Tuesday, 16 September 2014

More help for the Victims of Abuse when going to Court says the Department of Justice

Justice Secretary Chris Grayling
Justice Secretary Chris Grayling has announced government plans to introduce new laws aimed to protect the rights of victims in England and Wales.

With the right of victims of crime to directly confront their offenders in court to be enshrined in law, the Government’s commitment to victims will also include:

  1. Establishing a new nationwide Victims’ Information Service by March 2015, and developing this into a comprehensive service that allows victims to access the information and support they need.
  2. Strengthening the protection for vulnerable victims by making the experience of going to court a better one.
  3. Increasing transparency and accountability, to ensure criminal justice agencies are held to account for the services they provide to victims.
  4. Introducing a Victims’ Law to guarantee key entitlements for victims.
  5. Lawyers involved in any sexual offence case will have to undergo specialist training, especially if the trial involves the cross-examination of a child.
  6. Developing plans for paying compensation to victims up front.

On announcement of the new plans, Justice Secretary Chris Grayling said:

“This Government has already significantly improved services and support for victims, investing more than ever in the help they are offered, but we are also the first to acknowledge that more can, and should, be done. Our criminal justice system can be daunting, and victims, especially the most vulnerable, can find it traumatic and difficult to know where to turn to for advice and support. For the first time we will create a system that puts the highest emphasis on victims’ needs and sets out their rights clearly in legislation.”

Shadow justice secretary Sadiq Khan MP said: “This announcement looks like it’s been cobbled together on the back of an envelope, in the dying months of government.”

Mark Castle, chief executive of Victim Support, has welcomed the suggestion that more effort would be made to help vulnerable witnesses give evidence without having to be in the courtroom. He said “Children and other vulnerable victims and witnesses should not have to face the trauma of giving evidence in a court building unless they choose to. Our witness service teams, who work behind the scenes in court, see every day just how distressing it can be for them, especially if they are the victim of a violent or sexual crime.”

Victims’ Commissioner Baroness Newlove has welcomed the plans but has questioned how they would differ in practice from the existing victim’s code. “A new law cannot be used as a quick fix,” she said. “Recently, we’ve seen how the abuse of victims in Rotherham was covered up, I’d like to know how a victims’ law would put a stop to this dismissive, ignorant and collusive behaviour.” She went on to say that she would like to see the government going further by introducing a victim care manager, to avoid victims being pushed from ‘stranger to stranger’ to find out what is happening to them.

What do I think?
  1.  Obviously, anything to help the victims of abuse through the Court Process has to be applauded. There are already schemes in different parts of the country but quality of service tends to vary from area to area.
  2. Many abuse support groups with years of experience already exist throughout the country. They could easily fulfill the need to support victims through a criminal trial. Many of them are much in need of funds.
  3. Why train a whole new army of victim supporters at a large cost when one could engage with existing groups to provide the service with much more experience on how to engage with the victims of abuse.
  4. Will the victims be referred to specialist lawyers? Victims often have the right to make a civil  claim against not only the abuser, but also his/her employers, or those in charge of him/her, or even Local Authorities if they owed the victim a duty of care. There does not seem to be any recognition of such possibilities. Often, the only thought is the perpetrator, who may be without funds, particularly if he/she has had to spend large amounts of money on legal fees.
  5. The CICA (Criminal Injuries Compensation Authority) is positively biased against using lawyers to assist victims and angled towards people dealing with their own cases. The victims of abuse are vulnerable and in need to special help.At one time APIL (Association of Personal Injury Lawyers) tried to engage with them because of the seeming bias. It was suspected that Lawywers were being discouraged because they were responsible for driving up the level of awards. The rule has now changed such that until the CICA will even communicate with lawyers, the victim has to sign a form of authority unlike any other type of claim, where it is accepted that if a lawyer says he is acting for a client further correspondence starts without needing a form of authority.
  6. How will this new scheme affect the CICA system of compensating the victims of crime? Presumably it is an alternative but quicker scheme? Why duplicate? Would it not be better to invest more funds into the CICA which now has a considerable backlog due to austerity cutbacks to staff and administration.
If you have been affected in any way by abuse and you would like legal advice on any aspect, then please get in touch with us at via the Abuselaw Website by following the link.

Thursday, 4 September 2014

Sexual exploitation in Cheshire gets more attention from the police.

Chief Constable of Cheshire, Simon Byrne
I was interviewed on BBC Merseyside this morning about the Cheshire Police announcement of a new initiative to take a more protective and proactive approach to the possibility of sexual exploitation in Cheshire by announcing that each Children's Home will have its own designated officer.

I hasten to add that there is no suggestion in the police press release that exploitation is going on right now. It is more a case of prevention rather than cure, which has to be prudent and insightful bearing in mind what we have heard in Rochdale and Rotherham.

At QualitySolicitors Abney Garsden we have, in the past, dealt with large scale Cheshire Police enquiries into children's homes which are now closed such as Danesford in Congleton, Greystone Heath in Warrington, St. Aidan's in Widnes, St. Joseph's in Nantwich, Newton Hall in Frodsham, and Kilrie in Knutsford. They all involved abuse by care workers many years ago. I think I am right in thinking that most of the homes were closed by the Thatcher government in the 1990's, if not before, for various reasons including cost.

Now we notice that Cheshire Police, after consultation with young people and relevant organisations about what their requirements are have assigned a special officer to each children's home so that young people can talk about anything they want to in safety, which has to be a good thing. It is a shame that the same thing didn't happen many years ago at the homes where abuse took place.

A similar initiative was attempted at Danesford in Congleton many years ago by a child advocacy organisation called NYAS on the Wirral. The idea was that the children should have their own independent voice and means of support outside the home. It was planned that they should have their own telephone number to ring. The move failed, of course, because the care workers within were, at that time, abusing the boys. The last thing they wanted was an outside body coming in to discover what was going on.

If there are any potential sexual exploitation incidents of children being taken out of the homes for sex, then the police force will be able to show that they have done anything they can to prevent issues before they start happening, or take root.

The big difference between sexual exploitation and other crimes, is the difficulty of the police force to bring prosecutions because the victims are:-
  1. Young and vulnerable
  2. Threatened in a most aggressive way by the abusive gangs.
  3. Unwilling to give evidence out of fear and intimidation.
  4. In need of intensive witness protection.
Thus the police have to go out looking for crimes rather than waiting for the victims come forward to them. It is therefore resource intensive and difficult to detect. Most forces are advised to have a specialised unit assigned to this crime. It is against the grain for the police to go out looking for crime. They are taught to believe that they should be reactive to complaints and investigate rather than "trawl".

It is the Jimmy Savile scandal that has brought about a whole new attitude to the investigation of allegations of sexual abuse, and long overdue it has been. Historical abuse has now a higher priority than it used to, and hurray for that.


Thursday, 28 August 2014

Rotherham child abuse scandal - the true horror exposed

Alexis Jay OBE delivering her findings

Following an investigation into child abuse in Rotherham,  Council leader Roger Stone  has announced that he is to step down with immediate effect.  He said: “I think it is only right that I, as leader, take responsibility on behalf of the council for the historic failings that are so clearly described in the report.”
The investigation has found evidence of “appalling” exploitation of at least 1,400 children in Rotherham over a period of 16 years.  A report highlighting the abuse was submitted to the police and the council in 2002, but was “effectively suppressed.”

Independent reviewer Alexis Jay OBE said: It is hard to describe the appalling nature of the abuse that the victims suffered.

“Girls as young as 11 were raped by large numbers of male perpetrators.”

The report highlights a variety of historical and serious child protection failings and concludes the council and other agencies should have done more to protect those at risk.

Rotherham Council chief executive Martin Kimber offered his “sincere apologies” to the victims of child sexual exploitation in the town, branding it a deplorable situation”.  In a news conference he said he wants to “reassure young people that their past experiences will not just shape services in Rotherham, but we will use the independent inquiry report to makes sure that the failings of Rotherham in the past don’t become failings of another town in the future.”

So what are the issues?
  1.  At the moment the former councillor in charge of children's services is being blamed for not resigning when the reports of the abuse were produced on his watch. He is remaining adamantly opposed to moving by claiming that he didn't know of the abuse himself. How long he will last is anybody's guess. The topic of mandatory reporting has been raised on more than one occasion in relation to this.
  2. Mandatory reporting as envisaged would not catch the head of children's services in this context unless the children were actually in care or being cared for in some other way at the time eg in a school. If, however, it could be proved that they knew about abuse and did nothing about it then there would be an argument in favour of a prosecution, should such a law be in force, which it isn't yet in the United Kingdom.
  3. The attitude to prosecution is a familiar story, namely the concentration on the weakness of the complainant as a witness rather than the police undertaking a proactive campaign to search for the perpetrators.
  4. Victims of sexual exploitation are bound to be reticent in giving evidence and a lot of work has to be done by the police to make them safe. The police have to go out looking for such a crime. It seems that their reaction to complaints was to say that it was one person's word against another and that evidence was not strong enough to stand up in Court. What they should have done of course is map intelligence and get a group of complainants together in an orchestrated way.
  5. The CPS attitude to prosecution arises from the disastrous Home Affairs Select Committee Report of 2003 when "trawling" was outlawed by this committee in a somwhat misguided way even though the findings were rejected by the Home Office - I discussed this in an earlier blog here - Trawling rears its ugly head again
  6. The complainants have an interesting compensation case against the Council in negligence in that obvious signs of the abuse were ignored, but are they thus entitled to damages for all the abuse or just that which took place after the report was made. Would the Council have been able to stop the abuse if they had acted. This is certainly true of the police, but what about the Council?
  7. Obviously, should there be a criminal investigation which seems likely the victims can go the Criminal Injuries Compensation Authority as victims of crimes of violence, which includes any type of abuse. There are now, however, quite strict time delay rules applicable.
  8. Could an action be brought against the police? Possibly but there are quite a few difficult cases to overcome such as Hill v Chief Constable for West Yorkshire (1988) HL. Causation again will be an issue.
Rotherham is not the only community to have uncovered such abuse. There have also been arrests or prosection of groups of men in 11 towns and cities, including Oldham, Rochdale and Derby.  An earlier blog I did in May 2012 refers to this.

http://abuselaw.blogspot.co.uk/2012/05/is-abuse-of-girls-only-committed-by.html


Wednesday, 30 July 2014

Jimmy Savile Trust challenges the compensation scheme in the Court of Appeal.

I will be speaking on BBC Radio Leeds drivetime concerning the news that the trustees controlling Jimmy Savile's charitable trust are trying to prevent victims claiming compensation from his estate.


As it stands the victims can't legally claim compensation from the money which the trust controls, but they can claim from Savile's estate. But now, the trustees who control £3.7M, have won the right to challenge any payouts from the Savile estate and plan to take their case to the Court of Appeal later in the year. If the trust's case is found successful, victims may not even be able to claim compensation from the Savile estate

Why now

This has come as a shock to both lawyers representing the victims and the victims themselves, as initially there was no objection from the trust to the compensation scheme when it was being agreed at the High Court, but the trust instead lodged papers afterwards with the Court of Appeal. It has been documented that the named trustees of the charity also appear as beneficiaries in Savile's will.

Impact on victims

Understandably the victims are said to be angry and disappointed. This will mean that the case will drag on even longer than otherwise it would have done, and will be frustrating finalisation of the claims.

The Jimmy Savile Compensation Claims are set up to be shared under a scheme already set up between the estate of Jimmy Savile, the BBC, and the NHS Trust. There has been authorised advertising, and a capped limit of £60,000 per claim.

Tuesday, 15 July 2014

Who's being lined up to replace Butler-Sloss in the abuse inquiry?


Resigned - Lady Butler-Sloss
I have been speaking on BBC Radio Manchester and BBC News 24 about Lady Butler-Sloss’s resignation as appointed Chair of the abuse inquiry panel.  The panel was appointed last week to examine the extent to which public institutions failed to investigate allegations of child abuse.  Her resignation came after she faced tremendous pressure from victims’ groups because of a conflict of interest due to the fact that her brother, the late Sir Michael Havers  was Attorney General during the 1980’s which was the period due to be examined by the panel.

I think:- 
  • The decision to appoint a person to lead the enquiry was too hurried, yet had been proposed for at least 18 months. Not enough research was done by the government.
  • Lady Butler Schloss has much experience of leading enquiries but is now 80 - whilst she has a razor sharp mind this enquiry would have taken several years. Would it be expecting too much of her?
  • She has led the Cleveland enquiry which was somewhat controversial in its outcome. Children who allegedly had been abused were returned to their allegedly abusive parents. The process of evidence collection was found to be flawed and Social Services were heavily criticised. The outcome of the Princess Diana inquest was also controversial. She was criticised for holding an inquest without a jury.
  • Whilst her competence and ability is undoubted, however, the perception of the survivor group is more important than anything.
  • The one thing which survivors of abuse hate is the abuse of power of the state or indeed any public authority. Any suspicion publicly aired makes Lady Butler Schloss's role untenable, sadly, as I am sure she would have done a good job.
  • Victims of abuse have witnessed at a young age the abuse of power of an adult whom they trusted. Thus it becomes a typical feature of their personality that they distrust authority intensely. She are also, usually, over protective of their children, and tend to over risk assess situations.
The former judge issued a statement announcing that she would withdraw from the post.  She said that she had been honoured to be invited to chair the inquiry but commented: "It has become apparent over the last few days, however, that there is a widespread perception, particularly among victim and survivor groups, that I am not the right person to chair the inquiry. It has also become clear to me that I did not sufficiently consider whether my background and the fact my brother had been attorney general would cause difficulties."

Theresa May, who had appointed Butler-Sloss last week has strongly defended her against criticism, she said: "I am deeply saddened by Baroness Butler-Sloss's decision to withdraw but understand and respect her reasons. Baroness Butler-Sloss is a woman of the highest integrity and compassion and continues to have an enormous contribution to make to public life.

"As she has said herself, the work of this inquiry is more important than any individual and an announcement will be made on who will take over the chairmanship and membership of the panel as soon as possible so this important work can move forward."

Asked about her successor, Mrs May said she still favoured appointing a single individual to head the over-arching inquiry rather than a panel of experts urged by Labour and some abuse victims.

She said she hoped to name a new candidate "within a reasonable amount of time" but said whoever was approached would need to "think carefully" about the nature of the role.

My choice would be Keir Starmer - why:-
  • He has led a drive to change the way the Crown Prosecution Service investigate historical abuse.
  • He is in favour of Mandatory Reporting (a change in the law to make it illegal to ignore and not report signs of abuse)
  • He is an eminent lawyer and QC.
  • He appears to be well balanced.
  • He is now independent in that he is back to being a practising barrister, having resigned from the CPS.

Wednesday, 9 July 2014

Will victims voices be properly heard in the new child abuse inquiry?

Teresay May's Parliamentary announcement
In the last few days, there has been prolific media coverage regarding child abuse investigations and inquiries into historical abuse allegations in institutions around the UK. 

The home secretary has announced a wide-ranging, Hillsborough-style inquiry into historic child sex abuse claims, “to consider whether public bodies and other non-state institutions have taken seriously their duty of care to protect children”.  Baroness Butler-Sloss was announced on Tuesday as head of this inquiry, the details of which are still being scoped.

It’s thought likely to be a documentary inquiry rather than hearing from actual witnesses. If this is the case then the victims of abuse will not be heard, which in my experience as an abuse lawyer, is exactly what survivors of abuse desire the most, to be listened to.

In my view, in order to arrive at an ideal format for the inquiry, perhaps they should look at the institutional abuse inquiries in Northern and Southern Ireland.  They should select the best parts of each of these, both of which heard from survivors, who after all are at the core of the matter. I have already blogged about this subject here and here

The Home Office review is an investigation into the handling of documents relating to claims of a paedophile ring at Westminster in the 1980s.  Home Secretary Theresa May has appointed the head of the NSPCC, Peter Wanless to lead an investigation, the results of which is expected within 10 weeks.

When this inquiry was announced I was asked by various radio and TV news programmes for my views on it as an abuse lawyer.

Before it was announced that the inquiry would be led by the NSPCC, it was initially said that it would be a lawyer led inquiry.  I wonder whether the charity will have enough powers to carry out all that is required, for example, being able to demand access to documents held by government.  If the inquiry is to be forensic in nature, as I believe it should be, is the CEO of a charity the right person to deal with it?   Wouldn’t it be better led by a judge who is more likely to have a forensic approach to tracing documents and what has become of them?

Teresa May said she could turn it into a public enquiry if Peter Wanless thought it appropriate. Why not announce a public enquiry straight away? At least then everything would be out in the open, and much needed transparency achieved.

If the enquiry is not public then the chances of a further cover up being suspected are that much more likely.

Sunday, 6 July 2014

Why was the sentence of Rolf Harris and Stuart Hall too lenient?

The law relating to sexual offences is anachronism, in that if a paedophile is charged today with an offence committed many years ago as is the case with Rolf Harris, Stuart Hall, Max Clifford etc. the law says that they have to be charged with the offence which was the law at the time, and if convicted they must be sentenced in accordance with the guidelines which applied at the time.

Because the view of society and the judiciary towards offences of a sexual nature even towards children was much more lenient in the 1970's, then the resuiltng sentence in 2014 will be too lenient.

At one time there would have been nothing that could have been done to correct it, whereas now a reference can be made to the Attorney General, who has 28 days to decide whether or not the sentence was too lenient and should be referred to the Court of Appeal.

In the Stuart Hall case the reference was made because the judge only gave him 2 years. The Court of Appeal increased the sentence to 30 months. The CPS, as if to compensate for the length of sentence even on appeal, then proffered additional charges.

Hall went to Court and was charged under old laws of indecency. Prosecution Counsel addressed the jury incredulously because, under this old law (the offences having taken place in the 1960's & 1970's) Hall was entitled to defend on the basis that the young adolescent girls had consented to the offences. He was acquitted on most of the charges on this basis even though the girls were all under age.

If Hall had been charged under modern day sexual offence legislation, he would not have been able to run this defence. The law on consent has changed diametrically. Now there is a presumption that vulnerable adults have not consented, thus putting the burden of proof on the accused to show that the victim has consented.

The consent defence is, however, only available for serious offences such as rape.

When sentenced, the judge in the Harris case had to consider what the sentencing guidelines would have been when the offence was committed. The maximum sentence for some of the offences of indecent assault under the Sexual Offences Act 1956 is 2 years. If Harris had been charged under the present day version of the Sexual Offences Act 2003 then the maximum sentence for some of the charges would have been life.

The Sentencing Council has only just published new guidelines relating to 54 Sexual Offences which came out in April 2014. Following the link to read them for yourself in more detail - http://
sentencingcouncil.judiciary.gov.uk/about/sexual-offences.htm


So what is the rationale?
  1. It makes no sense to use out of date criminal offences which are out of step with modern law to prosecute sex offenders. We are not taking them to Court in the 1970's
  2. The guidelines seem to follow dyed in the wool criminal law principles without thinking of the consequences.
  3. The recent spate of historical abuse allegations seem at odds with the principles
  4. There are arguments and some sense in thinking of a change in the law. particularly if the effect of the guidelines is the referral of two recent cases to the Court of Appeal because sentences in accordance with the guidelines are deemed to be too lenient.
  5. The cost of appeals to the Court of Appeal must be born in mind
  6. The analogy of the logic would be that if someone was prosecuted for murder committed in 1962 before the abolition of the death penalty for murder, then one should use the sentencing guidelines for 1962 which was hanging? So hang the accused?

I was honoured to have debated the above point with Vera Baird on the Today programme yesterday morning on Radio 4. Vera justified the principle of sentencing by circumstances at the time of the offence, on the basis that the accused is influenced as to the consequences of committing a crime at the time of the offence, namely in the recent cases, decades ago. It seems to me to be a weak argument when faced with the drama of celebrity sex offenders getting too lenient a sentence.

We will see whether there is an appetite for a change in the law.