The Times reports today on a move by government to get media websites to block children from sharing explicit images. The health secretary, Jeremy Hunt also wants mobile phone companies to tackle sexting amongst children. He made the point that the technology existed to allow social media platforms to block explicit images from young users automatically, following a request from their parents.
On the 9th September 2016, I talked about the criminal law of sexting.
On the 13th September 2016, I reported on a court decision from Northern Ireland involving the use of Facebook for "revenge porn".
A 14 -year old girl 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.
In the same blog, I reported on the case of MM V BC, RS and Facebook Ireland Limited  NIQB 60 15 June 2016 (again a case from the High Court of Northern Ireland).
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.
The government initiative is to be welcomed. 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.
The world of football is no stranger to controversy, but two weeks ago, it suddenly found itself driven down a steep and stony road, as the allegations of abuse are investigated by a number of police authorities. In this article we look at a particular type of abuser, whom I call the "career abuser".
Career abusers are well-known in the history of child protection. They are predatory in nature, and fundamentally recidivist. This means that they abuse in places or situations where opportunity will present itself. They may abuse a large number of victims over a long period of time, moving from place to place. Jimmy Saville is a case in point, but he has his predecessors. In 1997, Keith Laverack, a former senior social services manager was sentenced to eighteen years for abusing children over a period of some twenty years in Cheshire and Cambridgeshire. He was a former fellow of the University of Cambridge Department of Criminology and highly respected as an experienced social worker. In 2001 Alan Prescott, a former assistant director of social services, a magistrate and local councillor was sentenced to two years after admitting indecently assaulting four boys in his care, whilst a superintendent of a children’s home run by Tower Hamlets.
So are these allegations from the world of football, evidence of an even more sinister turn in the long litany of child abuse investigations in the United Kingdom? We need to bear in mind that whilst the experience of those brave men who have come forward, is painfully unique to each of them, the features of their abuse are very similar to those found in other cases. First of all, the career abuser will be able to convince those who employ him that he can fulfil his basic function of looking after children. Secondly like Jimmy Saville, the career abuser will have a certain charisma and he will be able to persuade parents to let him look after their children at his own home, where they may be greeted with an Aladdin’s cave of boyish diversions. Thirdly he may use a variety of ploys to groom and ensnare children, giving out expensive presents to children whose families are far from wealthy and promising them all manner of benefits. Fourth he will understand how to manipulate groups of children and adults, so that he can minimise the risk of exposure.
There is however a fifth feature on which we can only speculate. The parents of the victims may have no idea whatsoever as to what is happening, and so they are also victims. Their state of mind is not surprising, given that they entrust the care of their children to a highly respected institution within the community. It is the position of that institution, with its far greater resources and intimate knowledge of its own employees, which merits further scrutiny.
There is always the possibility that the abuser's activities may have become more than just a vague rumour at an early point in his career. It is also possible that those employing him found one day that they could no longer ignore the rumours. In nearly all of the cases that I have handled as a lawyer over the last eighteen years of so, there is substantial evidence that those who employed the abuser, or who at the very least allowed that abuser access to their premises had some inkling that all was not well. That inkling might take the form of an outright disclosure to the police, which was not pursued for lack of evidence. Alternatively, it might be a conversation between two children, which is then reported to an adult, which in turns results in a perfunctory investigation by the institution.
At this point, an institution with doubts might encourage an employee to move on with a good reference thus exporting what is essentially a major child protection risk elsewhere. This was something often seen in the Catholic Church, where a priest might be quietly moved to another parish, or despatched to a treatment centre and then put back into circulation. In one case that I handled, the priest in question was only permitted to minster to adults, whom he proceeded to abuse in just the same way as he had the children in his former parish.
The question then arises - could the abuser's activities have been stopped? It is certainly true to say that the risk of child abuse was not as well understood in say, the mid eights as it is now in 2016. At the same time, we need to bear in mind that society’s acknowledgement that children need to be protected from abuse goes back at least as far as Victorian times. The Offences against the Person Act 1861 (some of which is still in force) contains specific offences in relation to children, which reflect their particular vulnerability. ThePrevention of Cruelty to, and Protection of, Children Act 1889 contains provisions that were designed to prevent the exploitation and abuse of minors. The Children and Young Persons Act 1933 created the concept of the “Schedule 1” offender. Section 14(4) of that Act stated that when any offence committed in Schedule 1 was a “continuous” offence, it would not be necessary to specify the date of the acts constituting the offence.
This crucial sub-section reflects the reality of child abuse, and the difficulty that children have in making disclosures. This is a hidden crime that may take place over many years, with numerous incidents that cannot be individually specified but all of which have a cumulative and devastating effect on the child, and eventually the adult.
Moreover, court records and newspaper reports from the eighties and previous decades show that the sexual abuse of children in and out of institutions was a crime that was prosecuted by the courts. In the mid eighties, the main criminal statute on sexual offences was the Sexual Offences Act 1956. This had been bolstered and extended by a series of Acts including theProtection of Children Act 1978 which deals with child pornography. These new statutes culminated in the Sexual Offences Act 2003 which gave the criminal law relating to child abuse and sexual offences in general a major overhaul and included the concept of “grooming” a child as well as the offence of an “abuse of trust”.
At the same time, there was a rudimentary system of child protection, which indicates that there was some understanding of the risk to children from offenders. By way of example, the Criminal Records Office (the forerunner to the Criminal Records Bureau) was being used by childcare organisations from at least 1965. Prison authorities would notify local authority social services departments of the release of men convicted of incest. In 1975 these arrangements were extended to the release of persons convicted of offences against children in the home. From 1982, social services and certain other statutory agencies (such as the probation service) had the ability to check with the police for a person’s criminal record. In the same year, police checks for childminders were instituted and later widened to other categories of persons working with children.
Schools had the benefit of a system that could record a concern based on something other than a criminal conviction, a concept that is now firmly enshrined in current safeguarding law. List 99 was a list prepared by the Department for Education and Employment. It listed people barred or restricted from teaching or working in schools, and operated under section 218(6) of theEducation Reform Act 1988, which gave the Secretary of State power to make directions barring or restricting employment of unsuitable people by certain types of schools. Local authorities and voluntary organisations were also able to check with the Department of Health Consultancy Index. This provided information on a register of persons compiled from police reports, local authority, voluntary organisation and List 99 reports.
As time went by and the gaps in the system were exposed by various criminal prosecutions and inquiries, the system began to grow into something more comprehensive culminating in the present Disclosure and Barring Service, which operates under the Safeguarding Vulnerable Groups Act 2006. We also have a comprehensive national system for the management and monitoring of sex offenders. In addition, childcare organisations are expected to have robust child protection policies in place, which they should implement where appropriate in consultation with the authorities. In 2001, the Football Association put in place new rules to protect children, requiring adult and junior teams at all levels to have a trained safeguarding or welfare officer.
All of these statutory protections have come too late for these survivors. Former Football Association chief executive Mark Palios, now executive chairman at Tranmere Rovers, has said that football is now in a "better position today than twenty or thirty years ago". However the point has been made that amateur football clubs are still very vulnerable. I have heard anecdotally that abusers have tried to infiltrate clubs where they know that checks are lax.
In the meantime, we can judge the seriousness of the problem by the comments made by its top players. Danny Murphy, a former England midfielder said that the football environment is "a perfect breeding ground for anybody who wants to do things to children", a sentiment echoed by former Chelsea and Scotland winger Pat Nevin.
It is to be hoped that the Football Association will grasp the nettle and institute an inquiry. This will obviously have to await the many police investigations and prosecutions that we can now expect. One of the many criticisms that is made of the Inquiry into Institutional Child Sexual Abuse is that it is examining evils that have long since been remedied. That is to miss the point that we owe it as a society to let survivors of abuse tell their story, and have that story taken seriously.
Moreover, the lessons that we have learned, require repetition. We delude ourselves if we believe that we are in some way safer nowadays. Society and individuals need the courage to keep them from our children.
Children should never have to walk alone again.
Malcolm Johnson, Specialist Child Abuse Lawyer