Poles Apart – a regressive step?

In a previous blog on 1/2/22 ‘”But she wasn’t resisting”….reversing the presumption of Innocence’, I highlighted the approach taken to consent in New South Wales in rape cases. It is interesting to see a difference of approach, with a stark contrast being adopted in Canada – it being determined in recent Appeals that ‘non-mental disorder automatism’ (otherwise extreme intoxication by drink or drugs) is a legitimate defence against charges relating to violent crimes. However intoxication which is short of automation is not a defence.

On 13 May the Supreme Court of Canada ruled self-induced extreme intoxication can be a defence, which overturns a law passed by Parliament in 1995 (supported by women’s advocacy groups). The court said to prohibit such a defence was unconstitutional and violates the country’s Charter of Rights and Freedoms – resulting in 2 acquittals last week with a retrial ordered in a third case.

Supreme Court, Justice Nicholas Kasirer said: ‘Its impact on the principles of fundamental justice is disproportionate to its overarching public benefits. It should therefore be declared unconstitutional and of no force or effect.’

Until now, the Canadian courts have been split on the issue, while women’s advocacy groups have argued the law is needed to protect women and children. Indeed the issue was considered by the Standing Committee on Justice and Human Rights in 2002 when it was resolved the Criminal Code should not be amended outside of a comprehensive review, and it should be left to the courts to determine to ensure a principled and consistent approach to any such defence. Indeed a consultation paper was previously released in 1993 but the amendment to the White Paper at the time was not pursued. It was said sane automatism has been established in very few cases, and was a rare and unusual event, and given a decision of the Supreme Court in 1999 (R v Stone – the issue to be determined on the balance of probability) there was no pressing need for codification.

Written by Jagdeep Hayre, BLM (Jagdeep.Hayre@blmlaw.com)

Further failures identified in education sector with publication of Holland Park School Investigation Report

An independent investigation commissioned by the Board of Governors at Holland Park School in Kensington recently completed its investigations and issued its 554 paged report.

While the full report is not being published to protect the identities of the staff and students who gave evidence to the investigation the Board of Governors published a summary of the report’s finding and core evidence on the 5 May 2022.

The summary will not make easy reading for those who have children attending the school.

Investigations into Holland Park School, which is a top London state school, considered allegations of bullying, discrimination, favouritism, breaches of safeguarding, dubious spending and vulnerable children and key worker children not being accommodated at the school during Covid-19 lockdowns against government guidance dating back to 2004 up until December, 2021. The investigation was also tasked with examining allegations that senior school leaders may have misled Ofsted.

The investigation, which was carried out by independent investigator, Jessica Joels of B3sixty, who specialises in workplace investigations found that “… based upon extensive and corroborative evidence provided during interviews, is that on the balance of probabilities every complaint is found to have happened.”

The school was under the control of Kensington and Chelsea local authority until September, 2013 when it became a single academy trust.

Kensington and Chelsea council said: “Up to 2013, the school was maintained by the local authority and was rated as outstanding in 2011 and 2014. If any concerns were raised directly with the authority, they were acted on straight away, especially if safeguarding issues were involved.

Over 100 former students and staff at the school were interviewed in the course of the investigation however, a number of members of the senior leadership team at the school declined to be interviewed, as did the former Chair of Governors.

The investigation was a two-stage process:-

  • Stage 1 – where staff and students were invited to send details of complaints to the investigation for review. A schedule of all complaints was compiled, together with supporting evidence. This was contained in an interim report to be delivered to the Board of Governors on 11th January 2022. More than 100 individuals submitted evidence.
  • Stage 2 – where participants identified from Stage 1 were invited to be interviewed.

The investigation found that:-

  1. There were breaches of safeguarding in respect of both students and staff and which included failure to support students who had been victims of peer-on-peer sexual abuse.
  2. There was bullying, discrimination and inequality towards both students and staff which in turn gave rise to a culture of fear, favouritism and inequality.
  3. There was discrimination against protected characteristics including overt sexism, Islamaphobia, and racism, while there was also a lack of knowledge around mental health and medical and physical issues for both staff and students.
  4. There was ineffective leadership and management including promoting newly qualified teachers to positions of senior leadership without appropriate training or experience.
  5. Ofsted inspectors were misled by senior leaders at the school who destroyed staff questionnaires relating to an Ofsted inspection in January, 2020 and who also took certain students off site and told other students not to attend school during the Ofsted inspection.

It appears that there are still significant lessons to be learned in the education sector about how to balance the rights and needs of the children/students against the competing pressure on schools to deliver excellent results, outstanding Ofsted ratings and be highly ranked on school league tables.

Written by Sharon Moohan, BLM (Sharon.Moohan@blmlaw.com)

Release decision for ‘Baby P’s mother to be appealed

Back in 2007 the tragic case of ‘Baby P’, later named as 17-month-old Peter Connolly, was brought to the attention of the media.

17-month-old Peter was subject to months of abuse at the hands of his mother Tracey Connolly and her partner. Connolly was jailed in 2009 after admitting causing and/or allowing the death of her son in Tottenham, London.

During the investigation, it was discovered that Connolly, her partner Steven Barker and their lodger (Steven’s brother) had all contributed to the injuries suffered by Peter.

Peter was sadly found with over 50 injuries at the time of his death.

A review following the death of Peter found that there had been missed opportunities from social services and other professionals involved with his case.

Connolly was previously released on licence in 2013 but was shortly recalled to prison in 2015 for breach of her licence conditions. When her case was reviewed in 2019, the Parole Board refused her release, they also declined the option of moving her to an open prison.

On this occasion, the fourth time before the Parole Board, they have decided she is suitable for release.

The Parole Board report suggests Connolly has taken part in a ‘very intensive’ treatment programme developed by the Ministry of Justice and have deemed her at low risk of committing further offences.

If released Connelly would be subject to strict licence conditions which include living at a specified address, being supervised by probation, wearing an electronic tag, adhering to a curfew, and having to disclose her relationships.

When Connolly was last released in 2013, she breached her licence conditions by inciting one of the residents in her living accommodation to engage in inappropriate sexualised behaviour.

The Justice Secretary Dominic Raab has now stood up in the House of Commons and demanded the Parole Board reconsider their decision to release Connelly – the decision is awaited.

This is a stern message to those who have committed similar offences who are currently serving prison sentences with a possibility for parole.

Only this week, the mother of 3-year-old Kemarni Watson Darby was convicted of causing or allowing her son’s death at her West Bromwich flat, the same offence as Tracey Connolly. The mother’s partner was found guilty of murder of Kemarni.

The strict licence conditions placed on such individuals are there for a reason; to prevent further offending.

In the Connolly case, the first set of parole restrictions were clearly not strict enough. It is likely given the high-profile nature of this case it will be taken into consideration when other offender’s releases are being considered. It is also likely the terms of the individuals licence conditions will be scrutinised in more detail to consider the risk of re-offending.

Scottish Limitation Abolition Bill and Scottish Child Abuse Inquiry Update

The Scottish Parliament has confirmed that it will debate the Limitation Abolition Bill, at Stage 1, in the afternoon of Thursday 27 April.

In other news, the Scottish Child Abuse Inquiry, whose cost from its set-up on 1 October 2015 to 31 March 2017 has recently been confirmed at over £5.7m, has now set the timetable for Phase 1 of its Public Hearings. Commencing on 31 May there are evidence sessions scheduled to 9 June covering: Continue reading

Scottish Limitation Abolition Bill

The Scottish Parliament’s Justice Committee has endorsed the general principles of the Bill proposing the retrospective abolition of limitation in cases of childhood abuse. Nonetheless, significant issues of detail and relevant concerns have been flagged in the Committee’s Stage 1 Report. This is now for further consideration by the Scottish Government. We summarise the position taken by the Committee on pre-26 September 1964 abuse then list the issues which have been flagged for further attention. Continue reading

Sexual abuse and sport: the current position

Earlier this month Barry Bennell, former coach with Crewe Alexander, was charged with 12 further counts of indecent assault and serious sexual assault on boys in the years between 1980 and 1987. This brings the outstanding charges against him to 20 since Andy Woodward and other players’ allegations about him were first made in November 2016.  He has pleaded Not Guilty to all charges.

Since those initial disclosures there has been a succession of disclosures and developments within UK football and other sports.

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Findings & recommendations from the HIA report

The report of the Historical Institutional Abuse Inquiry in Northern Ireland launched today. A copy of the report was delivered to the Executive Office (formerly the Office of First and Deputy First Minister).  The report, which is available online, consists of 10 volumes amounting to 2300 pages.

It deals with issues such as an apology; by whom should an apology be made and the nature of that apology. It also addresses a memorial or tribute to those who suffered abuse, a redress scheme, findings of failings against the State and voluntary providers of residential care homes.

The initial points of interest are the recommendation for a Redress Scheme and criticisms of the involvement of the State in the supervision and inspection of various homes.

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IICSA: 2017 and beyond

Following our blog of 19 December 2016 providing an overview of the IICSA’s Internal Review Report, below we set out the key points relating to the 13 investigations, the research programme and seminar programme, following the IICSA’s detailed update.

Investigation update

The IICSA has provided a progress report for each investigation detailing proposed changes, key milestones in the investigations and further information about the Inquiry’s working methods.

Detailed below are the key updates illustrating the progress made and the IICSA’s next steps:

Investigations Scope Key Updates from the Inquiry
Cambridge House, Knowl View and Rochdale ·         To investigate failings by Rochdale Borough Council and other public bodies who may have known about the risks to children at Cambridge House and Knowl View. ·         Requests for statements from a number of witnesses, including complainants, will commence shortly.

·         Continue to obtain and analyse documents from institutions.

·         A single public hearing to be held in October 2017 to examine issues at Cambridge House and Knowl View School.

Child Sexual Exploitation by Organised Networks ·         To examine how effectively institutions have responded building on previous investigations and assessing how institutions have learned lessons, implemented recommendations and introduced new strategies.

·         A small amendment to this investigation is likely in order to enable the Inquiry to make recommendations setting out better ways to intervene and prevent abuse in the future.

·         The Inquiry will select a sample of geographical areas and seek information from institutions during the first half of 2017 – to date the Inquiry has identified the best way to approach this wide ranging topic, including analysing data to assist with identifying features that are linked to potential vulnerability to child sexual exploitation in particular geographical areas.

·         Carry out qualitative research with convicted sexual offenders to understand how child sexual exploitation networks are formed and sustained and make recommendations for the future.

Accountability and Reparations ·         How effectively existing legal processes and support services make reparations to victims and survivors.

·         This investigation is underpinned by work assessing support services and its delivery.

·         Following meetings with claimant and defendant legal representatives, the published issue paper on the civil justice system and related seminars discussing the system and ideas for improvements, the Inquiry will assess further information and data to be received from the various participants.

·         Hold a further seminar in February 2017 following the research team’s analysis of data from the Criminal Injuries Compensation Authority 2013-2015, to understand the compensation currently paid to victims.

·         March 2017 – hold a preliminary hearing to consider submissions on the scope of the Inquiry’s public hearings in relation to five case studies:

1)       North Wales Children’s Homes;

2)       Forde Park Approved School;

3)       St Leonard’s Children’s Home;

4)       St Aidan’s & St Vincent’s Children’s Homes

5)       Stanhope Castle Approved School.

Requests for information from relevant institutions have been made and in early 2017 there will be requests for statements from CPs.

Children in Custodial Institutions ·         The extent of any institutional failures to protect children from sexual abuse and exploitation while in custodial institutions including secure children’s homes, secure training centres and youth offender institutions. ·         Currently considering the timing for the first preliminary hearing.

·         Qualitative research in relation to three young offender institutions to be undertaken. This will involve interviewing staff and young people about sexual abuse safeguarding procedures and practices.

The Internet ·         Investigating institutional responses to child sexual abuse and exploitation facilitated by the internet. ·         Undertaking three rapid evidence assessments covering the scale of online child sexual abuse, the characteristics of those who commit online child sexual abuse and the characteristics of victims of online child sexual abuse.

·         Requests for evidence expected in early 2017 following further briefing meetings.

·         Middle of 2017 – open applications for CP status.

·         Early 2018 – first introductory public hearing.

Investigation into the Institutional Responses to Allegations of Child Sexual Abuse involving the late Lord Janner of Braunstone QC ·         Inquiry into the institutional responses to allegations involving Lord Janner. ·         Currently considering 100,000 pages of material following disclosure from a number of organisations/individuals, preliminary hearings and CP designation.

·         Requests for witness statements from individuals and institutions requested.

·         Expert witnesses instructed to produce a report on the state of residential care and to report on the methods of conducting criminal investigations relating to child sexual abuse allegations in the relevant time period.

·         Public hearing originally scheduled for March 2017 postponed so that related criminal investigations are not prejudiced and to protect the welfare of complainants.

·         Provisional decision by the Chair (to be circulated to CPs and other interested parties) to proceed with the investigation with a stronger focus on the institutions and the timing of the oral hearings.

·         Mid-February 2017 – submissions will be sought from CPs and others with an interest in the investigation before the chair reaches a final view.

Children in the Care of Nottinghamshire Councils ·         Investigating the extent of any institutional failures to protect children in the care of Nottingham City and Nottingham County Councils from sexual abuse and exploitation. ·         A variety of methods is to be employed to progress the investigation including: further requests for documents and witness statements, gathering evidence through research and analysing accounts of abuse provided to the Inquiry.

·         March 2017 – opening the CP application window.

·         Following receipt and consideration of CP applications, a preliminary hearing will be held.

·         Considering changes to the scope of the investigation to ensure it remains focused and proportionate. Considering the use of case studies to assist with this.

Child Sexual Abuse in the Anglican Church ·         Investigation into the extent of any institutional failures to protect children from sexual abuse within the Anglican Church.

·        Two case studies – the Diocese of Chichester and the case of Peter Ball, as well as failures in the wider Anglican Church.

·         27,000 documents have been obtained.

·         Commenced the process of obtaining witness statements.

·         Undertaken a rapid evidence assessment into literature and evidence in the Anglican and Roman Catholic Churches to assist with analysing the knowledge about child sexual abuse and exploitation in the Churches.

·         First quarter of 2017 – intend to make requests for witness statements from CPs.

·         March 2018 – first public hearing in relation to the Chichester Dicoese case study.

·         Further public hearing relating to Peter Ball and the wider Anglican Church to be scheduled.

Child Sexual Abuse in Residential Schools ·         This investigation is limited to schools with a boarding element. Currently no CPs designated.

Substantial preliminary work has been undertaken:

·         Requests for evidence submitted to 22 institutions – 13 relate to residential schools where the Inquiry is aware that a member of staff/adult connected with the school has been convicted of child sexual abuse.

·         Commenced a full analysis of the requested evidence.

·         Public hearings on specific case studies, seminars involving self-selected schools and primary research projects to be scheduled.

Allegations of Child Sexual Abuse Linked to Westminster ·         Overarching inquiry into allegations of child sexual abuse and exploitation involving people of prominence – past and present, associated with Westminster. ·         Obtained a number of documents and statements from a variety of sources.

·         Third quarter of 2017 – application window for CP status to open. This will be followed by a first preliminary hearing.

Protection of Children Outside the UK ·         Investigating the extent to which institutions and organisations based in England and Wales have taken seriously their responsibilities to protect children outside the UK from sexual abuse. ·         Obtaining witness statements from former child migrants.

·         31 January 2017 – further preliminary hearing scheduled.

·         End of February 2017 – first public hearing relating to the child migration programme to be held. This will provide an introduction to child migration programmes and expert evidence will provide an overview of the historical developments of such programmes.

·         July 2017 – second hearing to be scheduled to determine whether institutions took sufficient care to protect children involved and whether appropriate steps were taken in response to abuse. During this hearing consideration on the adequacy of support and reparations offered by institutions will be heard.

Children in the Care of Lambeth Council ·         An inquiry into the extent of any institutional failures to protect children in the care of Lambeth Council, focusing on abuse between the 1980s and 1990s. ·         The Inquiry has made substantial requests for documentation from Lambeth Council and the police which they are analysing.

·         The Inquiry will seek to identify potential case studies connected to specific homes, individual offenders and wider thematic issues.

·         The Inquiry has received the first report from the Shirley Oaks Survivors Association (SOSA) – ‘Turning a Blind Eye for 33 Years’. The Inquiry will consider any new information submitted or published by the SOSA. The review report notes the Inquiry’s disappointment as SOSA’s decision to withdraw from the investigation and hopes participation may resume in the future.

·         Research into Lambeth’s demographics is underway, as well as research into structure and funding arrangements for the provision of services to children.

Child Sexual Abuse in the Roman Catholic Church ·         Examining the extent of any institutional failures to protect children from sexual abuse within the Roman Catholic Church in England and Wales.

·         Two case studies – the English Benedictine Congregation and the Archdiocese of Birmingham.

·         The Inquiry will review the need to consider other institutions relating to the Roman Catholic Church, however it is thought detailed consideration of the two case studies will give the Inquiry thorough insight into the institutional failures.

·         Over 4000 potentially relevant documents have been obtained from congregations. Material from other institutions such as the police and Charity Commission has also been obtained. All material is currently being analysed.

·         A rapid evidence assessment of the literature and evidence relating to the prevalence of child sexual abuse in the Anglican and Roman Catholic Churches has been undertaken.

·         Early 2017 requests for statements from CPs will be submitted. Work will first focus on the English Benedictine Congregation.

·         Further preliminary hearing to be held.

·         December 2017 – a public hearing will be held.

·         2017 – a research project will examine how national safeguarding policies and practices have been implemented locally by relevant church authorities.

·         2018 – further hearings relating to the Archdiocese of Birmingham and the wider Roman Catholic Church will be scheduled.

Research programme

Primary research – research that collects and analyses new data, the programme for 2017/2018:

  • Anglican and Roman Catholic Churches – qualitative research (in a sample of dioceses) to understand at a local level national safeguarding policy and practice has been implemented;
  • Child Sexual Exploitation by Organised Networks – qualitative research with perpetrators to understand how networks are created and maintained. This investigation will also assess prevention approaches and protective factors;
  • Accountability and Reparations – qualitative research with victims/survivors to understand the various support services and the challenges with such and qualitative and quantitative research with the general public to gather views on sentencing and accountability in child sexual abuse cases;
  • Children in Custodial Institutions – qualitative research in three young offender institutions, including interviewing staff and young people about safeguarding procedures and practices;
  • Residential Schools – undertake a survey to understand the scale of the prevalence of child sexual abuse in schools and qualitative research in a sample of schools, including interviewing victims/survivors, staff, parents, children and young people to understand the nature, risk and protective factors.
  • Internet – qualitative research with children and young people to understand risk and protective factors associated with or facilitated by online gaming technologies. The Inquiry will also evaluate the process and impact of e-safety interventions delivered in schools to assess the effectiveness of prevention programmes.

The various investigation programmes will include consideration of the Inquiry’s themes – cultural, structural, professional & political and financial.

The Inquiry will also analyse information gathered through the Truth Project.

Seminar programme 2017/2018

2017:

February – Criminal Injuries Compensation – following the Inquiry’s consultation paper about the Criminal Injuries Compensation Authority and criminal compensation orders, this seminar will gather information/views about:

  • The experiences of people who have sought criminal compensation and the obstacles involved;
  • The process (including appeals) for applying for criminal compensation;
  • The levels of compensation awarded.

April – Preventing and Responding to Child Sexual Abuse – Learning from Best Practice Overseas to gather information and learn in relation to:

  • Primary prevention;
  • Identification, disclosure and reporting;
  • The control/management of perpetrators and the prevention of reoffending;
  • Provision of support for victims and survivors.

July – Victims and Survivors’ Experiences: Impacts, Support Services and Redress, to gather information and views about:

  • The support needs of victims/survivors and their families;
  • The support services needed to meet people’s needs;
  • The education and development needs of professionals working with victims/survivors;
  • The role of services and professionals in supporting victims/survivors and minimising the risks of re-traumatisation;
  • The current provision of support services and the opportunities for improvement;
  • Outcomes for victims/survivors following investigations, compensation and reparation.

September – The Health Sector – this seminar will gather information/views about:

  • The current framework of relevant legislation, policies and standards in this sector in preventing and responding to child sexual abuse;
  • The role of regulation and governance to assure compliance with child protection requirements;
  • The training, guidance and support available to organisations in this sector;
  • Joint working and sharing amongst health sector organisations to prevent and respond to child sexual abuse.

November – The Criminal Justice System – to gather information about:

  • Collaborative working in the criminal justice system and its role in responding to child sexual abuse;
  • The risk of re-traumatisation for those involved in the system and how to minimise suck risks;
  • How the system meets the needs of offenders who are victims/survivors and
  • The support needs of victims/survivors in contact with the system.

2018:

February – Social and Political Narratives about Child Sexual Abuse – to gather information and views about:

  • How attitudes and norms about childhood and child sexual abuse have changed over time;
  • The ways changing norms may have influenced views about best practice in child protection and institutional responses;
  • How the social and political context influences institutional responses to abuse.

mwr

Miriam Rahamim, Solicitor, BLM

Sexual abuse and professional sport

Sexual abuse in the world of professional football has hit the headlines over the last few days.

Last week former professional footballer, Andy Woodward, bravely spoke publicly to The Guardian about having been seriously sexually abused by football coach and scout Barry Bennell whilst a youth player at Crewe Alexandra. Woodward, now 43, did make a career in professional football but believes that this ended prematurely at the age of 29 because of depression, anxiety and panic attacks caused as a result of the abuse.  He believes there are many more victims of Bennell.

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IICSA Mixed Messages

Once again the IICSA has hit the headlines. That has not been because of the work of the Truth Project which is now operating in London and Wales; the further research being commissioned in connection with child sexual abuse; or preparation for the first seminars at the end of November. They are examples of the Inquiry “getting on with the job” but those stories have been hidden by more controversy and criticism. The Inquiry needs to address the negative publicity otherwise it will lose all trust and face more accusations of cover-up and secrecy, the irony of which will not be lost on those who have suffered abuse.

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