On 23 March Susan O’Brien QC, Chair of the Scottish Child Abuse Inquiry formally called for evidence. She began by saying that the priority was to listen to people who were abused when they were under 18 in residential or foster care. The terms of reference have been set by the Scottish Government and to counter criticism of the limits of the scope of the Inquiry she reinforced that they are doing what they have been asked to. The terms of reference say the Inquiry will provide an opportunity for public acknowledgement of the suffering of victims of abuse, and provide a forum for them to be heard. Evidence will be a matter of national public record. It is up to witnesses to decide whether they give evidence or not.
Thereafter, the ways in which evidence would be collected and the ‘module’ structure of the Inquiry were explained.
As a first step, evidence of survivors will be taken in private sessions and then made public. The difficulty that the Inquiry faced was that they simply did not know how many survivors would want to come forward to begin giving their evidence.
In terms of the Inquiry, the survivors do not have to live in Scotland in order to participate, but the institution where they were placed must be located in Scotland or to have been under the control of a Scottish local authority, which was responsible for the survivor’s care.
The key is if someone was in the care of the state in any sense then the Inquiry would like to hear from them. It does not matter if they were abused for example outside the grounds of the residential care institution in which they were placed, or indeed in foster care or private boarding schools.
A phone line is now open which survivors can use to contact the Inquiry. At that stage the identity of the institution would be established but the survivor would not be asked if or what type of abuse was suffered. An Inquiry form would then be filled in for each survivor.
Private sessions have already commenced in relation to those who are elderly and ill, and whose evidence must be taken as a matter of urgency. The initial statements will be taken by an experienced lawyer, recorded and carefully stored and thereafter destroyed at the end of the Inquiry.
After the initial interview a witness statement will be created in draft form which will be sent to the survivor who can change or add any details and then send back, which will then become their official testimony, unless they give evidence orally at the inquiry. Provision will be made to support language difficulties, disability etc.
In order to protect survivors, actual names will not be used unless the applicant specifically requests this and anonymised statements will be published on the Inquiry website.
There are two paths by which evidence will be collected. Firstly, the pilot sessions where witnesses will be interviewed, and secondly public hearings. Some would be asked to give evidence but not compelled to do so. Evidence that is given in public hearings will be tested.
The Inquiry will be divided into modules of evidence which will be dealt with in separate hearings and there will be themes or chapters of evidence which will be selected as the Inquiry progresses, for example if complainers all came from the same place that may form the basis of a specific chapter or module of evidence. The focus of the Inquiry will not be solely on institutions. Some chapters of evidence may relate to an individual abuser.
Before a module starts, the Inquiry hopes to get documents which will be read by lawyers to the investigation. Preparation for each module of evidence it is estimated will take many months but it will be possible to prepare more than one module at a time from the evidence gathered.
In terms of legal representation, this will be provided by the Inquiry for a person accused if they have no other means of providing representation themselves. In relation to private sessions where survivors statements are taken, there will be no need for separate legal representation as they will be giving evidence to a neutral lawyer.
Some survivor groups will be granted core participant status. In that instance the Inquiry will pay for legal representation with one lawyer per group and the lawyer for that group will be expected to attend each module of evidence, if that were relevant. In some instances they will be able to instruct counsel.
Some 290 organisations have been identified which might hold relevant documents. The Jersey Inquiry ran to over 1 million pages of documents for an island with a population of 100,000. It is expected millions of pages will be received and sophisticated document management systems have been put in place to deal with this. Institutions should not send any documents on spec as the Inquiry will identify what is needed.
The hearing in relation to the first chapter/module of evidence is scheduled to last for several weeks commencing in November 2016.
There is no immediate deadline for survivors to come forward and the final report will be an evidenced basis analysis of what went wrong for so many children for so long.
The Inquiry will address institutional failures in particular the question of how it was possible that so many institutions/authorities were blinded to suffering, where was the protection of the law and why would no one listen. The ultimate aim of the Inquiry must be to make children in care safe in the future.
Written by Frank Hughes, partner and Claire Thomas, solicitor