The Times reports today that a Scottish woman was awarded £100,000 by a Scottish court, in a case where she alleged that she had been sexually abused by two men in a hotel.
The BBC also carries a report on the case.
This is described as the first case of its kind in Scotland. Her solicitor was Mr Cameron Fyfe, who is well known in Scotland for championing the rights of victims of sexual and physical abuse. She was also helped by Rape Crisis Scotland.
Civil claims for rape in England and Wales have quite a long history.
In Griffiths v Williams Unreported Court of Appeal 21st November 1995 a 32 year old female Claimant was raped by her landlord followed by harassment. The Court of Appeal confirmed a total award of £50,000 including aggravated damages.
In Lawson v Glaves-Smith  EWHC 2865 (QB) a 34 year old female suffered multiple sexual assaults and false imprisonment at the hands of the deceased. She received £78,500 for general damages, and around a further £140,000 for loss of earnings and a business.
The case of A v Hoare  UKHL 6 then made it a great deal easier for victims of sexual assault to sue their abusers direct, by giving the court the power to waive the limitation period under the Limitation Act 1980. This made possible a whole raft claims made directly against abusers, which would have been impossible beforehand.
Scotland has a different a different limitation Act, namely the Prescription and Limitation (Scotland) Act 1973 as amended by the same Act in 1984. Scottish courts have the power to override limitation, but have proved less willing to do in child abuse cases.
There is now a Limitation (Childhood Abuse)(Scotland) Bill before the Scottish Parliament, which will remove the limitation barrier.
In the case just reported, the judge accepted that the "defendants took advantage of the pursuer when she was vulnerable through an excessive intake of alcohol, and, because her cognitive functioning and decision making processes were so impaired was incapable to giving meaningful consent...."
The pursuer (or Claimant as she would be known in England) also made use of section 14(2) of the Sexual Offences (Scotland) Act 2009. This says that "A person is incapable, while asleep or unconscious, of consenting to any conduct".
England and Wales have their own version of that Act. Section 74 of the Sexual Offences Act 2003 states that a "person consents if he agrees by choice, and has the freedom and capacity to make that choice.".
There are then evidential and conclusive presumptions about consent in Sections 75 and 76. One of the circumstances in which there will be no consent is where "the complainant was asleep or otherwise unconscious at the time of the relevant act."
Consequently, the two sets of laws are very similar.
The case also demonstrates the power of a civil court to give a judgment, even though there has been no criminal prosecution as happened in this case.
The Mirror has reported that allegations of abuse have been made against another person who was involved with Chelsea Football Club. Previously Chelsea was dealing with allegations of abuse made against Eddie Heath, a former chief scout at the club during the 1970's.
The Football Association have now launched an inquiry into child abuse in sport. The terms of reference can be seen at:-
The Football Association are also working with Operation Hydrant, the police investigation into allegations of abuse in football.
The Football Association's guidance "Grassroots Football Safeguarding Children" is accessible on their website together with other policy documents that they publish for affiliated football clubs up and down the country. The "Grassroots" policy document is comprehensive, running into seven sections and with ten appendices. However, as I read through it, it soon becomes clear that the policy is aimed at children and young persons.
There was nothing about dealing with historic abuse allegations from many years back, which are made by adults. That is not to say that the Football Association are not interested in investigating these allegations - quite the reverse as their inquiry's terms of reference makes clear - but their Grassroots guidance is about the protection of children and young persons in the game at present.
Chelsea Football Club also have their own child protection policy "Safeguarding Children Policy & Procedures". Once again this policy is comprehensive, and it deals with issues such as social media, the use of photography and the radicalisation of children. It repeats the mantra "Taking No Action is Not an Option".
However like the Football Association's guidance, Chelsea's guidance is centered around children and young people playing in the game at present. This is no comfort to those former players who allegations go back decades.
The Children's Commissioner, Anne Longfield has warned that children have little idea about the terms and conditions published by social media platforms. In her view, young people were often left to fend for themselves in the digital world.
In November 2016, the Health Secretary, Jeremy Hunt said that he wanted social media platforms to block explicit images from young users automatically, following a request from their parents.
Anne Longfield has now said that schools should teach children "digital citizenship" from the age of four as part of the curriculum, and that children should have a digital ombudsman to help them remove content from social media.
Social media companies like Facebook, Instagram, Snapchat and WhatsApp publish their own terms and conditions.
The issue of protecting children on the internet is a vexed one. I gave a radio interview to Wave FM today on this subject.
The point is child protection. A local authority running a playground, would not normally expect children to read a ten page notice before they climb on the swings.
As the law stands, however, a local authority is expected to take sufficient steps to ensure that those children are safe, for instance ensuring that the swings are not going to fall apart.
The Occupiers Liability Act 1957 imposes a duty on property owners 'to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.'
The Act also says that an occupier must be prepared for children to be less careful than adults.
There are also restrictions on the effectiveness of any terms that the occupiers seeks to impose on visitors to his premises.
What we need is something similar for the internet age.
Media sites such as Facebook and mobile phone companies make huge profits from their traffic. It is time for them to plough some of that money back into keeping children and adults safe.
They should also work with the government to set up comprehensive legislation.
HOW BIG IS THE CHILD ABUSE PROBLEM IN SPORT? SHOULD FOOTBALL CLUBS SET UP A TREATMENT FUND?
The Sunday Times carried a short piece about the English Cricket Board calling in a former police chief to review child protection procedures. Apparently some nine coaches have been "unmasked" as paedophiles. There had been convictions of football coaches prior to the disclosures that broke around a month ago.
The BBC today had a series of stories on the abuse of children in other sports, including karate and tennis.
Should we therefore prepare for a flood of disclosures from other areas of sport?
The answer to this is that football figures very large on the national stage, not only in terms of adult and child players, but also by reason of the huge amount of money that flows in and out of the sport. Other sports have less of a profile, although abuse in any sport is a serious concern. In some way, smaller sports clubs will also be vulnerable where lack of resources can sometimes make it difficult to comply with the law. It is these kinds of small organisation that abusers will target.
In any event, the extent of the problem in football can only become more apparent. There is now a challenge for football clubs to open their doors, and being offering support to those who were abuse whilst under their care. This can be done without the club having to admit liability for what has happened.
I saw that approach adopted many years ago, by the London Borough of Tower Hamlets when they dealt with the group action brought by former residents of St Leonard's Cottage Homes. Survivors were offered therapy at the Tavistock Centre in London, and many took this offer up. I have also seen the Catholic Church adopt the same policy, and it can be very beneficial.
At the same time there must be enough money in football to set up a treatment fund, delivered directly to those who need it, and supervised by qualified therapists. Individual clubs could keep survivors updated with information as to what they are doing in relation to any ongoing police investigation or an internal investigation.
Chelsea put out a comprehensive statement of what they were doing on the 3rd December 2016.
Crewe Alexandra have put out a short statement to the effect that they are launching an internal inquiry into the way that historical abuse allegations have been investigated.
More needs to be done. Clubs need to reach out to survivors. They should never walk alone.
THE MODERN SLAVERY ACT
I was reading a story in the Sunday Times about a man who was enslaved for a period of years and forced to work for nothing. His horrific experiences included being made to fight with other “dossers” the terms used by his slave masters to describe their slavery.
The story put me in mind of the recent Supreme Court decision in the cases of Taiwo v Olaigbe and Onu v Akwiwu  UKSC 31,  1 WLR 2653 where two migrant workers argued that they had been discriminated against on the grounds of their race.
Every year large numbers of adults and children are trafficked into this country and exploited. The decision of the Supreme Court is of interest to abuse compensation lawyers, because of what Baroness Hale had to say about the rights of such people, when they seek redress:-
“The mistreatment of migrant domestic workers by employers who exploit their employees’ vulnerable situation is clearly wrong. The law recognises this in several ways. Depending on the form which the mistreatment takes, it may well amount to a breach of the worker’s contract of employment or other employment rights. It may also amount to a tort. It may even amount to the offence of slavery or servitude or forced or compulsory labour under section 1 of the Modern Slavery Act 2015 or of human trafficking under section 2 of that Act. If a person is convicted of such an offence and a confiscation order made against him, the court may also make a slavery and trafficking reparation order under section 8 of the Act, requiring him to pay compensation to the victim for any harm resulting from the offence. But such orders can only be made after a conviction and confiscation order; and remedies under the law of contract or tort do not provide compensation for the humiliation, fear and severe distress which such mistreatment can cause.”
The Modern Slavery Act 2015 was passed into law in March 2015. It provides for the prosecution and punishment of traffickers and exploiters, as well as reparation orders. However the Act does not provide for any kind of statutory tort. This means that a person subjected to slavery has to use traditional torts such as assault, battery, intimidation and false imprisonment. The case of AT v Dulghieru  EWHC 225 (QB) was a case involving women trafficked into the country and forced to work as prostitutes. They received large awards including aggravated damages.
There is also the option of the Protection from Harassment 1997 and the claim identified in the case of Wilkinson v Downton.
Another problem is that the traffickers may be quite impossible to pursue for any kind of compensation.
There is also the option of making a claim to the CICA, but very often victims find themselves caught by the CICA’s draconian provisions which prevent claims being brought out of time.