Why should one law be applicable to religious organisations, and another for the rest of us. Under Canon Law 489 every Catholic diocese has a secret archive which is kept locked and has in it secret documents. These documents are to be ‘protected most securely’ and contain, ‘matters of morals’ and ‘criminal cases’. Only the bishop is allowed to possess the key and the archive is only to opened in a case of ‘true necessity’.
In other words allegations of abuse by a priest upon a child from many years ago, are likely to be contained within the secret safe.
Nothing of the like exists at civil law. If a document is needed for a case against the church, then it has to be disclosed with one or two limitations and exceptions - for instance National Security.
We, at the Association of Child Abuse Lawyers are somewhat tired of the litigious attitude of the Catholic Church in compensation claims. On the one hand we witness the conciliatory attitude of the church, who adopt a genuinely confessional and religious approach to help victims address the demons within them. On the other hand, should the formerly abused victim decide to take the Church to court for compensation, watch out. A fierce adversarial approach is likely to result. Historically the legal team acting for the church have decided to try every technical point they can, in order to defeat claims that weak and vulnerable adults bring.
Most of the cases are not fought on merits but time delay. Only this year attempts have been made, unsuccessfully to argue that the Catholic Church are not liable for what priest does because he is fulfilling a calling of God without much guidance or support from the church (JGE v Diocese of Portsmouth).
We are mounting a campaign with the backing of support groups for a public enquiry in order to examine the way in which abuse is becoming an ever increasing discovery of evil within what in reality should be one of the pillars of our society. If each diocese has one of these safes with secret information in it, why should they remain secret accessible only the bishop? Why not hand over the contents to her majesty's police force so that justice can be done, and the abusive priests duly prosecuted.
The obvious conflict between the Canon law of the Catholic Church, and the civil law of England and Wales is a tension which is arguably irreconcilable. Each law has its own type of court which has different rules. Whilst it is not possible to sue for child abuse in the religious courts of the Roman Catholic Church, one can obtain a nullity of marriage, which means that the spouse can marry again in the Catholic Church. Alternatively the parties can, and often do get a civil divorce through the English Courts. Lawyers have been known to argue points of Canon Law in English Civil Cases. Thankfully such arguments rarely succeed in abuse cases, as Canon Law is not binding in the English Courts.
Will our campaign, which has aroused the interest of the Times newspaper and Esther Rantzen succeed? I certainly hope so. Having tried myself to persuade the English government to agree to a public enquiry to look into abuse in children's homes nationwide back in the late 1990's, and failed because of the enormous cost, and the lack of boundaries to the investigation, I doubt whether the government, in the age of austerity, cut backs, and legal aid wipe out, will agree. We can only remain hopeful.......
Peter Garsden is the head of the Abuse department at Simpson Millar LLP. He is also President of the Association of Child Abuse Lawyers. Call 0845 604 7075
Thursday, 16 February 2012
Thursday, 2 February 2012
Should criminals be forbidden to claim compensation?
In the Houses of Parliament on 30th January, the Justice Secretary Ken Clarke announced plans to prevent most convicted criminals from gaining Criminal Injuries Compensation (CICA), arguing it was "perverse" that those convicted of crimes had been able to claim for injuries and psychological damage. He said the proposals were an "intelligent, radical reform to sort out a system that isn't working well" - true it is not working well, but these proposals will make it a lot worse. It also ignores the plight of the victims of child abuse who are my primary concern.
Under the present scheme (Para 13) there is a CICA penalty points system, which prevents most criminals who have unspent convictions from applying for compensation arising from a crime of violence. The government have decided that criminals simply do not deserve compensation. For example, a period of imprisonment of 30 months attracts 10 penalty points which equates to a reduction of 100% compensation, whereas a fine of £250 up to 2 years after the conviction will reduce compensation by 15%
The CICA scheme was introduced in 1964 in order to ensure that the victims of crimes of violence could receive compensation from the government, particularly where the perpetrator did not have the funds to pay. This contrasts with compensation paid to the victims of car accidents by the blameworthy car driver's insurance company. It was thought that only those who did not transgress the law deserved to apply.
The case of the victims of child abuse is clearly different, as is recognised by the current scheme. Provision is presently made for the CICA to ignore criminal convictions in appropriate cases. The obvious question is, "What sort of criminal record did the child have at the time they were abused?"
For example, it is not unusual for the victim to be abused at the age of 15 by, say, an older male care worker, and then tell no one what happened to them, out of shame, for 30 years. Moreover, so great is the shame, and so deep is the hurt, that they resort to drink and drugs as a form of emotional anesthetic. How shameful would it be to confess that you have been assaulted in a homosexual encounter with an older male care worker? Acquisitive crimes to feed the drink and drug habit then frequently follow.
Thus the argument is, that any convictions which are caused, in any way, by the abuse in childhood should be ignored, even though the rules strictly disqualify the applicant. Similarly, the victim of abuse who goes onto commit offences related to the abuse of children, where the abuse caused in some way the later offences, can argue that his/her convictions should be ignored. Needless to say, statistics do not show, that victims of abuse go on to be abusers.
I can find no provision in the new proposals for any account to be taken of the plight of the victim of child abuse, which, in my book, is appalling. It seems that these proposals are simply about saving money with little regard for fairness or justice.
Should there be a one size fits all? Should all criminals with convictions be prohibited from claiming criminal injuries compensation? The point is that all cases are different. In none of these cases under the new system, will a claim be permitted. Some are deserving, and others not, dependent on the facts of the case eg.
Not Deserving (arguably) :-
I have been campaigning on this issue for many years. As long ago as 1997, one of our CICA Appeal cases called GB, RB, and RP, established the principle that even though victims of abuse from children's homes had criminal records, they could still make a claim. Sadly, regulations made since, and certainly the recent proposals cleverly promoted as "intelligent and radical" are likely to do injustice to some of the most vulnerable members of our society. Letters to MP's may be a way of protesting. Let us hope that the proposals do not come into force.
Under the present scheme (Para 13) there is a CICA penalty points system, which prevents most criminals who have unspent convictions from applying for compensation arising from a crime of violence. The government have decided that criminals simply do not deserve compensation. For example, a period of imprisonment of 30 months attracts 10 penalty points which equates to a reduction of 100% compensation, whereas a fine of £250 up to 2 years after the conviction will reduce compensation by 15%
The CICA scheme was introduced in 1964 in order to ensure that the victims of crimes of violence could receive compensation from the government, particularly where the perpetrator did not have the funds to pay. This contrasts with compensation paid to the victims of car accidents by the blameworthy car driver's insurance company. It was thought that only those who did not transgress the law deserved to apply.
The case of the victims of child abuse is clearly different, as is recognised by the current scheme. Provision is presently made for the CICA to ignore criminal convictions in appropriate cases. The obvious question is, "What sort of criminal record did the child have at the time they were abused?"
For example, it is not unusual for the victim to be abused at the age of 15 by, say, an older male care worker, and then tell no one what happened to them, out of shame, for 30 years. Moreover, so great is the shame, and so deep is the hurt, that they resort to drink and drugs as a form of emotional anesthetic. How shameful would it be to confess that you have been assaulted in a homosexual encounter with an older male care worker? Acquisitive crimes to feed the drink and drug habit then frequently follow.
Thus the argument is, that any convictions which are caused, in any way, by the abuse in childhood should be ignored, even though the rules strictly disqualify the applicant. Similarly, the victim of abuse who goes onto commit offences related to the abuse of children, where the abuse caused in some way the later offences, can argue that his/her convictions should be ignored. Needless to say, statistics do not show, that victims of abuse go on to be abusers.
I can find no provision in the new proposals for any account to be taken of the plight of the victim of child abuse, which, in my book, is appalling. It seems that these proposals are simply about saving money with little regard for fairness or justice.
Should there be a one size fits all? Should all criminals with convictions be prohibited from claiming criminal injuries compensation? The point is that all cases are different. In none of these cases under the new system, will a claim be permitted. Some are deserving, and others not, dependent on the facts of the case eg.
Not Deserving (arguably) :-
- A gang member who is shot in a drug/gang related attack resulting from non-payment of drugs.
- A burglar who is injured by a householder during an attempt to burgle a domestic dwelling.
- A passenger in a vehicle stolen by a thief who is drunk and has an accident.
- Unwilling members of a gang that are assaulted by a gang member because they refuse to participate in a crime
- A career criminal goes straight, starts up a charity to help ex-offenders, but within the period covered by the unspent conviction, is assaulted by a stranger, causing severe injuries and a loss of earnings.
- A girl is caught smuggling drugs and given a fine or community service. A year afterwards, whilst in full time employment, she is raped, sustaining severe injuries.
- A victim of child abuse goes onto commit sexual offences clearly caused by the abuse. He/she tries to put in a claim for CICA for the original abuse after helping the police by giving evidence against the paedophile.
- A criminal is assaulted and paralysed whilst in police custody. Whilst he can make a civil claim against the police, he is prevented from pursuing a claim for CICA.
I have been campaigning on this issue for many years. As long ago as 1997, one of our CICA Appeal cases called GB, RB, and RP, established the principle that even though victims of abuse from children's homes had criminal records, they could still make a claim. Sadly, regulations made since, and certainly the recent proposals cleverly promoted as "intelligent and radical" are likely to do injustice to some of the most vulnerable members of our society. Letters to MP's may be a way of protesting. Let us hope that the proposals do not come into force.
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