he was appointed as a special needs teacher at a comprehensive school in east London. In August 1989 the applicant obtained a job working with adults with learning difficulties in the USA, where he was described as an “exemplary employee”. Upon his return to the UK in November 1990 the applicant worked at a family assessment centre in Kingston. In July 1991 he obtained a post at Betts Way in Penge.

Betts Way is a residential respite care unit for children with special needs. It opened in 1988. It is part of the Joint Children’s Service and is jointly funded by Bromley Social Services and Bromley NHS Primary Care Trust (formerly Ravensbourne NHS Trust). At the relevant time, many of the service users had Down syndrome or disorders on the autistic spectrum. Some of them had associated physical disabilities. There were usually between 5 and 8 children at Betts Way. Most of the children spent 3 or 4 days per month in the unit.

From July 1991 to September 1993 the applicant worked as a full time member of the care staff at Betts Way. From 1993 to 1996 he regularly worked at Betts Way as a member of the “bank staff” while studying for a Diploma in Social Work. On 1^st November 1995 the applicant commenced work as a social worker with the London Borough of Richmond-upon-Thames. Thereafter he only worked at Betts Way occasionally. His last shift at Betts Way was in May 1996.

In 1991 a child with epilepsy and a disorder on the autistic spectrum (referred to in this decision as “C”), then aged 7, began using Betts Way on an intermittent basis. C was fully capable of communication and always told his mother about any matters which had upset him. The applicant was C’s key worker. C was always very happy to attend Betts Way and he liked the applicant. C never reported any abuse or inappropriate treatment by any of the staff at Betts Way.

Also in 1991, a child with brain damage as a result of meningitis in early life (referred to in this decision as “G”), then aged 7, began using Betts Way. Her mother found that Betts Way was “a wonderful place”. G was always happy there and never complained of any mistreatment or abuse by the staff.

On 22^nd July 1991 Betts Way was inspected by Inspection Officers from the London Borough of Bromley. They found that there was no evidence of distress or inhibited behaviour on the part of residents and that the establishment was “notable for its loving care, flexibility and positive attitude of the staff” [G 4-7].

Mrs Lisa Hughes was the Acting Manager of Betts Way from 1992 until January 1993, having been Assistant Manager since 1989. She found that the applicant was “committed to providing a safe and enjoyable environment for the children” and that he was a “gifted worker”.

In 1993 the applicant shared a house in Bromley with two friends. The applicant’s friends saw that he led a “normal and sociable life” and had “several regular girlfriends”.

From January 1993 until December 1997 Mrs Jane Kay was the Officer-in-Charge at Betts Way. She found that the applicant was “dedicated, sensitive and thoughtful” and was “liked by both children and parents”. Mrs Kay never saw any signs of the children at Betts Way suffering from abuse. At the hearing, Mrs Kay repeated her previous assessment of the applicant and added that she had found him to be conscientious and professional and that he had “stuck to the procedures” at all times.

The applicant was highly regarded by all of the others who worked with him at Betts Way. He was also known to them as someone who followed the rules and regulations “to the letter”.

The applicant was fully aware of the policy adopted at Betts Way that male members of staff should not undertake personal care of female residents and he did not do so, save that, as a senior member of staff, he sometimes administered medication to female residents.

The applicant took residents out of Betts Way on visits to local parks and elsewhere but, save on one occasion, he was always accompanied by a female member of staff if the group he was taking out included a female resident. The applicant was aware that another member of staff (referred to in this decision as “B”) had taken a female resident out of Betts Way, in contravention of a specific instruction by Mrs Hughes that he should not do so. The applicant maintains, with “absolute certainty”, that he never took any child to B’s flat and that he was never present in B’s flat when children or young people from Betts Way were there.

Between February and June 1993 Mrs Kay received a number of complaints and reports from members staff concerning B. Most of these related to his ability to work with others but some related to his care of the children.

In July 1993 B was dismissed from his employment at Betts Way for “breaching policy instructions relating to the giving of personal care to a female resident”. B admitted to Mrs Kay that he had breached the relevant instructions in that he had assisted a female resident (“L”) to wash and dress herself.

In November and December 1993 Betts Way was inspected and found to provide “a happy, relaxed environment” where the young people all appeared “happy, relating well to staff and each other”. The commitment of the staff to the children and the service was, said the Inspectors, evident [G 8-28].

In June 1995, a 16 year old girl (referred to in this decision as “X”), who had Down syndrome, began demonstrating disturbed behaviour at school and alleged that she had been sexually abused at Betts Way [E 520-46]. She was interviewed several times (2 on videotape) and named 5 people (including “John Spencer”) who, she said, were involved.

In July 1995 X’s mother, having become aware that B had left Betts Way “under a cloud”, expressed the view that B was “a socially unacceptable person” and said that she was relieved that he was no longer looking after her daughter [E 550]. She urged Bromley to have the allegations made by her daughter “thoroughly investigated”. The investigators concluded that the allegations made by X probably related to another child (“D”) who had attended the unit on 3 occasions in April and July 1993. They were unable to identify the other persons named.

In January 1996 Mrs Rogers, then Bromley’s Child Protection Co-ordinator, sent a letter to all of the parents of Betts Way service users inviting them, in effect, to make any complaints that they might have about staff at Betts Way. Mrs Rogers received no complaints in response to her letter, though she and other officers of the London Borough of Bromley did subsequently receive several further representations from X’s parents.

In January 1996 Inspectors found that the staff at Betts Way were “committed and experienced” and “demonstrated considerable skill in their ability to communicate, understand and meet the needs” of the residents. They concluded that Betts Way was “managed, organised and run efficiently and effectively” and that much emphasis was placed “on ensuring the children’s safety and well being” [G 31-41].

X’s parents complained that the investigation by Bromley had been closed prematurely. In May 1997 their complaint was heard by an Independent Complaints Panel. As a result of the recommendations of the Panel, further investigations were undertaken by Mrs Rogers, specifically in relation to the possible involvement of B. Mrs Rogers discovered nothing to implicate B and, in December 1997, she closed her investigation.

On 14^th April 1998 Mrs Susan Keith was appointed to the post of Child Protection Officer by Bromley, specifically to investigate allegations against professional and voluntary carers.

On or about 1^st July 1998, X (then aged 19) allegedly made further disclosures to her parents. Her mother reported that she had said that B was “John Spencer” [E 450]. Mrs Rogers re-opened her investigation on 2^nd July 1998. She asked Mrs Keith to review the background information and to interview X.

Mrs Keith, accompanied by Ms Eileen Hollingsworth, who had been X’s social worker, interviewed X on 9^th July 1998. Ms Hollingsworth made some brief notes of the interview [E 459-460]. X had been told by her mother that Mrs Keith was coming to talk to her about the “bad things” that had happened to her at Betts Way. X talked about B and “John Spencer” as being two different people. Her responses were varied and generally lacked coherence.

Mrs Keith and Ms Hollingsworth saw X again on the following day. Ms Hollingsworth again made some brief notes of the interview [E 467-8]. X “responded positively” to the introduction of anatomically correct dolls. She described having seen John Spencer and B “at naughty times”. She was “unable to give a clear account” but referred to B and other unknown men in what appeared to be abusive situations. Mrs Keith formed the view that X had indicated that she had been abused in B’s flat and at “a number of other locations” [B 198]. She was left “in no doubt” that X had been “physically, emotionally and sexually abused” [E 464].

In September 1998 Mrs Keith and Ms Hollingsworth conducted an experiment to discover whether X could find her way to B’s flat unaided. On the first occasion, X spent some time in Betts Way and repeatedly said: “This makes me angry – not good enough” and then took Mrs Keith and Ms Hollingsworth to a flat which was not B’s. X was unable to say whose flat it was [E 475].

On the second of her two “walkabouts” (on 29^th September 1998), X was able to show Mrs Keith and Ms Hollingsworth where B’s flat was situated. When X stopped outside the flat she said that she had been there with B and John Spencer [E 481]. B subsequently denied that X had ever been to his flat. Two other members of the staff at Betts Way lived in the same block of flats.

In November 1998 Bromley invited all former members of staff at Betts Way to interviews. The applicant did not receive an invitation because it was sent to an address at which he was no longer residing. 16 other former members of staff, including B, were interviewed between 25^th November and 8^th December 1998 and 6 were spoken to on the telephone. The applicant was not interviewed. Some members of staff from Betts Way “expressed concern” about B and said that he might have taken a young woman with Down syndrome (referred to in this decision as “S”) out from Betts Way in contravention of a specific instruction not to do so.

On 18^th November 1998 Mrs Keith told Mrs Rogers that she was “feeling under great pressure” and that her job was “only just manageable with the stream of work…from the area teams” [J 52].

In December 1998 Mrs Rogers and Mrs Keith made plans to interview several young people who had used the unit at Betts Way. The considered whether they should videotape the interviews but were advised by the police not to do so because recording of the interviews might “jeopardise the possibility of a prosecution”. The police officers consulted apparently took the view that if they were in possession of a series of recordings of inconclusive interviews, they would be obliged to disclose them as “unused material” and would thus weaken any case that they might be seeking to make out.

On 5^th January 1999 Mrs Keith interviewed X again, using anatomically correct dolls. Ms Hollingsworth made notes [E 491-6]. X made no further disclosures of sexual abuse but indicated that John Spencer had hit her. She spoke about John Spencer, B and several others. She said that John Spencer did not live with B.

In early January 1999 Mrs Keith approached Ms Wendy Holden (who had, since 1997, been social worker to S) and asked her to produce files relating to her client and to attend an interview with S “in connection with allegations against a residential care worker” at Betts Way [B 185].

On 20^th January 1999 Mrs Keith interviewed S (then aged 23) at her residential placement in Kent, having previously ascertained the extent of her ability to communicate from Ms Holden. S’s speech was indistinct and she used Makaton signing. Ms Holden attended the interview and took some brief manuscript notes, which were later transcribed [C 69-70]. Ms Yvonne Wanstall, the manager of the residential unit in which S was living, also attended the interview.

On 25^th January 1999 Mrs Keith reported to a strategy meeting that S was not competent to make a formal statement but was, in her opinion, “making an allegation of abuse” [B 200].

On 1^st February 1999 X’s mother telephoned Mrs Keith and informed her that X had become very upset on seeing, in a newspaper, a distorted photograph of the television personality, Chris Evans and identifying him as her abuser, John Spencer [D 413]. Mrs Keith subsequently showed the same photograph [D 429] to several young people whom she interviewed but she did not obtain a similar, or any significant, reaction from them.

On 2^nd February 1999 Mrs Keith and PC Sarah French interviewed S again. Mrs Rogers had asked Ms French to attend the interview. As before, Ms Holden attended and took notes [C 89-91] and S’s key worker was also present. S was given anatomically correct dolls “to assist communication”. S again mentioned several names but did not mention the applicant. S said that her mother had seen “John” and “Robert” abusing her.

After the interview, Mrs Keith, Ms French and Ms Holden all agreed that the information supplied by S had been “too confusing to be reliable”. Mrs Keith later recorded that S had identified her abusers by name “but had to be led to introduce them” and that it was “not possible to conclude whether S’s description was of a different allegation of abuse separate from that which she had made on the occasion of her first interview” [C 74].

Following the interview on 2^nd February 1999, Mrs Rogers and Mrs Keith agreed that they should obtain a selection of photographs of service users and staff at Betts Way “to assist in future interviews” [B 201]. Mrs Keith collected some photographs, which had been supplied by parents, from Betts Way on 5^th February 1999 [D 415-430]. Only a few members of staff appeared in the photographs. The collection contained one clear photograph of the applicant [D 418]. The police were asked to provide a photograph of B but failed to do so. Mrs Keith included the newspaper photograph of Chris Evans, supplied by X’s mother, in the collection [D 429].

No further progress was made with the investigation until May 1999, primarily because of Mrs Rogers’ absence from work as a result of ill health but also because no photograph of B had been supplied.

Mrs Rogers returned to work at the beginning of June 1999 and, with Mrs Keith, compiled a revised list of young persons to interview [J 60-1]. Mrs Rogers and Mrs Keith noted that the “pressure [was] now on” to proceed with the Betts Way inquiry because Ms Hollingsworth, who had been the social worker for several of the young people involved, was about to leave Bromley for a new post [J 60].

On the morning of 21^st June 1999 Mrs Keith interviewed a 20 year old woman with Down syndrome (referred to in this decision as “A”), at her residential college in Somerset. A had “possibly been identified” by X as being in B’s flat with her. A had not previously met Mrs Keith. No video or audio recording of the interview was made. Ms Hollingsworth, who had been A’s social worker, attended the interview to place A at her ease. She took some notes [D 364-368]. A’s key worker, Ms Natasha Koerner was also present.

After the interview, Mrs Keith, Ms Hollingsworth and Ms Koerner reviewed the “apparent disclosures” made by A and agreed that she had been describing an incident or incidents that she had experienced and had identified B and the applicant as being present as observers. Mrs Keith and Ms Hollingsworth were very surprised by the mention of the applicant since they had had no previous indication of any involvement by him.

A had allegedly been the victim of sexual abuse during her childhood [D 375]. She alleged sexual abuse by her half brother in 1994. No action was taken as a result of her allegations [D 376]. A had also previously made an allegation against another male member of the staff at Betts Way. This was investigated. No action was taken against that member of staff as a result. Records kept by the staff at Betts Way show that, on several occasions, A associated “very closely” with a young man (referred to in this decision as “R”) [H 328, 357-8] and with Z [H 354, 356] in a manner which gave staff cause for concern that the associations might be sexual.

In the afternoon of 21^st June 1999 Mrs Keith interviewed R, a man aged 21 with Down syndrome and a serious congenital heart defect, at the same residential college in Somerset. R had not previously met Mrs Keith. As before, no video or audio recording was made. Ms Hollingsworth, who had also been R’s social worker, attended and took some notes [D 267-8]. Mr John Munn, R’s key worker, was also present. Mr Munn explained that R had communication difficulties but was generally able to make himself understood.

R had a history of sexual activity with others. In 1993 or 1994 he was involved in sexual activity with another boy whilst at school, during which he attempted anal intercourse [D 248]. From time to time, staff at Betts Way found R in bed with other children [H 206, 216, 218] and had to deal with his sexual advances to others, including A and another young woman referred to in this decision as “Y”. [H 210, 211, 213, 214, 217, 220]. R’s “sexual exhibitionism” had been a problem for many years [H 209, 216, 244]. When assessed by Mr Alan Fazakerley in August 1999, R was able to identify, without prompting, both heterosexual and homosexual activity [D 308].

In October or November 1998 the applicant had met R by chance at a hospital in Somerset. R did not appear to know who the applicant was. When pressed, R said that he did remember the applicant but the applicant was very doubtful as to whether he did. The applicant believes that this meeting may have enabled R to remember his name when he was interviewed by Mrs Keith.

Mrs Keith reported to Mrs Rogers that, in her view, the completed interviews “were persuasive” and that “the non-verbal reactions of both interviewees were particularly significant” [B 203]. Mrs Keith regretted that video recordings had not been made. Mrs Rogers later asked the police to advise again about video recording but was again told that she should not video an interview with an adult “since it could not be used in and might prejudice any proceedings that arose”.

In June 1999 Mrs Keith contacted Ms Holden and asked her to accompany her on another visit to S, the purpose of which would be to show her the photographs of staff and others at Betts Way “to see if she [S] could identify any of the persons in them” [B 187].

On 25^th June 1999 Mrs Keith and Ms Holden saw S. Ms Holden made notes [C 104-5]. Mrs Keith showed S the photographs. S identified the applicant as “Ful”. When asked about visits to B’s “house”, S replied that Neil, Robert, John, “Ful” and one other had been there, along with X.

On 30^th June 1999 Mrs Rogers reported Mrs Keith’s findings to a “Strategic Meeting of Senior Executives” in Bromley. She said that “other young people” had, during the previous 2 weeks, made allegations giving the names of more than one member of staff who worked at Betts Way. Matters were, she said, first drawn to the attention of the investigating team by “the behaviour pattern of some of the young people i.e. displaying sexual behaviour, some didn’t like being taken to Betts Way by their parents”. Mrs Rogers also reported that there were “7 young people independently indicating” that they had been sexually abused [J 2] and that there were difficulties because of the “reluctance to talk” of the staff [J 4].

On 1^st July 1999 it was agreed that Mrs Keith should be “dedicated entirely to the Betts Way investigation” and that she would “work with the police team until further notice” [J 63].

At a strategy discussion held at Hither Green Police Station on 6^th July 1999, Mrs Rogers and Mrs Keith were informed that, in view of the fact that no competent witnesses had been identified, the police were withdrawing from the inquiry. Accordingly, it was agreed that Mrs Keith would return to work from the offices of Bromley Social Services.

On 9^th July 1999 Mrs Keith interviewed a man aged 19, almost 20, with Down syndrome (referred to in this decision as “J”). J was selected for interview because he had, in the past, shown reluctance to attend Betts Way. Mrs Rogers attended to take notes [E 595-608].

After the interview, Mrs Keith agreed with Mrs Rogers that her questions had been “direct and leading” and that J’s responses could not be relied upon. Nevertheless, Mrs Keith concluded that it was likely that J had “suffered some sexual abuse” [B 229].

Following the interview with J, Mrs Keith spoke to J’s brother, who is a car mechanic. He conveyed to her his suspicions about the applicant arising from the fact that the applicant had travelled from Richmond in January 1999 to have his car repaired. J’s brother suggested that that this was evidence of the applicant’s desire to remind J “that he was still around” [B 230].

On 12^th July 1999 Mr Wilkinson, Bromley’s Assistant Director of Social Services, informed Mr Terry Earland, the Head of Services for Children and Families in Richmond, that allegations of sexual abuse had been made against the applicant.

On 13^th July 1999 the applicant was suspended from his employment as a social worker with Richmond.

On 15^th July 1999 Mrs Keith wrote to the applicant to inform him that allegations of a serious nature had been made against him and to summon him to an interview [E 626].

At a further “Strategic Meeting of Senior Executives” in Bromley on 17^th July 1999, Detective Inspector Rose reported that “unfortunately…young people with good communication skills did not disclose any offences” and that there was “no chance of obtaining any information from those with poor communication skills” [J 7a]. Mrs Keith reported that she had gained no further information from staff and continued to meet “the ‘wall of silence’” [J 7b]. She also reported that J had been interviewed and that “his behaviour and actions with anatomically correct dolls” certainly indicated that he had been abused [J 7b].

On 20^th July 1999, when Ms Holden was making a routine visit to one of her clients at his home in Kent, Y, a woman aged 21 with Down syndrome who lived in the same home and was present, spontaneously identified the applicant from a photograph on the wall and said that she had been to his house. Ms Holden reported this to Mrs Rogers.

Mrs Keith then contacted Ms Holden and arranged for her to make available files relating to Y and to attend an interview with her. Ms Holden told Mrs Keith that Y had “a much better level of communication” than S and that her overall level of comprehension was “reasonably good” [B 191]. In September 1993 an educational psychologist had reported that Y’s oral communication, at the age of 15, enabled her to converse with her school classmates and with adults [C 192].

On 4^th August 1999 PC French and Mrs Keith interviewed Y. Ms Holden was present and she made some brief manuscript notes [D 409-411]. Ms French asked Y whether someone at Betts Way had frightened her. When the applicant’s first name was put to her by Ms French, Y “became very animated” and said that he had tried to “bonk” her when she was at Bromley College. Mrs Keith recalls that Y “provided information that was spontaneous and she had no hesitation in identifying” the applicant [B 238].

It was then agreed that Ms Holden would go into another room and speak privately to Y. According to Ms Holden, in her bedroom, Y cried and mouthed the word “rape”. Ms French then questioned Y further. In response to a question about what she meant by “rape”, Y apparently alleged that she had been hit with a belt by the applicant when she had had her clothes off in her bedroom at Betts Way. Y also indicated that she had experienced vaginal and anal intercourse with the applicant in his flat. In answer to further questions, Y said that the applicant had frightened her and had threatened to kill her mother, her sister and her dog.

After the interview Mrs Keith, Ms French and Ms Holden agreed that it was difficult to be sure exactly what had happened between Y and the applicant but “something untoward” had certainly happened. Mrs Keith had one “major reservation” arising out of the fact that Y had referred to the applicant as having been at Bromley College, an institution with which he had no known connection [B 238].

The applicant confirmed in oral evidence to the Tribunal that he had no connection with Bromley College and said that he never saw Y there. Y attended Bromley College for one day per week from school when she was aged 13 to 14 (in 1991-92) [C 184]. She did not attend Bromley College in 1996. She moved to a residential college in Somerset when she was 17 (in 1995) [C 184] and remained there until some time in 1998, when she moved to her residential placement in Kent [C 199].

Y had previously (in March 1999) made an allegation of sexual assault by a man, which was investigated and determined to be unfounded. As a result of the investigation it was arranged that Y should be closely supervised. At that time, it had been reported that Y was “very able”, “fully sexually aware” and could be “a tease” [C 233].

Ms Holden had also reported (in January 1999) that Y was “acutely vulnerable around men, often cuddling and kissing them”; that she was “an extrovert personality” and that she would “like to have a boyfriend” [C 198].

Records kept by Betts Way show that, from 1991 (when she was 13) Y occasionally created difficulties for the staff because of her “sexualised behaviour” with R [G 138] and colourful language [H 203].

At a meeting in April 1999, Y was described as someone who had “been known to make allegations in the past that were proven to be false” [C 236].

On 6^th August 1999 Mrs Keith interviewed Y’s mother. Ms Jane Ching took notes [C 184-5]. Y’s mother said that Y’s last contact with the applicant had been at her 18^th birthday party at Crofton Halls in April 1996, when the applicant was an invited guest. She recalled that Y loved going to Betts Way. Y’s mother also said that she had felt “uncomfortable” with one member of staff at Betts Way who “came and left quite quickly” and that, because of the costume he had worn at a fancy dress party, she had always thought that the applicant was gay.

On 9^th August 1999 Mrs Keith interviewed the applicant. She had a legal adviser present. The applicant was accompanied by his trade union representative. Ms Gill Stevens took notes [E 627-40].

Mrs Keith then proceeded to the “second part of the interview” and cautioned the applicant that he was not obliged to say anything and that anything he did say would be taken down in writing and might be used in evidence against him. Mrs Keith then put a series of allegations to the applicant, arising from her interviews with S, R, A, J and Y.

Following the interview on 9^th August 1999, the applicant’s union representative, Mr Cowan wrote a strongly worded letter to Mrs Keith refuting all of the allegations; re-asserting that the applicant was “emphatic” that he had not been to B’s flat and pointing out that the applicant was a social worker of “high standing and considerable professional integrity” upon whom the allegations could have “a devastating impact” [E 665].

On 10^th August 1999 the applicant telephoned Mrs Keith and told her that, after further thought about the matter, he recalled that he had visited B’s flat once, with Mrs Hughes, “for a drink or to drop off furniture”. The applicant also told Mrs Keith that he had gained the impression that she did not believe him and he asked her to “keep an open mind”.

Mrs Keith subsequently interviewed other former members of the staff of Betts Way, all of whom said that the applicant was a popular member of staff and expressed disbelief of the allegations made against him.

On 16^th August 1999, in an interview with Mrs Keith, B spoke of a boy from Betts Way being at his flat and being taken away by another staff member, Ms Bernadette Derwent, because he was “being silly”. Ms Derwent confirmed to Mrs Keith that she had taken a boy back to Betts Way from B’s flat and said that she had had no concerns about leaving 2 other boys alone with B in his flat [B 325].

Mrs Hughes was interviewed by Mrs Keith in August 1999. She felt that, from the outset, Mrs Keith was not disposed to believe her and that she was not inclined to give any weight to anything that staff members said [B 272].

In August 1999 G, who had used the unit at Betts Way since 1991 and was, by this time, aged 15, began exhibiting some unusual behaviour. Her mother attributed this to changes in her hormones but sought advice from MENCAP. That organisation’s adviser thought that some of the behaviour described by G’s mother might be indicative of sexual abuse.

Very shortly thereafter, Mrs Keith telephoned G’s mother. On the following day, Mrs Keith visited G’s mother to arrange an interview with G. G’s mother informed Mrs Keith that G spoke well but had little understanding of what she was saying and had a tendency to fantasise.

On the next day, 24^th August 1999, Mrs Keith, accompanied by Ms Susannah Fraser, a secretary employed by Bromley, interviewed G. Ms Fraser took notes [F 767-777]. G’s mother was present for part of the interview.

After a short break, Mrs Keith pressed G to say what had happened at B’s flat and asked her whether B had touched her. G replied that B had touched her and, in response to questions and by reference to the dolls, identified the parts of her body that he been touched.

At the end of the interview Mrs Keith concluded that the replies by G suggested that she had been sexually abused by B and had “something to say” about a man she called Nigel but her that replies were “not consistent” and therefore could not be relied upon [F 764].

After the interview, G’s mother complained to MENCAP about the way in which Mrs Keith had questioned her daughter [B 315].

On 27^th August 1999 Mrs Keith interviewed X again, at the request of X’s mother, who apparently feared that X might have been approached and threatened [E 507]. Ms Pam Good took notes [E 498-505]. In response to repeated questions about John Spencer and others, X gave confusing answers and “rambled”. When shown the photograph of the applicant and Ms Ardley, X recounted an incident when the applicant had closed her bedroom door. The applicant was, she said, “bad” because he had closed her door. Mrs Keith obtained “no information to suggest that [X] was currently frightened or threatened by any person” and came to the conclusion that X had no understanding of the phrase “take advantage of you” which her mother had said she had used [E 508].

After this interview Mrs Keith reassured X’s mother that “John Spencer” was “in the past” [E 518].

Mrs Keith concluded that, on balance, it was likely that both B and the applicant had abused children who had been resident at Betts Way and prepared a draft report to that effect.

On 27^th August 1999 Mrs Keith reported her conclusions to a meeting of the Senior Strategy Group. The Group decided that a wider investigation should, in due course, be undertaken by a larger team under the management of the NSPCC.

Mrs Keith recalls that, at some time in September 1999, Ms Vanessa Allen, a Behavioural Counsellor who had been commissioned to provide counselling for A, told her, during a telephone conversation, that “she had no doubt whatsoever” that the allegations made by A were true but that she could not “divulge details that came out during counselling” [D 390]. This is not confirmed by Ms Allen, who subsequently wrote to Mrs Rogers expressing different conclusions.

In September 1999 Mrs Keith deposited all of her notes and records with the NSPCC. Mrs Keith was herself attached to the NSPCC-led investigation team. In the period from September 1999 to January 2000, a large part of the written material prepared by Mrs Keith was allegedly lost.

On 19^th October 1999 Bromley issued the document entitled: “Betts Way Investigation: Interim Report” [A103-150] prepared by Mrs Keith. In the report Mrs Keith described the interview processes. She said that records were kept of all interviews; that she “always attempted to facilitate the young person to give a free narrative account”; that she had had permission to use “facilitating techniques” and that she therefore used anatomically correct dolls. Mrs Keith also gave an account of her qualifications and experience, erroneously asserting that she had been employed as social worker since July 1980 and had undertaken child protection work since September 1980. In each case the year should have been 1990. In her oral evidence to the Tribunal, Mrs Keith acknowledged the errors and said that her failure to correct them was a simple oversight.

In section 12 of her report Mrs Keith set out her account of the information obtained from Y and how Y had described frequent sexual abuse by the applicant at Betts Way and at his flat. Mrs Keith noted that Y had been described as “having no boundaries” and “vulnerable” and that she had previously made unsubstantiated allegations.

In section 13 of her report Mrs Keith set out her account of the information obtained from J. She concluded that J had indicated that he had been sexually abused but that it was not possible for him to give more specific information because of his learning difficulties.

In section 16 of her report Mrs Keith described her interview with the applicant. She noted that the applicant had denied all of the allegations made against him. She emphasised that the applicant had been “adamant that he had never been to [B’s] flat” but had, on the day following the interview, telephoned her to say that he had remembered a single visit to B’s flat “for a drink or to deliver some furniture”.

Mrs Keith noted that “in a small number of instances the names of the alleged abusers were given by the interviewer rather than by the young people themselves”; that “little precise information” had been obtained as to the dates upon which the alleged abuse took place; that some of the young people concerned had exhibited sexualised behaviour and that 2 of them had “made previous allegations of sexual abuse unconnected with the inquiry”. Nevertheless Mrs Keith concluded that the “separate allegations” were “persuasive”.

In section 19 of her report Mrs Keith summarised the allegations against the applicant. First, she said that the account given by A of the applicant as an observer was “very persuasive”. Secondly, she said that she had “no doubt” that S was sexually abused and that S was “clear in her identification of [the applicant] when shown a photograph during her third interview”. Thirdly, she said that R’s evidence of abuse was “persuasive both of the fact that he was abused and of the involvement of” the applicant because he was “clearly identified by R from a photograph without prompting”. Finally, she said that Y’s evidence was “persuasive in that she readily identified [the applicant] by his first name as a member of staff at Betts Way”.

At the end of October 1999 the “Interim Report” was presented to Mr Wilkinson, Bromley’s Assistant Director of Social Services and, on 1^st November 1999, Mr Wilkinson sent the Report to all interested parties.

On 15^th November 1999 the applicant wrote to Mr Earland [F 650] and expressed his concerns about the interviews and the techniques used by Mrs Keith, referring to “unacceptable leading of suggestible and vulnerable young people” and erroneous references to his “flat”. The applicant pointed out that he lived in a house at all relevant times and that he had never been to Bromley College.

On 17^th November 1999 the applicant wrote to Mr Wilkinson [F 652] and said that he was “contesting the report and its conclusions” but was “still willing to co-operate with Bromley”.

When, towards the end of 1999, the applicant informed Mrs Kay that he had been identified as having been implicated in the sexual abuse of children by the Bromley inquiry, she was “stunned and speechless” [B 281].

On 20^th December 1999 Mrs Rogers commissioned “an examination of the work undertaken…on the Betts Way Investigation” by “Triangle” (an independent consultancy service with wide experience of interviewing children with disabilities) [F 680-1].

On 17^th January 2000 Ms Gretchen Precey, a consultant from “Triangle”, discussed the investigation with Mrs Keith. Mrs Keith told her that X “held the key to the investigation”. She also described her interview with R as the most “poignant”. Mrs Keith said that R’s use of the dolls was “vivid” and his use of silence was “highly significant” [B 333]. Mrs Keith also mentioned a report, which she had not seen, by a Consultant Psychotherapist called Valerie Sinason. Ms Sinason had, according to Mrs Keith, concluded that X had been subjected to “ritual satanic abuse”. No report by Ms Sinason was produced to the Tribunal.

During the following week Ms Precey discussed the investigation with the police analyst, Ms Brennan and read the interview notes, minutes and reports then available at the NSPCC Investigation Unit in Penge.

On 25^th January 2000 officers of the London Borough of Richmond wrote to Mrs Rogers and asked her to answer a number of questions (23 in all) relating to the Betts Way investigations [A93-5].

On 3^rd February 2000 Ms Precey reported upon her review of the Betts Way investigation [B 317-340 and F 682-702]. She noted that there was “a high level of consistency in the names of the perpetrators and in the acts and contexts described” but expressed “grave reservations” about the way in which the interviews were conducted and recorded. She concluded that the information gained was “unusable for either a criminal prosecution or an employment tribunal”; “evidentially unsound” and potentially “misleading to the current investigation”. She also said that Mrs Keith’s use of anatomically correct dolls was “questionable” and noted that, in the records of interviews, there was no indication of how the dolls were offered or in what context. In particular, Ms Precey noted that, in relation to the interview with S on 25^th June 1999, there was “no idea from the recording as to how S came to ‘name the dolls’” [B 331]. However, Ms Precey also concluded that there was substance in what the young people interviewed were saying and that “the fact that five out of ten young people who described maltreatment named [the applicant] as one of their abusers” was a cause for great concern [B 336].

On 7^th February 2000 Bromley held a “strategic meeting” of senior executives and representatives of the NSPCC, the police and “Triangle” [F 706-14]. There was extensive discussion of Ms Precey’s report. Mrs Rogers said that she felt that the report “compromised her position”. The Borough Secretary, Mr Walter Million, presented a paper in which he proposed the establishment of a “Senior Strategy Group” to oversee the Betts Way investigation. Ms Maureen Carson of the NSPCC said that there were “questions surrounding the validity of the allegations” and that interviews were being conducted “quite differently” by the present investigation team.

In February 2000 Mrs Keith prepared detailed “reconstructions” of the notes she had made shortly after each of the relevant interviews, which had apparently been lost after they had been transferred to the NSPCC. [C 61-6; C 77-83 and C 98-102 (in relation to S); C 166-182 (in relation to Y); D 254-264 (in relation to R); D 352-62 (in relation to A); E 455-7; E 470-2 and E 512-18 (in relation to X) and E 610-18 (in relation to J)]. Mrs Keith relied upon the contemporaneous notes made at the interviews, some of her contact sheets, her diary, her original draft report and her memory.

At a meeting of the Operational Strategy Group on 7^th March 2000 Detective Sergeant Andy Twose “warned of the dangers of re-interviewing children” because they might “not confirm their previous allegations” [J 12]. At the same meeting Mrs Rogers reported that Mrs Keith was off work because of ill health but that, on her return to work, she would “continue work on the original interviews”; assist Mr Arrenberg, the Legal Adviser to the London Borough of Bromley “to compile defence statements” and participate in “the proposed reviews of the original interviews” [J 14].

In a report prepared for the meeting on 7^th March 2000, the NSPCC-led investigation team expressed the view that “the cohort” interviewed by Mrs Keith should be re-interviewed “given that many of the group hinted at information of high concern” and that the interviewers should use “the skills of the S & L [Speech and Language] therapists and the more grounded process now operational” [J 18]. This view was rejected. The young people interviewed by Mrs Keith were not re-interviewed by the NSPCC-led team.

At a meeting of the Senior Strategy Group on 8^th March 2000 Mrs Rogers commended Mrs Keith’s “skilled and pioneering work with a group of young people who had severe learning and communication disabilities” and expressed her confidence in Mrs Keith’s abilities. She had, she said, “reviewed her work three times”. Mrs Rogers also expressed the view that “the quality of Triangle’s report had…been very poor”. Mr Arrenberg condemned the report’s conclusions as “insupportable” and “flawed”. The Senior Strategy Group rejected Ms Precey’s report and asked for it to be reviewed [F 725-37 and J 24-44].

In March 2000 Betts Way was closed “because of the additional pressures on remaining staff at the unit as well as recruitment difficulties during the period of the investigation” [J 67].

On 28^th March 2000 Ms Clark of Unison sent a “detailed response” to Bromley in which she alleged that the Interim Report was “seriously flawed, irrational and unreasonable” [A96-102].

In a letter dated 10^th May 2000 to Ms Clark, Mr Wilkinson, the Assistant Director of Social Services, said that Bromley would review the report [F 660-1].

On 5^th June 2000 Ms Vanessa Allen replied to an enquiry by Mrs Rogers about A’s counselling. Ms Allen said that she was “unable to substantiate the original allegation of abuse” and believed that “either actual abuse…or the disclosure process was at the root of the traumatic response” shown by A [E 444].

On 6^th June 2000 Ms Clark sent positive references for the applicant to Mr Wilkinson from Ms Lucy Fisher [F 664], Ms Rebecca Griffiths [F 665-6], Ms Brenna Pradell [F 667] and Ms Gillian Lightfoot [F 668].

In June 2000 Mrs Rogers produced a Supplementary Report “prepared in response to questions raised by the London Borough of Richmond and Unison” [A51-60 and C 1-54]. Mrs Rogers described the procedures which had been followed and recorded that the first allegation against the applicant came as a surprise because the interviewer was actually investigating the possibility of abuse by B. She also recorded that identification of the applicant was “received with incredulity by his former colleagues” but suggested that it was “difficult to determine” the value of references from such persons “beyond putting the investigation team on notice that the allegations were more improbable” than those surrounding someone “dismissed because of staff concerns”. Mrs Rogers reported that the applicant’s name was “brought up without prompting by each of the interviewees”; that one interviewee introduced the applicant’s name “quite spontaneously” and that “in one instance a young person reported direct threats by [the applicant] to discourage disclosure”.

In the appendices to her Report [A62-91] Mrs Rogers set out the reasons for each interview, the persons present, the preparation which had been undertaken in relation to each interview, the parental contact made in advance of each interview and the setting of the interview. She then summarised the interviews and quoted extensively from the notes of them; commented upon the use of photographs and of anatomically correct dolls; described in detail the allegations of abuse made and commented upon the validity of the disclosures. In the case of A, Mrs Rogers recorded that A’s counsellor had subsequently reported that, as a result of her sessions with A after her interview, she had no doubts that the allegation of sexual abuse was true. Mrs Rogers omitted any reference to the letter from Ms Allen dated 5^th June 2000, in which she expressed a quite different conclusion [E 444]. In her oral evidence, Mrs Rogers attributed that omission to a failure on her part to check the contents her report before submitting it.

On 27^th July 2000, Mr Wilkinson referred the applicant’s case to the Secretary of State [A49-50 and F 673-4].

On 6^th September 2000 DS Twose and DC French reported to an Operational Group meeting that they had completed 17 interviews with staff from Betts Way and they staff had generally been “helpful and expansive”. The “consistent theme” was, they said, that there were “universal suspicions and concerns” about B but, conversely, there were “positive endorsements” of the applicant.

On 24^th September 2000 the Senior Management Group formally commissioned a report by the London Investigation Service of the NSPCC. The investigation team (which had originally been set up in September 1999) was led by managers from the NSPCC but it consisted of members from all of the agencies involved. In addition, the team had access to Speech and Language Therapists, to “Triangle” and to legal advice [A12]. The team identified 165 to 170 current and former service users; carried out preliminary research; produced detailed speech and language assessments and “screened out” a number of young people [A16].

On 2 occasions in October 2000 Mrs Kay was interviewed by PC French. Mrs Kay told Ms French that she had “no reason whatsoever to suspect [the applicant] of any abusive or inappropriate behaviour” [B 281]. Mrs Kay recalls that Ms French told her, in response, that she was “unaware of any evidence that had been produced” to say that the applicant was guilty of any such behaviour towards users of Betts Way.

On 6^th November 2000 the Department of Health informed the applicant that his name had been provisionally included on the Protection of Children Act List [A44-6].

On 16^th March 2001 the Department of Health invited Bromley to comment upon the representations made on behalf of the applicant [F 675-6]. Shortly thereafter, Bromley sent a detailed written response [F 747-59]. They asserted that the procedures adopted by the Council were reasonable and not unfair to the applicant and said that, while the Reviewing Officers were not certain that the applicant was guilty of the acts alleged, they had concluded that “it was more likely than not that he had been involved in the sexual abuse of the young persons identified by the Investigating Officer”.

On 30^th July 2001 the Department informed the applicant’s representative that the Secretary of State had decided to confirm the applicant’s name on the List [A47-8 and F 678-9].

On 1^st August 2001 the London Investigation Service of the NSPCC presented their report. They concluded that none of the service users interviewed by them had suffered significant harm or abuse and that there was no evidence that there was widespread poor practice that resulted in a culture of institutionalised risk for service users [A9]. The team identified the “common elements that tend to prevail” in residential establishments where abuse had been perpetrated and concluded that “these features did not characterise the delivery of care at Betts Way” [A19]. They noted that “awareness of child protection indicators was very noticeable” at Betts Way [A20]; that the unit was the “flagship” of the Joint Children’s Service [A21] and that “an overwhelming proportion of interviewees provided positive and favourable recollections of respite at Betts Way” [A22].

From November 1995 until his suspension in July 1999, the applicant was supervised in his employment with Richmond by Ms Mair Hutchings. Ms Hutchings had no cause to be concerned about the applicant’s behaviour or standard of work. She found that he had a good working relationship with his colleagues and with service users, many of whom spoke highly of him. During his time with Richmond no complaints of any kind were made against the applicant [B 262].

The Tribunal received 2 written reports and heard oral evidence from Professor Ben Sacks. He said that any person with Down syndrome needs to be assessed as an individual with his or her own specific profile; that in most people with Down syndrome many forms of “explicit memory” (the memory sub-serving episodes, events and facts) are impaired; that research has shown that children with learning difficulties are significantly more likely to be led by leading questions and that the apparent tendency for richer imagery in people with Down syndrome may reflect a greater capacity for fantasy. In his oral evidence Professor Sacks added that people with Down syndrome are “vulnerable to pressure” and “over-respond to facial expression”.

Professor Sacks also said that certain guidelines are generally agreed in relation to the interviewing of people with learning difficulties. These, he said, include the following:

In his supplementary report Professor Sacks noted that leading questions had been used in all of the interviews that he had reviewed in connection with this case and that attempts to obtain corroborative information about the event to be remembered were not evident. It was, he said, clear that the recommended techniques for obtaining reliable information from people with language difficulties and intellectual deficits were not adhered to in this case.

When commenting on the use of “dolls with genitalia”, Professor Sacks noted that it has been suggested that presenting anatomically correct dolls to an interviewee serves as a powerful cue. The interviewee might be guided to elaborate from general knowledge, personal discussions or fantasies to produce inaccurate information. Secondly, the presence of irrelevant cues could be inherently suggestive, leading the investigators who selected the cues in the first place to confirm their a priori beliefs. Professor Sacks thought that the use of dolls in this case was “very controversial” and that the demonstration or clarification of what had happened by the use of dolls involved concepts which might well have been beyond those who appeared to have undertaken that exercise.

Both in his supplementary report and in his oral evidence Professor Sacks emphasised that it is essential that formal cognitive testing of the proposed interviewee be carried out. Without such testing it would, he said, be impossible to be sure that the interviewee actually understood the question.

The attention of the Tribunal was directed to the Memorandum of Good Practice which says, in paragraph 3.54, that:

“An interviewer who follows the provisions of this Memorandum as to the conduct of an interview will avoid leading questions. As the courts become more aware of the difficulties of obtaining evidence from witnesses who are very young or have a learning difficulty, and of counteracting the pressures on child witnesses to keep silent, a sympathetic attitude may be taken towards necessary leading questions. A leading question which succeeds in prompting a child into providing information spontaneously beyond that led by the question will normally be acceptable. However, unless there is absolutely no alternative, the interviewer should never be the first to suggest that a particular offence was committed, or that a particular person was responsible. Once this step has been taken it will be extremely difficult to counter the argument that the interviewer put the idea into the child’s head and that the child’s account is therefore false”.

The attention of the Tribunal was also directed to Chapter 12 of the Report into Child Abuse in Cleveland 1987 (Command Paper 412) where Butler-Sloss LJ (as she then was) set out (in paragraph 12.34) 12 accepted guidelines for the conduct of interviews and urged “extreme caution” in the use of dolls “other than by those particularly qualified to do so, for specific purposes and at a later stage”. Butler-Sloss LJ said (in paragraph 12.64) that the use of dolls “seems highly undesirable as a routine prop in initial interviews”.

The attention of the Tribunal was also directed to Annex D to the Police and Criminal Evidence Act 1984 which provides, in relation to the showing of photographs, that a witness who is being asked to make an identification shall be shown not less than twelve photographs at a time, which shall, so far as possible, all be of a similar type.

Under section 4(3) of the 1999 Act, if the Tribunal is not satisfied that the individual applicant (a) was guilty of misconduct (whether or not in the course of his duties) which harmed a child or placed a child at risk of harm and (b) is unsuitable to work with children, it must allow the appeal. If the Tribunal is so satisfied it must dismiss the appeal.

Section 4 of the 1999 Act places the burden of proof on the Secretary of State.

The standard of proof required by the Tribunal, in order to be satisfied as to the matters set out in section 4(3) of the 1999 Act, is that described in the decisions of the House of Lords in Re H and others (minors) (sexual abuse: standard of proof) [1996] 1 All ER 1 and Secretary of State v. Rehman [2002] 1 All ER 141. In the former case, Lord Nicholls of Birkenhead said, at pages 16-17:

“Where the matters in issue are facts the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability….

The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability….

Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.

Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J expressed this neatly in Re Dellow’s Will Trust, Lloyds Bank Ltd v. Institute of Cancer Research [1964] 1 All ER 771 at 773: “the more serious the allegation, the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it””

In the latter case Lord Hoffman said:

“It would need more cogent evidence to satisfy one that the creature seen walking in Regent’s Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that he was an Alsatian. On this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has…behaved in some…reprehensible manner. But the question is always whether the tribunal thinks it more probable than not”.

The Tribunal was guided by these observations when considering the issues raised in this appeal.

In cases involving allegations of sexual abuse of children the Tribunal must undertake an evaluation of the evidence of fact and expert opinion in order to determine, first, whether there is evidence of sexual abuse and, secondly, whether there is evidence of the identity of the abuser: Re H (Minors) (Wardship: Sexual Abuse) [1991] 2 FLR 416.

It was submitted on behalf of the applicant as follows:

It was submitted on behalf of the Secretary of State as follows:

The charges against the applicant of misconduct which harmed a child or placed a child at risk of harm may be summarised as follows:

The case against the applicant depends entirely upon the interviews with A, R, S and Y. There are no video-taped or audio-taped records of those interviews. Accordingly, the Tribunal could not properly judge the extent to which answers were spontaneous or given in response to leading questions; the way in which the interviewees responded to the photographs and dolls or the context of any changes in the demeanour of the interviewees. In these circumstances the Tribunal was generally unable to give weight to the answers reportedly obtained or to attach significance to the reported non-verbal responses.

The Tribunal noted, and respectfully agreed with, the observations made by Latey J referred to in the Cleveland Report. He said that where there is a dispute as to whether there has or has not been abuse, a court will be anxious whether it should accept the “ipse dixit of the interviewers, however skilled and experienced”. This is, he said, “because cases have shown that the precise questions, the oral answers (if there are any), the gestures and body movements, the vocal inflection and intonation, may all play an important part in interpretation”. He added that: “where there is a dispute, there should be an opportunity for another expert in the field to form a view….In the interests not only of justice between the parties but of doing its best to arrive at the truth of the matter in the interest of the child, the court should have the benefit of such evidence, so informed”.

The absence of video and audio tapes of the interviews prevented Mrs Keith reviewing her own work and revising her own conclusions in the light of careful re-consideration of the actual words, actions and reactions of the interviewees.

The written notes of the interviews relied upon were wholly inadequate. The notes taken by Mrs Rogers and Ms Fraser of the interviews with J and G were better. The Tribunal was thus better able to see how those interviews were conducted and to draw inferences as to the techniques used by Mrs Keith when interviewing other young people with learning difficulties.

The Tribunal was unable to give any significant weight to the reconstructions of the interviews undertaken by Mrs Keith in February 2000, after she had been heavily criticised by Ms Precey. Having, for the most part, conducted the interviews herself, Mrs Keith was not in a good position, after a lapse of several months, to recall precisely the answers given at times when her mind was probably directed more towards how to continue the questioning. Similarly, Mrs Keith was not well placed to remember the precise form of the questions that had elicited the reported answers. Further, Mrs Keith prepared the documents in part to defend herself against criticism. The reasonable inferences to be drawn from the contemporaneous notes, if not the notes themselves, sometimes undermined or contradicted Mrs Keith’s reconstructions.

Because of the absence of proper records of the interviews the Tribunal was, in effect, invited to rely upon the impressions, interpretations and judgments of those who were present at them.

The Tribunal was unable to adopt or accept the conclusions reached by Mrs Keith as to the validity of any of the “disclosures” that she obtained. As the Betts Way inquiry progressed, Mrs Keith showed poor judgment and a limited ability to interpret sensibly the responses she heard and saw. She gave inaccurate and unreliable reports to others of what had happened in the interviews. For example, after her interview with J, Mrs Keith expressed the view that that it was likely that J had “suffered some sexual abuse”. Furthermore, in her Interim Report, Mrs Keith expressed the view that J had indicated that he had been sexually abused but that it was not possible for him to give more specific information because of his learning difficulties. Such conclusions were neither justified nor supported by the notes of interview made by Mrs Rogers. Mrs Keith went so far as to put to the applicant, during an interview under caution, that J had alleged that, when he was abused, the applicant was present with B. J had made no such allegation.

Mrs Keith’s report to the strategy meeting on 25^th January 1999 that S was, in her opinion, “making an allegation of abuse” was supported by the interview with S only to the extent that S had answered, in the affirmative, specific, leading questions about what “John Spencer” and “Robert” had done to her.

Mrs Rogers’ reports to the Strategic Meeting of Senior Executives on 30^th June 1999, which were based on Mrs Keith’s reports to her, were inaccurate and misleading. Mrs Rogers reported that there were “7 young people independently indicating” that they had been sexually abused and that there were difficulties because of the “reluctance to talk” of the staff. Neither of these reports had any proper basis in fact.

Mrs Keith’s reports to the strategy meeting on 17^th July 1999 were extraordinarily inaccurate and misleading. She said that she had gained no further information from staff and continued to meet the “wall of silence” and that J’s behaviour and actions with anatomically correct dolls certainly indicated that he had been abused. Both of these reports were untrue.

The summaries and conclusions set out by Mrs Keith in her Interim Report were similarly misleading. She said that “records were kept” of all interviews and that she “always attempted to facilitate the young person to give a free narrative account”. These statements were not justified. As Mrs Keith well knew when she made her report, no proper records were made of the interviews and she was frequently driven to ask leading questions and to use “facilitative techniques” by the fact that the interviewees were either unwilling or unable to give a “free narrative account”.

The Tribunal was unable to discern any proper basis for the assertions made by Mrs Keith that she had “no doubt” that S was sexually abused and that S had clearly identified the applicant as one of her abusers when shown a photograph of him during her third interview.

Mrs Keith also said in her Interim Report that R’s evidence of abuse was “persuasive both of the fact that he was abused and of the involvement of” the applicant because he was “clearly identified by R from a photograph without prompting”. Again, the Tribunal concluded that these assertions were not well founded.

Mrs Keith said that Y’s evidence was “persuasive in that she readily identified [the applicant] by his first name as a member of staff at Betts Way”. The fact that Y recognised the applicant from his photograph did not, in the Tribunal’s view, have any bearing upon the validity of Y’s wholly implausible allegations against him. Further, all of the details of those allegations were given by Y in response to leading questions.

In her Interim Report, Mrs Keith also said that “in a small number of instances the names of the alleged abusers were given by the interviewer rather than by the young people themselves”. This statement was wholly misleading. Having considered the contemporaneous notes, the Tribunal concluded that in every instance the name of the alleged abuser was either given or prompted by the interviewer.

Mrs Keith also said in her Interim Report that “little precise information” had been obtained as to the dates upon which the alleged abuse took place. In reality, no information, precise or otherwise, was given by the interviewees as to dates.

The techniques that Mrs Keith used to obtain information from young people with severe learning difficulties were, at times, indefensible and dangerous. The criticisms made of her methods by Ms Precey were entirely valid. Rather than accept those criticisms, Mrs Keith became defensive and self-justifying. Her recollections, impressions and judgments were thus tainted. The Tribunal accepted the submission that Mrs Keith employed flawed techniques and concluded that, if proper techniques had been used, Mrs Keith would probably not have obtained the same information.

Mrs Keith claimed that she was faced by a “wall of silence” from the staff of Betts Way. Such a conclusion was not in any way justified. All of the evidence received by the Tribunal was to the effect that staff members, including B and the applicant, answered the questions put to them and gave their opinions and impressions, sometimes with appropriate reluctance, in response to invitations to comment upon their colleagues’ qualities and faults.

Mrs Keith also claimed that A’s counsellor, Ms Allen, had, in the course of her therapeutic work with A, obtained information which had led her fully to support the proposition that A had been abused in the manner apparently discovered by Mrs Keith. The Tribunal was not satisfied that Ms Allen ever made the observations alleged by Mrs Keith and was satisfied that Ms Allen was, as she said in her letter to Mrs Rogers dated 5^th June 2000, “unable to substantiate the original allegation of abuse”.

Mrs Keith was over-worked and not properly supervised. This may have contributed to some of her failings.

The Tribunal declined to accept the conclusions expressed, in support of Mrs Keith, by Ms Hollingsworth as to the validity of the disclosures made by A and R. She did not express an independent view but merely agreed with Mrs Keith. In oral evidence, Ms Hollingsworth accepted that the reason for her presence at the interviews was to place the interviewees at their ease and to take notes and that she was not there to make judgments. The judgments that she purported to make were not well founded.

The Tribunal was not assisted by the oral evidence of Ms Hollingsworth. At first she said that she had written down in her notes “everything that was actually said” in the interview with A but she was later obliged to concede that that was not correct. When specifically referred to her notes of the interview with A, she first said that she had only recorded A’s replies to the questions and that those replies were to “open” questions from Mrs Keith but later conceded that, when making her notes, she probably combined the substance of the question or questions and the single word answer or answers to produce a note such as “It happened more than once – Paul did it”. Accordingly, the Tribunal was unable to determine, from Ms Hollingsworth’s evidence or otherwise, the extent to which information was supplied by A response to leading questions. The Tribunal inferred, from the notes and the concessions eventually made by Ms Hollingsworth, that most, if not all, of the relevant information emerged as the result of replies to leading questions.

Ms Hollingsworth’s recollection of the interview with R was poor and she was unable to clarify how her notes reflected the “amalgam of words and actions” allegedly used by R to demonstrate how he was abused and by whom. Thus, the submission made on behalf of the applicant that it is “anybody’s guess” as to what actually happened when R was given the dolls was not unreasonable. There was no evidence upon which the Tribunal could rely to elucidate the allegedly “poignant” and “persuasive” non-verbal disclosures by R. The contemporaneous notes and Ms Hollingsworth’s eventual concessions in oral evidence indicate that it is likely that the verbal disclosures were all made in response to leading questions.

The Tribunal rejected the conclusion expressed by Mr Munn that, during his interview, R described a “situation”, involving himself, B and the applicant, that he had experienced and had kept to himself until Mrs Keith gave him the opportunity to talk about it. Such a conclusion is not supported by the contemporaneous notes. Mr Munn had no previous experience of interviews of this kind or of the use of anatomically correct dolls, though he apparently suggested that they should be used to enable R to express himself. When reaching his conclusion, Mr Munn probably deferred to what he perceived to be the greater expertise and experience of Mrs Keith and Ms Hollingsworth.

The Tribunal heard no oral evidence from Ms Holden and was therefore able to consider only her witness statement and the notes which she made of the 3 interviews with S and the interview with Y. The Tribunal noted that Ms Holden said, in relation to the first interview with S, that Mrs Keith “had to use specific questions of [S] that required her to answer yes or no” and that, when shown the photographs during her third interview, S did not recognise many people but did recognise the applicant. The Tribunal also noted that Ms Holden said, in her written statement, that Mrs Keith offered S a doll and “asked her whether this could be John”.

Ms Holden apparently agreed with Mrs Keith’s assessments. The Tribunal declined to speculate as to whether Ms Holden made any separate or different assessments of her own.

Ms Holden’s account and notes of the interview with Y gave rise to many questions. Ms Holden was not available to answer those questions. Accordingly, the Tribunal was unable to attach weight to the questionable conclusions expressed by her.

The Tribunal received no evidence from Ms French, who was present during the 2^nd interview with S and the interview with Y. The Tribunal was invited to conclude that Ms French would have said that she did not regard the disclosures heard or seen by her as valid. The Tribunal declined to speculate about that but did accept the evidence of Mrs Kay to the effect that Ms French told her, in October 2000, that she was “unaware of any evidence that had been produced” to say that the applicant was guilty of any abusive or inappropriate behaviour towards users of Betts Way.

The investigation into the conduct of the staff of Betts Way was driven on, at first, by X’s parents’ strong conviction that their daughter had been abused by B. In 1995 investigators concluded that X’s allegations probably related to another child who had briefly attended Betts Way. That conclusion appeared to be fully justified by the evidence available to the Tribunal. In 1997 Mrs Rogers was prevailed upon to review that conclusion but she discovered nothing to implicate B. The Tribunal had no reason to doubt that that conclusion, arrived at by Mrs Rogers on the basis of the evidence then available, was sound. Subsequent events confirmed that reports by X’s mother were not reliable. The report made by X’s mother on 1^st July 1998 (that X had told her that B and John Spencer were one and the same person) was contradicted by X when she was interviewed. Similarly, the suggestion made by X’s mother in February 1999 (that X had identified John Spencer by reference to a newspaper photograph) proved to be a groundless distraction. The further suggestions made by X’s mother in August 1999 (that X had been approached and threatened and had said that someone had “taken advantage of” her) came, upon investigation, to nothing.

The conclusions apparently reached by Mrs Keith in July 1998 as to the abuse suffered by X and as to the place or places where that abuse occurred were not based upon any reliable evidence. The interviews with X on 9^th and 10^th July 1998 apparently left Mrs Keith “in no doubt” that X had been abused in B’s flat and at a number of other locations. The Tribunal was unable to discern any proper basis for the removal of all doubt from Mrs Keith’s mind. The only reasonable conclusion to be drawn from the responses by X was that she was unable to give a coherent account.

When Mrs Keith and Ms Hollingsworth spent time observing and listening to X in September 1998 they should have realised that most of what she said was mere “parroting” of observations made by others. The fact that X was apparently able to find B’s flat was a source of concern but hardly justified Mrs Keith’s apparently firm conviction that B and others were responsible for the systematic sexual abuse of children from Betts Way in that flat.

Mrs Keith then spent much time and effort in pursuit of proof of her hypothesis. In doing so she appeared to lose sight of the need, clearly emphasised by the Cleveland Inquiry, to “approach each interview with an open mind”.

In breach of the “Cleveland guidelines” Mrs Keith habitually failed to conduct interviews in accordance with good practice and conducted more than two interviews with both X and S. She apparently selected and accepted any evidence, however slight, in support of her hypothesis and was inclined to reject any and all indications that her suspicions might be wrong. The investigation was conducted without regard to the established guidelines for interviews of those with limited intellectual capacity and produced results which were misleading not only to those who were responsible for the supervision of the investigation but also to those primarily involved in it.

While not necessarily adopting the description of the investigation as an “unstoppable juggernaut”, the Tribunal was satisfied that the investigation was driven forward by X’s parents, and then by Mrs Keith and by those who supported her against her critics, without any proper evaluation of the strength of the evidence it had produced or proper consideration or adequate review of the course it had taken.

All of the evidence received by the Tribunal from those who worked at Betts Way or inspected the unit or were otherwise familiar with the way in which it was run was to the effect that the staff provided care to a very high standard. Furthermore, all of the evidence from those who worked with, supervised and knew the applicant, both before and after his employment at Betts Way, was that he was and is held in high regard. The reaction of all those who knew the applicant when they heard of the allegations against him was one of complete disbelief. It follows that, before the Tribunal could be satisfied, on the balance of probabilities, that the applicant was guilty of abusive behaviour of the kind alleged, it had to have cogent evidence of that. No such evidence was adduced.

The vast majority of the many questions asked by Mrs Keith during the interviews with X, S, A, R, J, G and Y were leading. All of the answers to such questions had to be viewed with the utmost circumspection.

Mrs Keith sometimes pressed the interviewees to change their answers. A clear example of this is to be found in the interview with J. Mrs Rogers’ notes [E 597] reveal the following:

The Tribunal accepted the evidence of Professor Sacks as to the dangers of using dolls with genitalia in interviews with children or vulnerable adults. Mrs Keith’s use of anatomically correct dolls was, at best, controversial and probably guided the interviewees to whom they were presented to elaborate from their general knowledge, their personal discussions with others, their personal experiences of sexual encounters with their peers or their fantasies. Further, the presence of the dolls as “irrelevant cues” could well have been inherently suggestive and could easily have led Mrs Keith, as the investigator who selected the cues in the first place, to confirm her a priori beliefs.

Mrs Keith’s expressed view that children who have not been abused only play with anatomically correct dolls in an ordinary, non-sexual way was ill informed and wrong. The evidence given to the Cleveland Inquiry by Dr Hamish Cameron, with which Mrs Keith should have been familiar, was to the effect that the majority of non-abused children use dolls for non-sexual play but some non-sexually abused children will make these dolls pretend to pass urine and possibly even to pretend to have intercourse. A “positive” response to the dolls is only an indicator that a child may have been sexually abused and is not a diagnostic test (paragraph 12.60 of the Report). Furthermore, the interviewees in this case were adults who might well, by the time they were interviewed, have been involved in sexual activity which was not abusive.

The Tribunal found it impossible to accept that the young people to whom dolls were presented took them and, without prompting, named them and used them to demonstrate real events. That did not happen when Mrs Keith interviewed J and G. The contemporaneous notes of the interviews of A and R and the evidence of Ms Holden as to how one doll was presented to S, together with the contemporaneous notes of that interview, suggest that the assertions, made by Mrs Keith, that A, R and S used the dolls without any prompting, were false.

The collection of photographs gathered up by Mrs Keith and used in the interviews was wholly unsatisfactory. The photographs clearly prompted A to name the applicant and others, including Z, as having been present at B’s flat.

The Tribunal accepted the evidence of Professor Sacks as to the inadequacy of the preparation for the interviews undertaken by Mrs Keith. She had no way of knowing whether her questions had been understood and/or whether the answers she received were valid responses or attempts to please, genuine expressions or echolalia. She assumed, without any proper basis for doing so, that the interviewees were capable of using their “explicit” memories accurately to link the various episodes, events and facts that they were being asked to consider, both in time and in place. In reality, the explicit memories of all of those interviewed by Mrs Keith were probably impaired to the extent that, when they appeared to be speaking of matters as though they were linked, they were in fact speaking about wholly unrelated matters. Many of the contemporaneous notes of the interviews support that conclusion.

The investigators’ knowledge of the nature and extent of the past histories of each of the interviewees was similarly inadequate to enable them to draw proper conclusions. For example, if Mrs Keith, Ms Hollingsworth and Mr Munn had fully appreciated and understood the past history of R’s sexual involvement with other children and young people throughout the period of more than 11 years before his interview in June 1999, they might not have been so deeply impressed and/or affected by the sexual displays which he apparently enacted using the dolls with which he was presented.

The investigation was conducted apparently without proper regard to the guidelines issued by the Cleveland Inquiry. The breaches were, in the words of Douglas Brown J in Rochdale Borough Council v. A and others, “not minor, trivial or infrequent, but substantial breaches which rendered the information received from the children valueless and unreliable”. Of particular significance is the guideline numbered 12 in paragraph 12.34 of the Report. This says that, in certain circumstances, it may be appropriate to use the special skills of a “facilitated” interview but that type of interview should be treated as a second stage and the interviewer must be conscious of the limitations and strengths of the techniques employed. It is further said that the “facilitated” interview should only be conducted by those with special skills and specific training. The Tribunal concluded that Mrs Keith should not have been authorised to conduct any “facilitated” interviews and was satisfied that her supervisors (the Senior Strategy Group) should not have accepted the conclusions that she drew from those interviews without corroborative evidence.

The Tribunal felt obliged to look for corroboration of the allegations made against the applicant by A, R, S and Y. It could find none. All of the other evidence tended to show that the allegations were untrue. All attempts by Bromley to obtain corroborative evidence from parents and counsellors proved to be in vain. There was no relevant medical evidence and no evidence of disturbed or inhibited behaviour at the material times to be found in the social work or other records. The allegations were wholly unsupported.

The absence of evidence tending to show the truth or falsehood of the central allegations was attributable, at least in part, to Mrs Keith’s failure to pursue relevant lines of enquiry and thus to obtain more detailed information about the relevant event. On several occasions Mrs Keith could have asked questions the answers to which might have enabled her or others to determine the validity of the claims apparently being made to her but she did not. The suggestion that the Betts Way internal staff and residents’ records might be examined to find corroborative evidence was not made until September 2000 [J 73-74)].

It appeared from the contemporaneous notes that, during at least 2 of the interviews, Mrs Keith asked whether anyone had seen the alleged abuse. When asked this question, S apparently said that her mother had seen “John” and “Robert” abusing her. Mrs Keith rejected this reply as nonsensical but, when she asked the same, or a very similar, question of A and received a reply to the effect that the applicant had seen the abuse by “Paul” she apparently accepted this as a credible response. The Tribunal was unable to discern any valid reason why Mrs Keith should have given weight to A’s reply while effectively disregarding S’s reply and holding it to be “too confusing to be reliable”. Both of the responses were similarly unreliable because the question itself suggested that somebody had been watching and the interviewee was probably not able or prepared to say that she did not know the answer and wished to give some answer to satisfy the questioner.

Any record of an interview with a person with learning difficulties during which the interviewee rarely says that he or she does not know the answer should be regarded with considerable circumspection. All of the records of interviews relied upon in support of the allegations against the applicant were of such a character. The Tribunal accepted the evidence of Professor Sacks that people with learning difficulties have been found to give any answer, correct or not, rather than admit that they do not know the answer.

The Tribunal also accepted evidence from Professor Sacks to the effect that an awareness of the ability of a person with Down syndrome to “understand short sentences” or “speak in simple sentences” may give no clue as to their ability to maintain a coherent narrative within a contextual framework which links all the questions, statements and answers in a conversation. This requires a sophisticated process of retaining, sorting and sifting memories which the young people interviewed in this case were probably unable to manage.

The allegations made by A, R and S against the applicant were not “strikingly similar” as submitted. They were all quite different. It is likely that the common themes (of sexual activity and B’s flat) were introduced by Mrs Keith, who conducted all three of the interviews. Accordingly, nothing of significance was to be derived from the fact that common themes emerged.

The Tribunal rejected the submissions that the fact that A identified the same place as that identified by R, S and X was significant and that credence should be given to S’s account because of the striking similarities with other accounts. These were tantamount to a submission that the Tribunal should accept some or all of the allegations made against the applicant because there were multiple allegations, made by different people on different occasions, mentioning the same location and should conclude that “there is no smoke without fire”. However, the relevant interviews were all conducted by Mrs Keith. The same photographs were used to prompt the interviewees. Leading questions were frequently used in all of the interviews. Dolls were presented to each of the interviewees and probably named by them in response to prompting. All of the interviewees were invited to recall events which had allegedly taken place many years before. The allegations made by the interviewees were not consistent. The allegations apparently made by S as to the participants in sexual activity were wholly inconsistent with those apparently made by X. The misconduct apparently alleged by each of the interviewees against the applicant was different in character and did not amount to a pattern of behaviour. In all of these circumstances the Tribunal was unable to place any reliance upon any apparent similarities in the responses obtained during the interviews with X, A, R and S.

None of the evidence relied upon by the Secretary of State in support of the allegations of sexual abuse was in reliable form nor was it correctly and accurately analysed. The Tribunal was guided by the observation made by Douglas Brown J in Rochdale Borough Council v. A and others, that the evidence must pass these tests if the validity of the allegations is to be established satisfactorily.

In addition to the above general conclusions as to the reliability and validity of the available evidence, the Tribunal came to the following specific conclusions, having given detailed consideration to the evidence of the interviews with each of the young people who appeared, to those present at those interviews, to be accusing the applicant of serious misconduct.

The interview with A

While satisfied that A had probably been involved in activity which could properly be described as “sexual abuse” at some time before she was interviewed in June 1999, probably involving R and others of her contemporaries, the Tribunal was not satisfied by the evidence that A was abused in B’s flat as she alleged and was not satisfied that the applicant was guilty of misconduct by watching the alleged or any abuse of her and/or failing to intervene to prevent it.

The Tribunal accepted the applicant’s evidence that he had never been in B’s flat when A was there.

The interview with R

The Tribunal found it difficult to understand why Mrs Keith and Ms Hollingsworth should have said that they were “extremely surprised” by R’s reference to the applicant. Only a few hours before, A had identified the applicant and they had introduced R to the applicant (by means of a photograph) and had probably unwittingly indicated to R their own interest in the applicant. The Tribunal concluded that this expression of extreme surprise in the subsequent reports was probably disingenuous.

The Tribunal was satisfied that R had probably been involved in activity which could properly be described as “sexual abuse” at some time before he was interviewed in June 1999 but was not satisfied by the evidence that R was abused in B’s flat or at Betts Way as he alleged and was not satisfied that the applicant was guilty of misconduct by kissing, cuddling or touching R either before, after or during even more serious abuse of him by B.

The Tribunal accepted the applicant’s evidence that he had never been in B’s flat when R was there.

The interviews with S

The Tribunal was satisfied that S had probably been involved in activity which could properly be described as “sexual abuse” at some time before she was interviewed in January, February and June 1999 but was not satisfied by the evidence that S was abused in B’s flat as she alleged and was not satisfied that the applicant was guilty of misconduct by having sexual intercourse with S and/or with X and/or by having sexual relations with B in the presence of S and X and others as alleged or at all.

Again, the Tribunal accepted the applicant’s evidence that he had never been in B’s flat when S was there and that he had never been in B’s flat when X was there.

The Tribunal rejected the submission that the applicant, in his evidence to the Tribunal, consistently “down played” his involvement with B and the further submission that he probably had a much closer relationship with B than he was prepared to admit. The applicant was, at all material times, aware that suspicion had fallen upon B and was, not surprisingly, keen to distance himself from him when he was interviewed by Mrs Keith. It does not follow that the applicant was being untruthful. The Tribunal did not share Mrs Keith’s view that the applicant’s subsequent correction of his assertion that he had never been to B’s flat was sinister. Further, the Tribunal did not regard the inaccuracy, in his answers to Mrs Keith, of the applicant’s quantification of the period of time he had worked with B and the number of shifts he had undertaken with him as evidence of mendacity. The applicant obviously knew B and he co-operated with him in providing care for the residents of Betts Way from July 1992 until July 1993. However, the applicant did only work with B for a relatively short time and only occasionally on the same shift. There was no evidence whatsoever that the applicant had the sort of relationship with B that is implied by the allegations apparently made by A, R and S. The Tribunal accepted the evidence of the applicant, supported by that of Mrs Hughes and others, that his involvement with B was limited to that normally to be expected with a work colleague.

The interview with Y

The Tribunal was satisfied that Y had probably been involved in sexual activity which could properly be described as “sexual abuse” at some time before she was interviewed in August 1999 but was not satisfied by the evidence that Y was abused at Betts Way or in the applicant’s flat as she alleged and was not satisfied that the applicant was guilty of misconduct by having sexual intercourse with Y, hitting her with a belt or threatening her as alleged or at all.

The Tribunal was not satisfied that the applicant was guilty of any misconduct (whether or not in the course of his duties) which harmed a child or placed a child at risk of harm and was therefore not satisfied that the applicant is unsuitable to work with children. The Tribunal therefore decided to allow the applicant’s appeal.

The decision of the Tribunal was unanimous.