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Ian Carroll

Ian Carroll

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Limitation in abuse claims: alleged abusers and the effect of delay

AWARE11/12/2018
Keoghs Disease and Abuse Aware 2018

Limitation periods exist to protect defendants from stale claims. Delay is almost always damaging to the prospects of a fair trial. This is particularly so where the delay has meant that the alleged abuser has died by the time the claim is pursued. However, over recent years there have been attempts to minimise the importance of the availability of the alleged abuser to respond to allegations of abuse and the consequent prejudice caused to a defendant.

In simple terms, what more could an alleged abuser say other than to deny the allegations? The recent High court case of Peter Murray v Fr Martin Devenish [2018] EWHC 1895 (QB) highlights the importance of the availability of the alleged abuser and demonstrates the courts’ approach to the assessment of prejudice arising from delay.

The claimant alleged that he was the victim of sexual abuse by a former teacher of a Roman Catholic seminary, Michael Riddle, between 1973 and 1974. However, Riddle died in 1999.

The defendant argued that Riddle’s death and the length of the delay meant that it could not carry out a meaningful investigation. A fair trial was no longer possible. The claimant asserted that Riddle’s death caused no prejudice to the defendant. If he was alive, he was unlikely to have admitted the alleged assaults (and thereby incriminate himself). Such denials would have carried little weight (given that the claimant relied on two witnesses at trial who also alleged that they had been sexually abused by Riddle). The judge accepted that the claimant gave a credible account of the alleged abuse and was supported by credible witnesses who alleged abuse of a similar nature.

However, the judge considered that the defendant had still been “undeniably disadvantaged” by Riddle’s death. The defendant couldn’t take instructions from Riddle and was inhibited in the crossexamination of the claimant (and his witnesses) on the accounts of abuse.

Indeed, it would have been professionally improper for the defendant to suggest the claimant was not telling the truth about his allegations of abuse, as it had no basis to do so. Further, in circumstances where there were only two people present when the alleged abuse occurred, the judge was not persuaded by an argument that Riddle’s denial (if he were alive) would have carried little weight.

The judge referred to John v Rees [1970] Ch. 345 in which Vice-Chancellor Megarry said: “The path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change”. The judge decided that Riddle’s death alone discharged the defendant’s evidence burden and that it was significantly prejudiced by it.

This case demonstrates that the courts continue to take seriously the prejudice from the delay, and the effect of that delay on the interests of justice to all parties. There have been a number of high-profile cases which have highlighted the importance of individuals being available to respond to the allegations which have been made against them. This judgment clearly acknowledges this and recognises the risks of attributing little weight to the alleged abuser being unavailable to answer allegations of abuse.

Keoghs acted for the successful defendant.