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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 slaves.
The story put me in mind of the recent Supreme Court decision in the cases of Taiwo v Olaigbe and Onu v Akwiwu [2016] UKSC 31, [2016] 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 [2009] 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.
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The Times reports on the trial last year of a teacher at Ampleforth College, who was arrested on charges of sexual abuse against a pupil there in 1989. Originally he had been due to stand trial on charges of abusing several other pupils, but those charges were dropped, leaving only one witness to give evidence against him in court.
At trial, the teacher was acquitted. He has denied any wrongdoing. An investigation by the Times has apparently discovered that Ampleforth asked the teacher to leave in 1989 after allegations were made against him by pupils of inappropriate contact. The police were not informed. It is also alleged that the police failed to contact two other former pupils, who could have been witnesses at trial. On the 17th August 2016, I commented on another case involving Clifton College in Bristol. I described how Section 218(6)(a) to (c) of the Education Reform Actintroduced regulations prohibiting or restricting the employment of teachers. That section applied to local education authorities (section 218(c) together with teachers employed otherwise by LEA’s (section 218(b) and further and higher education authorities (section 218(a)). However private schools were not covered at that time. The regulations introduced under Section 218(6)(a) were the Education (Teachers) Regulations 1989 No. 1319 which came into force on the 1st September 1989. Regulation 7 stated that the regulations would apply in relation to the employment of persons— “(a) by a local education authority, as teachers (whether or not at a school or further education institution) or as workers with children or young persons;” Regulation 10(2) allowed the Secretary of State to bar or restrict a person’s employment. The grounds for exercising that power were set out under Regulation 10(1)):- “(a) on medical grounds; (b) on grounds of a person’s misconduct (whether or not evidenced by his conviction of a criminal offence); or (c) in relation only to employment as a teacher, on educational grounds.” Regulation 11 stated:- “Where a person is dismissed from relevant employment on grounds of his misconduct (whether or not he is convicted of a criminal offence) or his employers would have so dismissed him, or considered so dismissing him, but for his resignation, his employers shall report the facts of the case to the Secretary of State.” The 1989 Regulations were replaced by the Education (Teachers) Regulations 1993 No. 443 which came into force on the 1st April 1993. These are broadly the same as the 1989 Regulations. Later on, section 218(6)(d) of the 1988 Act enabled the Secretary of State to make regulations in relation to the restriction of the employment of teachers atprivate schools. That requirement came into force on the 1st January 1994 under Section 290(3)(b) of the Education Act 1993 and was preserved by Schedule 38 of the Education Act 1996. Section 49 of the Education Act 1997 also inserted a new section 218(6A) & (6B) into the 1988 Act. The grounds for restriction/disqualification were further extended by section 5 of the Protection of Children Act 1999 which inserted section 6ZA into the 1988 Act. The regulations for private schools were introduced by Education (Teachers) (Amendment) Regulations 1994 No. 222 which came into force on the 1st March 1994. Regulation 3 amends Regulation 10 of the Education (Teachers) Regulations 1993 so that those regulations applied to private schools. “Misconduct” was nowhere defined in the statutes and statutory instruments, but it was made clear that it was not dependent on a criminal conviction. In the criminal trial involving Ampleforth College, the judge held that some of the allegations of inappropriate contact, did not (for the purposes of the criminal law) amount to indecent assaults. Schools that safeguard children should not take that ruling, as some kind of reassurance that physical contact between teachers and pupils, which could be viewed as inappropriate, do not require investigation. Schools are not criminal courts. A robust child protection policy should give examples of misconduct for the guidance of teachers and other staff. John Simpson, Crime Correspondent at the Times reports on a story about how bishops in the Church of England were ordered not to give full apologies to victims of abuse. The concern was that such apologies would open up the church to litigation, but apparently the church now has guidance which says that it is possible to apologise without accepting responsibility.
The issues of apologies in child abuse compensation claims is a vexed one. Many people will utter the familiar words "It's not about the money" but of course a Defendant might be happy to give an apology if it meant escaping paying any compensation. At the same time, people who have been abused in childhood do want their abuser to acknowledge what happens. Sometimes they do, but once they are in the hands of lawyers, a different attitude may emerge. Many cases are settled without any admission of liability, which conflicts with the giving of any apology. One suggestion is to empower judges to order a Defendant to make an apology, or to extend the duty of candour which now exists in the NHS. Under this duty, a Defendant NHS Trust is supposed to show candour in admitting fault. The problem with the duty of candour is that it does not appear to be making much difference to the way in which litigation against the NHS is pursued. Perhaps the most important thing is fact finding” getting to the truth of what has happened and learning lessons. Certainly the Catholic Church and more recently the Church of England have tried to support complainants by the provision of pastoral care, whilst leaving the issue of compensation to their insurers or lawyers. My own view is that one has to look at the issue from the point of view of the survivor of abuse. If an apology is going to improve their experience of litigation, in circumstances where it can be highly damaging, then it should be something within the court's power provided it is accompanied by compensation, The BBC has reported on two cases of child abusers, with a similar theme. Both returned to the UK from abroad after unsuccessful attempts to extradite them, only to be arrested.
http://www.bbc.co.uk/news/uk-37151086 Laurence Soper was a Roman Catholic priest employed as a teacher by St Benedict's School in Ealing. He was accused of offences against children over a period from 1971 to 1983. He was arrested in 2010 and bailed, but failed to return to a London police station in March 2011. It is thought that he went abroad to Europe. A European Arrest Warrant was issued for him in 2012 and he eventually was detained in Kosovo in May of this year. Recently it was reported that there were difficulties getting an extradition order, but now Mr Soper has returned to the UK. He is due to appear at Isleworth Crown Court on the 19th September. http://www.bbc.co.uk/news/uk-37154763 Former BBC DJ Chris Denning has pleaded guilty to 21 child sex offences committed between 1969 and 1986. He is currently serving a 13-year jail term for sexual assaults against 24 victims aged nine to 16 from the 1960s to 1980s. Denning was arrested in the Czech Republic in 1997 and eventually jailed in 2000 by a Prague court for four and a half years for having sexual contact with minors. The UK tried and failed to have Denning extradited from the Czech Republic, but in 2005 he was arrested at Heathrow, having arrived from Austria. In January 2006, a British court sentenced him to four years after he admitted five charges of indecent assault on boys under 16 during the 70s and 80s. Denning was then extradited to Slovakia, where he was given a five-year sentence in 2008 for making indecent images of children. Soper's former employers, St Benedict's School have already settled a number of claims brought in relation to his abuse. In 2011, Christopher Cleugh, headmaster of St Benedict's said the school would adopt the recommendations of an inquiry, led by Lord Carlile. Lord Carlile's report examined multiple attacks on pupils since 1970. His inquiry began in 2010 after Father David Pearce, the former head of the junior school, was jailed for eight years in 2009, after being convicted of abusing five boys over a period of 36 years. Lord Carlile criticised the governance of the school and recommended setting up two trusts to remove "all power from the abbey" while maintaining the Benedictine connection for the parents. In 2006, the High Court awarded damages to one of Father David's victims. In relation to Chris Denning, the writer does not know whether any claims in relation to his abuse have been brought against the BBC, in the same way as some claims against the estate of Jimmy Saville were brought against him. Under the present 2012 CICA Scheme, a claim in relation to abuse by both men is certainly feasible, but the Scheme has draconian limitation provisions, which need careful reading. Delay can be fatal to a claim. Civil claims are also a possibility against both Soper and Denning direct. It is sometimes wrongly assumed that such men have no assets, but experience shows that they may own houses or businesses, or very possibly later in life inherit large sums from a relative. Problems begin, of course, when a number of Claimants make claims against the same set of assets. This is what happened in the Jimmy Saville case. Mr Savile's estate was the subject of some major litigation. First there were a group of individuals who alleged that they had been abused by Jimmy Savile. They brought personal injury claims against his estate. Some of the Claimants had claims against other defendants with whom Jimmy Savile was associated: the BBC, certain NHS hospital trusts and the charities Barnardo's and Mind. It is understood that other organisations, such as the NHS and the BBC settled a part of these claims, but it was agreed that the estate would also contribute. The next set of competing claims came from those charities to whom Jimmy Saville had made bequests. They were looking at losing those gifts if the monies were distributed to victims. There was also a relation of Mr Savile who had been the subject of a bequest from him. To complicate matters further, those organisations who were potentially liable to victims of Jimmy Saville indicated that they would be claiming against his estate for their losses. The dispute over the estate came before Mr Justice Sales in the Chancery Division of the High Court, in a series of hearings in 2013 and 2014, the last of which was In the estate of Jimmy Savile [2014] EWHC 1683 (Ch). The trustees of the Savile Estate attempted to remove the Bank as executor, but ultimately failed. A Scheme was set up to distribute the monies in the estate and this was approved by Justice Sales. Sales J said that the Nat West Bank was "a professional executor of good repute" which was capable of being neutral and impartial in administering the estate as between the different competing interests. It had also established a track record of effective and appropriate administration of the estate in the unusual and testing circumstances of this case. Finally Sales J said:- "The negotiation of the Scheme has required a good deal of give and take between the parties to the negotiations, in the course of which the PI Claimants and the Third Party Defendants have developed confidence in the fair approach of the Bank to handling the claims. The Scheme provides a general framework, but its effective implementation in seeking to arrive at as many settlements of valid and meritorious claims as possible, to facilitate ultimate distributions from the estate, will also depend on effective co-operation between the parties going forward." The Jimmy Savile litigation demonstrates the guiding principle of claims against individuals or their estate. There is only ever so much money in the "pot" to go around and consequently early resolution (if possible) of the litigation is always desirable even though it may mean that victims are under compensated. The BBC carries a disturbing report of drugs trial on children in approved schools in the 1960's.
http://www.bbc.co.uk/news/uk-37149029 National Archives files show that at one approved school, Richmond Hill Approved School in North Yorkshire, pupils were given an anticonvulsant drug to see if it would control behaviour. There was also a proprosal to give girls in a Leeds approved school, Haloperidol, a powerful sedative. I have handled about three cases in my twenty year career of child abuse compensation claims, involving children who were injected with drugs in the 1970's and 1980's. However these drugs were administered in specialist psychiatric units, not children's homes. As a side point, the National Archives are a rich source of information on children's homes in the post war years. In one case of mine, it yielded crucial records on a Hackney run children's home from the 1960's. Approved schools were residential units set up in the 1930's for children who had committed crimes. They were run by the Home Office, and then superseded in the late 1960's to early 1970's by community homes. Many of these approved schools have given rise to substantial multi party litigation in relation to child abuse. The use of powerful medication on children is highly controversial, not least in this case because it cannot be right for the most vulnerable people in society to be used as guinea pigs, in relation to drugs, the effect of which were clearly not fully understood. The experience of being injected with these substances can be absolutely terrifying for a child, particularly when they are left helpless and disorientated. There is also the question of why anyone responsible for a children's home would want to employ chemicals as a means of control. According to the BBC report, at least one teacher at Richmond Hill was appalled at the trial and the headmistress at the Leeds approved school declared that the girls in her care were not "mentally sick". They only needed to work through their emotions. The trial was blocked by the school's managers. The trial in the other home went ahead but there is no record of its results. I was reading an excellent feature in the Telegraph today about the experiences of a daughter who placed her elderly mother in a care home, when she was diagnosed with dementia.
Like so many people in this situation, she did her research on various care homes and set a number of criteria, before settling on one home which seemed to be perfect for her mother. She described the home as beautiful with well-maintained grounds. Regrettably the home was any but perfect, and her mother's behaviour deteriorated. Her hair was unwashed and she generally wore the same clothes day after day. Finally the daughter made a complaint to the Care Quality Commission and within weeks, the care home was issued with a Warning Notice for breaching safeguarding requirements. Apparently there have since been huge improvements to the home, but they came too late for the writer's mother, as she was moved to another care home. The writer, Tamara Sturtz-Filby gives a checklist of what to look for when choosing a home for a relative with dementia:-
The feature contains practical insights into the business of safeguarding. A good care home will have staff, who understand the particular challenges of dementia, a condition which covers a series of different illnesses and the importance of meeting a person's basic needs. Record keeping in particular will be good quality, which means that adverse incidents are addressed quickly and properly investigated. The other controversial issue raised by the feature is that of medication. According to the Department of Health, one third of dementia patients are inappropriately prescribed anti-psychotic drugs. There are also lessons for children's homes. Nowadays most children are placed in foster care, but specialist residential units are still used for children, particularly those who are older, and who display challenging behaviour. There has been surprisingly little adverse publicity about such residential units, as opposed to care homes for the elderly and adults with learning difficulties. This may be because of the quality of staff in children's residential units, who will be highly specialised. The Times reports today on the case of a school teacher, convicted of sex offences against children, who had been the subject of concerns on the part of the school where he worked for some considerable time.
Jonathan Thomson-Glover taught German at a fee paying school, Clifton College in Bristol. At his trial last year, he was found to have hidden camera in school showers and in a bedroom, where he encouraged children to engage in sexual activity. An independent investigator, Penny Jones commissioned by the school to investigate his crimes found that there was a failure to keep records and pass on concerns or investigate complaints. Apparently Mr Thomson-Glover had been found, tied or taped to a chair on a number of occasions, including one occasion when he was found on a cricket pitch wearing only his underpants. A cleaner reported finding a boy wrapped up in cling film by the teacher in 2005, who had also encouraged pupils to drink and smoke, as well as taking them to his holiday home in Cornwall. The report of the independent investigator demonstrates a peculiar Achilles heel of schools, including those in the private sector. All schools are required to have child protection policies, and such policies may have been in existence for many years. The Safeguarding Vulnerable Groups Act 2006 is only one of a long line of statutes, going back decades which have obliged schools to make checks on their staff, and report those concerns. Child protection policies generally provide for an investigation to be undertaken by the school, and the concerns passed to the authorities (social services and the police) if warranted. The problem for schools is recognising that "horseplay" between teachers and staff may not be innocent activity all, but grooming for abuse. At the same time, senior teachers may be unwilling to "rock the boat" and call in the authorities. This can mean that no investigation is undertaken, and what is a very serious warning sign is instead brushed under the carpet. In time, given what we know about the historic nature of child abuse allegations, these concerns can come back to haunt a school with a vengeance. It is often mistakenly thought that safeguarding is a relatively new development in childcare law. This is very far from being the case. An early example from nearly 30 years ago, is the Education Reform Act 1988. Section 218(6)(a) to (c) of the Education Reform Act said that the Secretary of State would make regulations prohibiting or restricting the employment of teachers. That section applied to local education authorities (section 218(c) together with teachers employed otherwise by LEA’s (section 218(b) and further and higher education authorities (section 218(a)). Private schools were not covered at that time. The regulations introduced under Section 218(6)(a) were the Education (Teachers) Regulations 1989 No. 1319 which came into force on the 1st September 1989. Regulation 7 stated that the regulations would apply in relation to the employment of persons— “(a) by a local education authority, as teachers (whether or not at a school or further education institution) or as workers with children or young persons;” Regulation 10(2) allowed the Secretary of State to bar or restrict a person’s employment. The grounds for exercising that power were set out under Regulation 10(1)):- “(a) on medical grounds; (b) on grounds of a person’s misconduct (whether or not evidenced by his conviction of a criminal offence); or (c) in relation only to employment as a teacher, on educational grounds.” Regulation 11 stated:- “Where a person is dismissed from relevant employment on grounds of his misconduct (whether or not he is convicted of a criminal offence) or his employers would have so dismissed him, or considered so dismissing him, but for his resignation, his employers shall report the facts of the case to the Secretary of State.” The 1989 Regulations were replaced by the Education (Teachers) Regulations 1993 No. 443 which came into force on the 1st April 1993. These are broadly the same as the 1989 Regulations. Later on, section 218(6)(d) of the 1988 Act enabled the Secretary of State to make regulations in relation to the restriction of the employment of teachers at private schools. That requirement came into force on the 1st January 1994 under Section 290(3)(b) of the Education Act 1993 and was preserved by Schedule 38 of the Education Act 1996. Section 49 of the Education Act 1997 also inserted a new section 218(6A) & (6B) into the 1988 Act. The grounds for restriction/disqualification were further extended by section 5 of the Protection of Children Act 1999 which inserted section 6ZA into the 1988 Act. The regulations for private schools were introduced by Education (Teachers) (Amendment) Regulations 1994 No. 222 which came into force on the 1st March 1994. Regulation 3 amends Regulation 10 of the Education (Teachers) Regulations 1993 so that those regulations applied to private schools. “Misconduct” was nowhere defined in the statutes and statutory instruments, but it was made clear that it was not dependent on a criminal conviction. Fiona Hamilton, Crime Editor of the Times reports on the case of a mother who forced her own children to have unnecessary surgery, as part of a fraudulent £375,000 benefits claim.
The mother apparently encouraged her son to show signs of autism, resisted attempts by nursery staff to toilet train him and gave him steroids for non-existent asthma. She also managed to persuade surgeons to perform surgery on her son. He underwent an irreversible gastrostomy operation. The mother was jailed for seven and a half years at Croydon Crown Court. During the course of the criminal trial, it was revealed that one paediatrician raised the alarm in 2010, but was rebuffed by colleagues. The mother was eventually arrested in 2013. The mother was found guilty of various charges of child cruelty and fraud. Although there will have been reporting restrictions on the identity of this family, it is likely that care proceedings were initiated in relation to the children some time ago. This is as sinister a case of child cruelty as can be imagined, but the NHS is aware of other cases, where illness was fabricated or induced for financial reasons. However there is a recognised psychiatric disorder, "Fabricated or induced illness" (FII), which is a rare form of child abuse. FII occurs when a parent or carer, exaggerates or deliberately causes symptoms of illness in the child. FII is also known as Munchausen's syndrome by proxy, but healthcare professionals in the UK prefer to use the term fabricated or induced illness, or factitious disorder imposed on another. The term Munchausen's syndrome by proxy was the subject of great controversy some years ago in the media. FII covers a wide range of cases and behaviours, ranging from extreme neglect to induced illness. One study found that almost half of mothers who were known to have fabricated or induced illness in their child were victims of physical and sexual abuse during their own childhood. The condition is still relatively rare. The British Paediatric Surveillance Unit (BPSU), carried out a study of FII cases. It identified 97 cases of FII in the UK over a two-year period. However many cases may be going unreported. News broke yesterday of the appointment of Professor Alexis Jay to head the Independent Inquiry into Child Sexual Abuse. Professor Jay will replace Dame Lowell Goddard, the New Zealand lawyer who resigned from the chair of the Inquiry this week.
However Imran Khan, a solicitor for a group of survivors that has been granted core participant status at the inquiry, has said that his clients want "some reassurance" failing which there "may have to be a challenge." Professor Jay is already a member of the IICSA's expert panel, and she has a 30 year history in social work. Apparently the objection to her appointment stems from concerns amongst survivors, about her ability to investigate the past failures of her own profession. There may also be concerns about the fact that she does not come from the legal profession. Peter Garsden, President of the Association of Child Abuse Lawyers went on the BBC today to say that he welcomed Professor Jay's appointment. There are a number of points to be made here.
Recently, certain high profile accusations have created a groundswell of calls for anonymity.
Today, the Times reports that geography teacher, Kato Harris has been cleared of rape allegations made by a 14 year old school girl. Mr Harris was teaching at a private all-girl school in Camden, London when the accusations were made. The jury took just 26 minutes to find him innocent. Harris is said to be ruined by his legal costs, which are said to run to just under £200,000. Mr Harris' claim is just one of many high profile claims that are said to result in irreversible "reputational damage". Some argue that Parliament's decision to remove anonymity from Defendants in sexual abuse cases is "nonsensical". One commentator, Clare Foges writing in the Times says:- "With so many innocent men having their reputations ruined, it's time we went back to a system of automatic immunity." My own view is that vulnerable people need encouragement to come forward after suffering a sex attack. The publication of Defendants' details has proved crucial in giving victims the confidence to seek justice. The media coverage of Jimmy Saville's crimes is just one example of people coming forward many years after the event. It also highlighted the failures of corporations such as the BBC who missed chances to stop the attacks. I would argue that the only thing that anonymizing the accused would achieve is a reduction in the number of real victims coming forward. · Firstly, vulnerable people need encouragement to come forward after suffering an attack. Defendants' identities have been publicised for decades and this has proved highly successful in in giving victims the confidence to seek justice. For instance, the media coverage of the crimes of Jimmy Saville resulted in a huge number of people coming forward. It also highlighted the errors of corporations like the BBC for missed chances to stop attacks. This would suggest that the law is effective regardless of time frames. · Furthermore, giving anonymity to Defendants is a restriction of public knowledge, which is likely to face backlash. Those who call for the names of defendants to be withheld are mainly concerned about the stigma that comes with being accused. However this assumes that most people believe that a person, who is found innocent, is still guilty. I do not believe that this is the case. There are always "trolls" on the internet that will make unfounded allegations against people, but how many people actually believe them? · Finally, if the identities of those accused of sex crimes are withheld, then we may see a "domino effect" whereby there are then calls for people accused of other crimes to have anonymity. One of the central purposes of the criminal justice system is to act as a deterrent. That deterrent should not be restricted simply to the risk of conviction and punishment, but the whole process of prosecution. |
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