The Times reports today that ministers are to summon Facebook, Twitter, Apple and others to Whitehall, to demand that they develop new technological solutions similar to those used to thwart paedophiles and terrorists.

The call will be backed by the threat of legislation, with a green paper promised in the summer. Theresa May will commit today to making Britain the safest place in the world for children to be online.

http://www.thetimes.co.uk/edition/news/tech-giants-must-tackle-cyberbullies-or-face-curbs-p5vzbj3p3

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.

In January of this year, I called for an "Occupier's Liability Act" for media sites. This was following warning from Children's Commissioner, Anne Longfield  "incomprehensible" terms and conditions of social networks mean children have little idea what they are signing up to".  Young people were left to fend for themselves in the digital world.

I also gave an interview to Wave FM about the subject.

Anne Longfield has also 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 companies.

Social media companies like Facebook, Instagram, Snapchat and WhatsApp publish their own terms and conditions.

At the end of the day, this is about child protection. You don't run a playground and expect children to read a ten page notice about the terms and conditions before they climb on the swings. 

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.

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.

The Times reports http://www.thetimes.co.uk/article/rape-victims-sex-lives-may-be-off-limits-q5lbcqxjs that the Justice Secretary, Liz Truss has asked for a review into the impact on rape victims of the existing law, which allows their sexual history to be revealed in court.

This is a welcome development. The ability of a court to allow such evidence in, means according to women's rights groups that the rape victim is effectively put on trial.

It has always struck me as a peculiar, that a woman's sexual history should be treated almost as if it was some kind of criminal record, or that a history of sexual encounter in the past in some way, affects that woman's credibility when she claims that she never consented. What about the man's sexual history, or his own criminal convictions?

Quite apart from anything else, anyone who has gone through the criminal court system as a rape victim will tell you about the sheer horror of the whole process.

I came across another development the other day, which may be a concern to victims of abuse. A very informative article written by Zubair Ahmad, barrister of 2 Hare Court describes the publication in November 2016 of an Independent Review into the Metropolitan Police Service's (MPS) handling of cases of historic sexual abuse.

http://www.2harecourt.com/training-and-knowledge/independent-review-metropolitan-police-services-handling-non-recent-sexual-offence-investigations-alleged-persons-public-prominence/ 
 
The Review was set up after allegations made by a person known as ‘Nick’, who accused high profile individuals of abuse. Whilst the Review was written by a highly respected judge, and whilst some of its recommendations are perfectly reasonable, others may be a concern to victims of abuse. Here are some of the recommendations.

1. The word ‘victim’ should be removed from the investigation process and those who make a complaint be referred to as ‘complainants’ up to the moment of conviction
2. The College of Policing’s guidance that officers should believe a complainant’s account should be changed. Facts should be investigated objectively.
   
3. False allegations should not be treated as a remote possibility.
4. The MPS should avoid pro-actively sharing information about a suspect's age and location. 
5. There should be pre-charge anonymity for suspects enforced by statute and a clear definition of the exceptional circumstances in which the MPS would identify a suspect.
   
6. The explanation: “the case failed to meet the evidential test” should be adopted when no further action is to be taken.
   
7. In exceptional cases, the MPS should consider issuing a statement explaining why no further action has been taken.

The term "victim" is certainly one that indicates that a person has suffered abuse, although the law is quite clear that a person remains innocent until proven guilty. The term is used in the Criminal Injuries Compensation Scheme, but does not means that a "victim" will be compensated.

The recommendation that might cause most concern is the pre charge anonymity for suspects. In many historic child abuse cases, it is the announcement of the arrests of a suspect that has encouraged victims to come forward, with  credible claims of abuse by that suspect. 

However this recommendation does not appear to exclude any reporting of a suspect's identity, only that it might be much more difficult in the future for the police to take that step. 

​Y v First-tier Tribunal and (2) Criminal Injuries Compensation Authority (CIC) (Criminal Injuries Compensation: claims) [2016] UKUT 202 (AAC) (25 April 2016) was a case originally heard by the Upper Tier Tribunal in 2016. 

BL Claims represents Y. 

The Applicant was a man in his late twenties. His mother had been abused by her father and in about 1991 he pleaded guilty to 4 counts of incest. DNA tests showed that Y’s grandfather was in fact also his father, and that he was also the father of Y’s sibling born in 1990. Y’s mother had been awarded compensation in her own right in respect of the assaults on her by her own father. Y was born with a genetic disorder or disorders described as “a recessive syndrome with learning and joint problems”. Medical evidence showed that there was a 50% chance of such problems appearing in those who were born of an incestuous relationship, compared with a 2% or 3% chance in the general population.

In 2012 a claim was made for compensation for Y to the Authority under the 2008 Scheme, which refused to make an award on the basis that Y had not been injured in a crime of violence and that his congenital condition was a result of the relationship between his parents and not of the assault itself. This decision was maintained on review and so in 2013 the Applicant appealed to the First-tier Tribunal, which confirmed the decision of the Authority in 2014. The Tribunal drew on a decision of Lord Osborne in the Scottish Outer House in Session - Millar (Curator Bonis to AP) v CICB 197 SLT 1180 dated 13th November 1996). That case decided that a genetic disorder arising as a result of the consanguinity of the parents could not be a personal injury within the then 1969 CICA Scheme. Consequently, there was no uninjured state in which Y could exist without the genetic disorder from which he suffered. Lord Osborne himself had drawn on the reasoning in the case of McKay v Essex Area Health Authority [1982] 1QB 1166.

The Applicant applied to the Upper Tribunal for judicial review. However, proceedings were stayed pending the decision of the Court of Appeal in CP v First-tier Tribunal and Criminal Injuries Compensation Authority [2014] EWCA Civ 1554. This was another CICA application where the Applicant’s mother consumed grossly excessive quantities of alcohol during her pregnancy as a direct result of which CP was born with foetal alcohol spectrum disorder. The First-tier Tribunal decided that CP was entitled to a criminal injuries compensation award on the basis that the mother had committed an offence contrary to section 23 of the Offences Against the Person Act 1861, which required administration of a destructive etc. thing “to another person”. On judicial review of that decision in the Upper Tribunal [2013] UKUT 638 (AAC), Judge Levenson decided that the foetus could not be “another person” before birth and that the section 23 offence could not have been committed. There was no “crime of violence” under the terms of the CICA Scheme. The Court of Appeal agreed with this analysis and the Supreme Court refused to grant permission to appeal.

The present application for judicial review came before Levenson J in the Upper Tribunal in January 2016. He commented that the decision in Millar came from the Outer House of the Scottish Court of Session, which was not binding on the Upper Tribunal. He also considered the terms of the 2008 Scheme. In the present case, it was not disputed that there had been a crime of violence (which had been the dispute in the foetal alcohol cases). The issue was whether the Applicant had sustained personal injury directly attributable to a crime of violence. On this point, Levenson J said that if Y had been attacked as a very small baby, perhaps with blows to the head, it might well be that such an attack could have caused injuries with similar effects to some of the manifestations of his genetic disorder. Then there would have been no choice but to try to quantify the amount of compensation within the provisions of the Scheme. The First-tier Tribunal had already acknowledged that that the 2008 Scheme was not to be interpreted according to common law principles as it was expressly required that compensation was to be determined in accordance with the Scheme. Consequently, the fact that Y’s claim would not be recognised at common law did not of itself exclude his claim from the terms of the Scheme. On that issue, Levenson J referred to the case of Rust – Andrews v First-tier Tribunal [2011] EWCA Civ 1548.

In relation to the issue of quantification, Levenson J said that under the 2008 Scheme compensation could be paid in accordance with the scheme to a person who has sustained a criminal injury. The question of whether an Applicant had sustained a personal injury was a logically and chronologically prior question and was not to be determined by a premature assessment of whether compensation could be calculated. The Scheme was intended to be a practical self-contained workable pragmatic scheme to compensate victims of crimes of violence. The 2008 Scheme provided that compensation be payable to “an applicant”.

Clearly, at the time of the claim the Applicant was a person. There was no provision in the Scheme that the Applicant must have been “a person” at the time that the crime of violence was committed. Those injuries had been sustained in and were directly attributable to a crime of violence.

Consequently, the application for judicial review would succeed and the matter would be referred to the Authority for further consideration of the claim and on the basis that (as agreed between the parties) Y sustained a criminal injury and was a victim of a crime of violence and that his condition resulted from the incestuous relationship between his mother and her own father.

The CICA appealed this decision, and the case is due to be heard by the Court of Appeal tomorrow. 

Introduction

In December 2016, I wrote an article about the Historic Abuse Litigation Forum. This is an initiative of Master McCloud in the Queen's Bench Division to improve the way in which historic abuse claims are litigated.

The views expressed in this article are entirely my own, and do not represent the views of others in the Forum, whether acting for Claimants of Defendants. A number of very interesting ideas have emerged from the Forum, and this Article is an attempt to set some of those ideas.

One of the key aims of HALF is to produce a "Pre Action Protocol" for these claims, and standard directions to be given out once proceedings are issued. However as we will see, other ideas have come up, which we examine below.

HALF now consists of around 80 members from both the Claimant and the Defendant side of litigation in this area.

The sub groups

There have now been a number of meetings between Claimant and Defendant firms, most of which took place prior to Xmas 2016. Sub groups were set up to consider the following issues:-
GROUP A: ANONYMITY ORDERS
GROUP B: DISCLOSURE
GROUP C: PROTECTIVE ISSUE OF CLAIMS
GROUP D: ADR
GROUP E: REDUCING DELAY
GROUP F: VULNERABLE WITNESSES AND PARTIES
GROUP G: COSTS AND PROPORTIONALITY
GROUP H: EXPERTS AND PROFESSIONAL WITNESSES

A series of notes were prepared from these meetings. They were prepared as a record of the discussion between those present on a without prejudice basis. All attendees spoke openly and contributed fully on the understanding that the matters discussed were not binding on their clients or colleagues.

Very briefly, these are some of the points that have emerged from the meetings:-

• Anonymity is generally something that causes little difficulty in these claims, although there is a standard order from the courts (PF10) which should be used by practitioners. However the Defendants pointed out that sometimes, witnesses (such as social workers) require anonymity as well. 
• Disclosure of records is a particular problem for Defendants, where those records (typically social services records) contain details of people other than the Claimants. What is suggested is a draft undertaking within the protocol, which will limit the types of people who can see these sensitive records. 
• Protective proceedings are sometimes inevitable when limitation is close, but the parties should enter in a limitation moratorium, so as to avoid the expense of issuing proceedings.
• Costs and proportionality have long been a problem in these cases. The Defendants suggested that some cases were capable of settlement without recourse to expert medical evidence or the use of barristers. Claimants disagree.

Within the new protocol, there needs to be a separate procedure for "failure to take into care" claims, and vicarious liability claims.

Also within the protocol, there needs to be an Initial Letter of Notification and a Letter of Claim. The Initial Letter should give the Defendant sufficient information to enable it to begin investigating the claim.

The Master's ideas

At the end of November 2016, Master McCloud produced a document "Historic Abuse Claims: working towards best practice in management and trial." 

The main points in the document are:-

• The Master wanted to draw on the success of the "Asbestos List" in the High Court - that is the system that was devised for the rapid progression of mesothelioma cases. 

• There should be consistency in the applying for and the making of anonymity orders 

• There needed to be a standardised approach towards disclosure, particularly of social services records

• There needed to be co-operation around the issue of protective proceedings.

• Anecdotally many cases are settling for under £100,000 save for fully defended matters. One idea put forward from the Forum was that court directions should timetable some specific space for ADR and/or early offers at the outset of the case, to be expected to take place before social services records or expert reports were obtained, and before a social care report was obtained. There might also be some scope for the RCJ/Master to be actively involved in facilitating ADR in some way. 

• For claimants who are not looking primarily for money, but who want a decision in open court on the evidence as to whether they were or were not abused and by whom, and who want findings of fact, there might be scope for a new expedited procedure (‘Historic Abuse Determination Hearing’) at which the focus is on a reasonably (but not excessively) streamlined court-based fact finding exercise and declaratory judgment if the Claimant succeeded in establishing abuse (or in admitted cases, declaratory findings as to what happened). This could be fitted within an Early Neutral Judicial Evaluation approach. 

• Reducing delay – the Master suggested that an informal letter based process be adopted to expedite straightforward applications. Case management needed to deal with other delays in the process.

• Informal ‘basic understandings’ or working arrangements could be established by agreement with Defendant and Claimant lawyers about how to ensure that vulnerable parties and witnesses (whether Claimant or Defendant) could be supported to give their best evidence in court, with special measures being considered at the case management stages.  

• Evidential difficulties, particularly in relation to social care experts can increase the risk that costs are disproportionate. Improvements could be made both as to procedural matters and costs management to avoid disproportionate costs from the outset. There was also a question as to the reasonable extent of use of counsel in low value abuse claims.

• The Master asked whether there was scope for involving the Royal College of Psychiatrists in the HALF discussions with a view to agreeing a panel of neutral experts willing to work for the Claimant or the Defendant, who could produce the initial expert reports for the parties assessing the claimant, for known costs and on known standard terms as to what the report covered and did not cover and at reduced cost. 

Plainly these are real issues, which the Master has observed from many years of sitting as a judge in the Queen's Bench Division.

The Master also produced another document, the "Historical Abuse Resolution Process" (HARP).

• This procedure would be used when the parties agreement and the protocol has been followed. The Claimant has to have capacity and there must be an admission by the Defendant that the Claimant is a victim of abuse. They may deny liability. 

• The Claimant would not want to make a damages claim for Pain, Suffering and Loss of Amenity and other heads of damage OTHER THAN for past and future expected costs of counselling and medical treatment and for the costs of support and treatment during the HARP process. 

• HARP would produce a narrative declaratory judgment by the court after due process which would make evidential findings in court about the circumstances and nature of abuse suffered by the Claimant, the life impact on the Claimant, the background and underlying factors which led to or contributed to the Claimant being subjected to abuse, and which with the consent of both parties also might make specific or general recommendations to the Defendant or others for the future prevention of such circumstances arising again. 

• HARP would facilitate and encourage the Defendant(s) to make (if the Claimant so wished and the parties agreed, an apology to the Claimant which was read in open court. 

• HARP would provide funding for support and medical treatment and connected expenses, if required, to the Claimant (i) during the HARP process, and in the case of a decision that the Defendant is liable, (ii) to ensure funding for support and treatment after the conclusion of the HARP process and (iii) to reimburse the Claimant for past treatment, counselling and support costs and connected expenses such as travel.

• HARP would address an unmet pressing social need for a means for humane, just, effective and reasonably rapid justice for abuse victims.

HARP is a very interesting innovation. Survivors of abuse do complain (as do other Claimants) about the adversarial nature of litigation and the length of time taken to reach a resolution. In particular they do want some kind of acknowledgement by the Defendant that mistakes have been made. This is a real attempt to address those issues.

Speaking personally, I don't think that any survivor would waive the right to compensation, save for their treatment. There are some psychiatrists, who take the view that treatment in many cases is not helpful. The Claimants' Group Draft Protocol does take into account the option of an apology and for the provision of treatment right from the start of the process. Finally over the years, Claimant and Defendant solicitors have developed ways of settling these claims quickly and effectively, particularly in large group claims against local authorities who essentially set up their own compensation schemes. The London Borough of Lambeth is a recent example with their proposed scheme for children who were resident at Shirley Oaks Children's Home.

However, Master McCloud has put forward other practical ideas.

• A meeting with the Royal College of Psychiatrists and the British Association for Counselling and Psychotherapy to discuss ways of getting more experts into the process of giving evidence in these cases. The meeting would look at (i) provision of a clinician pool or other independent vehicle to provide affordable but good quality assessment and treatment/support, (ii) medical professional input into judicial training in this field (iii) moderating expert fees. Master McCloud has already had positive feedback from the RCP 

• Judicial training in historic abuse cases. Master McCloud is already in conversation with other colleagues in the judiciary about the need for training. 

• From March/April 2017, Master McCloud is experimenting with reserving about 1 week in six for pre-allocated trial time. Master McCloud has said that she can prioritise historic abuse cases if people ask. The spaces are sufficient for 5 day trials as things stand and may reduce wait times at least for ‘5 day or less’ slots.

​
The Claimants' Group Draft Pre Action Protocol

As stated above, one of the aims of the Forum is to set up a Pre Action Protocol for the conduct of claims prior to the issue of proceedings.

We already have a series of protocols for personal injury and clinical negligence claims.  All of these protocols are reported to work well in practice. Above all, they avoid parties rushing off to issue proceedings thus avoiding extra costs.

The Claimants' Group has now drafted a Pre Action Protocol. This has been taken mainly from the Personal Injury Protocol above, but it reflects some of the points that arose from the meetings.
It is by no means a final document, but rather a proposed first draft. The Defendants have yet to submit any draft of their own.

I am grateful to all those in the Claimants' Group who gave up their valuable time to attend the meetings of the sub groups and who helped produce this Protocol.

The new "Abuse Litigation Protocol" runs into about 30 pages and is too long to reproduce here.

However, this is what the structure looks like.

DRAFT ABUSE PRE-ACTION PROTOCOL
Contents
1. Introduction
2. Early issue and limitation moratoriums
3. Enforcement of the Protocol and Sanctions
4. Litigants in Person
5. The aims of the Protocol
6. The Structure of the Protocol
7. Pre Medical Report Offers
8. The Initial Letter of Notification
9. Therapy and medical treatment
10. The Letter of Claim
11. Status of Letters of Claim and Response
12. Letter of Response
13. Disclosure
14. Negotiations Following an Admission
15. Alternative Dispute Resolution
16. Quantification of Loss – Special Damages
17. Stocktake

Annexes
Annex A: Limitation Moratorium template
Annex B: Illustrative flow chart
Annex C: Undertaking as to records
Annex D: Initial Letter of Notification
Annex E: Letter of claim against individual and claim based on vicarious liability
Annex F: Letter of Claim – Breach of duty on the part of an institution
Annex G – Letter of Response
Annex H – Specimen Letter of Instruction to Expert

The following summarises very briefly how the new Protocol works.

• As stated above, one of the main aims of the Protocol is to prevent parties from issuing proceedings. The Protocol does this by encouraging parties to enter into limitation moratoriums and an example can be found in the Annexes. If proceedings are unavoidable then parties are encouraged to "stop the clock". 

• Litigants in person – a particular feature of this type of litigation is the presence of uninsured Defendants. The protocol seeks to set up a system whereby they can find legal representation, and enter into discussions with other Defendants. 

• Claimants begin the process with an Initial Letter of Notification sufficient to allow the Defendant to investigate the claim, which must be answered within 21 days of service. Thereafter the Claimant can send a Letter of Claim, which must be answered within 3 months of service. The parties are encouraged to negotiate a settlement if at all possible. 

• Pre Medical Report offers – The Claimants propose that no offer of settlement should be allowed before the Claimant has had the opportunity to produce an expert medical report. 

• Disclosure is recognised as being a sensitive process. The protocol provides an undertaken to be given by Claimants to Defendants so that Defendant can release as much as possible by way of disclosure without have to redact too much of that information.

The next steps

The next meeting of HALF is due to take place on the 21st February 2017 at the offices of Berrymans Lace Mawer in London. As HALF now numbers around 80 members, one representative of each law firm or chambers will attend.

The Master has made it clear that she is not expecting there to be final decisions at this meeting on the 21st February 2017. She intends this to be a catch-up session to ensure that the whole Forum is engaged with the work of the groups.

This is a bill going through the House of Commons. It was introduced to Parliament on Tuesday 31 January 2017 under the Ten Minute Rule, which allows an MP to make his or her case for a new bill in a speech lasting up to ten minutes. If the MP is successful the bill is taken to have had its first reading.
​
The Bill is aimed at protecting women, who are citizens of the United Kingdom, from violence outside the United Kingdom. It provides for the following measures:-

1. The use of the term "honour killing" in official publications is prohibited
2. The Government is required to arrange for, and meet from public funds the costs of, the repatriation of the bodies of female citizens of the United Kingdom who are victims of aggravated murder outside the United Kingdom.
3. The Government is required to provide assistance to female citizens of the United Kingdom who are victims of aggravated domestic violence outside the United Kingdom in order to enable them to return to the United Kingdom.
4. Citizen of the United Kingdom who commit the aggravated murder of, or threaten or incite domestic violence against, women, who are citizens of the United Kingdom, outside the United Kingdom can be prosecuted in certain circumstances

​This Bill is a Private Member’s Bill and sponsored by Nusrat Ghani, MP for Wealden. 

The account of the first debate on the Bill makes for sobering reading, because it contains accounts of so called "honour killings" and the unpleasant truth behind the term "honour".  

https://hansard.parliament.uk/commons/2017-01-31/debates/7CF70A7D-13DB-451F-AD94 C239FE72BF18/Crime(AggravatedMurderOfAndViolenceAgainstWomen)

Nusrat Ghani explained that the use of term "honour" to describe a violent criminal act, could be explained only as a means of self-justification for the perpetrator. The stories that she told were nothing to do with honour, and all about covering up crimes, as well as controlling and exploiting women. 

Between 2010 and 2015, 11,000 incidents of crime to which the term “honour” was applied were recorded in the UK. 

During the debate, an objection  was made by Philip Davies, MP for Shipley on the grounds that the Bill only protected women, and not men. He mentioned two cases of "honour killings" which involved men. 

Certainly a bill to protect victims of crime should protect all victims of the crime, to which it refers, but Mr Davies did not help his case by beginning his speech with the following paragraph:-

"For the benefit of the morons on Twitter, and for some in this House, I should make it clear from the start that obviously, along with everybody else, I oppose women suffering from honour-based violence, but it seems that I am the only one in this House at the moment who equally opposes honour-based violence against men too."

Twitter critics are a fact of life, particularly for MP's. Bills can be amended as they go through Parliament, and I suspect that there's a constructive way to do it. Setting oneself up as the lone human rights champion in the House of Common isn't that way. 

The Bill is to be welcomed and I will be interested to see how it progresses. The use of the words "honour killings" may be convenient to describe a particular crime, but as Ms. Ghani says, it excuses the crime itself. Another example is "child pornography". Not all pornography is illegal but the production of images  of child abuse is, hence the term that is sometimes used "child abuse imagery".