This morning, 14 August 2020, the Scottish Government Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill was published on the Scottish Parliament’s website. A link to it is here. In the afternoon of Wednesday 19 August 2020, a ministerial statement is to be given in the chamber of the Scottish Parliament on the statutory redress scheme which this legislation proposes to establish. It is likely that this statement will be given by the Deputy First Minister of Scotland and Cabinet Secretary for Education and Skills, John Swinney MSP. We will cover the detail of the bill as introduced in a blog following the ministerial statement. The substance of the bill is not the only current matter of interest. The present fifth session of the Scottish Parliament is likely to be dissolved in March 2021 ahead of an election of members to the sixth session on 6 May 2021. In recent years several Scottish Government bills have been the subject of significant amendment during their passage through the three stage Scottish parliamentary legislative process. Bills which have not passed all three stages at the point of parliamentary dissolution fall but may be re-introduced to the parliament by the incoming government which assumes devolved power for Scotland after an election.

On 28 July 2020 Mr Swinney announced that 417 payments of £10k, £4.17m in total, had been made under the Scottish Government’s advanced payment scheme during the first year of its operation, 25 April 2019 – 25 April 2020. This scheme is open to those aged over 68 and those who are terminally ill. Applicants qualify for a government-funded flat-rate “common experience” payment of £10k if they can vouch the fact of residence “in care”. There is no requirement under the advanced payment scheme to prove abuse. This morning, 14 August 2020, the Scottish Government confirmed their intention for the advanced payment scheme to remain open until such time as the proposed statutory redress scheme is operational.

More detailed analysis both on the substance of the Scottish redress bill and the projected parliamentary timetable for that will follow after this Wednesday’s ministerial statement. Of particular interest on the substance are the proposed funding arrangements and the proposed interaction between a claim for statutory redress and a claim for compensation in the Scottish civil courts.

Authored by Frank Hughes, Partner and Fiona McEwan, Associate, BLM

frank.hughes@blmlaw.com and fiona.mcewan@blmlaw.com 

On the 6th August the College of Policing and Operation Hydrant published an updated version of its advice to Senior Investigating Officers examining allegations of non-recent institutional or high profile cases of child sexual abuse.

The updated advice take account of the changes which came into place following the review of Operation Midland published by Sir Richard Henriques in 2016.  It addresses all aspects of an investigation, from the receiving of reports, through to the creation of victim and witness strategy, victim support, interview strategy and investigation management.

Clear communication at each stage of the investigation is the cornerstone of the new advice, as well as continued support for victims, witnesses and investigators.

Those involved in and with overall responsibility for the investigations are also advised that victims should be thoroughly supported throughout the investigation and the criminal justice process. It is also recommended that when they are devising a victim and witness strategy, they should consider whether a social worker should join the investigation team, to ensure victims are safeguarded, while also giving them the opportunity to speak to an alternative point of contact, if they are hesitant about speaking to police.

The College of Policing are of the view that the new advice is careful in striking the balance between the need to support victims and witnesses to give their evidence and ensuring that an impartial investigation takes place.

David Tucker, Head of Crime at the College of Policing said that “I am pleased to be able to publish our updated advice. Allegations of child sexual abuse are sometimes difficult to investigate, particularly when incidents happened some time ago and when there is additional public interest given the high public profile of the investigation. I hope that the advice provides assistance and support to senior investigating officers in the difficult task that faces them”.

The National Coordinator of Operation Hydrant said that “The policing approach to investigating allegations of non-recent child sexual abuse has evolved considerably since the first surge of allegations following the death of Jimmy Savile, almost a decade ago”. He goes on to say that the updated advice “…represents five years of captured learning and developed good practice. It ensures that investigators can benefit from the most up to date policy and practice, that suspects are treated fairly, and that investigations are impartial and thorough”.

 The College of Policing says that the updated advice will set that the standard for these investigations going forward and make it clear that once victims have taken the difficult decision to report non-recent child sexual abuse to police, they will be treated with empathy and support, their allegations taken seriously, and a proportionate, thorough and impartial investigation will follow.

However, there will be others who on reading the updated advice, will be concerned that in striking the balance between the need to support victims and witnesses to give their evidence and ensuring that an impartial investigation takes place, this new updated advice does not adequately reflect the concerns highlighted by Sir Richard Henriques in his review in 2016. In that review relating to the allegations made by Nick/Carl Beech which were investigated as part of Operation Midland Sir Richard Henriques called for the instruction to police officers investigating allegations of no-recent child sexual abuse that victims are to be believed be withdrawn because suspects are innocent until the allegations against them have been proven and they have been found to be guilty.

Sharon Moohan, Partner, BLM
sharon.moohan@blmlaw.com

On Thursday the 5^th August the Irish Minister for Justice and Equality, Helen McEntee TD published the Review of the Protection of Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences, which has been chaired by Professor Tom O’Malley BL.

This Review was prompted by significant concerns about the experiences of vulnerable witnesses in criminal proceedings for sexual offences. In particular, there was unease in the wake of a trial in Belfast Crown Court in 2018, which has come to be known as the ‘Belfast rugby rape trial’.

The Review is clear that victims should retain their anonymity in all cases of sexual offences but went on to recommend that this anonymity should also be extended to those accused of sexual assault, who are not currently entitled to it.

As the law in Ireland currently stands, those accused of sexual offences other than rape or aggravated sexual assault can be named after being charged. The Review says there does not appear to be any logical reason why these accused people should be entitled to anonymity in a rape trial but not in a sexual assault trial.

The Review went on to recommend that consideration should also be given to providing anonymity to people charged with other sexual offences including child sexual exploitation offences and offences against people with mental illness and intellectual disability. It recommends the victims in the latter offences should also have anonymity which does not appear to be provided for in current legislation. However, the feeling of the Review was that there is not a strong case to be made for restricting the publication of the names of people charged with what are called child pornography offences.

The Review also recommends that the exclusion of the public from rape trials should be extended to other sexual offences and interestingly recommended that the existing legislation directing sentencing of rape cases to be carried out in public should be repealed as it could lead to identification of the victim.

In publishing the report the Minister also announced that she would develop an implementation plan, working with the NGO sector and stakeholders, and would report back to Government with a detailed plan of action within 10 weeks.

The Minister said “I want to ensure that we can effectively tackle the scourge of sexual violence, which is a blight on our society” and went on to say that “I want to ensure that the victims of sexual violence have the correct supports. That means access to their own independent legal advice or support, if they need it, someone who can be with them and explain the process and advise them throughout the process, not only while the trial is underway as is currently the case.”

The Report published today contains over 50 recommendations, with four overarching recommendations:

1. promoting better awareness of victims’ rights legislation;
2. promoting education about the meaning and importance of consent;
3. improving inter-agency co-operation and exchange of information, especially in relation to services for victims; and
4. ensuring consistency in service delivery.

The Minister indicated that a number of actions would be immediately prioritised. These include:-

• Working with the Legal Aid Board to ensure the victims of sexual crime can access the legal advice and support they need.
• Establishing a single, comprehensive source to inform victims of sexual crime of their rights and of the services available to them.
• Starting a public awareness campaign around the meaning of consent.
• Completing the rollout of the Garda Divisional Protective Services Units across the country within two months. This means every division of An Garda Síochána will have a specialised unit for the investigation of sexual violence, human trafficking, child abuse and domestic abuse.
• Prioritising the drafting of legislation to provide for preliminary hearings to help avoid delay in sexual offences cases.
• Ensuring the development of the necessary specialist programmes of training for serving members of An Garda Síochána, legal professionals and others who are participating in a professional capacity in sexual offences investigations and trials, including engagement with the newly established Judicial Council about training for judges.

The Minister indicated that the implementation plan, which will be brought to government within 10 weeks, will include timelines for delivery.

Among the issues dealt with in detail in the O’Malley report, and which will be considered as part the implementation plan, are:

• The investigation and prosecution of sexual offences.
• The anonymity of victims and defendants, public access to sexual offence trials and media reporting.
• The trial of sexual offences.
• Information for victims.
• Use of intermediaries.
• Reducing delay in the trial process .

Overall, the recommendations are intended to improve the present system by ensuring, as far as possible, that victims of sexual crime have access to information and advice from the time at which the offence was committed, that they will be kept informed of the progress of investigation, that they will be facilitated in giving their best evidence if called as witnesses and that they will be treated with respect and dignity throughout the process.

Written by James Chambers at BLM

james.chambers@blmlaw.com