Clare Jerrom talks to Head of Abuse at Horwich Farrelly Alastair Gillespie about delays in investigations of non-recent cases of abuse from a defendant’s perspective.

The greatest delay in non-recent cases of childhood sexual abuse is the length of time it takes for a victim or survivor to come forwards and disclose, a leading defendant solicitor has warned.

The NSPCC states that on average, it takes seven years for young people to disclose sexual abuse and the younger the child was when the sexual abuse started, the longer it took for them to disclose.

Head of Abuse at Horwich Farrelly, Alastair Gillespie, says that while he is reluctant to call it a delay as it sounds like a criticism, there is still a lapse between the time when the abuse took place and when the victim makes the disclosure and therefore, anything that has happened once the allegation has been disclosed is in the context of “time gone by”.

“Sometimes a number of years has lapsed, sometimes decades, and it is a very difficult task for the police. Someone has to come in at that point and has to try and trace the alleged abuser. Often, for various reasons, the victim can only provide minimal information such as where the allegation of abuse took place. It can then be very difficult for the police to trace people and documents from many years before. The process of putting together a picture from many years ago includes forensics, analysis in a difficult context. That is not to say that investigations should not be carried out more quickly. But when it is a case of one word against another, you need to look for corroborating evidence and it is difficult for prosecuting authorities to know what to do. None of it is easy,” said Alastair Gillespie, who recently joined Horwich Farrelly in 2021 to lead their new abuse team.

However, Alastair adds that undoubtedly resources are an issue contributing to delays. “It is clear that the criminal court system is wilting due to a lack of resources. I have no doubt that people are working hard and doing their best but sometimes it takes years to get to trial and this is down to the system being grossly under-resourced.”

Shame and embarrassment

Alastair worked at Hill Dickinson for 20 years and subsequently Keoghs when it bought the insurance side of the company in 2017. Alastair is one of the most eminent lawyers in his field, having handled cases involving abuse and neglect for nearly 30 years. He was lead defendant lawyer in both the North West and North Wales group actions and has conducted numerous precedent-setting Court of Appeal cases. In 2020 he acted for Barclays Bank and its insurers in the Supreme Court case of Barclays Bank v Various Claimants.

Having heard many accounts from victims/survivors  in criminal and civil cases over the last 30 years, Alastair says many claimants struggle with the idea of recollecting their experiences and re-living it and fear they won’t be in control of proceedings as they have to go through the procedural steps. The system can contribute to the victim/survivor’s anxiety and insecurity and Alastair says it is imperative that their expectations are managed, including explaining what is going on and what can or cannot be achieved. The many reasons victims and survivors delay in disclosing in Alastair’s experience include:

-              Shame and embarrassment about the abuse

-              Guilt – a feeling that somehow they were to blame

-              Fear of not being believed

-              A belief that the death of the alleged abuser means the possibility of justice has been frustrated

-              Uncertainty as to what happens next once they have disclosed.

Cheated of justice

“In many cases, victims and survivors feel that they have already suffered a massive breach of trust and been ‘let down’ by the system. I also have the impression from my experience that certain victims and survivors fear there that the civil or criminal system will let them down too and make things worse,” explained Alastair.

“It is also common that victims and survivors will not disclose until their parent or parents have passed away to ensure that their parents never have to live with the thought that they had let them down. Often the abuser will have befriended the parents and offered to arrange participation in activities such as swimming lessons, extra tuition, football practice and so on; and the parents may have dropped them off with the abuser. The victim/survivor doesn’t want their parent to feel that they were in some way facilitating the abuse.”

“In civil cases, many will talk about the anxiety they experience about not being believed, and that they are lying for financial gain. It is extremely difficult for them and further complicated by whether the system can deliver what they need,” said Alastair. “Virtually all victims and survivors will talk about obtaining justice, but obtaining justice means different things to different people.”

The difficulties are compounded when the alleged abuser is dead or declared unfit for trial as victims and survivors feel they have been “cheated of justice”.

A case can still be pursued in the civil courts if the alleged abuser is dead, although it is extremely difficult as one of the key factors is that the person alleged to have assaulted someone cannot speak up for themselves. “If there is a situation where a number of people came forward and made allegations against an abuser, or that person had been under suspicion and had been spoken to or warned about their behaviour, you can start to build a picture,” explains Alastair.

He cites the example of a case he was aware of where a victim/survivor made an allegation against a former choirmaster many, many years before. The choirmaster was dead, other potential witnesses around at that time were dead or untraceable and there had been no criminal investigation or charges but the establishment where the choirmaster had worked was able to produce contemporary records.

It emerged from those records that there had been a contemporaneous complaint about the alleged abuser and the head of the establishment had spoken to the choirmaster, who left the college shortly afterwards. Based on the clear cogency of that evidence, the claim was settled. Whereas in this instance, the victim/survivor was fortunate that the records went back that far, this is not always the case.

“Organisations generally keep their records for seven years which is a procedure established in documentation destruction policies and is acceptable. Organisations move, some are taken over and where records are kept, it is often in basements which are susceptible to floods, leaks, damp or other damage. With that goes a lot of the staff lists and other information which makes it more difficult to trace people,” said Alastair. “Even when you can locate people, you are referring to events going back years and the quality of their memory will not be as good as if the incident had been a few months earlier, or even a year. Illness affects memory and the issues are compounded further when some allegations are admitted, but others denied.”

Dirty money

It can be extremely personal what the victim or survivor wants either the civil or criminal process to achieve.

“Basically, in the criminal courts, the alleged abuser is standing trial and facing punishment. In the civil courts, the remedies are limited to compensation payment. The case will be assessed and liability decided and damages agreed or fixed by the court” explained Alastair. “For some people, they see the compensation as an opportunity to move on, whereas others will see the payment as ‘dirty money’ – despite the money typically coming from an insurer rather than the actual abuser.”

“Some people are not bothered about money in the slightest and want an apology. Other people want access to treatment to help them to move on. It is very important in every case to gain as early an understanding as possible as to what they are hoping to secure. Some outcomes may be possible to secure. Others – even with the best will in the world – will not be possible to secure,” added Alastair.

However, he warns that sometimes victims and survivors do not know what will help them and that can cause delays in the case. “If an individual can’t tell you what they are seeking, the case just bumps along and remains unresolved,” adds Alastair.

“We have systems in place to progress claims in this jurisdiction and, in the majority of cases, they do work, although they are far from perfect. In this area, each individual has their own tale to tell, their own context, their own personality and no system can deliver everything that each of these individuals need,” he said.

Where will the funding for Redress come from?

Would a Redress Scheme deliver better outcomes? “Redress works effectively when one institution is involved in the scheme as that institution is buying into the scheme and works with the scheme organisers to contribute in the best way it can. I am thinking of Lambeth and Manchester City. On balance, these schemes have worked well because they involved a single organisation, there was commitment from that organisation and the funding was sorted.”

The success of the Redress Scheme in Northern Ireland and the proposed Redress Scheme in Scotland remains to be seen, says Alastair.

“Insurers have not been included because legal liability has to be triggered before insurers become involved. Organisations where it has been alleged that abuse has taken place have been, and will continue to be, placed under pressure by scheme organisers to sign up to the schemes. The organisers, which in both cases are the relevant governments, are inevitably pursuing financial support and cooperation from the establishments they say are responsible. Alastair explains that some of these organisations are involved in the not-for-profit care sector and these organisations need to continue operating, particularly in the current climate following COVID.

“Yet by asking them to sign up to the Redress Scheme at varying levels can potentially threaten their very existence. The irony is these organisations will no doubt be operating totally differently to how it was when the abuse was alleged to have happened, with completely different safeguarding provisions. At the moment, those organisations are only involved through vicarious liability, a public policy construct of no-fault liability which is easier to prove than negligence, there’s no need to demonstrate that the organisation in question did anything wrong” he adds.

“Those organisations may prefer civil claims to be made by individuals rather than through the Redress Scheme as then insurance is triggered. The fundamental question is, where will the money come from in these Redress Schemes?”

Line of questioning

The Independent Inquiry into Child Sexual Abuse’s Forum report into the criminal justice system states that some defendant used underhand tactics at trial. The report says: ‘They referred to what they believed was the use of underhanded tactics by defence teams at trial and questioned whether conduct was always in line with Standards set out by the Bar.’

Survivor of non-recent abuse Chris Tuck who was involved in the forum suggested that the ‘underhand tactics’ referred to included questioning what the claimant was wearing, their alcohol consumption and how many sexual partners they may have had.

Alastair said: “These will be issues about the lines of questioning used by different barristers.”

However, he added that the Bar has policies in place around the line of questioning and the judge, overseeing matters, is responsible for ensuring that everything is appropriate, adding “there are safeguards there”.

Alastair cited the case of footballer Ched Evans who was tried at the Crown Court after being indicted of the rape of a 19-year-old woman, who was alleged to be too drunk to consent. He was convicted on 20 April 2012 and was sentenced to five years' imprisonment. However, after he had served half his sentence he was released on licence on 17 October 2014.

Sexual behaviour

Following his release, he submitted fresh evidence and the case was heard by the Court of Appeal on 22 March 2016. The next month, the appeal was allowed, the conviction quashed and a retrial ordered which began on 4 October 2016 and on 14 October Evans was found not guilty. The appeal court ruling allowed the complainant’s sexual behaviour to be taken into account by the jury. During the retrial, the complainant was quizzed in detail and at length about sexual partners and women’s support groups and campaigners have warned that the appeal court’s judgment dangerously undermines the legislation designed to protect victims of sexual assault by restricting what courts can hear about a complainant’s sexual history and behaviour and could deter some women reporting rape and other offences.

However, while it may have been considered ‘appropriate’ for this line of questioning to be adopted in the Evans’ case, Alastair says there will be cases where it is not appropriate and as a result, the judge should clamp down on it. Each case should be treated individually, added Alastair.

While the civil courts can only deal with financial compensation, the stakes are much higher in the criminal courts, said Alastair. “If you are found to have committed a sexual assault, you will go to prison for it. If you did the crime, you should go to prison. But it is only right for you to have the opportunity to defend yourself against the allegations provided that you do so by deploying arguments that are within the limits of what the courts regard as acceptable.”

In the defendant arena, there are five tiers of policy and procedures which defendants need to adhere to in order to practise ethically but also helps in terms of their role in reducing delays. This includes:

1 The Solicitors Regulation Authority has a Code of Conduct which comprise a framework for ethical and competent practice and has rules around maintaining trust and acting fairly, confidentiality and diligence.

2 All parties to litigation are governed by the Civil Procedure Rules published by the Ministry of Justice which is a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

3 There are Pre-Action Protocols, which do not yet specifically cover abuse yet but does cover personal injury and which set out minimum standards in terms of times in which to return phone calls or reply to emails in line with industry standards and which regulates compliance. Pre-action protocols explain the conduct and set out the steps the court would normally expect parties to take before commencing proceedings for particular types of civil claims.

4 This is audited by external assessors to ensure standards are being adhered to.

5 Furthermore, there will be contracts with clients setting out specific requirements which are checked internally and reviewed by external auditors.

Stakes are higher

In terms of reducing delays, Alastair says the lapse in time before a claimant discloses – which is the longest delay in the case – is not in anyone’s control as it is down to when the victim or survivor feels able and ready to disclose.

“Once they have disclosed, if it is a criminal and civil process, they will run consecutively, not alongside each other, and the criminal case takes precedence as the stakes are higher and the evidence needs to be preserved. It is right that the civil claim is held off until after the criminal case as it protects the individual from the line of questioning that they are only making the claim for financial gain,” explained Alastair.

“However, the problem with this is that while we can follow the case in the criminal courts, we cannot take any witness statements as it could be seen that this is interfering in the course of justice. But the criminal case can take months or years to come to trial which is one of the deep-rooted problems in the criminal justice system,” he added.

“In the criminal justice context, we have to look at resources. The more positions you can fund, the quicker cases can be dealt with and go through and the better the cases are prepared. However, in the current malaise it is extremely difficult, and the Ministry of Justice needs to make its case for securing more funding from the Exchequer,” concluded Alastair.

Alastair Gillespie is partner and head of abuse at Horwich Farrelly.