Was it mistake or was it malice?

October 11, 2002

Alison Utley talks to an academic who lost a libel case.

This case really isn't about me, it is about all the trauma that so many families have been through over so many years," says Richard Barker.

His story begins about ten years ago when Newcastle city council dismissed nursery nurses Dawn Reed and Christopher Lillie after allegations of child abuse at their nursery in Shieldfield. The pair were subsequently acquitted at a criminal trial. But after more complaints, Barker, who was running a child-protection course at Northumbria University at the time, was invited to lead a review team to look into child safety in the region and to investigate the general concerns raised by the case. He expected the independent role to take about six months and was released part time from his duties at the university.

Barker is now back at the university, getting on with his life as a professor of social work, although some are questioning his right to do so in the aftermath of a High Court trial in which he was ferociously criticised by the judge as not only incompetent, but malicious. Barker's demeanour betrays scant evidence of the scale of his public humiliation. He has reflected a great deal, he says, on the sequence of events that led up to his trial, and on the meaning of the judge's findings.

He will not be appealing for fear of incurring more costs. He will continue to teach and research with the support of his university. But he insists that he was not malicious, and honestly believed the evidence he collected as an academic - evidence that was thoroughly discredited by the court - was presented in good faith. "The judge said I was mistaken but I cannot accept that I was malicious," he says. "The outcome of this case was about a clash of two very different systems that use different language. I would advise any academic to be extremely cautious about undertaking any public duty that might see them end up in court. I wish I could be more optimistic."

Barker's review team - three social workers and a psychologist - was asked by the city council not to comment on the findings of the criminal trial but to deal with parents' complaints. That brief appears to have been ill-conceived. "With hindsight it was impossible to separate the two," Barker says.

More than 100 witnesses were interviewed in relation to complaints from some 40 parents. Central to the investigation were many hours of videotaped evidence of interviews with small children. That evidence, while taken seriously by the review team, was dismissed by the court, which concluded not only that many of the children were asked leading questions but that Barker's team had condoned questioning techniques that they knew to be misleading.

"The review team had been asked to do a complicated and difficult task but child protection is difficult," Barker says. "We knew that Reed and Lillie had been dismissed but we kept an open mind. We were neutral at the start. I am absolutely certain of that. It could not have been any other way."

Publication of the report, which concluded unequivocally that Reed and Lillie had been guilty of serious sex offences, including rape and involving dozens of small children, provoked a media frenzy. About six months after publication, however, Barker received a letter indicating Reed and Lillie's intention to sue for libel.

In July, after a 74-day hearing, Mr Justice Eady awarded the former nursery nurses maximum libel damages of £200,000 each and said the sordid claims against them were totally without foundation and had been made maliciously. While Reed and Lillie had sued both the council and the authors of the report, their action against the council failed because it was protected by qualified privilege. The claim against the authors was upheld because the judge found they acted with malice. Although the judge found that the review team believed that the claimants were guilty of child abuse on a very extensive scale as summerised in their report at the time it was published, he found that they were malicious because "they included in their report a number of fundamental claims which they must have known to be untrue and which cannot be explained on the basis of incompetence or mere carelessness".

The judge said that as a witness, Barker "did not impress". He described his evidence as rambling and defensive. "One reason why he [Barker] remained in the witness box for so long was that he seemed incapable of giving a straight answer to a straight question. It was difficult to follow. Much of it was waffle. More significantly, however, I am afraid that there were certain respects in which I found it impossible to believe what he was saying."

The judge also said that some members of the team had formed the view from the outset that the claimants were guilty of child abuse on a very extensive scale and never wavered from that view, which undermined their good faith.

Barker admits to huge disappointment in the finding of malice, not least because he failed to convince the judge of the team's integrity. He thinks, on reflection, that the implications of the judgment are that inquiries of the sort that the team was asked to carry out might in future be done only by lawyers used to the courtroom and the kind of approach that goes with it. The social work background and inquisitorial approach of the team contrasted sharply and ultimately very unhappily with the courtroom process in which the team eventually found itself.

Recalling his six days of cross-examination, Barker says he was asked to relay in micro-detail events that had occurred several years before. "I was not chosen to lead the review team because of my skills as a defendant in a libel trial," he says. "It was extremely demanding, there was an enormous amount of material pertaining to very serious matters. While I am a successful academic, I was not successful in the context of a libel trial."

Barker admits that when he returned to the university at the start of term he was unsure what the reaction was going to be, but says he has been overwhelmed by support from colleagues. "I have been pleased and reassured and touched," he says. "Some people who have not seen me for 20 years have written to say they didn't recognise the person in the judgment. I have to hang on to that."

See also: Why he must go

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