Publish date: 11 Dec 2017

Comments from Lady Smith on the first day of Phase 2 of hearings regarding the prohibition of disclosure or publication of the identities of anonymous applicants and alleged abusers

Today we move to phase 2 of our public hearings. We are going to be examining evidence that we have ingathered, researched and analysed relating to residential establishments for the care of children that were run by Roman Catholic Orders. We are going to start with a case study about two establishments that were run by the Daughters of Charity of St Vincent de Paul, Smyllum Park in Lanark and Bellevue House in Rutherglen. This case study will run until late January.           

Before we move to hearing the evidence of witnesses, there are some important matters that I must explain. Much of the evidence in this case study will come from applicants or it will be a response to what applicants say. When I say "applicant", I'm talking about a person who has come forward to the Inquiry and has told us about being abused whilst in residential care as a child. There is a very important aspect to the evidence that we are going to hear from these applicants and I want to explain that now. I'm aware that they will often be describing things that are deeply personal and that they find deeply upsetting. For some, they had not shared their accounts of their childhood with anyone, not even members of their own family before engaging with this Inquiry. For many they would find it even more upsetting and distressing if their identities became known and it is only fair and reasonable that I do what I can to protect against that. So it is that under an order issued some time ago, called "General Restriction Order Direction Number 1", I directed that other than in the case of some strictly defined exceptions the identities of applicants must not be disclosed or published without the consent of the particular applicant concerned. By that I mean any type of disclosure or publication, including disclosure on social media. During this case study where applicants have expressed the wish to remain anonymous with their identities protected, as they are entitled to do, those wishes will be respected. Their names or any evidence that could identify them must not be disclosed unless the individual applicant has consented to that happening. These applicants will be given a pseudonym when giving their evidence or when their evidence is being read out from their statements, as will happen in the case of some applicants. A pseudonym will also be used in the transcript of their evidence so as to protect their identity. 

Under the same general restriction order, evidence which in any way identifies anyone as being the subject of allegations of having abused children in care must not be disclosed or published prior to the publication of the inquiry reports unless those persons have been convicted of abusing children in care. Whilst members of the public may question this decision, given that this is a public inquiry, and its terms of reference require me to investigate the nature and extent of abuse of children in care, my task is not to make findings about whether any particular individual was guilty of or responsible for the abuse of children. I'm not only not required to determine whether a particular individual is guilty of a crime or of a civil wrong; the legal rules that apply to this Inquiry prevent me from doing so. Also, in many cases it would not be fair to name these alleged abusers nor would it be fair to their families. For example, a number of them are now dead or otherwise unable to answer the allegations against them. So, when I say these identities must not be disclosed or published, I am again referring to any type of publication or disclosure, including by means of social media. This means that during the case study, where Sisters and former Sisters of the Daughters of Charity Order who are the subject of allegations of abuse give evidence, they will be given a pseudonym when they give their evidence to the Inquiry and cyphers and pseudonyms will be used in the transcript of that evidence. 

These considerations do not apply where there have been convictions. In those cases, it has been established beyond reasonable doubt in the criminal courts that the individuals concerned abused children in care. Their names and identities have already been made public and, in the case of many of them, widely broadcast. I consider that it is therefore appropriate that they be named in the course of the Inquiry proceedings. Now, as I have said, applicants will be giving evidence about abuse, about Sisters, about former Sisters of the Order and about other persons connected with the establishments we are going to focus on. It is inevitable that at times applicants will, in the flow of their evidence, disclose the names of those who are alleged to have abused children at these establishments. I have decided that it is not realistic to think that that can be avoided. To accommodate this, whilst at the same time doing all I can to protect the identities of those who are the subject of allegations but have not been convicted, I have decided that I will permit the disclosure within this hearing room of the identities of these alleged abusers. Any other course of action would be bound to impair the efficient and effective conduct of the hearing of the case study. So the names of the those alleged to have been abusers, but who have not been convicted may be mentioned in the course of evidence, but these names must not be disclosed or published by anyone, by any means at all, to anybody else, whoever they are outside the hearing room.   

I'm going to repeat that because it is very important: the names of those alleged to have been abusers but who have not been convicted may be mentioned in the course of evidence but these names must not be disclosed or published by anyone, by any means at all, to anybody else, whoever they are, outside the hearing room. This instruction applies to members of the press and to anyone else present in the hearing room at any time. Any such disclosure would be a serious breach of my restriction order. In the transcripts of evidence, any names of alleged abusers spoken in evidence in this way will be protected by the use of pseudonyms or cyphers. So the mention of their names will, if it happens, only appear within the hearing room. I should add that to this point there have been no specific restrictions placed on the media, members of the public or interested parties posting live to social media during hearings. However, as we start this case study and begin to hear very personal and sensitive evidence, I have decided to suspend live social media posting from the hearing room. There is to be no social media posting from the hearing room at all. You will be advised if that changes.