When I last reported on the subject of the Forum, a meeting had been set between Claimants' and Defendants' to try and hammer out a joint Pre Action Protocol. However prior to that meeting, Master Victoria McCloud then wrote to the Forum, to explain that she could no longer play a role.
So, the Group was left without judicial support for the time being. Nonetheless the Claimants offered to meet with the Defendants, and a date was set for the 9th May 2017 at the offices of BL Claims to discuss the Protocol. Prior to that meeting, the Claimants' team had meet to discuss and agree their joint approach, which is set out in the present Claimants' Draft Protocol.
Sarah Erwin-Jones of Browne Jacobson and Adam Weitzman QC of 7 Bedford Row kindly agreed to attend. It is not clear at present how much "buy in" there was from the Defendant firms and it was made clear neither had authority to bind any firm, insurance company or institution.
The minutes of that meeting have not yet been agreed. However, these are the main points:-
"7. PRE MEDICAL REPORT OFFERS
7.1 There shall be no offers of settlement made by the Defendant prior to the service of any expert medical evidence unless specifically invited in writing by the Claimant."
The Claimants pointed out that the whole idea behind the protocol was the early provision of disclosure and information to the Defendants. If this was not agreed, then the Claimants would simply withhold that disclosure/information until they were ready to draft a full Letter of Claim. There was no point being open about a claim from the outset, if the Claimant was going to be wrongfooted by the Defendant. The Defendant answer to this was that Part 36 allowed for a court to vary the normal consequences of a Part 36 offer accepted late.
The objection to Clause 7 led to a discussion as to what would be the "trade off" for the Defendants accepting paragraph 7. In other words, what would they accept in return for their agreement to this Clause?
Two options were suggested:-
The Defendant makes a pre-medical report Part 36 offer. The Claimant then obtains a medical report. If the Claimant then wants to accept the Defendant's offer, then the Claimant doesn't have to pay the Defendant's costs out of his damages, i.e. both sides drop hands 21 days from the date on which the Part 36 offer is made.
If the Claimant accepted a Part 36 offer late, having obtained medical evidence and disclosed it, then he could only recover local court rates, i.e. no enhanced rate, throughout the case.
The day after the meeting, on the 10th May 2017, Master McCloud wrote to the entire Group again. She explained that her earlier concern was, understandably, that her involvement might have appeared to be "official". Alternatively it might have led to the position where, say, a solicitor relied on the protocol, but was then criticised by a different judge for using it or part of it.
Master McCloud explained what whilst she would not be able to engage in the Protocol work at a detailed level, she wanted to be kept informed. If both sides could agree to a Draft Protocol, then she would be happy in that event to pass it on to the relevant members of the Rules Committee to invite them to consider it as a joint claimant and defendant and stakeholder suggestion.
The next step is for Claimant firms to agree on which Option to put to the Defendant firms. We can then set a further meeting.
The BBC carries a disturbing report of a care home, where a number of carers have been convicted of the abuse of adults with learning difficulties.
The court heard that residents at Vielstone near Bideford, in Devon, were routinely punished by being held in empty rooms without food, heating or a toilet. The allegations relate to abuse in 2010 and 2011.
What is striking is the number of carers convicted - thirteen in total.
The prosecutor said that this was not "one-off " abuse but organised and systemic abuse of people with learning disabilities.
I work with a number of clients with learning difficulties. Very often, abuse can have a devastating effect on their state of mind, which already has to cope with the real disadvantages that they face in society.
See my blog below - “Judgecraft” when a person has Asperger’s Syndrome
I was given a fascinating article by Professor Penny Cooper of the University of London and 39 Essex Chamber and Clare Allely of the University of Salford and Gothenburg University.
The article is published in the Northern Ireland Legal Quarterly (68(1):35-38 and it is entitled “You can’t judge a book by its cover:- evolving professional responsibilities, liabilities and ‘judgecraft’ when a party has Asperger’s Syndrome”.
Sadly, in my own practice of child abuse compensation claims, people with learning difficulties are often vulnerable to abuse and the effects of that abuse can wreck their what is a difficult interaction with society.
The writers begin by identifying Asperger’s Syndrome as an autistic disorder within the Diagnostic and Statistical Manual of Mental Disorders which was developed and is maintained by the American Psychiatric Association. There is now an Autism Act in Northern Ireland which has amended the Disability Discrimination Act 1995, and has removed any doubt that autism is not a disability.
The writers refer to a number of cases where a diagnosis of Asperger’s Syndrome has been to the court’s decision. The first of these is Patrick Galo v Bombardier Aerospace Case Refs 751/13  IT700/14. In that case the Court of Appeal in Northern Ireland laid down a number of principles to be followed when one of the parties in a case suffered from disability. That included having an early “ground rules” hearing where the court meet to discuss issues such as how the disabled person’s evidence is to be taken.
The writers also discuss the lawyer’s responsibility to identify a client’s disability. This can be very difficult indeed with certain conditions. Certainly, there is evidence to show that the police and the Crown Prosecution services something miss this issue.
The article moves on to the identification of Asperger’s Syndrome. Few lawyers are trained to spot this, but the writers give some brief pointers around social interaction and social communication.
They then move to identify a number of cases where the courts have made allowances for parties with Asperger’s Syndrome, and the various methods employed to ensure that there is a fair hearing. In one case, the Court of Appeal of England and Wales found a jury’s verdict to be unsafe because they jury had not known that the Defendant had Asperger’s Syndrome. That condition made him evasive with questions, because he was pre-occupied with matters of detail.
Having worked with a number of clients with learning difficulties, I found this article an eye opener. I recommend it to any lawyer who is dealing with any such client.
In February 2017, I wrote an update on 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 or Defendants.
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. HALF now consists of over 80 members from both the Claimant and the Defendant side of litigation in this area. Essentially all the main players in this area of work are represented.
Following meetings between Claimant and Defendant law firms, a number of common issues were hammered out. This then led to the production by the Claimant group of a Draft Pre Action Protocol for Historic Abuse Litigation claims, which was then circulated around the Forum. The Defendant firms also produced their own protocol.
Briefly the Claimants' Protocol covered both cases involving both vicarious liability claims (i.e. abuse by care workers) and "failure to take into care" (i.e. claims against local authorities for breach of duty to a child in the community). The Defendants' Protocol only covered vicarious liability claims. The Claimants' Protocol very much followed the model of the existing Personal Injury Pre Action Protocol, but included features such as disclosure of social services records, the provision of undertakings and limitation moratoriums. It also allowed for a "Letter of Initial Notification" which would alert a Defendant to the existence and bare elements of a claim, but would precede the full Letter of Claim.
The emphasis of the Protocol was very much on getting the information that the Defendants needed to assess the claim, without the need to issue expensive court proceedings. In failure to take into care claim, the Protocol recognised that the disclosure of social services notes, was a lengthy and difficult process for Defendants, where their Data Protection duties would conflict with their duties under the Civil Procedure Rules.
On the 21st February 2017, the law firms and counsel attended a meeting at the offices of Berrymans Lace Mawer in London. The meeting was chaired by Master McCloud. At that meeting, the Claimant and Defendant firms were asked to assemble a small team to discuss agreement of a Protocol. The intention was that following that meeting, a voluntary Protocol could be produced, to be used by Claimants and Defendant in litigation and in time, it could be incorporated into the Civil Procedure Rules.
For the time being, standard directions have been left out of the process.
It was following that meeting that Master McCloud wrote to the Forum and said that she could no longer steer the Group.
The Group is very grateful to her for her initiative, and her work in putting this Forum together.
What has happened now, is that the Claimant and a couple of Defendant firms have agreed to a meeting on the 9th May 2017 at the offices of BL Claims in London, to discuss the Protocol. The Claimant firms will be sending myself, David Greenwood of Switalskis, David McClenaghan of Bolt Burdon and Justin Levinson of 1 Crown Office Row along to represent the Claimants' interests. At present we have yet to hear from the Defendant firms as to who they will send. It is not clear at present how much "buy in" we have from the Defendant firms or precisely what the meeting will achieve.
However the discussions between both sides are at least continuing, and there still seems to be great interest from Defendant firms in agreeing a protocol. The next step following the meeting will be to approach the Civil Procedure Rule Committee to see if they will consider any new Protocol.
More news soon.
Last week, the Times carried a disturbing headline “Facebook publishing child porn” followed by a lengthy article illustrating the kinds of images that journalists found on Facebook. There are also references to Facebook groups exchanging child abuse imagery. Later on, in the same edition of the newspaper, there is a leading article entitled “Face Facts”. It makes the point that if a newspaper were to publish cartoons of children performing sex acts, it would be the subject of outrage and could well end up in court. The Times says that Facebook has apparently been hosting such images with impunity even after those images have been identified and reported to them. In addition, it is alleged that the company has been hosting images and news put out by terrorists. Julian Knowles QC, a barrister at Matrix Chambers has said that it is “very strongly arguable” that some of this content is illegal. What is suggested is that Facebook is at risk of committing criminal offences in circumstances where it has been made aware of such images on its website, but has failed to remove them. Consequently, the company might be regarded as “assisting and encouraging” the publication of child pornography.
However, Facebook did remove the offending imagery after being contacted by the newspaper. Currently there are no investigations into the company itself. Plainly the police and the Crown Prosecution Service do not regard companies such as Facebook, as committing any kind of criminal offence.
So, what is the law relating to child pornography, and is the charge against Facebook fair?
First of all, we need to remind ourselves that there are appropriate ways of describing this ghastly crime, one of which is child abuse imagery. The Internet Watch Foundation (of which Facebook is a member) exists to root out child sexual abuse on the internet. They put out the following statement on their website:-
“We use the term child sexual abuse to reflect the gravity of the images and videos we deal with. Child pornography, child porn and kiddie porn are not acceptable descriptions. A child cannot consent to their own abuse.”
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 be and are still applied to child abuse imagery offences. The original 1959 and 1964 Acts have been updated to deal with internet offences and they are still used in prosecutions. See Section 168 of the Criminal Justice and Public Order Act 1994 which amends section 1(3) of the 1959 Act.
What precisely does obscene mean? Section 1(1) of the 1959 Act says:-
“(1) For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.”
There is a “public good defence” – to the effect that legitimate works of art, news, documentaries and the like are not illegal if they contain obscene material. Section 2 of the Act says that publication of such an article is illegal, and a person publishes according to section 1(3) who “distributes, circulates, sells, lets on hire, gives, or lends it, or who offers it for sale or for letting on hire”. The Act has been updated to include electronic publication.
The first specific mention of child abuse imagery in statutory legislation appears in the Protection of Children Act 1978. Section 1(1) makes it an offence to take, make, distribute and show an advertisement of indecent photographs or pseudo-photographs of children. This is now the main means by which persons making or possessing child abuse imagery are prosecuted. Downloading or viewing an indecent image of a child from the internet has been held to be an act of ”making”’ under the 1978 Act.
The 1978 Act has been extended by subsequent statutes. The Criminal Justice Act 1988 Section 160(1), outlaws the mere possession of indecent photographs or pseudo-photographs of a child. The Criminal Justice and Public Order Act 1994 extended the definition of “photograph” to data stored on a computer disc or by other electronic means and “pseudo-photographs” namely images whether made by computer graphics or otherwise which appeared to be photographs.
The Sexual Offences Act 2003 created 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.” The relevant sections are Sections 12, 14, 15, 47-51 and 67 of the Sexual Offences Act 2003.
Section 63 of the Criminal Justice and Immigration Act 2008, prohibits the possession of an extreme pornographic image. Section 62 of the Coroners and Justice Act 2009 criminalises the possession of prohibited images of children, namely computer-generated child sexual abuse images, as well as cartoons and drawings involving child sexual abuse. Some of the images that appear in the Times article last week would come under this definition.
So how could Facebook be said to be “assisting and encouraging” the publication of child abuse imagery? Facebook is simply accused of failing to act to remove the offending material in a timely fashion. Their primary defence would be that their internet platform is not covered by any of the above statutes. They are not taking, making or distributing indecent images, nor do they “possess” any such images. There is a raft of other defences available to them, including the defence available under Section 2(5) of the Obscene Publications Act 1959 which exonerates the Internet Service Provider providing it can be proved that it did not examine the offending material; and had no reason to suspect that the material was offensive in the first place.Section 50 of the Sexual Offences Act 2003 contains the offence of “arranging or facilitating” child pornography but this offence has to be intentional. The words “assisting and encouraging” come from Part 2 of the Serious Crime Act 2007. Section 44 contains the crime of “intentionally encouraging or assisting an offence.” Section 45 goes further – it defines an offence of “encouraging or assisting an offence believing it will be committed.” However, Section 50 of the 2007 Act contains the defence of acting reasonably in the circumstances.
Further, despite the acceptable-use policies in place for Internet Service Providers (“ISP’s”), the EU Directive 2000/31/EC on electronic commerce (implemented into UK law by the Electronic Commerce (EC Directive) Regulations SI 2002/2013) exempts ISP’s from liability when they unknowingly provide access to offensive material. This means that ISP's cannot be placed under a specific duty to monitor general content. They are simply the wall on which messages are posted. On the other hand, the Directive also defines the circumstances under which an “Information Society Service” will be liable for unlawful content communicated by a third party. Unlawful content would include obscene and terrorism-related content. Under Regulation 19, if an Information Society Service has actual knowledge of the content's unlawfulness, or hosts material that it knows or is apparent to it is unlawful, then it must act expeditiously to remove or disable access to the content or risk incurring liability.
However, in practical terms, it appears that there is no appetite within the police or the Crown Prosecution Service to mount a costly prosecution against Facebook. It would be peculiar if they did, since the police, Facebook and the Internet Watch Foundation all work together to remove this kind of content.
However, the Times has a valid point, particularly as the responsibility of social media platforms has become of increasing interest to the government. 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. This year, the Times reported that ministers intended to summon Facebook, Twitter, Apple and others to Whitehall, to demand that they develop new technological solutions similar to those used to thwart child abusers 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. The Children's Commissioner, Anne Longfield has said that the "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. She 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.
Moreover, the pressure on companies such as Facebook is not merely political. Recently a 14 -year old girl brought a civil 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 was 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. Facebook argued that the company always took down the picture when it was notified to them. They relied on European Directive 2000/31/EC, to which we referred above. 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”. In another case, MM V BC, RS and Facebook Ireland Limited  NIQB 60 15 June 2016 (another case from the High Court of Northern Ireland), the Plaintiff was the victim of “revenge porn” which appeared on Facebook, who in turn were brought into the action in order to preserve information on their databases.
It might be said that governments have an agenda, which goes wider than curbing the appearance of child abuse imagery and terrorist material on sites such as Facebook. For instance, there is the concern about “fake news” and calls for children to be “educated” in what is fake and what is not. Governments all over the world have realised the power of social media, and the way in which it circumvents established media.
Facebook itself has a clear and published policy of removing content, disabling accounts and working with law enforcement when it believes that there is a genuine risk of physical harm or direct threats to public safety. That includes content that threatens or promotes sexual violence or exploitation. It has developed a series of “Community Standards” which it uses to judge content. The corporation is also (like many other social media platforms and internet companies) a member of and a financial supporter of the Internet Watch Foundation. This is a charity, founded in 1996 by the Internet industry in co-operation with the Home Office and the police. The Foundation works internationally with the global internet industry and the European Commission to make the internet safer by removing images of child sexual abuse and criminal obscene adult content. It relies on reports from the general public, but it also actively seeks out offending material, using the latest technology. More than 1,000 webpages are assessed and removed each week by their analysts. The Foundation claims that as a direct result of their work, child sexual abuse content hosted in the UK has reduced from 18% in 1996 to below 1% today and content hosted in the UK is removed quickly – usually in less than 2 hours. It also works with local, national and international police to help them identify and rescue child sexual abuse victims. In addition, there is the UK Council for Child Internet Safety. This is a group of more than 200 organisations drawn from across government, industry, law, academia and charity sectors that work in partnership to help keep children safe online. The Council was established in 2010 and discusses and takes action on topical issues concerning children’s use of the internet. I could not find any mention of the work of the Foundation in the articles that appeared in the Times last week.
There is no question that Facebook has the will and the capacity to take down material and does just that on a regular basis. The complaint from the Times was that certain material had been there too long, despite Facebook being alerted and that it was alarmingly easy for groups of people to set up illegal websites.There are concerns about the way in which the Internet Watch Foundation operates. I read a fascinating article published in the International Journal of Law and IT (Int J Law Info Tech (2012) 20 (4): 312) by Emily Laidlaw of the University of East Anglia. She describes the work of the Internet Watch Foundation, and points out that it is in effect a form of self-regulation introduced as an alternative to government legislation.
Self-regulation of industries is common in the United Kingdom. The regulation of the way in which insurance companies compensate victims of uninsured and untraced drivers is handed by the Motor Insurers’ Bureau, a company limited by guarantee set up and funded by the insurance industry itself, but overseen by the government and (at present) the European Community. Many professions are self-regulated.
Emily Laidlaw says that the UK’s trade association for Internet Service Providers, the UK Internet Services Providers Association defers to the Internet Watch Foundation with regard to filtering of unlawful content. Members of that Association are bound by its Code of Practice, which states that membership in the Foundation is not mandatory. However, it makes clear that the Association co-operates with the Foundation and that its procedures in this regard are mandatory for Association members. The problem is that the membership arrangement could be tightened up and made more transparent. The Foundation is that it is carrying out a public function, in a private capacity which means that it may not be covered by Human Rights legislation. A request under the Freedom of Information Act cannot be made against it. There are also concerns that by blocking entire websites with legal and illegal content, the Foundation may have had an adverse effect on freedom of speech.
My own view is that the debate is not just about illegal imagery and material; it is also about the ability of abusers and terrorists to groom vulnerable people via social media platforms. We also need to examine the use of the internet to perpetrate racist and hate based crime, as well as other types of offences. What is needed is a comprehensive and transparent form of regulation. I don’t pretend for a moment that such regulation would not be anything less than a highly expensive and technical task.
Another idea would be to impose a form of statutory liability on social media platforms to try to ensure that their sites are not used for the kinds of imagery such as “revenge porn” or child abuse. These images cause enormous damage to their victims. The law could impose a duty on a social media platform, along the lines of that contained in the Occupiers Liability Act 1957. This decades’ old statute 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.” That statutory duty could be judged along the lines of the social media platform’s duty to remove offensive material within a certain time.
Certainly, the pressure is on, for social media platforms such as Facebook and we can expect legislation in the future.
The Times reports today on the case of a monk said to have run a weekly "sex club" for young boys, who was allowed to remain at the Ampleforth College.
This follows on from a story on which I reported back in August 2016, concerning a teacher 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.
Section 218(6)(a) to (c) of the Education Reform Act introduced 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.
I have been sent two reported decisions from New Zealand on anonymity for victims of abuse by Sonja Cooper, a lawyer acting for child abuse victims in that jurisdiction.
The first is Y v Attorney General  NZCA 474. This was an appeal against a judge's decision not to grant anonymity to witnesses, who were alleging non sexual abuse. The court said that it would not grant anonymity to any class of witnesses, but rather that each witness had to present his or her own evidentiary basis for anonymity.
The next case is X v Attorney General  NZCA 475. This involved the application of an organisation providing care for young people for the suppression of its name. The organisation argued that a) that young people in its care could come to harm b) its staff would face difficulties c) it would suffer irreparable damage to its reputation. The New Zealand Court of Appeal decided the judge who originally granted the order was right to do so. The loss of anonymity would harm young people in its care, particularly as those young people had no interest in these proceedings.
At present in England and Wales, it is usually relatively straightforward, getting an anonymity order in child abuse proceedings. These decisions, if taken into our law, might open the way for organisations to obtain anonymity for themselves and for courts to deny anonymity to certain witnesses in child abuse cases.
Three stories about comments made by judges in court have caught the attention of the media recently.
The Times reports today on page 24 that the Judicial Conduct and Investigations Office has received complaints about a judge who said that a woman who was attacked by her husband was not vulnerable because she was "plainly intelligent". The judge sentenced the man to an 18 month suspended sentence at Manchester Crown Court.
We also have the story again on page 23 of the Times of the judge in a rape case who warned that drunk women were putting themselves in danger. The survivor is now reported to have said that the judge was right.
Finally there is the story of the judge who warned teenage girls during a court hearing never to send pictures of themselves unless they were "fully clothed and in decent pose" - after he sentenced a man for grooming.
Judges have a difficult job and they are expected to be conscious of the effect of what they might say in court. It is true that their comments are often taken out of context by the media, so in the case of the judge who sentenced the perpetrator of domestic violence, we don't know what else was said during the hearing by that particular judge.
We lawyers are conditioned to approach cases in an objective way (there is a reason for that), and sometimes this approach may come across as callous, uncaring and arrogant to someone who has suffered appalling violence. It may also come across as patronising. I observed this many years ago, when a survivor of abuse was brought along to view a High Court case management conference in a child abuse litigation case and left furious at the cold and calculating way in which his and other survivors' cases had been handled. What might been described as efficient case management obviously came across very differently to him, and after all he was there at the time of the abuse - we weren't.
Likewise the judge who gave advice to teenagers, might be said to be stating the obvious but then again, can we expect children and young people to understand the level of manipulation employed by abusers on and off the internet? I think not, given that history demonstrates that many adults charged with child protection, struggle with the concept of the way in which abusers work.
However these case are supremely sensitive, and there's a message that goes out from the courts. All manner of intelligent people can be very vulnerable in a domestic violence situation. It's not about just getting up and walking out. Women can't be blamed for getting drunk. They should be safe in all situations. Finally many children and young people may have some appreciation of the risks of the internet, but we can't assume that they do.
The Court of Appeal has now handed down judgment in Criminal Injuries Compensation Authority v First Tier Tribunal and Y  EWCA Civ 139.
Y's mother was abused by her own father, who later pleaded guilty to charges of incest. DNA tests showed that Y’s grandfather was in fact also his father. Y’s mother had been awarded compensation from the CICA in her own right in respect of the assaults on her by her father. Y was born with a genetic disorder as a result of his parents' consanguineous relationship.
Medical evidence shows that there is 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. Y brought a claim to the CICA, which was refused because the CICA decided that Y's disorder was not a "personal injury" for the purposes of their 2008 Scheme. The First Tier Tribunal upheld that decision. However, in April 2016, Judge Levenson in the Upper Tier Tribunal decided that Y's disorder was a "personal injury" within the terms of the CICA Scheme. The CICA appealed to the Court of Appeal.
Sadly the CICA's appeal has been granted. The Court of Appeal decided that Y had not suffered an injury under the CICA 2008 Scheme and consequently, he could not recover compensation.
Lord Justice Leveson said:-
"For my part, I would construe the 2008 Scheme to mean that the victim of the crime of violence in this case could only be M (with the result that she was entitled to receive compensation for the personal consequences to her of her father’s actions). To suggest that Y, who had not been conceived at the time of the crime, was himself a victim of crime (the nature of the crime involved being difficult to discern) or that it is possible to assess compensation on the postulate that Y would otherwise have been born without disability and so should be compensated for the genetic disorder from which he suffers is to go beyond that which the Scheme was seeking to cover. That M (and mothers in her position) should receive compensation to reflect the undeniable difficulties which she has experienced and continues to experience in carrying the responsibility for caring for a disabled child born as a result of the sexual crime of violence committed against her is another matter and one that should be addressed by the Secretary of State: for my part, it is difficult to see why, as a matter of fairness, the common law approach adopted in such cases as Parkinson v St James and Seacroft University Hospital NHS Trust should not be incorporated into the Scheme."
Malcolm Johnson of BL Claims, the solicitor advocate who represented Y before the Court of Appeal said that this was a bitter result for Y and his mother, who had fought so long and hard for compensation.
However, the Court of Appeal said that the CICA Scheme should address the position of mothers who find themselves caring for a disabled child born as a result of a sexual crime.
Lord Justice Leveson also said in his judgment:-
"I cannot leave this case without again repeating my profound sympathy for M and the difficulties that Y experiences. That cannot, however, blind me to what I consider as the only proper construction of the 2008 Scheme. In the circumstances, I would allow the appeal and restore the order of the FTT."
Mr Justice McFarlane in the Court of Appeal also said:-
"The courts are, sadly, familiar with cases in which both the physical and long-term emotional impact of child sexual abuse are all too plain to see……….Although, as a matter of law, we have, in my view, no option but to decide against this claim, I fully understand why M has brought it and I admire her for doing so. She is a survivor who continues to care for her needy and highly disabled son and is a lady who, despite my tenuous encounter with her, commands my great respect."
The Serious Crime Act 2015 received Royal Assent on 1 March 2015.
Section 67 makes it an offence in England and Wales for anyone over 18 to communicate with a child under 16 for sexual gratification. It amends the Sexual Offences Act 2003.
"15A Sexual communication with a child
(1) A person aged 18 or over (A) commits an offence if--
(a) for the purpose of obtaining sexual gratification, A intentionally communicates with another person (B),
(b) the communication is sexual or is intended to encourage B to make (whether to A or to another) a communication that is sexual, and
(c) B is under 16 and A does not reasonably believe that B is 16 or over.
(2) For the purposes of this section, a communication is sexual if--
(a) any part of it relates to sexual activity, or
(b) a reasonable person would, in all the circumstances but regardless of any person's purpose, consider any part of the communication to be sexual;
and in paragraph (a) “sexual activity” means an activity that a reasonable person would, in all the circumstances but regardless of any person's purpose, consider to be sexual."
However the section has yet to be enacted, which means although it is on the statute books, police are unable to use it to arrest adults sending sexual messages to children.
The section was introduced in order to toughen up the law against grooming offences. Let us hope it is enacted soon.
Malcolm Johnson, Specialist Child Abuse Lawyer