News this week that the structure of the Child Sexual Abuse inquiry is in question once again as victims groups express concern in relation to appointed panellists. Reports in The Independent here and in The Guardian UK here came as two of our co-authors wrote on these issues for Huffington Post and the Solicitors Journal. To read Felicity Gerry QC on The Child Sexual Abuse Inquiry – Whatever Next? click here. The article drew a response in relation to the Vatican from Gerald Slevin whose views are here. To read Catarina Sjölin on The Inquiry No-one Wants to Chair click here. Meanwhile, the Royal Commission into Institutional Responses to Child Sexual Abuse in Australia continues with its work. The latest from them is a public hearing in Sydney which can be viewed online here.
Our book of course deals with the law, practice and procedure in England and Wales from 1957 to date. It is one of the most complex as well as one of the most emotive areas of law. Our book reveals the legislative changes that have taken place over the passing of the last 60 years. The changes demonstrate the lack of protection there was for victims in the past and the demonstrable failures of Governments to deal with the issues. Thankfully the world has progressed from the old fashioned “Children should be seen and not heard”. According to Phrases.org…..
“In the original form of this proverb it was specifically young women who were expected to keep quiet. This opinion is recorded in the 15th century collections of homilies written by an Augustinian clergyma called [John] Mirk’s Festial, circa 1450:
Hyt ys old Englysch sawe: A mayde schuld be seen, but not herd.
A ‘sawe’, or ‘saw’ as we would spell it now, was a mediaeval term for saying or proverb. It has the same root as the words ‘say’ and ‘saga’.
While the expression was aimed at women, the Old English names denoting gender are now somewhat altered. A ‘mayde’ was normally a young female, usually unmarried, although it was also used to denote celibate men. Girls however, could be of either sex, the term simply meaning young child.
Whatever the eventual structure of the UK Child Sexual Abuse Inquiry, progress now means that people who were the victims of abuse are now being heard. Clearly the role and terms of any inquiry will have to be determined in such a way that there can be confidence in any final outcome. It will be an expensive and painful journey as Australia is learning but it will have its roots in human rights and open justice.
On the topic of open justice, questions are already being asked about whether there will be further criminal prosecutions (for which there is no limitation period) and whether there will be civil litigation. In criminal cases, it is worth considering not just what law applied at the time but also how indictments might be stayed as an abuse of process, as set out in our book. In civil cases bringing a civil action out of time, the main difficulty is limitation. Put simply, reasons for delayed complaints depend on the evidence and the consequence is that it becomes harder to predict outcomes. We summarise the law on limitation as follows:
- In A v Iorworth Hoare; C v Middlesbrough Council; X & Anor v Wandsworth LBC; H v Suffolk County Council; Young v Catholic Care (Diocese of Leeds)  UKHL 6 the House of Lords delivered its ruling on the limitation period for sexual abuse claims in five appeal cases. In each case, earlier hearings before lower courts had held that, in accordance with Stubbings v Webb, the claim failed because it had been brought out of time. However, the House of Lords held that the previous case (Stubbings v Webb) had been wrongly decided, that actions for personal injury deriving from intentional trespass to the person fell within section 11 of the 1980 Act (with an extendable three year limit) and that therefore courts had discretion under S.33 of the Act to extend the time limit in the claimants’ favour.
- This means that, depending on the circumstances, a claim for damages for personal injury caused by a sexual assault now generally has a limitation period of three years from the date when the victim first considers the injury sufficiently serious to justify proceedings, but judges have discretion to extend that period if thought equitable. The House of Lords also considered the “date of knowledge” provision in section 14 and held that the test was whether a reasonable person with the claimant’s knowledge would have considered the injury sufficiently serious to start legal proceedings. If the claimant had any personal characteristics which might prevent him from acting as a reasonable person would, these could be taken into account by the judge when deciding whether to exercise discretion to extend the limitation period. Lord Brown of Eaton-under-Heywood acknowledged that the effect of the decision might be to encourage more claims many years after the alleged incident had taken place but he said that not all of these would be allowed to proceed. It was recognised by the Law Lords that more claims would be made as a result of this decision but left it to the discretion of the judges to decide in individual cases whether or not it will be possible for defendants to investigate these sufficiently for there to be a reasonable prospect of a fair trial.
- Extending the limitation period beyond 3 years depends on a number of factors, including when the complaint was first made and with what effect. If, however, a complaint comes out of the blue with no apparent support for it and after a long delay then the Lords said “by no means everyone who brings a late claim for damages for sexual abuse, however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour. On the contrary, a fair trial (which must surely include a fair opportunity for the defendant to investigate the allegations – see section 33(3)(b)) is in many cases likely to be found quite simply impossible after a long delay”. Baroness Hale of Richmond considered that a fair trial could be possible long after the event “and sometimes the law has no choice. It is even possible to have a fair trial of criminal charges of historic sex abuse. Much will depend upon the circumstances of the particular case.” Subsequent cases have demonstrated that courts will exercise the discretion in favour of the claimant where there is evidence of PTSD or other trauma to justify delay to the point that many take the view that it is now “normal” in a case involving the conviction of an abuser for the court to exercise its discretion under section 33 of the Limitation Act 1980 to disapply limitation. However, where the claim is not against the abuser but against for example a children’s home or a local authority an important consideration is likely to be whether after a long passage of time it is still possible to have a fair trial. That in turn may depend on what records are still held and whether the relevant witnesses are still alive and can be traced. See e.g. Albinetti v Wirral MB  EWHC 833 QB 40 year delay, fair trial not possible.
As can be seen, limitation in civil proceedings depends very much on the alleged facts and the reasons for the delayed complaint so as much information as possible needs to be gathered. Ironically, if records are missing then the defendant will have an argument that a fair trial is not possible. It follows that the importance of the UK Child Sexual Abuse Inquiry is not just as the public face of scrutiny or an exercise in learning lessons for the future. It has the potential to be a vital evidence-gathering exercise for both civil actions and criminal prosecutions. To read Felicity’s article on the treatment of vulnerable witnesses in civil proceedings click here. It’s a lot to think about and the sooner the #CSAInquiry gets going the better.