The prison
governor, the notice and the
question of compensation
RICHARD WEBSTER
Christmas is coming, the geese are getting fat,
Please to put a penny in the old man's hat;
If you haven't got a penny, a ha'penny will do,
If you haven't got a ha'penny, God bless you.
Beggar's Rhyme -- Traditional
22 December 2002; revised 10 March 2003
QUITE WHEN THE Beggar's Rhyme was first written - or spoken - is lost in the
mists of time. But it would be generally agreed that these days a penny or
a halfpenny would not go very far towards solving the problems of anyone
who is financially disadvantaged. How much more generous it would be, and
how much more in keeping with the modern Christmas spirit, if what was in
question was the prospect of tens of thousands of pounds. Or even of a
hundred thousand pounds.
As Christmas approached in December 2002 perhaps it was such thoughts as these which
moved the governor of Wakefield Prison, a high security prison in the
north of England, often considered a model of good practice, to post the
following announcement on noticeboards throughout the establishment:
_______________________________________________________
NOTICE TO PRISONERS
Ref. No.: 78/2002
Subject: Tennal Assessment Centre, Birmingham
Originating Department: Health Care
Text: Would any prisoner who lived at Tennal Assessment
Centre and Community Home during the 1960s, 1970s or 1980s, who wishes to
join a group compensation action against the Home, contact Richard Scorer,
Molly Whittal or Suzanne Heald at Pannone and Partners, Solicitors, 123
Deansgate, Manchester, M3 2BU.
Any prisoner who is uncertain over what to do can apply to the Senior
Medical Officer.
Signed: J. Slater, Governor
Date: 5 December 2002
_______________________________________________________
If a prison governor were to post a notice offering payouts
of between £20,000 and £100,000 to any prisoner who came forward with a
false allegation against a former member of staff at Tennal Assessment
Centre, it would immediately be regarded as a major national scandal. Yet
for some innocent care workers the effect of what the Wakefield governor
has now done may be little different. It will be scant consolation for
them that his notice also holds out the prospect of financial rewards for
making true allegations.
Of course nobody is suggesting that no abuse ever took place at the Tennal
home. In October 2002 one man
pleaded guilty to sexually abusing a number of young boys who had been
in his care there. Another man has also pleaded guilty. However, two
former care workers who have been convicted in relation to similar
offences at the home both pleaded 'not guilty'. In October 2001 one of
them, an 82-year-old pensioner, sat in a wheel-chair in the dock,
incontinent and suffering from the early stages of Alzheimer's, as he was sentenced
to eight years in prison. Because he died in prison shortly afterwards,
the full facts of his case may never be known. But there are many
indications that Eugene Devoti, who had stood trial with him,
and faced similar allegations, was entirely innocent.
Wherever the truth
may lie, there can, in the present climate, be little doubt that a
significant proportion of the allegations against all four men were false;
the nature of police trawling operations has a tendency to ensure that
even those care workers who are genuinely guilty end up facing a
significant proportion of false allegations. By posting the notices he
has, the governor of Wakefield prison may well add to the sum total of
false allegations. He may even be responsible for bringing more innocent
care workers, who have yet to be accused by anybody, into the firing-line.
The notices, which he no doubt put up with the best of intentions, should
therefore be taken down immediately. It is not for the prison service to
display free advertisements on behalf of private firms of solicitors who
are seeking to publicise group actions relating to allegations of sexual
abuse.
It is certainly
not for prison governors to do anything which might result in yet more
innocent men being sent to prisons which, as we know too well, are already
over-crowded.
THE QUESTION OF WHETHER
multi-party actions of this kind should be advertised at all is, given the
rules which currently govern such civil actions, a more difficult one.
This is principally because there can be occasions when solicitors are
actually compelled to ‘advertise’. Many group actions are subject
to a Group Litigation Order made by the Lord Chief Justice. When making
such an order the Court is not obliged to direct that an action should be
publicised but it does have a discretion to do so. (Civil Procedure Rules
1998, Part 19.11).
It is often suggested that one of the purposes of
making such an order is to ensure that nobody who has a legitimate claim
should miss the opportunity to obtain compensation simply because they are
unaware that a group action is in progress. However, since the Court has
the power to admit new claims after the formal ‘cut-off’ date has passed,
and since it would be theoretically possible for a new and separate action
to be started at a later date, this is not the complete explanation. It
seems that the rationale for the rule is a managerial one and that it
seeks to render group-claims more efficient and more economical by
attempting to ensure that all the sheep are led by one shepherd into one
pen. This certainly is the view adopted in the authoritative commentary
offered on this portion of the Civil Procedure Rules in the White Book:
Rule 19.11 (3) (c) and the
practice direction (paragraph 11) cover publicising a Group Litigation
Order. The intention is to enable the court to order the solicitors for
the group to ‘advertise’ the making of the order and any cut-off dates for
joining the register to minimize the risk of individuals trying to start
their own separate proceedings at a later date. But neither the rule nor
the practice direction give guidance on the form of any publicity, or on
who might be ordered to pay the costs of placing the appropriate
advertisements.
Since in
practice it may be difficult for individuals, or small groups of
litigants, to obtain sufficient public funding to make an action viable at
a point after a large group action has already gone through the courts,
the cut-off dates set by a court for entry into a group action are
significant and publicising them may seem to be justified on these
grounds.
If the court has itself made a specific order which directs that an action
must be publicised any criticism which is to be made in these
circumstances should be directed primarily at the court which makes the
order, or the Civil Procedure Rules which permit it to do so, and not at
the firm of solicitors which carries it out. (Criticism might be made of
solicitors for the manner in which publicity is handled but it
would clearly not be fair to criticise them simply for complying with an
order they have no power to waive.)
In the case of the Tennal action, however, there was no direction by the
court to publicise the case. Pannone and
Partners, who took exception to an earlier version of this article,
clearly believe that they acted responsibly by requesting the Governor of
Wakefield Prison (and presumably other prison governors elsewhere) to
bring the group action to the attention of prisoners. They have said that
they considered that they ‘had a duty to
draw this deadline to the attention of all or any who may have harboured a
wish to pursue such proceedings. Indeed, we would have been open to
criticism at a later date had we, as solicitors acting in this matter, not
taken reasonable steps to bring this deadline to the attention of the
class of individuals who might be affected by it.’ They say that had they
not acted as they did, they would, in effect, ‘be responsible for
depriving those who might have had a claim but were unaware of the
deadline of the possibility of bringing proceedings against Tennal.’
This argument clearly has some force. As has already been acknowledged, it
is entirely possible that the notice posted by the Governor of Wakefield
did bring the Tennal action to the attention of some prisoners who
genuinely had been abused while at the Assessment Centre and who therefore
have a legitimate entitlement to seek compensation. Moreover Pannone and
Partners may well be right when they say that, had they not acted in this
way, they would be open to criticism at a later date. Such criticism might
be made against them, for instance, by potential claimants who had not
been informed of the action, or by organisations representing their
interests. Whether such criticism would in the end be justified is another
matter.
The
argument is certainly not one that applies to all cases, for, as has
already been noted, cut-off dates are by no means always, as their name
suggests, final deadlines. It is a matter of some interest that the
website of the specialist firm of solicitors headed by solicitor Peter
Garsden lists a number of group actions where cut-off dates passed as long
ago as May 1999. In several of these cases, however, it is specifically
indicated that
‘new cases are always considered’.
What some firms of solicitors seem reluctant to recognise is that
if they do publicise such actions in the absence of a court direction to
do so they are open to legitimate criticism of a quite different kind from
that which might be made by potential claimants. Indeed, some of the
dangers of advertising cut-off dates emerge quite clearly from the report
prepared by Lord Woolf, the present Lord Chief Justice, on the civil
justice system in 1996. In his final report, Access to Justice,
Lord Woolf devoted an entire chapter to multi-party actions and on
the need to redraft the rules which then applied to such actions.
While recognising
that there was sometimes a need both to set cut-off dates for joining
group actions and to publicise these, he also pointed to the arguments
against doing this in certain cases. At one point he notes that ‘The
desire of defendants to know the scale of the action they face leads to
the setting of cut-off dates which in turn can cause the swamping of valid
claims with weak or hopeless claims’ (17.11). Expanding this point he
notes that ‘early cut-off dates tend to result in a rush to register which
encourages many weak or hopeless claims to be registered and inflates the
pool of potential claimants. The bandwagon effect may raise unrealistic
hopes of compensation from claimants (17.44)
He also
notes that in certain kinds of action there tends to be a high proportion
of doubtful claims: ‘the bandwagon effect, in cases such as
benzodiazepine, has the effect of swamping stronger claims with a host of
weaker claims, many of them with very questionable foundation, and making
the action as a whole unviable.’ (17:52,
Woolf Report)
Lord
Woolf is clearly concerned that cut-off dates and the publicising of
cut-off dates, which are designed to make the administration of justice
more efficient, can in some cases have the effect of encouraging
fabricated or doubtful claims which undermine the quest for justice.
It is
precisely because such concerns are evidently well-founded that any firm
of solicitors might be expected, wherever they have the freedom to do so,
to exercise extreme caution when considering whether to publicise group
actions which relate to alleged acts of sexual and physical abuse many
years ago. Whereas many group actions (such as, for example, those which
related to thalidomide) are fought on behalf of people whose status as
victims is clear and objectively verifiable, claims involving ‘historical
abuse’ are of a quite different order. In such cases there is usually no
objective evidence at all that complainants have suffered the abuse they
allege; usually the only form of strong corroboration for such claims
(which is itself often not available, and which is also not always
reliable) is found in the confessions or guilty pleas of those
who are accused of perpetrating the abuse.
Because
of the lack of any objective test, it is extremely difficult either for
the solicitors acting in a group action, or for the Legal Service
Commission officers who are responsible for allocating funding to them, to
reliably filter out false claims. Psychological reports, although
sometimes credited with this role, certainly do not in practice fulfil it.
Medical reports based on vaginal or anal examination are usually
irrelevant to such long-delayed allegations.
Given
that, for all these reasons, the gates of the civil courts are already
wide open to fabricated claims in such cases, it might well be argued that
any firm of solicitors which was acting responsibly should refrain
from any action which might conceivably encourage more false claims. There
is certainly a powerful argument for deciding that group actions
concerning allegations of abuse should never be advertised. There
is a specially strong case for not advertising them in prisons where it is
widely recognised that there is a strong compensation culture and where
dishonesty and fabrication are, for reasons which should be obvious,
particularly prevalent.
BY DECEMBER 2002 when the notice about Tennal was first posted by the
Governor of Wakefield Prison, this argument had already been significantly
strengthened by the publication, only a month or so previously, of the
report of the Home Affairs Committee on the Conduct of Investigations into
Past Cases of Abuse in Children’s Homes (HMSO, 31 October, 2002).
After
referring to the evidence which had been given to them on such matters,
the Committee said this in their report:
The risk that the prospect of compensation might induce some individuals
to give untruthful evidence is said to be compounded by a number of
factors. First, the almost open invitation, given by the police during a
trawl, to make an allegation of past abuse. Secondly, the advertisement by
solicitors of civil compensation actions and awards. Thirdly, the working
relationship that has been established between certain firms of personal
injury solicitors and police forces. Finally, the conduct of group
litigation, in civil compensation actions, is said to leave little
opportunity for scrutiny in each individual case (Paragraph 101).
The
committee went on to make it clear that they regarded the risk of
compensation-induced false allegations as a real one. After criticising
the ruling in a recent case (Lister v Hesley Hall Ltd) they said:
… we believe that by opening the door to ‘no fault’ liability in civil
compensation actions, the ruling may further encourage unscrupulous
individuals to make false allegations, in the hope of receiving
substantial awards of financial compensation (Paragraph 120).
During one of the evidence sessions Bridget Prentice MP specifically
raised the issue which would surface a month later in Wakefield:
We have had evidence that suggests that solicitors advertise civil
actions in prison, even in the prison magazine …I have strong views on
these compensation things. Do you think there is anything the Government,
the Lord Chancellor's Department or someone should be doing about that
type of advertising? Or the Law Society? Whoever? (Tuesday 14 May 1990)
As
very many observers are, this MP was clearly horrified by the very
possibility that such advertising might be conducted in prisons. She would
almost certainly have been even more shocked had she been aware that the
Governor of a prison might himself post such advertisements on the prison noticeboard.
In view of such clear expressions of dismay and concern at the practice,
it might seem remarkable to many that this practice should continue
apparently unchecked after the appearance of the Home Affairs
Committee report.
While
solicitors must bear some responsibility for this, it would be quite
wrong, I believe, to expect them to shoulder all the blame, or even the
major part of it. In the first place it is quite clear that it is not they
but the civil courts who have created a culture in which the advertising
of group actions and the availability of compensation is regarded as being
both normal and generally desirable. The proper caution expressed by Lord
Woolf in parts of his report was perhaps never given the kind of
prominence it merited and it certainly has not been embodied in the rules
which have subsequently been put in place.
ONE OF THE FACTORS
which can only exacerbate the problem is the manner in which solicitors
conducting group actions are remunerated. Because they are paid for each
individual client they represent, it is clearly in their interests to find
as many new clients as they are able to. The system of legal aid currently
in place means that solicitors fund their work in the pre-trial or
pre-settlement phase of the case through certificates issued to them by
the Legal Services Commission in relation to cases which are judged as
having merit. These certificates in effect underwrite the expenses which
the claimants’ solicitors incur while preparing the action and guarantee
that they will at least receive some payment at the conclusion of the
action even if it is not ultimately successful. In some cases interim
payments are actually advanced to solicitors before the case has in fact
been settled.
Initial certificates in respect of each client may be in the region of
£2,500. Subsequent awards mean, according to the Legal Services Commission
which manages such actions, that the total public funding available per
client may in some cases be £10,000 or even more. Whereas an action
involving merely four claimants may result in funding totalling between
£20,000 and £40,000, a single action involving 50 claimants could lead to
total legal aid funding for the solicitors involved of a quarter of a
million – or even half a million pounds.
Some
firms have even begun to specialise in dealing with allegations of abuse.
Peter Garsden, is a Cheshire-based solicitor who specialises in obtaining
compensation in ‘historical’ sexual abuse cases. He runs the largest
specialist department dealing with such claims in the country. It is
currently co-ordinating some 800 different individual cases, half of which
are being dealt with directly by the firm itself. In this case the legal
aid funding apportioned to a single firm will almost inevitably run to
several million pounds.
This, however, is by no means the whole story. It is true that, if none of
the cases resulted in a settlement, then the remuneration of the
solicitors in question would effectively be capped at the amount set by
the Legal Services Commission. The entire litigation process would then be
paid for out of public funds.
However, in the event that a settlement is reached, either by negotiation
or by a decision of the court, the charge for the solicitors’ costs would
then become payable by the defendants in the action. Any funding which had
been received in the form of interim payments of legal aid would be
returned by the solicitors who had received them to the Legal Services
Commission. The entire fees and costs for the action would then be
effectively re-invoiced to the defendants.
The work would not, though, be invoiced at the same hourly rate that had
been applied by the Legal Services Commission in calculating the amount of
public funding available for each case. It would instead generally be
re-invoiced at a much higher hourly rate. Peter Garsden made this quite
clear when he gave evidence to the House of Commons Home Affairs Committee
in June 2002.
He was quizzed by members of the
Committee about his firm’s website and on the fact that it contained the
following statement about the manner in which his firm had expanded:
There is undoubtedly
investment in the future in that when these actions are successful and
costs are settled, the mark-ups we will be requesting are considerable . .
.
He
explained that what was meant by this was that, because the work he was
engaged in was difficult and responsible, he and his firm would be
entitled to charge for it at a higher rate than they would charge for
other kinds of legal work:
I am talking about the fact these cases
carry with them an extra degree of responsibility both to the victim, to
the expert, to the court, and in every other way they are very difficult
and very responsible types of cases. It is very difficult to find people
who do that type of work. Because the degree of responsibility and the
amount of care required is greater, we are entitled to be paid more money
for it (436).
One
solicitor who acts for defendants in these actions has said that the
mark-up applied to the standard legal aid rate can be as high as 150% and
that in some very exceptional cases, where the issue has gone to trial,
legal costs can amount to as much as £100,000 for an individual case. Most
cases result in much lower legal costs than this but the same solicitor
generally advises defendants in such actions to allow, on average, £25,000
per individual claimant. Since this figure would include barristers’ fees
and other costs, it should certainly not be taken to represent the total
remuneration paid to the solicitor. But this figure will clearly remain a
substantial one.
However, even at this stage, the figure would not necessarily be the final
one. In the course of negotiating settlement the defendants’ solicitors
might contest aspects of the costs claimed, including the mark-up which
had been applied. If the claimants’ solicitors, in calculating their
costs, arrived at a higher figure than that eventually agreed in the terms
of settlement with the defendants, this would not inevitably mean a
reduction in their final receipts. In some cases at least the difference
between what they asked for and what they had been paid might be made up
by the solicitors taking this money from the damages awarded to the
individual claimants. As Peter Garsden put it in his evidence to the Home
Affairs Committee:
If there is any shortfall between the
amount of costs I have incurred and the amount I am paid by the defendant,
the shortfall is made up out of the claimants’
damages …
Garsden immediately added: ‘though we try very hard not to do that and it
is more or less a policy decision that we do not do it, we would have to
stand the loss’ (553)
In
theory, however, it seems clear from his evidence that precisely this
option remains open. Even without allowing for such a final adjustment,
under which solicitors would be paid in part out of damages awarded to
their clients, one solicitor who represents defendants in these cases has
observed that lawyers sometimes receive twice as much money in costs as
the clients they represent receive in damages.
PERHAPS THE
SINGLE MOST important factor, however, in the
system through which claimants’ solicitors in these cases are remunerated,
is that there is no real financial incentive to expose false allegations.
A solicitor who uncovered a fabricated allegation would either receive no
legal aid at all in respect of such a claimant, or, if a certificate had
already been granted, would be remunerated on the same basis as if the
case had been lost. Since solicitors’ firms must, if they are to continue
to serve their clients well, succeed in maintaining their own
profitability, they can hardly be expected to invest the massive amount of
time and money which would be required to test out claims exhaustively or
to make a concerted effort to uncover allegations which are false.
Given the large number of false
allegations which appear now to be in circulation, any solicitors who
adopted such an approach might rapidly undermine the financial viability
of their departments or even, in the case of specialist ‘niche’
solicitors, of their firms. By so doing they would actually be letting
down those among their clients whose claims were genuine.
For this reason solicitors
handling such claims actually find themselves ensnared within a system
which is inimical to an even-handed, properly investigative approach to
the very serious allegations with which they are dealing.
The effects of such a system on claims in the different but related sphere
of medicine and medical negligence have been trenchantly described by Dr
Anthony Barton:
Most healthcare claims are legally aided because of their cost and
complexity. Civil legal aid is fundamentally flawed. First, funding is
granted on the advice of the applicant’s lawyer who has a financial
interest in advancing the case - a clear conflict of interest creating
perverse incentives to pursue unmeritorious cases. This is amply borne out
by the near zero success rate in drug claims against the pharmaceutical
industry, and that most clinical negligence cases fail - too often the
only beneficiaries of legal aid are lawyers. Second, the usual ‘loser
pays’ rule of litigation doesn't apply to an unsuccessful legally aided
litigant who is in a no lose position while the defendant is in a no win
position. Cases may be settled by defendants regardless of merit to avoid
irrecoverable legal costs, a practice described as legal aid ‘blackmail’
in Parliament and by the Bar Council. The effect of this rule was
described by the House of Lords as unfair. It also arguably infringes the
right to a fair trial under Article 6 of the Human Rights Act.
Furthermore, because the reasons for funding decisions are privileged and
confidential, the legal aid system is unaccountable to Parliament, to the
courts and to the public.
Legal aid fulfils at no risk the economic aspirations of claimant lawyers
who have little incentive to develop the commercial discipline imposed by
conditional fee work. The continued availability of legal aid thus
inhibits the growth of the conditional fee system and the widening of
access to justice.
… Most litigated claims are unsustainable because legal aid is awarded
with scant regard for merit. We can all reasonably wonder at the
relationship between litigation, liability and compensation. For example,
the benzodiazepine tranquilliser case involved thousands of claimants and
cost over £40 million in legal aid without a penny obtained in
compensation.
Patients pay the price of litigation
These words, written by a medical practitioner who is himself also a
solicitor, provide an interesting critique of the effects of the current
legal aid system in one particular sphere. It should be noted that what is
being called into question here is not the attitude or integrity of
solicitors themselves but the appropriateness of the system which has been
devised to manage and reward their work. Nobody is suggesting that
solicitors deliberately seek out unmeritorious cases or consciously
pursue claims which they know to be false or dishonest. It is simply that
the current system, in Dr Barton’s view at least, is actually designed in
a manner that sometimes rewards the pursuit of claims which will
eventually fail.
Precisely
because a very significant majority of sexual abuse cases, unlike the
benzodiazepine tranquilliser cases, actually succeed, the words quoted
here cannot and should not be applied directly to the manner in which this
very different kind of claim is pursued. It should also be noted that Dr
Barton’s analysis, like most analyses inspired by extreme economic
liberalism, leaves little if any room for motivations other than the
profit-motive.
The
problem in the sphere of sexual allegations is that the non-economic
motivations of the professionals involved, which can undoubtedly be
immensely powerful, far from counterbalancing the financial factors, may
actually serve only to magnify their effect.
Because,
over the last thirty years or so, there has become established deep in our
culture (and particularly among professionals) a powerful presumption of
veracity in relation to almost any allegation of sexual abuse, the
unmeritoriousness of some claims frequently appears to be almost
completely invisible. It is invisible not only to the claimants’ own
solicitors, who generally appear to believe quite sincerely in the
testimony of their clients, even when it is false; it also appears to be
invisible to the psychologists who frequently vouch for the claimants, to
the Legal Services Commission who grant them legal aid certificates, to
the courts who sometimes adjudicate their claims (though most are settled
out of court), and, no less importantly, to the insurers who usually have
to foot the bill for the compensation awards which are actually made.
In many
cases, allegations which might be exposed as untrue in the criminal courts
are either accepted as true by the civil courts, or, more frequently, are
not contested at all by insurance companies on the grounds that to oppose
them would be bad policy or might be too expensive, or might result in
unfavourable publicity. Although the presumption of veracity has been
challenged more frequently in the last two years (not least by the Home
Affairs Committee), it is still immensely strong.
Of course
it remains true that a significant proportion of the individual claims
handled by solicitors are well-founded. But there is evidence which
suggests that a very substantial number – perhaps far more than most
laymen or lawyers would imagine –
are not.
By now large numbers of false claims have actually been successfully
litigated and have resulted in large compensation payments. Meanwhile, in
the criminal courts, similar false allegations have not always been
dismissed but have sometimes led to the conviction of completely innocent
men. As a result a climate of credulity has been progressively
strengthened. In consequence personal injury solicitors who engage in this
kind of work are not only without financial incentives to identify
and reject false allegations, they are often without social or
psychological incentives to do this either.
It is for
all these complex reasons, in which financial, psychological and cultural
factors are intermeshed, that some personal injury solicitors who
specialise in historical abuse appear to have developed a particular
mind-set. As a result it sometimes seems that they quite genuinely cannot
understand the gravely dangerous nature of the work they engage in or the
huge scale on which retrospective allegations relating to care homes are
currently being fabricated. In particular they cannot understand the
extent to which, by unknowingly fuelling false allegations through the
successful financial claims they repeatedly make in relation to them, they
have actually helped to undermine the very process of justice they
sincerely believe they are upholding.
THE FACT THAT THE episode involving the posting of the Tennal notice in Wakefield
prison should have taken place even after the publication of the Home
Affairs Select Committee report does not, it would seem, indicate a
cynical disregard for the findings of this all-party committee of MPs. It
seems much more likely that it indicates the passionate sincerity with
which those engaged in the business of seeking compensation on behalf of
‘survivors’ believe in their own vocation and the justice of their mission
to secure compensation for those who make retrospective allegations.
It is a
sign of the gravity with which the Committee viewed this entire problem that in their report
they made it clear that at one point during their
deliberations they were attracted towards the idea of recommending that
the public-funding of group claims relating to sexual abuse should be
halted. They pointed out that in practice this would leave the Criminal
Injuries Compensation Scheme as the sole route to compensation for most
victims of abuse. They also made it clear that one of the reasons they
found this solution attractive was that ‘as
the Scheme is publicly administered, the CICA does not operate to make a
profit’ (paragraph 122). The clear implication of these words is that
Committee felt that the profit-motive could not always be relied on to
work solely for the public good and that public services are sometimes
best placed in the hands of public servants who are not driven by any need
to maximise profits. (The Committee also seek to explain the relative
infrequency with which victims or alleged victims currently make claims to
the CICA by saying: ‘We note in passing that there may be an element of
self-interest, amongst lawyers, to generate business by encouraging
complainants to lodge civil compensation claims, rather than directing
them to the CICA’ (113).)
However
the Committee are obliged to record that, in the course of exploring this
possible route to reform, they found that it might well be blocked by
existing European human rights legislation which guarantees the right to a
fair trial. Partly because of this they did not recommend what might have
been one of the most effective solutions to a problem which seems
otherwise intractable.
The
episode involving the Governor of Wakefield prison and a firm of
solicitors, who no doubt acted in part because of good intentions of their
own, indicates just how serious that problem remains.
Until the kind of advertisement posted in Wakefield prison is actually
outlawed, and the entire system of multi-party actions in relation to
sexual allegations is radically reformed or dismantled, it seems almost
inevitable that the injustices and fabrications which that system helps to
give rise to will continue.
22 December 2002; revised 10 March 2003
