How To Strengthen The Rights Of Victims

Richard Scorer is Head of the Abuse unit at Slater & Gordon lawyers and acts for victims in the Rochdale child sexual exploitation case. He was a Labour Parliamentary Candidate in 2010 and currently serves as a Labour councillor in West Yorkshire. He is also the author of Betrayed: The English Catholic Church and the Sex Abuse Crisis, published this year by Biteback Books. Twitter: @Richard_Scorer

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Keir Starmer, the former Director of Public Prosecutions, is heading a Labour group aiming to strengthen the rights of victims in the criminal justice system. What recommendations should he make? I believe we need 3 major changes:

1: Better court processes

As Starmer says, from the point of view of victims the criminal justice system is “hardly fit for purpose – for many victims, the adversarial journey through our courtrooms is such an ordeal that most vow never to repeat it”. In the Rochdale child sexual exploitation case, some of my clients were cross-examined – in the hostile environment of a courtroom packed with their abusers- by no fewer than 11 defence barristers. Although convictions were secured, the experience was exceptionally distressing for the victims. How can we achieve justice if victims are too scared to testify?

This can change for the better if we implement a reform which was originally recommended more than twenty years ago: taking children and vulnerable adult witnesses out of the formal criminal trial process altogether by videotaping their entire testimony, to include cross examination and re-examination, before trial.

This change is long overdue. We already have some ‘special measures’ to assist vulnerable and intimidated witnesses in the courtroom: things like screening witnesses from the accused, the removal of wigs and gowns , and giving evidence-in-chief by video link or in private. But due to opposition from some lawyers, not all the special measures proposed by the Pigot committee in the late 1980s were implemented. Currently, a videotaped interview of the child witness is admissible at trial as evidence-in-chief (subject to the trial judge’s discretion) but the child is still required to attend trial for cross –examination. That cross-examination, of course, will typically take place many months after the original video-taped interview, so that the current regime can actually place the child at even greater disadvantage.

In a lecture in March 2013 the Lord Chief Justice, Lord Judge, was clear that there is an urgent need to introduce video recorded cross examination and re-examination of child witnesses. It can and should be done without delay.

We also need specialist courts for sexual offences. At present, judges, prosecutors and magistrates who hear sex cases are expected to have special training, but this does not apply to defence barristers. I have heard too many accounts of inappropriate questioning at trial: a defence barrister at a child sexual exploitation trial at Stafford Crown Court asked of a teenage rape victim, several days into harrowing evidence, whether she had ‘repented her sins’. There have been other examples. Specialist courts and specialist training would help to address this problem.

2: Mandatory reporting

Starmer rightly says that this “cannot be left in the ‘too difficult’ box forever”. In many cases organisations and institutions have failed to report allegations of abuse to statutory authorities (i.e. police and social services), because – as in the Catholic Church and many private schools dependent on their reputation for their income – fealty to an institution can outweigh the responsibility to protect children.

Currently, in England and Wales (and Scotland) there is no formal requirement in law to report child protection concerns to the authorities. There are professional reporting obligations, for example for teachers or carers, which are emphasised through local and national guidance, and various inter-agency protocols. But the failure to report abuse does not constitute a criminal offence. One victim campaigner, discussing an abuse scandal in 2008 at a Catholic private school in West London, pointed out that “The amazing fact is that in failing to report abuse at the school to the police or social services, [the school] didn’t break any laws. It is possible for a headteacher to know for certain that a member of staff has raped a pupil on school premises, and the headteacher has no statutory obligation to report anything to anybody”.

Campaigners have argued for “Daniel’s Law”, named after Daniel Pelka, a little boy starved and beaten to death by his mother; his bruising and emaciation was ignored by his school. Daniel’s Law would make it mandatory for child protection concerns to be reported by professionals and organisations working with children, introducing clarity especially in circumstances of conflicting duty, where a teacher or cleric might be torn between child welfare and protection of the institution.

There are ample precedents internationally. Many states in USA, all Canadian jurisdictions bar one, and many Australian states have mandatory reporting laws. In Northern Ireland, s5(1) of the Criminal Law Act 1967 already provides for a criminal offence of failing to disclose an arrestable offence to the police, which includes most offences against children.

Some child protection charities have expressed concern that mandatory reporting might be counterproductive and have perverse consequences, if police and social services are swamped with inappropriate reports which drain investigative resources from genuine cases. This is a reasonable concern, although the difficulty in weighing evidence from overseas is that mandatory reporting laws come in many different forms. Some mandatory reporting laws apply just to professionals, others apply to the whole population. Reporting thresholds can also vary. However, there is evidence that where mandatory reporting laws are clear and consistent, they can be effective in raising awareness of abuse and the need to pass information to investigators.

In view of the legitimate concerns expressed by some child protection professionals, and the greater problems involved in formulating a law applicable to the general population, the best way forward would be a mandatory reporting law focussing on institutions, i.e. requiring disclosure to the authorities of actual or suspected abuse in an institutional setting. The reporting obligation would be a mandatory, non discretionary duty to report imposed upon a designated person within the organisation who has a legal duty to refer all allegations of wrongdoing vis-à-vis children to external authorities. Provided such a law is accompanied by clarity around reporting thresholds, and around the rules on confidentiality of information, it will help to prevent some of the appalling abuse in schools, religious organisations and other institutions which has recently come to light.

3: Attitudinal change

But we also need a change of attitude towards victims throughout the criminal justice system. This may seem a more nebulous objective but it is fundamental. In Rochdale in 2008, the credibility and reliability of victims of child exploitation was assessed by reference to ill-informed stereotypes about whether the girls concerned (who were often in fear for their lives) reported abuse quickly, whether they returned to their abusers, whether they had previous criminal convictions, and whether their recollections were affected by drugs or alcohol. On that basis, prosecutions were rejected on credibility grounds. As a lawyer who works with some of those victims, I can testify to the subsequent change brought about by the leadership of the Chief Crown Prosecutor in the North West, Nazir Afzal, whose determination to improve the response to victims of child sexual exploitation resulted in multiple criminal convictions in cases which previously had been considered hopeless. Traditional prejudices about victim behaviour were challenged head-on. Following public debate about the Rochdale cases in 2012-13, the CPS under Starmer revised its internal guidelines for prosecution of sexual offences, to ensure that prosecutors are not misled by myths about how ‘real’ victims behave. As Starmer’s successor Alison Saunders has emphasised, that shift has to be constantly reinforced. Attitudes amongst prosecutors matter as much, if not more, than changes in court processes. If both happen, we can ensure that victims of sexual offences have a fair chance of getting justice.

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Richard Scorer is Head of the Abuse unit at Slater & Gordon lawyers and acts for victims in the Rochdale child sexual exploitation case. He was a Labour Parliamentary Candidate in 2010 and currently serves as a Labour councillor in West Yorkshire. He is also the author of Betrayed: The English Catholic Church and the Sex Abuse Crisis, published this year by Biteback Books. Twitter: @Richard_Scorer