New CPS Abuse Guidelines from Keir Starmer are welcome

A new policy for prosecution of abuse announced

In my position as President of the Association of Child Abuse Lawyers, and a solicitor specialising for the last 19 years in abuse cases on behalf of victims, I welcome the announcement of Keir Starmer, the Director of Public Prosecutions, who has announced that the guidelines used by the Crown Prosecution Service will be overhauled because prosecutors have recently been "too cautious" in their approach to deciding whether or not to commence criminal prosecutions against child sex offenders. He has said that we must avoid another Savile situation, where decisions as to whether to prosecute during the DJ's lifetime went the wrong way.

We constantly have to advise victims who have tried to have their abuser prosecuted by the police, but, for various reasons, been unable to do so. They thus turn to the civil process in an effort to exact some justice. That is to say, they launch a compensation claim, not to enrich themselves, but so as to do something to right wrongs that were committed in the past.

Keir Starmer talked about the pendulum swinging back to the middle from an over cautious approach. Back in the mid to late 1990's abuse investigations were crude, and new to all professionals alike. That is to say, lawyers, policemen, judges, prosecutors, and psychiatrists/psychologists. It was all so shocking that it was tackled with a moral enthusiasm, that came to be criticised by the allegedly wrongfully accused.

At one time 41 out of 43 police forces had a major abuse investigation in their area. Policemen with children became tasked with responding to and investigating allegations of abuse committed many years ago in various institutions, usually children's homes. The abuse spanned 3 decades from the 60's to the late 80's. It was decided at a very early stage, that if a sex offender was abusing a boy in a children's home, it was very unlikely that it was an isolated offence, and that in all likelihood a career paedophile was at work.

The Police were of course right, in that various men were prosecuted for abusing many victims over periods of years whilst working as care workers in homes. In most homes brutality was also practised in a climate of fear, threats, and intimidation. The victims were vulnerable, and in need of care and affection - they got the wrong type of attention. Instead of being cared for they were abused. The infamous North Wales enquiry is only one of scores of other enquiries which took place.

Eventually an organisation called FACT ("Falsely Accused Care Teachers") united to mount a campaign designed to stop the prosecution of allegedly wrongfully convicted care workers. They teamed up with journalists who specialised in the subject. There was then a Panorama programme by David Rose, for which I was unfairly edited, and wrongfully implicated as an encourager of false allegations.

Closely following thereafter was a Home Office Select Committee Enquiry in 2002, into alleged false allegations. It was motivated by desire to stop the police investigations in their tracks, by discrediting the approach of "trawling" for evidence - the process whereby the police went looking for allegations by contacting as many former residents of children's homes as they could find.

One can read the select committee report on the net. They did not interview any victims, and simply took what the convicted abusers, their supporters, lawyers, and investigative journalists had to say at face value, without realising that they all had an axe to grind. By the time of the enquiry, the police had produced a manual in which the practise of trawling was discouraged, as being the reverse of normal police methods. I gave evidence. I thought the committee would be interested in my suggestions for a change in the law - far from it - they wanted to accuse me of being hand in glove with the police for personal gain, which was not only insulting to my professionalism, but also an insult to my intelligence.

The Home Office rejected the conclusions of the report, but the die was cast. Despite me meeting with the Chief Constable of Dwyfed, who produced the investigator's manual, and pleading him to change nothing, procedure did change, the allegedly falsely accused had won, and the police became "over cautious" in their approach to the investigation of abuse. Between 2002 until the Savile scandal the pendulum had swung too far away from proper investigation.

Keir Starmer is implying that the police will have another look at the process of trawling, which, of course, is a perfectly proper method of investigating a crime. If there is a sex offender on the loose, the police want to find ALL his victims whether or not they have come forward, particularly those who have been attacked and got away. If he was operating in a children's home, it would be quite natural to interview all the residents who had come into contact with him, in an effort to find corroborative evidence. As long as the process takes place properly without encouraging people to make allegations it is perfectly proper, and is not "the reverse of normal police methods"

I have to say that back in 2002, after the select committee enquiry, I feared that we would end up in this position. It is a shame that it has taken Savile to wake everyone up.

What is the solution? Make mandatory reporting of abuse a criminal offence. If there was a legal obligation on those with the care of children to report abuse which they witness, and for the failure to report to be a criminal offence, as it is in all Commonwealth Countries, and even Ruanda, then abuse in the past might have been reported rather than covered up, as it has been in the Catholic church.

I am campaigning hard for a change in the law through support groups and Parliament. Shortly there will be a petition to sign on the Internet. Sign it please.

Lord Neuberger is right to speak out about Legal Aid

Lord Neuberger in interview with the BBC

After reading the interview with Lord Neuberger, head of the Supreme Court, by the BBC News, I began to realise that the doctrine of separation of powers, which I studied many years ago in my law degree is being mildly eroded. Whilst I applaud him for complaining about the withdrawal of Legal Aid, and criticising the government, I wonder whether it is philosophically more healthy to keep the powers apart.

If one reads the interview, which was repeated on the BBC Today programme this morning, with contributions from Lord Bach, Former Legal Aid Minister and currently a Shadow Justice Minister and Sir Edward Garnier, QC former Solicitor-General, it is clear that the government have come under attack from lawyers, who do not like the way they are eroding a fundamental right of access to justice, particularly for the poor and needy, many of whom are also abuse victims, and much in need of help. Sir Edward was justifying the cuts on the basis of the economic climate, and other methods of helping people such as mediation etc.

We act for the victims of abuse, but can only help one aspect of their problems - seeking justice for the abuse they suffered years ago. We would be unable to assist them with debt, housing, CICA claims, social welfare, or any of their other myriad problems after April because the government have taken away their fundamental right to access to justice. Were it not for some very vigorous campaigning on behalf of the victims of abuse, no doubt the government would have taken away legal aid  for abuse compensation claims.

One can imagine how the media would have dealt with that one if the government had gone the wrong way - put children in care and subject them to abuse, then when they have the courage to do something about it years later, take away their rights by denying them legal aid even though they cannot afford to pay for a lawyer? Thankfully this is a fictitious rather than a real position.

When the bill went through Parliament, it was defeated 14 times in the House of Lords, who ultimately backed ministers by the narrowest of margins, with 238 votes on each side - a tie means a victory for the government. Hardly a unanimously popular bill with whole hearted support from both sides of the political divide, as sometimes happens.

The papers dealt with different aspects of the Neuberger interview. Some went for the way in which he was responding to Theresa May's criticism of judges, who allegedly were "ignoring" rules on deporting foreign criminals.He said he would not get into a "slanging" match with Mrs May.

The interview came two weeks after Mrs May accused judges of making the UK more dangerous by ignoring rules aimed at deporting more foreign criminals. She told the Mail on Sunday that they were choosing to "ignore Parliament's wishes".

"I think attacking judges is not a sensible way to proceed," Lord Neuberger said.

So how do the comments of May and Neuberger breach the separation of powers principle? Fundamentally and simply - leave governing to the government, and judging to the judges. Government should respect the decisions of judges, and not criticise them.

When government interferes with judges decisions, the ultimate result is a state run judiciary, corruption, and a dictatorship. Lawyers are silenced if they protest, which they usually do if justice is not being done. Life gets out of balance - the scales of justice are not even. When you take away legal aid, the scales tip alarmingly in the wrong direction - in favour of those with money and against those without.

Similarly, if judges criticise government, then they are usurping their function. The example given to us as law students was judicial review cases, where the courts are asked to criticise governmental decisions. Arguably these types of case are a vital form of check and balance on the wrongful exercise of powers without consultation by government. In the news recently were plans to "streamline" judicial reviews by the Ministry of Justice. Thankfully they have launched a consultation on the changes - a process which results from judicial review decisions in itself. The Law Society Gazette headline, however was, "Judicial review changes could be harmful"

I don't think Lord Neuberger was overstepping the mark by responding to criticism of the Home Secretary. He was defending his judges and the separation of powers. It was May who should not have tried to interfere with judicial decisions, and the way in which Human Rights are interpreted by the Courts. At one time, however, the Head of the Supreme Court, would never have given an interview, and would have remained silent.

At the end of the day, the government cannot complain about laws which they give to judges to interpret. Judges simply interpret what they are given. If government don't like the result of cases, then it is up to them to change the law. When laws come into force, every consequence cannot be foreseen. The law of "unintended consequences" is not uncommon.

How liable is the Catholic Church for its priests?

The Pope addresses his audience

The Supreme Court has just refused leave to appeal to the trustees of Portsmouth Roman Catholic Diocesan Trust. The Court of Appeal had allowed an appeal by a 48-year-old woman known as JGE, who cannot be named for legal reasons. She said that as a child she was beaten by a nun at a convent-run care home and later raped and sexually assaulted by a priest. The story is reported in the Guardian.

The argument surrounds something lawyers call "vicarious liablity", or, in common parlance, the legal responsibility of an employer for what an employee does whilst working for him/her.

The problem with the law, and why there have been so many appeals for years, is how one places limits on the fringes of the rule eg:-

1.  Is a volunteer, who is not paid, an employee?
2. What about a priest who is not paid by the church, but from the collection he gets every week in church.
3. Is a contractor liable for what a sub-contractor does wrong?
4. What is an employer liable for? If an employee takes a boy to his house during working hours in order avoid the prying eyes of his employer, and abuses him there, is that something which is within the scope of employment?
5. Is an illegal act, which is simply an aberrant action, and forbidden by the rules of the job, something for which an employer (or more accurately his insurers) is liable for?
6. Is someone who is not employed to look after children, but does work on premises where children are frequently present, liable?

In most of the above cases, an employer will be liable for what his/her employee does. The law has developed in this way, largely as a result of child abuse cases over the years.

The simplest explanation I have heard is from a case called Lister v Hesley Hall Limited, which said that an employer is liable, according to Salmond on Tort (a renowned Legal Textbook), if the act is:-

"an unauthorised way of carrying out an authorised activity."

The Catholic Church, through their lawyers, have been arguing that they should not be liable for what a priest does because he is called by God to his vocation, and follows the will of God in everything he does. It is said that he is detached from his bishop, and is serving his community. Thus there is no legal link, and priests are on their own.

One can see that this type of technical argument, when the priest has clearly used his position to abuse a boy or girl, perhaps even on Church premises in the robing room of the church, before or after choir practise, is not exactly appealing, though has occupied many "Appeals" in long legal argument - particularly the Court of Appeal in the JGE case above.

The news of the refusal of leave to appeal by the Supreme Court was commented upon by Cathy Perrin, who works for the Catholic Church Insurance Association, as follows:-

"This will not just affect Catholic priests. It will have impacts on commercial organisations and make local authorities responsible for the actions of foster carers."

As a foster carer myself, I can quite appreciate the arguments on vicarious liability, even though, in reality, the law (admittedly a very old decision) does not hold local authorities liable for the actions of foster carers. Of relevance is:-

1. They pay us to look after their children.
2. They put us through a rigorous vetting procedure.
3. They provide us with training.
4. They assess us every year.
5. They govern whether or not we are authorised to take any more children.
6. The provide the children whom we look after.
7. They visit us regularly to see how we are going on, and provide us with support.

The only criteria which is absent, as far as I can see, when one compares foster carers with the Catholic Church is religion. In all other respects the position is the same.

Will we see the law develope to make local authorities liable for foster parents? Against the backdrop of a cash strapped local authority, one wonders how appealing such a change in the law will be. East Cheshire Local Authority, however, organises automatic insurance for us all, just in case any claims are made. This type of arrangement, however, has not been in force for very long. Most of the cases relate to abuse which took place many years ago, at a time when there wasn't any insurance other than what the foster carers may have arranged for themselves, and only then to cover parents where their house was burned down, for example, or property damaged by foster children.

So where will it all lead? The change in the Pope, and his dramatic resignation, has brought all this to the fore once again. I don't think I can sum it up better than Keith Porteous Wood, of the National Secular Society, who said in the Guardian article:

"It is hard to exaggerate the importance of this case : it will almost certainly become an international precedent, opening the door to financial liability against the church for tens of thousands of victims of abuse, worldwide.

Evidence abounds of the shameless lengths to which the church has stooped for decades to evade financial responsibility for widespread abuse of children in its care. To have fought to evade liability for admitted abuse is both morally repugnant and a continuing blatant breach of the church's obligations under the UN convention on the rights of the child."

I wish I had the courage to be as outspoken.

Northern Ireland Abuse - where next?

The extent of news and announcements surrounding abuse these days is somewhat epidemic. The latest revelation (well perhaps quite not revelation as it has been around for a while) is a Commission of Inquiry in Northern Ireland to look at abuse many years ago within institutions, which will simply have an investigative rather than a compensatory arm.

They have announced a poster campaign to alert survivors to their existence, and encourage them to come forward in order to tell their stories of abuse. For more details go to our Abuselaw webpage where we have posted the story.

The Commission is staffed by various experts in the field, including a fellow ACAL Executive Officer called David Lane, who has many years experience as a Social Work Consultant. They will listen to the allegations of abuse and make recommendations. It is called the Historical Institutional Abuse Inquiry and can be found on the web at www.hiainquiry.org/

The Northern Irish Government has been a bit slow to catch up in that its sister, Eire, apologised for abuse committed at the hands of the government in institutions for many years, in partnerships with various religious bodies such as the Catholic Church and various other religious bodes, who had acted in partnership to run the country's care, and educational systems for many years. They set up the Residential Institutions and Redress Board at the beginning of the millennium, and closed its doors in 2005. The compensatory arm was set up at a time when Ireland had a lot of European Grant money, which Britain didn't get, when it joined the Euro. The money has since run out, hence its closure.

Northern Ireland has a similar, but different at the same time, problem to south of the border. Often mentioned is various Nazareth House homes, but there are many others. We have Northern Irish clients too, but normally when they have emigrated over here to escape the poverty (and maybe abuse)

Northern Ireland has the same jurisdiction to England and Wales, but the laws are slightly different locally. The law of sexual abuse and time delays is no different.

I hope that NI extend their government commission to include a compensatory element as it is unreasonable to offer one but not the other. It tells me that they are paying lip service to the need to listen and be understanding without going over the top, denying the victims a choice of speaking their truth, and at the same time appear to be caring for the needs of some of the most vulnerable in our society.

Are lawyers really ripping us all off?

Divorce - a sad experience

In the Guardian today is coverage of a summary of complaints made to the Legal Ombudsman, and top of the list is Divorce. It is said that:-

"The Legal Ombudsman has warned that some solicitors are failing to advise divorcees to settle courtroom battles before costs rise out of control because of the "emotional rawness" of those involved. In a report on the costs of separation, Adam Sampson says that in the economic downturn there is increasingly a tension between lawyers financial self-interest in prolonging legal action and their responsibility to offer clients informed advice. Nearly a fifth (18%) of the 7,500 complaints Mr Sampson's office resolved last year involved divorce or family law-related cases, making it the most complained about area of law in England and Wales. "

This is a difficult point. The client has to be listened to and advised. Many of them come to us because they want a scrap. If we tell them that is a bad thing because divorces are meant to be convivial, then it can sound as though we are not listening or fighting the sort of battle the client wants to fight.

Obviously we have to advise on costs. Indeed there are developing at the moment - we are developing such a model - fixed price modules for different types of work, where it is possible to predict costs due to the type of work involved.

It is standard practise to advise on costs in a client care letter. Often, however, clients are very happy for us to fight their battles until it comes to getting the bill, when suddenly they become unhappy because it dawns on them that we are not working for nothing.

Somewhere between the two extremes there is a middle ground. In an emotional situation, however, there will always be the client, who doesn't want to pay, doesn't want to settle, and wants to fight on. It is the nature of the beast. Divorce brings the worst out of all of us.

With the withdrawal of legal aid in April, there are going to be many many litigants in person, who can't get any justice and who clog up the courts with enquiries. The courts are anticipating this and are coming out with pilots to assess staffing needs. All this, of course, when the government are closing court buildings and getting rid of staff....where will it all end...Armageddon, that's where.

Why did the Pope really resign?

Children run in St. Peter's Square

The Vatican is, it seems, not immune to spin. They have announced that Pope Benedict XVI (not his real name you understand - in a former life he was Cardinal Joseph Ratzinger) has resigned early due to "ill health". Video of him falling asleep during ceremonies has been broadcast. But is that the real reason?

Why do clergy in the Catholic Church have a real name and a religious name? If one becomes Pope, one changes one's name again. If you were a mistrustful victim of abuse, you would say that it makes priests more difficult to trace. Certainly police investigating a children's home run by brothers in Merseyside had just such a problem in the 1990's. The real reason is, of course that they are agents of God, and thus must take on the name of a Saint, it makes logical sense, n'est-ce pas?

It has been said that the retired Pope will live within an apartment inside the walls of the Vatican. Some have speculated that this is to keep him safe from prosecution for moving on sex offending priests in Germany. One cannot believe everything one reads in newspapers, even more so the Internet. In my experience, however, there is no smoke without fire, and that most reports have a grain of truth in them somewhere. At the very least, he was part of a system which seemed to do this sort of thing routinely in the past.

He is the first Pope to retire for 600 years, the remainder have died whilst in post - a strange world where one has to work until one dies. Judges used to be able to work in this country until they were 75, whereas now the age has been lowered to 70. So why do Popes work until they die? Another question - why does the Vatican have its own judicial system, and anonymity for anyone working within it? Tradition, tradition, and tradition dear boy, a creature of history. Pope Benedict is a traditionalist, as is the Catholic Church.

One begins to see why the Pope will be safe within the walls of the Vatican. He will be immune from any interference from outside.

In this Guardian article victims of German Child Abuse campaign outside the Vatican. The German legal system does not appear to be anywhere near as advantageous to victims as the law in England and Wales. I have been a solicitor since the beginning of civil cases in 1994, when the law here, too, was much less helpful to survivors, simply because it had not developed against a backdrop of such cases. I suspect, also, that there is not the backing of Legal Aid, that we have here, which supports such cases - even after April 2013, when the government have managed to demolish Legal Aid on the grounds of cost.

The article goes into detail of how Ratzinger tried to suppress openness in investigation, and was part of the system of moving priests accused of child abuse, who then carried on abusing further in their new location. A familiar story, it appears, all over the world, and certainly in England.

Is the Pope resigning because he is so ashamed of the system he has uncovered. Has he run out of energy and courage to properly uncover, and change it? It is said he is surrounded by like minded Cardinals.

The proof of the pudding is in the eating of humble pie, an open and transparent Catholic Church open to change. Will it happen? Is the Pope a Catholic? Once again I rest my case....keep saying that...must think of something new...or am I just stuck in a rut and reluctant to change...mmm.....

Should alleged sex offenders have anonymity?

Father McSweeney who has been arrested.

I was reading that "Operation Fernbridge", which is investigating the Elm House Guest House scandal, has arrested a Norfolk Priest called Tony McSweeney. The police have named him. The article refers to him resigning as a governor from the Notre Dame School in Norwich - obviously as a result of the investigation. It appears that the Priest was a visitor to the Guest House, hence the link.

Operation Fernbridge are also looking at claims "that senior political figures and others sexually abused boys at the Elm Guest House". In the next paragraph of the BBC News article it is stated that the other person arrested as part of the operation is "a 70-year-old man who was arrested in East Sussex"

I knew about this police operation before it happened. I met Tom Watson MP in Parliament so that I could share with him my knowledge of abuse in many children's homes and other locations all over the country. I have been dealing with such cases for the past 18 years. Sadly it has taken Jimmy Savile to re-awaken interest in the subject. Tom used parliamentary privilege to make an announcements in Parliament after hearing that previous police investigations had been "buried" many years ago, particularly because political figures were implicated.

So my question is "Why was the 70 year old man not named?" Is it because he is a well known political figure. There may be a very good explanation, which I have not heard. There have been many other examples of arrested alleged sex offenders not being mentioned in the recent "celebrity" police investigations.

I know that there has been much debate in the past about whether or not alleged sex offenders should enjoy the same anonymity that victims have. It is easy these days to persuade a judge to refer to  the victim of abuse by initials eg AB. At one time it would not have been so easy, but the protection of vulnerable adults, thankfully, is now much higher up the legal and political agenda.

The police, usually, want to announce the name of the arrested individual.  They know that if the abuse took place in an institution that other witnesses can, and often do come forward. It can provide corroborative evidence, which ultimately assists their case. I can remember accused sex offenders advertising for character witnesses, but getting, instead, complainants approaching the police, in a cruel twist of irony.

I remember that when Matthew Kelly, the famous comic actor, was arrested many years ago, he professed his innocence strongly, and objected to being named in the media. There is an argument that if someone is charged, they have not been proved to be guilty, and could, in any future trial, be acquitted. In a pure legal world, judges hate trial by media, and are always concerned that juries will be influenced by what they read in the papers.

So why, in this Operation, have they not named an arrested person? Is it because the police are apprehensive about being sued in slander, or have been so threatened by media lawyers? When will we find out his real name? When he is charged presumably? All this cloak and dagger mystery does nothing, I am afraid to persuade the conspiracy theorists, of which I am certainly not one, that there isn't yet another cover up... or is there....who said I was paranoid.......???