THE 'COMPENSATION FACTOR'
100. One of the unsettling features of these cases is the role that is said to be played by compensation. The principal concern—shared by a number of those who gave evidence to us—is that the prospect of compensation induces certain individuals to come forward with fabricated[169] or exaggerated[170] allegations. David Rose expressed his concern that "the criminal process ha[d] become contaminated by the civil process".[171] Richard Webster put it more starkly, when he said "compensation and therefore deliberate fabrication is at the root of miscarriages of justice which we are talking about here".[172]
The risks of inducing false allegations
101. The risk that the prospect of compensation might induce some individuals to give untruthful evidence is said to be compounded by a number of factors. First, the almost open invitation, given by the police during a trawl, to make an allegation of past abuse.[173] Secondly, the advertisement by solicitors of civil compensation actions and awards.[174] Thirdly, the working relationship that has been established between certain firms of personal injury solicitors and police forces. Finally, the conduct of group litigation, in civil compensation actions, is said to leave little opportunity for scrutiny in each individual case.[175] We will concentrate on what we consider to be the most serious of these issues, which is the working relationship between personal injury solicitors and the police.
102. In considering the broad issue, we have taken on board the point that compensation can also be a "factor in bringing forth true allegations".[176] We did not discern any strong dissent from the view that genuine victims of abuse should be entitled to compensation. Furthermore, we have kept in mind the point that victims who claim compensation legitimately often find themselves in a "no win" situation. As Howard Webber, Chief Executive of the Criminal Injuries Compensation Authority, explained:
"If they apply [for compensation] before the trial, that can be used to question their integrity. If they apply after the trial, that can be used to argue that they are being sly and trying to conceal that fact from the defence".[177]
The working relationship between personal injury solicitors and the police
103. During an interview for the Panorama programme, 'In the Name of the Children', Peter Garsden, a partner solicitor of Abney Garsden McDonald, described his relationship with the police as "symbiotic". He explained:
"They depended on us, and we depended on them...in certain ways. For example, the police would want us to refer any new complaints of abuse that they didn't know about to them, because it would help them in their process...We depended on them, because we wanted from them as much information about the pending criminal trials as possible".[178]
104. David Rose, Special Investigations Reporter for The Observer (and author of the Panorama programme) outlined some examples of this symbiosis. He referred to the holding of regular meetings between the police and groups of compensation solicitors and said that some forces had made direct referrals to named firms of solicitors.[179] He also told us that a senior officer in Merseyside Police—John Robbins—had written directly to solicitors, asking them to advise their clients to postpone their action for compensation until the conclusion of the criminal trial.[180] He suggested that it was "no coincidence" that that particular officer was now working for a firm of civil compensation solicitors, following his retirement from the force.[181] To his mind, this was "very clear evidence of a worrying degree of...blurring of the civil and criminal processes".[182] He later added, however, that "in fairness, this [relationship between solicitors and the police] has begun to close down".[183]
105. When we asked Peter Garsden about his relationship with the police, he gave a very different picture. He said:
"The accurate way of describing the relationship is unilateral because, quite frankly, to the police I am a pain in the neck and they wish that I did not exist because I cause them so many problems with their prosecutions because I am repeatedly asking for information that they would rather have nothing to do with me but they accept the fact that civil litigation does exist, it is a realistic possibility so they have to find a way around that".[184]
106. Keith Robinson, solicitor at Jackson & Canter Solicitors, said that 'symbiotic' was not an accurate description of his relationship with the police either. He said that, contrary to the evidence given by David Rose, referrals to his firm had "come from many forms and only a minority have come through direct referrals from the Police".[185]
107. The employment of John Robbins at Abney Garsden McDonald, following his retirement from the police, appears to have forced Merseyside Police to address this issue. Chief Superintendent Mike Langdon told us that his force have had to be "very clear about what the relationships are". As a result, contact with solicitors is now documented and meetings are "of a strategic nature" only and are minuted.[186]
108. We are concerned that neither the internal police guidance, nor the Government guidance, on historical child abuse investigations, give any specific direction on the proper relationship between the police and personal injury solicitors.[187] We recommend that the Home Office issues guidelines, which prescribe the elements of a 'model relationship'. We suggest that the Home Office act in consultation with the Association of Chief Police Officers to ensure consistency between the various guidance documents.
Civil compensation and the Criminal Injuries Compensation Scheme
109. There are two alternative routes to compensation in cases of past institutional abuse. The complainant can either claim compensation under the Scheme administered by the Criminal Injuries Compensation Authority,[188] or they can pursue an action for damages through the civil courts. Although both routes are subject to time limits,[189] these are generally waived or extended in cases of child abuse, usually on the basis of supporting psychological evidence.[190] If both routes are pursued successfully, the Criminal Injuries Compensation Authority will seek to recoup the sum awarded under their Scheme.[191]
110. There are three significant differences between the two available options. The first relates to the average level of award. The tariffs set by the Criminal Injuries Compensation Authority (for this type of offence) range from a minimum of £1,000 up to a maximum of £33,000 for the most serious injuries. Awards may be reduced, or even refused, if the applicant has a past criminal record.[192] We were informed that, in 48 institutional abuse cases resolved last year, a total award of £146,000 was made.[193] This makes an average award of £6,400 per applicant. By contrast, civil compensation awards can range up to £100,000 and many fall between the £30,000 to £75,000 bracket.[194]
111. The second key difference relates to the time that it takes to obtain compensation. We heard that the average turn-around for applications to the Criminal Injuries Compensation Authority is eight months, with 80 per cent being settled within a year.[195] By contrast, civil actions can—in the 'worst case scenario'—take up to eight years or more to resolve.[196] In the context of litigation, which is adversarial by nature, such a lengthy delay can be very traumatic for the victim.[197]
112. The third difference relates to the complexity of the process and need to instruct lawyers. Although lawyers are generally instructed to represent claimants in a civil actions, the majority of applicants to the Criminal Injuries Compensation Authority (CICA) do not have the services of a solicitor as public funding is not available for such an application.[198] We are told that, in most cases, applicants to the CICA do not need a solicitor to assist with their application.[199]
113. Although the CICA is by far the quickest and simplest option, less than 20 per cent of the complainants in criminal investigations claim compensation under the Criminal Injuries Compensation Scheme.[200] We understand that a larger proportion will pursue a civil action for damages. Peter Garsden, who is "now running the biggest specialised department in the country"[201] informed us that his firm is currently handling 20 group actions and 800 individual claims for compensation arising from past abuse in children's homes.[202] His website states that his department has grown by at least 600 per cent since its establishment in the mid 1990s.[203] We note in passing that there may be an element of self-interest, amongst lawyers, to generate business by encouraging complainants to lodge civil compensation claims, rather than directing them to the CICA. By his own account, Mr. Garsden—and about 20 other specialist solicitors—are wholly reliant on compensation claims by complainants of child abuse as the source of their business.[204]
114. There are a number of other factors which may account for the relatively low take-up rate, in historical child abuse cases, of the Criminal Injuries Compensation Scheme. The complainant may seek accountability for the abuse suffered rather than financial compensation,[205] or to have his 'day in court'[206]—although in reality most of these claims are settled out of court.[207] We are concerned, however, that some complainants are discouraged by the rules and procedures of the Criminal Injuries Compensation Scheme, such as the penalty that is imposed for a past criminal record.[208]
115. We recommend that the Criminal Injuries Compensation Authority conduct a review of its Scheme, with a view to ensuring that it is sufficiently user-friendly and attractive to victims of past institutional child abuse.
Vicarious liability
116. Civil compensation actions are generally brought against the employer of the abusing carer, rather than the abuser, as it is the employer who is more likely to have funds to satisfy the claim. Typically, in these cases the employer is a local authority or charitable organisation. Until recently, civil claims were founded principally in negligence, based on the employer's breach of duty in the selection, employment and supervision of the abusing care worker. To succeed, the claimant was required to prove, first, that the employer was in breach of his duty of care and, secondly, that the breach had caused the damage.
117. Following a ruling of the House of Lords in 2001,[209] which overruled a Court of Appeal decision given only three years earlier,[210] such claims can now be more easily founded on the employer's vicarious liability. This is a form of strict liability, in the sense that the claimant does not need to prove fault on the part of the employer. In contrast to negligence, the relevant test is simply whether the care worker committed the acts of abuse "within the scope of his employment". Prior to the decision in 2001, acts of sexual abuse were generally considered to be independent acts of the employee, which were outside the scope of employment.
118. In the case in question—Lister v. Hesley Hall Ltd[211]—the owners of a boarding school were held vicariously liable for acts of sexual abuse, committed by the school warden, against children resident at the school. Although, at trial, the employers were not found to have been negligent in the management of the school, the House of Lords held that the acts of abuse were committed "within the scope of employment" and, therefore, the employers should be held liable for them. Peter Garsden explained to us that as a consequence of this decision, "concentration [in institutional child abuse cases] was taken away from negligence and mismanagement and diverted towards the credibility of the claimant and the law of limitation".[212]
119. In our view, the House of Lords' ruling in Lister has widened the scope of liability—without fault—too far. We believe that this may have two adverse consequences. First, it may discourage employers in the care sector from taking preventative measures to safeguard against acts of abuse. Theresa Reynolds, of Victim Support, argued to us that one of the advantages of civil actions was that the "risk of being sued for damages...may actually ensure that they put in policies and procedures to ensure that this sort of abuse does not happen...which is what everybody wants".[213] If, however, the employer knows that he will be liable for the abuse, regardless of his efforts to tighten management procedures, he may be less inclined to take those preventative steps, relying instead on good insurance cover.
120. Secondly, we believe that by opening the door to 'no fault' liability in civil compensation actions, the ruling may further encourage unscrupulous individuals to make false allegations, in the hope of receiving substantial awards of financial compensation. We do not seek to deny compensation to genuine victims. However, we believe that in cases where the employer was not at fault, the appropriate route to compensation is either via the Criminal Injuries Compensation Authority, or through a direct civil claim against the abuser.
121. We would like to see a return to the legal position, pre-2001, when employers were not generally regarded as liable for sexual assaults committed by their employees, unless the employer was also at fault through his own negligence. To go back to this position would not, in any way, affect the liability of employers who were found to be negligent, nor would it prevent complainants from suing the alleged abuser directly, or from claiming compensation from the Criminal Injuries Compensation Authority. For these reasons, we recommend that the Government gives serious consideration to the introduction of legislation to overturn the House of Lords' decision in Lister v. Hesley Hall Ltd, which—in our view—has broadened the scope of 'no-fault' (vicarious) liability too far.
Other options for reform
122. In our view, the Criminal Injuries Compensation Scheme offers the quickest, and therefore least traumatic, route to a modest award of compensation. We believe that, if it were the only option available, the issue of compensation would be less likely to threaten the integrity of criminal investigations. Many police forces have adopted clear protocols with the CICA to ensure first, that the regulations of the Scheme do not disadvantage victims and secondly, that the issue of compensation does not undermine the police investigation. Furthermore, as the Scheme is publicly administered, the CICA does not operate to make a profit.
123. With this in mind, we gave serious consideration to a proposal which sought to limit the scope for litigation in these cases by simply removing public funding (previously known as 'legal aid') from personal injury actions relating to child abuse. It was not particularly radical; public funding has already been removed from the vast majority of personal injury actions.[214] Victims of abuse would still be entitled to, and could, litigate with private funds. Those without private funds, would still have the option of making an application to the Criminal Injuries Compensation Authority.
124. In practice, the removal of public funding would, in most cases, leave the CICA as the only viable means of obtaining compensation. The majority of claimants are either unemployed or without sufficient resources to privately fund a court action.[215] Peter Garsden said that 98 per cent of the 800 individuals that he represents, or co-ordinates, are publicly funded.[216] He further suggested that this type of claim was unsuitable for conditional fee arrangements.[217]
125. Initially, we were very attracted to this proposal. However, on closer examination we found that it was not without complications. There is a risk that, by depriving effective access to the courts, the proposal may fail to comply with the Human Rights Act 1998. Article 6.1 of the European Convention on Human Rights guarantees the right to a fair trial. Although this does not include a general right to civil legal aid, the case-law shows that, in some circumstances, the State will be obliged to provide for the assistance of a lawyer.[218] Actions in negligence, which arise from abuse in children's homes, may well fall into this category, although it is not clear whether the same would apply to vicarious liability.[219] In addition, the removal of public funding will inevitably reduce the threat of negligence actions, which can produce a positive influence on the management of children's homes.
126. Provided that our recommendation in paragraph 121 (regarding vicarious liability) is taken up, we are not persuaded that personal injury actions arising from historical child abuse should be excluded from public funding.
Other factors
127. We are aware that there are other factors, aside from compensation, which might induce individuals to make false or exaggerated allegations. The prospect of achieving parole or improving the chances of a lighter sentence are just some examples.[220] We are particularly concerned about the practice, adopted by some solicitors, of approaching the police for a letter in support of mitigation for their client. We have seen clear examples of such letters and the responses that were given by the police. When we asked our expert panel of psychologists, a psychiatrist and a criminologist whether the practice of requesting letters of mitigation from the police was appropriate, they all agreed that it was not.[221]
128. We believe that any practice of requesting, or offering, any inducement (such as a letter of mitigation) to give evidence against a suspected child abuser is to be strongly deprecated. The dangers of generating false or exaggerated evidence are manifest, particularly in cases where the evidence will be difficult to disprove because of the substantial delay since the abuse was said to have occurred. Although we deplore any requests by lawyers for mitigation for their clients, we are more concerned about how such requests are handled by the police. At present, this is another issue upon which the existing guidance for historical child abuse investigations appears to fall silent.
129. We would invite the Association of Chief Police Officers to further revise the internal police handbook for senior investigating officers, with a view to minimising the risks of inducing false or exaggerated allegations. First and foremost, we believe that any practice by the police of offering, or acceding to requests for, mitigation in exchange for evidence against suspected child abusers in historical cases should be prohibited.
169 Linzi McDonald cited the case of David Jones, in which she had represented Mr. Jones. She said that two witnesses were prepared to state, on oath, that the complainants had admitted to them in conversations that they had fabricated allegations against Jones in order to get compensation, Q. 210. Vol. II, Ev 71-2. Richard Webster cites another example in his book, The Great Children's Home Panic, (The Orwell Press, 1998), p. 27. Back
170 Richard Webster said to us, "If you make an allegation of buggery then that would result in more money. The police officers are well aware of this and so are potential complainants". He also cited an example of a case where an abuser had faced (and pleaded guilty to) more serious charges that he was actually guilty of, Q. 67. Back
171 Q. 92. Back
172 Q. 93. Back
173 See section 1 (The Investigation). Back
174 David Rose, QQ. 91-2. Penny Ayles responded to the particular criticisms of her own conduct, and that of her firm, Woollcombe Beer Watts. Vol. II, Ev 11-13. Back
175 David Rose, Q. 107. Personal injury solicitors gave us a different perspective and explained the purpose of group actions. See Penny Ayles, Vol. II, Ev 11-13 and Peter Garsden, Q. 551. Back
176 Howard Webber, Q. 313. Back
177 Q. 305. This point was echoed by Theresa Reynolds (Victim Support), Q. 928. Back
178 'In the Name of the Children', Panorama, broadcast by the BBC on 26 November 2000. Back
179 Q. 67. Back
180 Ibid. Back
181 Ibid. Back
182 Ibid. Back
183 Q. 89. Back
184 Q. 502. Back
185 Vol. II, Ev. 98-101, p. 99. Back
186 Q. 726. Back
187 See Complex Child Abuse Investigations: Inter-agency Issues: Guidance, (Home Office, Department of Health, May 2002) paras. 6.4-6.6 and SIO Handbook: The Investigation of Historic Institutional Child Abuse, ACPO Crime Committee, March 2002, (unpublished), para. 7.3. Back
188 The CICA produce a guide to the Criminal Injuries Compensation Scheme 2001. Back
189 The CICA has broad discretion to waive the time limit of two years from the date of offence to the date of the application, however, it will not accept applications which relate to an offence occurring before 1964. The Limitation Act 1980 imposes a three year time limit for certain personal injury actions, from the date on which the cause of action accrued or the date of knowledge (if later). However, section 33 gives the courts discretion to extend this period. Back
190 Howard Webber, QQ. 274 and 302, Francis Swaine, QQ. 497-498. Back
191 The Criminal Injuries Compensation Scheme 2001, (Home Office, April 2001), paras. 48-9. Back
192 Ibid, para. 13(e). Back
193 Howard Webber (CICA), Vol. II, Ev 31-3, p. 33. Back
194 Association of Personal Injury Lawyers, Vol. II, Ev 20-1. See also Norwich Union, Vol. II, Ev 79-80. In a recent case, a total award of £200,000 was made to eight claimants, with some claimants receiving up to £75,000 (The Times, 3 July 2002). Back
195 Howard Webber, Q. 309. Back
196 Peter Garsden, QQ. 444; 480. Back
197 See for example, the evidence of Peter Garsden, Q. 523. Back
198 Howard Webber, Q. 294. Back
199 Ibid, Q. 596. Back
200 Ibid, Q. 287. Back
201 Q. 332. Back
202 Vol. II, Ev 57-8. Back
203 http://www.abneys.co.uk/Legal500Entry.htm. Back
204 QQ. 347; 569. Back
205 Peter Garsden, Q. 517, Kathryn Stone, Q. 858, Matthew Byrne, Q. 924. Back
206 Peter Garsden, QQ. 517, 521, Phil Frampton, Q. 872. Back
207 Zurich Municipal have said that "if criminal prosecutions establish guilt, then an insurer's ability to successfully defend a claim in the civil courts is drastically reduced...and insurers will normally seek an early settlement", Vol. II, Ev 132-133. Back
208 Awards may be reduced or even refused, where the applicant has a past criminal record. This may discourage applicants who have convictions. See e.g., Peter Garsden, Q. 481, Theresa Reynolds, Q. 927. Back
209 Lister v. Hesley Hall Ltd [2001] UKHL 22; [2002] 1 A.C. 215. Back
210 Trotman v. North Yorkshire County Council [1999] L.G.R. 584. Back
211 [2001] UKHL 22; [2002] 1 A.C. 215. Back
212 Q. 393. Back
213 Q. 967. Back
214 Access to Justice Act 1999, s. 23 and para. 1(a) of Sched.2. The Funding Code Guidance, (April 2002), para. 3.2 states that the excluded services relate to allegations of "negligently" caused injury or damage because it was not intended to exclude cases arising from an alleged assault or deliberate abuse. Back
215 Peter Garsden, Q. 570. Back
216 Q. 437. Back
217 Peter Garsden, QQ. 565; 571-572. Back
218 The European Court of Human Rights found a violation of Article 6.1 in a case where the absence of legal aid had prevented the applicant from real and effective access to the court in a complex matrimonial dispute involving important issues of child custody: Airey v. Ireland (1979) 2 E.H.R.R. 305. However, both the Commission and the Court have held that the exclusion of legal aid in defamation cases was legitimate: Winer v. UK (1986) 48 D.R. 154, Munro v. UK (1987) 52 D.R. 158, McVicar v. UK, May 29, 2001, ECtHR (no. 46311/99), unreported. Back
219 Given that it is now easier to establish vicarious liability in this field, it could be argued that a complainant would not need the assistance of a lawyer to bring his claim. By contrast, the issues in negligence cases tend to be more complex. Back
220 See for example, David Rose and Richard Webster, Q. 93, Dr Christopher Reeves and Rory O'Brien, Q. 171, Phil Craig, Q. 173, Neil O'May, QQ. 214-215, Claire Curtis-Thomas MP, Q. 826, Dr William Thompson, QQ. 1004; 1013. Back
221 Dr William Thompson, Dr Janet Boakes, Professor Gisli Gudjonsson and Detective Inspector Andrew Parker, Q. 1006. Back
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