Social media and technology companies face sanctions unless they do more to curb cyberbullying, sexting and trolling
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.
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.
Justice Secretary asks for review into revealing rape victim's sexual history - the Metropolitan Police Service inquiry into false allegations
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.
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.
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)  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  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  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  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  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.
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:-
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:-
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).
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.
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
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
14. Negotiations Following an Admission
15. Alternative Dispute Resolution
16. Quantification of Loss – Special Damages
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.
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:-
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".
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".
Malcolm Johnson, Specialist Child Abuse Lawyer