www.newlawjournal.co.uk | 16 February 2018 PERSONAL INJURY LEGAL UPDATE 13 Unravelling the legacy of abuse Richard Scorer provides an update on the work of the Independent Inquiry into Child Sex Abuse & considers its future role iStockphoto/BrianAJackson © IN BRIEF forensic analysis. For example, one of the away from making findings of fact, or f Is the Independent Inquiry into Child Sex investigations concerns child abuse in the even backing away from investigating Abuse scaling back its investigations or even Anglican Church. Within that, the inquiry Westminster allegations at all, on the basis becoming redundant? has selected the Diocese of Chichester for that many of the conspiracy theories around special attention, and a hearing into events abuse in Westminster have now been ecent media reports have suggested in that Diocese, which has been beset with refuted. that the Independent Inquiry abuse scandals over several decades, will into Child Sex Abuse (IICSA) is begin on 5 March 2018. Terminology: victims / complainants? Rscaling back its investigations into The terminology employed in sex abuse allegations of paedophile rings involving False starts investigations has generated much Westminster politicians, and some reports After many false starts associated with controversy. The College of Policing has have even suggested that the inquiry is the resignation of three chairs and inquiry advocated a policy which has come to be now redundant. So what is happening with lawyers, substantive hearings at IICSA known as ‘automatic victim belief’: in other IICSA, and where does it go from here? started last year. The first hearing examined words that in sex abuse and rape cases, the IICSA originally started life in 2014 the experiences of child migrants, who police, on receiving an allegation, should following widespread concern about were forcibly transported overseas as proceed on the premise that the allegation institutional child abuse, including at children. In October 2017 a three-week is true. The policy means that the police Westminster. Its chair, Alexis Jay, exercises hearing examined events at two boys’ routinely refer to complainants of abuse as judicial powers and its terms of reference homes in Rochdale and the linked activities ‘victims’ even if the allegation has not yet are ‘to consider the extent to which state of Rochdale’s former MP, Sir Cyril Smith. been proved. The intention was to avoid and non-state institutions have failed… Just before Christmas, IICSA held a further any repetition of the well-publicised failures to protect children from sexual abuse’ three week hearing into allegations of by police and prosecutors, over many and to identify steps required to prevent child sexual abuse at two Benedictine decades, to take sexual assault and abuse such abuse in the future. The range of monasteries, Ampleforth and Downside, allegations seriously—failures which led to institutions specified in the terms of and the elite private schools associated many genuine allegations being dismissed reference is extremely wide: police, CPS, with them. Other shorter hearings or without proper investigation. schools, care homes, churches and more. seminars have also taken place, for example Following the report of Sir Richard The period covered by the Inquiry spans concerning child abuse and the internet. Henriques into Operation Midland, a high over 50 years. The latest media interest in IICSA was profile police investigation into allegations Clearly, any inquiry seeking to triggered by the first preliminary hearing of a paedophile ring involving prominent investigate all institutional child abuse into allegations of abuse involving persons public figures, the policy of ‘automatic over that period would be never-ending. of prominence in Westminster. Following victim belief’ has attracted considerable Consequently, the inquiry has pursued a the hearing some reports suggested that criticism, including from some senior modular approach, selecting a more limited IICSA had changed its terminology so that police officers. Although the policy may list of institutions or themes for focused those alleging abuse would be referred to be understandable, given the lamentable investigation. Thirteen investigations as ‘complainants’ rather than ‘victims’ in history of past failure, the problems with have been announced so far. Within these, cases where no abuse has yet been proved. it are obvious. Police have a duty to act specific case studies have been selected for It was also suggested that IICSA is backing as impartial investigators, and a policy of 14 LEGAL UPDATE PERSONAL INJURY 16 February 2018 | www.newlawjournal.co.uk automatically believing the complainant these two men. But in other investigations, the overwhelming evidence against the potentially denies due process to the much of the inquiry’s work is concerned late Cyril Smith MP could seriously doubt accused. Furthermore, if automatic belief with institutional failure to protect that Smith was a prolific abuser of boys, actually becomes a substitute for proper children in cases where the fact of the and that he should have been prosecuted investigation of allegations, it may also abuse is not disputed, either because of decades ago. A report in 2015 by Sir Richard disadvantage genuine victims. For these criminal conviction of the perpetrator, Henriques concluded that the late Lord reasons, automatic victim belief has rightly or because the institution in question has Janner of Braunstone should have been been criticised as a policy of ‘cheap virtue’, accepted the truth of allegations. In the prosecuted in the 1990s for sexual offences and one that should be replaced by a simple hearing in late 2017 regarding Ampleforth against boys. There has also been legitimate and clear imperative that all allegations and Downside, IICSA was looking at concern about the activities, in the 1970s of sexual abuse and assault should be schools and monasteries where there and 1980s, of the Paedophile Information taken seriously, investigated properly, and have already been a significant number of Exchange (PIE). Other aspects of the complainants treated with proper respect, criminal convictions; the issue for IICSA Westminster VIP paedophile story have but without an a priori assumption that the is why abuse was allowed to carry on attracted more scepticism: a BBC Panorama complainant’s account is true. unchecked for so long. documentary questioned the provenance However, although police policy may and reliability of some of the allegations now be changing, media reports implying regarding Elm Guest House, a brothel in that this has caused IICSA to changed its The Inquiry’s south London which was alleged to have terminology are simply wrong. From the lasting legacy will had many high profile clients. outset, IICSA has consistently used the term “ By separating out the layers of fact and ‘complainants’ to refer to those making be determined by fiction, IICSA can perform a valuable allegations which have not yet been proved, function. So far as Sir Cyril Smith is and the terms ‘victim’ or ‘survivor’ to refer the extent to which concerned this work is already well to cases where the abuse has been proved it can recommend advanced, the Rochdale hearing having in a criminal trial, or is otherwise admitted. heard much evidence of Smith’s activities in So the suggestion of a change is incorrect: convincing policy local children’s homes. In Smith’s case, the from the outset, IICSA’s terminology already changes” emerging picture is troubling: it seems likely distinguished between complainants and that allegations against him were buried proven victims. for the sake of political convenience. These issues will be unravelled by IICSA in due Findings of fact? Westminster allegations course. However, the Westminster strand of Media reports also suggested that IICSA had The most controversial aspect of IICSA IICSA represents a small fraction of its work, now decided to abandon the idea of making is its investigation into allegations of and overall is not its main focus, which is findings of fact in relation to allegations abuse involving persons of prominence at on identifying the causes and prevalence against individuals who have not yet been Westminster. Following the revelations of institutional child sexual abuse, and the convicted, with some reports implying that in 2011 about Jimmy Savile, concern policy changes necessary to prevent it. this is because the evidence against many mounted that other prominent people If the hearings to date are any guide then of those accused is weaker than previously had been implicated in child sex abuse foremost among the mechanisms to be thought. Again, this is simply incorrect. but had evaded prosecution. The idea of a considered will be mandatory reporting, IICSA has never been a criminal court, and VIP paedophile conspiracy was promoted ie the requirement, backed by criminal as a public inquiry subject to the Inquiries by various campaigning politicians sanctions, that all abuse allegations Act 2005, it is not empowered to determine including Tom Watson MP, John Mann in an institution should be reported the criminal or civil liability of any person. MP and Zac Goldsmith MP, and is partly and investigated externally so that the Rather, IICSA’s role has always been to why IICSA came to be established. In the reputational pressures which have led to so examine the institutional response to recent preliminary hearing relating to the many abuse scandals being covered