Clare Jerrom speaks to David McClenaghan Head of Abuse at Bolt Burdon Kemp about delays in the criminal justice system and investigations into cases of non-recent child sexual abuse.

The COVID-19 pandemic has exacerbated delays in the criminal justice system for victims and survivors of non-recent sexual abuse, with court hearings cancelled during the lockdown and backlogs building up, a leading claimant solicitor has warned.

David McClenaghan , Head of Abuse at Bolt Burdon Kemp, said that during the COVID-19 lockdowns there were universal delays in the criminal cases of alleged non-recent child abuse as courts were closed and police were unable to interview suspects.

“That problem is not going away any time soon as there are now backlogs which will affect things for several years to come,” said David. “On a positive note, in terms of the civil cases, there have been no delays as we have been able to continue moving forwards using video links and carried on throughout COVID. However, in the criminal courts, there are real delays.”

“So many prosecutions were lined up and have now been delayed because the courts were not sitting during COVID. This is creating a massive backlog and there will be more and more delays in the coming year which cannot be a good thing.”

“Even before COVID hit, there was a lack of resources – there are only so many police trained to deal with this specialist area – it is quite unique gathering evidence in historic cases of abuse. A lot of people first disclose abuse to us and we tell them to report it to the police. There are occasions where the criminal process takes two, three or four,  years – that is not uncommon. Then there is a civil case after the criminal case, that can take between one and three years and so the survivor is on that journey for potentially several years.” explained David.

“It is really difficult for that person. They are focusing on distressing memories for a long period of time. Many survivors have spent their life trying to suppress those memories and then they are confronted with having to tell their story. It is not an easy process and anything that can be done to speed that process up can only be a good thing,” he added.

The trust is broken

While most survivors accept and find comfort in the fact that a decent, thorough investigation will take some time and they will want the police to be doing a good job, there comes a time when the drawn out process is too detrimental to the survivor.

The survivor should only have to make their statement once in their interview with a specially trained police officer. Due to the length of delays, there may be personnel changes but survivors should be spared of repeating their story. “The difficulty is, when there is a change in personnel, the victim will – over time – have built up a trusting relationship with whoever they are liaising with. If that officer moves on, that trusting relationship is broken, survivors have to start over again.”

At BBK, David ensures that his team work from the interview given to the police rather than risking re-traumatising the survivor by making them repeat their story to them too.

The impact of delays on the survivor can be detrimental, particularly to their mental health. David explains that typically, the process would start with the survivor being interviewed by specialist officers trained in non-recent abuse.

“However, then they are left alone while the police carry out the investigation, leaving the survivor wondering what is coming next. It is a long process, and the police won’t update the survivor every step of the way. It can take time though to carry out the investigation, interview the suspect, make a decision whether to charge them, involve the Crown Prosecution Service and then wait to hear if the suspect will plead guilty or not guilty and then they may change their mind at the last minute. There is the constant worry that it will go to trial, and they will have to stand up in court and tell their story and that is the focus in their minds throughout the investigation,” explained David. “They have gone from a situation of trying to forget what happened in many cases, to being constantly reminded.”

Underhand secrecy

As well as the lengthy process once the investigation begins, the abuse may have occurred years or decades before the survivor feels ready to disclose. “The abuser often tells the victim that the abuse is a secret, there is always an underhand secrecy built into it. A lot of children do not realise the gravity of the situation they are in. Furthermore, often the abuse is being carried out by a family member. So, if a granddaughter is being abused by her grandfather, she knows that if she discloses the abuse, there is going to be serious disruption to the whole family,” said David.

Shame, embarrassment and the sense that it was somehow their fault are also contributing factors in people not disclosing. “There used to be much more of a stigma about abuse but as more and more people have come forward and told their stories, it has encouraged others to do so too,” he added.

David outlines how the approach of the police has changed in recent years whereby police officers have adopted a position of belief when people disclose abuse. Formerly, there was the notion that there had to be an impartial investigation from the offset which may have resulted in survivors fearing that they would not be believed. However, Operation Hydrant was established in June 2014 to deliver the national policing response, oversight, and coordination of non-recent child sexual abuse investigations concerning persons of public prominence, or in relation to those offences which took place within institutional settings and is also responsible for identifying best practice and sharing it with frontline staff carrying out the investigations.

“This changed police officers’ approach to starting from a position of belief which is a good thing and enables victims to feel from the off that they are believed,” said David.

Accessing specialist support

The role of the Independent Sexual Violence Adviser is an invaluable one, David says as having somebody independent to support the survivor throughout the process is “a brilliant thing” as often survivors would rather discuss the case with someone independent rather than a family member. But accessing this kind of support is a postcode lottery. David also highlights a lack of support for male survivors. Furthermore, accessing specialist mental health training for survivors can be gruelling, with lengthy waiting lists. It can be easier for survivors to access NHS Improving Access to Psychological Therapies (IAPTs), however, as David points out, this is not delivered by a specialist psychologist or psychiatrist trained in this complex area. In fact, David warns, it can be more like a self-help guide.

“I wouldn’t expect any of the people I work with to benefit from six sessions of Cognitive Behavioural Therapy. Yes, some help is better than no help at all but IAPTs is not geared up to deal with the complexity of cases involving survivors of non-recent childhood abuse.”

“It was always standard advice that survivors should not begin treatment for mental health problems or psychological support during the criminal proceedings as medical records can be used in the criminal courts. However, the earlier the survivor receives help and treatment, the earlier they can process what has happened and try and move forwards with their lives,” said David. “It has been a great frustration to us that when you take on a civil case, it is very rare to secure an interim payment and survivors are forced to wait until the case has concluded before they can access any compensation for them to use to access private specialist treatment.”

“We are rolling out a process whereby we pay up front for our clients to receive mental health support as soon as possible. Hopefully the litigation process will be a lot less difficult for survivors if they are already receiving the treatment they need. It is vital to provide as much support as possible. However, in criminal cases, defence lawyers will use any piece of information to help their clients,” he added. “If there are any inconsistencies, the defence will try and access medical records, school records – anything that could show the survivor to be deemed ‘unreliable’.”

“Defence lawyers will do anything they can to discredit victims and survivors. They will put it to them that they are fantasists and making it up.  It is not a pleasant experience. Civil trials are much less invasive and focus on the effects rather than whether the abuse did or didn’t happen. A civil case can be bought on its own, but a criminal conviction is massively helpful in civil cases,” he adds.

Cannot put their life on hold indefinitely

Sometimes, the delays in the proceedings or in accessing support services can be too much for the survivor. “We are always up front with survivors about how long the case may take and we have had some people come to us and say they are not prepared to spend that length of time focusing on a case as it would put too much stress on their lives. I know of survivors who have taken their own lives due to a number of contributing factors.”

When survivors start a case and then have second thoughts when the reality of living the situation takes hold, some decide they cannot take it and want to drop charges. However, David warns that the police and CPS would not want a case to be dropped once it had begun and therefore there is pressure on the survivor to carry on with it, even if they feel they can’t.

At the same time, when David explains to a survivor who has disclosed to him for the first time how the process works and that they should report the allegation to the police, he explains the time frame involved and some people decide then and there that they ‘cannot put their life on hold indefinitely’ and walk away.

“Occasionally, there are cases where Child A discloses abuse and will say that he knows that Child B was abused at the same institution as he witnessed the abuse. However, when the police speak to Child B, they may deny it completely as they are not ready to disclose the abuse or have suppressed what happened. They may not be in the same position as Child A and ready to disclose allegations,” said David.

The main way to improve delays in the criminal justice system for survivors of non-recent abuse is to divert resources towards the police and the CPS, said David.

“Investigating officers need to be working as efficiently as possible and maybe, instead of having 10 cases, they should have 5 cases so they can progress each case more effectively and swiftly. I have seen the fantastic work of our specially trained police officers who investigate abuse cases, however their workloads are often high and I would urge the government to devote more resources to training more police officers investigate abuse cases so that they can be progressed as swiftly as possible. The court service needs to be more flexible until the backlog is cleared, whether that is sitting for more days, or more hours and utilising technology to enable more hearings to take place via video links to speed things up,” David concluded.