I was reading an article today on the BBC website about the State of California's decision to repeat their statute of limitations for the crime of rape. Formerly the limitation period was 10 years.
To us in the UK, it might seem odd to have a limitation period for the prosecution of sexual offences, but other jurisdictions have quite strict time limits. Here are some examples:-
I have always held the view that limitation periods for crimes involving sexual abuse do tremendous injustice to victims, where as one judge once said "silence is one of the most pernicious fruits of abuse".
In relation to civil claims we have the Limitation Act 1980, whilst in Scotland there are proposals to abolish limitation periods in the civil arena. In California, the decision to abolish the criminal statute of limitations was prompted by the allegations of sexual abuse against Bill Cosby, the American comedian.
The Crown Prosecution Service have reviewed the evidence in the investigation of allegations against Sir Cliff Richard, and they have decided not to proceed with any criminal charges.
Two applications had been made by people alleging that they had been abused under the Victims' Right to Review Scheme. Under that Scheme, the CPS can be requested to review their original decision not to proceed with a prosecution.
So what is this Scheme, and how does it work?
Details of the Scheme can be found on the CPS' website:-
Victims of crime have long had the right to seek a judicial review of a decision of the CPS not to prosecute a person. However judicial review is an expensive and cumbersome process. It is now established that the right to review can arise from a simple complaint.
In the Court of Appeal decision of Regina v Christopher Killick  EWCA Crim 1608 the court had to deal with a case that involved the sexual abuse of three men, who complained of sexual assaults. All three suffered from cerebral palsy but they were unimpaired mentally. Their assailant also suffered from the same condition, although not to the same extent. He was convicted of abusing two of the men, but not the third.
The assailant then appealed against his conviction. Part of his argument was that he had been told by the police that the prosecution against him would be discontinued, and also that he could not have a fair trial given the passage of time. He was ultimately unsuccessful before the Court of Appeal.
During the course of the judgment, the Court of Appeal said that the victims had complained to the Crown Prosecution Service about their original decision not to prosecute their assailant. In effect they wanted a review of that decision.
The Court of Appeal considered the right of a victim to seek a review of a decision not to prosecute.
Lord Justice Thomas said at para. 48 of his judgment:-
"Although in form the request was made as "a complaint", what was sought was a reconsideration by an interested person of the decision. Far from the CPS being able to refuse to do this, it was bound to do it. In the first place, the CPS has made clear that it will review decisions........if a "complaint" is made. Second, it has for some time been established that there is a right by an interested person to seek judicial review of the decision not to prosecute (see R v DPP ex p C  1 Cr App 136); it would therefore be disproportionate for a public authority not to have a system of review without recourse to court proceedings. Third, it is clear that in considering whether to prosecute the prosecutor has to take into account the interests of the State, the defendant and the victim – the three interests in a criminal proceeding as identified for example by Lord Woolf CJ in R v B  2 Cr App R 197 at paragraph 27. As a decision not to prosecute is in reality a final decision for a victim, there must be a right to seek a review of such a decision, particularly as the police have such a right under the charging guidance."sideration by an interested person of the decision. Far from the CPS being able to refuse to do this, it was bound to do it. In the first place, the CPS has made clear that it will review decisions........if a "complaint" is made. Second, it has for some time been established that there is a right by an interested person to seek judicial review of the decision not to prosecute (see R v DPP ex p C  1 Cr App 136); it would therefore be disproportionate for a public authority not to have a system of review without recourse to court proceedings. Third, it is clear that in considering whether to prosecute the prosecutor has to take into account the interests of the State, the defendant and the victim – the three interests in a criminal proceeding as identified for example by Lord Woolf CJ in R v B  2 Cr App R 197 at paragraph 27. As a decision not to prosecute is in reality a final decision for a victim, there must be a right to seek a review of such a decision, particularly as the police have such a right under the charging guidance."
There is now a formal Victims' Right to Review Scheme, which applies to all qualifying cases from 5th June 2013. The Scheme draws on the Court of Appeal judgment in R v Killick as well as Article 11 of European Union Directive 2012/29/EU, which establishes specific minimum standards on the rights, support and protection of victims of crime.
"Rights in the event of a decision not to prosecute
1. Member States shall ensure that victims, in accordance with their role in the relevant criminal justice system, have the right to a review of a decision not to prosecute. The procedural rules for such a review shall be determined by national law.
2. Where, in accordance with national law, the role of the victim in the relevant criminal justice system will be established only after a decision to prosecute the offender has been taken, Member States shall ensure that at least the victims of serious crimes have the right to a review of a decision not to prosecute. The procedural rules for such a review shall be determined by national law.
3. Member States shall ensure that victims are notified without unnecessary delay of their right to receive, and that they receive sufficient information to decide whether to request a review of any decision not to prosecute upon request.
4. Where the decision not to prosecute is taken by the highest prosecuting authority against whose decision no review may be carried out under national law, the review may be carried out by the same authority.
5. Paragraphs 1, 3 and 4 shall not apply to a decision of the prosecutor not to prosecute, if such a decision results in an out-of-court settlement, in so far as national law makes such provision."
BL Claims gave a successful talk to the Kingston Centre for Independent Living today at their annual conference in Chessington.
Malcolm Johnson, Charlotte Allen and Oliver Jeffcott gave two 30 minute talks to service users of KCIL and others about how to make the complaints system work. It wasn’t a lot of time, but we had some good feedback from people we were able to help.
The title of the seminar was “Making Successful Complaints”, which included the following topics:-
The conference also hosted a number of speakers.
Joe Gadd talked about his experiences as a Paralympic rugby player.
Colin Morris of the Department of Work and Pensions talked about the change from Disability Living Allowance to Personal Independence Payments.
Alan Benson of Transport for All gave a fascinating talk about “Making Public Transport Public - Your Right to Ride”
Paul Featherstone of Balance talked about getting disabled people into work.
We also heard from the Pan-disability Parliament: Young Voices
All in all – a great conference. Thank you – KCIL!
The BBC has just reported on a court decision from Northern Ireland.
A 14 -year old girl has brought an action against Facebook seeking damages for misuse of private information, negligence and breach of the Data Protection Act. She alleged that a naked photograph (obtained from her by blackmail) had appeared on their website on several occasions. She is also bringing a claim against the man who posted the photograph as a form of “revenge porn”.
Facebook launched an application to halt her legal action, but the application was refused by a judge in Belfast. The case will now come to trial.
Facebook argued that the company always took down the picture when it was notified to them. They relied on an exemption from liability provided by a European Directive.
Although the judgment is not yet available, it is believed that the reference is toDirective 2000/31/EC.
The objective of this Directive was “to create a legal framework to ensure the free movement of information society services between Member States…..”
Information society services include websites such as Facebook.
Article 12 of the Directive directs Member States to exempt information society services from liability where they are a “mere conduit” for any offending information, which is transmitted, such as a sexualised photograph. Articles 13 and 14 contain similar provisions in relation to “caching” and “hosting”.
The actual wording of Article 12 of the Directive is as follows:-
1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:
(a) does not initiate the transmission;
(b) does not select the receiver of the transmission; and
(c) does not select or modify the information contained in the transmission.
2. The acts of transmission and of provision of access referred to in paragraph 1 include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.
3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement.i.e. electronic messages and websites.”
The Directive was brought into force in the United Kingdom by the Electronic Commerce (EC Directive) Regulations 2002. Regulations 17 to 19 implement the Directive by creating a defence for intermediary service providers from any liability incurred from the activities of mere conduits, caching and hosting in the circumstances set out in those regulations.
This appears to have been Facebook’s argument.
As stated above, the judgment is not yet available on the Northern Ireland Court Service and it will be interesting to see how the court reached its decision. Very possibly there may be an appeal against the judge’s decision.
However, this is not the first case against Facebook in Northern Ireland.
In MM V BC, RS and Facebook Ireland Limited  NIQB 60 15 June 2016(a case from the High Court of Northern Ireland), the Plaintiff was a married woman who had an affair with the Second Defendant. He, in turn was in a relationship with the First Defendant.
The Plaintiff alleged that she sent three photographs and texts of a sexual nature to the Second Defendant, which had come into the possession of the First Defendant. The First Defendant then sent to the Claimant's husband, to two of her friends, and to a friend of her husband, an email to which the three photographs were attached. The First Defendant included in the email a threat to inflict "enough pain and humiliation matching my own during your love affair". The Claimant also alleged that the Second Defendant was on occasions violent and threatening to her, particularly while she was attempting to bring an end to the relationship.
The Plaintiff asserted that this undermined her independence, her dignity, her right to privacy and was in breach of the Data Protection Act 1998.
Initially she obtained an order to protect her right to confidentiality and privacy in respect of certain personal photographs and information and, secondly to protect her from harassment in the form of communications addressed by the First and Second Defendants to herself and her employers to which she did not consent, and attempts by the Second Defendant to meet her, again without her consent.
The Plaintiff now sought an order that BC and RS, the First and Second Defendants were prohibited by themselves, their servants or agents or otherwise howsoever from accessing or altering in any way their present Facebook accounts. She also applied to the court for an order that each of those Defendants file an affidavit to set out what access they had had to their Facebook accounts since the original orders of the court.
Stephens J sitting in the High Court of Northern Ireland said that the difficulty that had arisen in this case related to the preservation of the First and Second Defendants’ Facebook accounts and therefore the preservation of evidence. The information contained on those accounts would be vitally important in analysing whether their explanations as to the publication of the photograph were correct. The Third Defendant, Facebook Ireland Limited, had stated that they could suspend the accounts of the First and Second Defendants but taking that action would remove every record of what had taken place on those accounts. So all the evidence contained in those accounts would be completely lost. Facebook suggested that before the accounts were suspended that the information on the accounts should be downloaded. They provided a method of downloading that information so that a record could be kept of it. However, that transpired to be an inadequate method of creating a complete record of what appeared on the Facebook accounts. A crucial part of the analysis would involve determining what images were connected to which messages. After the accounts had been downloaded it was not possible to carry out that analysis. The messages could be downloaded, as could the images, but one could not see what images were attached to what messages. The vital connection in this case would be lost.
Both the Plaintiff and the First and Second Defendant did not wish to lose important evidence and so they all sought to set aside the earlier order requiring Facebook to suspend the accounts. In the meantime, the First and Second Defendants had access to their Facebook accounts and either unwittingly or potentially deliberately t might alter the contents of those accounts. There is an obvious need to preserve the Facebook accounts by making an order in the terms sought by the Plaintiff at least until an expert could advise as to the most appropriate method of recording the evidence on those accounts.
However, the First and Second defendants had Article 8 ECHR rights. They had a right to communicate with their friends and they had a right to have access to the information on their Facebook account. Stephens J had asked the representatives of both the First and Second Defendants as to whether a new Facebook account could be opened and the response was that that would be in breach of Facebook’'s own policy. Consequently, the only way forward was for the First and Second Defendants to inform Facebook that they wished to open a further account. No other course could be contemplated by this court. Stephens J would direct that a letter be sent by the solicitors for the First and Second defendants to the solicitor for Facebook (Ireland) Limited saying that a new Facebook account should be facilitated by Facebook, the purpose of doing that was to preserve the present Facebook accounts and that if they had any objections to that they should inform the court before taking any action.
The balance presently came down firmly in favour of preserving evidence. Stephens J would make an order in the terms sought. He commented that he would have thought that Facebook had or should have a method of recording and preserving information that was put onto their accounts so as to assist courts in preventing Facebook being used as a tool to abuse individuals.
The court looked to Facebook to assist.
The courts in England and Wales have also dealt with a number of claims for “sexting” and disclosure of photographs of a sexual nature over the internet.
Last year, in ABC v West Heath 2000 Limited and Whillock  EWHC 2687 the Claimant successfully argued that that she had been emotionally manipulated and encouraged to take and send indecent photographs of herself and the ensuing sexual banter by text. This amounted to the intentional infliction of harm as redefined in the Supreme Court judgment of Rhodes v OPO 2015 UK SC32.
In AMP v Persons Unknown  EWHC 3454, the Claimant applied for an injunction to prevent transmission, storage and indexing of any part of parts of certain photographic images which were claimed to belong to her. The circumstances of the case were that her mobile phone had been stolen whilst she was at University. The phone contained sexual images of the Claimant, as well as other digital images of her family and friends. These images were uploaded onto a free onlilne media hosting service. The Claimant contacted the hosting service and the images were removed in about August 2008. In about July 2008, the Claimant was contacted on Facebook by someone who threatened to expose her identity and post the images online if she did not add him as a friend on Facebook. Another attempt was made to blackmail her using her father’s business public relations team. In November 2008, the images were uploaded to a Swedish website that hosted “BitTorrent” files with the Claimant’s name attached to each. The claim in this case was brought against “Persons Unknown.” This was because until those persons who had downloaded the images had been identified by way of their IP Addresses, and their addresses had been obtained from their Internet Service Provider, they could not be made a party to these proceedings. The Claimant submitted that it would be more cost effective and less cumbersome if the class of persons who might have the files in their possession could be identified by a common characteristic, i.e. any person in possession or control of any part of parts of the relevant files containing the relevant digital photographic images.
Mr Justice Ramsey sitting in the High Court said that the Claimant sought relief to preserve the right of respect for her private and family life under Article 8 of the European Convention on Human Rights. Secondly she sought relief under Section 3 of the Protection from Harassment Act 1997 in the form of an injunction to restrain an actual or expected breach of the terms of that Act. The test under Article 8 was whether the Claimant had a reasonable expectation of privacy in relation to the digital photographic images. In this case, the Claimant had a reasonable expectation of privacy for both the images of a sexual nature and those taken of family and friends. The second consideration was then the balancing of the Article 8 right with the right to freedom of expression under Article 10. In the present case, the rights of the users of the BitTorrent client software to download the digital photographic images and to disseminate them had to be balanced against the rights of the Claimant under Article 8. This was not a case where press freedom was at issue. The balance fell strongly in favour of the Claimant. In this case, there were compelling reasons as to why the “Persons Unknown” should not be notified at this stage of granting an injunction. The material in this case could not be described as journalistic, literary or artistic material. Interim relief could be granted by way of an injunction.
In relation to the Protection from Harassment claim, Ramsey J quoted from Section of the 1997 Act. The term “harassment” was not defined in the 1997 Act, but section 7(2) stated that it included “alarming the person or causing the person distress.” On the current evidence, there had been conduct on at least two occasions; the conduct was targeted at the Claimant; it was calculated, in an objective sense, to cause alarm and distress; objectively judged it would be oppressive and unacceptable in the context in which it occurred and in my judgment would cross the line and be conduct which amounted to harassment, alarm or distress. Therefore, this was a case where it was appropriate to grant an injunction.
The Times reports today, that the former chair of the national public inquiry into child abuse, asked the Home Secretary to review its remit, and expressed doubts about its scale. Dame Lowell Goddard apparently said that the inquiry should be re-calibrated towards current events.
This is unfortunate. The terms of the inquiry were set out some considerable time ago. Allegations of child abuse are in the main historic in nature, and consequently they arise from periods when the law and practice will have been different. That does not mean, however they are in some way less valuable to us in terms of lessons, than allegations of abuse occurring last year.
One particular example is that of Jimmy Saville. That case demonstrated how a celebrity was able to abuse in plain sight. One of the lessons learned should be around the vulnerability of children in the entertainment business.
The national inquiry was always going to be a massive task, but then the problem of child abuse in this country is a massive one, which needs to be addressed.
The Guardian has a story today about mandatory report of child abuse. Apparently the government is dubious about forcing professionals to report concerns about child abuse. The proposed law would see teachers, councillors and social workers sentenced to up to five years if they fail to report their concerns.
The suspicion is that the current Conservative government do not want to introduce such a law, because they fear it would lead to too many referrals, and place undue strain on the justice system. This (if true) would not be surprising - it was the Conservative/Lib Dem coaltion which pared back the Safeguarding Vulnerable Groups Act 2006.
Other jurisdictions have mandatory reporting, and there is evidence to show that those that do, detect more child abuse in their societies than those who do not. Lawyers have been subject to money laundering regulations for some years now, which means that they go to prison if they fail to check out a suspicious transaction. This has not resulted in a sudden increase in our prison population.
At present, I think that mandatory reporting should be introduced but there is no political appetite for it.
I have summarised a court report of a case from Manchester County Court, which was kindly given to me by Richard Scorer, solicitor at Slater Gordon. Richard is a well known authority on claims against the Catholic Church and child abuse claims in general. Together we wrote the leading textbook in this area, together with Elizabeth Ann Gumbel QC and Justin Levinson, who appeared as counsel for the Claimant in this case.
Whilst the judgment was given in open court, some details have been changed to protect the identity of the Claimant.
JL V ARCHBISHOP X AND THE SCOUT ASSOCIATION 27th May 2015 Manchester County Court Unreported
The Claimant was born in 1967. He claimed damages for sexual abuse suffered between 1984 and 1999 at the hands of a Roman Catholic priest. The priest was ordained in the First Defendant’s diocese and worked as a scout chaplain to the local Scout Group. He brought a claim in trespass against the Defendants for trespass to the person on the basis that they were vicariously liable for the priest's actions.
His Honour Judge Platts said that he had to address the following issues:-
Whether he should exercise his discretion to allow the claim to proceed under section 33 of the Limitation Act 1980
The nature and extent of the relations between the Claimant and the priest
Whether the Claimant consented to sexual activity with the priest
Whether either or both Defendants were vicariously liable for any assault committed by the priest
What effect the abuse had on the Claimant
Platts J reminded himself of the judgment in B v Nugent Care Society  EWCA Civ 827 in which the court said that a judge should determine issues of liability, causation and quantum before determining limitation. He went over the Claimant’s background. He came from a family where there were abusive and dysfunctional dynamics. He met the priest at the age of 8 when he joined the cubs in the local Scout Group. The priest was the chaplain to that group. Up until the age of 13, the Claimant’s relationship with the priest appeared to be positive. There was no abuse, but at around the time he reached his 13thbirthday, he was invited with other boys to go to the priest's house where they would smoke and drink. The priest would encourage the boys to bare their bottoms for his camera. The Claimant did not participate. At the age of 16 ½ he began to visit the priest on his own and do work for him. There was an incident when the priest touched his penis on summer camp, which Platts J found had occurred on the balance of probabilities.
There were then a series of episodes where the priest sexually abused the Claimant at his home. These continued until the Claimant went to University at the age of 18. During his time there, there were one or two incidents of sexual contact between him and the priest. The Claimant then qualified as a solicitor and began a successful career. He continued to stay occasionally with the priest over the years, who officiated at his wedding. In 1995 the Claimant left the law and began a business. This folded after six months.
The Claimant then resumed contact with the priest and further sexual activity took place. His private and professional life deteriorated and during this time, he continued his sexual contact with the priest. This ceased in 1999 when the priest was arrested as a result of allegations brought by another young man. The Claimant then gave a series of statements to the police. In 2000 the priest pleaded guilty to eight counts of sexual abuse, five to lie on file.
The Claimant began a new business in 2000, which prospered for the first three years. He took up a new career for a year, and he stopped drinking between 2003 and 2007. His business continued albeit not as successfully. In 2007 he began drinking again and he started a new business, which was not successful. He went into rehabilitation in 2009, which was successful and his life became more stable.
Platts J considered the Claimant’s evidence. Whilst he was obviously an articulate and intelligent man, it soon became apparent on cross examination that some of the accounts that he had given were not accurate and that he had known that they were not accurate when he gave them. For instance he had told counsellors at the rehabilitation centre that the abuse had started at 13 when it had started when he was over 16 and nearly 17.
Platts J considered the issue of limitation. He referred to section 33 of the Limitation Act 1980 and the case of A v Hoare  UKHL 6. A letter of claim had been sent on the 4th August 2011 and proceedings issued on the 29thNovember 2011. Platts J also referred to the following cases:-
· Cain v Francis  EWCA Civ 1451
· B v Nugent Care Society  EWCA Civ 827
In relation to section 33(3)(a), the Claimant’s reasons for delay, the Claimant had said in evidence that he only realised that he had been abused in 1999 when the priest was arrested. He also said that if was only after he had completed his rehabilitation at 2010 that he felt that he was able to confront the issues properly and seek advice from a solicitor and seek compensation. Platts J found that the delay between 1988 (when he was 21) and 1999 was both plausible and reasonable.
The period after 1999 was a little more difficult, but Platts J would accept the Claimant’s evidence that it was only after rehabilitation that the Claimant realised the effects of the abuse on him. There was a delay of two years following the end of rehabilitation and the issue of proceedings (two years) but Platts J did not think this period of great significance.
In relation to section 33(3)(b) the effect of the delay on the evidence, the priest had died in 2014 before a full witness statement could be taken from him. The Defendants said that his evidence was critical to the issue of whether the Claimant “consented” to the sexual contact, his pleas of guilty in the criminal court and the issue of vicarious liability. Some other witnesses from the material times were available but others were not.
Platts J said that the remaining sub paragraphs in section 33(3) added little to the process. The arguments from both sides were finely balanced. The reasons for the delay were entirely understandable, but the effect of the delay on the cogency of the evidence was clear. On balance, Platts J would disapply limitation.
Platts J then considered the issue of consent. The Sexual Offences Act 1956 provided that a boy under the age of sixteen could not in law give any consent which would prevent an act being an assault for the purposes of this section. Platts J said that this was not a defence which the priest pursued in the criminal court. Therefore he effectively admitted that the Claimant did not consent. He then considered section 11 of the Civil Evidence Act 1968 and the case ofHunter v Chief Constable of the West Midlands Police and Others  0AC 529 in which the court said that section 11 of that Act made the conviction prima facie evidence that the person convicted did commit the offence.
However the Defendant could prove the contrary. There was no authority of what constituted consent in a sexual assault civil claim. It was accepted by the parties that the age limit of 16 was irrelevant in a sexual assault case. The Claimant had capacity to consent. There were authorities from other contexts.
· R v Kirk  EWCA Crim 434
· Local Authority X v MM (by her litigation friend, the Official Solicitor) KM  EWHC 2003 (Fam)
· X City Council v MB, NB and MAB (by his litigation friend, the Official Solicitor)  EWHC 168 (Fam)
· Chattereton v Gerson (1980) 1 QB 432
Platts J made the following findings:-
· The Claimant was between the ages of 8 and at least 16, an emotionally vulnerable boy, who was drawn to the priest because of his position in the Church and the Scouts
· The first allegation of sexual abuse (which took place on summer camp had not been pleaded in the Claimant’s claim, but Platts J said that it indicated the way in which the Claimant’s relationship with the priest was developing into something sexual.There was a pattern of sexual contact which continued up until the Claimant was 31 years of age.
Platts J said that this was not an “all or nothing case”. A relationship which was consensual could become abusive and (although this was less common) vice versa. In his view, the relationship in this case had been abusive from 16 up to the time the Claimant went to University. After that time, he was able to make his own choices. The period of the assaults would therefore be between 1984 and 1987.
Platts J then turned to the issue of vicarious liability. He referred to the following cases which set out the two Stage test to be applied:-
· Catholic Welfare Society v Various Claimants  UKSC 56
· E v English Province of Our Lady of Charity  EWCA Civ 938
Stage 1 – was the relationship between Claimants and Defendants one that was capable of giving rise to vicarious liability?
Stage 2 – was there a sufficiently close connection linking the relationship of the priest and the Defendants and his act or omission?
The relationship between the church and the priest was sufficiently close for the purposes of Stage 1 of the tests set out in those cases. In relation to the Scouts, there was no link between the church and the Scouts save for that of the priest himself. Platts J said that the role of chaplain to the Scouts was clearly important, and he was suspended by the Scouts when his arrest came to light. The first stage was satisfied.
In relation to Stage 2, Platts J referred to:-
· Lister and Others v Hesley Hall Limited  UKHL 22
· Maga v Archbishop of Birmingham  EWCA Civ 256
The sexual assaults all took place away from Scout camps and premises, but during a time when the priest was chaplain to the Scouts. They had taken place at the priest's home and his presbytery at a time, when he was trying to integrate the Claimant into the church. Platts J said that looking at the overall picture, Stage 2 was satisfied as far as the church and the Scouts were concerned.
Platts J then considered the issue of causation. Three psychiatrists had been instructed by the parties, and had produced a joint statement. All agreed on the following:-
· The Claimant had an Alcohol Use Disorder which had been in remission since 2009. Prior to 199 he had symptoms suggestive of maladaptive personality traits in the context of his excessive drinking. Causation of his psychological difficulties was multi factorial involving both genetic and environmental factors, including a history of alcohol related problems in his family as well as abusive and dysfunctional family dynamics.The sexual assaults represented a betrayal of trust and were potentially psychological harmful
The Claimant’s case was that it was only after 1999 that the harm was caused by his realisation that the priest had probably manipulated him. The Defendants’ psychiatrists said that the Claimant’s problems were attributable to his family background and his alcohol abuse. Platts J accepted that the arrest and subsequent conviction of the priest in 1999 caused considerable emotional upset for the Claimant.
However there appeared to have been a period of stability in his life between 2003 and 2006 when he gave up drinking. He could not accept that the abuse was a significant factor in his relapse into drinking in 2007. Platts J would prefer the evidence of the psychiatrists for the Defendants to those of the Claimant. One of the Defendants' psychiatrists had said that personality was fully formed at the age of 16. Platts J would accept her evidence.
Platts J then turned to the issue of damages. He was not persuaded that the abuse had had the significant impact on the Claimant’s life or business that he claimed. He would reject the claims for past and future loss of earnings and the costs of rehabilitation treatment. Platts J would award £20,000 for pain, suffering and loss of amenity. The issue of contribution between the Defendants would be deferred until after the judgment was handed down.
Commentary - whilst the Claimant in this case did not succeed on all of his case, nonetheless he managed to overcome the limitation barrier after some considerable delay following the conviction of his abuser, and he obtained a finding that both the church and the Scouts Association were vicariously liable for his abuser's torts. Claims for loss of earnings in child abuse compensation claims can be very difficult to recover. As for the issue of "consent" it is not unknown for Defendants to raise that issue in child abuse cases. In the absence of clear authority on the point, the judge had to do his best and I think he opted for a common sense approach to a very difficult question. Nonetheless it is well known that abuse often stretches well past childhood into adulthood, particularly where the abuser has a "hold" over their victim.
The Times reports that a senior figure at Ampleforth public school is under criminal investigation for alleged sex offences against boys. The subject of the investigation has denied any wrongdoing.
On the 25th August, I talked about another report from Ampleforth concerning alleged child abuse. In that blog I talked about a school's duty to report alleged "misconduct" on the part of one of its teachers.
Today I address the issue of data protection concerns, when a school is asked to assist the police with their enquiries in a criminal investigation.
In these cases, the police will probably ask to see the school's records, and they may ask for the personal records of other pupils/staff who have been mentioned in the complainants' statements.
This kind of request raises data protection concerns, because a school's records may contain information that concern other people, who are nothing to do with the investigation or the police request.
When the police request such information, they will normally submit a data protection form to the school, specifying precisely what they want to see.
At its most basic level, the Data Protection Act 1998 forbids a school from disclosing other people's information except in certain circumstances, such in the context of a criminal investigation.
The first Data Protection Principle says (Schedule 1 of the Act):-
"Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless--
(a) at least one of the conditions in Schedule 2 is met, and
(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met."
"Processed" means disclosure to the police.
Schedule 2 of the Act describes the conditions necessary for processing i.e. disclosure of data. This includes (Para. 5) the administration of justice, or functions of a public nature. These categories would encompass a police investigation.
Schedule 3 of the Act relates to sensitive personal data. This type of information is racial/ethnic origin, political opinions, religious beliefs, trade union membership, physical/mental health, sexual life and criminal offences. Each of these may well be contained within the files requested by the police. A school can disclose this kind of data in circumstances similar to those in Schedule 2, i.e. a police investigation.
Furthermore Section 29(1) of the Data Protection Act 1998 states:-
“Crime and taxation.
1. Personal data processed for any of the following purposes--
a) the prevention or detection of crime,
b) the apprehension or prosecution of offenders, or
c) the assessment or collection of any tax or duty or of any imposition of a similar nature,
are exempt from the first data protection principle (except to the extent to which it requires compliance with the conditions in Schedules 2 and 3) and section 7 in any case to the extent to which the application of those provisions to the data would be likely to prejudice any of the matters mentioned in this subsection.”
Section 7 enables the data subject i.e. other pupils/staff to request details of what is being processed but they have to make the request first.
Section 29(3) of the 1998 Act also states:-
"Personal data are exempt from the non-disclosure provisions in any case in which--
(a) the disclosure is for any of the purposes mentioned in subsection (1), and
(b) the application of those provisions in relation to the disclosure would be likely to prejudice any of the matters mentioned in that subsection."
Section 29(3)(b) is important because if the school redacts other people's information, which was contained in the requested files, it could be prejudicing the police investigation. So if Pupil A (whose records are requested) names Pupil B as a potential witness in the case, then the redaction of Pupil B's name could amount to prejudicing the investigation. That is a situation that may require legal advice.
The Data Protection Act 1998 can be overridden by a court order. In civil compensation claims, where the Claimant wants to see the police file, then in my experience the police will expect that Claimant to secure a court order first of all.
Generally speaking, the police are extremely careful to restrict the results of their investigation to the prosecution, who are then under certain duties as to what they disclose to the court and to the Defence in a criminal case. The process is also subject to control from the trial judge. It is however, quite common now in criminal proceedings for a person who is making a criminal complaint and a civil compensation claim, to have their solicitor's file disclosed to the Defence. Moreover information about a witness and their circumstances can come out during the course of trial.
There are also other potential pitfalls. School files can contain information from the family and adoption courts. Again these are covered by data protection rules, but they also are covered by very strict rules contained within regulations and statutes which forbid their disclosure.
The Guardian carries a disturbing report on the exchange of indecent images between children.
The story comes from a Freedom of Information request submitted by the National Society for the Protection of Children to the police, which reveals that in the three years period between 2013 and 2015, some 2000 children have been reported for crimes linked to the possession, distribution, or production of indecent images of children.
Last year, a national debate began following the imposition of a criminal record on a 14 year old boy, who sent a naked image of himself by mobile phone to a female classmate. One commentator has said that the Protection of Children Act 1978 was made before mobile phones were invented, and that new rules are needed to avoid stigmatising and criminalising children. The NSPCC say that whilst children may see “sexting” as harmless fun, it can leave children vulnerable to blackmail, bullying or the attention of sex offenders.
What is the criminal law in this area?
The law for the protection of children in this area, is a great deal older than may be first thought. The Obscene Publications Act 1857, and its successors the 1959 and 1964 Acts may have had as their primary purpose, the protection of the public from any material that might “deprave and corrupt”, but they could and still are applied to child pornography offences. The original 1959 and 1964 Acts have been updated to deal with internet offences and they are still used in prosecutions.
The first specific mention of child pornography in statutory legislation appears in the Protection of Children Act 1978, which created the offence of taking or permitting to be taken an indecent photograph of a child. This is now the main means by which persons making or possessing child pornography are prosecuted. The 1978 Act has been extended by subsequent statutes, the Criminal Justice and Public Order Act 1994 and the Sexual Offences Act 2003. The 2003 Act created the offence of voyeurism, together with the offences of abusing children through or exposing them to pornography. It also contains an offence of “grooming” which is aimed at the grooming of children over the internet by means of “chat rooms.” More recently the Coroners and Justice Act 2009 created a new offence of possession of a prohibited image of a child.
Section 1 of the Protection of Children Act 1978 contains no mention of motive. If you possess or distribute an indecent photograph, that’s a crime. Contrast that offence with Section 1 of the Malicious Communications Act 1988, which makes it a crime to send an indecent electronic communication if the perpetrator’s purpose is to cause anxiety or distress to the recipient. One solution might be to amend the Protection of Children Act 1978, so as to allow a defence of harmless “motive” and restrict the defence to children under 16. The problem there is that if a 16 year old sends an indecent photograph to a 13 year old, it might be very difficult to prove an offence, in what might well have been the beginning of a campaign of sexual harassment. The alternative would be to keep the law as it is, and let the message go out to children in our schools.
It is now perfectly possible to sue someone for damages for encouraging you to send indecent images of yourself to another person, and exchanging text messages of a sexual content, as was demonstrated in or ABC v West Heath 2000 Limited and Another  EWHC 2687 (QB) which followed a UK Supreme Court decision, Rhodes v OPO  UKSC 32.
The civil courts now have a rich precedent of cases on the use or abuse of imagery.
Developments in the United States
This problem of sexual imagery has also been addressed in the United States, which enacted within the Violence against Women Act 1994 a section entitled the Mandatory Restitution for Sex Crimes. This mandates the issue of a restitution order for victims of all acts of sexual exploitation. An order for restitution directs the Defendant to pay the victim the full amount of the victim’s losses as determined by the court, which includes medical treatment, lost income, legal costs and any other losses.
In the case of United States v Hesketh the Defendant, a former Pfizer executive had pleaded guilty to possession and distribution of child pornography, although he himself had not participated in the sexual exploitation that produced the material. The victim “Amy” had been notified by the authorities that her picture was amongst those found in his possession and she applied to the court for compensation for the effect that his criminal behaviour had on her. The court made a restitution award of $130,000 in her favour following a negotiated settlement with the Defendant. Amy went on to receive further larger awards from other courts in the United Courts, when her image was discovered in the hands of other Defendants.
Unsurprisingly great concern has been expressed about the implications of these judgments. The original 1994 Act defines a “victim” as an “individual harmed as a result of a commission of a crime” but it does not appear to require that the victim be a person “directly and proximately harmed”. Therefore it is arguable that any kind of “harm” resulting from a qualifying offence is sufficient to create victim status. However other courts in the United States have held that there has to be some kind of causal connection between Defendants who possess pornographic images of children and the victims.
The liability of internet service providers
ISP’s have been well aware for some time of the risks of prosecution and/or civil liability for facilitating child abuse imagery. For this reason they formed the Internet Watch Foundation (IWF) in October 1996, which is funded by the European Union. Its aim is to restrict criminal content on the web, and it has succeeded in reducing potentially illegal content being hosted in the UK to less than 1 per cent. It also works with the Child Exploitation and Online Protection Centre. Most ISP’s are members of the Internet Service Providers Association and according to the ISPA Code of Practice, all member are obliged to register with the IWF. The Electronic Commerce (EC Directive) Regulations 2002 provide ISP’s with a defence to any criminal liability under the Obscene Publications Act 1959 and the Protection of Children Act 1978, providing certain matters are established.
Website forums and social networking sites provide the potential for children to be groomed and abused by paedophiles, or for inappropriate images to be posted that might distress a child. In theory a common law duty of care might lie on a website that catered for children as registered users, and that duty might be breached if for instance there were no means of reporting inappropriate activity, no appropriate age restrictions, no warnings against giving out personal information nor links to sources of help and advice. Causation and foreseeability are bound to be problematic in case of grooming and the defences available under the 2002 Regulations could in theory be utilised in a civil case. There is a reported case from Texas where a claim for negligence against “MySpace” for failing to institute safety measures to protect minors was dismissed. This case involved a child who met up with an abuser through the site, having lied about her own age on joining.
In addition, there may be some kind of contract between the website owner and the users, which gives the website owner some degree of control over those user, but it is doubtful whether such “control” would found a claim in negligence or contract, where a user abuses a child. In relation to any claim for defamation, the Defamation Act 1996 and the 2002 Regulations now give an ISP a defence to any action for defamation brought against it as a “publisher” although the website site might attract some liability.
The sending of an indecent photograph might well sound like innocent “fun” but regrettably it carries serious echoes of the kind of excuse put out by adult child abusers when they are finally caught. Few parents would approve of their child being sent such a photograph by another child. The question is how we deal with the issue going into the future.
Malcolm Johnson, Specialist Child Abuse Lawyer