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Should members of enquiry panels into allegations of staff abuse have an understanding of the law, or is it simply alright for such panel members (and indeed their employers) to rely on only their subjective opinion, based on academic theory and subjective speculation, gained possibly solely on their own personal experience within the polarised world of their profession?
Regularly we hear stories of staff being investigated for allegations of abuse, and how they are sometimes left under investigation without even knowing what they are being investigated for.
I have also known of 'strategy groups' and other such panels to be formed to look into some ridiculous allegations in relation to the use of physical force. One example was a carer was being investigated for using a hosepipe on someone who was attempting to enter their home armed with a knife, and on another occasion a member of staff was being investigated for physically holding a child to prevent them from running into a busy road.
In all investigations the child's word is normally considered first, due to their position in society as vulnerable people, possibly combined with the past history of child abuse in residential care. However, even so, does that mean that the member of staff's view is any less important? In fact, how can you have a balanced enquiry consistent with the principles of natural justice is staff are [allegedly] investigated from a position of guilt?
Lillie and another v Newcastle City Council and others [2002] EWHC 1600
In 1990 in Newcastle two nursery nurses were suspended for allegedly abusing children in their care. At their criminal trial the judge refused to permit the case to go before the jury because the evidence was flawed.
The local authority then set up a panel to investigate the allegations, chaired by an eminent professor of social work. Having determined that the two workers were guilty of systematic abuse the members of the enquiry panel, and the City Council which appointed them, were sued for libel by the two former workers. To win their case the claimants had to prove not just that the findings were wrong but that they had been reached through malice. They won their case and were each awarded the maximum sum available: £200,000.00.
Mr. Justice Eady, the judge in the case was scathing. He remarked
"One of the recurring features of this case has been the willingness of psychologists, professional or amateur, to impose pre-conceived stereotypes or theories upon the facts of the case. I have had to remind myself that evidence must always come first and theory kept in its proper place. It is obvious with the benefit of hindsight (and indeed should have been obvious at the time) that they were simply not equipped for the task. N any event, none of them apparently had any experience in conducting such an enquiry or in legal principles or processes (as to which, it emerges from their Report in several places that they were, in any event, quite disdainful).
Two facts emerged with clarity. Professor [B] and his colleagues believed that the two Claimants were guilty of child abuse on a very extensive scale, as summarised in their Report, at the time it was published. I am equally satisfied that, despite their protestations, some of them had formed that view at the outset of their inquiry and never wavered.
It emerged early on in Professor [B]'s testimony that he has a fundamentally different attitude towards the weighing and analysis of evidence from that of a lawyer. At several points, it became apparent that he is rather dismissive of what he called "a forensic approach". He resorted from time to time to impressionistic mode, referring to his "professional judgement" and to discussions in academic and other published work. His colleagues were similarly minded. Indeed, Ms [I] [a member of the enquiry panel] voluntarily espoused the work "impressionistic". Yet the issue of whether any given individual has raped or assaulted a small child, or for that matter upwards of 60 small children, is not a matter of impression, theory, opinion or speculation. It should be a question of fact.
The Professor is entitled to be disparaging about the criminal justice system, or "forensic analysis", or the testing of evidence in cross examination. Many people are. Such criticism from the sidelines may or may not be made on an informed basis. But surely when such a critic steps forward to take on the responsibility of condemning a fellow citizen as being guilty of such wicked behaviour, a little humility may be thought appropriate. One would certainly expect a willingness to address the strength or weakness of the factual evidence relevant to the individual concerned."
Had the members of the panel have had a better understanding of the law when conducting their enquiry to balance their own possible professional trained motivations in helping the most vulnerable in our society.
As such, although their motivation was possibly correct in their perception, it was their ignorance of the process of law, and indeed natural justice, that led to their investigation into the allegations being flawed by being too biased towards the rights of the child and as such, discriminatory with regard to the rights of staff and to the law of natural justice.
If you would lie the opportunity of having a legal briefing on the law in relation to the use of force in your area of work by one of the UK's foremost Expert Witnesses and published authors on the subject contact us today.
Alternatively, why not seriously consider attending our Physical Restraint Instructors Qualifying Course in October this year. It has been subject to a legal audit, health and safety review and a technical review by an independent Governing Body. It provides a wealth of legal information from years of research in easy to understand language and context.
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