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Alastair Gillespie

Alastair Gillespie

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Accountability & Reparation - IICSA releases its Phase 1 Report

Client Alerts23/09/2019

On 19 September 2019 the Independent Inquiry into Child Sexual Abuse (IICSA) published a long-awaited report upon Phase 1 of its Accountability & Reparation investigation. Over 106 pages IICSA sets out conclusions and recommendations for the improvement of the civil and criminal justice systems, together with details of the evidence and information upon which those conclusions and recommendations are based.

It is important to note, however, that consideration of the key issues of limitation and redress, which IICSA recognises as being potentially the subject of more far-reaching and fundamental recommended changes, has been held over to a further public hearing which will take place over three days in late November 2019.

Terms of reference and methodology

Within this investigation, one of 13 that make up the overall Inquiry, IICSA is tasked with answering the following proposition:

‘The extent to which the systems of civil justice, criminal compensation and support services provide effective accountability and reparation to victims and survivors of Child Sexual Abuse (CSA).’

In answering this question, IICSA has examined past and present practice to understand how systems now function and to identify recommendations for how systems may be improved in the future. IICSA also reviewed five non-recent case studies in order to develop an understanding of how law, practice and procedure in the context of sexual abuse claims have evolved over time in many important respects. IICSA is very clear that its task does NOT encompass any of the following:

  • The making of any findings that abuse occurred;
  • Identification of any civil or criminal liability;
  • Assessment of the professional conduct of anyone involved in the five selected case studies.

Through a combination of research, collation and analysis of a vast number of documents, expert seminars in November 2016 and oral and written testimony from over 100 witnesses, culminating in a 10-day public hearing in November/December 2018, IICSA has accumulated a huge amount of information which has enabled it to identify seven recommendations which are set out below. During its work, IICSA also recognised that the objectives of victims and survivors did not always align with the fundamental purpose of the civil process, which is to seek financial compensation. That was an important objective for some, but rarely the primary motivation. Many victims and survivors were much more interested in being heard and believed. Consequently, many claimants were left dissatisfied by the outcome of their claim, but it is recognised by the claimants’ lawyers, and acknowledged by IICSA, that what many sought to achieve within the civil process was not an outcome that the civil process could ever deliver.

The recommendations

In putting forward these recommendations, IICSA has correctly identified that none of the available systems can deliver everything that is sought by victims and survivors, be it punishment of offenders, holding institutions to account, acknowledging abuse and providing apologies, provision of assurances as to non-recurrence of abuse, redress and/or support. Further, the fact that different people place different levels of importance on each of these factors makes it impossible for one system to satisfy everyone. This comment becomes particularly pertinent when considering redress schemes.

  1. Signposting compensation

The Ministry of Justice (MOJ) should review the Victims’ Code so that the police advise every criminal complainant about:

  • Their entitlement to claim civil compensation
  • The availability of assistance with a Criminal Injuries Compensation Authority (CICA) application
  • The potential that the criminal court may make a compensation order against a convicted abuser
  • Local support services

The police will need to amend its own guidance to officers so that all of this information is conveyed to every criminal complainant.

  1. The Local Government Association and the Association of British Insurers (ABI) need to produce codes of practice for responding to CSA claims, covering the following non-exhaustive points:
  • The requirement to treat claimants sensitively throughout the litigation process
  • The use of a limitation defence only in exceptional circumstances
  • An obligation to consider the use of single joint medical experts in every case
  • The provision, wherever possible, of offers of apology, acknowledgment, redress and/or support (it is unclear what ‘redress’ means in this context).
  1. The government is advised to revise section 2 of the Compensation Act 2006 so as to remove the anomaly that at present it is arguable that apologies made in vicarious liability cases can amount to an admission of liability. That revision would bring vicarious liability cases into line with claims in negligence for breach of duty, in which it is already permissible to make an apology that does not amount to an admission.
  1. The Department for Work and Pensions and the ABI are to work together in order to produce a national public liability register on which are to be stored similar details to those that are found on the current employers’ liability register. The public liability register should include all policies issued and renewed after the commencement date of the register, plus those against which a claim has already been made. The Financial Conduct Authority is also advised to make changes to its own regulations in order to compel insurers that provide public liability cover to retain and publish details of all current policies.
  1. In relation to the assessment of quantum of damage, the Judicial College is asked to draft a freestanding section on the damages that may be appropriate in CSA cases. Their assessment of quantum must take into account the following factors:
  • The nature and severity of abuse itself
  • Short-term and long-term physical, emotional and psychiatric/psychological injury
  • The general effect of the abuse on the claimant’s capacity to function, including but not limited to personal/sexual relationships, the ability to benefit from education and the ability to undertake paid employment.
  1. The MOJ is advised to consult with relevant bodies in order to increase the use of court compensation orders, including the delivery of suitable guidance to magistrates, judges and prosecutors.
  1. The International Underwriting Association of London is advised to produce a code for the benefit of claimants, the provisions of which should be comparable to the established Rehabilitation Code, or indeed form a further section of that Code. The aim of this recommendation is to ensure that claimants can access the therapy and support they need as soon as possible.

Each identified organisation has until 19 March 2020, six months from the date of publication of the report, in which to publish its response and proposed timetable for implementation of the recommendations that it is required to address.

Commentary

Initial market soundings indicate that these recommendations are considered to be sensible and constructive. In general, they are likely to be met with positive endorsement and engagement from the organisations concerned.  

Insurers will pay particular attention to a number of the recommendations:

  • The compilation of a public liability register similar to that discussed at the expert seminars in November 2016 which  also formed part of IICSA’s interim report in this investigation which was published in April 2018. It was not, however, considered in the 2018 hearing and insurers may still wish to make representations, through the ABI or otherwise, as to the practicality and challenges that they face if this recommendation is to be implemented.
  • Many insurers and their solicitors will contend that most if not all of the specific behaviours listed by IICSA as key elements of their proposed ABI/LGA Best Practice code are already part of their standard process for dealing with CSA claims. Insurers with any concerns as to what best practice should look like are encouraged to make a positive contribution to the drafting of a suitable code.
  • Whatever view the Judicial College takes as to the appropriate level of damages in CSA claims, the introduction of a freestanding section specifically dedicated to CSA claims is overdue. Assessing damages is, however, not straightforward and, as with any category of personal injury, the College will have to pay due regard to the restrictions imposed upon it by (i) an extensive body of common law quantum authorities; and (ii) the obligation to ensure that awards of damage across different categories of personal injury remain commensurate and consistent with each other.
  • Clarification of the wording of the Compensation Act should be welcomed and will remove an obvious statutory lacuna.
  • The question of an abuse-specific pre-action protocol has been left to the Civil Procedure Rules Committee (CPRC) which has held drafts from both claimant and defendant working groups for many months. IICSA clearly assumes and expects that the CPRC has ownership of this task and will produce a suitable protocol in due course.
  • Although the recommendation that signposting (by the police) of a criminal complainant’s right to pursue compensation could mean an increase in claim volumes, it is interesting to note that IICSA is keen to ensure that where possible those complainants secure CICA payments or court compensation orders (CCOs). Advocates of natural justice will no doubt endorse any increase in the making of CCOs, which are hardly ever issued at present yet have at their heart the laudable principle that the abuser pays for the harm that they have caused.

Phase 2: Limitation and Redress: 26-28 November 2019

IICSA now turns its attention to two specific and fundamental questions, those of:

  • The defence of limitation; and
  • The potential for a redress scheme.

Both questions will be investigated in detail at a further three day public hearing in November 2019.

Limitation

From its review of the evidence, and without reaching any conclusions, it is clear that IICSA regards the issue of limitation as very challenging for claimants, even if the courts are prepared to be more generous in CSA cases than in other categories of injury claim and claimant lawyers are prepared to question why CSA claims should attract a different limitation regime to other categories of claim. Defendants maintain that it is an equitable defence, but IICSA did note distinctions between the approaches of different types of insurer and different types of organisation and, further, as to the recording of best practice across different insurers.

At the hearing in November IICSA is expected to investigate whether the challenges to victims and survivors which arise from limitation are such that a fundamental change in the legislation (such as the reversal of the limitation burden in Scotland) should be recommended. But it is also recognised that any change will have consequences, and there will be important questions for IICSA to investigate. Should the burden be reversed? If it is, then what is the appropriate revised test that the court should now apply? What are the likely consequences for all parties of those changes?

Redress Schemes

IICSA identifies that the usual components of a workable redress scheme should include:

  • compensation;
  • apology/acknowledgment;
  • the prevention of further abuse to others;
  • counselling or other treatment;
  • a non-adversarial system;
  • speed; and
  • parity with civil damages.

The report also includes a balanced and detailed summary of common advantages and disadvantages of these schemes, noting problems that can arise from aspects such as the imposition of arbitrary time limits and the often thorny question of who should fund any scheme.

Importantly, the report also reflects the awareness of IICSA that for various reasons a single, overarching and wide-ranging scheme may be too difficult to achieve. But this does not mean that redress schemes cannot be an effective means of resolution of claims, in the right circumstances and for the right reasons. As with limitation, there is a range of opinion and a range of options, all of which will be subject to detailed scrutiny in November.

That hearing, which begins on 26 November, is awaited with interest.