In the second chapter of On Liberty, John Stuart Mill mentions in a note the "Government Press Prosecutions of 1858". He further writes that "The offence charged was not that of criticising institutions, or the acts or persons of rulers, but of circulating what was deemed an immoral doctrine, the lawfulness of Tyrannicide."
What events prompted the Government Press Prosecutions of 1858 and how did the government respond? Is this event known under any other name?
In the late part of 1858, Count Charles Montalembert of France was put on trial and prosecuted by the French government for writing an article titled "A Debate on India in the English Parliament". The French government took the position that certain passages of this article were "seditious and an outrage upon the existing Government" of France. (This link will take you to a book that provides a full accounting of the actual trial.)
This trial was rather infamous at the time and was a key example of Press Laws that were being put into place in an attempt to stifle the press and limit what could be printed. Basically, these laws undermined the concept of the freedom of the press and restricted the press from printing whatever they deemed printworthy, and more specifically, anything that might criticize the government.
The punishment for crimes such as this basically amounted to exile. The person found guilty was kicked out of the country and not permitted to retain their citizenship. Montalembert had apparently expected to be found guilty, and therefore had begun planning his new and future residency to take place in England.
Drennon's answer is incorrect. Montalembert's writings had nothing to do with Tyrannicide. John Stuart Mill's reference is to two trials that took place back-to-back in England in 1858. Paraphrasing from the legal accounts:
Queen versus Truelove. Indictment found at the Central Criminal Court and removed into the Court of Queen's Bench by certiorari, for publishing a libel on His Imperial Majesty the Emperor of the French, and for inciting to assassination. Tried June 1858. Verdict: not guilty.
Queen versus Tchorzewski. In the Court of the Queen's Bench, Stanislaus Tchorzewski, a bookseller of Green Street, was charged on an indictment for publishing a pamphlet entitled “Lettre an Parlement et a la Presse,” and signed “ Le Comité de la Commune Révolutionnaire, Félix Pyat, Besson, A. Talandisr,” justifying the Orsini assassination attempt, and inciting to the assassination of the Emperor of the French. Verdict: not guilty.
The Orsini plot was a conspiracy to assassinate the Emperor of France in January of 1858.
Religion and the Founding of the American Republic America as a Religious Refuge: The Seventeenth Century, Part 1
Many of the British North American colonies that eventually formed the United States of America were settled in the seventeenth century by men and women, who, in the face of European persecution, refused to compromise passionately held religious convictions and fled Europe. The New England colonies, New Jersey, Pennsylvania, and Maryland were conceived and established "as plantations of religion." Some settlers who arrived in these areas came for secular motives--"to catch fish" as one New Englander put it--but the great majority left Europe to worship God in the way they believed to be correct. They enthusiastically supported the efforts of their leaders to create "a city on a hill" or a "holy experiment," whose success would prove that God's plan for his churches could be successfully realized in the American wilderness. Even colonies like Virginia, which were planned as commercial ventures, were led by entrepreneurs who considered themselves "militant Protestants" and who worked diligently to promote the prosperity of the church.
Statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System
Good morning. I’m here to give you an update on the FBI’s investigation of Secretary Clinton’s use of a personal e-mail system during her time as Secretary of State.
After a tremendous amount of work over the last year, the FBI is completing its investigation and referring the case to the Department of Justice for a prosecutive decision. What I would like to do today is tell you three things: what we did what we found and what we are recommending to the Department of Justice.
This will be an unusual statement in at least a couple ways. First, I am going to include more detail about our process than I ordinarily would, because I think the American people deserve those details in a case of intense public interest. Second, I have not coordinated or reviewed this statement in any way with the Department of Justice or any other part of the government. They do not know what I am about to say.
I want to start by thanking the FBI employees who did remarkable work in this case. Once you have a better sense of how much we have done, you will understand why I am so grateful and proud of their efforts.
So, first, what we have done:
The investigation began as a referral from the Intelligence Community Inspector General in connection with Secretary Clinton’s use of a personal e-mail server during her time as Secretary of State. The referral focused on whether classified information was transmitted on that personal system.
Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.
Consistent with our counterintelligence responsibilities, we have also investigated to determine whether there is evidence of computer intrusion in connection with the personal e-mail server by any foreign power, or other hostile actors.
I have so far used the singular term, “e-mail server,” in describing the referral that began our investigation. It turns out to have been more complicated than that. Secretary Clinton used several different servers and administrators of those servers during her four years at the State Department, and used numerous mobile devices to view and send e-mail on that personal domain. As new servers and equipment were employed, older servers were taken out of service, stored, and decommissioned in various ways. Piecing all of that back together—to gain as full an understanding as possible of the ways in which personal e-mail was used for government work—has been a painstaking undertaking, requiring thousands of hours of effort.
For example, when one of Secretary Clinton’s original personal servers was decommissioned in 2013, the e-mail software was removed. Doing that didn’t remove the e-mail content, but it was like removing the frame from a huge finished jigsaw puzzle and dumping the pieces on the floor. The effect was that millions of e-mail fragments end up unsorted in the server’s unused—or “slack”—space. We searched through all of it to see what was there, and what parts of the puzzle could be put back together.
FBI investigators have also read all of the approximately 30,000 e-mails provided by Secretary Clinton to the State Department in December 2014. Where an e-mail was assessed as possibly containing classified information, the FBI referred the e-mail to any U.S. government agency that was a likely “owner” of information in the e-mail, so that agency could make a determination as to whether the e-mail contained classified information at the time it was sent or received, or whether there was reason to classify the e-mail now, even if its content was not classified at the time it was sent (that is the process sometimes referred to as “up-classifying”).
From the group of 30,000 e-mails returned to the State Department, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent 36 chains contained Secret information at the time and eight contained Confidential information, which is the lowest level of classification. Separate from those, about 2,000 additional e-mails were “up-classified” to make them Confidential the information in those had not been classified at the time the e-mails were sent.
The FBI also discovered several thousand work-related e-mails that were not in the group of 30,000 that were returned by Secretary Clinton to State in 2014. We found those additional e-mails in a variety of ways. Some had been deleted over the years and we found traces of them on devices that supported or were connected to the private e-mail domain. Others we found by reviewing the archived government e-mail accounts of people who had been government employees at the same time as Secretary Clinton, including high-ranking officials at other agencies, people with whom a Secretary of State might naturally correspond.
This helped us recover work-related e-mails that were not among the 30,000 produced to State. Still others we recovered from the laborious review of the millions of e-mail fragments dumped into the slack space of the server decommissioned in 2013.
With respect to the thousands of e-mails we found that were not among those produced to State, agencies have concluded that three of those were classified at the time they were sent or received, one at the Secret level and two at the Confidential level. There were no additional Top Secret e-mails found. Finally, none of those we found have since been “up-classified.”
I should add here that we found no evidence that any of the additional work-related e-mails were intentionally deleted in an effort to conceal them. Our assessment is that, like many e-mail users, Secretary Clinton periodically deleted e-mails or e-mails were purged from the system when devices were changed. Because she was not using a government account—or even a commercial account like Gmail—there was no archiving at all of her e-mails, so it is not surprising that we discovered e-mails that were not on Secretary Clinton’s system in 2014, when she produced the 30,000 e-mails to the State Department.
It could also be that some of the additional work-related e-mails we recovered were among those deleted as “personal” by Secretary Clinton’s lawyers when they reviewed and sorted her e-mails for production in 2014.
The lawyers doing the sorting for Secretary Clinton in 2014 did not individually read the content of all of her e-mails, as we did for those available to us instead, they relied on header information and used search terms to try to find all work-related e-mails among the reportedly more than 60,000 total e-mails remaining on Secretary Clinton’s personal system in 2014. It is highly likely their search terms missed some work-related e-mails, and that we later found them, for example, in the mailboxes of other officials or in the slack space of a server.
It is also likely that there are other work-related e-mails that they did not produce to State and that we did not find elsewhere, and that are now gone because they deleted all e-mails they did not return to State, and the lawyers cleaned their devices in such a way as to preclude complete forensic recovery.
We have conducted interviews and done technical examination to attempt to understand how that sorting was done by her attorneys. Although we do not have complete visibility because we are not able to fully reconstruct the electronic record of that sorting, we believe our investigation has been sufficient to give us reasonable confidence there was no intentional misconduct in connection with that sorting effort.
And, of course, in addition to our technical work, we interviewed many people, from those involved in setting up and maintaining the various iterations of Secretary Clinton’s personal server, to staff members with whom she corresponded on e-mail, to those involved in the e-mail production to State, and finally, Secretary Clinton herself.
Last, we have done extensive work to understand what indications there might be of compromise by hostile actors in connection with the personal e-mail operation.
That’s what we have done. Now let me tell you what we found:
Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.
For example, seven e-mail chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. These chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails from others about the same matters. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation. In addition to this highly sensitive information, we also found information that was properly classified as Secret by the U.S. Intelligence Community at the time it was discussed on e-mail (that is, excluding the later “up-classified” e-mails).
None of these e-mails should have been on any kind of unclassified system, but their presence is especially concerning because all of these e-mails were housed on unclassified personal servers not even supported by full-time security staff, like those found at Departments and Agencies of the U.S. Government—or even with a commercial service like Gmail.
Separately, it is important to say something about the marking of classified information. Only a very small number of the e-mails containing classified information bore markings indicating the presence of classified information. But even if information is not marked “classified” in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it.
While not the focus of our investigation, we also developed evidence that the security culture of the State Department in general, and with respect to use of unclassified e-mail systems in particular, was generally lacking in the kind of care for classified information found elsewhere in the government.
With respect to potential computer intrusion by hostile actors, we did not find direct evidence that Secretary Clinton’s personal e-mail domain, in its various configurations since 2009, was successfully hacked. But, given the nature of the system and of the actors potentially involved, we assess that we would be unlikely to see such direct evidence. We do assess that hostile actors gained access to the private commercial e-mail accounts of people with whom Secretary Clinton was in regular contact from her personal account. We also assess that Secretary Clinton’s use of a personal e-mail domain was both known by a large number of people and readily apparent. She also used her personal e-mail extensively while outside the United States, including sending and receiving work-related e-mails in the territory of sophisticated adversaries. Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton’s personal e-mail account.
So that’s what we found. Finally, with respect to our recommendation to the Department of Justice:
In our system, the prosecutors make the decisions about whether charges are appropriate based on evidence the FBI has helped collect. Although we don’t normally make public our recommendations to the prosecutors, we frequently make recommendations and engage in productive conversations with prosecutors about what resolution may be appropriate, given the evidence. In this case, given the importance of the matter, I think unusual transparency is in order.
Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.
In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct or indications of disloyalty to the United States or efforts to obstruct justice. We do not see those things here.
To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now.
As a result, although the Department of Justice makes final decisions on matters like this, we are expressing to Justice our view that no charges are appropriate in this case.
I know there will be intense public debate in the wake of this recommendation, as there was throughout this investigation. What I can assure the American people is that this investigation was done competently, honestly, and independently. No outside influence of any kind was brought to bear.
I know there were many opinions expressed by people who were not part of the investigation—including people in government—but none of that mattered to us. Opinions are irrelevant, and they were all uninformed by insight into our investigation, because we did the investigation the right way. Only facts matter, and the FBI found them here in an entirely apolitical and professional way. I couldn’t be prouder to be part of this organization.
Maryland Attempts to Tax the Second Bank of the United States
But there was still a lot of opposition. In 1818, Maryland legislators passed a law imposing a stamp tax on currency issued by second Bank of the United States, in an effort to hinder it from doing business. In response, a cashier at the bank’s Baltimore branch, James W. McCulloch, refused to pay the tax. The state then sued McCulloch for $110, the penalty in the law for circulating unstamped banknotes in Maryland.
State officials won their case in the Maryland courts, which led the bank to appeal to the U.S. Supreme Court, which began to hear arguments in the case on Feb. 22, 1819, in a courtroom in the basement of the U.S. Capitol.
Presiding over then-seven-member court was the nation’s fourth Chief Justice, John Marshall. Marshall was a Revolutionary War veteran who had served as President John Adams’ envoy to France and Secretary of State before Adams appointed him to head the court in 1801. Adams joined the court just weeks before Adams’ successor Thomas Jefferson was set to take over.
Both sides had high-powered lawyers to represent them. Representing Maryland was Luther Martin, the state’s Attorney General, who had served as a delegate to the Constitutional Convention in 1787. Martin had famously walked out of the Constitutional Convention proceedings because he opposed the creation of a strong central government.
Speaking on behalf of the bank was Daniel Webster, an attorney and skilled orator who served in both the U.S. House and the Senate in his career, and was an advocate of a strong, activist federal government.
Martin argued that because the Constitution didn’t explicitly say that Congress could create a bank, it didn’t have authority. He cited the 10th Amendment, which says that any powers that the Constitution doesn’t delegate to the federal government, or prohibit the states from using, are reserved for the states or the American people. “We insist that the only safe rule is the plain letter of the Constitution,” he said, according to a transcript of the hearing.
Webster, in turn, argued that Article I, Section 8 of the U.S. Constitution, which gave Congress the power “to make all laws which shall be necessary and proper” for carrying out some power that the Constitution does spell out, was sufficient authority. Creating the Bank of the United States, Webster argued, was necessary and proper for the purpose of levying and collecting taxes, borrowing money, supporting armed forces, regulating commerce, and other crucial functions of the government.
On the question of whether or not Maryland or another state could tax the federal bank, Webster said cited the Constitution’s Article VI, which states that laws enacted by Congress “shall be the supreme law of the land,” and said it prohibited states from passing any legislation “which shall be repugnant to a law of the United States.”
Share All sharing options for: Why Satanic Panic never really ended
A Satanist “expert” explains what a pentacle looks like in the 1995 video The Law Enforcement Guide to Satanic Cults. YouTube
Perhaps the most common misunderstanding about “Satanic Panic” — the societal fear of the occult that troubled the US and other parts of the world throughout the 1980s and into the early 1990s — is that it ever ended.
One of the most famous, prolonged mass media scares in history, Satanic Panic was characterized at its peak by fearful media depictions of godless teenagers and the deviant music and media they consumed. This, in turn, led to a number of high-profile criminal cases that were heavily influenced by all the social hysteria. Most people associate the Satanic Panic with so-called “satanic ritual abuse,” a rash of false allegations made against day care centers in the ’80s, and with the case of the West Memphis Three in the ’90s, in which three teenagers whose wrongful conviction on homicide charges was based on little more than suspicion over their goth lifestyles.
At their core, satanic ritual abuse claims relied on overzealous law enforcement, unsubstantiated statements from children, and, above all, coercive and suggestive interrogation by therapists and prosecutors. Some of the defendants are still serving life sentences for crimes they probably didn’t commit — and which likely didn’t happen in the first place. As for the West Memphis Three, they were eventually released in 2011 after spending 18 years in prison, and their case stands as one of the worst examples of what happens when police rush to judgment without evidence in a case.
But even if the police are less likely to rush to judgment these days over rumors of satanic worship and occult influences, many members of the public have no such qualms. Witness the recent controversy around Lil Nas X and his latest music video “Montero (Call Me by Your Name)” — in which he cavorts erotically with various iterations of Satan — and the way he was able to scandalize countless Christians by releasing limited-edition blood-infused Nikes dubbed “Satan shoes.”
Was the subsequent outrage from those who accused Lil Nas X of being a corrupting influence just a case of a failure to read art metaphorically? Perhaps. But a look at this bizarre period in US history offers another possible explanation: Satanic Panic never truly went away. It’s alive and well today, and its legacy threads through American culture and politics, in everything from social media moralizing to QAnon.
Lil Nas X’s evil gay Satanic agenda, explained
The rise of occultism, satanism, and evangelical fear began in the 1970s
The Satanic Bible, published in 1969. Wikipedia
A number of factors contributed to the increased interest in, and fear of, the occult during the late 1960s and 1970s. The Manson cult’s operation in the late ’60s culminated in a string of murders in the summer of 1969 that shocked the nation and put organized ritualistic killing on the brain.
That same year, organist-turned-occultist Anton LaVey published his philosophical treatise The Satanic Bible, which plagiarized several sources and mostly regurgitated earlier philosophies of self-actualization and self-empowerment from writers like H.L. Mencken and Ayn Rand. Nevertheless, it became the seminal work of modern satanism and the key text for the Church of Satan, a group LaVey had officially founded in 1966.
Accompanying the rise of satanism as a recognized practice was the 1971 publication of William Peter Blatty’s bestselling novel The Exorcist and its blockbuster 1973 film adaptation. With its claims of being based on a true story, The Exorcist profoundly impacted America’s collective psyche regarding the existence of demons, and single-handedly transformed the popular Ouija board from a fun, harmless parlor game into a malevolent device capable of inducing spirit possession, demonic infestation, or other paranormal activity.
Then came the 1972 publication of Satan Seller. A fabricated memoir, ultimately discredited after 20 years, by self-proclaimed Christian evangelist Mike Warnke, Satan Seller recounted a childhood and young adulthood that Warnke claimed were spent in intense satanic worship. Warnke wrote that he served as a satanic high priest and was engaged in, among other things, ritualistic sex orgies. (Remember that, it’ll be important later.)
The publication of LaVey’s Satanic Rituals, also in 1972, reinforced the idea that dark occult rituals had become a routine part of life for many Americans. And though it had no connections to satanism or traditional occult religion, the 1978 Jonestown massacre would give the world another indelible example of what violence in a cult looked like.
The ’70s saw the rise of other self-proclaimed former satanists who insisted that the world was being run by ritualistic satanic witch cults: John Todd, Hershel Smith, and David Hanson. Including Warnke, all four men grew up in Southern California and seemed to emerge from the still-smoldering ashes of the Manson cult to declare that the world was full of dark occult symbols and far-reaching satanic conspiracies. All of them claimed to have conversion experiences that made their stories appealing to Christians.
And all of them were linked to the emerging fundamentalist Christian right. Todd was supported by Christian tract maker Jack Chick, who used his fabricated claims as the basis for numerous comic-style pamphlets protesting against satanism. Warnke spent over a decade posing as an “expert” in satanism for the fundamental evangelical Christian community, passing off much of his made-up childhood as a template for how “real” satanism worked.
The growing fascination with the occult also coincided with a number of extremely well-publicized serial killer cases that took place in the ’70s: the Zodiac killer and the Alphabet Killer, both of whom used ritualistic patterns in their killings, neither of whom were ever caught Ted Bundy John Wayne Gacy the Hillside Stranglers and David Berkowitz, a.k.a. the Son of Sam, who sparked a mass panic during the summer of 1977 in New York City.
Many of these well-publicized serial killers maintained an image of having the upper hand in some way: The Zodiac Killer and Berkowitz wrote taunting letters to the press and police Bundy escaped from prison and immediately resumed his horrifying killing sprees Gacy hid his evil under the most banal of disguises, a friendly clown who performed for children. As the brazen anarchy associated with these kinds of high-profile killings grew, so did public fear.
In a 2005 book about that fateful New York summer, Ladies and Gentlemen, The Bronx Is Burning, author Jonathan Mahler writes of the impact that Son of Sam had on the media: "The frenzied [media] coverage fanned the growing sense of fear the growing sense of fear fanned the frenzied coverage." Mahler’s observation about the media fueling this mass panic would ring true well into the next decade, when heightened religious fears and the concept of stranger danger coalesced into a new breed of mass hysteria.
The 1980s were defined by stranger danger and a growing fear of your own neighborhood
Although the Reagan era was a time of economic growth and financial prosperity, it was also a time of unease centered on population growth, urbanization, and the rise of the double-income family model, which necessitated a sharp increase in the need for day care services. As a result, anxiety about protecting the nuclear family from the unknown dangers of this new era was high: The ’80s saw the spread of AIDS misinformation, kidnap victims’ faces appearing on milk cartons, the mass panic surrounding the 1982 Tylenol murders, trick-or-treat scares (the nation’s lone Halloween candy killer, Ronald Clark O’Bryan, received a highly publicized execution in 1984), and the first wave of reports of scary killer clowns attempting to prey on children.
Each of these moments of social unrest signaled Americans’ growing alarm over “stranger danger” and the fear that evil could always be lurking right around the corner.
Through it all, Christian fundamentalism and a literal belief in angels and devils were on the rise. Fundamentalist preachers like Jerry Falwell and his Moral Majority, founded in 1979, gained prominence across the country, passing along a literal fire-and-brimstone style of Christianity. Anti-occult crusaders like Pat Pulling, who believed her son’s death by suicide was the result of a Dungeons and Dragons curse, crusaded against role-playing games as dangerous and demonic, backed by occult fearmongering from Chick and his Chick Tracts.
The evangelical movement wasn’t alone in its growing occult obsession and fearmongering. The media, too, played an outsize role in stoking the public’s fear and fueling misconceptions surrounding occult practices. In 1988, Geraldo Rivera’s lurid documentary Devil Worship: Exposing Satan’s Underground became the highest-rated televised documentary to air up to that point. A 1991 20/20 episode famously (and for many viewers terrifyingly) aired an official Roman Catholic exorcism. Evangelical documentaries like Hell’s Bells attempted to tie rock music to the occult, while “Christian fantasy” like that of bestselling author Frank Peretti transformed real-world social issues into matters of angelic and demonic warfare.
With so much parallel emphasis on fearing strangers in your neighborhood and Satan in your home, a collision of the two was practically inevitable.
How the imagined threat of satanic ritual abuse became established
In 1980, a since-discredited memoir called Michelle Remembers became a scandalous bestseller based on its purported detailing of a childhood spent undergoing a wealth of shocking occult sexual abuse. Its co-authors were controversial psychologist Lawrence Pazder and his wife Michelle Smith, a former patient whom Pazder claimed to have regressed into childhood through hypnosis. Pazder purportedly helped Smith uncover memories of past abuse at the hands of members of the Church of Satan, which Pazder insisted was older than LaVey’s group by several centuries.
Almost from the moment of Michelle Remembers’ publication, its claims and allegations were repeatedly and thoroughly debunked. However, thanks to widespread and credulous media attention, Pazder and Smith were able to double down on their story, and Pazder became seen as an expert in the arena of what would come to be called satanic ritual abuse (SRA).
Despite the wild implausibility and unverifiable foundation of its stories of grisly abuse and sex orgies, Michelle Remembers was presented as a textbook during the ’80s and early ’90s for legal professionals and other authorities. It also spawned numerous copycat memoirs like 1988’s Satan’s Underground, which was also shown to be false and which embellished and mainstreamed the idea of a massive, intergenerational, clandestine cult founded on satanic ritual abuse — one that could be occurring in your very own neighborhood.
At that time, “the devil worshippers could be anywhere,” writer Peter Bebergal told io9 in summing up the zeitgeist. “They could be your next-door neighbor. They could be your child's caregiver."
The false narrative of Michelle Remembers would directly impact the nation for over a decade. Its dark occult fantasies helped to spark the rash of wildly dramatic, highly unfounded accusations of satanic ritual abuse that were attached to a string of daycare centers throughout the 1980s. The belief that daycare owners across the country were visiting dark occult acts of child abuse upon their young charges was the most prominent part of a broader daycare sex abuse mass panic, which was itself part of the 1980s’ much broader wave of fear.
This fear would ravage communities, lead to two of the most notorious criminal trials in US history, and ruin multiple lives before it finally subsided — and some of its victims are still serving sentences today.
The repercussions of criminal prosecution for satanic ritual abuse are still being felt today
The earliest of the wave of satanic ritual abuse cases began in Kern County, California, in 1980. In Bakersfield, social workers who had read Michelle Remembers learned of a clandestine local occult sex ring from two children who’d been coerced into fabricating the claims by a relative. Between 1984 and 1986, the investigation into these labyrinthine claims would send at least 26 people to jail in interrelated convictions, despite a complete lack of corroborative physical evidence for any of the claims. Nearly all of those convictions have since been overturned, including that of one man who served 20 years of a 40-year sentence, and those of two parents who were sentenced to 240 years in prison after their own sons were coached to accuse them of abuse.
This template — a spiraling investigation, wild claims, no evidence — would remain consistent for more than a decade throughout the subsequent wave of failed prosecutions of satanic ritual abuse in day cares and schools across the US.
Among them was the disastrous McMartin trial, which became — and remains — the largest, longest, and most expensive trial in California history. In 1983, one parent accused one of the staff members at the McMartin preschool in Manhattan Beach, California, of abuse. During the investigation, police allowed an unlicensed psychotherapist named Kee MacFarlane to conduct examinations of 400 children who attended the day care. MacFarlane famously used “anatomically correct” dolls and coercive interview processes, resulting in a staggering 321 counts of child abuse being leveled against seven day care staff members by 41 children. The eyebrow-raising claims included allegations that day care owners had built secret underground tunnels that led to ritual ceremonies, had ritually sacrificed a baby, flushed children down toilets, and could turn into witches and fly.
After six years of investigation and litigation of a five-year trial, the case ultimately essentially evaporated due to a lack of evidence. One by one, all charges against the day care staffers were dropped. The McMartin preschool building was razed in 1990.
By the mid-’80s, a wave of seminars, tutorials, and educational videos for authorities and evangelicals on the subject of recognizing and fighting satanic cults was sweeping the US. Law enforcement in El Paso, Texas “were promptly dispatched to ‘ritual crime’ seminars,” journalist Debbie Nathan recounted in 2003. These were “classes aimed at law enforcement authorities and taught mostly by other cops, therapists, preachers and by born again Christians claiming to be former high priests or escapees from unspeakably sadistic ritual-torture cults.”
In 1992, the Justice Department thoroughly debunked the myth of the satanic ritual abuse cult. But though accusations of satanically motivated child abuse rituals had pretty much died out by the mid-1990s, law enforcement continued to treat Satan as a potential criminal indicator — as we see in this 1994 police training video, The Law Enforcement Guide to Satanic Cults.
Today, this video seems laughable, but the humor fades when we consider just how many real people were persecuted due to these brazen stereotypes about devil worship. Indeed, the most damaging misconception about the fallout of Satanic Panic is that it ended in the ’90s. In fact, although most satanic ritual abuse cases eventually resulted in overturned convictions, at least three people are still serving prison sentences for crimes that most likely never happened.
In 1984, Cuban immigrant Frank Fuster was accused, along with his undocumented wife, of molesting eight children, despite coercive interview sessions and a lack of physical evidence. Fuster was sentenced to six consecutive life terms, or a minimum of 165 years in prison. As of 2021, he has been imprisoned for over 35 years and will not be eligible for parole until 2134. He reportedly has no legal representation.
As appalling as Fuster’s sentence is, he’s not alone. North Carolina inmate Patrick Figured is, at age 72, still serving time for a 1992 conviction due to coerced allegations of ritualistic abuse. And Joseph Allen, age 63, has been serving time in Ohio since 1994 for a highly bizarre case in which he was convicted of ritualistic child abuse along with another woman, even though the two had never even met. She was later exonerated.
The list goes on and on. One Florida school principal spent 21 years in prison after being convicted of false SRA claims he was released at the age of 80 and ordered to move to another country. In El Paso, two preschool owners each spent 21 years in prison.
In 1984, three members of the Amirault family of Malden, Massachusetts, were convicted of false child molestation charges, following yet another pattern of false memory coercion from children. Two of the defendants spent 10 and 20 years in prison before being paroled in 1999 and 2004, respectively. The third defendant died of cancer in prison before her conviction could be overturned. She was exonerated in 1998 — the year after she died.
In 1997, four lesbian women who became known as the San Antonio Four were targeted and wrongfully convicted for child molestation claims. Their trial played out against a resurgence of Satanic Panic tied to homophobia in a conservative state, and their fight for justice lasted nearly two decades. All four women spent 15 years in prison before having their convictions overturned in 2015 and ultimately expunged in 2018.
But by far the most notorious criminal case of the Satanic Panic era was that of the West Memphis Three. In 1993, three teenagers in West Memphis, Arkansas, were accused and later convicted of the horrific sexual assault and murders of three young boys. The teens were accused primarily based on hearsay surrounding their goth lifestyles and rumors that they worshipped Satan, despite a lack of any physical evidence. The famed documentary Paradise Lost publicized the case, and the three men were ultimately freed in 2011, after new DNA evidence showed them to have no connection to the killings. They entered Alford pleas, which commuted their sentences to time served: 18 years in prison, each.
The legacy of Satanic Panic is now deeply interwoven with American culture and politics — all the way through QAnon and beyond
Because of the high profiles of such over-the-top cases as the McMartin trial disaster and the West Memphis Three, the public gradually became skeptical of satanic ritual abuse claims. But despite the debunking of myths, Satanic Panic continued to sweep the globe and impact the lives of innocent individuals.
For example, in Britain in the early ’90s, one British man came under suspicion of murder and endured months of psychological entrapment by police, due entirely to his proximity to the crime and his interest in Wicca and other occult hobbies.
And in 2007, the murder of Meredith Kercher in Perugia, Italy, led to the infamous trial and conviction of her flatmate, Amanda Knox. During the trial, chief prosecutor Giuliano Mignini suggested without any evidence that since the murder took place the day after Halloween, Knox must have intended “a sexual and sacrificial rite.” He invoked a modern-day witch hunt against Knox, with one lawyer describing her as “Lucifer-like, Satanic, demonic, diabolical, a witch of deception.” Knox spent four years in prison on appeal, she was acquitted, re-convicted, re-acquitted, and ultimately exonerated in 2015.
The most damaging effects of Satanic Panic were felt within the legal system, but there were broader ramifications, too — and many of them linger today. Fans of Dungeons and Dragons and other allegedly “occult” games were demonized for years. Strange conspiracy theories flourished, including rumors of subliminal messages in rock music, a conspiracy about Procter & Gamble that won the company a $19.25 million settlement, the creepy clown hoax of 2016, and concern over one guy’s weird Airbnb decor.
Many of those conspiracies and strange murmurs of illicit child sex rings are still with us decades later. The 2016 clown hoax traded on longstanding myths about child predators lurking among us and relying on innocent-looking methods of attack. And many right-wing conspiracy theories that have ballooned into serious threats over the past five years contain overt elements of Satanic Panic. Pizzagate, which led to a believer bringing a gun to a Washington, DC, pizza parlor in 2016, held that Democratic politicians were secretly trafficking children for sex, holding them in the basement of the restaurant. (It doesn’t have a basement.)
Also in 2016, right-wing conspirators interpreted a dinner party held by performance artist Marina Abramović to be a satanic ritual. Details of the dinner party first emerged through the leaked emails of John Podesta, former campaign chair to Hillary Clinton. Although the theory was absurd, Abramović has faced allegations that she is a practicing satanist ever since in 2020, outraged conspiracy theorists disrupted and shut down a collaboration she worked on with Microsoft.
The Abramović theory was tied to Pizzagate, in that it was also politicized and also involved the idea that Democratic politicians were secretly engaged in evil acts. Given the polarized US political climate, it’s easy to see how two similarly unfounded ideas — Democrats engaged in ritual satanism and Democrats engaged in child sexual abuse — could become linked in the minds of some members of the public. And in 2017, that’s just what happened.
In October 2017, an anonymous 4chan user going by “Q” began claiming insider knowledge about a vast satanic pedophile ring involving democrats, high-powered celebrities, and world leaders. Q’s conspiracy theory held that President Donald Trump was pretending to be incompetent so that he could more effectively apprehend the pedophiles in government around him — pedophiles who, in addition to practicing satanic rites and sexual abuse, were also trafficking children to harvest their hormones and make serums that would provide them eternal youth.
The Q conspiracy quickly became known as QAnon — the name for both the theory itself and Q’s followers. As QAnon spread, it became a textbook example of Satanic Panic in action its followers weaponized parents’ fears of harm coming to their children to spread the message across social media. The group used hashtags like the superficially unobjectionable #SaveTheChildren, and disguised itself against takedown attempts by Facebook by masquerading as a straightforward anti-trafficking community.
But just as the original spread of Satanic Panic masked prejudice, hostility to change, and fear of the other beneath all its performative concern for the welfare of children, Qanon, too, hid something much darker. In 2019, the FBI identified QAnon as a domestic terrorist threat, citing numerous acts of violence and militant recruitment efforts being done in the name of QAnon. This pattern came to a head in January 2021, when hundreds of QAnon supporters joined the insurrection at the US Capitol.
There are some clear differences between QAnon and the original era of Satanic Panic: QAnon is a political movement with real political power. And while Satanic Panic was fueled by religious zeal, QAnon is almost a religion unto itself. Still, the tools used to spread both ideas — alarmism, fearmongering, hysteria, and reports of wildly gothic scenes of blood-drinking, children harvested for body parts, and witches — are virtually identical.
Where does all of this leave us?
Writing in Satan’s Silence in 2001, journalist Debbie Nathan noted that the ultimate irony of Satanic Panic is that its purported victims, the children, were silenced during the laborious investigations around the hysteria of the ’80s and ’90s — but not by the defendants who stood accused. Instead, they were silenced by “well-meaning” prosecutors, therapists, and interviewers who refused to listen to their initial assertions and drilled them for juicier answers until they changed their statements.
When medical evidence was produced, according to Nathan, it tended to be in the dubious form of “technologically updated versions of the medieval preoccupation with scrutinizing female genitalia for signs of sin and witchcraft, and of nineteenth-century forensic medical campaigns to detect promiscuity and homosexuality by examining the shapes of lips and penises.”
Through it all, the media fueled a public wave of fear that spurred entire groups of rational, thinking adults to collectively buy in: parents and prosecutors, therapists and investigators, jurors and judges, reporters and readers. The narrative swept everything along in its path — including victims of all ages.
In other words, the abusive mechanisms of Satanic Panic were the same as those of previous periods of mass hysteria, from witch hunts to McCarthyism. In a time of deep social upheaval, it’s all too easy to see those mechanisms falling into place once more, ready to bend toward the next unresistant, easily ostracized stranger, eager to label them “dangerous.”
In other words: Today, it’s a media-fueled scare over the latest demonic influence, be it crazed clowns, nefarious politicians, or an entertainer peddling “Satan shoes.” But as Satanic Panic shows us, that’s not the real fear.
The real fear is that, tomorrow, someone could decide the demonic influence is you.
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Reached by CBC in 2018, the woman said “The incident referred to in the editorial did occur, as reported. Mr. Trudeau did apologize the next day. I did not pursue the incident at the time and will not be pursuing the incident further. I have had no subsequent contact with Mr. Trudeau, before or after he became Prime Minister.”
Trudeau apologized: “Over the past weeks, since this news resurfaced, I’ve been reflecting, we’ve all been reflecting, on past behaviours,” he said. “And as I’ve said, I’m confident I didn’t act inappropriately, but I think the essence of this is people can experience interactions differently and part of the lesson we need to learn in this moment of collective awakening … people in many cases, women, experience interactions in professional contexts and other contexts differently than men.”
It was a move reminiscent of the post-9/11 Patriot Act, which allowed federal investigators to spy on the reading habits of library and bookstore customers in the name of fighting terrorism.
Last week we learned that the FBI had subpoenaed USA Today in pursuit of Internet Protocol addresses and other data. The goal was to help the agency figure out the identities of people who had read a story last February about a Florida shootout in which two FBI agents were killed and three were wounded. The subpoena specifically cited a 35-minute time frame on the day that the shootings took place.
Fortunately, USA Today’s corporate owner, Gannett Co., the nation’s largest newspaper chain, took a principled stand and fought the subpoena. On Saturday, the FBI backed down. There’s already little enough privacy on the internet without having to worry about the possibility that government officials will be looking over our shoulders as we’re reading.
We are in the midst of a systematic assault on the media’s role in holding the powerful to account. And it’s long past time for our elected officials to do something about it by passing legislation rather than relying on assurances by President Joe Biden that he’s ending these abuses. After all, Biden’s assurances can be undone by the next president with the flick of a pen. We need something stronger and more stable.
Barely a month ago I wrote about the revelation that the Trump Justice Department had spied on three Washington Post reporters’ phone records. I observed that Trump’s actions were in line with a long string of presidential attacks on the media, from Richard Nixon to George W. Bush to Barack Obama.
Since then, the revelations have come at a dizzying pace. In addition to the USA Today subpoena, which strikes me as especially egregious since it targets readers rather than journalists, there have been at least two other noteworthy instances of abuse:
• In late May, CNN reported that the Trump administration had secretly obtained 2017 email and phone records of Barbara Starr, a longtime reporter for the network. The period in question was June 1 to July 31, 2017.
• In a particularly noxious abuse of the government’s power, The New York Times reported several days ago that the Justice Department had subpoenaed Google for the email records of four Times reporters — and that, though the inquiry had begun under former President Donald Trump, it continued under Biden. As recently as March, the Justice Department obtained a gag order prohibiting Google from informing the Times. That order was later amended so that a few top officials at the Times could be told, but not executive editor Dean Baquet.
“It is urgent that we hear from the attorney general about all three Trump-era records seizures, including the purported reasoning behind them and the rationale for not notifying the journalists in advance,” said Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, in a statement released last week. “The goal must be to ensure that such abuses never occur again.”
Compounding the problem is the widely misunderstood belief that government officials are violating the First Amendment. For instance, on CNN’s “Reliable Sources” this past Sunday, Adam Goldman, one of the four Times reporters targeted in the Google probe, said, “The U.S. attorney’s office in D.C. has a history of trampling on the First Amendment, so that’s why I wasn’t surprised. They treat the media, they treat newspapers like drug gangs.”
In fact, over the past century the Supreme Court has interpreted the First Amendment in such a way that the protections for news gathering are exceedingly weak.
Protections for publication and broadcast are strong, which is why the press has been able to report on secret stolen documents — from the Pentagon Papers to the Snowden files — with few concerns about facing prosecution.
But the court has ruled that journalists have no constitutional right to protect their anonymous sources. And with regard to the current string of spying revelations, the court has held repeatedly that journalists enjoy no special rights that would not be available to ordinary citizens.
President Biden recently pledged to end the practice of seizing reporters’ records, saying the practice is “simply, simply wrong.” Some observers questioned whether he actually meant it, since he’d be breaking not just with Trump’s abuses but with longstanding practice. That, in turn, led press secretary Jen Psaki to assure journalists that Biden planned to follow through on his pledge.
But what a president does, a future president can undo. To guarantee that the press will be able to perform its watchdog role, we need a federal shield law so that reporters won’t be compelled to reveal their confidential sources. Such protections — either by law or by court decision — are already in place in 49 states, with the sole exception being Wyoming.
We also need legislation that prevents the government from secretly spying on journalists’ online activities — and on readers’ activities as well.
No doubt opponents will insist that the government needs to be able to spy in order to keep us safe. But the Post, CNN and Times cases appear to involve the Trump administration’s politically motivated attempts to learn more about the origins of the Russia probe, including the activities of former FBI Director James Comey. The USA Today case did involve a much more serious matter. But after dropping its demands, the FBI told the BBC that “intervening investigative developments” made the information unnecessary.
Which is nearly always the case. Rarely does the government’s desire to interfere with the press’ role involve a situation that’s literally a matter of life or death. And the law can accommodate those rare instances.
In general, though, the government should go about its business without compromising the independence or freedom of the press.
The Trial of John Peter Zenger
The Trial of John Peter Zenger
On April 16th, 1735, the New York Supreme Court met in the second floor courtroom of New York City Hall. After attorneys James Alexander and William Smith, who were also Popular Party members, had attempted to represent John Peter Zenger at his trial, the Court decided to disbar both of them. The court did this because it was known that no attorney in the Province of New York would be as bold in the defense of John Peter Zenger as Alexander and Smith. A man named John Chambers was then assigned as a counsel for Zenger and entered a plea of not guilty. Chambers was a young man with little law experience in law. He was also complementary of Governor William Cosby's administration.
Alexander and Smith searched for the most experienced trial attorney in the colonies and selected a man by the name Andrew Hamilton. A resident of Philadelphia, Pennsylvania, he was no relation to Alexander Hamilton and was born in Scotland in 1656. Hamilton was the Attorney General of Pennsylvania from 1717 through 1726 and became Recorder of Philadelphia in 1727. Later, he would go on to become the Speaker of the Assembly from 1729 to 1739.
After John Peter Zenger had languished in jail for an entire year, his trial began on August 4, 1735 inside a small court room in the New York City Hall. The Attorney General opened the case, saying that the defendant had pleaded not guilty to printing and publishing a false, scandalous, and seditious libel against Governor Cosby. Chief Justice DeLancey then said to the jury, "The laws in my opinion are very clear they cannot be admitted to justify a libel." When Andrew Hamilton spoke, he was made famous for arguing that "the truth is a defense against libel." When the jury withdrew to deliberate, DeLancey was drawn into an argument with Hamilton, perhaps reflecting that Hamilton's argument had some merit. When the jury returned, the Clerk asked whether they agreed on a verdict and whether John Peter Zenger was guilty of printing and publishing libels. The jury's foreman, Thomas Hunt, replied, "Yes, the verdict is 'Not Guilty'."
The monumental trial of John Peter Zenger took place on the historic site where Federal Hall National Memorial now stands. The case inspired the entire city and helped to further the cause for freedom that led to revolution, forty years later. The John Peter Zenger trial would lead the way for the First Amendment to the Constitution of the United States of America, which reads, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof or abridging the freedom of speech, or of the press or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
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Russian Revolution, also called Russian Revolution of 1917, two revolutions in 1917, the first of which, in February (March, New Style), overthrew the imperial government and the second of which, in October (November), placed the Bolsheviks in power.
What caused the Russian Revolution of 1917?
Corruption and inefficiency were widespread in the imperial government, and ethnic minorities were eager to escape Russian domination. Peasants, workers, and soldiers finally rose up after the enormous and largely pointless slaughter of World War I destroyed Russia’s economy as well as its prestige as a European power.
Why is it called the October Revolution if it took place in November?
By the 18th century, most countries in Europe had adopted the Gregorian calendar. In countries like Russia, where Eastern Orthodoxy was the dominant religion, dates were reckoned according to the Julian calendar. In the early 20th century, the difference between these two calendars was 13 days, so the Julian (also called Old Style) dates October 24–25 correspond to the Gregorian dates November 6–7.
How did the revolution lead to the Russian Civil War?
The October Revolution saw Vladimir Lenin’s Bolsheviks seize power at the expense of more moderate social democrats (Mensheviks) and conservative “Whites.” Russia’s former allies, who were still fighting in World War I, soon identified the Bolsheviks as a threat equal to that of Germany, and they dispatched troops to Russia. The Allies could not agree on their aims in Russia, however, and Lenin took advantage of their war-weariness. After two years of fighting, the Bolsheviks emerged victorious.
What happened to the tsar and his family?
On March 15, 1917, Nicholas II abdicated the throne. Nicholas, his family, and their loyal retainers were detained by the provisional government and were eventually moved to Yekaterinburg. On July 17, 1918, when White army forces approached the area, the tsar and his entire family were slaughtered to prevent their rescue.
By 1917 the bond between the tsar and most of the Russian people had been broken. Governmental corruption and inefficiency were rampant. The tsar’s reactionary policies, including the occasional dissolution of the Duma, or Russian parliament, the chief fruit of the 1905 revolution, had spread dissatisfaction even to moderate elements. The Russian Empire’s many ethnic minorities grew increasingly restive under Russian domination.
But it was the government’s inefficient prosecution of World War I that finally provided the challenge the old regime could not meet. Ill-equipped and poorly led, Russian armies suffered catastrophic losses in campaign after campaign against German armies. The war made revolution inevitable in two ways: it showed Russia was no longer a military match for the nations of central and western Europe, and it hopelessly disrupted the economy.
Riots over the scarcity of food broke out in the capital, Petrograd (formerly St. Petersburg), on February 24 (March 8), and, when most of the Petrograd garrison joined the revolt, Tsar Nicholas II was forced to abdicate March 2 (March 15). When his brother, Grand Duke Michael, refused the throne, more than 300 years of rule by the Romanov dynasty came to an end.
A committee of the Duma appointed a Provisional Government to succeed the autocracy, but it faced a rival in the Petrograd Soviet of Workers’ and Soldiers’ Deputies. The 2,500 delegates to this soviet were chosen from factories and military units in and around Petrograd.
The Soviet soon proved that it had greater authority than the Provisional Government, which sought to continue Russia’s participation in the European war. On March 1 (March 14) the Soviet issued its famous Order No. 1, which directed the military to obey only the orders of the Soviet and not those of the Provisional Government. The Provisional Government was unable to countermand the order. All that now prevented the Petrograd Soviet from openly declaring itself the real government of Russia was fear of provoking a conservative coup.
Between March and October the Provisional Government was reorganized four times. The first government was composed entirely of liberal ministers, with the exception of the Socialist Revolutionary Aleksandr F. Kerensky. The subsequent governments were coalitions. None of them, however, was able to cope adequately with the major problems afflicting the country: peasant land seizures, nationalist independence movements in non-Russian areas, and the collapse of army morale at the front.
Meanwhile, soviets on the Petrograd model, in far closer contact with the sentiments of the people than the Provisional Government was, had been organized in cities and major towns and in the army. In these soviets, “defeatist” sentiment, favouring Russian withdrawal from the war on almost any terms, was growing. One reason was that radical socialists increasingly dominated the soviet movement. At the First All-Russian Congress of Soviets, convened on June 3 (June 16), the Socialist Revolutionaries were the largest single bloc, followed by the Mensheviks and Bolsheviks.
Kerensky became head of the Provisional Government in July and put down a coup attempted by army commander in chief Lavr Georgiyevich Kornilov (according to some historians, Kerensky may have initially plotted with Kornilov in the hope of gaining control over the Petrograd Soviet). However, he was increasingly unable to halt Russia’s slide into political, economic, and military chaos, and his party suffered a major split as the left wing broke from the Socialist Revolutionary Party. But while the Provisional Government’s power waned, that of the soviets was increasing, as was the Bolsheviks’ influence within them. By September the Bolsheviks and their allies, the Left Socialist Revolutionaries, had overtaken the Socialist Revolutionaries and Mensheviks and held majorities in both the Petrograd and Moscow soviets.
By autumn the Bolshevik program of “peace, land, and bread” had won the party considerable support among the hungry urban workers and the soldiers, who were already deserting from the ranks in large numbers. Although a previous coup attempt (the July Days) had failed, the time now seemed ripe. On October 24–25 (November 6–7) the Bolsheviks and Left Socialist Revolutionaries staged a nearly bloodless coup, occupying government buildings, telegraph stations, and other strategic points. Kerensky’s attempt to organize resistance proved futile, and he fled the country. The Second All-Russian Congress of Soviets, which convened in Petrograd simultaneously with the coup, approved the formation of a new government composed mainly of Bolshevik commissars.
DWP: The case for the prosecution
The first death was on New Year’s Eve 2011, a divorced woman in her early 50s who was found dead at her home in Scotland after taking her own life. She would later become known as Ms DE. She has never been publicly identified.
In August 2013, Mark Wood starved to death at his home in Oxfordshire.
David Barr, from Glenrothes, Fife, also died that month, having taken his own life.
On 23 September 2013, a father-of-two, Michael O’Sullivan, took his own life at his flat in north London. Like Ms DE, he had a long history of significant mental ill-health.
Two years later, in November 2015, Paul Donnachie killed himself at his home in Glasgow.
All five had significant mental health problems.
Every one of their deaths could and should have been avoided.
The deaths of all five – and countless others whose names are never likely to be known, other than by grieving family and friends – were inextricably linked to decisions and actions taken by Conservative ministers and senior civil servants from the early days of the 2010 coalition government.
The results of a five-year investigation by Disability News Service (DNS) provide strong and clear evidence that senior civil servants and the two ministers responsible for those decisions – Iain Duncan Smith and Chris Grayling – should face a criminal investigation for alleged misconduct in public office.
All five of those who died – Ms DE, Mark Wood, David Barr, Michael O’Sullivan and Paul Donnachie – had one crucial thing in common: they had all been found “fit for work” – and therefore ineligible for the new out-of-work disability benefit, employment and support allowance (ESA) – after being subjected to the government’s now notorious work capability assessment (WCA) process.
Their deaths were not inevitable.
A key flaw at the heart of the WCA – the flaw that would lead to all these deaths – had been spotted in early 2010 by a coroner, who had alerted the Department for Work and Pensions (DWP). It could easily have been fixed.
The coroner, Tom Osborne, had heard the inquest into the death of 41-year-old Stephen Carré, who had taken his own life at his home in Eaton Bray, Bedfordshire, in January 2010.
Stephen (pictured, below) had not worked since the summer of 2007, after becoming severely ill with depression and anxiety, but had previously worked for the Civil Service and then various electronics and communications companies, including as a telecommunications consultant.
After he quit his job, he rarely left his home, refused to talk to friends and relatives, or answer the door or telephone, and often spent days on end in the same room, surrounded by his possessions. He lived off his savings for two years until his money ran out in 2009, and finally began talking again to his father and step-mother, Frances, in early 2009. They eventually persuaded him to apply for ESA.
His father, Peter, said: “He couldn’t go anywhere on his own for the first time. I had to go with him to his psychiatrist. He would only go to certain shops, and only on a certain day.”
Peter had to accompany Stephen to the assessment centre two or three times before he was comfortable with the idea of attending his benefits eligibility test on his own.
He was assessed by a doctor employed by the government contractor Atos through the new WCA, which had been introduced by the Labour government the previous year. The assessor concluded that there was “no evidence to suggest that the client’s health condition due to their depression, is uncontrolled, uncontrollable or life threatening”.
When that conclusion was rubber-stamped by a DWP decision-maker, Stephen asked DWP to reconsider the decision, as he believed it “disagrees wildly” with the opinion of his GP, his community psychiatric nurse and his psychiatrist.
On his form seeking a review of the decision, he wrote that the medical assessment “bears no relation to the medical I had”, and that the report was completed by the assessor eight days after the assessment took place.
But Stephen found out early in January 2010 that DWP had agreed with its earlier decision. Although he began the next stage of the process, an independent appeal, he took his own life at some point in the next few days. His body was found on 18 January 2010.
Stephen’s GP and psychiatrist both told his inquest that they had not been asked by the Atos assessor or DWP to provide details of his state of mental health.
The coroner was so concerned by what he had heard about the WCA process that he said he would write a Rule 43 report, a letter sent to “a person, organisation, local authority or government department or agency where the coroner believes that action should be taken to prevent future deaths”.
In the letter, Osborne said the evidence he had heard had shown that the “trigger” that led to Stephen’s decision to take his own life had been “the rejection of his appeal that he was not fit for work”.
He added: “I feel the decision not to seek medical advice from the claimant’s own GP or psychiatrist if they are suffering a mental illness should be reviewed.
“Both doctors who gave evidence before me confirmed that if they had been approached they would have been willing to provide a report of Mr Carré’s present condition and prognosis.”
Atos refused to comment on the case when DNS uncovered the Osborne letter in the autumn of 2015.
Osborne sent his letter, dated 30 March 2010, to Yvette Cooper, the Labour government’s secretary of state for work and pensions. A few days later, on 6 April, prime minister Gordon Brown called a general election. It is believed that, as a result, Cooper never saw the letter, and almost certainly had no time to act on it.
A new government
While the 6 May election was playing itself out, DWP’s permanent secretary, Sir Leigh Lewis (who would retire from the Civil Service at the end of the year), wrote to Osborne with a holding letter on 4 May.
The Rule 43 report was surely waiting in the inbox of the incoming Tory work and pensions secretary, Iain Duncan Smith, and his new employment minister Chris Grayling, when they were appointed on 12 May, although it is impossible to be sure of this because the department would later tell me (in February 2016) that it “holds no information” to say whether they were indeed shown the report.
But the reassessment of existing claimants of the old incapacity benefit for the new ESA was one of the priorities of Duncan Smith and Grayling as they took over control of DWP after the Tory-Liberal Democrat coalition came to power. It was a high-profile political issue. They had to have been shown the letter.
But rather than acting immediately and urgently on its contents and taking the action needed to ensure the WCA was safe, they did almost the exact opposite. They ignored it and failed to ensure it was shown to the independent expert they had commissioned to review the assessment process.
As a result of these and other actions, they exposed hundreds of thousands of other disabled people to life-threatening risks. Research would later show that the use of the WCA to reassess claimants of old-style incapacity benefit (IB) was “associated with” hundreds of suicides.
Chris Grayling and Iain Duncan Smith
One of the first significant acts taken by Chris Grayling in his new role had been to announce, in June 2010, that the government would – the following February – begin this process of reassessing the estimated 1.5 million people still claiming IB.
The decision was made despite Tom Osborne’s letter, a report which had raised concerns that the flaws in the WCA meant there was a risk that “other deaths will occur or will continue to exist in the future”.
We know that DWP received Osborne’s letter because of a series of a follow-up letters the coroner wrote to the department while he awaited a “substantive response” to his Rule 43 Report.
Another of Grayling’s significant early acts as employment minister, a few weeks later, on 29 June 2010, was to announce that occupational health expert Professor Malcolm Harrington would undertake the first independent review of the WCA.
The move was widely welcomed, but it only emerged years later that Grayling (pictured) and Duncan Smith had failed to ensure that Osborne’s Rule 43 letter was passed to Harrington.
Harrington cannot prove he was not shown the letter but he is adamant that he would remember it if he had been shown it. He told me in 2015: “I cannot recall the report. Nobody brought it to my attention that I can remember. If I had known about that coroner’s report, I would have said that this was something else we need to look at. I am a doctor, I know about coroner’s reports. Coroner’s reports are something that you don’t ignore.”
He said the need to secure further medical evidence was a consistent concern during the three reviews of the WCA that he carried out in 2010, 2011 and 2012, and he made it clear in his third report that DWP decision-makers should “actively” consider seeking further medical evidence, a recommendation that was never carried out in full.
He told me that, if he had been shown the coroner’s letter, it would almost certainly have led to him making recommendations far earlier about the need to seek further medical evidence.
He said this was particularly important for claimants with mental health conditions, like Stephen Carré.
He said: “Of course! They weren’t picking up this additional information that should have been right up front. It would have brought forward the best evidence.”
Asked how he felt about Grayling’s apparent failure to pass on this information to him, he said: “No comment.”
But this was not the only failure by Duncan Smith and Grayling.
Duncan Smith had a legal duty to respond to Osborne’s letter within 56 days. He failed to do so, and indeed did not reply to it until February 2016, after the report’s existence had emerged publicly when it was discovered by Disability News Service (DNS).
A response which DWP claimed to have drafted in the autumn of 2010, but which was neither signed nor dated – and which only emerged in March 2016 – dismissed the coroner’s concerns, and even insisted that it had been right to find Stephen Carré fit for work, even though an appeal tribunal had concluded after his death that he should have been found eligible for ESA.
The peer reviews
Osborne’s letter was not the only key piece of evidence that Duncan Smith and Grayling kept from Harrington.
Responses from DWP to DNS freedom of information requests later revealed that they had also failed to show Harrington at least seven secret reviews into benefit-related deaths.
These “peer reviews” were internal reports written by DWP civil servants after investigations into suicides and other deaths and serious incidents linked to benefit claims.
DWP had previously denied holding any information about such deaths (“The specific information requested is not held by the Department,” it told me), until it eventually admitted that “where it is appropriate we undertake reviews into individual cases”.
But it took a 21-month battle – through appeals by DNS to the department, to the information commissioner and, finally, to the information rights tribunal – before the department eventually published heavily-redacted versions of 49 peer reviews in March 2016.
(DWP says that the reason the reviews were not released was that they contained personal information, a decision upheld by the information commissioner. Despite the tribunal subsequently ruling that the redacted versions of the reviews should be released, DWP points out that the tribunal also upheld the DWP position that it should protect that personal information.)
Many of the peer reviews – in fact, nearly all of those where it was possible to tell which benefits were involved – were commissioned following deaths linked to the WCA, and many of those were also linked to the huge reassessment programme of hundreds of thousands of long-term claimants of IB.
Journalist Natalie Leal was to find out, through her own freedom of information request, that 40 of the 49 peer reviews were carried out following a suicide or apparent suicide, and of those 40, at least 18 had been claiming ESA (in another 13 cases, it was not clear what benefits they had been claiming).
In at least 13 of the peer reviews, the author explicitly raised concerns about the way that “vulnerable” claimants – likely to be people with mental health conditions or learning difficulties – were treated.
In one, the author recommends: “In such cases DMs [DWP decision-makers] are encouraged to retrieve all historical case files before making a decision so that the medical history and all supporting evidence can be perused to minimise the risk of withdrawing the benefit inappropriately and placing a vulnerable claimant at risk.”
In another, the author recommends “that the guidance for handling vulnerable customers is reviewed and that staff are reminded of the correct process”.
But on at least seven occasions – there may have been more – ministers appear to have failed to share these peer reviews with Professor Harrington.
DWP only started collating the peer reviews centrally from February 2012 and Professor Harrington published his final report on the WCA in late November of the same year.
DWP admitted in another freedom of information response that “there were seven peer reviews, from February 2012 until Professor Harrington’s report of that year, in which the terms ‘WCA’ or ‘Work Capability Assessment’ were mentioned”.
The DWP response adds: “The Department does not hold any information to confirm or deny whether these Peer Reviews were shared with Professor Harrington.”
Professor Harrington said in December 2016 that he was convinced that he would remember being shown “such damning indictments of the system”.
He said: “I have NO recollection of seeing any of the reviews you mention. Maybe my brain is failing, but such damning indictments of the system – if seen – should have triggered a response from me. It didn’t.”
Harrington, of course, had already said that he was convinced that he had not been shown Tom Osborne’s Rule 43 report.
Indeed, DWP later admitted to the information commissioner that it had failed for more than three years to keep a record of what actions it took – if any – after carrying out these secret peer reviews.
From February 2012 until September 2015 it kept no records of what happened to recommendations made by the reviews. It told the Information Commissioner’s Office that it accepted that the peer review process had lacked “robust governance” during this period.
It was not until January 2014, and another inquest, this time into the death of Michael O’Sullivan, from north London, that another coroner raised concerns about links between the WCA and the suicide of a benefit claimant.
O’Sullivan was another of the hundreds of thousands of IB claimants who had been caught up in the migration from the old benefit to ESA, and had been forced into the WCA system.
The senior coroner for inner north London, Mary Hassell, concluded at the end of his inquest: “The anxiety and depression were long term problems, but the intense anxiety that triggered his suicide was caused by his recent assessment by the Department for Work and Pensions (benefits agency) as being fit for work, and his view of the likely consequences of that.”
The former orthopaedic surgeon, employed by Atos Healthcare, who carried out the WCA concluded – just as the doctor had in Stephen Carré’s assessment – that O’Sullivan was “at no significant risk by working”. He had failed to ask him if he had had suicidal thoughts.
Following the inquest, the coroner wrote what was by then known as a Regulation 28 report (the replacement for Rule 43 reports) on the grounds that evidence revealed during her investigations suggested that there was “a risk that future deaths will occur unless action is taken”. That report was sent directly to DWP, just as Tom Osborne’s had been in late March 2010.
In the report, Hassell said the Atos healthcare professional had failed to take account of the views of any of his doctors, telling him that the DWP decision-maker would look at that evidence instead.
But the DWP decision-maker did not request any reports or letters from his GP, his psychiatrist, or his clinical psychologist.
Instead, Michael O’Sullivan was found fit for work. Six months later, he took his own life.
The coroner said in her report that she believed action should be taken “to prevent future deaths” and that DWP had the power to take such action.
It was almost an identical conclusion to the one reached by Tom Osborne four years earlier, a report that appears to have been ignored by Iain Duncan Smith and Chris Grayling.
DNS has maintained contact with members of the O’Sullivan family, who are currently unable to comment further due to the nature of their own “very sensitive and ongoing investigations being taken up with the appropriate authorities at the highest possible level”.
They have asked for previously published details of the case not to be included in this article, to avoid prejudicing the case.
But they say they will ensure that “no stone is left unturned” in their ongoing call for DWP to be held to account and for prosecution of those culpable in Michael O’Sullivan’s tragic death in September 2013.
The month before Michael O’Sullivan’s suicide, another victim of the WCA process had died.
Mark Wood did not take own life, though. He starved to death after being found ineligible for ESA, even though he had never been able to cope with the demands of a job, and his GP had said he was completely incapable of working.
The decision to find him fit for work caused him extreme anxiety and distress and exaggerated his eating disorder.
He apparently died from natural causes, due to becoming dangerously underweight, four months after his IB was stopped. He had become another victim of the reassessment process.
Because of his complex mental health conditions and other impairments, including the eating disorder, Asperger’s syndrome and multiple chemical sensitivity, he had not provided the evidence needed in his ESA application, or at a face-to-face WCA.
But Mark (pictured) had stated in the ESA form that he had problems with anxiety and depression, while the assessment was carried out at the cottage where he lived alone, rather than at an Atos assessment centre in Oxford, because of the severity of his panic attacks.
Because of his complex mental health issues, he was unable to cope with either support workers or help from his family, and his mother says he was unaware of the purpose of the WCA. She said that neither the Atos assessor nor the DWP decision-maker made any attempt to secure further medical evidence about his mental health from his GP, who would have told them that he was unable to work.
His GP told his inquest in February 2014 that Mark had visited him in extreme distress a short time after his benefit had been stopped in April 2013. He had handed Mark a note, explaining that he was extremely unwell and completely unfit to work, but the note does not appear to have reached his local jobcentre.
The GP also told the inquest: “Something pushed him or affected him in the time before he died and the only thing I can put my finger on is the pressure he felt he was under when his benefits were removed.”
His death came three years after ministers had been warned by Tom Osborne that they needed to review their policy not to seek further medical evidence from the GPs and psychiatrists of ESA claimants with mental health conditions.
Mark’s mother, Jill Gant, told DNS that she would like to see ministers held accountable by the criminal justice system for their failure to act on the Stephen Carré coroner’s report, which she believes led to her son’s death.
The retired education social worker, from Abingdon, Oxfordshire, said: “Quite honestly, I think they have failed in their duty. They doggedly refused to consider and act on this very clear, simple suggestion.”
She said it would be “stunning” if a case could be brought against ministers and added: “They certainly need to be called to account.”
She secured a meeting with the minister for disabled people, Mark Harper, in March 2015, but he did not create a good impression.
Gant said that, when told Mark’s story, Harper showed no concern or understanding and seemed completely unmoved. When she asked him whether DWP would consider revising its WCA procedures to require medical evidence “he refused to answer the question directly”.
She said that “it was shocking, in my opinion” that Harper had gone on to chair the all-party parliamentary group on learning disability.
Her search for answers following her son’s death had quickly focused on the single issue of why further medical evidence had not been sought.
Confronted by the refusal of Conservative ministers, including Harper and employment minister Priti Patel, to answer her questions, she later told her Tory MP, Nicola Blackwood, that the refusal to act was not fair and not morally just.
“Furthermore,” she told DNS, “it is probably not legal, discriminating against the most disabled members of society.
“Medical evidence is usually sought for the accused in criminal trials how much more deserved is it in life-determining benefit assessments for vulnerable people.”
The final letter from Patel was sent to Jill Gant in July 2016 and stated that DWP was still working with Maximus – the discredited US outsourcing giant now carrying out WCAs after Atos was forced to withdraw from the contract after years of criticism – to “expand the current guidance” on securing further medical evidence and “ensure that evidence is gathered in more circumstances than at present, especially for those claimants with a mental health condition”.
There have been attempts by disabled activists to persuade the Scottish criminal justice system to launch an investigation into the failure of Duncan Smith and Grayling to improve the safety of the WCA, a failure that is believed to have caused the deaths of at least three Scottish benefit claimants, and almost certainly many more.
A dossier containing details of the deaths of those three claimants – Paul Donnachie, David Barr, and Ms DE – was passed to Police Scotland by the Scottish grassroots campaign network Black Triangle, through its co-founder John McArdle, which claimed that they were guilty of “wilful neglect of duty”.
David and Maureen Barr both believe that Duncan Smith and Grayling should be prosecuted. Their son, also called David, was just 28 when he took his own life on 23 August 2013.
Despite his history of significant mental distress, David’s parents believe the healthcare professional who assessed him – employed by Atos – failed to contact their son’s GP or his psychiatrist for further information about his mental health.
When questioned afterwards by the Procurator Fiscal’s office – which investigates sudden deaths in Scotland – the assessor claimed he couldn’t remember if he had made any phone calls, according to David’s father.
The Atos assessor completed David’s assessment by concluding, in June 2013: “He reports self harm in the past. He reports he attempted an overdose six weeks ago but he would not say what he took.
“He reports he has had no thoughts of suicide since. The evidence overall suggests that he is not at substantial risk.”
Despite David asking DWP to reconsider the decision that he was fit for work and telling the department in a letter that he had “serious mental health problems that prevent me from doing everyday tasks which means I cannot work at this moment in time”, the Atos advice was rubber-stamped by DWP decision-makers.
The decision that he was not eligible for ESA was confirmed in a letter to David (pictured, below) on 17 July 2013. A month later, he took his own life.
David Barr senior said his son’s mental health had deteriorated in the last couple of years of his life, but he had previously been able to work intermittently in agriculture and labouring, while his final job, which ended in 2011, was cleaning buses. By the time he died he was no longer capable of working, his dad said, and he was taking strong medication including anti-psychotics and anti-depressants and was experiencing paranoid delusions.
David’s father, a bus driver, said: “His mind was gone, and anybody who assessed him should have seen that.”
He said that he was fully behind attempts to secure a prosecution.
He said: “If we let a defective bus in the road [and it killed someone] we would be up for manslaughter that’s why these people should be taken to court.
“They are talking about taking the former prime minister [Tony Blair] to court for war crimes, but this is just as bad, if not worse. They knew about it and did nothing about it. The whole thing is shocking. The ministers in charge of it should have sorted something out, stopped it, changed it, re-directed it, I don’t know what.”
He added: “If I see Duncan Smith on the TV, I just have to walk out, turn it off. I hate the man with a vengeance. He has known what was going on and he did nothing about it. He wants to be dragged over the coals for this, and if I can help in any way I will.”
David’s mother Maureen has also backed calls for a criminal prosecution.
She said: “It is time someone did something. [Otherwise] there will just be more like David and nothing is ever done. It makes you feel terrible that they should have done something [and didn’t].”
His father is certain that the decision to turn down David’s ESA claim was the trigger that led to his decision to kill himself, against a background of continuing financial pressures.
He remembers finding his son’s WCA report and all his other official paperwork scattered over the floor of his flat after he died.
He said: “It was just dumped all over the floor anything to do with anything official, he’d just had enough of it. That’s when I picked it up and read through it, this 33-page assessment.”
David’s mother Maureen said she believed the “fit for work” decision was “definitely” the trigger for his decision to take his own life.
She said: “It was the straw that broke the camel’s back.”
Several weeks after he died, two DWP officials visited the family and admitted that David should have been receiving ESA instead of jobseeker’s allowance for nearly two years.
David’s father said: “They were here for about an hour-and-a-half explaining everything. But these two – through Iain Duncan Smith – had killed my son, and I said this to them. They knew that what they had done was wrong and I said to them, ‘Had it been your children in my son’s situation, would you have acted the same way?’ They couldn’t answer that.
“I gave it to them with both barrels and they walked out with their tails between their legs, but it didn’t bring my son back.”
DWP paid the family £2,700 in compensation for the extra social security support David had not received while he was alive (the difference between the jobseeker’s allowance he received and the ESA he should have been receiving).
Maureen Barr said: “They turned around and said, ‘I don’t suppose it will help now, but we have reversed the decision.’ I couldn’t believe it. I thought, ‘What good is that to him now?’”
Another Scottish victim of the WCA process was Paul Donnachie.
His sister Eleanor believes that he, too, died because of the failings of Iain Duncan Smith and Chris Grayling.
Eleanor, from Coatbridge, Lanarkshire, is another grieving relative who wants to see the two former ministers face a criminal investigation.
Paul’s body was discovered in January 2016 at his home in Glasgow, but he is believed to have taken his own life in November 2015 after losing his ESA.
His sister believes DWP had failed to contact Paul’s GP to ask for detailed information about his mental health – just as in the cases of Stephen Carré, Michael O’Sullivan, Mark Wood and David Barr – and ignored its own guidance by failing to send someone to his flat to talk to him face-to-face about his support needs.
Paul had previously claimed jobseeker’s allowance and filed a complaint because of the way he had been treated by his local jobcentre. He was sanctioned several times and fell deeper and deeper into debt.
Eleanor says DWP knew that Paul (pictured) attended mental health support groups and counselling sessions, and that he was taking anti-depressants. But the department removed his ESA when he failed to attend a WCA on 30 June 2015 – the second or third assessment he had missed. His benefits were stopped and the withdrawal of his payments was backdated by four weeks. DWP also contacted Glasgow City Council, so his housing benefit and council tax benefit were both stopped.
Eleanor believes that by this stage Paul was so ground down by fighting DWP that he stopped opening his post.
The council wrote to him on 19 November to say there had been a mistake and that his housing benefit was being reinstated, but the letter arrived too late. He never opened it and may already have been dead when it arrived.
She said: “They didn’t do anything to help him. They should have arranged a home visit, but the only time that happened was when the council sent the bailiffs round to kick his door down. And that’s when they found him.
“They hounded him to death. They have taken my brother’s life. They are driving people to suicide. I have told DWP that I hold them totally responsible for my brother’s death.”
Ms DE and the Scottish dossier
Black Triangle approached Police Scotland with a dossier of evidence in March 2016 because it believed there was clear evidence that Duncan Smith and Grayling had neglected their duty as public servants in refusing to bring in the changes called for by Stephen Carre’s coroner, so causing other deaths, including those of Paul Donnachie, David Barr and Ms DE.
Black Triangle said its dossier concluded that, “were it not for the alleged criminal omissions by the two ministers, these and countless other deaths could have been and could yet be avoided”.
Neither Police Scotland nor the Crown Office and Procurator Fiscal (COPF), the Scottish equivalent of the Crown Prosecution Service, were ever enthusiastic about investigating Black Triangle’s dossier.
Edinburgh police eventually confirmed that it would be taking no further action on the David Barr case, while COPF said it had also decided that no further action should be taken relating to the death of Paul Donnachie.
Police Scotland said that COPF had already decided that there was no link between DWP’s decision to find David Barr fit for work – following a 35-minute assessment by a physiotherapist – and his decision to take his own life a month after being told by DWP he was not eligible for ESA.
Police Scotland had said it would only look at the Ms DE case if Black Triangle was able to pass on her personal details, but those details have never been made public, as her death was the subject of a report by the Mental Welfare Commission for Scotland (MWCS), which treated her case anonymously and concluded that she killed herself after being told she was not eligible for ESA.
The report linked her death to DWP’s failure to obtain medical evidence about her mental health from the professionals who had treated her, just as the coroner had done in the case of Stephen Carré.
MWCS concluded that the decision to strip her of out-of-work disability benefits had been based on an assessment that contained “insufficient information about her mental health”.
Ms DE killed herself after she was found fit for work, following an Atos assessment.
The Atos assessor, a doctor, had decided that she showed “no evidence of significant disability of mental health function”.
But neither her GP nor her psychiatrist, who had both been treating her for 20 years, was asked by Atos or DWP to comment on her mental health, even though both were convinced that she was not fit for work.
She had been claiming IB she was another claimant to have been caught up in the national reassessment programme.
Ms DE was found dead in her home on 31 December 2011, 13 days before her ESA was to be stopped. She had told a welfare rights adviser that she did not know how she would be able to pay her mortgage.
Her psychiatrist said there were no other factors he knew of that could have caused her to take her own life.
The Mental Health Resistance Network civil case
While Black Triangle had been pushing the Scottish criminal justice system to launch a thorough investigation into what they saw as the criminally neglectful actions of Iain Duncan Smith and Chris Grayling, they and others had been continuing to push the government to introduce new laws that would – in effect – answer the concerns first raised by Tom Osborne in March 2010.
The focus of those efforts came through a legal action brought against Iain Duncan Smith – as work and pensions secretary – with the support of a campaigning organisation of activists who live with mental distress, the Mental Health Resistance Network.
The network had been formed in 2010 by people claiming IB on mental health grounds, all of them concerned about the proposed programme to reassess all those on the benefit for their eligibility for ESA.
They were right to be concerned – many of them subsequently experienced relapses, episodes of self-harm and suicide attempts, and had needed higher levels of medication and even hospitalisation in the lead-up to their reassessments.
The judicial review case began in 2012 with two IB claimants arguing that the WCA discriminated against people like them with mental health conditions. They argued that the WCA failed to make reasonable adjustments under the Equality Act for people with mental health conditions and learning difficulties, and autistic people.
They wanted DWP and Atos to seek further medical evidence at the beginning of each claim, rather than forcing such claimants to provide their own evidence and describe themselves in stressful face-to-face assessments how their ability to work was affected by their impairment.
It was precisely the same point that had been made by coroner Tom Osborne, although they and their lawyers were not to learn of the existence of his Rule 43 letter for another three years.
The hope was that a court victory would force the government to make the WCA fairer and less stressful for some people, and possibly exempt some of them from having to attend a face-to-face assessment with an Atos healthcare professional.
Mr Justice Edwards-Stuart, granting permission for a judicial review in July 2012, said that it was “reasonably arguable” that “early obtaining” of independent medical evidence was a reasonable adjustment under the Equality Act for claimants with mental health conditions and “that this has not been done, or at least not done on a sufficiently widespread basis”.
The following May, three upper tribunal judges ruled that the WCA did put people with mental health conditions or learning difficulties and autistic people at a substantial disadvantage, because many of them had problems filling in forms, seeking additional evidence to present to DWP and Atos and answering questions.
They adjourned the case so DWP could investigate whether there were reasonable steps it could take to avoid this disadvantage, in accordance with its duty to make reasonable adjustments under the Equality Act.
But the ruling did not lead to the changes campaigners had been pushing for. Instead, Duncan Smith ordered government lawyers to appeal the ruling, while his press officers continued to insist that DWP was making “significant improvements to the WCA process for people with mental health conditions”.
Duncan Smith lost the appeal, but the resistance to making the test safer continued as the case returned to the upper tribunal so it could decide how DWP should address the disadvantage.
When the upper tribunal delivered its final ruling, in March 2015, it concluded that the test could discriminate against some disabled people, although the two claimants had not proved that they personally had experienced discrimination under the Equality Act.
Ministers told the tribunal that they would pilot ways to make the WCA safer.
But 12 months later, the pilot project had still not begun, with DWP claiming that it was still working on a “feasibility study”.
MHRN by now had learned that Duncan Smith and his department had withheld from the court both the coroners’ letters written after the deaths of Stephen Carré and Michael O’Sullivan.
An MHRN spokesperson said she was “shocked and disgusted” that DWP had never informed their lawyers about the existence of the Stephen Carré coroner’s letter, or – later in the case – the Michael O’Sullivan letter.
She said: “They withheld very significant evidence from that court case.”
In May 2017, more than two years after ministers promised the social security upper tribunal that it would test improvements to the WCA process – and more than seven years after the letter sent to DWP by corner Tom Osborne – DWP finally released some details of the measures it had introduced.
The details – which were heavily redacted – emerged following freedom of information requests from DNS and lawyers from The Public Law Project (PLP), which had represented the two claimants in the tribunal case.
Previous guidelines for staff carrying out face-to-face assessments stated that further medical evidence must be obtained if, for example, there was evidence of a previous suicide attempt, suicidal ideation or self-harm, and in certain other cases, such as when a claimant had an “appointee” to make important decisions on their behalf.
DWP had now drawn up new guidance, following a small-scale study involving less than 250 claimants.
The new guidance stated that further medical evidence could now also be requested at the “filework” stage – the stage before any face-to-face assessment is carried out – if it was felt that “further information would be helpful”.
But if the healthcare professional responsible for this “filework” decided there was no need to seek this further medical evidence, they would not need to justify that decision.
This showed that DWP had disregarded the recommendation made more than four years previously by Professor Malcolm Harrington, in his third independent review of the WCA.
Harrington had said in his review that DWP decision-makers should, at a later stage in the process, “actively consider the need to seek further documentary evidence in every claimant’s case”, and that any decision not to seek further evidence “must be justified”.
And he said that “particular care” should be taken to ensure this evidence was obtained when the claimant had a mental health condition or learning difficulty.
(DWP has made the point that the upper tribunal confirmed – which the court of appeal did not dispute – that DWP should not be forced to collect further medical evidence in every case.)
The information released by DWP reversed Professor Harrington’s recommendation, as it said that the healthcare professional “must provide an appropriate justification” in every case in which they make a request for further medical evidence, rather than in those cases in which they do not.
PLP said the DWP response “must call into question whether there is any political will to stop the discriminatory effect of the WCA on people with mental health problems”.
There were also concerns that DWP never carried out the large-scale pilot, as it said it would, but only a feasibility study involving less than 250 people, which led to further evidence being requested in just 11 more cases.
It had originally planned a pilot of 4,000 people, before reducing this to 1,000 people, and then telling the tribunal that it first had to carry out a feasibility study before any pilot.
It now appeared that no proper pilot had ever been carried out, even though the upper tribunal had said this evidence was “clearly needed” to show what reasonable adjustments were necessary to address the “substantial disadvantage” experienced by claimants with mental health conditions.
A freedom of information response sent to The Public Law Project by DWP referred only to “a small scale test” rather than a pilot.
DWP’s efforts to avoid taking meaningful steps to improve the safety of the WCA – by ensuring that all the necessary evidence was gathered before a decision on a claim for out-of-work disability benefits was taken – stretched of course all the way back to April 2010.
Rakesh Singh, a solicitor with The Public Law Project, told DNS: “I am seriously concerned that the DWP has failed to carry out the pilot it promised several years ago to the tribunal, that it has failed to implement the change recommended by Professor Harrington in 2012, and that it has failed to give any reasons for not doing so.
“The new guidance that has come into force this week shows that the DWP is simply not willing to listen to its own independent reviewer or to the courts about what needs to be done to make the WCA process safer and fairer for people with mental health conditions, or to learn lessons from the tragic suicides of those who had been subjected to the WCA and follow the recommendations of the independent bodies who had investigated their deaths.
“This must call into question whether there is any political will to stop the discriminatory effect of the WCA on people with mental health problems.”
The latest version of DWP’s WCA handbook – last updated in February 2019 – suggests that nothing has changed, and that a Maximus healthcare professional – at the filework stage – “may decide that further medical evidence (FME) is required” and that FME “may be requested from any healthcare professional involved in the claimant’s care” (note the use of the word “may”) before information is reviewed and a decision is reached on whether a face-to-face assessment is needed.
In summary, despite the advice of Professor Malcolm Harrington that the healthcare professional should seek further medical evidence in many more cases, there is still almost no pressure on them to do so. Despite the deaths, almost nothing has changed.
The Oxford and Liverpool study
Much anecdotal evidence has been uncovered of a link between the WCA and an increase in mental distress, including multiple media reports of ESA claimants whose deaths were linked to the government’s social security reforms, but in November 2015 came the strongest research evidence yet in a new study.
The idea for the research came originally from disabled activist Rick Burgess, who wanted “recognised and respected epidemiologists” to carry out “an academically-rigorous study” into the number of deaths caused by the WCA.
Together with three other leading campaigners – artist-activist Liz Crow and fellow campaigners Jane Bence and Nick Dilworth – Burgess began discussing the idea in 2014 with David Stuckler, professor of political economy and sociology at Oxford.
The following year, Stuckler and fellow health experts from the Universities of Liverpool and Oxford were able to show in a study that, for every 10,000 IB claimants in England who were reassessed for ESA between 2010 and 2013, there were an additional six suicides, 2,700 cases of self-reported mental health problems, and an increase of more than 7,000 in the number of anti-depressant prescriptions.
In all, across England as a whole, the reassessment process from 2010 to 2013 was “associated with” an extra 590 suicides, 279,000 additional cases of self-reported mental health problems, and a further 725,000 anti-depressant prescriptions.
Ms DE, Mark Wood and Michael O’Sullivan had all been involved in this reassessment process.
The hostile environment
Time and again, DWP ministers had refused to act to make the WCA a safer, less damaging process, and to tone down the aggressive rhetoric that was aimed at the “scroungers, shirkers and skivers” who they hinted – and sometimes even explicitly and publicly stated – were responsible for the country’s economic turmoil.
In October 2010, nine months after the death of Stephen Carré, prime minister David Cameron (pictured) had told the Tory party conference: “If you really cannot work, we will always look after you. But if you can work, and refuse to work, we will not let you live off the hard work of others.”
The following month, Duncan Smith himself had told The Sun newspaper that he was “appalled” at how easy it had been in the past for people to claim incapacity benefit and cheat the system.
He suggested that a large proportion of incapacity benefit claimants were cheats, and said that Sun readers were right to be “upset and angry” when they saw neighbours who do not work, because such “unfairness saps away at our sense of togetherness in society”.
Duncan Smith said Britain used to be “the workshop of the world” but had now “managed to create a block of people” who “do not add anything to the greatness of this country” and had “become conditioned to be users of services, not providers of money. This is a huge part of the reason we have this massive deficit.”
He added: “We don’t want to talk about scroungers in the future, we want to talk about British people being renowned the world over for working hard.”
When asked to confirm that the comments were reported accurately by The Sun, a Department for Work and Pensions spokeswoman said: “If we were unhappy with the article in the Sun we would have gone back to The Sun, but we haven’t.”
A short interview with Iain Duncan Smith
Duncan Smith has been confronted at least once about his culpability in the deaths linked to the WCA and his failure to listen to Tom Osborne.
In the unplanned interview, which took place at the 2016 Conservative party conference in a busy foyer in Birmingham’s International Conference Centre, the by then former work and pensions secretary told me that five independent reviews of the WCA commissioned by DWP under his leadership had led to a “much improved system”.
Duncan Smith (pictured at this year’s Conservative party conference) repeatedly attempted to avoid answering questions about Tom Osborne’s letter, but eventually admitted that he remembered the Stephen Carré case.
He told me: “I remember the case and I remember the work we did and we had five reviews so I’m not going to be accused by you of anything.”
He also said that he remembered what he referred to as “the early cases”, but that he could not “remember every single letter from a coroner”.
And when asked if he remembered the case of Michael O’Sullivan, he said: “Go and ask the department about where they are now with all of that. Honestly, because I am not there at the moment.”
He claimed that his former department had done much to “soften” the WCA for people with mental health conditions and to take more account of the fluctuating nature of their impairments.
When he was told that people were still dying because of the failure to address the further medical evidence problem, he said: “The whole idea was to make the changes we made a lot of changes early on and we have a white paper set in to reform the whole of the sickness benefit, which doesn’t work properly.”
He also appeared to try to shift blame onto Grayling, saying: “Back in 2010-11, Chris Grayling was in charge of it, he changed the nature of what we looked at.
“What we inherited from Labour at the time was quite a harsh system and we had, if you remember, about four or five reviews and each one of them recommended changes to soften it.”
As Duncan Smith tried to end the interview – after becoming increasingly irritated with the questions – I asked him what he thought of Police Scotland considering whether it would launch a criminal investigation into his WCA failings.
But he said he was “not going to get involved in the detailed questioning from you”, before turning his back on me.
The independent review cover-up
In the last few months, it has appeared as if the net could finally be tightening on those responsible for the deaths of Ms DE, Michael O’Sullivan, David Barr, Paul Donnachie, Mark Wood, and many others.
In April 2018, DNS began to ask questions of DWP about the fourth and fifth independent reviews of the WCA. These were carried out in 2013 and 2014, by Dr Paul Litchfield, BT’s chief medical officer.
But just as with Professor Harrington’s reports, there were no mentions of peer reviews or coroners’ letters in either of Litchfield’s reports.
Why was that, when information linking the WCA to the suicides of claimants would surely be crucial information in evaluating how it was operating?
The existence of the documents was only revealed publicly by DNS after Litchfield’s final report was published, in November 2014.
Although Litchfield’s first report was published before Michael O’Sullivan’s inquest, the many peer reviews that were linked to failures in the WCA and the coroner’s letter from the Stephen Carré inquest were all in DWP’s files and should surely have been passed to him automatically.
The call for evidence for Litchfield’s second review was issued on 10 June 2014, five months after coroner Mary Hassell had written to DWP following the inquest into the death of Michael O’Sullivan. That letter and further peer reviews from the last year should, again, have been made available to Litchfield’s team.
But DWP appeared reluctant to offer clear and detailed answers about the evidence it shared with Litchfield’s team. In April 2018, it said that it had provided information to his review “on request” and that “any evidence used was referenced in the review”.
Litchfield, too, declined to tell DNS whether he had been shown these documents. Just weeks later, now retired as BT’s chief medical officer, he was awarded a CBE in the birthday honours, for “services to wellbeing in the workplace”.
Labour, the Liberal Democrats, the SNP and the Greens – who had been vocal about the links between DWP and the deaths of claimants, through co-leader Jonathan Bartley – all began to ask questions.
Marsha de Cordova, Labour’s shadow minister for disabled people, and Stephen Lloyd, the Liberal Democrat shadow work and pensions spokesperson, both wrote to ministers demanding answers, Lloyd writing to work and pensions secretary Esther McVey and de Cordova to minister for disabled people Sarah Newton.
Bartley called for an independent investigation into what had “all the hallmarks of a deliberate cover-up”.
Four months later, when McVey quit her post, she had still not answered the questions put to her by Stephen Lloyd.
Her spokesperson would later claim that although Lloyd’s letter had been addressed to her, the ministerial correspondence team would have forwarded it to the correct person to respond, and she added: “In this case, it would not have been the secretary of state.”
But Newton did answer her letter, telling de Cordova last December: “Due to the length of time since the reviews were carried out, factors such as document retention policies, organisational changes and staff turnover mean that information that might help to answer those queries is no longer available.”
That was not true, although it is possible that Newton was not aware of that at the time she answered the letter.
In May of this year, five months later, new information suggested why McVey had not responded to the letter from Stephen Lloyd.
In response to a freedom of information request from DNS, DWP had refused to state definitively whether it passed the documents to Litchfield’s team of civil servants. This led to a complaint to the Information Commissioner’s Office, which pressed the department for answers.
DWP eventually admitted that neither the peer reviews nor the coroners’ letters were sent to Litchfield.
A senior ICO case officer said DWP had contacted those members of Litchfield’s team who were still working for the department and asked them to conduct searches of electronic and paper records.
The ICO case officer said: “Consultation with the ex-review team elicited statements that no such information was received from DWP nor were any physical files sent to stores.”
Lloyd called for an inquiry and suggested there was also a need for a criminal investigation.
DWP’s press office eventually responded, claiming that the department “co-operated fully with the Litchfield reviews, and shared all relevant information which was requested by Dr Litchfield and his team”.
She said: “DWP was not asked by Dr Litchfield or his review for information on the specific cases you refer to. The issues investigated and evidence sought is at the discretion of the independent reviewer, and according to the terms of reference of their review.”
But she was unable to explain how Litchfield’s team could have requested information – the secret peer reviews and coroners’ letters – if they did not know they existed.
That week, Labour’s Debbie Abrahams, a former shadow work and pensions secretary, wrote to the new work and pensions secretary, Amber Rudd, and called for an inquiry into deaths linked to the government’s social security reforms.
She expressed “grave concerns” about the failure to pass the documents to Litchfield’s team.
When questioned in the Commons, the present minister for disabled people, Justin Tomlinson, refused to answer the question.
Abrahams also wrote to the Equality and Human Rights Commission with her concerns, asking the watchdog to carry out its own investigation into why ministers appeared to have hidden the documents from Litchfield, and into links between the department’s benefit assessment processes and the deaths of claimants.
Tomlinson’s involvement in the cover-up deepened, when he wrote to Abrahams about the cover-up, telling her that, because of the length of time since the last of the reviews was published, “factors such as document retention policies, organisational changes and staff turnover, means that information that might help answer these queries is no longer available”.
That statement, of course, was not true, as the department knew very well from its response to the ICO.
A further development came in October this year, when Frank Field, chair of the work and pensions committee, secured a promise from the National Audit Office to look into links between DWP policies and the suicides of claimants, following a death within his own constituency.
It now appears that the EHRC could be set to act on Abrahams’ call for an investigation.
In a brief statement issued to DNS, following a meeting between Abrahams and the watchdog, an EHRC spokesperson said: “We are currently reviewing what potential work we might undertake to tackle discriminatory decision-making in the social security system. We will respond to Debbie Abrahams in due course.”
10 years on, evidence continues to mount
Meanwhile, the evidence of DWP complicity continues to mount, as DWP continues to be confronted with further deaths linked to the WCA and its own failure to improve the safety of its fitness for work assessment process.
In March, the organisation representing NHS service-providers called on the government to act on the links between mental distress and cuts to benefits, after producing evidence showing that social security reform had increased demand for mental health services.
NHS Providers spoke out after publishing research showing that more than nine out of ten (92 per cent) mental health trusts that took part in a survey said changes to benefits were increasing demand for mental health services.
And more than six in 10 (63 per cent) said this impact was high, making it the most significant economic and social factor in increasing demand for mental health services.
In May, new research showed that DWP and its private sector contractors had been failing for years to alert local authorities to concerns about benefit claimants whose safety was at risk.
The freedom of information responses showed that only 25 of 80 council social services departments across England, Scotland and Wales said they had received a single safeguarding alert from DWP over the previous three years.
The record of Maximus was even worse, with the company failing to make a single safeguarding referral to any of the 80 social services departments about an ESA claimant going through the WCA process.
Maximus refused to say why it had made so few safeguarding referrals to local authorities, and whether the figures suggested the company was failing to ensure the safety of the disabled people it assessed, but it insisted that it had “always trained our staff to identify safeguarding issues, and all concerns are referred to the customer’s GP or the appropriate authorities”.
The freedom of information requests were submitted by campaigner and former safeguarding expert Mike Owen, who had become increasingly concerned about the failure of staff working for DWP and its contractors to alert local social services departments when a benefit claimant’s safety was at risk.
He said he was “deeply shocked” by the figures, which showed “a massive failure” by DWP to support people in vulnerable situations.
The following month, DNS reported how DWP had acted unlawfully by destroying a damaging internal report about its failure to ensure the safety of benefit claimants in jobcentres.
The report into safeguarding failures in south London jobcentres was written by disabled people recruited under its Community Partners initiative, which was set up to build bridges between jobcentres and the local community.
They had written the document soon after taking up their posts, after becoming increasingly alarmed by the failure of the 18 jobcentres they were working with to take basic actions to protect people claiming benefits such as universal credit, ESA and jobseeker’s allowance.
They recommended that urgent steps should be taken to ensure jobcentre staff were properly trained in safeguarding.
After DNS attempted to secure a copy of the report through a freedom of information request, DWP eventually admitted – after another intervention by the information commissioner – that the report was destroyed 12 months after it was written because the department’s “Information Management policy only requires us to keep a corporate document of an internal briefing for a period of 12 months”.
But that 12 months period ended at least four months after DNS first asked for this and other Community Partner reports to be released, suggesting that DWP could have destroyed the safeguarding report to prevent it being released to DNS.
In June this year, the Liverpool Echo reported that Amber Rudd had admitted that an internal review into the death of Stephen Smith, from Liverpool, had found that DWP missed “crucial safeguarding opportunities” and had “identified areas where we need to change our policy” to protect claimants in vulnerable situations.
He died in April, months after he was found fit for work by DWP despite being in hospital with such severe health problems that his weight had fallen to six stone.
Despite the improvements that DWP insists it has made to the work capability assessment process, further distressing cases continue to emerge.
In February, a report into the death of Jodey Whiting concluded that DWP failed five times to follow its own safeguarding rules in the weeks leading up to her suicide in February 2017.
The Independent Case Examiner (ICE) concluded that DWP was guilty of “multiple” and “significant” failings in handling her case. She had had her benefits stopped for missing a WCA, and she took her own life just 15 days later.
Jodey (pictured) had been a long-time claimant of incapacity benefit, and then ESA, and DWP and its assessors had previously noted the severity of her mental health condition, and the risk that would be posed if she was found fit for work.
When she was approached again for another assessment in the autumn of 2016, she told DWP about her suicidal thoughts and requested a home assessment as she said she rarely left the house. But even though a “flag” was placed on DWP’s ESA system to alert staff that she was a “vulnerable” claimant because of her mental health condition, DWP failed to refer her request for a home visit to Maximus.
Maximus also failed to act on her request, even though it had been included in the ESA50 form she had filled out.
But this was just one of five serious failings by DWP in the weeks leading up to her death, the ICE report concluded.
DWP refused to say after its publication if the department accepted that its own safeguarding failings had helped cause Jodey Whiting’s death, although it accepted the report’s findings and said it was reviewing its procedures “to ensure this doesn’t happen again”.
Maximus said it would “examine the ICE report in detail to understand what lessons can be learnt”.
The publication of the ICE report led to the launch of the Justice for Jodey Whiting parliamentary petition, which DNS helped to set up to press for an independent inquiry into deaths linked to DWP’s actions, and for evidence of misconduct by ministers and civil servants to be passed to the police for a possible criminal investigation.
It secured nearly 55,000 signatures, but not enough to secure a parliamentary debate.
Jodey’s mother, Joy Dove, has campaigned unceasingly for justice for her daughter, working with DNS to promote the petition, and calling for systemic change to the system, and receiving a standing ovation at the Daily Mirror’s Real Britain fringe event at Labour’s annual conference in September.
In July, Joy (pictured, below, second from left) had stood outside DWP’s Westminster headquarters to remind civil servants and ministers how their actions had caused her daughter’s death.
She had been taking part in an action staged by disabled artist-activist Dolly Sen. She and others held up heart-shaped boards, on which Sen had written the names of disabled men and women who had lost their lives because of DWP’s benefit assessment regime, including Stephen Carré and Mark Wood.
The action aimed to highlight how DWP policies had caused thousands of “broken hearts”.
Sen (pictured, far left) said: “We want these hearts to be still beating. The more hearts that are stopped by the building behind us, the stronger our hearts will get. We will fight for every person who is let down by the building behind us.”
As DWP staff entered and left the building, Sen asked each of them if they would personally sign off the next death to be caused by DWP. Every DWP civil servant she asked ignored her question.
Sen said: “The workers who are going in and out may not have physically killed somebody, but they are the cogs in a system that is churning out coffin after coffin after coffin.”
She said later: “It was a symbolic protest: a heart that goes de-dum, de-dum, de-dum, and it just stops because of this building. To me it is just a horrific and really painful thought. If you took this building out of the chain of decisions, people would still be alive.”
She said she had not expected DWP staff to engage with the protest. “How could they really justify what they are doing? The machine can’t work without the cogs and these people are the cogs.”
Dove had travelled from her home in the north-east to take part in the action, and she said afterwards that she had wanted DWP to know that she was there.
She told me: “When I saw the heart I wanted to cry, but I had to be strong for Jodey.”
She said it had been her first visit to London since 1983. “It was a big step but I’m glad I have done it. I will carry on as long as I can. I knew from the start that what they did to Jodey was wrong. The day they said she was fit for work I knew it wasn’t right.”
DWP: the response
DWP was asked early last month to respond to this article and correct anything that the department felt was incorrect or unfair. The department responded on Friday (29 November). It pointed to just four minor points made in the article that required correction or clarification. DNS has made all four changes.
The department also pointed out that all its WCA assessors are qualified healthcare professionals.
DWP has previously argued (including in 2015) that claimants are “encouraged to provide all evidence that will be relevant to their case at the outset of the claim, including medical evidence supplied by their GP or other medical professionals”, while WCA assessors are “expected to seek further evidence in situations where it would help them to place someone in the support group [finding them not fit for work] without calling a claimant in for a face-to-face assessment”.
In a statement last week, a DWP spokesperson said: “Suicide is a tragic, complex issue and we take the death of any claimant very seriously.
“That’s why we work with and listen to families and a wide range of experts, including charities and coroners, so lessons are learnt when needed.
“We commissioned five independent reviews of the work capability assessment, and implemented the vast majority of recommendations.
“Improvements include introducing mental health training for all staff dealing directly with claimants, appointing mental health champions to advise assessors, and allowing for further evidence to be requested when considering mandatory reconsiderations.”
The Conservative party, Iain Duncan Smith and Chris Grayling were all sent draft versions of this article early last month. None of them had commented by midnight last night (1 December).
Peter Carré believes that nothing has changed in more than nine years since his son died. He says the failure to take note of and act on the coroner’s recommendations after his son’s inquest “has undoubtedly resulted in many deaths since that time”.
“They don’t seem to take care of what they are doing,” he says. “If you’re investigating something, you investigate it. You go to the experts, and they didn’t, in any of the cases I have read.”
David Barr says he would love Iain Duncan Smith and Chris Grayling to be held accountable for their crimes. Their track record is “horrendous”, he says. “My ex-army friends, I can see a lot of them thinking, you know, ‘What’s he doing, stirring up all of this, let his son die in peace.’” But he says he can’t do that. “It’s got to come to an end. They have got to start looking after people. They are getting away with it just because they are government ministers.
“If they ever came up here as a government minister, I would throw an egg at them. That’s all I can do.”
Eleanor Donnachie says she hates the DWP, and blames the department for her brother’s death. “They are driving people to suicide. Definitely. I wrote a letter and told them I held them totally responsible for my brother’s death.” But she has her own health conditions and has had years of anxiety caused by the challenge of trying to secure the benefits she is entitled to.
“I can deal with what’s wrong with me as long as they leave me alone. But then you start worrying and you can’t sleep. Here we go again after two years. It’s terrible, it’s like they just don’t care, they don’t care at all. I’m not going to get any better but I’m still getting sent for medicals.”
What is hardest, she says, is knowing what ministers have done “and then you see them on the telly and their life is perfect. It’s as if they can do what they like and nothing applies to them.
“If I go anywhere to do with DWP that brings it all back and I can feel myself getting angry, really angry, and I want to shout at them, ‘look, you have killed my brother and now you’re trying to kill me.’”
Jill Gant believes that ministers and civil servants weighed up the pros and cons of making the WCA system safer and decided not to do so, as a kind of cost benefit analysis.
“How can they do that?” she says. “Each of these stories is a massive tragedy. They must have no conscience at all.”
Misconduct in public office
The Crown Prosecution Service defines the common law offence of misconduct in public office – which has a maximum sentence of life imprisonment – in a legal guidance note on its website.
The note describes four basic requirements that need to be met for an act to be considered misconduct in public office.
Firstly, the actions must have been carried out by someone acting as a public officer. The courts have previously found mayors, coroners and local councillors all to be public officers, so Duncan Smith and Grayling, as government ministers, clearly meet that requirement, as do senior DWP civil servants.
Secondly, the public officer must have wilfully neglected to perform their duty and/or wilfully misconducted themselves.
There must be, says the CPS, “an element of knowledge or at least recklessness about the way in which the duty is carried out or neglected”. A court has defined “wilful” as “deliberately doing something which is wrong knowing it to be wrong or with reckless indifference as to whether it is wrong or not”.
Again, the actions of Duncan Smith and Grayling and those senior civil servants surely meet this requirement. They were told of the dangers of the WCA by a coroner, but failed to act on that warning, and even hid the letter (and further documents) from the independent experts they had commissioned to examine the safety of the WCA. As a result, many people died who would not otherwise have done so.
Thirdly, says the CPS, the actions of the public officer must amount to an abuse of the public’s trust in them, in this case as government ministers or senior civil servants. Would the public expect a minister, if told of a way to save future lives, to take the necessary steps to do so? Surely, yes. And the same would apply to a senior civil servant.
The likely consequences of any wilful neglect or misconduct are also relevant when deciding whether the conduct falls below the standard expected, says the CPS. “The consequences must be likely ones, as viewed subjectively by the defendant.”
Duncan Smith and Grayling and their civil servants must have known that if they did not fix the serious flaw in the WCA, then other people would die.
And if they did not believe the coroner in 2010, then those civil servants and Duncan Smith (Grayling left his post as employment minister in September 2012) must surely have realised that mistake when they were alerted to the many peer reviews into benefit-related deaths, including one into the death of Michael O’Sullivan, and the report into the death of Ms DE. And yet they still did not act.
It is surely only the fourth requirement where there could be an issue over proving a criminal case.
The actions of the public office holder, says the CPS, must be “without reasonable excuse or justification”.
Iain Duncan Smith and Chris Grayling, and their senior civil servants, did, after all, have a justification for what they did.
They knew that if they did not fix the WCA in the way they were told was essential to save lives in April 2010 then they would be able to save money by forcing many more thousands of people off disability benefits and onto jobseeker’s allowance and, hopefully, the workplace (or, more likely, into the poverty-stricken wasteland that lies between work and benefits, as many of those found ineligible for ESA are unable to work and cannot cope with the strict conditions of the mainstream jobseeker’s allowance, and its replacement, universal credit).
Ministers and senior DWP civil servants appear to have made that calculation: they decided it was worth the sacrifice of some, or even many, of those lives.
Ms DE, Michael O’Sullivan, Paul Donnachie, Mark Wood and David Barr paid for that calculated decision with their lives.
So what would a jury decide? It is time for that question to be answered.