Examination of Witnesses (Questions 380-399)
MR PETER GARSDEN AND MS FRANCES SWAINE
TUESDAY 11 JUNE 2002
380. They are not people who came along after someone was convicted and said, "Yes, the same person has abused me too"?
(Mr Garsden) No, they are not.
381. They are not?
(Mr Garsden) No. You look as though you do not believe me.
382. I am mildly sceptical, let me not put it too strongly.
(Mr Garsden) It is true. Most of the cases we deal with have either given evidence in a police prosecution or they have not been used by the police.
383. Given evidence, yes, I see.
(Mr Garsden) Or they have not been used but statements have been taken from them. Very, very few have never, ever been to the police before they come to see us.
384. Right, they have all come via the police
(Mr Garsden) No, they have not all come via the police. I am sorry. I have read the evidence and I have to draw that distinction.
385. That is fair enough. Not all of them have been in the witness box, lots of them have not been in the witness box?
(Mr Garsden) Correct.
386. And therefore have not been subject to this rigorous test which you describe.
(Mr Garsden) Shall I tell you why?
(Mr Garsden) Because some of them, a lot of them, are simply psychologically unable to cope with the strain of it.
388. But a lot of them have not been called because a lot of their evidence was not strong enough to put forward.
(Mr Garsden) Not at all, that is not why the police chose not to use them. If you had interviewed these people then you would know how it affects them to tell the story. If they are weak because they are damaged, if they are prone to outbursts of tears, if they are lacking in intellectual capacity, if they are not verbal, if they are not able to express themselves properly and they are tested over two or three days by an experienced QC, they will crumble and they will not stand up to the test of rigorous cross-examination, so they are not used by the police. A lot of them are close to mental institutions; some of them are in mental institutions. They are of low IQ and unable to give evidence, particularly the disabled. You have to include the disabled in this field because there are care homes where particularly unpleasant acts of abuse have taken place with the disabled, and a lot of them simply cannot give evidence.
389. Mr Garsden, you have spoken about the psychological damage done to victims in cases of child abuse and the effect on legal professionals. You will be aware, I am sure, of the similar effect it has on the accused where the accusation is false and that even at the end of legal proceedings if somebody is found not guilty they never really recover from the accusation because of the publicity and loss of income and so on.
(Mr Garsden) Yes, I think I have already said that the same rights ought to be given to those who are the victims of injustice. I believe very strongly in that, yes.
390. So as a specialist in child abuse cases, do you ever take on defence cases and would you ever take on seeking compensation for somebody who had been so falsely accused?
(Mr Garsden) Yes, is the simple answer to that.
391. Have you done that?
(Mr Garsden) We have, yes.
392. What sort of proportion of your case work is that?
(Mr Garsden) A much lower proportion but we have done it. I am glad you asked that question because the subject did come up three or four years ago and we discussed what sort of policy we ought to have if this ever happened. We decided that the individual has a right to legal representation and we should not be partisan or appear to be partisan and we should represent people if they want representation, unless there is a clear conflict of interest where, for example, we were asked to represent an alleged abuser in a home we were dealing with. We obviously could not possibly if there was any tenuous connection, deal with that sort of case. But, yes, we have dealt with alleged fathers or defendants who are charged with abuse. Quite frankly, we have more knowledge in our firm of the effects of abuse and how it works than probably a lot of other legal firms, so it would be totally wrong to close the door on somebody who wanted representation if they claim they were the victim of a conspiracy or cover-up. Absolutely. They are entitled to it and we would deal with it.
393. So when the victims approach you, you do allow for the possibility that it may not be true? You do not assume that every claim is a good one?
(Mr Garsden) No, of course not. The burden of proof, of course, is different in civil law from criminal law, it is on the balance of probabilities rather than beyond reasonable doubt. If I could just digress and explain why that is now more important and why we concentrate on that more, there is a case called Lister v Hesley Hall Ltd which went to the House of Lords a year ago and that imposed civil law which was far more favourable to the claimants than previously; it changed the rules of vicarious liability. The effect of that was that the concentration was taken away from negligence and mismanagement and diverted towards the credibility of the claimant and the law of limitation. So, yes, we concentrate much more carefully. Quite frankly, if the case does not hang together, we will not be granted legal aid, because the Legal Services Commission are now a lot stricter on what cases they give legal aid to than they were at one time, and you have to have a good case before you get a legal aid certificate. So there is an additional test, if you like, which there is not for a privately-funded litigant. You have to claim you are entitled to public funding and you will not get it if you do not have a good case, and the ingredients are corroboration, whether there is an existing criminal conviction through the courts and damage. If we do not satisfy those three hurdles, we do not get legal aid.
394. How do the courts view the relative gravity of physical and psychological damage to somebody who has suffered sexual abuse and the loss of reputation and means of earning a living for somebody who has been falsely accused? The outcomes in court.
(Mr Garsden) Are you talking about that in a general way or are you limiting it to people who are falsely accused?
(Mr Garsden) You are?
(Mr Garsden) The same rules apply, the same principles of causation and damage apply to somebody who is allegedly falsely accused as do to a claimant. You have to prove damage. If you have suffered personal injury, you have to prove that with a psychological report. If you have suffered a loss of reputation, damage to your social way of life and loss of earnings, you have to prove that. Exactly the same rules apply. I hope I am answering your question, I am not convinced that I am. I am trying to answer your question.
397. I am looking at the attitude of the court, the relative gravity of those two types of injury, injury to reputation and the consequence of that to somebody who has been falsely accused. How serious is that compared with the sort of suffering that a genuine victim has received?
(Mr Garsden) It is viewed in the same way. The law does not distinguish or discriminate, unlike the CICA does, I am afraid, between different claimants. They come to the civil court with clean hands, if you like. They are not judged for having a string of convictions as long as your arm, as the CICA do. The civil courts take each claimant as they find them and use the egg shell skull rule, in other words, if you so happen to be particularly vulnerable to the effects of abuse you will be compensated perhaps more than somebody who is more resilient and is able to put it behind them and use it as a springboard to success, as a very small percentage do. I hope I have answered your question, I am still not convinced I have.
398. Ms Swaine, if you feel you want to come in, do not wait to be called, just indicate to me.
(Mr Garsden) It is probably more Ms Swaine's area than it is mine.
(Ms Swaine) I was wondering whether what you were suggesting was looking at the judicial view of the relative merits of one or the other.
399. That is exactly what I was asking.
(Ms Swaine) You can only answer it by looking at perhaps the way Peter was describing it, and how else could you answer it, by looking at what the awards are. Both are victims, a victim of false accusation or a victim of abuse, and they will be awarded something by the courts if the false accusation or the abuse can be proven. Presumably if they both get £50,000, then the judicial view will be they are equally viewed. I do not know I would feel I have enough knowledge of awards made to people who have been falsely accused to know whether that measures up well with the abused. My guess would be that because the falsely accused will be people who have lost their jobs as care assistants or teachers, therefore there will be a large loss of earnings claim, and they may well merit a greater award than the ones who have been sexually abused and perhaps never had jobs. Often in compensation cases a major part of the award is going to be loss of earnings and somebody who has never had an income, or only a very low income, will get a relatively lower award than somebody who has lost considerable wealth through losing their job.
(Mr Garsden) I agree with that.