Examination of Witnesses (Questions 480-499)
MR PETER GARSDEN AND MS FRANCES SWAINE
TUESDAY 11 JUNE 2002
480. Give us an idea.
(Mr Garsden) The worst case scenario is the first case I started with. It started in 1994 and it still has not finished eight years later.
481. So this is very traumatic. To have this matter unresolved for eight years is really very traumatic. Would not the best advice be, somebody who had the victim's interests at heart, to go to the Criminal Injuries Compensation Authority where the matter would be dealt with, as we have just heard, within eight months to a year, and then you can put it all behind you?
(Mr Garsden) We do advise them to go to the Criminal Injuries Compensation Authority and they do go to the Criminal Injuries Compensation Authority. Unfortunately, they do not receive justice at the Criminal Injuries Compensation Authority. Well, not my idea of justice. The awards they get are a pittance and they do not equate with a similar scheme which has been set up very recently in Ireland, which is a far better system, a far fairer system. I do not know whether you want to talk about the Irish system but it is a marvellous system which is far fairer and better than both the CICA and the civil courts. If you want me to talk about it, I will. If you are looking at other jurisdictions, that is where you should be looking. That is also accessible via my website.
482. The awards averaged last year £6,400 a time.
(Mr Garsden) Yes.
483. And the whole matter is out the way within eight months to a year and you can get on with your life.
(Mr Garsden) I can only give you our experience of the CICA. I have seen it change from the CICB, which was slower but far fairer, to the CICA and the introduction of the tariff scheme. The Irish people looked at the tariff scheme, thought it inappropriate and unfair and too rigid for this subject area and dismissed it.
484. The awards can go a great deal higher since the system was reformed, but that is only for cases subsequent to 1994, and I guess most of these cases are pre-1994, are they not?
(Mr Garsden) Yes.
485. So the tariff system has been reformed.
(Mr Garsden) There is no recognition of loss of earnings or loss of status.
486. How many of your clients are earning, roughly?
(Mr Garsden) Very few. When I say "loss of earnings", I am talking in the broadest sense
487. Many are in prison, are they not?
(Mr Garsden)of loss of status on the open labour market. The typical example of an abuse victim is somebody who is brutally abused between the ages of 12 and 14, anally, orally, manually and physically in many cases, intimidated into silence, descends into drink and drugs and spends a life in crime when maybe his siblings have not done so because either they have not been in care or they have not gone that way. He is unable to participate in relationships with either the same or the opposite sex. He suffers depression, suicide, self-mutilation and his life is ruined. One of the ingredients is that he is totally unable to accept authority simply because the first person whom he trusted at the age of 13 abused him, and that was somebody in authority. So it is very common for them to have frequent arguments with employers and be totally unable to hold down a job. That is something that is not recognised by the CICA but which is recognised albeit rather
488. Presumably many of them were in care homes in the first place probably because they misbehaved in some way, is that true?
(Mr Garsden) They were, yes, but that is not necessarily the case.
489. I still come back to the point. We agree it is terribly traumatic, nobody disputes that, how can it be in their interests to have all this dragged out for eight years? There is a trade off at the end of the day between the amount of money you get and the amount of trauma you get, so why not strike a balance?
(Mr Garsden) I am deeply in favour of reforming the system so it is better, and I can tell you exactly how I would like to reform it, if you wish.
490. Please do.
(Mr Garsden) I think you have to look at Ireland again. Ireland has abolished the limitation rule on allegations of sexual abusethey were lobbied to abolish it for physical abuseso therefore it does not matter how long after the event it is. In Irish care homes abuse goes back 60 years in some cases and they recognise that the system has let them down and they ought to be compensated for this. They have a very sympathetic attitude towards the victims. They have abolished the rule. I would abolish the limitation rule for sexual abuse. I am talking now about civil law now and not criminal law.
(Mr Garsden) I think in criminal law the rules on abuse of process are quite adequate to protect the defendant abuser, maybe with some amendments which have been recommended by the previous legal witnesses, to throw out those cases which cannot arrive at a fair trial. However, in the civil context there is what was described by one judge as a Lewis Carroll story, in the sense that one cannot bring proceedings on trespass of the person against an abuser if it is more than six years after the date of majority, ie 24, whereas one can bring a claim against somebody in negligence if one can satisfy the discretionary requirements almost forever. No one has to get round an exception to the rule. That is something which the Law Commission has looked at and has made certain recommendations about, to change the civil law, and I whole-heartedly agree with that. The other way in which I would change the law is to take away the concept of fault from litigation. That is why, frankly, these cases have taken eight years because the defendants in my case have taken more or less every technical point they can and it has dragged on and on and on. Now the law has changed slightly in favour of the claimants, it is slightly easier but it still does not take away the concept of fault, the Irish system does. It is simply looking at how much you are entitled to rather than whether or not you can bring a claim. You appreciate it is the same problem for the defendant, he is totally unable to get access to documents which are very old, so are we. We cannot get access to the prosecution
492. You are not saying the Irish system dolls out money to whoever comes along 60 years after?
(Mr Garsden) No, there are requirements.
493. What is the limitation?
(Mr Garsden) There is no limitation rule. Well, the limitation
494. What are the criteria? There must be some.
(Mr Garsden) What, for limitation?
495. In Ireland? Forget the limitation.
(Mr Garsden) The claims have to be brought within three years of the establishment of the redress board, that is the rule. There is no rule which says "If your abuse happened in 1920 you are not allowed to bring a claim".
496. No, but obviously you need some evidence. It is going to be difficult after 60 years.
(Mr Garsden) You have to show that you were at the children's home at the time, and there are a number of other requirements which I forget. You have to prove damage. You have to prove medical injury. In other words, the proof is in the amount of damage rather than whether or not the State or the children's home are to blame. I would be in favour of changing the British law to bring it in line with Irish law.
497. Ms Swaine, what is your view about that?
(Ms Swaine) I would be in favour very much of getting rid of any of the limitation defences. I am not sure that I totally agree with Mr Garsden about the lack of fault. It would depend very much on how the no fault scheme worked, I think, and I am not familiar enough with the Irish one to make a comment. Certainly limitation is one of the big hurdles that almost always the defendants raise without fail and usually, certainly recently, the judiciary are coming to play with Section 33 much more favourably to do with clients because they are understanding better than they did in the past the reasons why there may have been psychological reasons for not disclosing your abuse much earlier.
498. Just remind us what Section 33 deals with?
(Ms Swaine) Section 33 is the discretion given to the judiciary in civil claims for negligence to overlook the primary limitation period.
499. Which is?
(Ms Swaine) A three year period either from your majority or from the time that you understood that you had suffered damage as a result of the breach of duty. It is more complicated than that.
Chairman: Thank you. That is helpful.