Three years have passed since I was originally invited to address Professor Alexis Jay and her panel on issues relevant to claims for victims of historic sexual abuse.
This week sees me back in London giving evidence to the Inquiry on Accountability and Reparations.
In the intervening period the Inquiry Team have travelled the country hearing testimony from survivors of a wide range of abuse scandals. The Abuse team at Farleys have assisted during this process particularly in the investigations surrounding Nottinghamshire Children’s homes.
The Inquiry is now looking at reform and what changes may improve the process for survivors.
Yesterday’s panel comprised Claimant solicitors from Farleys, Irwin Mitchell and Leigh Day with BLM and Keoghs for defendant. Peter Skelton QC put questions to us aimed at establishing whether change was needed to the existing law on limitation.
At present any abuse victim has 3 years from the date of the abuse or attaining majority to bring a claim. This is inconsistent with research that on average it takes an abuse victim 22 years before they are able to discuss the abuse. The panel are therefore considering whether the 3 years limitation period should be removed in historic sexual abuse claims.
The majority of Claimant solicitors argue that it should be changed but I have reservations.
There are already safeguards in place thanks to the decision in A v Hoare. The courts recognise the difficulties survivors face and the hurdle to bringing a claim out of time is lower. There is a 3 stage test and the first 2 stages are generally easy to overcome – what is the length of the delay and are there good reasons for it? It is very rare that victims are unable to justify their delay in coming forwards.
The 3rd stage is harder – is the Defendant prejudiced by the delay? Where the abuser has died with no criminal conviction this presents problems (although not insurmountable ones – see Saville). It is for this reason that Claimant lawyers would like to see the law changed but I am not so sure that it would make things better.
Art. 6 of the Human Rights Act (HRA) enshrines everyone’s right to a fair trial. Even if the 3 year limitation period is removed for sexual abuse survivors the Defendant will still be able to argue that the passage of time has prevented a fair trial particularly when key witnesses have died and evidence has gone missing.
The 3 years limitation period has been removed for abuse victims in Scotland but S.17 of the act facilitating this actually includes a provision that mirrors Art 6 of the HRA. If a fair trial is not possible the Claimant can not bring a claim.
All that has been achieved is a shifting in the burden of proof – it is for the Defendant to argue prejudice rather than for the Claimant seeking discretion to bring a claim out of time.
The feeling I got from giving evidence yesterday is that the Inquiry are favourable to such a change but in reality I am not sure how much it will help survivors.
I took the opportunity in summing up to stress the terrible injustice arising from the 1 year limitation period on HRA claims and also that any changes should apply equally to victims of physical and emotional abuse in childhood which can be just as damaging as sexual abuse.
Today I give evidence on a statutory scheme of redress and will be advocating root and branch reform of the Criminal Injuries Compensation Authority (CICA) scheme – a system which needs desperate overhaul.
The findings of the Inquiry may not be available for another year but I suspect significant changes in this complex and constantly evolving area of law.
If you are considering making a claim for abuse, Farleys Solicitors has an experienced abuse team who can discuss cases in the strictest confidence. Call us today on 0330 134 6430 or complete our online contact form and a member of the team will get in touch with you.