Was Panorama fair to the victims of child abuse?

Following the airing of Panorama’s programme entitled xxxxx The Metropolitan Police have put out a statement that the Panorama programme which sought to undermine their Operation Midland Investigation into Dolphin Square might prevent other victims from coming forwards, and undermine their existing investigation. Peter Garsden gave an interview this morning to BBC London. Read more here. 

http://www.abuselaw.co.uk/news/abuse-articles/was-panorama-fair-to-the-victims-of-child-abuse/

Will Panorama attack the credibility of victims of abuse?

Read Peter’s blog in which he comments on the Panorama Programme entitled “The VIP Paedophile Ring; What’s the Truth?” which will be aired on the 6^th October 2015.  He outlines his concerns that the media may be mixing up concepts of corroboration with the collapsing of police inquiries due the allegations being untrue and the inevitable impact this will have on victims of abuse that have not yet come forward.  Visit http://www.abuselaw.co.uk/news/abuse-news/will-panorama-attack-the-credibility-of-victims-of-abuse/

Why was the sentence of Rolf Harris and Stuart Hall too lenient?

The law relating to sexual offences is anachronism, in that if a paedophile is charged today with an offence committed many years ago as is the case with Rolf Harris, Stuart Hall, Max Clifford etc. the law says that they have to be charged with the offence which was the law at the time, and if convicted they must be sentenced in accordance with the guidelines which applied at the time.

Because the view of society and the judiciary towards offences of a sexual nature even towards children was much more lenient in the 1970's, then the resuiltng sentence in 2014 will be too lenient.

At one time there would have been nothing that could have been done to correct it, whereas now a reference can be made to the Attorney General, who has 28 days to decide whether or not the sentence was too lenient and should be referred to the Court of Appeal.

In the Stuart Hall case the reference was made because the judge only gave him 2 years. The Court of Appeal increased the sentence to 30 months. The CPS, as if to compensate for the length of sentence even on appeal, then proffered additional charges.

Hall went to Court and was charged under old laws of indecency. Prosecution Counsel addressed the jury incredulously because, under this old law (the offences having taken place in the 1960's & 1970's) Hall was entitled to defend on the basis that the young adolescent girls had consented to the offences. He was acquitted on most of the charges on this basis even though the girls were all under age.

If Hall had been charged under modern day sexual offence legislation, he would not have been able to run this defence. The law on consent has changed diametrically. Now there is a presumption that vulnerable adults have not consented, thus putting the burden of proof on the accused to show that the victim has consented.

The consent defence is, however, only available for serious offences such as rape.

When sentenced, the judge in the Harris case had to consider what the sentencing guidelines would have been when the offence was committed. The maximum sentence for some of the offences of indecent assault under the Sexual Offences Act 1956 is 2 years. If Harris had been charged under the present day version of the Sexual Offences Act 2003 then the maximum sentence for some of the charges would have been life.

The Sentencing Council has only just published new guidelines relating to 54 Sexual Offences which came out in April 2014. Following the link to read them for yourself in more detail - http://
sentencingcouncil.judiciary.gov.uk/about/sexual-offences.htm

So what is the rationale?

1. It makes no sense to use out of date criminal offences which are out of step with modern law to prosecute sex offenders. We are not taking them to Court in the 1970's
2. The guidelines seem to follow dyed in the wool criminal law principles without thinking of the consequences.
3. The recent spate of historical abuse allegations seem at odds with the principles
4. There are arguments and some sense in thinking of a change in the law. particularly if the effect of the guidelines is the referral of two recent cases to the Court of Appeal because sentences in accordance with the guidelines are deemed to be too lenient.
5. The cost of appeals to the Court of Appeal must be born in mind
6. The analogy of the logic would be that if someone was prosecuted for murder committed in 1962 before the abolition of the death penalty for murder, then one should use the sentencing guidelines for 1962 which was hanging? So hang the accused?

I was honoured to have debated the above point with Vera Baird on the Today programme yesterday morning on Radio 4. Vera justified the principle of sentencing by circumstances at the time of the offence, on the basis that the accused is influenced as to the consequences of committing a crime at the time of the offence, namely in the recent cases, decades ago. It seems to me to be a weak argument when faced with the drama of celebrity sex offenders getting too lenient a sentence.

We will see whether there is an appetite for a change in the law.

Is it reasonable to advertise for Savile Compensation?

Under normal circumstances a formal advert appearing in the business section of the Times and the Mirror as ordered by the High Court, Chancery Division, for any creditors of the estate of James Savile would not raise an eyebrow. Why then did it become front page news? Because it invited any Claimants who wished to claim compensation from Jimmy Savile’s  estate, who had not yet come forward, to notify the solicitors acting on behalf of his estate of his/her wish to do so.

I received a call on Bank Holiday Monday from the BBC who wanted me to appear on Breakfast TV to talk about the story in the good company of Peter Saunders from NAPAC (National Association of People Abused in Childhood).  As soon as I got the call, I anticipated that the question of alleged false allegations of abuse, and miscarriages of justice against alleged abusers, particularly celebrities may be raised.

I duly unearthed myself from peaceful sleep at 5.30am and set off for Salford Quays. The interview started off with my explanation of the principles of advertising for claims by creditors where the estate of a deceased needed to be distributed, which no doubt flew over the heads of most people.

It is quite normal, however, for the executors of an estate, in order to protect themselves, to advertise in the London Gazette for any person to come forward who is owed money by the estate. If, then, no one comes forward, the estate can safely be distributed.

It is not surprising that after William Roache, Dave Lee Travis, and Nigel Evans have been found not guilty of allegations of abuse from many years ago by different juries, that the media have now, inevitably, turned their attention to new angles of attack, with the focus, unfortunately, falling upon the alleged victims of abuse.

One also has to remember that insurance companies have waged a 5 year campaign against personal injury claimants against a smoke screen of fraudulent whiplash claims, and crash for cash stories, men with clipboards trying to persuade members of the public to make claims, not to mention PPI phone calls. The unfortunate result is that the many thousands of genuine victims of injury, which is not their fault, are made to feel guilty and undeserving of what is rightfully theirs.

There is something about the British psyche that distrusts the accumulation of wealth by others, and resents the high salaries paid to captains of industry. In America, on the other hand, wealth is admired, and thought of as the just desert of hard work.

It is thus no surprise that in America, the victim of abuse can expect his damages to run to millions of dollars and in England mere thousands of pounds. American personal injury lawyers are often very wealthy because they are paid a percentage (commonly 30 to 40%) of the compensation they win. The conservative British Judiciary for many years have looked askance at America and made determined efforts to ensure that their attitude to compensation does not spread across the Atlantic.

So how does this translate into the rights of victims of abuse in England?

Back to BBC Breakfast. After I had explained the legalities of the Jimmy Savile advert, the inevitable question arrived. “Do you think that advertising for claims could provoke false allegations, and chancers coming forward who have not been abused?” It is a fair question, but one which is frequently used by the abuser in Court, when he is charged with rape or some other sexual offence. After all, what defence can he put forward? “I didn’t do it” is not very convincing, so “My accuser is only doing this for compensation and is greedy” is his best line of attack.

In reply I explained that such a question sends out a very dangerous message to the many victims out there who have kept their abuse a guilty secret for many years, and have not yet come forward. Often they have tried to complain as a child and been dismissed as liars by those in authority. They thus remain silent for many years until the opportunity arises to make a disclosure. To send out the same message again through the media may provoke them angrily into coming forward, but is more likely to ensure that their silence is maintained.

I did go on to explain that there will be checks and balances in the Savile scheme, whereby the victim will have to be able to prove an association and opportunity for the abuse to have taken place either by way of live or documentary evidence. Also a medical report from an independent psychiatrist/psychologist which proves the harm suffered will be required.

Peter Saunders then reminded the public that of all the victims that he had helped over the years only a handful had mentioned compensation to him, which certainly confirms the attitude of all my clients. They often want justice, to be believed, and validated for what happened to them. The civil compensation process, however, is a journey which they should be allowed to undergo.

So how much compensation will they get? The Savile scheme sets an upper limit of £60,000, which is probably higher than the average. The highest award in the case of A v the Archbishop of Birmingham was around £500,000 but a lot of that was made up of loss of earnings. General damages for pain and suffering can be as low as £2000 and as high as £180,000, but the upper end is rare and requires repeated torture like conditions.

Considering that abuse is a life long period of suffering English damages are far too low and equate to about £2.77 per day or the price of a nice cup of coffee – hardly adequate redress for  the harm abuse causes

Peter Garsden is the principal of QualitySolicitors Abney Garsden Solicitors (www.abneys.co.uk) of Cheadle Hulme in Cheshire. The firm has one of the largest dedicated child abuse compensation department in the country (www.abuselaw.co.uk). They run have several group actions, and have won several awards including, Personal Injury Team of the Year 2010, and Small Firm of the Year (Manchester Legal Awards) 2011 & 2013 when Peter was made Legal Aid Lawyer of the Year.

Email peter@abneys.co.uk.