An update on the Scottish Childhood Abuse Inquiry

The Scottish Childhood Abuse Inquiry (SCAI) resumed hearing evidence on 11 January 2022, with the focus on Merchiston Castle School as part of the Boarding Schools case study. The next part of this study will be closing submissions, probably at the end of February 2022.

The next evidence, likely to be heard in March 2022, will relate to SCAI’s work on the prevention of the abuse of children in care, comprising expert witness evidence on the psychology of those who commit such abuse. These experts will give their evidence together in a group, probably over two days.

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Irish Jesuit Redress Scheme for victims of physical and sexual abuse

Yesterday the Irish Jesuits Order yet again apologised to those who suffered abuse at the hands of Joseph Marmion to include sexual, physical, emotional, psychological and spiritual abuse and published a redress scheme. The purpose of which is stated to allow those who suffered that abuse to obtain reasonable compensation without the need for lengthy investigations and litigation. This is a few months after the Diocese of Dromore published its redress scheme, which that of the Jesuits is similar to although retains a greater focus on following actions akin to litigation with an inevitable increase in costs and delay.

Fr Marmion, who died in 2000 aged 75, is reported to have sexually assaulted dozens of boys whom he taught at Belvedere College, Dublin; Crescent College, Limerick; as well as at Clongowes Wood College, Kildare. All three are well known private fee paying schools in the Republic of Ireland.

The redress scheme was welcomed by a steering committee representing the men and provides for offers up to €75,000 and beyond depending on severity of the abuse.

In an unusual move, in March, 2021, the Jesuits publicly identified Fr Marmion as having “abused boys sexually, emotionally and physically while he was on the teaching staff at Belvedere College in the 1970s.”

It said it had issued this statement: “following engagement with a former pupil who was himself abused, in the hope that others who may have suffered would come forward and get the support they may need.”

The redress scheme is voluntary and does not prejudice either party’s right to pursue litigation at a later date. Limitation periods will be stayed for the duration of the redress scheme but if the claim is not resolved within the redress scheme, limitation can be raised at a later date.

Unusually, it appears that eligible claims will only enter the redress scheme if they cannot be settled by negotiations between solicitors for the Jesuits and solicitors for the victims in the first instance. Direct applicants would therefore seem to be excluded.

Claims that cannot be settled by negotiation will be entered into the Redress Scheme where they will be assessed by an independent private tribunal (“the Tribunal”) compromising a Senior Counsel (the Irish equivalent to a QC) or a retired High Court Judge and two Junior Counsel, one appointed by the solicitors acting for the steering committee of the victims of Fr Marimon and one by the Jesuits, neither of these Junior Counsel can have had any prior involvement in advising the steering committee or the Jesuits.

In assessing quantum, the Tribunal will have regard to the Personal Injury Guidelines adopted by the Irish Judicial Council in Ireland on the 6 March 2021.

Any offer of redress made under the scheme which is accepted, will be in full and in accepting an offer of redress an applicant will also waive his right to pursue a civil claim against the Jesuits or the schools involved in the redress scheme for all claims, losses or damages arising out of the circumstances identified in his application.

The abuse covered by the redress scheme must have commenced prior to the applicant’s 18th birthday.

The redress scheme also bears some unexpected parallels with civil litigation as legal representatives for the Jesuits may raise a Notice for Particulars and on receipt of Replies to such Particulars by the applicant may make submissions to the Tribunal. Notice for and Replies to Particulars are similar to old style requests for further and better particulars and interrogatories.

Both the applicants and the Jesuits have the right to secure their own independent medical evidence.

The initial assessment will be on paper and the award of redress made on foot of the same will be open for acceptance for 21 days by both parties, if the award is rejected by either party there will be an oral hearing before the Tribunal which can either confirm or amend the original award, this confirmed or amended award will be open for acceptance by both parties for a period of 14 days.

While the redress scheme provides for a Schedule of Legal Costs, please see the table below, it has not provided any guidance on the nature and extent of the abuse that will have to be established in order to be paid the compensation/redress awards referred to in this table under the heading Compensation Award.

Compensation awardLegal Costs
Up to €10,000€2000 (plus VAT)
Above €10,001 but no more than €20,000€3,500 (plus VAT)
Above €20,001 but no more than €50,000€6,250 (plus VAT)
Above €50,001 but no more than €60,000€7,500 (plus VAT)
Above €60,001 but no more than €75,000€9,000 (plus VAT)
Above €75,000Costs to be agreed between respective parties’ solicitors and costs to be taxed in default of agreement

Launching the redress scheme the Irish Jesuit Provincial Leonard Moloney SJ said that “Once again I want to apologise to all those who suffered in any way at the hands of Joseph Marmion… However, it is my sincere hope that this scheme will go some way towards assuring victims of our commitment to continue responding in whatever ways possible to the wishes and concerns of survivors. I hope also that in its construction it will cause the least possible trauma to victim/survivors of Joseph Marmion, who have already suffered enough.”


Written by James Chambers at BLM (james.chambers@bmlaw.com)

More male victims of sexual abuse seeking help and more reports of abuse linked to dating app meetings

The BBC has reported that statistics received from Safeline, an independent and non-discriminatory charity that provides specialist, tailored support for anyone affected by sexual abuse or rape, has revealed that it has received over 7,000 calls to its male helpline in 2021 which was more than double the number they received in 2020.

The Chief Executive of Safeline, Neil Henderson spoke to Radio 1’s Newsbeat show and said it is estimated that 1 in 6 men have been sexually abused or assaulted yet very few of those victims seek help.

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Sexual touching: criteria and penalties

Sexual touching, known as ‘sexual assault by touching’ under UK law, can be a complex offence split into two categories dependent upon whether the victim was over or under the age of 13 at the time of the offence. Offences of this nature were in the past referred to as indecent assault or sexual assault.

In order to prove sexual assault by touching, the following four criteria must apply:-

  1. The touching of another person was intentional
  2. The touching of that person was sexual in nature
  3. The person touched did not consent to being touched
  4. There was no reasonable belief that person consented to being touched    
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The Bennell claims – an extension of the limitation period was not applied where the key evidence on the issue of vicarious liability had been lost as a result of the delay

The eight claimants sought compensation for sexual abuse perpetrated by Barry Bennell (“Bennell”) in the early 1980s when they were aged between 10 and 14 and playing for football teams coached by Bennell.  They argued that Bennell was working on behalf of the defendant Manchester City Football Club Ltd (“MCFC”) and that it was liable for his conduct.  Please see our blog of 10 January for a summary of the case. Today we focus on Mr Justice Johnson’s decision in relation to limitation. 

The background to the issues on limitation  

There was agreement between the parties that the primary limitation periods had expired many years earlier and that the claims had been brought out of time. However, the claimants sought the discretion of the court to disapply the limitation periods. The defendant argued that due to the claimants’ delay it had suffered significant prejudice, particularly due to the death of its Chief Scout Ken Barnes in 2010, which they said would make it inequitable to disapply the limitation periods. 

In coming to a decision, the judge considered the following issues:

Reasons for delay The medical experts agreed that the claimants had never lacked the mental capacity to complain or to instruct legal representatives and that they had never been psychologically disabled from making a complaint. The judge found that each claimant could have brought a claim within time, however, he said that none of the claimants consciously or capriciously delayed the issue of proceedings and that the abuse and its consequences were significant factors in each of the claimant’s delay.  The judge considered that each of the claimants provided a good and cogent explanation for the delay (including a fear of the potential impact that disclosure would have).  He said that if there was no significant impact on the cogency of the evidence, it would have been fair to exercise discretion to disapply the time limit.

Cogency of evidence The judge considered three issues when assessing the impact of delay on the cogency of the evidence: whether the abuse occurred; quantum; and whether the defendant was vicariously liable for the abuse.

Whether the abuse occurred – The claimants’ accounts of the abuse were not challenged and there was little scope for fallibility of memory on the fundamental question of whether the abuse occurred.

Quantum – In respect of quantum the judge recognised that there was considerable scope for reattribution and confirmation bias.  He said that the abuse was a hugely significant event in the claimants’ lives and it would be surprising if they did not naturally attribute subsequent life events to the abuse.  With regards to documents, he noted there was a considerable body of documentary evidence including medical and employment records.  There was some missing documentary evidence including school records.  However, the judge concluded that the impact on the evidence relating to quantum due to the delay was relatively marginal.  Furthermore, the judge said that in one sense the delay had improved the evidence in relation to quantum because there was no need for the experts to forecast how the abuse would impact upon the claimants’ future lives.

Taking the above two issues together and leaving aside the question of the issue of vicarious liability dealt with below the judge concluded that he would have exercised his discretion to disapply the time limits.

Whether the defendant was vicariously liable for the abuse – This was the key issue.  The judge stated that the issue of vicarious liability is highly fact sensitive and that its resolution was not entirely straightforward.  He said vicarious liability depended on a detailed assessment of the nature of the relationship between Bennell and MCFC.  There were no clear contemporaneous documentary records of the relationship between the defendant and Bennell. 

Therefore, the primary remaining evidence came from the witnesses.  The judge commented that most of the witnesses were observing the relationship between Bennell and MCFC from a distance and in circumstances where Bennell was overstating his relationship with MCFC for his own purposes.  Further the judge said the evidence stemmed from the recollection of witnesses going back over three decades and that the witnesses had no reason to commit to long-term memory the details about the relationship between Bennell and MCFC from that time. The only remaining witness who was able to give direct first-hand evidence about the relationship was Bennell. However, the judge found his evidence to be worthless as he was not a credible witness. 

The judge stated that Ken Barnes, the Chief Scout, who died in 2010 would have likely been the most important witness on the issues of vicarious liability and that he would have been much better placed to give credible and reliable evidence on the relationship between Bennell and MCFC. The judge concluded that the net result was that if the claims had been brought in time it is likely that clear, confident and reliable conclusions could have been reached about the relationship between Bennell and MCFC.  The ability to do so now had been badly compromised by the 27 year delay and the consequential impact on the available evidence.

The judge acknowledged that the facts in these claims beared some similarities to the facts in the Court of Appeal case of Blackpool Football Club Limited v DSN [2021] EWCA 1359 where the limitation period was disapplied. However, he said there were also relevant differences.  In particular: the delay was longer here; in DSN there was evidence from a number of senior staff members who were able to assist on the relationship between the abuser and Blackpool FC; there was only one boys’ football team (“feeder team”) that was under consideration whereas the claimants’ here concerned six youth teams; and the basic way in which the feeder team operated in DSN was clear, whereas the evidence relating to how the teams operated here was limited.  

Decision on limitation Even though the judge found that each of the claimants had a good explanation for the delay in issuing proceedings he concluded that having regard to the length of the delay and the way in which the delay had affected the available evidence (in particular on the fact sensitive issue of vicarious liability) he did not consider it equitable to disapply the time limits.  The claims were dismissed on the grounds of limitation. 

Comment

The substantial body of recent case law (including at appellate level) on limitation in these cases highlight that each and every one is fact specific.  The distinct issue in this case was that the most important witness on the issue of vicarious liability had died in 2010.  The only other person who could provide significant detail about the relationship between Bennell and MCFC was Bennell himself.  However, the judge found he could not rely on any of Bennell’s evidence because he is a manipulative lair and not a credible witness.  Had the claims been brought in time the judge concluded that confident and reliable conclusions could have been reached about the relationship between Bennell and MCFC.  Therefore, it was not fair to reach a binding detrmintation on MCFC’s responsibility for the abuse based on the partial evidence still available.

We will shortly publish further blogs on the findings in relation to vicarious liability and quantum in these claims.


Catherine Davey at BLM (catherine.davey@blmlaw.com)

Australian charity that failed to join National Redress Scheme has charitable status withdrawn

On the 23 June 2021, the Australian Minister for Families and Social Services, Anne Ruston named three institutions which she said had failed to fulfil their moral obligations to sign up to the National Redress Scheme (“NRS”). Those institutions were Forrest Tennis Club (Australian Capital Territory), CYMS Basketball Association (Victoria) and Devonport Community Church (Tasmania).

The Devonport Community Church describes itself as a meeting place “for the worship of God, the preaching of the gospel, Christian fellowship and care, as well as being an outreach to those in need.”

At the time of making the announcement Minister Ruston stated that these institutions would be ineligible to apply for any future Commonwealth grant funding and were at risk of having the Australian Charities and Not-for-profits Commission (“ACNC”) revoke any relevant charitable status.

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High Court decision on vicarious liability for abuse within football

The High Court has ruled that Manchester City Football Club are not vicariously liable for abuse suffered by eight victims of convicted paedophile Barry Bennell between 1979 and 1985 when they were playing schoolboy football for teams that he coached.  The claimants argued that the relationship between Bennell and the club was ‘one of employment or one akin to employment’ and that the club should therefore be held vicariously liable for Bennell’s actions.

In his decision Mr Justice Johnson stated that ‘The connection between the abuse and Bennell’s relationship with MCFC [Manchester City football club] is insufficient to give rise to vicarious liability’ and that ‘the relationship gave Bennell the opportunity to commit the abuse, but MCFC had not entrusted the welfare of the claimants to Bennell. It follows that it has not been shown that MCFC is legally responsible for Bennell’s acts of abuse.’

Manchester City also argued that although Bennell was a scout for them in the mid 1970s he was not in such a position during the period of abuse.

Mr Justice Johnson also dismissed the claims on the grounds of limitation, stating that although there was a ‘good explanation’ for the delay in the claims, they were brought too late for there to be a fair trial, despite Bennell being alive and able to give evidence at Trial.

Bolt Burden Kemp, the solicitors representing the claimants, have already confirmed their intention to appeal the decision.

This decision follows on closely from the Court of Appeal’s judgment in September 2021 in the case of Blackpool FC v DSN.  In this case the High Court had held at first instance that the club was vicariously liable for the actions of an unpaid scout, Frank Roper, who had sexually abused the claimant whilst on a football tournament organised by Roper.  This was overturned in the Court of Appeal, who found that there was no relationship akin to employment between the club and Roper and further that the club did not have any control over Roper.


Written by David Milton, Partner at BLM (david.milton@blmlaw.com)

Former Archbishop of Perth deposed over abuse cover up

On 13 December 2021 the Primate of the Anglican Church of Australia, the Most Revd. Geoffrey Smith issued a statement advising that the Episcopal Standards Board of the Anglican Church of Australia has determined that Roger Herft, formerly Archbishop of Perth and Bishop of Newcastle, was unfit to remain in Holy Orders and that he should be deposed. This means that he will no longer be recognised as an ordained member of the Anglican Church. Mr. Herft chose not attend or be represented at the Board’s hearing.

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Consent to be taught in schools in Ireland as part of updated relationship and sexuality education

The Irish Minister for Education, in replying to a parliamentary question, has stated that consent is one of a number of subjects that needs to be taught in schools following a review of relationships and sexuality education carried out by the National Council for Curriculum and Assessment (“NCCA”).

In 2018 the then Minister for Education, Richard Bruton asked the NCCA to review relationships and sexuality education in schools with a view to ensuring that it was “fit for purpose” and the NCCA was asked to specifically review the issue of consent and what it implies.

The NCCA as part of its review was also asked to look into “… developments in relation to contraception; healthy, positive, sexual expression and relationships; safe use of the internet; the role of school ethos; and LGBTQ+ matters.”

The Minister went on to say that the NCCA are of the view that guidance materials and training for teachers will be required in order to create a wider understanding of what is involved in teaching on the issue of consent and therefore the newly updated relationship and sexuality education will not be introduced in schools until September 2023.

The Minister has not confirmed at what stage consent will be taught in schools but she has said that the junior cycle Social, Personal and Health Education curriculum will be updated first, followed by the revamping of the senior cycle and primary school curricula.


Written by James Chambers at BLM (james.chambers@blmlaw.com)