Examination of Witnesses (Questions 540-559)
MR PETER GARSDEN AND MS FRANCES SWAINE
TUESDAY 11 JUNE 2002
540. Given that they think that once a criminal conviction has been delivered the claim for compensation follows and is usually granted, do you ever advise your clients to pursue the criminal prosecution for the abuse before lodging their claim for compensation?
(Ms Swaine) It is not our decision.
541. That was not what I asked. Do you ever advise them? Are there any cases where someone has come to you and said "I am thinking of lodging a claim for compensation" and you are the experts, pursuing 700 cases, have you ever said "Well you should take this through the criminal court first"?
(Mr Garsden) No, that is not what I have said. You are asking me are there any cases in my client base where they come and see me but they have not been through the criminal courts and not been to the police and the answer is yes. I have advised them that they ought to go and see the police and give a statement because for all I know that alleged abuser is still operating in the child care arena and ought to be investigated and prosecuted and taken away from children. It is a public duty I have.
542. One of the other points that was put to us was by David Rosethis goes back to John Robbins when he was at the Merseyside policehe wrote to solicitors on two separate occasions saying "Please advise your client not to lodge his civil claim until after the end of the criminal trial". When David Rose subsequently interviewed Mr Robbins and asked him now he is working at your firm why he wrote those letters, Mr Robbins said "It was to make their evidence look more credible in the criminal court so that they could truthfully say, when cross-examined, that they had not lodged claims for compensation". Are you aware of this point?
(Mr Garsden) I think you ought to ask Mr Robbins that.
543. He now works for you.
(Mr Garsden) Yes, he does. I cannot answer for the veracity of that reply. He can answer for the veracity of that reply.
544. Would you be worried as a solicitor that was the case?
(Mr Garsden) If you are saying to me "Is it wrong for civil claims to be halted pending the result of the criminal prosecution?" The answer is no it is not wrong, it is wholly right and if the civil claim interferes with the criminal judicial system and prevents justice being done then it is absolutely right. There are examples, indeed in the Shipman prosecution where that has taken place. We have been very careful in our group actions where there are continuing police prosecutions to stay those civil claims so as not to interfere with the outcome of criminal prosecutions and justice.
545. Here the motivation seemed to be halt your civil claim because otherwise it might spoil your evidence in court. Earlier when we were talking about the symbiotic relationship alleged
(Mr Garsden) Alleged.
546.between the lawyers and the police you said that was the wrong word. Yet what could be more symbiotic than a serving policeman writing to the solicitors saying "Advise your clients not to lodge their claim until after the criminal proceedings"?
(Mr Garsden) I can only repeat the answer I have given and suggest to you that is a question really you ought to be asking the Chief Constable of Gwynedd and Dyfed who I know will be coming to give evidence to this inquiry.
547. If it is something you are worried about why did you employ him?
(Mr Garsden) It is not something that I am worried about. I have told you I believe that it is important that the civil process does not interfere with the criminal process because what you are concerned aboutif I am rightare injustices being done. If there is any suggestion that an injustice is going to be done a civil claim should not interfere with a criminal claim and it should be halted until that criminal claim is over and that is our policy. That has been recognised by the judiciary and the civil claims. It is why they have agreed to stays when the defendants want the cases to continue.
548. If the purpose of pursuing a criminal prosecution is to secure civil compensation is there not a danger that the issue of compensation is going to colour the evidence of the court?
(Mr Garsden) There is undoubtedly a conflict between the civil and the criminal process and it is an unfortunate one. I have wrestled long and hard with that conflict for at least eight years and I have not come up with a satisfactory way of solving it and I wish I had. If this Committee is more resourceful and better than I and can come up with a way, I would support it wholeheartedly.
549. I think you said in answer to an earlier question that the limitation period has normally been waived by the judge. Effectively can it be frozen throughout the criminal proceedings?
(Mr Garsden) Yes.
550. Time is not too crucial.
(Mr Garsden) I am glad you mention that. That is one of the ways in which the Law Commission have recommended that the law limitation is changed. Strictly speaking you cannot agree to a waiver of the limitation period in a civil case. I do not think there is any civil justification for doing so. We have devised a system in our group actions whereby we run through agreed protocol with a defendant and disclose documentation to them without having to issue proceedings and they agree in return to a freezing of the limitation period. Yes that is a deal which has been struck between parties in the group actions I run.
551. Perhaps you could just say a word about these group actions and what are the advantages of bringing them?
(Mr Garsden) Basically they are creatures which have been urged and encouraged by the judiciary and the court system because they are a very effective and cost saving device. For the sake of example, if there are generic issues to be tried, rather than try them in a group action 500 times, you only try them once and that decision benefits the remainder of the claimants in the group. Each individual claimant does not have to do as much work because that work is only done once by the lead solicitors. For example, in the abuse cases, there will only be one examination of the trial transcript from an abuser, and that would be by me, whereas if you brought 500 cases or 150 cases each solicitor would be entitled to examine that trial transcript over and over again. It is something that the court system favours. It enables them to manage the cases more efficiently. It saves costs to the defendant insurance company and it saves costs to the legal aid system and the courts. That is why we run them as a group.
552. Very briefly, Chairman, I just want to establish precisely whether your company benefits from a civil compensation claim. We have heard that you get legal aid cases. The reason I put the question is that on your website you cite two group actions, one of which was 35 victims receiving in total £400,000 as a group award and the other 11 victims receiving £100,000. Does Abney Garsden McDonald as a company get any part of that compensation payment?
(Mr Garsden) No.
553. You survive purely on the public purse legal aid?
(Mr Garsden) No. We are paid on an interim basis by the Legal Services Commission and, quite frankly, I would not be here if I had not been supported over an eight year period at a very low hourly rate by the Legal Services Commission. They have kept me afloat. I am hoping for a much higher hourly rate when I win these cases. When I win these cases the defendants will pay all my costs. The Legal Aid Fund, as has just happened recently, will be refunded in full, therefore it will have cost nothing to the public purse. If there is any shortfall between the amount of costs I have incurred and the amount I am paid by the defendant, the shortfall is made up out of the claimants' damages though we try very hard not to do that and it is more or less a policy decision that we do not do it, we would have to stand the loss.
554. No win, no fee?
(Mr Garsden) No, not no win, no fee, no.
555. What safeguards do you think could be introduced to reduce the risk of encouraging false allegations without undermining a victim's legitimate right to be compensated for a serious crime? Can you foresee how that could be achieved?
(Mr Garsden) There have been various suggestions made already, have there not, to this Committee, some of which I endorse and some others of which I do not. My position on this, I think I have touched already on it, is that the criminal system has to be made to be less abusive to the claimant witness. There are ways in which that can be done. It has been suggested that recordings are made of interviews. It has been suggested that evidence is videoed. All I would say, without going into it in great detail, is that if you are going to introduce that rule then you should not victimiseif that is the correct wordor isolate care home children's cases. You have to span that across the entire sexual abuse or interference with the person type of offence.
556. Rape is an obvious example.
(Mr Garsden) Yes, it is an obvious example. There are ways in which the law on the treatment of rape victims differs from the law on the treatment of child abuse victims. To some extent I think we are taking a pejorative and critical view of these men because unfortunately they are the product of the criminal justice system. Just as they were discriminated against in care homes in the past and not believed, I think we are in danger of doing that now. I do not want to get off the subject. If you introduce the system of video evidencing, you have to introduce also, I say, the same facilities that you have for child witnesses because these people are like children often. They display many of the same symptoms that the child victims of crime demonstrate. What happens is they are abused at 13, fire and ice around them, time stands still, 30 years later they make a disclosure. It is as though time has stood still and they start manifesting the same symptoms that they did 30 years ago. They are as fragile as children and they ought to be treated with the same protection and consideration as children, and they are not. That is what the training course is to do with really. If you are going to even hand it, you ought to introduce the same system I suppose for defendants going through the criminal trial and there ought to be the facility for the witness who is in prison giving evidence in prison rather than having to come to court and face his abuser. Not only is there a huge cost to the taxpayer in getting him there, and because I know there are experiments going on at the moment of prisoners giving evidence by video link from prison, and that is a cost consideration, but there is an extra consideration in these cases because of the abusive nature of the criminal process and equating them with child victims of crime. It is a rather crude example but that is the way in which I would come at it. I come at it from a different angle from the other side and for a different reason but it achieves the same result. I would be in favour of showing how difficult it is for these men to tell their stories, how they break down in tears, how they will not look at the interviewer, how painful an experience it is for them to tell their story. If the defendants saw that evidence before they went to court they would probably plead, or be more likely to plead, guilty because they would know.
557. At the same time would you agree that if it is made much more comfortable for the accuser to give their evidence it is also making it easier for someone who is making a false accusation as for someone who is making a genuine one?
(Mr Garsden) As far as I understand quite the reverse is argued by my opponents. It is more difficult to hide false allegations if you are videoed or tape recorded, videoed probably more so, than if you simply give a written statement and then give evidence in court because frankly you have got a lot more time to plan what you are going to say, have you not?
558. The difference is not having to face the person you are accusing.
(Mr Garsden) That is a very important element. Looked at from the point of view of the victim that avoids secondary trauma. If you look at child witnesses, why do we do it for child witnesses, because we do not want to put them through the trauma.
559. We are talking about adults here though, are we not?
(Mr Garsden) Yes, but they are behaving like children, a lot of them, in my experience. What about the disabled who are abused? They have to be afforded special privileges. In fact, there is a programme on Radio 4 tonight on that very subject, on File on 4, on how the law needs to be changed to favour the victims of disability abuse because, frankly, that is on the increase, that is who the paedophiles are now targeting because they cannot give evidence, can they?