AB v The Society of Jesus Trust 1929, Preston Catholic College 5 May 2009 High Court (Jesuits)

The several appeals posted today are all relevant to the Christian Church. See a list of all of them here at the end of the day – Index of Court Appeals on this blog [2]

AB sought damages for personal injury, loss and damage due to sexual abuse and assaults committed on him by a teacher Father Michael Spencer, an RE and PE teacher at Preston Catholic College, Preston, Lancashire, where he was a pupil from 1969 until 1976.

prestoncatholiccolege2

Issues were vicarious liability of Society of Jesus as Preston Catholic College which was no longer  in existence. They denied running the College which had Governors, who operated and managed the college They denied any abuse occurred and brought up limitation.

One surviving governor was then found, and then documents found that showed an insurance company (unnamed)  was liable for the Society of Jesus to indemnify the Governors, so the second defendants, the Governors were dropped.

Even though time barred 28 years previously, the judge thought it equitable to proceed and that a fair trial could happen after this time.  (This after masses of detail given by AB)

I have redacted but this is in the public domain, see after the case.

This case may also be of interest, with the focus on football abuse, as Father Spencer had a coaching link to Preston North End Football Club.

Redaction

Some court reports have had victims names redacted and some assault details redacted.

This is a difficult balance –  normally I would think that  I should not “censor” details but on consultation with various people I have taken the decision to redact. This is mainly to protect victims, their friends and relatives from unnecessary detail and to stop the gratification of those who seek salacious details.

In addition to the obvious “victims redaction” to protect victims details, there may also be “assault redaction” across most of the spectrum of abuse. The assaults are left in the charges, but mainly redacted when repeated with reference to the individual. I have also redacted unnecessary detail of assaults.

Redaction may obscure sometimes the legal reason for the appeal, but should make no large difference to the vital information for researchers that these documents contain. That vital information is mainly names of the perpetrators, past addresses, institutions where assaults occurred, the actual charges the perpetrators faced, and dates – on which newspapers are pathetically inaccurate and this information enables the links between people and places and abuse at various times to be ascertained.

Some transcripts may have been subject to automatic reading software and whilst effort has been made to correct these, the text should not be regarded as definitive.  Common mistakes in reprinting here are that quotation marks are sometimes not correct, replaced by odd symbols.

If you think that the balance is not correct or that a particular redaction needs reconsideration, please say.

This appeal is redacted for personal detail by cathy fox blog

Index of Newspaper and Journal articles on this blog [1]

Index of Court Appeals on this blog [2]

prestoncatholiccolegeCatholic College War Memorial Preston

[2009] EWHC 909 (QB)

Case No: HQ07X00543

IN THE HIGH COURT OF JUSTICE


Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 05 /05 /2009

Before: The Hon. Mrs Justice Swift DBE

Between AB

v.

The Society of Jesus Trust 1929 for Roman Catholic Purposes

The Governors of Preston Catholic College

Mr Robert Seabrook QC & Mr Justin Levinson (instructed by Clifton Ingram LLP) for the Claimant

Miss Kate Thirlwall QC & Mr Steven Ford (instructed by Berrymans Lace Mawer) for the First & Second Defendants

Hearing dates: 23rd– 26th March 2009

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

THE HON. MRS JUSTICE SWIFT DBE

The Hon. Mrs Justice Swift DBE:

Introduction

1. The claimant claims damages for personal injury, loss and damage consequent upon sexual abuse and assaults allegedly committed on him by a teacher at Preston Catholic College, Preston, Lancashire, where he was a pupil from 1969 until 1976. I heard the issues of liability and limitation in this case between 23 and 26 March 2009. This judgment deals with those issues.

2. Proceedings were commenced on 16 February 2007, initially against the first defendants as the former operators of the College, which is no longer in existence. It was alleged that the first defendants were liable on two bases, namely vicarious liability for the sexual abuse and assaults, and negligence. In their Defence, the first defendants did not admit that they operated and managed the College. They denied that they employed the teacher concerned and they did not admit that a relationship giving rise to vicarious liability had existed. They also denied negligence. They asserted that there had been a board of governors who were responsible for operating and managing the College. They did not admit that the abuse had occurred and raised the limitation defence.

3. There then followed a protracted argument as to whether the first defendants were in fact the correct defendants, as a result of which the second defendants were subsequently joined as a party by an Amended Claim Form and Amended Particulars of Claim dated 14 March 2008. The second defendants did not acknowledge service of the proceedings against them as a result of which, on 9 June 2008, judgment was entered against them by order of Master Miller. At the same time, the Master ordered that there should be a split trial with all issues of liability (including limitation) in respect of the first defendants being dealt with prior to and separately from issues of causation and quantum. At that stage, no insurer for the second defendants had been identified. The Amended Claim had been served on the only surviving governor of the College. Shortly before the hearing of an enquiry as to his means, the first defendants’ insurers located policy documents which showed that they were liable to indemnify the second defendants in respect of the claim. It was therefore agreed that the judgment against the second defendants should be set aside. I made that order by consent at the start of the trial.

4. The second defendants then filed a Defence, in which they admitted that they had performed the statutory and other functions of a governing body in respect of the College. They admitted also that they had employed the teacher and that the relationship between the teacher and the second defendants was one giving rise to vicarious liability on the part of the second defendants for any tortious acts or omissions by the teacher. They did not admit that the abuse had occurred and raised the limitation defence. In the light of the admissions contained in the second defendants’ Defence, the parties agreed that I should proceed to decide the issue of liability (including limitation) against the second defendants alone. At the start of the trial, I made an order by consent staying the proceedings against the first defendants.

5. At the outset of the hearing I was told that the issues I was required to determine were:

a. Did the abuse occur?

b. If so, what was its nature and extent?

c. Was the claim issued beyond the primary limitation period?

d. If so, would it nonetheless be just and equitable to allow the case to proceed?

The claimant

6. The claimant was born on [redacted] 1958. He is now 50 years old. Together with his parents and [redacted] siblings, he moved to Preston in 196[redacted]. He had what he described as a rather “old-fashionedâ€upbringing which revolved around school and the church. His mother was a devout Catholic and the whole family (including his father, who was not a practising Catholic) attended Mass every week. The claimant’s mother was clearly a very important influence in his life. His father suffered from mental health problems and appears to have taken little part in his upbringing. He has been described by the claimant as an “absent father from the emotional point of viewâ€.

7. Until the age of 11 years, the claimant was a pupil at St Gregory’s Primary School, Preston, where he was happy and progressed well. He was one of only two pupils at the School to pass his eleven plus examination. The claimant then transferred to the Preston Catholic College where he stayed until the age of 18. The College was a single sex school run by Jesuits. The Head Master and several of the teachers were Jesuit priests, although the majority of the staff were lay teachers. Pupils were educated according to Jesuit values with an emphasis on discipline. At the time the claimant went to the College, he was a small boy with blond good looks which his contemporaries described as “cherubicâ€. He was a competent football player with an intense interest in the game.

8. Father Michael Spencer SJ, the teacher whom the claimant alleges was responsible for abusing him, taught French and Religious Education (RE). He was a physically imposing figure with a powerful and intense personality. He had an obsessional interest in football and was responsible for coaching one school year’s football team as its members progressed through the College. The success of its football teams was matter of considerable importance within the College. Father Spencer was also involved in the coaching of members of the Preston Town Football Club.

9. It is clear from a letter dated 3 July 1976 written by the then Headmaster of the College, Father Richard Wren SJ, to a senior member of the Jesuit Society, that Father Spencer was not a satisfactory member of staff. In the letter, Father Wren described Father Spencer’s refusal to get out of bed in the morning (although it was not referred to in the letter, he was described by some of the witnesses as a heavy drinker), his absence and lateness for classes, his failure to set and correct work and his neglect of his College duties in favour of Preston Town Football Club business. His teaching of RE was said to be “a scandalâ€since, even if he was present for a class, he was “as likely to talk about football or anything else that might enter his mindâ€. The letter did not allude to any matters of a sexual nature. It stated that his gross failures as a member of staff were becoming known in educational circles outside the College and were damaging its good name. All attempts to persuade Father Spencer to change his ways had proved fruitless. Father Wren requested that Father Spencer should be removed from the College staff at the end of the summer term. In the event, that did not happen and he remained at the College until it closed in 1978.

The abuse

The claimant’s evidence

10. When he arrived at the College, the claimant was appointed captain of the Under 11s football team. The team was initially selected and trained by a lay member of staff but, at some time during 1970 (the claimant believes that it was about March), Father Spencer took over responsibility. Football training was held at least twice a week in addition to a weekly games period. Matches against other schools took place on Saturdays during the football season.

11. The claimant’s evidence was that, from the first, Father Spencer singled out the three smallest boys in the team (of which he was one) and would regularly require them to strip naked after which he would “measureâ€each of them (including their inside legs from the genitals to the feet), ostensibly to “chart their growthâ€. These incidents took place in the pavilion changing rooms at the Grafton playing fields which (together with the Riverside playing fields) were situated in Penwortham, some distance from the College. The claimant told me that he found these measuring sessions “scaryâ€and did not know what was going on.

12. Father Spencer was a keen photographer and he would persuade the claimant to remove his clothes and would then film him naked, using both a cine and still camera; these sessions would take place at the Grafton or Riverside playing fields or in the New Gym, which was part of the College complex. (The claimant told me that the New Gym was opened in January 1970 although it is clear from the documents [2/335] that construction did not start until early 1970 and that the official opening took place some time in 1971.) The claimant said that, on one occasion at the playing fields, Father Spencer’s filming was interrupted by the appearance of the school groundsman who apologised and left. The claimant was afraid that the matter might be reported but, in the event, there were no sequelae.

13. The claimant said that, during the summer of his first year, he suffered a groin injury. Father Spencer used this as an excuse to rub his naked groin with “Deep Heatâ€several times a week. This would take place in an office on the half landing of the Old Gym. During these sessions, Father Spencer would touch the claimant’s penis “accidentallyâ€and would also pretend to “examineâ€it by drawing back the foreskin “to see if it was cleanâ€. This procedure went on for over a year. The claimant said that these incidents made him “paralysed with anguish and fearâ€. He was particularly fearful that someone (especially a fellow pupil) would walk in through the unlocked door of the office. He said that, on occasion, another priest, Father Edwards SJ, came into the room and, when he saw what was going on, apologised and left, clearly embarrassed. After these incidents, the claimant feared that Father Edwards might report what he had seen to the Headmaster. He told me that his fear of disclosure was worse than his fear of Father Spencer’s behaviour continuing. He described how he would lie awake at night, imagining the public shame and humiliation that would result if Father Spencer’s activities became known.

14. The claimant said that there were many other occasions when Father Spencer assaulted him by touching his genitals and/or requiring him to strip naked. This would happen at lunchtime, or before or after football practices and games (often under the pretext of speaking to him in his capacity as captain), and in and around the changing rooms and showers. Incidents would occur several times a week and continued as the claimant progressed through the College.

15. The claimant said that Father Spencer’s attentions were not confined to term time. He would send the claimant letters during the school holidays and half terms, informing him that he was required for team training on a specified day or days. The claimant would attend and would find that no one else had been invited. Father Spencer would make him strip and then do “exercisesâ€by bending over in various poses with his legs apart. He would instruct the claimant to lie on his back with his legs bent back and spread apart to “show how supple he was.â€He would kneel down and, in an apparently playful way, touch the claimant’s penis, referring to it as “your wee manâ€. These sessions would often last all day. The claimant described how, on these and other occasions, he was terrified of getting an erection and would try and will himself out of his body, “to just be not thereâ€. He would experience dread when a letter arrived and he knew that he would be alone with Father Spencer.

16. The claimant described an incident which occurred at some time between the opening of the New Gym (in about 1971) and 1973, in the office above the indoor pitch in the New Gym. He said that, on these occasions, Father Spencer would often deliver a preamble, explaining why the desired activity was to take place. The claimant said that he would be filled with dread when these preambles started since he knew what would inevitably follow. He described feelings of isolation and loneliness and of being far from home and from help. On this particular occasion, Father Spencer told him that he needed to check that the claimant’s “back bits were properly connectedâ€to his “front bitsâ€. When the claimant was naked, he made him bend over the desk with his leg wide apart while he knelt behind him. He told me that this was one of the occasions when he pretended not to be there. He pressed his cheek as hard as he could against the desk and pretended that he was out in the solar system somewhere. The claimant said that, as a result of undergoing regular sessions of Eye Movement Desensitisation and Reprocessing (EMDR) treatment since February 2006, he had recalled that this was the first of two occasions when Father Spencer digitally penetrated his anus.

17. The claimant said that, he remembered another occasion (probably when he was in the third or fourth year) when Father Spencer grabbed him while he was following the rest of the team out of the changing rooms onto the pitch for a match. He took the claimant into a nearby lavatory and insisted that he needed “Deep Heatâ€applied to his groin. The claimant said that he was quite rough during this incident, grabbing the claimant’s buttocks, rubbing “Deep Heatâ€into his groin, fondling his genitals and once again inserting his finger into the claimant’s anus. The claimant recalled being acutely aware that the rest of the team would know what was going on and that they were openly mocking him as he ran onto the pitch. The claimant’s evidence was that he had remembered the digital penetration on this occasion as a result of his EMDR treatment.

18. The claimant said that boys were not allowed to wear underwear under their football shorts. He suggested that this was because of an obsession with cleanliness that was part of the ethos of the College. Father Spencer would shower with the boys and would want to soap them down. He found it odd to be in such close proximity to an unclothed adult male, especially a priest. He was aware of Father Spencer taking photographs of him and other boys in the showers, although not, as another witness suggested he may have done, surreptitiously.

19. The claimant’s contact with Father Spencer was not confined to the football team. In the third and fourth years, Father Spencer taught him French and Religious Doctrine and, in his third year, was his form master. In addition, Father Spencer became a regular visitor to the claimant’s home, where he would frequently go for Sunday lunch. When the claimant was in the third year, Father Spencer took him to watch Manchester United play at Old Trafford. The claimant said that he was excited about this since he was a great fan of George Best. At the match, whenever Manchester United scored a goal, Father Spencer would take the opportunity to grab the inside of the claimant’s thigh.

20. As a result of Father Spencer’s evident preference for the claimant, he was taunted by his peers for being Father Spencer’s “petâ€or “Spenny’s bum boyâ€. The claimant’s evidence was that, because of the favouritism showed to him by Father Spencer, life at school “became agonyâ€. He explained that, while the abuse was going on, he viewed Father Spencer’s attentions as an “awful, inexplicable and unimaginably burdensomeâ€problem that somehow had to be kept under control. He said that he thought at the time that what Father Spencer was doing was wrong but that it was somehow his own fault.

21. He said that the abuse continued for as long as he was playing football at the College. He continued to play during his fifth year (because he had been advanced by one academic year, he was in fact spending the first of three years in the sixth form at that time), which would have been the academic year 1973/4, when he was 15 years old. He did not play football during his last two years at the College.

22. The claimant recalled an occasion when his brother, who was more than five years younger than he, told his mother that another priest at the College had put his hands down his swimming trunks. The claimant’s father reported the matter to the Headmaster. The claimant believed that the priest was subsequently transferred to another school. The documents show that the priest in question left the College for another school at the end of the 1976/77 academic year. The claimant told me that his brother’s complaint was made at a time when Father Spencer’s abuse of him was still going on and that he envied his brother for being open about what had happened to him. He believed that the complaint was made when he was in his fifth year at the College. However, it appears from the documents that his brother was in the third year at the College in the academic year 1976/77 [2/456] and that he cannot therefore have joined the school until the claimant was in his sixth year (i.e. his second year in the sixth form) so that his recollection about this must be faulty in some respect.

Other witnesses’ evidence of abuse

23. In support of his allegations of abuse, the claimant relied on the evidence of eleven of his contemporaries at the College. Six of those had come forward spontaneously following an article about the forthcoming trial which appeared in a local newspaper a few days before the trial started. Their evidence was not challenged by the second defendants. It is unnecessary for me to review the evidence of each witness in detail. Instead, I shall summarise the main points.

24. Many of the witnesses spoke of Father Spencer’s presence (often with a camera) in the showers and the changing rooms while the boys were undressed, his anxiety to assist them in washing and drying their private parts and his insistence that the boys should swim naked, even when they were reluctant to do so. Several witnesses spoke of his practice of towelling down boys after showering and swimming, paying particular attention to their buttocks and genital area. The witnesses referred to the rule that no underwear was to be worn under football shorts and described how Father Spencer would check that the rule was being obeyed by pulling out the waistband of each boy’s shorts and peering down at or feeling his genitals. One witness, James Rae, said that Father Spencer would also slide his hand inside the back of the boys’ shorts and down the cleft of their buttocks, ostensibly to ensure that their shirts were properly tucked in.

25. Another witness, KL, described how, in the summer of 1970, before he went to the College (he started in the autumn of 1970, a year after the claimant), he met Father Spencer at the claimant’s home. Father Spencer invited him to accompany the claimant and another boy to a football training session at the College. After the three boys had changed into their shorts, Father Spencer asked him whether he was wearing underpants under his shorts. Before KL could answer, Father Spencer put his hands down his shorts and felt his penis through his underpants. He did the same with the other two boys. He then instructed them to remove their underpants. On a subsequent occasion, again in the summer of 1970, the boys removed their underpants before putting on their shorts but were still subjected to the same handling. Father Spencer then allowed them to swim naked in the College pool and took photographs as they did so.

26. CD described one occasion when Father Spencer invited him to football training and he arrived to find that he was the only person attending. While they were alone together, Father Spencer took photographs of him while he was naked. He also recalled that, on a football tour of Scotland in 1973 or 1974, Father Spencer would visit his and other boys’ bedrooms and massage them while they were naked, touching their genitals frequently in the process.

27. EF described how, in his first or second year, Father Spencer would ask him and another boy to stay behind after football practice to help put away the goal posts. On about six occasions over a period of approximately 18 months, Father Spencer took the boys behind the storage sheds, told them to remove their clothes and photographed them naked.

28. GH described how, on one occasion, Father Spencer called him to the front of the class to discuss homework or some other matter and, while he was speaking, slid his fingers up the leg of his shorts. This was done quite openly in order, he believed, to humiliate him and amuse the class. KL said that he was “botheredâ€about the way in which, when he went to speak to Father Spencer, Father Spencer would put his arm round him and rest his hand on his buttocks. He sat near the front of the classroom and saw him do the same to others. On another occasion, KL was in the changing rooms when he suddenly felt a hand on his bare buttock and realised that it was Father Spencer. He reacted aggressively and it was the last time that Father Spencer bothered him in that way.

29. Several witnesses said that it was well known that the claimant was a “petâ€of Father Spencer. As a consequence, he was subjected to bullying and ridicule. He was, they said, openly referred to as “Spencer’s (or Spenny’s) bum boyâ€. KL said that it was “impossible not to noticeâ€that the claimant was a frequent visitor to the office Father Spencer shared with Father Edwards. He described Father Spencer’s behaviour towards the claimant as “blatantâ€. KL described how, having been a good friend of the claimant before going to the College, he deliberately distanced himself from the claimant once there in order to avoid becoming the target of the boys who bullied the claimant.

30. OP told me that, when he and the claimant were in the first year, he attended the claimant’s birthday party at his home (that would have been in June 1970). Father Spencer was there and it was decided that the boys should play football in the street. The claimant and Terence Holohan went up to the claimant’s bedroom to change. As they were doing so, Father Spencer arrived with a cine camera and insisted on filming the claimant as he changed. OP said that he felt very uncomfortable about the situation, particularly since Father Spencer had closed the bedroom door behind him. As a result of that incident, he took some advice from older boys about how to deal with Father Spencer if he should behave inappropriately towards him. The advice was to “stand up to himâ€. When Father Spencer asked him to scrub his back in the shower, he put this advice into effect and was not bothered any further.

31. OP recalled an occasion, probably in the early summer of 1970, when he walked to the Grafton playing fields and saw Father Spencer using a cine camera to film the claimant as he was undressing near to a windbreak in the middle of the football pitch.

32. The claimant’s mother, Mrs MN, said that she experienced disquiet at the interest Father Spencer was showing in the claimant. It appeared, she said, “singular and obsessiveâ€. She noticed that, when, at Father Spencer’s request, the claimant attended for football training in the school holidays, there seemed to be no one else around. Father Spencer would give the claimant presents which made her uneasy. She decided to invite Father Spencer for a meal. After that, he became a frequent visitor to the house, sometimes just “turning upâ€with the claimant after a Saturday football match and at other times coming for Sunday lunch. She found him pleasant enough, although she was bored by his incessant talk of football. Although she continued to feel a sense of unease, she said that she did not suspect that Father Spencer was abusing the claimant. Indeed, she remarked that “the possibility of a priest abusing a boy in his care was inconceivable at that timeâ€.

The second defendants’ evidence

33. I heard evidence from Arthur Malone, who was a lay teacher at the College from 1958 until its closure in 1995. He said that he had had little to do with Father Spencer, whom he described in his witness statement as “very affableâ€. He would see him in the common room but Father Spencer was part of a “cliqueâ€of staff who would gather together and talk about football. He said that he considered Father Spencer’s enthusiasm for football to be excessive, even ridiculous. He said that he was surprised at the contents of Father Wren’s letter complaining about Father Spencer’s conduct (see paragraph 10 of this judgment). He said that he had never regarded Father Spencer as an exemplary member of staff and he was far from being a model of a Jesuit priest but he had not realised that he had been as unsatisfactory as the letter suggested. He had never heard any suggestion that Father Spencer was attracted to young boys, or any allegations of abuse made against him.

34. Father Peter Hackett SJ taught at the College between 1959 and 1963 and was Headmaster from 1973 to 1975. He said that he was not aware of any allegations about Father Spencer, or any incidents which gave him any cause for concern.

35. Father Charles Edwards SJ was the priest whom the claimant alleges walked into the office he shared with Father Spencer on several occasion to find Father Spencer rubbing “Deep Heatâ€into the claimant’s genitals. In July 2007, the first defendants obtained a short witness statement from him. He was not well at the time and it is clear from the witness statement that his memory was not good. He could not remember the date when he became a priest and was uncertain about whether he had shared an office with Father Spencer. However, he was adamant that he had never seen Father Spencer indecently assaulting the claimant. He said that, if he had done so, he would have reported the matter to the Headmaster or the police. He said that he had never heard any rumours about Father Spencer being attracted to young boys. After his witness statement had been taken, Father Edwards’ health deteriorated and he was not fit to provide further written evidence or to give oral evidence.

The claimant’s progress after the abuse

The sixth form

36. The claimant’s A Level results were disappointing: an “Aâ€grade in English, a “Dâ€in History and an “Fâ€(fail) in Latin. He re-took History and Latin in his third sixth form year. He improved his History grade to a “Bâ€and added a “Bâ€in General Studies. He failed Latin for a second time. He feared that he might not get a place at University but, on telephoning Liverpool University, was told that, since he had an “Aâ€grade in English, he would be accepted through “clearingâ€to read English there.

The claimant’s career after leaving the College

37. For the purposes of this judgment, it is unnecessary for me to deal at length with the claimant’s career after College. I shall summarise briefly the evidence he gave on this topic. [redacted]

38 -44 redacted

[2009] EWHC 909 (QB)

10

Continuing contact between the claimant and Father Spencer

45. Over the years after the claimant left the College, Father Spencer maintained contact with his family. He sent birthday cards and letters to the claimant. The claimant said that he occasionally replied. In 1989, Father Spencer officiated at the wedding of one of the claimant’s school friends and the claimant, who was best man, saw him there. He said that Father Spencer was “a very sociable guyâ€who drank with him and others the night before the wedding and was good company. In 1991, he went to considerable lengths to track down Father Spencer, who was then living in the Orkneys, and to arrange the necessary flights in order for him to officiate at his own wedding. The claimant told me that he asked Father Spencer to do this because he was a friend of the family and the

[2009] EWHC 909 (QB)

11

priest he had known best. In the same year, Father Spencer stayed with the claimant’s parents for a few days at their home in Yorkshire.

46. A small amount of the correspondence from Father Spencer to the claimant dating from around the time of his wedding survives. It contains references to their shared interest of football, as well as to other members of the claimant’s family and his fiancée/wife. It is clear from what the claimant told Dr Shapero that he tracked down Father Spencer in about 1999 and took him out for lunch. He told Dr Shapero that he thought that he had wanted to confront Father Spencer and “get my life backâ€but, in the event, had not had the courage to do so. He had asked about the films of him which Father Spencer had taken. Father Spencer told him that he had destroyed them. He had told the claimant, “When you were 11, you were beautifulâ€. The claimant had felt pity for him. He told Professor Maden that he had realised that Father Spencer was “just a sad, gay old manâ€.

47. The last communication from Father Spencer to the Claimant was a letter dated 28 June 2000, written six months before his death on 31 December 2000. It is clear from its contents that it must have followed shortly after an earlier letter written for the claimant’s birthday, four days earlier. He enclosed photographs of the claimant and his family, together with some of the claimant with other members of the football team and five of him on his own. In one photograph, he is dressed in swimming trunks and, in the others, in his football kit. In the letter, Father Spencer described the photographs of the claimant alone as “all very specialâ€. He went on:

“(The others – the super-specials –never seen by anyone and always “turned outâ€by me, had, unfortunately, to be ‘eliminated’ years later. Unfortunately – c’est la VIE)â€. [emphasis as in original]

He observed that his years of ‘retirement’ were occupied by his “camera memoriesâ€. By way of postscript, he said, “As always, I’ve read the letter – and still send it to youâ€.

The claimant’s awareness of the abuse over the years

48. The claimant’s evidence was that, during the years that followed the end of his time at the College, he retained no conscious memory of much of the sexual abuse that had occurred. He said that he had remembered Father Spencer filming him while he was naked in the showers and other places. He also remembered the massaging of his groin following his injury. He remembered the grabbing of his thigh when Manchester United scored a goal. The memories caused him no conscious distress. If he had spoken of them, it would have been in a casual, jocular fashion (as indeed was the case in the short story which he wrote in 1999). It is relevant in this context to examine the documentary evidence which is available and which might shed light on the claimant’s knowledge of and attitude to the alleged abuse.

49. His GP records contain no record of sexual abuse. In 1985, he attended his GP, complaining that he had been feeling tired and lethargic on and off for years. He told him that he was “a frustrated journalist who was working as a solicitorâ€. In September 1996, he was depressed and a friend recommended him to consult Dr Anthony Fry, Senior Consultant Physician in Psychological Medicine at the London Bridge Hospital. Dr Fry’s contemporaneous notes, made at a consultation on 3 September 1996, record, inter alia:

“Jesuit priest – Father Spencer took film of him in the shower.

[2009] EWHC 909 (QB)

12

Looking for the father

Captain of his own football team….

… Victim of exposure [I think this is the word] by Father Spencerâ€

50. In a letter written to a psychotherapist from whom he had suggested that the claimant might seek treatment, Dr Fry referred to the difficulties which the claimant had described with his relationship with his father and the problems which he (i.e. Dr Fry) believed this had caused within the claimant’s own marriage. He said:

“the deepest relationship he had with a man was with a Jesuit priest who became interested in him under the guise of football when he was about eleven years old. The Jesuit coached him at football but also abused the relationship by going on to take movie photographs of [the claimant] while he was in the shower. [The claimant] says that he was never sexually abused, but it is quite clear that he felt abused by the priest’s approach to him and there is clearly a good deal of anger around this relationshipâ€.

51. In the event, the claimant did not wish to undergo psychotherapy at that stage and instead underwent some further sessions with Dr Fry in early 1997.

52. On 25 February 2007, the claimant attended his GP, complaining that he had been depressed for a year since his wife departed. He had little energy and was experiencing “emotional panic at the thought of lifeâ€; he was “caring littleâ€and was self-neglecting. Anti-depressant medication was prescribed, although it appears that the claimant did not take it. The notes I have seen contain no further entry of a similar nature.

The events of 17 April 2005

53. The claimant described how everything changed on Sunday, 17 April 2005. He had had lunch with members of his family at a public house in Fulham. Also present were his then girlfriend [LM], the priest in charge of his sister’s parish (Father Reginald Dunkling) and a friend of Father Dunkling (JMc). The claimant knew Father Dunkling who, perhaps significantly in view of what followed, has done a lot of work with people who have been the victims of sexual abuse. The claimant’s family members left after lunch, while he, Father Dunkling, LM and JMc stayed on. The claimant said that he had been drinking over a period of five or six hours and that he had had far too much to drink. This was confirmed by LM. Father Dunkling did not accept that he himself had drunk to excess and did not recall the claimant appearing drunk.

54. The claimant and the other witnesses described how Father Dunkling and the claimant became involved in an earnest debate about religion. The claimant told me that he remembers thinking “This (i.e. what he was about to say) will win the argumentâ€. He said to Father Dunkling, “Suck on thisâ€, whereupon suddenly “a kind of flash floodâ€came over him and he was sobbing, saying “I was just a little boyâ€and telling Father Dunkling the details of the sexual abuse he had suffered at the hands of Father Spencer. He told me that he did not remember what he had said. He said that, before that day, he would never have regarded himself as a victim of sexual abuse; indeed, he would have scoffed at the

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idea. However, on 17 April 2005, the knowledge that he had been sexually abused “crashed overâ€him.

55. Father Dunkling described how it became clear to him that there was something that was deeply troubling the claimant which was causing him to become angry and aggressive in his manner. Initially, his anger was directed at the Church in general but it became apparent that there was what Father Dunkling described as “a deep rooted premiseâ€for his anger. He became increasingly distressed until eventually there was “an explosion of emotionsâ€. The claimant was physically trembling and crying. He described to Father Dunkling how he had been singled out for special treatment by a priest and had been required to remove his clothes and to submit to intimate, inappropriate touching. He was “jumping aroundâ€in his account, telling part of a story and then remembering other things. Father Dunkling said that he could remember only part of what the claimant told him. He recalled that the claimant wanted someone to listen to his account of what had happened and to believe it. He said that he was trying to control the situation, conscious that there were other people present. He was trying to calm the claimant and to reassure him that the damage which had been done to him by the actions of the priest would be acknowledged which in turn could begin a process of healing.

56. Father Dunkling recalled that the claimant had told him about letters he had received from the priest, attempting to justify his actions. The claimant told me that this might have referred to Father Spencer’s letter of 28 June 2000. It is difficult to see how that letter could properly be said to be an attempt on Father Spencer’s part to “justify his actionsâ€. Father Dunkling also said that the claimant had expressed anger towards his parents whom he felt “had ignored his pleas and had not taken seriously his fear and confusion at the timeâ€. The claimant’s evidence is that his parents were unaware of what was happening at the time. He disclosed the fact of his abuse to his mother for the first time after the incident on 17 April 2005.

57. LM described how, after an afternoon’s drinking and a long and deep debate with Father Dunkling about theology, the claimant broke down, began weeping uncontrollably and continued to do so for at least 30 minutes. He was clearly profoundly upset by something although he was too incoherent for her to grasp in detail what it was. Eventually, he grew calmer and she took him back to his flat. Jim McElhinney gave a similar account of events. He described how, during the incident, the claimant broke out in what appeared to be a severe “anxiety rashâ€on his face and around his eyes.

After the events of 17 April 2005

58. The claimant said that, following the events of 17 April 2005, he suffered overwhelming sadness and pain. However, he also experienced a sense of illumination. He viewed the events of his life in a wholly different way. He told me that he had realised over the years that he was making a mess of his life. He believed that he had consistently under-achieved, both academically and in his various employments. This had caused him a great deal of anguish. Previously, he had attributed his under-achievement, his poor employment record, his drinking, his difficulties in forming relationships with the opposite sex and the failure of his marriage to his own defects of character and had hated himself for them. However, he had realised after 17 April 2005 that all these various features, together with his feelings of anger, low self-esteem, depression, extreme negativity and exclusion, had occurred as a result of the abuse. He had realised also that, had it not been for the abuse, things would have been “utterly differentâ€. He said that, although this had been a painful process, he had experienced an element of relief since he

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no longer had to blame himself for his failures. Nevertheless, he reported that, since his memories had “surfacedâ€, he had experienced feelings of taint, humiliation, shame, worthlessness and of sadness at his wasted potential and at the loss of his career, his marriage and his confidence. These feelings had caused him to feel suicidal on occasion although he had been helped by the therapy he was receiving.

59. On Monday, 18 April 2005, Father Dunkling reported the claimant’s allegations to Father Michael Smith SJ, Child Protection Officer of the Jesuit Order. He told the claimant what he had done and suggested that he should get in touch with Father Smith. The claimant saw Father Smith on three occasions. Father Smith advised him that he needed therapeutic help and sent him a list of therapists from which to choose. He said that the Jesuit Society would pay for therapy but the claimant preferred to pay for it himself. He had a few sessions with a therapist in mid—2005 but did not find them useful.

60. In connection with these proceedings, the claimant saw Dr Jonathan Shapero Consultant Forensic Psychiatrist at Marlborough House Regional Secure Unit, Milton Keynes, who was instructed on his behalf, on [red] December 2005, [red] February 2006 and [redacted] 2007. Dr Shapero prepared two reports, dated 23 January 2007 and 11 October 2007. The claimant also saw Professor Anthony Maden, Professor of Forensic Psychiatry at Imperial College, London and a specialist in the field of the adult consequences of childhood sexual or physical abuse, who was instructed on behalf of the second defendants, on 28 March 2008. Professor Maden’s report is dated 4 November 2008. The two doctors discussed the case and produced a Joint Statement dated 20 March 2009. They both gave oral evidence before me. I shall refer to their evidence later in this judgment.

61. In February 2006, at the recommendation of Dr Shapero, the claimant started therapy (including EMDR treatment) with Dr Sharon Leicht, a psychologist. He said that, as a result, he has been able to recapture his childhood emotions, in particular the feelings of powerlessness and terror which he felt while the abuse was continuing. He has also recalled the two incidents of digital anal penetration to which I have previously referred. He is still undergoing regular therapy sessions.

62. The nature and significance of the episode on 17 April 2005 is a matter of dispute between the parties. The claimant’s case is that this was the first time that he became fully aware of the nature and extent of the abuse to which he had been subjected. The second defendants’ case is that he had been aware of those facts all along and had deliberately deployed them during a drunken debate. They say that some of the information he gave to Father Dunkling (about the letters and the failure of his parents to act) was untrue. They point out that, on 18 April 2005, the claimant visited his GP about other matters but made no mention of the previous day’s events. This, they say, demonstrates that the episode did not have the significance with which the claimant now invests it. I shall deal further with this episode later in this judgment.

The parties’ contentions about the abuse

The claimant

63. For the claimant, Mr Seabrook QC submitted that the evidence of abuse was overwhelming. The claimant’s own evidence was supported by that of his witnesses. Six of those witnesses had come forward voluntarily just before the trial. They confirmed not only Father Spencer’s propensities but also his marked preference for the claimant. He invited me to accept the claimant’s evidence in its entirety and to find that the abuse had occurred regularly, as he alleged, over a period of four to five years.

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The second defendants

64. For the second defendants Miss Thirlwall QC submitted that the claimant’s evidence was generally unreliable, a fact which I should take into account when considering both the issue of the nature and extent of the abuse and the issue of limitation. Miss Thirlwall submitted that there were elements of the claimant’s evidence which demonstrated clearly that he was not an honest witness. In his witness statement he had given the clear impression that he had been required to re-sit seven of the papers for his Law Society final examinations although it was clear from what he had told the psychiatrists that this was not the case. When asked in cross-examination about the subterfuge which he had used to persuade the Law Society to exempt him from re-taking five of the papers (see paragraph 39 of this judgment) and his remark to Professor Maden that his “whole life as a lawyer was based on a fraudâ€, he first denied making the remark (although he was reported to have made a similar comment to Dr Shapero) and alleged that this was just one of many factual errors contained in Professor Maden’s report. When pressed, he conceded that he had made the remark. He said that he had done so in an early part of the interview with Professor Maden because he was feeling very agitated. It had been a “mischievousâ€remark, he said, made because he is not comfortable with people in authority. He said that he did not regard his legal career as having been based on a fraud. He had regarded the doctor who had agreed to write the bogus letter as “an angelâ€. Miss Thirlwall submitted that this incident, together with the claimant’s evidence about and attitude towards it, demonstrated both his willingness to act dishonestly if it was to his benefit to do so and his complete unreliability as a witness.

65. Miss Thirlwall referred also to an incident described in the claimant’s witness statement and related by him to Dr Shapero. He said that, while employed as a solicitor, he and some colleagues became involved in some form of dishonest activity (either “insider tradingâ€or investing in the stock market using money from the solicitors’ client account). She contended that this provided further evidence of the claimant’s lack of probity. She relied also on what she said were inconsistencies in the claimant’s evidence about the circumstances in which he was finally dismissed from his partnership and about the break-up of his marriage. She suggested that his evidence was characterised by criticisms and complaints about many of those with whom he had dealings in the course of his career, and by his unrealistically high opinion of himself and his own abilities. She argued that the claimant’s claims about the effects of the abuse upon his academic results, his legal career and his personal life just did not stand up to scrutiny.

66. Despite these criticisms of the claimant’s evidence, the second defendants did not seriously dispute the fact that Father Spencer had been guilty of some abuse, in the form of filming the claimant naked and fondling him sexually. However, they did not accept that the abuse was as long-lasting or as severe as the claimant had described. Miss Thirlwall argued that the claimant’s evidence as to the duration of the abuse had been inconsistent. In particular, his account of the stage in the school year 1969/70 when Father Spencer had become involved in the coaching of the football team had been inconsistent and, whereas he had told Dr Shapero that the abuse had gone on until he was 15 years old, he was now saying that the abuse had continued into his first year in the sixth form. Miss Thirlwall suggested that the abuse could have lasted no more than three years.

67. The second defendants did not accept that the claimant’s evidence of the two incidents of digital penetration was reliable. Miss Thirlwall pointed out that the claimant had “rememberedâ€these incidents only after he had undergone EMDR treatment. She argued

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that memories which had been “recoveredâ€after such treatment should be treated with considerable caution and cited the evidence of the psychiatrists in support of that proposition. She also relied on the fact that that there was no other evidence of penetrative conduct which would support the claimant’s allegations.

Findings as to the happening and the nature and extent of the abuse

68. It is evident from the witness evidence that Father Spencer took every opportunity to observe naked young boys and film them, presumably for his later private enjoyment. He exploited his position as a teacher and football coach to touch and fondle the boys for his own sexual satisfaction, under the guise of concerns about their cleanliness and health. He would do this quite openly in the changing rooms, the showers and even in the classroom. It is clear that many of the boys in his care underwent casual, almost routine, acts of sexual abuse (“inspectionsâ€down their shorts; washing or towelling down between their legs, fingers up their shorts, hands on their buttocks, etc.) by Father Spencer.

69. I am satisfied, however, that, with some boys, the abuse went further. These boys may have been chosen because Father Spencer found them particularly attractive and/or because they appeared likely to be more than ordinarily vulnerable or compliant. It was those who were chosen for “measuringâ€, for naked filming sessions, for “privateâ€football practices and for other acts of abuse. It seems clear that he must have been strongly attracted to the claimant, whose position as captain of the football team brought the two of them into constant contact and offered frequent opportunities for private meetings for reasons ostensibly related to team matters. Father Spencer no doubt recognised the claimant’s keen interest in the wider aspects of football which, given his own compendious knowledge and apparently obsessive interest in the game, he was well placed to exploit. His task must have been made easier by the fact that ill health prevented the claimant’s father from playing a central part in his life. The evidence shows that Father Spencer’s close interest in, and relationship with, the claimant was widely recognised by his schoolmates, to whom the nature of that interest was clear.

70. I have no doubt that the claimant was the victim of a sustained course of sexual abuse and assaults by Father Spencer. I am satisfied that the abuse started in the early part of 1970, during the claimant’s first year at the College, when he was 11 years old. The claimant’s evidence derives considerable support from that of Mr A, who recalled attending football practice with the claimant and Father Spencer before he started at the College in the autumn of 1970. There is other support also, including the evidence of Martin Worden to the effect that it was probably in 1970 that he saw Father Spencer filming the claimant.

71. Save in one respect, I accept the claimant’s evidence about the abuse that followed. In particular, I accept that Father Spencer would take every opportunity to get him on his own and then, under some pretext or another, require him to remove his clothes after which he would touch him sexually and to observe and film him in various degrading positions. I found the claimant’s evidence about the abuse (accompanied as it frequently was, with obvious signs of distress) entirely compelling. I note also that his account does not include the type of abuse (e.g. oral or penile penetration) that are generally considered to be the most serious. If he had wished to give an invented or exaggerated account of abuse, it is likely that he would have sought to suggest that activities of this type had occurred. I accept that he was sometimes abused several times a week. I accept also that the abuse continued into his fifth year. It does not seem to me that there has been any serious inconsistency in his evidence about the time when the abuse ended. At the start of his fifth year in 1973/74, he was 15 years old. Some confusion may have been caused by

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the fact that, although that was his fifth year and he played football for the fifth year team, it was also his first year in the sixth form. I find that the abuse stopped (or, as he described it to the psychiatrists, petered out) during his fifth year. By that time, it had been going on for about four years.

72. When the claimant saw Dr Shapero in December 2005, he was asked directly by Dr Shapero whether he had been subject to specific types of sexual abuse such [redacted] He claimed to have a clear recollection of these episodes and described them graphically to Dr Shapero as he did to me. I heard no detailed evidence about the efficacy of EMDR, nor any analysis of the reliability or otherwise of memories “recoveredâ€after such treatment. Nor did I hear any evidence about the specific techniques employed by Dr Leicht. Dr Shapero told me that the purpose of the treatment was to assist the subject to “move onâ€from intrusive memories. He agreed with Miss Thirlwall that it was necessary to be cautious when dealing with memories which had apparently been “recoveredâ€after EMDR, although he saw no reason to doubt that the claimant’s memories were genuine. Professor Maden’s opinion was that it was unsafe to rely on memories which were said to have been “recoveredâ€by this process. He said that most psychiatric and psychological opinion does not accept the validity of “recoveredâ€memories.

73. I am unable to be satisfied to the required standard that the claimant’s evidence about[redacted] is reliable. In saying that, I do not suggest that he has deliberately invented that evidence in an attempt to improve his case. I have no doubt that he genuinely believes that [redacted] occurred, and indeed it is quite possible that it did. However, whether this is a belief that has arisen as a result of his general ruminations about the abuse or constitutes a genuine memory is in my view far from clear. In the event, while the act of digital penetration might seem to an outsider to be of a different order of seriousness than the other acts of abuse alleged, I am not sure that, in the particular circumstances of this case, that was so. Certainly, the claimant did not invest the allegations with particular significance. He commented that, so far as he was concerned, the abuse was “all of a pieceâ€.

74. In accepting to a large extent, as I do, the claimant’s evidence relating to the abuse which he underwent, I do not overlook the issues as to his reliability as a witness to which I have previously referred. These are matters which would require careful consideration in the event that the case were to proceed to a hearing of the issues of causation and damage.

The effects of the abuse

75. In his Particulars of Claim, the claimant contended that he suffered both immediate and long term effects as a result of the abuse. The immediate effects were said to have included humiliation, fear and a failure to achieve his academic potential at school. It is not alleged that he suffered any physical injury. In addition, it was alleged that he had suffered long term psychiatric damage in the form of an enduring personality change together with a mental and behavioural disorder due to harmful use of alcohol resulting from the abuse. It was alleged that his psychiatric disorder had caused him difficulty in forming and sustaining relationships and in pursuing his career.

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76. Dr Shapero and Professor Maden gave evidence about the effects of the abuse on the claimant. Dr Shapero’s opinion was that he has some of the features of an enduring personality change consequent upon a traumatic experience (classified in the Tenth Edition of the International Classification of Diseases (ICD-10) as F62.0) and that this condition has caused, or materially contributed to, many of the difficulties in his life, including his excessive use of alcohol which has in turn caused or exacerbated problems with forming relationships and succeeding in his legal career. Professor Maden disagreed with the diagnosis of enduring personality disorder. His opinion was that many of the features in the claimant’s life that Dr Shapero attributed to that condition could equally well be explained by the claimant’s harmful use of alcohol.

77. The psychiatrists agreed that the claimant has an extrovert personality and narcissistic tendencies, features which would account for some of his difficulties, e.g. in maintaining his various employments. Dr Shapero considered that the claimant’s personality traits represent enduring personality change as a result of the abusive experiences. Professor Maden’s opinion was that his personal traits could satisfactorily be accounted for by hereditary and constitutional factors and that his drinking stemmed from his temperament, his decision to pursue a career to which he was unsuited and other social factors. In other words, he considered that the claimant’s personality would have been the same even had the abuse not occurred.

78. The psychiatrists agreed that the evidence suggested that the claimant is a binge drinker who suffers from a mental and behavioural disorder due to harmful use of alcohol (classified in ICD-10 as F10.1). Dr Shapero believed that the claimant’s drinking was probably caused by or exacerbated by the abuse. His view was that the claimant started using alcohol to excess (and illicit drugs) as an escape from the emotional impact and memories of the abuse. Professor Maden acknowledged that it was possible that the abuse had contributed to the claimant’s excessive alcohol use but he did not accept that this was probable. His view was that the claimant would probably have used alcohol to excess even had the abuse not occurred.

79. The psychiatrists agreed that, since the episode of 17 April 2005, the claimant had become pre-occupied by the abuse and that he had experienced ruminations on the abuse, together with feelings of anger and low mood. They agreed that his symptoms did not justify a diagnosis of post-traumatic stress disorder or a depressive episode, although he had displayed some symptoms of these conditions. Dr Shapero considered that the episode on 17 April 2005 had constituted a “cathartic realisationâ€on the part of the claimant of the abuse that had occurred and that it had given rise to the symptoms from which he had suffered since. Professor Maden considered that the episode was no more than a disclosure by the claimant made during a drunken debate. His view was that the claimant’s symptoms since April 2005 had been attributable in part to the abuse and in part to the fact that his life had, in many respects, gone wrong. He accepted that he was suffering a degree of distress as a result of the abuse, but took the view that he was mistakenly fixated on the events of his childhood because, like many men of his age, he was searching for a reason for his past failures.

Discussion

80. The case came before me for determination of the issue of liability, including limitation. The Master’s direction specified that the issues of causation and quantum should (if the claimant succeeded in establishing liability) be determined later. Nevertheless, Miss Thirlwall sought to persuade me to make a finding as to whether Dr Shapero was correct

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in his diagnosis of enduring personality change as a result of the abuse (and that the condition has caused the claimant’s harmful use of alcohol), or whether, as Professor Maden has said, the effects of the abuse have been much more limited.

81. The effect of making such a finding would be to determine the question of causation. It is to be noted that, in her Skeleton Argument prepared before trial, Miss Thirlwall had stated that the two issues which I had to determine were a) limitation and b) whether or not the abuse occurred. There was no suggestion in that document that I should go further and decide the question of damage, diagnosis and causation.

82. Mr Seabrook submitted that it would be quite wrong for me to decide the issue of diagnosis at this stage. Master Miller’s direction provided only for determination of the issue of liability, including limitation. He argued that the issue of causation would require a detailed review of the claimant’s academic, employment and personal history, together with evidence from persons (including family members) who have known him since he was young and/or who had observed his behaviour at various times. It would also require a much more detailed examination of the medical literature relating to the condition of enduring personality change and its causes. He submitted that, since the case had not been prepared for trial of the issue of causation, the relevant evidence was not before me.

83. I am satisfied that Mr Seabrook is correct in saying that it is inappropriate for me to determine the issue of diagnosis at this stage. I have not undertaken the sort of detailed review of the claimant’s history that would be required to reach a conclusion about diagnosis. Nor have I heard detailed expert evidence about the diagnosis of enduring personality change contended for by Dr Shapero. Professor Maden’s view was that the diagnosis was inappropriate in the absence of a catastrophic event which could have precipitated it. He relied on the definition of F62.0 set out in ICD-10. Dr Shapero said that it was well recognised that the condition could be triggered by less extreme forms of stress. He referred to a two-page extract from a textbook (produced in the course of his evidence) which, he said, supported his view. I was referred to no other literature on the topic. In saying that, I am not making any criticism of the psychiatrists or others involved with the case. The paucity of medical literature resulted no doubt from the fact that the parties were not expecting the issue of the correct diagnosis to be determined at this hearing. That is not surprising in the light of Master Miller’s direction. The original intention was plainly that the psychiatrists would give evidence at this hearing only in connection with issues relating to limitation.

Limitation

The pleadings

84. The first and second defendants’ Defences alleged that the claimant’s claim was time barred by the provisions of section 11 of the Limitation Act 1980 (the 1980 Act), in that it had not been brought within three years of 24 June 1976, the claimant’s 18th birthday. The Defences made clear that, in the event that the claimant sought to rely on a date of knowledge later than 24 June 1979, or to contend that (notwithstanding his failure to bring the claim within the period permitted by section 11) it would be equitable to allow the claim to proceed, those matters would be in dispute.

85. The claimant’s Reply denied that the claim was time barred and averred that it had been commenced within three years of the claimant’s date of knowledge, as defined in section 14 of the1980 Act. He contended that his date of knowledge was 17 April 2005. He averred that, prior to that date, he reasonably did not know that he had been caused to

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suffer significant harm by the abuse. In the alternative, he sought a direction pursuant to section 33 of the 1980 Act that it would be equitable to disapply the limitation period.

Date of knowledge

86. The relevant provisions are contained in sections 11 and 14 of the 1980 Act. The combined effect of section 11(3) and (4) is that an action for personal injuries cannot be brought more than three years after the date on which the cause of action accrued or (if later) the date of knowledge of the person injured. Date of knowledge is defined by section 14, the relevant parts of which provide:

“(1) …in sections 11 and 12 of the Act, references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts —

(a) that the injury in question was significant; and

((b) (c) and (d) are not relevant for present purposes).

(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

((3) is not relied upon in this case)â€.

87. In the leading case of A v Hoare and Ors [2008] UKHL 6 , the House of Lords considered, inter alia, the approach to be adopted by a court when considering when a claimant acquired the requisite knowledge under section 14. In particular, the court considered the extent, if any, to which account should be taken of characteristics personal to the claimant, whether pre-existing or consequent upon his injury. The court concluded that the test was an objective one and disapproved the partly subjective test which had been applied in the earlier cases of McCafferty v Metropolitan Police District Receiver [1977] 1WLR 1073 and KR v Bryn Alyn Community (Holdings) Ltd [2003] QB 1441 . At paragraph 34 of his judgment, Lord Hoffmann said:

“I respectfully think that the notion of the test being partly objective and partly subjective is somewhat confusing. Section 14(2) is a test for what counts as a significant injury. The material to which that test applies is generally “subjectiveâ€in the sense that it is applied to what the claimant knows of his injury rather than the injury as it actually was. Even then, his knowledge may have to be supplemented with imputed “objectiveâ€knowledge under section 14(3). But the test itself is an entirely impersonal standard: not whether the claimant himself would have considered the injury sufficiently serious to justify proceedings but whether he would “reasonablyâ€have done so. You ask what the claimant knew about the injury he had suffered, you add any knowledge about the injury which may be imputed to him under section 14(3) and you then ask whether a reasonable person with that knowledge would have

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considered the injury sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment….â€.

88. At paragraph 36, Lord Hoffman cited a short passage from Bryn Alyn in which Auld LJ said:

“However artificial it may seem to pose the question in this context, section 14 requires the court, on a case by case basis to ask whether such an already damaged child would reasonably turn his mind to litigation as a solution to his problemâ€.

89. Lord Hoffmann disagreed with that approach. He continued at paragraph 37:

“This approach treats the statute as if it had said that time should run from the date on which it would have been reasonable to expect the claimant to institute proceedings. If it had said that, the question posed in Bryn Alyn would have been correct. But section 14 makes time run from when the claimant has knowledge of certain facts, not from when he could have been expected to take certain steps. Section 14(2) does no more than define one of the facts by reference to a standard of seriousnessâ€.

90. At paragraph 38, he observed:

“Section 14(2) is simply a standard of seriousness applied to what the claimant knew or must be treated as having known. It involves no inquiry into what the claimant ought to have done. A conclusion that the injury would reasonably have been considered sufficiently serious to justify the issue of proceedings implies no finding that the claimant ought reasonably to have issued proceedings. He may have had perfectly good reasons for not doing so. It is a standard to determine one thing and one thing only, namely whether the injury was sufficiently serious to count as significantâ€.

91. However, Lord Hoffmann made clear that the question of whether the claimant, taking into account his psychological state in consequence of the injury, could reasonably have been expected to institute proceedings is not irrelevant to the issue of limitation. At paragraph 45, he said that the law:

“…deals with that question under section 33, which specifically says in subsection (3)(a) that one of the matters to be taken into account in the exercise of the discretion is “the reasons for … the delay on the part of the plaintiffâ€.

92. Hoare was considered by the Court of Appeal in the case of Albonetti v Wirral Metropolitan Borough Council [2008] EWCA Civ 783 . Mr Albonetti alleged that he had been abused between the ages of 15 and 16 while he was living in a children’s home; that would have been in about 1970–71. The alleged abuse included acts of masturbation, anal intercourse and oral sex. Despite suffering from psychiatric problems during the 1980s, Mr Albonetti told no one about the abuse until 1996. In 1998 or 1999, he reported it to

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the police, who advised him to consult a solicitor. He did so in August 1999. Proceedings were issued in August 2001 and, following receipt of a supportive medical report in November 2001, Particulars of Claim were drafted and served.

93. The Particulars of Claim pre-emptively pleaded reliance on sections 11 and 14 of the 1980 Act. Mr Albonetti contended that he had not been aware that he had suffered a significant injury as a result of the abuse until receipt of the medical evidence in November 2001. The abuse had resulted in no serious physical injury and he was unaware that he had suffered or might suffer any serious psychiatric injury as a result of the abuse. He therefore claimed that he had not acquired the relevant knowledge for the purposes of section 14 until November 2001. In the alternative, he contended that he had not acquired knowledge until he was first advised to seek the advice of solicitors in 1999. In the further alternative, Mr Albonetti relied on section 33 of the 1980 Act.

94. In determining the preliminary issue of limitation, the judge at first instance referred to Bryn Alyn and made clear that he was applying the partly subjective test approved in that case. Having directed himself accordingly, he held that, by 1976 (when he attained the age of 21) Mr Albonetti did not have knowledge that the injury in question (i.e. the immediate effects of the abuse) was significant. Even when he experienced mental illness in 1986, he was not aware that it was attributable to the past abuse. The judge found that he did not know that until a date which fell within the three year period before the commencement of proceedings.

95. By the time Albonetti came before the Court of Appeal, the case of Hoare had been decided and it was conceded by counsel for Mr Albonetti that the judge had applied the wrong test. Applying the objective test, the Court of Appeal concluded that Mr Albonetti must have known at all times after it occurred that the abuse he had suffered amounted to a significant injury. He would not have known whether it was worth bringing an action but he would have known enough to make it reasonable to expect him to consult a solicitor.

96. At paragraph 21 of her judgment, Smith LJ said:

“The ‘injury in question’ for the purpose of section 14 must be the injury which the claimant knows about at the material time. The initial purpose of these provisions was to assist a claimant who did not know at the time that he had suffered any injury at all and only discovers that he has been injured years after the tort was committed. However, it was plainly also the intention of Parliament to assist a claimant who knew at the time of the tort that he had suffered a trivial (non-significant) injury but only discovered much later that he had in fact suffered a significant injury. As Bingham LJ explained in Stubbings , during the 1970s or 1980s a claimant might well not have realised that he or she was going to suffer long term psychiatric sequelae as a result of the abuse. Here, the judge found that it was not until a very late stage (in fact he said 2001) that the claimant knew that his psychiatric problems were or might be related to the abuse. Accordingly, the ‘injury in question’ to be considered is the immediate effect of the abuse, namely the pain, distress and humiliation which the respondent experienced at the time and rememberedâ€.

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Smith LJ concluded that the allegation of anal rape by more than one man on more than one occasion could not sensibly be regarded as anything other than a significant injury.

The claimant’s contentions on date of knowledge

97. It was argued on behalf of the claimant that the immediate effects of the abuse were not such that a reasonable person would have considered them sufficiently serious to justify instituting proceedings. The abuse, while prolonged and distressing, was significantly less serious than that in Albonetti . It was not painful and the claimant suffered no physical injury. Reliance is placed upon the observation of Smith LJ at paragraph 32 of her judgment:

“For the avoidance of doubt, I wish to make it plain that I am not suggesting that, in every case of abuse, the victim must be taken to have known at the time that he has suffered a significant injury. I quite accept that, where the abuse is of a less obviously intrusive nature, a different conclusion might be reachedâ€.

Mr Seabrook submitted that this was precisely the type of case that Smith LJ had in mind when making that observation.

98. So far as the long term effects of the abuse are concerned, the claimant’s case is that, during the years between the abuse and April 2005, he had no knowledge that he had sustained any damage other than the immediate effects of the abuse. His evidence was that his only conscious memories of the abuse were of Father Spencer filming him naked in the showers and elsewhere and rubbing “Deep Heatâ€into his groin. He said that, at the time the abuse was happening, he distanced himself from it and forgot the incidents immediately they occurred. He said that, as a consequence, he “never knewâ€what had happened until his memories came flooding back in April 2005. Up to that point, the memories had just not been in his head. He explained that he had not characterised the activities he had recalled as “sexual abuseâ€. He was able to dismiss them as the acts of an eccentric. In 1996, he denied to Dr Fry that he had been sexually abused. He told me that that was because, at the time, did not regard what had been done to him as sexual. In his report, Dr Shapero described how the claimant had told him that, before April 2005, he had never even considered (at a conscious level) that what he had experienced had been sexual abuse. He said that, consequently, the claimant would have been unable to make any links between the abuse and his psychological difficulties. He observed that, in his clinical experience, it was very common for a realisation of the links between abuse and symptoms being suffered by the victim of the abuse to be delayed well into adult life.

99. The claimant relied on the opinion expressed by the psychiatrists in their Joint Statement to the effect that:

“[the claimant] seems not to have been aware of any ill-effects on his personality and functioning until 2005… We agree it is not uncommon for adults to fail to appreciate the nature or extent of the effects of having been sexually abused until many years later, although this type of dramatic emotional catharsis (if that is what it was) is rareâ€.

100. I described at paragraphs 54–58 of this judgment the episode that occurred on 17 April 2005 and the claimant’s subsequent realisation that, as a result of the abuse, he had

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suffered psychiatric harm which had adversely affected all aspects of his life. He said that, prior to April 2005, he was unaware that he had suffered any psychiatric damage as a result of the abuse. He said that, if he had known that, he would have initiated proceedings at a much earlier stage. He was after all a litigation solicitor for much of the relevant period. Moreover, if he had known that he had suffered psychiatric harm as a result of Father Spencer’s behaviour, he would not have invited him to officiate at his wedding or met him for lunch in 1999.

101. In oral evidence, Dr Shapero suggested that the claimant’s lack of awareness, during the intervening period, of the full extent of the abuse to which he had been subject could be explained by a process known as dissociative amnesia. Dr Shapero had not advanced this explanation before, although he had referred to “dissociationâ€on a couple of occasions in his reports. In particular, there was no mention of dissociative amnesia in the Joint Statement produced by the psychiatrists a very short time before Dr Shapero gave his evidence. Dr Shapero explained this omission by saying that the evidence for the presence of dissociative amnesia had been strengthened by the oral evidence given by the claimant. He explained that the mechanism of dissociative amnesia is that, faced with difficult emotional circumstances, the subject will “put his mind elsewhereâ€and succeed in forgetting what has happened. He said that he was not putting forward dissociative amnesia as a diagnosis, but rather as an “explanationâ€.

The second defendants’ contentions on date of knowledge

102. The second defendants argued that, on any view, the claimant must have known that he had sustained significant injury by that time he was 18 years old. He was clearly aware of the nature of the abuse as it was occurring. They pointed out that he conceded that he had retained memories of being filmed in various poses while he was naked, of having “Deep Heatâ€rubbed into his groin and of Father Spencer gripping his thigh when a goal was scored at Old Trafford. They said that the claimant had known all along that he had been subjected to repeated sexual assaults of an intrusive nature over a long period which constituted a violation to his person and that, viewed on an objective basis, he must thus have been aware at all times that he had suffered a significant injury. He was well aware of the nature and extent of the abuse and of its effects upon him. The events of 17 April 2005 had not added to his knowledge. He had merely chosen to disclose information that was already known to him. The only “newâ€information which could possibly have emerged from that incident was, they said, an awareness of the strength of some of the emotions he had experienced at the time of the abuse.

103. As to Dr Shapero’s suggestion that the claimant had experienced dissociative amnesia, Professor Maden told me that the techniques that the claimant said he had used during the abuse in order to “will himself out of his bodyâ€were well recognised “distractionâ€techniques, often described by victims of sexual abuse. They were very different from dissociation. He said that “distractionâ€is a device used consciously by an individual to distance himself from what is going on around him. Dissociative amnesia on the other hand is an unconscious process which causes the individual to cut himself off from the relevant experience as a result of which all memories of it are lost. Professor Maden expressed some confusion about Dr Shapero’s suggestion that dissociative amnesia was an “explanationâ€for what had happened, not a diagnosis.

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Conclusions on date of knowledge

104. I do not accept the evidence of Dr Shapero that, in the period between the end of the abuse and April 2005, the claimant had dissociative amnesia which left him with no memory at all of most of the abuse that had occurred. Dr Shapero advanced the suggestion for the first time in the course of his oral evidence. It was not fully developed in his reports or in the Joint Statement. I did not understand the distinction he sought to draw between a “diagnosisâ€and an “explanationâ€. I am satisfied that Professor Maden was correct in saying that the techniques which the claimant was describing were conscious distraction techniques, as opposed to unconscious dissociation.

105. The claimant’s contention was that he had no memory of much of the abuse or of the intense emotions connected with it. I accept that, as is not uncommon in cases of sexual abuse, the claimant had to some extent suppressed his memories of the abuse and, in particular, the emotions associated with those memories. It seems clear that, until April 2005, he did not recognise (or at least acknowledge to himself) the fact that he had been the subject of sexual abuse. Even so, it is clear from his evidence that he was at all times able to remember many incidents of abuse.

106. I am satisfied that the episode which occurred on 17 April 2005 resulted in an awakening of the memories of certain incidents of abuse that had occurred and, more particularly, of the emotions associated with the abuse. I do not accept the contention that the claimant was merely deploying for the purposes of argument information of which he had always been aware. I do not attach any significance to the inaccurate information reported by Father Dunkling. Given the circumstances in which the claimant made his disclosures, it would not be surprising if his listeners had misunderstood some aspects of his story. Nor do I regard it as particularly surprising that he did not tell his story at a GP’s appointment the following day. It is clear from the evidence that, whatever the precise nature of the episode on 17 April 2005, it changed the way in which he viewed the abuse which had occurred and had an effect on his psychiatric state. I am satisfied also that it was after that date that the claimant became convinced that the abuse had resulted in significant psychiatric harm which had adversely affected all aspects of his life. That conviction must of course have been strengthened on receipt of Dr Shapero’s report of 23 January 2007.

107. The issue of whether a claimant can be said to have “knowledgeâ€of matters about which he has suppressed memories was dealt with by Lord Hoffmann in the case of Hoare :

“42. Mr Brown QC, who appeared for the appellant, put forward an alternative argument that, even if the test which section 14(2) applied to the injury as known to the claimant was entirely impersonal, the claimant in this case could not be said to have had knowledge of his injury. This was because, according to the evidence of the claimant, supported by an expert witness, he had “blocked out his memoryâ€, or, in another metaphor which he used in evidence, put his memories “in a box with a tightly sealed lid in the atticâ€. He was, he said, “in denialâ€about the psychological injuries which he had suffered.

43. I do not doubt the value of these explanations of the claimant’s mental processes when it comes to an assessment of

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whether he could reasonably have been expected to commence proceedings. But they are difficult enough concepts to apply in that context and I do not think that section 14(2) was intended to convert them into even more difficult questions of epistemology. If one asked an expert psychologist whether the claimant “reallyâ€knew about his injuries, I expect he would say that it depends on what you mean by “knowâ€. And he might go on to say that if the question was whether he “knewâ€for the purposes of the Limitation Act, it would be better to ask a lawyer. In my opinion the subsection assumes a practical and relatively unsophisticated approach to the question of knowledge …â€

108. Applying the “practical and relatively unsophisticated approach to the question of knowledgeâ€advocated by Lord Hoffmann in Hoare , it seems to me that the claimant must be taken to have “knownâ€, from the time the acts of sexual abuse were committed, the nature and extent of those acts of abuse and the immediate effects they had had upon him.

109. In deciding whether the respondent knew that he had suffered a significant injury in the sense required by section 14(2) of the 1980 Act, I take into account the nature and extent of the abuse as I have found it to be. It is of course true that the abuse resulted in no physical injury to the claimant. It was not (as I have found) penetrative. Nevertheless, its frequency, its duration (the individual “football coachingâ€in the holidays could last all day), the period of years over which it was committed and the intense feelings of violation, dread, isolation, shame and humiliation that the claimant described experiencing at the time must, if true, all have combined together to produce significant psychological effects. The fact that the claimant was aware of at least some of those effects is demonstrated by the fact that he considered Father Spencer’s behaviour of sufficient significance to mention to Dr Fry in 1996 and that he felt the need to “confrontâ€Father Spencer with it in 1999. Those effects, viewed objectively, should in my view have been recognised by a reasonable person as being sufficiently serious to justify instituting proceedings against a compliant defendant with means. In reaching this view, I bear in mind the words of Smith LJ to which I referred at paragraph 98 of this judgment. There will, I recognise, be examples of transient and relatively minor abuse which would not be characterised as having involved an injury which is “significantâ€within the meaning of the 1980 Act. Having regard to the features I have mentioned, however, I do not consider that is the case here.

110. I have found that the abuse ended when the claimant was 15 years old, more than two years before he attained his majority. I find that time began to run from the date of his majority and that the claim became statute-barred in June 1979, just less than 28 years before the commencement of proceedings.

Would it be equitable to allow the claim to proceed?

111. The final question for determination is whether, despite my finding that the claim was commenced outside the primary limitation period, it would nevertheless be equitable to allow the claim to proceed.

112. Section 33 of the 1980 Act provides:

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“(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—

(a) the provisions of section 11 … of this Act prejudice the plaintiff or any person whom he represents; and

(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.â€

((1A) and (2) are not relevant for these purposes)

(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to—

(a) the length of, and the reasons for, the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 …;

(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;

(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.â€.

The claimant’s contentions on the exercise of discretion

113. On behalf of the claimant it is contended that, despite my finding that he had the necessary knowledge at all times during the period since the abuse, I should nevertheless give considerable weight to his reasons for delaying in acting upon that knowledge. Mr

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Seabrook points out that it is clear that the claimant had for many years managed to “block outâ€or suppress the most painful memories of abuse and the emotions surrounding them. He had been unable to treat the abuse lightly and indeed did not consciously recognise it as “sexual abuseâ€at all. This was no doubt to some extent as a result of his ambivalent feelings towards Father Spencer and of Father Spencer’s manipulation and “groomingâ€of him. It was not until April 2005, when the memories and emotions came flooding back, that he realised the full nature and extent of the abuse and its effects upon him. Once he had come to that realisation, he had sought legal and medical advice promptly with a view to commencing proceedings.

114. Mr Seabrook argued that the evidence as to the abuse was not materially less cogent than if the action had been brought within the primary limitation period, so that a fair trial was still possible. He repeated his submission that the evidence of the claimant, supported by that of his witnesses, was overwhelming. There was also the confirmation afforded by Father Spencer’s letter of 24 June 2000. It was of course true that Father Spencer was not available to give evidence. However, Mr Seabrook suggested that, even had Father Spencer been available and denied the allegations, in the face of the evidence give by the claimant and his witnesses, it was inconceivable that he would have been believed.

115. Mr Seabrook argued that, despite the long period that had elapsed since the abuse occurred, the task of the court in assessing the psychological effects of the abuse would be easier than it would have been when the claimant was still a young man of 21 or so. At that time, his future career path would have been entirely unknown and the problems which he was to suffer within his life would not have been evident.

The second defendants’ contentions on the exercise of discretion

116. Miss Thirwall argued that the second defendants would be seriously prejudiced if the action were allowed to proceed. Thirty five years had passed between the start of the alleged abuse and the commencement of proceedings. The claimant would have had better recollection of the events in question thirty years ago. Father Spencer would have been alive and may well have challenged the claimant’s evidence about the happening, nature, frequency and/or duration of the abuse. Father Edwards would have been fit to give evidence. Jimmy Webster, the groundsman who was alleged to have come onto the scene during one of Father Spencer’s filming sessions, would have been alive and available to give evidence. Miss Thirwall referred to the witness statements of Mr Jeremy Davies and Ms Sarah Murray-Smith, solicitors who have had conduct of the case on behalf of the first and second defendants. They detail the difficulties they had experienced in investigating the claim, difficulties largely caused by the fact that many former members of the staff at the College had died, were unfit to provide evidence or could not be traced. Miss Thirwall submitted that the evidence of those witnesses would have provided an important check on the claimant’s credibility which, as I have said, she submitted was poor.

117. Miss Thirwall submitted also that the length of time which had elapsed would make it difficult, if not impossible, for the court to ascertain the effects if any, of the abuse. Even if the court were to be satisfied that the claimant had suffered from psychiatric problems over the years, the task of deciding to what extent, if any, the abuse caused, or contributed to, those problems, would be extremely difficult. Miss Thirwall submitted that this was particularly so in the light of the various inconsistencies in the claimant’s evidence.

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Conclusions on the exercise of discretion

118. The question that I must address is whether it would be equitable to allow the action to proceed, despite my findings as to date of knowledge. I remind myself that the burden of showing that it would be equitable to do so lies on the claimant and that it is a heavy burden. With those matters in mind, I shall address separately the consideration set out in section 33(3) of the 1980 Act.

119. Section 33(3)(a) requires the court to have regard to the length of, and the reason for, the delay on the part the part of the claimant. The length of the delay in this case is very substantial indeed; about 33 years from the end of the abuse to the commencement of proceedings. I must give weight to that fact. As to the reasons for the delay, I have already found that, as is not uncommon in cases of sexual abuse, the complainant had to some extent suppressed his memories of the nature and the extent of the abuse. More particularly, however, he had contrived to suppress many of the emotions associated with the abuse. His attitude was to make light of the incidents of abuse which he did recollect and to view Father Spencer with amusement and pity – even some affection. His state of denial was such that, in 1991, he invited Father Spencer to officiate at his wedding and, in 1996, he denied to Dr Fry that he had been sexually abused by Father Spencer. It seems inconceivable that the claimant would have done either of those things if he had consciously recognised prior to April 2005 that Father Spencer had sexually abused him.

120. It was not until April 2005 that the claimant recognised – or acknowledged to himself – Father Spencer’s behaviour for what it was: that is, serious sexual abuse, which had both immediate psychological effects on him and also, he believes, long-term psychiatric effects. There is no doubt in my mind that if, at any time over the previous three decades, the claimant had consciously been aware of the extent of the effects (whether immediate or long-term) of the abuse, he would have considered taking legal action. He was, between the ages of 24 and 39 years a litigation solicitor and has a somewhat combative personality. He would have been in the best possible position to seek appropriate advice if he had deemed it necessary to do so. I find that the reason that he did not was not because of any conscious decision on his part to delay. Rather it was because he had not yet recognised and confronted the fact of the sexual abuse which he had undergone. In this regard, I take into account the joint view of the psychiatrists that the claimant seemed not to be aware of any ill-effects on his personality and functioning as a result of the abuse until 2005. While Professor Maden did not agree with Dr Shapero that the episode of 17 April 2005 amounted to a “cathartic realisationâ€, he did concede that, following April 2005, the claimant had suffered symptoms of depression and post-traumatic distress disorder which were partially due to the abuse.

121. Section 33(3)(b) requires me to consider the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the claimant or the defendant is or is likely to be less cogent, than if the action had been brought within the primary limitation period. In particular, I must consider the effects of the delay on the second defendants’ ability to defend the action. So far as the issue of liability is concerned, the cause of action is vicarious liability on the part of the second defendant for the sexual assaults and abuse allegedly perpetrated by Father Spencer. The issue is, therefore, far more straightforward than those which would be involved in a claim alleging systemic negligence on the part of a defendant. In the latter case, documents and oral evidence as to contemporaneous practice and procedure and supervisory regimes may well be necessary. Such evidence is unlikely to be available 30 years on.

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122. Despite the relative simplicity of the issue, however, I must consider whether the second defendants would have been in a significantly better position to establish that the allegations made by the claimant were baseless or exaggerated if the trial had taken place within a reasonable period of June 1979.

123. As judges have previously pointed out, allegations of sexual misconduct are easily made and can be difficult to refute. Complainants may have many reasons for inventing or exaggerating allegations. It is therefore necessary to exercise caution when assessing the likely cogency of a claimant’s evidence for the purposes of section 33(3)(b). However, the claimant in this case has made allegations which do not bear the hallmarks of exaggeration. This is not a case where he has “jumped on a bandwagonâ€of other similar complaints. It is difficult to see what motive he could have had for misrepresenting what occurred. Moreover, his allegations were supported to a remarkable degree by a number of his contemporaries. Many witnesses described Father Spencer’s obvious sexual interest in young boys, his habit of looking at and touching their genitals under various pretexts and his preference for the claimant. One witness actually saw Father Spencer filming the claimant. Other witnesses had been filmed themselves. One of the witnesses had, like the claimant, been invited to football training sessions at which only he was present. A most striking feature was the fact that, despite the delay that had occurred, six witnesses came forward spontaneously shortly before the trial started. Some of them were unaware when they did so of the identity of the claimant and none appeared to have any particular axe to grind. In the face of evidence such as this, the second defendants were always going to experience great difficulties in persuading a court that the claimant’s allegations were untrue or exaggerated.

124. The main source of prejudice to which the second defendants point is the death of Father Spencer and his consequent unavailability as a witness. Viewed realistically, however, it is difficult to envisage circumstances in which a denial of the abuse by Father Spencer (assuming he had denied it) would have prevailed over the evidence of the claimant and his witnesses. In particular, he could have had no plausible innocent explanation for the contents of his letter of 28 June 2000. Nor would a denial from other members of staff at the College (in addition to Father Edwards, who provided a witness statement) have been likely to be determinative. They may have been understandably reluctant to admit having any knowledge of Father Spencer’s activities. They may genuinely not have been aware of them – as Mr Malone was apparently unaware of the deeply unsatisfactory behaviour of Father Spencer which led to Father Wren’s letter requesting his removal from the College. I regard it as highly unlikely that the availability of other members of the staff of the College would have improved the second defendants’ prospects of succeeding on the issue of liability. As to documents, most of the second defendants’ documentation was still in existence and they were not able to point to any specific document(s) which were unavailable and would have been likely materially to have affected the outcome on liability.

125. It is necessary to consider also the effect of delay on the cogency of the evidence relating to the psychiatric effects of the abuse on the claimant. There is no doubt that the task of unravelling, more than 35 years after the abuse ended, what, if any, impact it has had on the claimant would be a difficult one. Having said that, there is some force in the contention made by the claimant that there would have been difficulty also (perhaps even greater difficulty) in predicting when the claimant was 21 or 22 what the effects of the abuse would be on his future life and career. The burden of proving that the abuse has had the various effects which the claimant contends on his academic achievements, personality and psychiatric health, as well as upon such matters as his ability to form

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relationships and to achieve his employment potential, would of course lie on the claimant himself. The exercise of determining causation would require a detailed scrutiny of the claimant’s past academic, employment and personal history, together with an examination of the available lay and medical evidence. It would also involve an assessment of the claimant’s reliability as a witness. These are exercises which the courts are well used to carrying out. Given the delay in this case, they would require particular care.

126. Section 33(3)(c) requires the court to consider the conduct of the defendants after the cause of action arose. The type of conduct relevant for these purposes would be any obstructive behaviour on the part of the second defendants which might have prejudiced the claimant. There was no such obstructive behaviour in this case.

127. Section 33(3)(d) requires the court to have regard to the duration of any disability of the claimant arising after the date of the accrual of the cause of action. The claimant did not achieve his majority until about two years after the end of the abuse. Thereafter the limitation period began to run in the usual way. It does not seem to me that these circumstances should have any effect on the exercise of my discretion.

128. Section 33(3)(e) and (f) require me to have regard respectively to the extent to which the claimant acted promptly and reasonably once he knew that he might have an action for damages and the steps which he took to obtain medical, legal or other advice and the nature of that advice. The claimant took no action at all until after April 2005 for the reasons I have previously referred to. It seems that, after April 2005, he acted with reasonable promptitude. He consulted solicitors some time later in 2005 and they arranged for him to see Dr Shapero in December 2005. He saw Dr Shapero again in February 2006. A letter of claim setting out full details of the claim was sent to the first defendants in June 2006.

129. Taking into account all the circumstances of the case and, in particular, the various issues set out in section 33(3) to which I have already referred, I am satisfied that the claimant has established that it would be equitable to allow the action to proceed. I take the view that, notwithstanding the delay that has occurred (through no “faultâ€on the part of the claimant), the ability of the second defendants to defend the issue of liability has not materially been affected and a fair trial of the issue of causation will be possible. To the extent that there is any prejudice in relation to the issue of causation, it is likely to operate to the detriment of the claimant since he will bear the burden of proving his loss.

130. I therefore direct that the provisions of section 11 shall not apply to this action.

A selection of newspaper articles are below.

2009 Standard [3] I asked the priest who abused me to officiate when I got married

2012 Nov 9 BBC [4] Jesuit-run college abuse victim Patrick Raggett wins damages

2012 Nov 9  [5] Solicitors Journal Former partner’s drinking and drug taking ‘not caused by sex abuse’

2016 Mar 13 Catholic Universe [6] Former Preston College student on mission to reunite school’s final class 

2012 Nov 9  Mail [7] Former city lawyer who claimed £5million damages after his ‘life was ruined’ by sexual abuse at Jesuit-run school wins £55,000 payout

2009 Mar 23 Telegraph [8] Former City lawyer claims record £5 million over alleged sex abuse at Jesuit school

Please note that victims of abuse may be triggered by reading this information. These links are generally UK based.

  • The Sanctuary for the Abused [A] has advice on how to prevent triggers.
  • National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups.
  • One in Four [C]
  • Havoca [D].
  • Useful post on Triggers [E]  from SurvivorsJustice [F] blog.
  • Jim Hoppers pages on Mindfulness [G]  and Meditation [H] may be useful.
  • Hwaairfan blog An Indigenous Australian Approach to Healing Trauma  [J]
  • Survivors UK for victims and survivors of male rape or the sexual abuse of men [K]
  • Voicing CSA group [L] helps arrange survivors meetings in your area
  • A Prescription for me blog Various emotional support links [M]
  • ShatterBoys -“Male Survivors Of Childhood Sexual Abuse Inspiring change, Through Shared Experience Whilst Building Connections…Together We Can Heal” [N]

Links

[1] Index of Newspaper and Journal articles on this blog https://cathyfox.wordpress.com/2015/05/23/newspaper-stories-index-timeline/

[2] Index of Court Appeals EWCA on this blog https://cathyfox.wordpress.com/2015/05/08/a-timeline-of-court-and-ewca-documentation-on-cathy-fox-blog/

[3] 2009 Standard I asked the priest who abused me to officiate when I got married http://www.standard.co.uk/news/i-asked-the-priest-who-abused-me-to-officiate-when-i-got-married-6781069.html

[4] 2012 Nov 9 BBC Jesuit-run college abuse victim Patrick Raggett wins damages http://www.bbc.co.uk/news/uk-england-london-20267571

[5] 2012 Nov 9  Solicitors Journal Former partner’s drinking and drug taking ‘not caused by sex abuse’ https://www.solicitorsjournal.com/news/crime/persons/former-partner%E2%80%99s-drinking-and-drug-taking-%E2%80%98not-caused-sex-abuse%E2%80%99

[6] 2016 Mar 13 Catholic Universe Former Preston College student on mission to reunite school’s final class  http://www.thecatholicuniverse.com/former-preston-college-student-on-mission-to-reunite-schools-final-class-7981 jimclune@fsmail.net

[7] 2012 Nov 9  Mail Former city lawyer who claimed £5million damages after his ‘life was ruined’ by sexual abuse at Jesuit-run school wins £55,000 payout http://www.dailymail.co.uk/news/article-2230616/City-lawyer-Patrick-Raggett-wins-55k-damages-childhood-sex-abuse-Jesuit-school-Preston.html

[8] 2009 mar 23 Telegraph Former City lawyer claims record £5 million over alleged sex abuse at Jesuit school http://www.telegraph.co.uk/news/uknews/law-and-order/5038067/Former-City-lawyer-claims-record-5-million-over-alleged-sex-abuse-at-Jesuit-school.html

[9] Patrick Raggett therapist http://www.itsgoodtotalk.org.uk/therapists/in/a57735/london-west/london/patrick-raggett

[A] Sanctuary for the Abused http://abusesanctuary.blogspot.co.uk/2006/07/for-survivors-coping-with-triggers-if.html

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Survivors v Poor Sisters of Nazareth 6 Jun 2007 Court of Session

The several appeals posted today are all relevant to the Christian Church. See a list of all of them here at the end of the day – Index of Court Appeals on this blog [2]

Physical and emotional abuse 1961 -1979 suffered by children at Childrens Home run by Poor Sisters of Nazareth, Cardonald.

cardonald-sisters

Although not a lawyer and not familiar with Scottish law this looks as if this discussion in court is to decide whether an action against Poor Sisters, Nazareth House, Cardonald is time barred and whether that should be overturned.

The reclaiming motions were refused, by which it appears the case was not allowed to go ahead against Poor Sisters of Nazareth.

The Court was forced to take a legal decision when the Poor Sisters and their Religious Superior Sister Bernard Mary Murray could have chosen a higher moral law, but chose not to.

Redaction

Some court reports have had victims names redacted and some assault details redacted.

This is a difficult balance –  normally I would think that  I should not “censor” details but on consultation with various people I have taken the decision to redact. This is mainly to protect victims, their friends and relatives from unnecessary detail and to stop the gratification of those who seek salacious details.

In addition to the obvious “victims redaction” to protect victims details, there may also be “assault redaction” across most of the spectrum of abuse. The assaults are left in the charges, but mainly redacted when repeated with reference to the individual. I have also redacted unnecessary detail of assaults.

Redaction may obscure sometimes the legal reason for the appeal, but should make no large difference to the vital information for researchers that these documents contain. That vital information is mainly names of the perpetrators, past addresses, institutions where assaults occurred, the actual charges the perpetrators faced, and dates – on which newspapers are pathetically inaccurate and this information enables the links between people and places and abuse at various times to be ascertained.

Some transcripts may have been subject to automatic reading software and whilst effort has been made to correct these, the text should not be regarded as definitive.  Common mistakes in reprinting here are that quotation marks are sometimes not correct, replaced by odd symbols.

If you think that the balance is not correct or that a particular redaction needs reconsideration, please say.

This appeal is redacted by cathy fox blog for personal details.

Index of Newspaper and Journal articles on this blog [1]

Index of Court Appeals on this blog [2]

AB

v.

Poor Sisters of Nazareth

No 48

Court of Session Inner House First Division

06 June 2007

Lord President (Hamilton), Lord Abernethy, Lord Eassie

(1) AB; (2) CD; (3) EF,
Pursuers and Reclaimers –
McEachran, QC, Stirling Drummond Miller WS
Sister Bernard Mary Murray and others representing the Poor Sisters of Nazareth,
Defenders and Respondents –
Moynihan QC, Duncan Simpson & Marwick WS

Process – Actions for damages for abuse suffered in children’s’ home between 1961 and 1979 – Actions raised in May 2000 – Whether actions time-barred – Whether court should exercise discretion to override time-bar – Prescription and Limitation (Scotland) Act 1973 (cap. 52), secs 17, 19A

Process – Procedure roll debate – Resulting interlocutors not reclaimed against – Preliminary proof on time-bar – Resulting interlocutors reclaimed against – Whether court could review prior interlocutors during reclaiming motion

Statutory interpretation – Prescription and Limitation (Scotland) Act 1973 (cap. 52), secs 17 – Interpretation of tests in sec 17(2)

Part 2 of the Prescription and Limitation (Scotland) Act 1973, as amended, provides, inter alia, for the limitation of actions by specified time periods or time-bars. Section 17 applies to actions for damages in respect of personal injuries. Section 17(2) provides that, “Subject to subsection (3) below and section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of three years after- (a) the date on which the injuries were sustained or, where the act or omission to which the injuries are attributable was a continuing one, that date or the date on which the act or omission ceased, whichever is later; or (b) the date (if later than any date mentioned in paragraph (a) above) on which the pursuer became, or on which, in the opinion of the court, it would have become reasonably practicable for him in all the circumstances to become, aware of all the following facts- (i) that the injuries in question were sufficiently serious to justify his bringing an action of damages on the assumption that the person against whom the action was brought did not dispute liability and was able to satisfy a decree; (ii) that the injuries were attributable in whole or part to an act or omission; and (iii) that the defender was a person to whose act or omission the injuries were attributable in whole or in part or the employer or principal of such a person.” Section 19A provides a discretionary power to the court to override the time-bar.

As children, the pursuers and reclaimers were resident in Nazareth House in Cardonald, a children’s home run by the Congregation of the Poor Sisters of Nazareth. They were all resident there for various periods from 1961 to 1979. The home was run by the second defenders and respondents, a congregation or order of nuns of which the first defender and respondent is the present religious superior. The reclaimers averred that they had been assaulted and otherwise mistreated while at Nazareth House and as a result suffered immediate pain and distress and consequently, had suffered and continued to suffer long-standing psychological or psychiatric problems in adulthood. The reclaimers, (together with several hundred others in similar situations whose actions had subsequently been sisted pending resolution of these cases), raised actions for damages against the respondents in the Court of Session in May 2000. The respondents tabled pleas that the actions were time-barred in terms of Pt 2 of the Prescription and Limitation (Scotland) Act 1973 (as amended). In response, the reclaimers pled that the time-bar was extended firstly, in respect of nonage to their respective 21st birthdays and secondly, in terms of sec 17(2)(b) of the Act by reason of lack of awareness of the reclaimers to a date within three years prior to the commencement of the actions, ie to a date sometime after May 1997. Esto, they pled that the court should exercise its discretion under sec 19A to override the time-bar.

When the cases called before Lord Johnston for procedure roll debate, the Respondents’ pleas were upheld and the cases appointed to a preliminary proof for inquiry, restricted to the question of whether the court should exercise its sec 19A discretion to override the time-bar. The preliminary proof proceeded over several weeks before Lord Drummond Young, who heard evidence from, inter alia, the reclaimers and expert witnesses. Lord Drummond Young exercised his discretion in favour of the Defenders and dismissed each action. In the reclaiming motion, the reclaimers first invited the court to open up and review Lord Johnston’s prior interlocutors, as well as those of Lord Drummond Young reclaimed against. On this aspect of the case, it was argued for the reclaimers that: (1) while holding that sec 17(2) did not apply, Lord Johnston had indicated that the issue of awareness could have been addressed under sec 19A and Lord Drummond Young had taken an unduly narrow view of the scope of his discretion and had failed to take into account the sec 17(2) factors; (2) the court should recall Lord Johnston’s interlocutors and consider afresh the evidence heard before Lord Drummond Young and find that the actions had been timeously brought; (3) on a proper interpretation of sec 17(2)(b)(i), none of the reclaimers had the requisite awareness until less than three years prior to May 2000; (4) the constructive awareness test provided in sec 17(2)(b) was mainly objective but contained subjective elements including the personal characteristics of the reclaimers and of those, such as the reclaimers, belonging to a class of disadvantaged and abused persons; (5) sec 17(2)(b) was not concerned solely with quantum of damages but was a “composite fact” including a “litigation factor” which included reference to the features of those belonging to the class of persons of “institutional child abuse victims” of which the reclaimers were part; and (6) persons of such a class were subject to a “silencing effect” and had not appreciated they might have a claim for damages until they had seen newspaper articles alerting them to that possibility in May 1997, ie within three years of May 2000.

The respondents argued that: (1) Lord Johnston’s observations on the factors relating to awareness, which could be considered in the context of sec 19A, were properly taken into account by Lord Drummond Young; (2) the reclaimers had acquiesced in Lord Johnston’s disposal and the preliminary proof had proceeded on the restricted basis to consider only sec 19A, and it would be wholly inappropriate for the court to consider afresh and make findings of fact on matters outwith the scope of the proof; (3) if the reclaimers had wished to keep the sec 17(2) issue alive they should have reclaimed against Lord Johnston’s interlocutors; (4) the awareness test in sec 17(2)(b) was based on certain statutory facts identified in sub-heads (i)-(iii); (5) properly construed sec 17(2)(b)(i) was concerned with awareness of the extent of injury in terms of quantum; and (6) the reclaimers did not form part of the class of persons to which a “silencing effect” applied and in any event, appreciation of the possibility of bringing a claim was not a fact within the test and awareness of the possibility of resorting to litigation was excluded by sec 22(3).

Against the interlocutors of Lord Drummond Young, the reclaimers argued that the Lord Ordinary had erred in the exercise of his discretion and in a number of particular respects: (i) having restricted the preliminary proof according to a narrow interpretation of sec 19A and having wrongly excluding sec 17(2) issues; (ii) having failed to give proper recognition to the “clean hands” argument, namely that at the preliminary proof it had to be assumed that the respondents had been responsible for the abuse of the reclaimers and, it was argued, since the abuse was responsible for effectively silencing the reclaimers, the respondents could not rely on their own misdeeds to deny the reclaimers a remedy; (iii) having placed over-reliance on the dicta of McHugh J in the Australian case of  Brisbane Regional Health Authority v Taylor ; (iv) having taken into account a number of factors which were irrelevant; (v) having made assumptions regarding changes in social attitudes; (vi) having regarded the monetary value of the reclaimers’ claims as relatively small; (vii) having concluded that the respondents would have suffered prejudice because they had been unable to trace witnesses and recover documents; and (viii) having rejected evidence of a diagnosis of PTSD in respect of the first reclaimer.In reply, the respondents argued that Lord Drummond Young had not erred in the exercise of his discretion and in particular: (i) the Lord Ordinary had correctly encapsulated the approach in Scots law to sec 19A and had not excluded the sec 17(2) issues from the proper scope of the preliminary proof; (ii) the “clean hands” argument had been recognised; (iii) it had not been said that the principles enunciated by McHugh J in  Brisbane  did not reflect the position in Scotland; (iv) the Lord Ordinary had not taken into account irrelevant factors; (v) the Lord Ordinary had been entitled to make observations regarding changes in social attitudes; (vi) the Lord Ordinary had been entitled to consider the relative monetary value of the claims; (vii) it had been for the Lord Ordinary to determine how much weight to place on lost evidence and his findings on that matter had not been challenged; and (viii) the Lord Ordinary’s rejection of the diagnosis of PTSD had been of no moment.

Held that: (1) it was clear that the court had the power to open up and review Lord Johnston’s interlocutors of 30 July 2004. The issue was whether it was appropriate to do so (para 15); (2) it was not appropriate to open up and review Lord Johnston’s interlocutors (para 16); (3) the test of awareness in sec 17(2)(b)(i) was concerned only with the extent of the injury, in terms of quantum of damages. The actual or constructive awareness in relation to that sub-head was awareness that injury had been suffered which was sufficiently serious to have been above a minimum threshold in terms of quantum (paras 25, 26); (4) in any event, the reclaimers’ pleadings had not relevantly engaged sec 17(2)(b), nor raised any issue of constructive awareness, and Lord Johnston had been justified in finding as he had done (paras 28, 30, 32); (5) the court had a general discretion under sec 19A (para 80); (6) there was no reason not to accept the dicta of McHugh J in  Brisbane  as an appropriate discussion of the policy applicable in the context of Scots law (para 82); (7) Lord Drummond Young had dealt with the question of whether the alleged abuse suffered by the reclaimers had itself been the cause of their delay in raising proceedings and accordingly, the reclaimers submissions on the “clean hands principle” were not well founded (para 83); (8) Lord Drummond Young fully considered the so-called sec 17(2) issues and weighed them in the balance against the other factors relevant to the exercise of his discretion under sec 19A (para 87); (9) Lord Drummond Young had not erred in any of the ways which had been contended for by the reclaimers (paras 88, 89, 90, 91, 92, 94, 95); (10) Lord Drummond Young had been entitled to conclude that the respondents had been prejudiced by the delay in bringing proceedings and by the actual loss of material evidence, and that that prejudice was by itself a sufficient reason for not allowing the present actions to be brought under sec 19A (para 93); and reclaiming motions refused.

AB, CD and EF raised actions in the Court of Session against the defenders for damages in respect of injuries suffered when, as children, they were resident in Nazareth House, Cardonald between 1961 and 1979. The actions were commenced in May 2000. The defenders tabled pleas that the actions were time-barred. Following a procedure roll debate before the Lord Ordinary (Johnston) on 4 and 5 November 2004, interlocutors dated 30 July 2004 were pronounced in which the defenders’ pleas were upheld and the cases appointed to a preliminary proof for inquiry into whether the court should exercise its discretion to override the time-bar. The preliminary proof proceeded before the Lord Ordinary (Drummond Young) over several weeks in January and February 2005. By interlocutors dated 2 June 2005, the Lord Ordinary (Drummond Young) exercised his discretion in favour of the defenders and dismissed each action. Against those interlocutors, the pursuers reclaimed.

Cases referred to:

 Ablett and ors v Devon County Counciland the Home Office  Sedley LJ, 4 December 2000, unreported

 Adams v Bracknell Forest Borough Council  [2004] UKHL 29; [2005] 1 AC 76; [2004] 3 WLR 89; [2004] 3 All ER 897

 Agnew v Scott Lithgow Ltd (No 2)  2003 SC 448; 2003 SCLR 426

 Blake v Lothian Health Board  1993 SLT 1248

 Brisbane Regional Health Authority v Taylor  (1996) 186 CLR 541

 Carnegie v Lord Advocate  2001 SC 802

 Carson v Howard Doris Ltd  1981 SC 278; 1981 SLT 273

 Catholic Care (Diocese of Leeds) and anr v Young  [2006] EWCA Civ 1534; [2007] 1 All ER 895; (2006) 103 (46) LSG 33; (2006) 156 NLJ 1802

 Clark v McLean  1994 SC 410; 1995 SLT 235; 1994 SCLR 564

 Comber v Greater Glasgow Health Board  1989 SLT 639; 1989 SCLR 515

 Donald v Rutherford  1984 SLT 70

 Elliot v J & C Finney  1989 SLT 605

 Firman v Ellis  [1978] QB 886; [1978] 3 WLR 1; [1978] 2 All ER 851

 Forsyth v AF Stoddart and Co Ltd  1985 SLT 51

 Godfrey v Quarriers Homes  [2006] CSOH 160

 Hawkins v Clayton and ors  (1988) 164 CLR 539

 KM v HM  (1992) 96 DLR (4th) 289

 KR and ors v Bryn Alyn Community (Holdings) Ltd and anr  [2003] EWCA Civ 85; [2003] EWCA Civ 783; [2003] QB 1441; [2003] 3 WLR 107; [2004] 2 All ER 716

 Kane v Argyll and Clyde Health Board  1999 SLT 823

 Lannigan v Glasgow City Council  12 August 2004, unreported

 Lister v Hesley Hall Ltd  [2001] UKHL 22; [2002] 1 AC 215; [2001] 2 WLR 1311; [2001] 2 All ER 769

 M v O’Neill  [2006] CSOH 93; 2006 SLT 823

 McCabe v McLellan  1994 SC 87; 1994 SLT 346; 1994 SCLR 188

 McCoubrey v Secretary of State for Defence  [2007] EWCA Civ 17; [2007] 1 WLR 1544; [2007] LS Law Medical 150; (2007) 151 SJLB 159

 McCue v Scottish Daily Record and Sunday Mail Ltd  1998 SC 811; 1998 SLT 983; 1998 SCLR 742

 McIntyre v Armitage Shanks Ltd  1980 SC (HL) 46; 1980 SLT 112

 Newcastle Building Society v White  1987 SLT (Sh Ct) 81

 Noble v De Boer  2004 SC 548; 2004 SLT 1085; 2004 SCLR 485

 T v Boys and Girls Welfare Service  [2004] EWCA Civ 1747

 Thompson v Brown  [1981] 1 WLR 744; [1981] 2 All ER 296; (1981) 125 SJ 377

 X (Minors) v Bedfordshire County Council and ors  [1995] 2 AC 633; [1995] 3 WLR 152; [1995] 3 All ER 353

The cause called before the First Division, comprising the Lord President (Hamilton), Lord Abernethy and Lord Eassie, for a hearing on the summar roll on 19 January 2007.

At advising, on 6 June 2007, the opinion of the Court was delivered by the Lord President (Hamilton)-

Opinion of the Court

[1] This is the opinion of the court to which all of its members have contributed substantially.

Introductory

[2] The pursuer and reclaimer in each of these three actions of damages for personal injury was, as a child, for some years resident in a children’s home, Nazareth House, situated at Cardonald, Glasgow and run by the second defenders and respondents, a congregation or order of nuns. The first defender and respondent is the current Religious Superior of that congregation or order. AB was resident in that home between 1966, when she was three years old, and 1979, shortly after she attained the age of 16. CD was resident in the same home from 1975, when he was six years old, until 1978 when he was nine years of age; thereafter he  spent the remainder of his childhood in other children’s homes. EF was resident in the same home from about 1961, when she was seven or eight years old, until 1969, soon after she attained the age of 16.

[3] All the reclaimers come from family backgrounds which would now be described as disadvantaged. AB was the [redacted] children. Her mother apparently left home. Her father then enlisted the assistance of his sister but she did not provide appropriate care for the children. Their situation having been reported by a neighbour to the local authority, all the children were taken into care and placed in Nazareth House. CD was the [redacted] children. Both his parents had problems with alcohol and were unable to cope with their family responsibilities. As a result CD and two of his brothers were taken into care. After a brief period during which they were fostered, all three were placed in Nazareth House. EF was the [redacted] children, one of whom had died in infancy. Her mother, who apparently had problems with alcohol, was unable to cope with bringing up the surviving children. All four children were taken into care by the local authority and placed in children’s homes, EF and her sister being placed together in Nazareth House.

[4] In these actions the reclaimers each seek damages from the respondents for loss, injury and damage which they aver they sustained in and consequential upon their time as residents in Nazareth House. Although there are some differences among the averments made by the reclaimers, the pattern is the same. They maintain that they were regularly assaulted by the nuns in charge of them, that is to say, beaten or struck in a manner which, even by the standards of the time, could not be regarded as reasonable chastisement; that they regularly witnessed assaults perpetrated against other children in the home; and that they were regularly subjected to humiliating experiences. No affection was shown to them; no praise given to them; they were not treated with dignity. Apart from the immediate pain and distress of their experiences, each reclaimer maintains she or he has suffered and continues to suffer from long-standing psychological or psychiatric problems. In the case of all of the reclaimers a consequence of their experiences has been, they aver, that they have suffered from chronic or repeated bouts of depression. In the case of the male reclaimer, CD, he attributes to his childhood experiences, among other consequences, his resort as a youth to criminal behaviour and to the abuse of alcohol. Both female reclaimers, AB and EF, maintain that their experiences have led to disadvantages in the workplace, with consequential financial loss. These consequences they attribute to delictual acts or omissions of the second respondents or of the individual nuns for whose acts and omissions they are vicariously responsible.

[5] Each of these actions was commenced in May 2000. We understand that several hundred other actions have also been raised in the Court of Session against the same religious order by other persons who, as children, lived in homes run by it and that several hundred more have also been raised against other institutions which ran similar children’s homes. In total about 600 actions have been so raised. As a result of decisions taken by the Scottish Legal Aid Board most of these actions have been sisted pending resolution of the present actions.

[6] In each of the present actions the respondents have tabled pleas that the action is time-barred by reason of the limitation provisions in Pt II of the Prescription and Limitation (Scotland) Act 1973 (as amended). In response the reclaimers have pled that the three year time-limit is extended, first, by virtue of sec 17(3) of the Act, in respect of nonage, to their respective 21st birthdays and, secondly, in terms of sec 17(2)(b) by reason of the lack of relevant awareness of the respective reclaimer to a date within three years prior to the commencement of the action, ie to a date sometime after May 1997. They further plead that, if their right to commence an action has not been extended by virtue of sec 17(2), the court should exercise its discretion under sec 19A to extend the time so as to allow the action to proceed.

Procedural history

[7] The respondents having in each case tabled a plea to time-bar (plea 1) and also a plea (plea 2) to the relevancy of the reclaimers’ averments, the cases came out on procedure roll before Lord Johnston for discussion of these pleas. All three actions, although not formally conjoined, were heard together. Lord Johnston, having heard parties, pronounced on 30 July 2004 an interlocutor in AB’s action in the following terms:

’30 July 2004 Lord Johnston

The Lord Ordinary having resumed consideration of the cause sustains the 1st and 2nd defenders’ second plea-in-law to the extent of excluding all reference to section 17 of the Prescription and Limitation (Scotland) Act 1973 as amended and to the averments in Condescendence 4 from further consideration; quoad ultra allows to parties a preliminary proof on the issues focused in Condescendence 6 and Answer 6 in relation to section 19A of the said Act; appoints said preliminary proof to proceed on the day of at and grants diligence for citing witnesses and havers; continues the question of expenses’.

Equivalent interlocutors were pronounced in the other two actions. (The exclusion of the averments in cond 4 (or its equivalent) was of a statutory case under the Administration of Children’s Homes (Scotland) Regulations 1959; the reclaimers no longer insist on that case.) It will be appreciated that the interlocutor otherwise excluded questions of constructive awareness under sec 17(2) and confined the inquiry to the discretion, under sec 19A, to override the time-bar.

[8] The interlocutor was in each case one to which RC 38.3(4) applied and was accordingly one which might have been reclaimed against without leave. In the event no reclaiming motion was marked against it. The reclaimers’ advisers, we were told, were anxious to make progress – the actions by that stage having been in court for some four years – and were informed that a diet of preliminary proof could be fixed for a relatively early date. In taking the decision not to reclaim against that interlocutor they also placed reliance, we were told, on certain observations made by Lord Johnston in his opinion. Having expressed the view that the question raised by sec 17 was essentially a matter of law and consequently relevant averments, he continued (opinion in AB’s case, para 15):

‘When it comes however to the exercise of the sec 19A discretion, the court may range over many factors which could be said to be relevant to any relevant legal issue and I therefore accept that the general observations, albeit made in relation to the English equivalent of sec 17, in Bryn Alyn with regard to psychological damage occurring years after an event or series of events which are linked can, and should be, relevant to the issue under sec 19A. By “relevant legal issues” I mean a relevant action in delict as described by the pursuers’ averments taken pro veritate. I am impressed by the argument that the nature of the treatment alleged in this case can render persons who are seriously vulnerable in society in general terms even more vulnerable [and] even less likely to be able to appreciate their rights. While I myself sustain [sic] certain reservations about the extent to which the Court of Appeal in Bryn Alyn were interpreting a statute by reference to judicial or social engineering, I consider when it comes to an exercise of discretion under sec 19A, however cogent the discussion by Lord Justice Auld in respect of the equivalent sec 33 of the English legislation may be, it is entirely relevant to consider the points made by counsel for the pursuer in relation to vulnerability, her concerns, ignorance and general non-legal disability’. [9] In the event the preliminary proof proceeded before Lord Drummond Young over several weeks in January and February 2005. By interlocutors dated 2 June 2005 Lord Drummond Young, having exercised his discretion under sec 19A in favour of the defenders and having accordingly refused to allow the pursuers to bring the present actions, dismissed each of them. Against each of these interlocutors the pursuers have reclaimed.

Review of the prior interlocutors of Lord Johnston

[10] The reclaimers have invited this court to open up and review not only Lord Drummond Young’s interlocutors of 2 June 2005 but also the prior interlocutors of Lord Johnston dated 30 July 2004. They rely on RC 38.8(1) which provides: ‘a reclaiming motion shall have the effect of submitting to the review of the Inner House all previous interlocutors of the Lord Ordinary’. The respondents, while acknowledging that it would be competent for this court now to open up and review Lord Johnston’s interlocutors, submitted for a number of reasons that we should not do so.

Submissions of counsel

[11] Junior counsel for the respondents in opening their submissions on this aspect argued that, having regard to (1) the actings of the parties, (2) the difficulty of unwinding what had since happened and (3) the absence of any real underlying merit in the pursuers’ contentions under sec 17(2), the court should not review Lord Johnston’s interlocutor. Reference was made to  McCue v Scottish Daily Record and Sunday Mail Ltd . The reclaimers, having secured a preliminary proof from Lord Johnston but having in the event failed to persuade Lord Drummond Young to exercise his discretion in their favour, were now seeking, it was argued, to open up an interlocutor in which they had effectively acquiesced. The respondents had had to make hurried preparations for the preliminary proof (including a change of senior counsel) and had conducted that proof on the basis that it was directed (as the interlocutor provided) solely to the issue under sec 19A. It was now being contended by the reclaimers that this court should, on the basis of evidence led at that preliminary proof, repel the respondents’ substantive pleas of time-bar – an invitation which had not been made to Lord Johnston before whom only issues of relevancy had been discussed. The evidence adduced by parties at the preliminary proof was available only in respect of the issue to which that proof was directed (namely, sec 19A), not to sec 17(2) ( Noble v De Boer , per Lord Marnoch, para 5, Lord Hamilton, para 42). The line of questioning adopted by the respondents at the preliminary proof and the evidence there adduced by them might well have been quite different if issues under sec 17(2) had been for determination then. Lord Drummond Young had, quite appropriately, not been asked to determine any issue under sec 17(2) and had made no findings of fact in respect of it. It would be quite inappropriate for this court now to make findings of fact on that matter or to reach a determination on it. Moreover, the reclaimers’ contentions in respect of sec 17(2), whether considered on the pleadings or with the use of the evidence led at the preliminary proof, were without substance. (Detailed submissions were made by counsel for the respondents on this matter, to which we shall advert in a later section of this opinion.) If the reclaimers’ contention that sec 17(2) be determined by this court on the evidence led at the preliminary proof was rejected, the alternative procedural course which they appeared to propose was that there should now be ordered a single proof on all issues (sec 17(2), sec 19A, the merits and quantum). This would be wholly inappropriate, not least because the sec 19A issue had already been addressed and decided after an extensive proof. Further, when issues of time-bar were raised it was the practice of this court that these be dealt with by preliminary proof ( Clark v McLean , p 413). Given the scale of any proof on the merits in cases such as these, it was particularly appropriate that issues of time-bar which were relevant for proof be dealt with by way of preliminary proof. [12] Senior counsel for the reclaimers, in responding to these submissions, observed that sec 52 of the Court of Session Act 1868 (31 & 32 Vict cap 100) (the statutory ancestor of RC 38.8(1)) had been enacted to the effect of enabling the court to do complete justice. The present cases were the first of those directed against the present defenders to come before the court. An experienced Lord Ordinary (Lord Johnston), while holding that sec 17(2) did not apply, had indicated that the whole issues of awareness raised in the time-bar issues could and should be addressed under sec 19A. The Lord Ordinary (Lord Drummond Young), who heard the preliminary proof, had taken an unduly narrow view of the scope of his discretion, including failing to take into account the sec 17(2) factors which Lord Johnston had indicated remained live. To do justice the court should recall Lord Johnston’s interlocutor, consider afresh the evidence led before Lord Drummond Young as well as his findings in fact and, on the basis of these, find that the actions had been timeously brought. Nobody wanted another time-bar proof. Failing disposal by considering afresh the evidence before Lord Drummond Young and his findings in fact, the court should now allow a single proof encompassing the sec 17(2) issue and the whole issues of liability and quantum. It was conceded that, in relation to the statutory fact mentioned in sec 17(2)(b)(ii) (attributability of the injury), each of AB and EF had the requisite actual knowledge more than three years prior to May 2000; this was not, however, the case in respect of CD since there was no mention of Nazareth House in his medical records until after 1997. In all three cases none of the reclaimers had, until less than three years prior to May 2000, awareness (actual or constructive) of the ‘composite’ statutory fact mentioned in sec 17(2)(b)(i) (as properly construed).

[13] In response senior counsel for the respondents observed that it was impossible to say what questions would have been asked and what findings made if there had been a proof directed to wider issues than sec 19A. It was entirely inappropriate to ask this court to make findings of fact, on the basis of evidence led in the sec 19A preliminary proof, on matters of the actual or constructive knowledge of any of the reclaimers. If the reclaimers had wished to keep the sec 17(2) issue alive, they should have reclaimed against Lord Johnston’s interlocutor, seeking early disposal of the reclaiming motions. They had acquiesced in Lord Johnston’s disposal not only by proceeding to proof but by seeking and obtaining a diligence for recovery of documents in advance of it. Lord Johnston’s observations were to the effect that issues addressed in  KR v Bryn Alyn Community (Holdings) Ltd  (such as reluctance to come forward) could in Scotland be addressed in the context of sec 19A – which was exactly what Lord Drummond Young had done.

Discussion and decision

[14] In  McCue v Scottish Daily Record and Sunday Mail Ltd , heard before a court of five judges, the main issue was whether the effect of RC 38.5(6) (finality of a decision to grant or refuse leave to reclaim) was to exclude an earlier interlocutor from review by means of RC 38.8(1). The court held that it was not. However, it went on to observe that actings consequent upon a prior interlocutor ‘could lead the court to the conclusion that the prior interlocutor should not be interfered with’ (p 820H). The court added (p 821C):

‘[T]he review of a particular prior interlocutor may present substantial difficulties if the court is to achieve justice and fairness as between the parties. If a party has proceeded, or knowingly allowed the other party to proceed, on the basis that it is not challenged, it may be that the court would not countenance the review of that interlocutor in mediis rebus. However, at the end of the case different considerations may come in’.

It went on to approve an observation of the sheriff principal (subsequently Lord Caplan) in  Newcastle Building Society v White  (p 83) where he said:

‘An interlocutor which holds a defence relevant is intrinsically related to a later judgment which sustains that defence. Viewed another way, if a party fails to appeal a procedural determination in time, such failure may readily be held to be unequivocally referable to acceptance of the procedure in question, because once procedure has flowed it cannot be retrieved. The matter is different when the merits are in issue.’

[15] Applying these observations to the present case it is clear (as was conceded by the respondents) that the court has power in the course of this reclaiming motion to open up and review Lord Johnston’s interlocutor of 30 July 2004. The issue is whether it is appropriate to do so. That issue turns essentially on whether it is fair and just, as between these parties, now to do so. We bear in mind that these actions are at an end, so far as proceedings in the Court of Session are concerned, if we are not persuaded that Lord Drummond Young’s decision should be reversed.

[16] Bearing that consideration in mind we are not, however, persuaded that it would be appropriate for us to open up and review Lord Johnston’s interlocutor. At procedure roll he dismissed as irrelevant (essentially on the basis of lack of specific averments) the reclaimers’ contentions that they were, by virtue of sec 17(2), entitled to commence their actions. The reclaimers, through their legal advisers, chose not to reclaim against that interlocutor but instead to proceed to the restricted preliminary proof which Lord Johnston had allowed. The terms of that interlocutor are clear. Nor do we consider that the reclaimers’ advisers can reasonably have been misled by anything said by Lord Johnston in his opinion. On a fair reading, all his Lordship was saying was that, where (as he had held in the present cases) a pursuer has no relevant case for extension under sec 17(2) because he or she has full awareness in relation to physical damage, that pursuer may nonetheless, where causally connected psychological damage renders an already vulnerable person even less likely to appreciate his or her legal rights, bring that lack of awareness into account under sec 19A. Both parties committed themselves to the preparation for and the conduct of that proof, restricted as it was. That the reclaimers had so restricted themselves is evidenced by the circumstance that they (rightly) did not invite Lord Drummond Young to make any findings of fact directed to sec 17(2). Quite apart from the difficulties of an appellate court making new findings of fact on  matters upon which the court of first instance has not been addressed, it would be quite unfair for this court now to make findings of fact upon the basis of evidence led by parties for a quite different purpose. [17] If this court does not decide the case on the basis of evidence which was not led before Lord Johnston, then the only purpose of opening up his interlocutor would be now to allow a proof which comprised or included proof in relation to the sec 17(2) issue. Junior counsel for the reclaimers suggested that such a proof would be with all pleas standing (that is, on the sec 17(2) and sec 19A issues as well as on the merits and quantum); senior counsel suggested that the proof might include the sec 17(2) issue and the merits and quantum. Both acknowledged that such procedural orders were unattractive. As to the first, it would clearly be inappropriate for the sec 19A issue to be relitigated, not least because, the reclaimers being on legal aid, the respondents would have no prospect of recovering the expenses of the abortive lengthy diet. As to the latter, it is the usual practice of this court, where issues of time-bar arise, to have these determined – when the parties are in dispute as to material facts – by way of a preliminary proof ( Clark v McLean , p 413E-G). No doubt there may be cases where the merits are so inextricably interrelated with issues of time-bar that a single proof is appropriate. But where, as here, there is no such demonstrable interrelationship and where the reclaimers have, for reasons which no doubt seemed good at the time, not pursued by timeous appeal their contention under sec 17(2), we are not persuaded that it would be fair or just to permit them now to do so. It was, understandably, not suggested that there should be a further preliminary proof directed to the sec 17(2) issue alone; the prospect of the reclaimers, each of whom might be described as a vulnerable witness, having to give evidence on three occasions is singularly unattractive.

[18] We have reached this view without taking into account the merits of the reclaimers’ cases under sec 17(2), whether as a matter of relevancy or as a matter of prima facie substance on the basis of the evidence advanced at the preliminary proof. In the next section of this opinion we address certain aspects of these cases. Our conclusions on these matters confirm our view that there is no justification in opening up and reviewing Lord Johnston’s interlocutor.

Section 17(2)(b): Relevancy of the reclaimers’ pleadings

[19] In criticising the decision of Lord Johnston that the actions were time-barred under sec 17 of the Act, the principal focus of the submissions of counsel for the reclaimers was on sub-head (i) of sec 17(2)(b). For convenience we now set out the terms of sec 17(1) and sec 17(2) of the Act:

‘(1) This section applies to an action of damages where the damages claimed consist of or include damages in respect of personal injuries, being an action (other than an action to which section 18 of this Act applies) brought by the person who sustained the injuries or any other person.

  1. (2) Subject to subsection (3) below and section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of three years after-
    1. (a) the date on which the injuries were sustained or, where the act or omission to which the injuries were attributable was a continuing one, that date or the date on which the act or omission ceased, whichever is the later; or
    2. (b) the date (if later than any date mentioned in paragraph (a) above) on which the pursuer in the action became, or on which, in the opinion ofthe court, it would have been reasonably practicable for him in all the circumstances to become, aware of all the following facts-
      1. (i) that the injuries in question were sufficiently serious to justify his bringing an action of damages on the assumption that the person against whom the action was brought did not dispute liability and was able to satisfy a decree; (ii) that the injuries were attributable in whole or in part to an act or omission; and
      2. (iii) that the defender was a person to whose act or omission the injuries were attributable in whole or in part or the employer or principal of such a person.’

It is also necessary to note that sec 22(3) of the Act provides that, for the purposes of, inter alia, sec 17(2)(b), ‘knowledge that any act or omission was or was not, as a matter of law, actionable, is irrelevant.’

Submissions of counsel

[20] In summary it was submitted by junior counsel for the reclaimers that, as respects the proper interpretation of sec 17(2)(b), the constructive awareness test provided for by the legislation was mainly objective but contained some subjective elements; and, in considering whether it was reasonably practicable for the respective reclaimers to become aware of any of the ‘statutory facts’ in sub-heads (i) to (iii) of the subsection, comparison with other people similarly abused might be made and other personal characteristics might be relevant. More importantly for present purposes, junior counsel submitted that the first statutory fact under sub-head (i) (seriousness of the injury) required the severity of the injury to be assessed not in relation to the making of complaints or seeking medical treatment but in regard to a realisation by the claimant that the injury called for resort to litigation. The correct approach was that adopted by the Court of Appeal of England and Wales in  KR v Bryn Alyn Community (Holdings) Ltd  in relation to the broadly equivalent provisions of the Limitation Act 1980 (cap 58), namely secs 11 and 14. Among the passages in that judgment to which junior counsel referred and which we understood to be particularly pertinent to this branch of her argument are the passages contained in paras 41 and 42 of the judgment which may be thought to encapsulate the conclusion of the court on the interpretation of the provisions of sec 14 of the Limitation Act 1980 on ‘significant injury’ (see sec 14(1) and (2) of that statute). Those passages read as follows:

’41. Application of the section 14(2) meaning of “significance” to child victims of abuse is often the more difficult because many of them, as in the case of these claimants, come to it already damaged and vulnerable because of similar ill-treatment in other settings. For some such behaviour is unpleasant, but familiar. As Mr. Owen [counsel for the claimants] put it in his supplemental submissions, such misconduct was for many of these claimants “the norm”; it was committed by persons in authority; and they, the claimants, were powerless to do anything about it. Some victims of physical abuse may have believed that, to some extent, they deserved it. And, in cases of serious sexual abuse unaccompanied by serious physical injury of any permanent or disabling kind, it is not surprising, submitted Mr. Owen that they did not see the significance of the conduct in section 14(2) terms, and simply tried to make the best of things.

  1. 42. However artificial it may seem to pose the question in this context, section 14 requires the court, on a case by case basis, to ask whether such an already damaged child would reasonably turn his mind to litigation as asolution to his problems? The same applies to those, as in the case of many of these claimants who, subsequent to the abuse, progress into adulthood and a twilight world of drugs, further abuse and violence and, in some cases, crime. Some would put the abuse to the back of their minds; some might, as a result or a symptom of an as yet undiagnosed development of psychiatric illness, block or suppress it. Whether such a reaction is deliberate or unconscious, whether or not it is a result of some mental impairment, the question remains whether and when such a person would have reasonably seen the significance of his injury so as [sic] turn his mind his mind [sic] to litigation in the sense required by section 14(1)(a) and (2) to start the period of limitation running.’

[21] Senior counsel for the reclaimers sought to develop this submission by contending that, properly construed, sub-head (i) of sec 17(2)(b) was not concerned solely with quantum of damages but was a ‘composite fact’, including what he described as a ‘litigation factor’. He elaborated the question for the court, flowing from the terms of sec 17(2)(b)(i) of the Act, as being whether in the circumstances of the present cases it was:

‘reasonably practicable, prior to May 1997, for the claimants, judged by the standards of the reasonable institutional child abuse victim, to become aware that the injuries in question were sufficiently serious to justify a child abuse victim going to a solicitor with a view to commencing proceedings.’

The provision in question referred to ‘his’, ie the pursuer’s, bringing an action. There was therefore an element of justifiability. In other words, said counsel, there were two discrete factors namely (a) knowledge that the injuries were sufficiently serious and (b) wider knowledge that the circumstances were such that they would justify going to see a solicitor with a view to commencing litigation.

[22] The argument thus summarised was presented against the background of a submission that the reclaimers belonged to a class of people who, it was stated by senior counsel, had certain homogenous characteristics, which senior counsel described as amounting cumulatively to what he described as ‘the silencing effect’. The features ascribed to the class by counsel were: (i) the members of the class came from poor family backgrounds in which recourse to lawyers would not be usual; (ii) they felt shame and embarrassment; (iii) they lacked confidence; (iv) they were socially isolated; (v) they did not think they would be believed; (vi) their life history was such that they would be likely to be inhibited from raising proceedings between aged 18 and 21 years, and for many years thereafter; and (vii) as victims with painful memories they put those memories to the back of their mind and it was simplistic to say that they had a choice. As we understood it, these features were pertinent to the ‘litigation factor’ which senior counsel presented as inherent in his analysis of sub-head (i) of sec 17(2)(b).

[23] Having regard to those features, the ‘silencing effect’ of which counsel for the reclaimers contended should be within judicial knowledge, it was submitted on their behalf that, judged by the standards of the reasonable institutional child abuse victim, the present reclaimers would not appreciate that they might have a claim for damages until alerted to the possibility of bringing proceedings by a series of newspaper articles regarding Nazareth House, the first of which appeared on 18 May 1997. (The media publicity in question is summarised in the opinion of Lord Drummond Young in these actions, paras 43-48.) Since proceedings were commenced within three years of the publication of the first of those articles, it was submitted that the claims were not time-barred. Until alerted by the press to the possibility that they could claim damages in civil court proceedings, the reclaimers were not aware, and could not reasonably practicably have become aware, that their injuries were sufficiently serious to justify their bringing an action of damages. As already mentioned, in support of the general thrust of this submission counsel for the reclaimers pointed to the employment in sub-head (i) of sec 17(2)(b) of the possessive adjective ‘his’ before the gerund ‘bringing an action’. Counsel further referred to the observation of Lord Caplan in  Blake v Lothian Health Board  (p 1251E-F): ‘The word “his” in the statute may be significant as it may relate to the personal situation of the claimant (in contradistinction to a phrase such as “the bringing of an action”).’ [24] The response of counsel for the respondents to this branch of the reclaimers’ argument may be summarised as follows. Irrespective whether one was concerned with actual awareness or constructive awareness, the awareness in issue in sec 17(2)(b) was of certain specified statutory facts, isolated by certain statutory assumptions defining those facts. But the three facts identified in sub-heads (i) to (iii) of sec 17(2)(b) were indeed facts. Appreciation of the possibility of bringing a claim was not a fact. The argument for the reclaimers was an attempt to advance again the argument for the pursuer in  McIntyre v Armitage Shanks Ltd , an argument which failed, the failure being confirmed in what are now the relevant statutory provisions. Properly construed, sub-head (i) was concerned with awareness of the extent of injury, in terms of quantum, that is to say whether in monetary terms the injury was of sufficient extent to be worth the trouble of suing on the statutory assumptions. Awareness of the possibility of resorting to litigation was excluded by virtue of sec 22(3) of the Act.

Discussion

[25] In our opinion the submission of counsel for the respondents on this branch of the argument is to be preferred. As was cogently pointed out by their senior counsel, sub-head (i) of sec 17(2)(b) requires one to assume that liability for the claim is not disputed and that the defender is able to meet the claim; and those two assumptions, together with the provisions of sec 22(3) (absence of awareness of actionability irrelevant), reflect and illuminate the nature of this statutory fact. Since the fact is not concerned with liability or solvency (since both must be assumed), or with knowledge of actionability, the sub-head is concerned only with the extent of the injury, in terms of quantum of damages. In other words, the actual or constructive awareness in relation to this sub-head is awareness that injury has been suffered which is sufficiently serious to be above a minimum threshold in terms of quantum of damages. Time does not run against a claimant who lacks actual or constructive awareness that he has suffered injury or that the gravity of his injury is sufficient to bring it above the minimum – and quite low – threshold of justifying proceedings on the assumptions of admitted liability and a solvent defender.

[26] Whether the likely amount of damages would justify taking proceedings no doubt involves some element of judgment, particularly in marginal cases and, as Lord Caplan noted in  Blake v Lothian Health Board , there are inevitably some inconveniences in taking legal proceedings, even if liability is admitted and the defender is good for the eventual decree. It will also be the case that, as was observed in  Carnegie v Lord Advocate  (per Lord Johnston, p 812, para 16), some subjective, or perhaps more properly, individual personal features may enter into the assessment of quantum in that, by way of further exemplification of the instances mentioned by Lord Johnston, injury to a finger may be of much greater consequence to a concert pianist than to someone whose work and hobbies do not involve fine finger movements. But subject to those observations we consider that the statute can only be construed as intending sub-head (i) to be concerned with quantum, an objective assessment having to be made whether the gravity of the injury to the pursuer in question was such that it would have justified proceedings on the statutory assumptions of undisputed liability and a solvent defender. The sub-head is concerned with a single fact, namely the severity of the injury in so far as the pursuer was aware of it or could reasonably practicably have become aware of it. Having regard to the structure of the legislation we are unable to see that the draftsman’s employment of the word ‘his’ before the words ‘bringing the action’ amounts to more than a careful attention to grammar, but if it is thought to import some personal element, that is accounted for by the fact that, as explained in  Carnegie , the importance of the injury may import personal considerations applicable to the particular pursuer. We would add that all of the Scottish authorities to which we were referred in connection with this aspect of the case are consistent with the foregoing interpretation of sub-head (i) of sec 17(2)(b) head (i). Those authorities include  Agnew v Scott Lithgow Ltd (No 2) ,  Carnegie ,  M v O’Neill  and  Godfrey v Quarriers Homes . [27] As already noted, in advancing the contention that sub-head (i) of sec 17(2)(b) of the Act involved a ‘litigation factor’, counsel for the reclaimers urged us to follow the approach adopted by the Court of Appeal in relation to this aspect in  KR v Bryn Alyn Community (Holdings) Ltd , but, recognising subsequent developments, qualified this invitation to that of following that approach subject only to such modifications to it as might be required by the opinions delivered in the House of Lords in  Adams v Bracknell Forest Borough Council . In this respect we would observe, first, that while the general legislative policy might be similar, the precise terms of the Limitation Act 1980 do differ from those of the applicable legislation in Scotland and those differences may possibly have enabled the members of the court in  Bryn Alyn  to reach a conclusion not available on a construction of the Scottish legislation. More importantly, even in its construction of the legislation in England and Wales, the  Bryn Alyn  decision is not without significant difficulty. It was, as we have indicated, accepted by senior counsel for the reclaimers that its reasoning required to be modified or qualified in the light of the opinions delivered in  Adams v Bracknell Forest Borough Council . Further, the correctness of what was said in  Bryn Alyn  is put in some doubt by the observations and reservations expressed by a differently constituted bench of the Court of Appeal in  Catholic Care (Diocese of Leeds) and anr v Young , to which we were also referred. We would also add that very shortly after the hearing of these reclaiming motions, the soundness of the relevant part of the judgment of the Court of Appeal in  Bryn Alyn  was further questioned by another bench of the Court of Appeal in  McCoubrey v Secretary of State for Defence . In these circumstances we do not consider that the  Bryn Alyn  case provides any real persuasive assistance on the interpretation of sec 17(2)(b) of the Act, which governs the present cases.

[28] However, when one turns to the pleadings for each of the reclaimers we consider that, as was submitted by counsel for the respondents, it is clear that on any view the pleadings do not attempt relevantly to engage sec 17(2)(b) of the Act. It is true that each action contains (if not identically, at least similarly) the following short averments:

‘Section 17(2) (the three year limitation) does not apply in the three year period after the pursuer attained her majority. It does not apply until 1998 when the pursuer was diagnosed as suffering from PTSD arising from experiences in the home. Prior to that date the pursuer did not become aware, nor was it reasonably practicable for her in all the circumstances to become aware (i) that her injuries were sufficiently seriously to justify her bringing an action of damages and (ii) that her injuries were attributable to her experiences in said home. Reference is made to section 17(2)(b).’

However, on examination of the pleadings it is clear that they do not seek in any meaningful way to advance a case that until a date subsequent to May 1997 the respective reclaimers were unaware, and could not reasonably practicably have become aware, that the injuries which they had suffered were of sufficient gravity to warrant proceedings on the statutory assumptions. It is not said, for example, that damages for the physical injury sustained at the time of the alleged assaults while in the respondents’ care would have been of insufficient amount to justify proceeding at that time but that, subsequent to May 1997, a previously latent serious injury emerged which then rendered the taking of proceedings justified on the same statutory assumptions. Nor is it said that there was any unawareness of the extent of injury which could not be overcome by the taking of reasonably practicable steps. On the contrary, the averments for the respective reclaimers contend for an immediate and thereafter successive continuing injury in the shape of the initial alleged physical assaults and other deficits in the standard of care, leading to psychological difficulties; the loss of employment opportunities; and loss of earnings following their leaving Nazareth House.

[29] At the outset of this opinion we sketched, in brief terms, the nature of the injury and loss claimed by the reclaimers. Although there are of course some differences of detail in the averments of loss in each of the three actions, in order to illustrate more fully the nature of the claims and in amplification of what is said in the preceding paragraph, it is sufficient to quote the averments of loss contained in the first-mentioned case AB

‘The pursuer was injured by said assaults. The pursuer felt pain on being assaulted. She felt humiliated. She felt degraded. She experienced fear and distress when she witnessed the assault of other children. Witnessing of the assaults of the others added to her feelings of powerlessness. She had an unhappy childhood. She was not treated with affection. She was not praised. She was not treated with dignity. She had and continues to have no confidence in herself. She was not taught to value herself. Much of her childhood was spent in fear. She missed out on contact with her siblings. She has suffered psychologically for many years. She has suffered severe symptoms of anxiety and clinical depression. She has suffered intrusive thoughts about her experiences. She has made many conscious attempts to avoid such thoughts. Her symptoms are similar to PTSD symptoms. Her symptoms fulfil the criteria for PTSD. She has suffered from bulimia. She had a breakdown in 1996. She has been prescribed Prozac. She has been prescribed Valium. She does not feel safe outside her home. She has difficulty functioning in any area of life outwith her own home. She has to take taxis to and from work. Her estranged husband and her children have to go to the shops for her. She has a very poor quality of life. She was unprepared for life outside the home. She has difficulties in forming relationships. She has now separated from her husband. She no longer has any relationship with her brother and two sisters. She is anxious in bringing up her children. She makes them hurry through meals, homework and bath time. She cannot cook certain foods which she associates with the home. She baths twice a day. She bathed more frequently during her pregnancies. She is anxious that she will wet the bed. Her memories of bed wetting cause her to go to the lavatory repeatedly before going to sleep each night. She has difficulty sleeping. She has difficulty concentrating. The pursuer was not a rebellious teenager. She enjoyed reading. She studied hard. She passed her prelims. She was expected to pass her ‘O’ Grades. She left the home before she sat her ‘O’ Grades. She was unable to sit her ‘O’ Grades. Her intellectual functioning is in the high average range. She could have participated in tertiary education. Instead, her only employment has been as a machinist, cleaner and meat packer. Her income has been reduced and continues to be reduced.

[30] It is also the case that, as already indicated, the pleadings for the respective reclaimers do not properly seek to raise any issue of constructive awareness in terms of the legislation. On the contrary, the pleadings for the pursuers plainly disclose circumstances of actual awareness of the statutory facts prior to the triennium ante-dating the commencement of proceedings.

[31] Thus, in the case of AB, against the background of the averments of loss already quoted, it is averred on her behalf that in 1996: ‘She told her GP, Dr. [D] about some of her childhood. Her GP referred her to a psychologist. The pursuer was not ready to disclose her memories to the psychologist. She suffered a breakdown in 1996.’ It is further averred on behalf of AB that in 1996 she approached the Daily Record newspaper with a view to their publishing an account of her experiences in the home but the Daily Record declined to publish that story unless she would pose for a photograph (which she was unwilling to do). As respects the reclaimer EF, the averments made on her behalf disclose attendance at psychologists, albeit with a reluctance to disclose her experiences, at times well before May 1997. It is also averred that in 1993 EF returned to Nazareth House to discuss her experiences with the Mother Superior. In 1995 she went into a Catholic Church and spoke to a priest concerning her experiences in the home because she wished to be able to forgive the nuns. As respects the reclaimer CD whose case was recognised by counsel for the respondents as being more marginal on the questions of actual knowledge evident from the pleadings, it was nonetheless averred that in March 1997 the reclaimer required antidepressant medication, but there was nothing in the averments on behalf of CD to suggest that he was other than aware of the alleged mistreatment, its alleged consequences upon him over the years and its link to his need for treatment in March 1997. No separate argument as respects CD was addressed to Lord Johnston by counsel for the reclaimers.

[32] We therefore consider that Lord Johnston was entirely justified in proceeding, as he did, on the view that the pleadings for the reclaimers did not relevantly disclose any issue respecting the starting date for the effluxion of time in terms of sec 17(2)(b). Issues respecting whether the reclaimers lacked knowledge that the statutory facts (of which they were aware) gave ground for legal liability in damages, or whether it was reasonable for them, in their circumstances, not to apply their minds to the possibility of taking legal proceedings are factors which may properly and legitimately be considered in the exercise of the sec 19A discretion, but, as we have already indicated, they do not enter into a consideration of the extended starting date for the triennium by reason of lack of awareness, actual or constructive, of the three statutory facts.

[33] Although Lord Johnston’s decision naturally proceeded only upon the basis of averments in the pleadings for the reclaimers, we would record that we were taken by counsel for both sides to various passages in the transcript of the evidence subsequently led before Lord Drummond Young. We have already noted our concerns about the proposition that evidence led for the purposes of a sec 19A


inquiry should subsequently be used for different purposes. However, in the event, we would simply observe that, given the construction of sec 17(2)(b)(i) which we favour, none of the passages to which we were referred controverted the averments in the reclaimers’ respective pleadings which disclosed actual awareness of the statutory facts prior to May 1997. We do not consider it is necessary to refer to these passages in any detail, even if it were appropriate to do so.

[34] Before turning to the submissions respecting the decision of Lord Drummond Young on the exercise of the discretion under sec 19A we should further record that counsel for the respondents did not accept the contention of their counsel that the reclaimers belonged to a class – ‘the reasonable institutional child abuse victim’ – subject to a ‘silencing effect’ said to be within judicial knowledge. As senior counsel for the respondents pointed out, this construct did not accord with the circumstances of the present reclaimers as disclosed by their averments, and their evidence. Thus, at a date well in advance of May 1997 and the appearance of the articles in the press, EF was able to go to Nazareth House and speak to the mother superior; at the same time she consulted her general medical practitioner about her problems and experiences; and sought religious counselling because of the effect on her health. AB wrote in 1994 a letter to her general medical practitioner attributing her then current problems to her childhood experience at Nazareth House. Also, as we have already mentioned, she went to the Daily Record with a view to a press exposé of her mistreatment. Accordingly, it could not be said that either of these pursuers was subject to a ‘silencing effect’. It also appears that CD was able, though reluctant, to tell his solicitor and later his girlfriend and general medical practitioner of his experiences and to relate his problems to those experiences well in advance of May 1997.

[35] We acknowledge that in the unreported decision of the Court of Appeal (Civil Division) in  Ablett v Devon County Council  it was said in the context of allegations of sexual abuse (absent in these cases) that:

‘[I]t is in the nature of abuse of children by adults that it creates shame, fear and confusion, and these in turn produce silence. Silence is known to be one of the most pernicious fruits of abuse.’

However, we do not consider that matters can be so simplified. We agree with counsel for the respondents that the circumstances of the current reclaimers are not consistent with the paradigm or construct of the standard ‘institutional child abuse victim’ advanced at the bar by counsel for the reclaimers. There are differences between individual cases. As is indicated in the speeches in  Adams v Bracknell Forest Borough Council , were it to be contended that the original insult produced a special medical or psychiatric difficulty in the recall of events or their narration to others, that requires to be instructed by appropriate expert evidence. In the proof before Lord Drummond Young that exercise was essayed, but in the event in light of the whole expert evidence the essay was, from the reclaimers’ standpoint, not successful. We are thus unable to accept the assertion of counsel for the reclaimers that there is a special class of abuse victims for whom it is to be taken as a matter of judicial knowledge that there is a ‘silencing effect’.

[36] It is also to be noted that in his opinion Lord Johnston observed (para 5) that insofar as the decision in  Carnegie v Lord Advocate  determined that the emergence of a distinct and specific form of injury might provide a separate starting date for the running of the limitation period, on the averments made in the present cases, a


 Carnegie  type case was not open to the pursuers. Although the soundness of this aspect of the decision in  Carnegie  was the subject of some discussion before us, we understood it ultimately to be accepted by counsel for the reclaimers that the pleadings did not proceed upon the basis of the existence of discrete starting dates for distinct injuries. In these circumstances it has not been necessary for us to form a view on whether this aspect of the  Carnegie  decision was sound and we reserve our opinion on this matter. [37] We turn now to consider the reclaiming motions directed against the interlocutor of Lord Drummond Young in the three cases before us.

Lord Drummond Young’s interlocutors

[38] As already indicated, these are the three respective interlocutors against which the reclaiming motions are taken. In each of the three actions, following the preliminary proof heard by him, Lord Drummond Young by these interlocutors refused leave to bring the proceedings in terms of sec 19A of the Act.

Lord Drummond Young’s opinion

[39] In a very full and careful opinion Lord Drummond Young gave his reasons for coming to that decision. Having regard to the reclaimers’ grounds of appeal and the submissions that were made to us in relation to that decision and to provide a proper context for them, we think it appropriate to try to give a relatively full summary of his approach and conclusions.

[40] After setting out the factual and legal circumstances of the present actions in some detail Lord Drummond Young turned to consider the general approach of the law to questions of limitation. First, he considered the policy underlying limitation statutes in general. Secondly, he gave more detailed consideration to the factors that might be relevant in an application under sec 19A by reference to cases decided both in Scotland and under the equivalent English legislation.

[41] In relation to the policy underlying limitation statutes in general he found the most helpful discussion to be that by McHugh J in  Brisbane Regional Health Authority v Taylor , a decision of the High Court of Australia in a personal injury case on the ground of alleged medical negligence. He quoted extensively from the judgment of McHugh J in that case and commented on the views expressed there in the context of the present actions.

[42] After noting that the applicant for an extension of time bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour McHugh J stated (p 551) that the discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. He continued (p 552) as follows:

‘The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing


that they have no liabilities beyond a definite period. As the New South Wales Law Reform Commission has pointed out (Limitation of Actions for Personal Injury Claims ((1986) LRC 50, page 3):

“The potential defendant is thus able to make the most productive use of his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served.”

Even where the cause of action relates to personal injuries, it will be often be just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.’

[43] Lord Drummond Young was of the opinion that these rationales were manifestly relevant to the interpretation of the limitation provisions of the Prescription and Limitation (Scotland) Act 1973, as amended. In his view all of them applied to the present cases. Lord Drummond Young also commented on two further aspects of the judgment of McHugh J. The first was his comment that important, and perhaps decisive, evidence may have disappeared without anyone now ‘knowing’ that it ever existed. That consideration was particularly important, in Lord Drummond Young’s view, in a case where events occurred more than 20 years before any action was raised, and where the actual disputes were likely to relate not merely to one or two vivid incidents but to the everyday currency of the daily life of those involved. The present cases were of that nature. Secondly, McHugh J pointed out that a limitation period should not be seen as an arbitrary cut-off point unrelated to the demands of justice or the general welfare of society. It represented rather the considered judgment of the legislature that the welfare of society is best served if causes of action are litigated within the specified period. The limitation period was therefore to be regarded as the general rule. Lord Drummond Young was of the view that from this it followed that the onus was on the reclaimer to establish that in his or her case it was equitable that an extension be granted. And in determining whether an extension should be granted the court must evaluate the injustice or prejudice that either side might suffer by reference to the rationales that underlay the limitation provisions in the Act.

[44] McHugh J went on to consider the issue of such prejudice. To hold that the test for prejudice was whether an order extending time would make the defendant any worse off than it would have been if the action had been commenced within, but towards the end of, the limitation period was not, he said, the correct approach. That did not take sufficient account of the second, third and fourth rationales of limitation periods to which he had referred earlier. If the action had been brought within the limitation period it would have been irrelevant that the defendant might have had difficulty in defending itself by reason of a witness’s failure of recollection. But once the potential liability of the defendant had ended with the expiry of the limitation period, its capacity to obtain a fair trial, if an extension of time were granted, was relevant and important. In the view of McHugh J (p 555):

‘[T]he justice of a plaintiff’s claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.’


He went on to explain his reason for this conclusion as follows:

‘Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff’s right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff’s action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period.’

[45] Lord Drummond Young considered that approach to be highly pertinent to the present case. He noted that it was closely paralleled in Scotland by the opinion of the court delivered by Lord President Hope in  McCabe v McLellan  (p 98).

[46] Lord Drummond Young next considered the factors which may be relevant in a sec 19A application. He did so by reference to the decided cases brought under sec 19A and also under the equivalent (although differently worded) English provision. He noted, first, that the court has a general discretion under sec 19A ( Donald v Rutherford ). Secondly, the onus is on the pursuer to satisfy the court that it would be equitable to allow the action to be brought ( Thompson v Brown ). Thirdly, the conduct of a pursuer’s solicitor, for which the pursuer must take the consequences, may be relevant ( Forsyth v AF Stoddart and Co Ltd ). Fourthly, further relevant factors which the court may take into account include the conduct of the pursuer since the accident (or other event causing injury) and up to the time of his seeking the court’s authority to bring the action out of time, including any explanation for his not having brought the action timeously; and any likely prejudice to the pursuer, on the one hand, if the action were not allowed to be brought out of time and to the defender, on the other hand, if it were allowed to be brought out of time ( Carson v Howard Doris Ltd ). Fifthly, each case ultimately turns on its own facts, even if a number of claimants present similar claims against the same person ( KR v Bryn Alyn Community (Holdings) Ltd ).

[47] Lord Drummond Young then considered the significance of a pursuer’s ignorance of the legal right to claim damages. He said (para 30):

‘This must obviously be distinguished from the pursuer’s ignorance of facts that are material to his or her claim; ignorance of facts is dealt with by sec 17 of the 1973 Act. It is clear that ignorance of a legal right is a material circumstance in the exercise that a court must perform under sec 19A. Indeed,  McIntyre v Armitage Shanks Ltd , the decision of the House of Lords that prompted the enactment of sec 19A, was a case where the pursuer was ignorant of the existence of a right of action, albeit one induced by statements made by a trade union official.’

He went on to note that there appeared to be only one decided case where ignorance of the existence of a legal right was treated as decisive in allowing an action to proceed. This was  Comber v Greater Glasgow Health Board . That case, however, was a fairly extreme one and must therefore be seen as somewhat exceptional. It was distinguished in  Kane v Argyll and Clyde Health Board .

[48] Lord Drummond Young then considered in some detail  KR v Bryn Alyn Community (Holdings) Ltd . That case had a close parallel with the present actions


because it involved fourteen claims for damages for abuse suffered by children in care homes. The court held that the judge at first instance had misdirected himself. The matter was therefore at large for the Court of Appeal. The court exercised its discretion to allow five of the fourteen claims to proceed. Lord Drummond Young considered in some detail five (not the same five) of the fourteen claims which were allowed to proceed under the judicial discretionary power in order to illustrate the approach taken by the Court of Appeal. He then considered the later English cases of  Adams v Bracknell Forest Borough Council ,  T v Boys and Girls Welfare Service , the unreported Scottish case of  Lannigan v Glasgow City Council  and the Canadian case of  KM v HM . [49] In the following section of his opinion Lord Drummond Young narrated the history of events which had prompted claims against the respondents (as we noted earlier, we were informed that there were several hundred of these). This consisted of media publicity in the form of a number of newspaper articles, the first of which appeared on 18 May 1997, subsequent publicity continuing into 1998. These made detailed allegations of abuse in Nazareth House in Cardonald said to have occurred many years earlier. A number of individuals who had allegedly suffered abuse were named. A named lawyer was quoted as saying that these allegations could lead to claims for compensation of up to £100,000. The story was later taken up by BBC Scotland. In February 1998 they broadcast a ‘Frontline Scotland’ television programme dealing with the issue but the children’s homes concerned, while run by the second respondents, were in other parts of Scotland, not Cardonald.

[50] Having dealt with those relatively general issues, Lord Drummond Young then turned in some detail to the evidence of the three reclaimers explaining their reasons for not making any claim at an earlier stage. In summary, these were because, in the case of AB, she thought she would not be believed; she was not familiar with lawyers and did not realise until she read the newspaper articles that she could bring court proceedings against the respondents. In the case of CD, it brought back very unhappy memories; he thought he would not be believed; and he felt embarrassed and ashamed. In the case of EF, she thought she would not be believed and she was afraid to make any complaint as a result of what one of the nuns had said to her when she left the home.

[51] This chapter was followed by consideration of possible psychological explanations for delay in raising proceedings. In a lengthy passage Lord Drummond Young summarised the evidence given by two experts, Dr Ian Tierney, a chartered clinical psychologist, on behalf of the reclaimers and Dr Janet Boakes, a consultant psychiatrist and psychotherapist, on behalf of the respondents. He quoted Dr Tierney’s overall conclusion as follows (opinion, para 76):

‘Various reasons described above (paras 68-73) are likely to have either prevented or severely restricted these 3 individuals, from making a complaint about the gross childhood abuse they had suffered, both between the ages of 18 and 21 years, and subsequently. When viewed in the light of fear of, or compliance towards, members of the religious order involved, these constraints indicate that a complaint to the authorities was unlikely. That those involved did so finally when, as much older individuals, the media disclosed their history of gross childhood abuse for them, and they could therefore speak as a group, is understandable in the light of the many blighted, and lonely, lives produced by the abuse.’

[52] Dr Boakes, on the other hand, disagreed. She criticised some of the material relied on by Dr Tierney. Her opinion was that survivors of trauma were normally


able to recall what happened to them, even if they wished that they could forget. The three reclaimers had been able to recall what happened to them, and had mentioned it to various individuals; consequently any psychological explanation for an inability to remember was beside the point. Such individuals might be reluctant to speak, but that was simply because recalling events made them embarrassed or upset; no complicated psychological explanation was required (see Lord Drummond Young’s opinion, para 93.1). Lord Drummond Young preferred the evidence of Dr Boakes. Her approach seemed to him to accord with commonsense. Moreover, it fitted the facts of the present case, and in particular the ability of all three reclaimers to remember what had happened and to speak about it to other persons. Lord Drummond Young therefore concluded that no general psychological or other medical explanation had been established for the reclaimers’ delay in reporting the abuse they said they suffered in Nazareth House. Nevertheless, he accepted that there was a degree of force in some of Dr Tierney’s suggested reasons for that delay. In particular, he accepted that all three reclaimers suffered from depression and lack of self-esteem or self-confidence. CD had been in prison on a number of occasions between the ages of 18 and 21 and drank to excess during that period. AB was not prepared for life outside Nazareth House, and had serious family difficulties between the ages of 18 and 21. EF had a number of low-paid jobs and abusive relationships. These factors were relevant to the failure of all three reclaimers to make complaints.

[53] Concluding this part of his opinion, Lord Drummond Young noted that in relation to the injuries which the reclaimers claimed to have suffered as a result of their treatment in Nazareth House, their principal complaint was of psychological injury, with resulting difficulties in forming and maintaining personal relationships and in obtaining employment. But on the evidence their psychological problems in adult life could not be unambiguously related to their treatment while they were in Nazareth House. Lord Drummond Young continued (para 98):

‘Part of the explanation may lie in the reclaimers’ home backgrounds, either through genetic factors or because of their experiences at home before they were taken into care. It may also lie in other experiences that the reclaimers had in childhood or adolescence, unrelated to Nazareth House. At any proof on the merits of the reclaimers’ claims, therefore, an important task facing the court will be to separate the effects of physical abuse by persons for whom the respondents are responsible from the effects of the reclaimers’ family backgrounds and other experiences. A further task may be to separate the effects of physical abuse in Nazareth House from the general effects of institutional care’.

[54] Lord Drummond Young then set out his conclusions on the explanations tendered for the delay in raising proceedings, having first narrated counsel’s submissions on the matter. He accepted (para 109) that all three reclaimers suffered personal and psychological problems which would tend to inhibit them from raising court proceedings, both between the ages of 18 and 21 and subsequently; that all three reclaimers did not think that they would be believed if they made complaints about their treatment in Nazareth House, between the ages of 18 and 21 and for at least a substantial number of years thereafter; and that the reclaimers did not consciously realise until 1997 that they could raise legal proceedings against the respondents, although that was the result of lack of thought rather than consideration and rejection of proceedings. He accepted that all of these factors provided some explanation for the failure to raise proceedings before 1997.


[55] Lord Drummond Young then turned to other matters which he considered relevant to the exercise of the sec 19A discretion.

[56] The first of these was prejudice caused by lapse of time. He noted that the events complained of by the reclaimers occurred between 1961 and 1979; thus the events began 39 years and ended 21 years before the actions were raised. Even allowing for sec 17(3) of the Act, which discounts the periods when the reclaimers were under legal disability by reason of nonage, the relevant limitation periods expired in 1981 for AB, in 1990 for CD and in 1974 for EF. So the delay in raising the actions beyond the statutory limitation period was a minimum of 10 years. His Lordship was of the opinion that these periods of delay were so long that a serious decline in the quality of justice was inevitable. That decline related not merely to the evidence that was directly available from the reclaimers and other witnesses to events. Because of the long periods that had elapsed, it was likely that substantial evidence would have been lost and no one would remember that such evidence ever existed. That inevitably would have a serious effect on the cross-examination of witnesses. Thus it would be impossible to test the evidence effectively and the court could not be confident that it was obtaining an accurate picture of events (see Lord Drummond Young’s opinion, para 111).

[57] The Lord Ordinary was further of the opinion that the simple length of the delay was important in these cases for other reasons which he had previously discussed. He said this (para 113):

‘I am further of opinion that the simple length of the delay is important in the present cases for the reasons discussed above (paras 22, 23, 98). In the first place, attitudes to the physical punishment of children have changed dramatically in the past 30 years or so. It is very difficult today to reconstruct the social attitudes of 30, 40 or 50 years ago. In this respect, it seems to me that there is an inevitable and serious decline in the quality of justice. In the second place, it is clear that all three reclaimers suffered to some degree from the effects of institutional care; matters such as the lack of affection from those in charge of the children and the harsh and inflexible nature of the régime plainly had an effect on them. Institutions like Nazareth House no longer exist in the United Kingdom, fostering having replaced them. When one looks at the life histories of the reclaimers it is perhaps easy to see why this change has taken place. Nevertheless, reconstructing the impact of institutional care on the individual reclaimers, 30 or 40 years after the event, is a task of extreme difficulty. It is a task that would have to be performed, however, because the reclaimers’ legal complaints must relate to physical abuse rather than the general effects of institutionalization; institutional care was normal at that time, and cannot of itself be a ground of fault. In the third place, for the reasons set out (para 98), it would be necessary at any proof on the merits of the reclaimers’ claims to consider the effect that their home backgrounds and other traumatic incidents might have had on their unfortunate life histories. Once again, this is an exercise that would have to be carried out 25 years and more after the event. Once again, a serious decline in the quality of justice seems to be inevitable owing to the lapse of time.’

He concluded (para 116) that in these cases the length of time which had elapsed was sufficient by itself, without regard to any specific prejudice to the respondents, to make it inequitable to allow the reclaimers’ actions to proceed. Twenty-one years had elapsed between the date of the latest of the their allegations and the raising of the present actions. After such a period he was of the opinion that a major decline in the quality of justice was inevitable. That by itself greatly outweighed the reasons described in para 109 for the reclaimers’ failure to raise actions within the limitation period.


[58] Secondly, Lord Drummond Young considered the question of prejudice caused by changes in the law since the statutory time-limits expired. He noted the case of  Lister v Hesley Hall Ltd , which substantially extended the previously accepted view of the law of vicarious liability for the criminal acts of employees and other agents. In that case employers were held vicariously liable where the care of children was entrusted to an employee and the employee abused his position of trust. Previously it was generally understood that this would be unlikely to give rise to vicarious liability because the criminal acts in question were not within the scope of the perpetrator’s employment. Lord Drummond Young concluded that there was significant prejudice to the respondents as a result of this change in the law.

[59] Thirdly, he considered the question of prejudice caused to the respondents by loss of evidence. It was clear that the delay in raising the present actions had deprived them of the opportunity to trace many relevant witnesses and to recover a number of relevant documents. On the basis of the evidence which he heard in relation to this matter Lord Drummond Young made detailed findings in fact. In summary, he found (para 124) that the respondents were seriously prejudiced by the non-availability of witnesses, the absence of documents, and the inability of such witnesses as had been traced to remember specific details of what happened at Nazareth House during the 1960s and 1970s. Citing authorities to which he had referred earlier, he continued as follows (para 124):

‘These authorities make it clear that actual prejudice, even of a fairly limited nature, will usually be sufficient to preclude any extension of the limitation period. In the present case I am of opinion that actual prejudice to the defenders has been shown. I consider such prejudice to be clear, and also to be serious. In these circumstances I am of opinion that the existence of such prejudice is by itself a sufficient reason for not allowing the actions to be brought under sec 19A. That is so notwithstanding the reasons for the failure to raise actions timeously, as summarised in para 109.’

[60] Fourthly, Lord Drummond Young considered the question of prejudice caused to the respondents in relation to the scale of the litigation and the recoverability of expenses. He was satisfied that significant prejudice would be caused to them by the scale of the litigation involved in the present actions. The expense of defending them was likely to be very great and could be described as disproportionately large by comparison with the likely value of the reclaimers’ claims. This was a factor which Lord Drummond Young took into account in exercising his discretion, although he did not regard it as conclusive in itself. A further relevant factor which prejudiced the respondents was that since the reclaimers were all legally aided the respondents were unlikely to be able to recover their expenses if they were to succeed in their defence to the actions.

[61] Fifthly, Lord Drummond Young considered the question of prejudice caused to the respondents by media publicity and the methods used to investigate the claims. He concluded that the media publicity in 1997 and 1998 gave rise to a risk of prejudice to them. In particular, there was an obvious risk that the statements in the press attributed to a prominent solicitor that compensation could be of the order of £100,000 could lead to ill-founded or exaggerated claims. Lord Drummond Young did not consider the risk to be sufficient by itself to lead to the refusal of a sec 19A application. It was, however, a relevant factor to be taken into account. He came to a similar conclusion in relation to the methods used by the reclaimers’ Glasgow solicitors in preparing the present cases. These had involved the use of ‘tick list’


questionnaires to discover the nature of the allegations made by claimants. The risk of prejudice in relation to that matter, however, was a fairly minor one. [62] Sixthly, Lord Drummond Young considered the question of prejudice to the parties through loss of their legal rights. He noted that if the discretion under sec 19A were not exercised in the reclaimers’ favour, they would lose any right to compensation. On the other hand, if the discretion were exercised, the respondents would lose their right to rely on the defence of limitation. Lord Drummond Young was of the opinion that these elements should be balanced against the background that the limitation period was the norm enacted by the legislature and that the discretion under sec 19A was an exception to the norm. Consequently, the onus was on the reclaimers to satisfy the court that special circumstances existed, which justified the exception.

[63] Finally, Lord Drummond Young considered the conduct of the parties’ solicitors since 1997 but found nothing in their conduct which was a significant factor in reaching his decision.

[64] Lord Drummond Young decided to exercise his discretion under sec 19A in favour of the respondents and to refuse to allow the reclaimers to bring the present actions. He considered that the two principal reasons for his decision, namely, the length of time that had elapsed since the events complained of and the actual prejudice which the respondents demonstrated caused by loss of evidence, were extremely powerful. He regarded either of these reasons by itself as sufficient to refuse to allow the actions to proceed (para 143).

Submissions of counsel

[65] Junior counsel for the reclaimers submitted first that Lord Drummond Young had erred in law by restricting the scope of the preliminary proof in a way which Lord Johnston had not envisaged when he ordered it. Lord Drummond Young had restricted himself to the narrow interpretation of sec 19A of the Act and excluded what were described as sec 17(2) issues. These issues related to the reasons and, in particular, the psychological reasons which it was said led to the reclaimers acquiring the knowledge (or constructive knowledge) only after many years that the injuries they complained of were sufficiently serious to justify their bringing the present actions. Lord Johnston had held that those reasons were not relevant for the purposes of sec 17(2)(b)(i). The question raised by that provision had to be determined by the facts of each case. The question was at what date had the requisite knowledge or constructive knowledge been acquired as a matter of fact. The reasons why it had been acquired then rather than at some other date were irrelevant for the purposes of sec 17(2)(b)(i). But those reasons were relevant for the purposes of sec 19A. She referred to Lord Johnston’s opinion (para 15). In considering in which way to exercise his discretion under sec 19A, however, Lord Drummond Young made no allowance for the fact that until May 1997 (when the first newspaper articles appeared in the press) the reclaimers did not know that they could raise an action in respect of their treatment in Nazareth House. He had followed the unduly restrictive approach to the English equivalent to sec 19A adopted by the Court of Appeal in  KR v Bryn Alyn Community (Holdings) Ltd . Reference was made to paras 35 and 106 of his opinion.

[66] Junior counsel further submitted that Lord Drummond Young’s approach to sec 19A was flawed in that he failed to give proper recognition to what was described as the ‘clean hands’ argument put forward on behalf of the reclaimers. At


the stage of preliminary proof it had to be assumed that the respondents were responsible for the abuse of the reclaimers; their averments on that matter had to be taken pro veritate. It was that abuse which had effectively silenced the reclaimers until they gained the confidence to come forward after the media publicity in May 1997. The respondents should not be allowed to rely on the results of their own misdeeds so as to deny the reclaimers a remedy. Reference was made to  Hawkins v Clayton and ors . Lord Drummond Young had been referred to that case at the preliminary proof but he had not mentioned it in his opinion. He had taken no account of this point when considering the reasons for the reclaimers’ delay in raising proceedings. Reference was made to para 109 of his opinion. In any event, he had not balanced that factor with the other factors relevant to the exercise of discretion under sec 19A. He had therefore not balanced the equities as the exercise of his discretion under sec 19A required him to. Reference was also made to  Donald v Rutherford 

. [67] Junior counsel further criticised Lord Drummond Young for an over-reliance on what was said by McHugh J in  Brisbane Regional Health Authority v Taylor . On its facts that case was so different from the present case that it was of little assistance. The principle in relation to ‘clean hands’ enunciated in  Hawkins v Clayton and ors  formed no part of the rationales identified by McHugh J; and Lord Drummond Young had thus failed to give proper recognition to the principle. Reference was also made to the Canadian case of  KM v HM .

[68] It was submitted next that in exercising his discretion under sec 19A Lord Drummond Young had taken into account a number of factors which were irrelevant. It was irrelevant that the respondents were a charity (see paras 115, 128). This was particularly so in light of the findings in relation to the respondents’ insurance cover (para 139). It was irrelevant to form the view that it would not be in the reclaimers’ best interests to proceed (para 143). In paras 133 and 135 Lord Drummond Young had said that there was a risk of prejudice to the respondents in the form of ill-founded or exaggerated claims arising from the media publicity in 1997 and 1998 and from the methods used by the reclaimers’ Glasgow solicitors in preparing their and other claimants’ cases, but that ran counter to the notion that the reclaimers’ evidence had to be taken pro veritate. It was therefore irrelevant to take account of this matter in the exercise of discretion under sec 19A. In any event, on the evidence there was no such prejudice in the present actions. AB and EF had both set out their allegations in considerable detail before the first newspaper article was published in May 1997. Of the reclaimers CD was the only one who had received a ‘tick list’ questionnaire from the Glasgow solicitors. He did not remember the questions but he did remember being assaulted in Nazareth House. Junior counsel also challenged the Lord Ordinary’s finding of prejudice as a result of changes in the law (paras 117-119). Prior to the decision in  Lister v Hesley Hall Ltd  there could still have been a claim of the kind now made based on the vicarious liability of the respondents. There was expert evidence to that effect. Indeed, the present actions had been raised before  Lister  was decided. All that the decision in  Lister  did was to make the reclaimers’ case based on vicarious liability a little easier to establish.

[69] Junior counsel then submitted that Lord Drummond Young was in error in respect that he had made assumptions as to changes in social attitudes since the 1960s and 1970s and as to the difficulty in assessing evidence against that background (paras 22, 113). He had assumed that corporal punishment was the norm at that time, although in terms of the


Administration of Children’s Homes (Scotland) Regulations 1959 corporal punishment was to be avoided. Moreover, there was evidence that the reclaimers had an expert report as to the standards of care expected and the position of corporal punishment at that time. Lord Drummond Young was also in error in regarding the reclaimers’ actions as being of relatively small value in monetary terms (para 127). Any compensation had to be measured by the injuries suffered, not by the standards of the time (para 22). [70] Junior counsel next submitted that Lord Drummond Young had erred in concluding that the respondents would suffer prejudice because they were unable to trace witnesses and recover documents. On the evidence a number of important witnesses were still available. There was also a considerable amount of relevant contemporaneous documentation. The absence of some witnesses might be prejudicial to the reclaimers rather than the respondents. In concluding that the prejudice caused to the respondents by loss of evidence was by itself a sufficient reason for not allowing the actions to proceed Lord Drummond Young had got the balance wrong. He was also wrong on the evidence to reject the diagnosis of PTSD in relation to AB (paras 93.7, 96).

[71] Since Lord Drummond Young had erred in the exercise of his discretion the matter was at large for this court. Having regard to the serious abuse which the reclaimers claim had taken place, together with the silencing effect of the abuse, which meant that it was the abuse itself which had led to the delay in their coming forward with their actions, the court should now exercise its discretion under sec 19A in their favour.

[72] In response junior counsel for the respondents invited us to hold that Lord Drummond Young had not erred in the exercise of his discretion and to refuse to interfere with his decision. In para 29 of his opinion he had encapsulated the approach in Scots law to sec 19A. There had been no criticism of that. In reviewing a Lord Ordinary’s exercise of discretion an appellate court could interfere only if the Lord Ordinary had misdirected himself or otherwise transgressed the limits of his discretion ( Donald v Rutherford ).

[73] Junior counsel replied to the points made by junior counsel for the reclaimers in a slightly different order. Dealing first with what had been said to be an over-reliance by Lord Drummond Young on what was said by McHugh J in  Brisbane Regional Health Authority v Taylor , junior counsel pointed out that it had not been said that the principles enunciated by McHugh J did not reflect the position in Scotland. It had, however, been said that they were incomplete in that they did not reflect the position in relation to ‘clean hands’. But McHugh J had in fact recognised the point in the passage quoted by Lord Drummond Young, and which we have further quoted at para 44, where McHugh J made it clear that what he had in mind was a defendant ‘who is not guilty of fraud, deception or concealment in respect of the existence of the action’. In  Hawkins v Clayton and ors  in the High Court of Australia only Deane J had decided the case on grounds approximating to the ‘clean hands’ principle; the case was rather concerned with an ongoing wrong. With regard to the Canadian case of  KM v HM  and the consideration that a wrong must be righted, that was plainly implicit in the discussion of discretion by both McHugh J and Lord Drummond Young. If there was no wrong to be righted, there would be no prejudice to the reclaimers at all to consider in the balancing exercise. Any possible difficulty in reconciling McHugh J’s dicta in  Brisbane  with Scots law was removed by Lord President Hope’s observations in  McCabe v McLellan . Reference was also made to Lord Prosser’s observations in  Kane v Argyll and Clyde Health Board .


[74] In relation to the scope of the preliminary proof junior counsel for the respondents submitted that Lord Drummond Young had not excluded what had been described as sec 17(2) issues. In dealing with the case of  KR v Bryn Alyn Community (Holdings) Ltd  all he had said was that where the limitation period had been extended in terms of sec 17 for a particular reason, that reason was not material for the purposes of sec 19A. The reclaimers were unable to point to any sec 17(2) issues which Lord Drummond Young had excluded. In fact, in para 109 he had taken them into account. In para 106 he had not been dealing with these issues but with the reclaimers’ ignorance as to their rights in law.

[75] In response to the submissions that Lord Drummond Young had taken into account a number of matters which were irrelevant, junior counsel for the respondents pointed out that those submissions did not challenge any of the evidence which underlay Lord Drummond Young’s decisions on those matters. It was not irrelevant that the reclaimers were a charity. It was relevant in considering the question of proportionality. In any event, this point was no more than an ‘add-on’ to Lord Drummond Young’s reasons for coming to his conclusion. In para 139 he had merely noted that on the evidence the respondents’ insurance cover might not be total. This was in the context of the reclaimers’ argument that in so far as the respondents were insured they themselves suffered no financial prejudice (see also para 115). Lord Drummond Young’s expression of view (para 143) that it was not genuinely in the reclaimers’ interests to rake over their unhappy memories of childhood, which is what proceeding with their actions would involve, was justified on the evidence of each of the reclaimers. In any event, this was also an ‘add-on’ to Lord Drummond Young’s reasons. With regard to the risk of prejudice to the respondents from the media publicity in 1997 and 1998 and from the use of questionnaires by the reclaimers’ Glasgow solicitors, junior counsel explained that the reclaimers had set up a psychological explanation for the delay in raising their actions. Part of that related to the positive effects of the media publicity in 1997 and 1998, which had given them the strength to come forward. It was part of the respondents’ response to show that there was possibly a less benign effect from that publicity and from the use of the questionnaires. Dr Boakes had given evidence to that effect and it had been accepted by the reclaimers’ solicitor and, to some extent, by Dr Tierney. Lord Drummond Young accepted this evidence. However, the evidence was of a risk of prejudice, not actual prejudice. In coming to his decision (para 143) Lord Drummond Young relied only on actual prejudice. This was therefore another ‘add-on’. It was, however, plainly a relevant factor which Lord Drummond Young was entitled to take into account to the limited extent that he did. He was also entitled to take into account the apparent change in the law brought about by the case of  Lister v Hesley Hall Ltd . Again, however, this was an ‘add-on’.

[76] With regard to what Lord Drummond Young had said as to changes in social attitudes since the 1960s and 1970s and the difficulty in assessing evidence against that background (paras 22, 113), he was entitled to make those observations on the basis of judicial knowledge. In any event, the reclaimers’ expert report had acknowledged those changes in social attitudes. So far as Lord Drummond Young’s observations on the value of the reclaimers’ actions were concerned, on the basis of his experience he was entitled to say that in all the circumstances they were not of high monetary value.

[77] With regard to Lord Drummond Young’s conclusion that the respondents would suffer prejudice because they were unable to trace witnesses and recover documents, there were two points to be made. The first was that


Lord Drummond Young’s findings on this matter were not challenged. The second was that it was a question for him as to how much weight he put on the lost evidence, how seriously he assessed it. He found (para 120) that many relevant witnesses had died or were unable to give evidence and a number of relevant documents were missing. These were specified in para 121. In the last sentence of para 30 the Lord Ordinary had said: ‘What matters … is whether the loss of evidence is material, not whether it is total.’ Junior counsel for the reclaimers had not taken issue with that. As for the Lord Ordinary’s rejection of the diagnosis of PTSD in relation to AB, that was of no moment. It was accepted that what were described as the PTSD-type symptoms were present and that they were a part of the psychological explanation for AB’s delay in bringing her action

. [78] Senior counsel for the reclaimers adopted his junior’s submissions. With regard to the prejudice found by Lord Drummond Young to have been caused to the respondents by the length of the delay in raising the present actions, different policy considerations applied in cases of abuse from those such as  Brisbane Regional Health Authority v Taylor . This was a case where ‘wrongs must be righted’. Reference was made to  X (Minors) v Bedfordshire County Council and ors  and  KM v HM . In the present case Lord Drummond Young had fettered his discretion under sec 19A by wrongly excluding a sec 17(2)(b) factor. In each of the present actions the reclaimer had averred that the delay in raising proceedings was at least in part due to the abuse they had suffered by reason of its silencing effect. Lord Drummond Young had failed to take account of this factor, the ‘clean hands’ argument. He had been referred to  Hawkins v Clayton and ors  by counsel for the reclaimers in the context of sec 19A. He had not addressed that point and so must be taken to have excluded it. Reference was made to  M v O’Neill . In that case Lord Glennie had accepted the argument (para 92). Since sec 19A involved a balancing of the equities, the respondents must have clean hands. Here they did not. In that situation the court should disregard any equities favouring the respondents and concentrate on those favouring the reclaimers. Lord Drummond Young should therefore have allowed the reclaimers to bring their actions under sec 19A.

[79] In reply senior counsel for the respondents also adopted his junior’s submissions. In relation to the ‘clean hands’ argument, he submitted that it had not been overlooked by Lord Drummond Young. The point had been subsumed in the judgment of McHugh J in  Brisbane Regional Health Authority v Taylor  in the passage therefrom quoted by Lord Drummond Young, set out at para 44.  Hawkins v Clayton and ors  was a case of concealment by the solicitor in question. The Canadian case of  KM v HM  was more relevant for present purposes. Lord Drummond Young had considered that case at para 41 of his opinion. He rejected counsel for the reclaimers’ argument that the reasoning of La Forest J (pp 301, 302) in that case applied in the present case. In  M v O’Neill  (which had been reclaimed) Lord Glennie had, on the evidence, rejected the argument that the respondents in that case, by abusing the reclaimer, had caused or contributed to the reclaimer’s failure to bring her action in time. On the evidence in this case the respondents similarly had not caused or contributed to the reclaimers’ failure to bring their actions in time. They had not been silenced by the alleged abuse.

Discussion

[80] As Lord Drummond Young observed (para 29), sec 19A of the Act has been the subject of considerable judicial discussion. As a result it has been clearly


established that the court has a general discretion under the section. There was no dispute between the parties about that. In  Donald v Rutherford  Lord Cameron, with whom the other members of the Extra Division agreed, quoted the section and then said this (p 75):’The test then is whether “it seems equitable” to the court: this, in my opinion, means and can only mean that the discretion thereby conferred upon the court is unfettered.’

Lord Cameron noted that that interpretation was in line with that adopted by the Court of Appeal in England and Wales in  Firman v Ellis  and approved by the House of Lords in  Thompson v Brown  in relation to the equivalent provision in the statute then in force in England and Wales. In the latter case Lord Diplock had said (p 752):

‘The onus of showing that in the particular circumstances of the case it would be equitable to make an exception lies upon the plaintiff; but, subject to that, the court’s discretion to make or refuse an order if it considers it equitable to do so is, in my view, unfettered.’

[81] Lord Cameron expressed the view that these observations were equally applicable to the proper construction of sec 19A and he adopted them. Later in his opinion he said this (p 75):

‘I must emphasise that the discretion of the court is unfettered, although in every case the relaxation of the statutory bar can and must depend solely upon equitable considerations relative to the exercise of a discretionary jurisdiction in the particular case, having regard to the fact that it is for the party seeking relief to satisfy the court that it is, in the view of the court and in the circumstances of the case and of the legitimate rights and interests of the parties, equitable to do so … [T]he primary issue is not whether this court considers it equitable to permit the action to proceed, but whether the Lord Ordinary in the exercise of a discretion unfettered by definition, had misdirected himself in law or otherwise transgressed the limits of the discretion reposed in him so as to permit an appellate court to intervene and set aside his decision.’

(See also  Forsyth v AF Stoddart and Co Ltd ;  Elliot v J & C Finney .)

[82] In the present case Lord Drummond Young began by considering the general approach of the law to questions of limitation. He considered first the policy underlying limitation statutes in general. He found the most helpful discussion of that policy to be that of McHugh J in  Brisbane Regional Health Authority v Taylor , a decision of the High Court of Australia. We are not surprised at his choice. Counsel for the reclaimers did not criticise the substance of anything said by McHugh J and we see no reason not to accept his discussion of the policy as appropriate in the context of Scots law. Nor was Lord Drummond Young’s discussion of what was said by McHugh J subject to any criticism. It was, however, submitted that Lord Drummond Young was in error in relying on what McHugh J said in  Brisbane  in respect that the case was concerned with medical negligence and what was said by McHugh J was therefore said to be of little assistance in an action concerned with historical child abuse. We reject that submission. In our view what McHugh J said in  Brisbane  in the dicta quoted by Lord Drummond Young was not confined to the circumstances of that case but was of general application. We see no reason why his observations should not be found to be of assistance in cases of the present kind. On the contrary, and notwithstanding the use in the authorities of the expression


‘unfettered discretion’, we do not regard the discretion conferred by sec 19A of the Act to be so wide as to justify the decision taker’s disregarding – where it would otherwise be appropriate to take them into account – rationales, such as those identified by McHugh J, which may be applicable to limitation periods generally. We agree with Lord Drummond Young when he said (para 22) that all of the broad rationales for the enactment of limitation periods which were identified by McHugh J apply to the present case

. [83] It was said that the principle in relation to ‘clean hands’ enunciated in  Hawkins v Clayton and ors  formed no part of the rationales identified by McHugh J and that Lord Drummond Young had failed to give proper recognition to the principle. It is convenient to deal with this point at this stage. It is true that McHugh J did not in terms refer to Deane J’s judgment in  Hawkins v Clayton and ors  (and it should be remembered that Deane J was the only member of the Bench of the High Court of Australia in that case who based his judgment on the ‘clean hands’ principle) but it was submitted on behalf of the respondents that he did in effect recognise the principle in the passage at p 555 of his judgment, which is quoted by Lord Drummond Young at para 26 of his opinion and reproduced in para 44 of this opinion. In that passage McHugh J accepted that the defendant must not be guilty of fraud, deception or concealment (none of which is alleged of the respondents in this case). To that extent he was acknowledging that the defendant must have clean hands. Whether he also had in mind the particular aspect of the ‘clean hands’ principle which is contended for in this case, namely, that it was the alleged wrongful act itself – the alleged abuse in this case – which caused the delay in bringing proceedings is more open to doubt since, of course, that was not a live point in  Brisbane . But so far as the criticism made of Lord Drummond Young is concerned, a large part of the preliminary proof was indeed devoted to the factors which were said to have caused the reclaimers to delay in bringing their actions, including those said to be referred back or related to the alleged abuse. Lord Drummond Young set out his conclusions on that evidence in paras 99 to 109 of his opinion. In para 102 he recorded that counsel for the reclaimers had submitted that the reclaimers had wanted to block out their experiences in Nazareth House; and consequently they were very reluctant to speak to anyone about the matter. In para 107 he accepted that all of the reclaimers were reluctant to speak about their experiences in Nazareth House, because they found it distressing and embarrassing to relive those experiences. However, he did not regard this as of great significance and when he weighed up all the factors (para 109), he found that those in favour of the reclaimers were heavily outweighed by the factors in favour of the respondents. Lord Drummond Young therefore dealt with the question whether the alleged abuse suffered by the reclaimers was itself the cause of their delay in raising proceedings. He also carefully considered the Canadian case of  KM v HM , on which the reclaimers relied, but for the reasons which he gave found it of no assistance in this case. We do not consider that conclusion to be open to successful challenge. For these reasons, and assuming for present purposes that the allegations are soundly based, the reclaimers’ submissions in relation to the ‘clean hands’ principle are in our opinion not well-founded. We would add that the argument advanced by the reclaimers in respect of this branch of their submissions reflected in large measure the contention, advanced in the context of the discussion of sec 17(2)(b)(i), that the reclaimer belonged to a class, namely ‘the reasonable child abuse victim’, members of whom were subject to a ‘silencing effect’ which should be a matter of


judicial knowledge. For the reasons given earlier, in paras 34 and 35 we do not accept that contention.

[84] Lord Drummond Young then went on to give detailed consideration to the factors that might be relevant in an application under sec 19A, by reference to cases both in Scotland and under the equivalent legislation in England and Wales. In an extensive review of those cases he gave particular consideration to the decision of the Court of Appeal in England and Wales in  KR v Bryn Alyn Community (Holdings) Ltd . That case had a close parallel with the present case in that it involved a number of claims of abuse suffered by children in care homes. As we have just noted, he also considered the case of  KM v HM . He then considered the evidence led at the preliminary proof in relation to the various matters that might be relevant to the exercise of the court’s discretion under sec 19A. He set out his approach as follows (para 42):

‘I intend first to explain the events that brought about the raising of the present actions. Thereafter I will consider the explanations put forward on behalf of the three pursuers for their failure to raise proceedings within the normal limitation period. These fell into two categories, explanations of a general nature and explanations based on expert psychological evidence. Finally I will consider a range of other matters that are relevant to the exercise of the court’s discretion. The most important of these are prejudice caused by the lapse of time since the events on which the claims are based and prejudice caused by the loss of evidence during the intervening period.’

When Lord Drummond Young came to consider the prejudice caused to the respondents by (i) the lapse of time since the events on which the claims are based and (ii) the prejudice caused to the respondents by the loss of evidence during the intervening period he concluded that each of these factors was sufficient by itself to make it inequitable to allow the reclaimers’ actions to proceed (paras 116, 124). It is important to note that Lord Drummond Young identified those matters as being decisive. Having done so, Lord Drummond Young went on to record that he also considered that prejudice would or might be caused to the respondents in a number of other respects if the actions were allowed to proceed, but none of those respects was in itself decisive. In this sense they were what was described by counsel for the respondents as ‘add-ons’.

[85] We have thought it appropriate to set the matter out in this way because we consider it to be in this context that the reclaimers’ criticisms of Lord Drummond Young’s decision should be viewed. We turn now to consider those criticisms more specifically.

[86] First, it was submitted that Lord Drummond Young had erred in law by failing to allow to its full extent the preliminary proof envisaged by Lord Johnston. If we may paraphrase, Lord Johnston had said (opinion, para 15) that issues which the reclaimers had raised in the context of sec 17(2) in relation to the psychological and other explanations for their not having raised their actions earlier were not relevant for the purposes of that provision, but might be relevant for the purposes of sec 19A. Before us these were referred to by counsel as the sec 17(2) issues. In our opinion there is no merit in this criticism. Counsel for the reclaimers pointed to what Lord Drummond Young had said in para 35 of his opinion. In the relevant part of that paragraph he quoted the following passage from the judgment of the Court of Appeal in  KR v Bryn Alyn Community (Holdings) Ltd  (para 80):

‘[W]e consider: … (iii) that, if the date of knowledge test in section 14 is properly applied so as to provide a claimant with an extension of the period by


reference to it, the weight to be given to his reasons for delay thereafter should, in normal circumstances, be limited … [T]he law has already catered for his delay in starting proceedings that is due to excusable ignorance of material facts as distinct from his knowledge that they may give him a good cause of action in law.’Lord Drummond Young then said this:

‘The third of these points emphasizes that delay caused by excusable ignorance of the facts should be taken into account under secs 11 and 14, or in Scotland sec 17, with the result that it is other sources of delay that are material for the purposes of sec 33 in England and Wales or sec 19A in Scotland.’

In  KR v Bryn Alyn Community (Holdings) Ltd  the Court of Appeal held that in the circumstances of that case it was relevant to take account of the reasons for the claimants’ delay in bringing their actions in the context of secs 11 and 14 (in Scotland, sec 17). As we have already observed, the decision in  KR v Bryn Alyn Community (Holdings) Ltd  is not without significant difficulty (para 27). But in that passage the Court of Appeal was making a general point. So was Lord Drummond Young, namely, that delay caused by excusable ignorance of the facts is a matter for consideration in the context of sec 17 but is different and separate from delay which is material for the purposes of sec 19A. Lord Johnston had expressed the same view in his opinion earlier in the case. The confusion arises perhaps from the reclaimers’ describing as sec 17(2) issues the psychological and other reasons for their not having raised their actions earlier. It is true that the reclaimers argued before Lord Johnston that they were relevant issues in the context of sec 17 but he rejected that argument. So they were not truly sec 17(2) issues at all. In these circumstances we are unable to hold that in para 35 Lord Drummond Young was in some way excluding those issues from consideration in the context of sec 19A. In any event, what actually happened in the preliminary proof was that Lord Drummond Young heard a great deal of evidence not only from each of the reclaimers but also from experts dealing with the psychological and other reasons why the reclaimers had not raised their actions earlier. He summarised his conclusions on that evidence as follows (para 109):

‘In summary, accordingly, I conclude that (i) all three pursuers suffered personal and psychological problems that would tend to inhibit them from raising court proceedings, both between the ages of 18 and 21 and subsequently; (ii) all three reclaimers did not think that they would be believed if they made complaints about their treatment in Nazareth House, between the ages of 18 and 21 and for at least a substantial number of years thereafter; and (iii) the reclaimers did not consciously realize until 1997 that they could raise legal proceedings against the respondents, although that was the result of lack of thought rather than consideration and rejection of proceedings. I accept that all of these provide some explanation for the failure to raise proceedings before 1997. Even when they are taken together with the reluctance of the reclaimers to speak about their experiences in Nazareth House, however, I am of opinion that these factors are heavily outweighed by a number of other matters that are relevant to the exercise of the court’s discretion under sec 19A. I will now deal with those other matters.’

[87] It can be seen from this, therefore, that Lord Drummond Young fully considered the so-called sec 17(2) issues and weighed them in the balance against the other factors that he considered relevant to the exercise of his discretion under sec 19A. There is no indication whatever that he gave them less weight than they


deserved because they had been erroneously alluded to earlier in the context of sec 17(2) before Lord Johnston.

[88] The reclaimers next submitted that Lord Drummond Young took into account a number of irrelevant factors, which are set out in para 68. The first of these was that the respondents are a charity. Reference was made to paras 115 and 128. The context of para 115 is Lord Drummond Young’s consideration of prejudice caused to the respondents by lapse of time. In that paragraph he noted that one of the standard rationales for the imposition of limitation periods was that it was oppressive to defenders to allow actions to be brought long after the circumstances that gave rise to them had occurred. He then illustrated that point by reference to the respondents’ present charitable work. In our opinion it cannot be said that he erred in doing so. In paras 128 and 139 Lord Drummond Young noted that the respondents had insurance cover, although it was not clear to what extent it might cover the present claims. It was said, therefore, that any prejudice that the respondents’ present charitable work might suffer would to that extent be restricted. That is no doubt true so far as it goes but it overlooks the context in which Lord Drummond Young was speaking in para 115, which is prejudice caused by lapse of time. It also overlooks the third of the broad rationales identified by McHugh J in  Brisbane  and quoted in para 42, which expressly applies to insurers. In our opinion there is no substance in this point.

[89] It was next submitted that Lord Drummond Young was in error in expressing the view that it was not genuinely in the reclaimers’ best interests to proceed. This was under reference to his concluding remarks in para 143. In our opinion there is also no substance in this point. It may be observed that in the context of the structure of the opinion of Lord Drummond Young, this view was stated after he had expressed his conclusion. Lord Drummond Young was there expressing a humane and entirely understandable view on the basis of the distress that each of the reclaimers had already suffered when giving evidence in the preliminary proof. Moreover, as we have indicated, he had just made it absolutely plain that this factor was immaterial to his decision to refuse to allow the reclaimers to bring the present actions.

[90] It was further submitted that Lord Drummond Young was in error in paras 133 and 135 in finding and taking into account risk of prejudice to the respondents from the media publicity in 1997 and 1998 and from the methods used by the reclaimers’ Glasgow solicitors in preparing their and other claimants’ cases. It was said that to take account of this factor ran counter to the notion that for present purposes the reclaimers’ evidence had to be taken pro veritate. In paras 133 and 135 Lord Drummond Young fully explained his reasoning for his view in relation to these factors. We are not persuaded that he fell into error in what he said.

[91] Equally we are not persuaded that he was in error in finding that prejudice was caused to the respondents by changes in the law in recent years and in taking that factor into account (paras 117-119).

[92] We turn now to the submissions that Lord Drummond Young was in error when he made a number of assumptions (see para 69). It is sufficient for us to say in relation to this point that we prefer the submissions made in reply by junior counsel for the respondents (see para 76). In our view Lord Drummond Young did not fall into error in respect of these matters.

[93] A possibly more substantial criticism on behalf of the reclaimers was that Lord Drummond Young erred in concluding in para 120 that the respondents had suffered prejudice in that the delay in raising the present actions had deprived them


of the opportunity to trace many relevant witnesses and to recover a number of relevant documents. It was said by counsel for the reclaimers that a considerable amount of contemporaneous documentation was available and many witnesses could be traced. In our opinion, however, this is nothing to the point. As Lord Drummond Young correctly observed at para 30, what matters is whether the loss of evidence is material, not whether it is total. In paras 121 to 123 he set out in detail the evidence which has been lost. In our opinion he was fully justified in concluding, as he did (para 124) that the respondents were’seriously prejudiced by the non-availability of witnesses, the absence of documents, and the inability of such witnesses as have been traced to remember specific details of what happened at Nazareth House during the 1960s and 1970s.’

He was also in our opinion justified in concluding, on the basis of the authorities which he cited, that that prejudice was by itself a sufficient reason for not allowing the present actions to be brought under sec 19A.

[94] It was submitted finally that the Lord Ordinary was in error in rejecting the diagnosis of PTSD in relation to AB (para 96). The evidence on which that finding was made is set out in paras 80 and 81 and on the basis of that evidence Lord Drummond Young was in our opinion entitled to come to the view he did.

[95] It can be seen from what is said above that much, if not all, of the criticism directed at Lord Drummond Young by counsel for the reclaimers was on matters which were not central to his decision. For the reasons we have given he was not in our opinion in error in any of the ways contended for on behalf of the reclaimers. We are not in any event persuaded that he erred in any way in the exercise of his discretion under sec 19A. His central conclusions, having taken into account all the various factors which he did and notwithstanding the reasons for which the proceedings were not commenced until after the press publicity, were that (1) the prejudice caused to the respondents by the lapse of time in raising the present proceedings was by itself a sufficient reason for not allowing the actions to be brought under sec 19A and (2) the prejudice caused to them by the actual loss of evidence was by itself also a sufficient reason for not allowing the actions to be brought under sec 19A. On the basis of the evidence before him and the authorities cited by him we are of the opinion that not only was Lord Drummond Young entitled to come to those conclusions but also that he was correct to do so.

Decision

[96] For all of the reasons which we have given in the respective sections of this opinion we shall refuse the reclaiming motions.

The Court refused the reclaiming motions.

Drummond Miller WS – Simpson & Marwick WS

[2007] SC 688

Please note that victims of abuse may be triggered by reading this information. These links are generally UK based.

  • The Sanctuary for the Abused [A] has advice on how to prevent triggers.
  • National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups.
  • One in Four [C]
  • Havoca [D].
  • Useful post on Triggers [E]  from SurvivorsJustice [F] blog.
  • Jim Hoppers pages on Mindfulness [G]  and Meditation [H] may be useful.
  • Hwaairfan blog An Indigenous Australian Approach to Healing Trauma  [J]
  • Survivors UK for victims and survivors of male rape or the sexual abuse of men [K]
  • Voicing CSA group [L] helps arrange survivors meetings in your area
  • A Prescription for me blog Various emotional support links [M]
  • ShatterBoys -“Male Survivors Of Childhood Sexual Abuse Inspiring change, Through Shared Experience Whilst Building Connections…Together We Can Heal” [N]

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Posted in cathy fox blog, Child Abuse, Church abuse, Court, physical abuse, Scotland | Tagged , , , , , , , , , , , , , , , , , , , , , , , , , , , , | 1 Comment

Folks 18 Jun 2013 Court of Appeal (Church)

Andrew John Folks was vicar in Ambleside but is no longer. The minor indecent assault charged was 2003/4 whilst teaching guitar lessons. Victim 15.

Redaction

Some court reports have had victims names redacted and some assault details redacted.

This is a difficult balance –  normally I would think that  I should not “censor” details but on consultation with various people I have taken the decision to redact. This is mainly to protect victims, their friends and relatives from unnecessary detail and to stop the gratification of those who seek salacious details.

In addition to the obvious “victims redaction” to protect victims details, there may also be “assault redaction” across most of the spectrum of abuse. The assaults are left in the charges, but mainly redacted when repeated with reference to the individual. I have also redacted unnecessary detail of assaults.

Redaction may obscure sometimes the legal reason for the appeal, but should make no large difference to the vital information for researchers that these documents contain. That vital information is mainly names of the perpetrators, past addresses, institutions where assaults occurred, the actual charges the perpetrators faced, and dates – on which newspapers are pathetically inaccurate and this information enables the links between people and places and abuse at various times to be ascertained.

Some transcripts may have been subject to automatic reading software and whilst effort has been made to correct these, the text should not be regarded as definitive.  Common mistakes in reprinting here are that quotation marks are sometimes not correct, replaced by odd symbols.

If you think that the balance is not correct or that a particular redaction needs reconsideration, please say.

This appeal is unredacted by cathy fox blog

Index of Newspaper and Journal articles on this blog [1]

Index of Court Appeals on this blog [2]

[2013] EWCA Crim 1240

No: 201302401/A2

IN THE COURT OF APPEAL

Tuesday, 18th June 2013

Mr Justice Ouseley

Regina

v.

Andrew John Folks

Mr C Evans appeared on behalf of the Applicant


Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)

JUDGMENT

(As Approved by the Court)

1. Mr Justice Ouseley: We should just remind those interested that the provisions of the Sexual Offences (Amendment) Act apply to this offence and no matter relating to the victim shall be included in any publication during his lifetime if it is likely to lead members of the public to identify him as a victim of such an offence.

2. This is an application for leave to appeal which has been referred by the Registrar to the Full Court. We give leave and the now appellant has waived his right to appear.

3. The appellant, now 70, pleaded guilty to two related offences. One of count 1 of indecent assault on a male, the other, count 2, of an attempted indecent assault on a male. The offences are ones to which the provisions of the Sexual Offences Act 1965 apply. Miss Recorder Landale at Carlisle Crown Court sentenced the appellant on 4th March 2013 to 8 months concurrent on each count. He pleaded guilty on the day of trial but nonetheless was given a full discount in relation to plea it appears.

4. The brief facts were these. The appellant was the local vicar in Ambleside where the complainant grew up. The appellant is no longer a vicar. The complainant started to have guitar lessons with the appellant in the appellant’s home when he was about 13. Between 2003 and 2004, when the complainant was around 15 to 16, the guitar lessons began to change in their nature at the instigation of the appellant.

5. They became more about physical exercise. The appellant began to take an interest in the complainant’s physical appearance, engaging in what the appellant described as “boy talk” with the complainant, commenting on his physique and touching his pectoral and abdominal muscles in an inappropriate manner. He admitted in interview that he had become sexually attracted to the complainant during lessons.

6. That was all count 1. One day after a lesson the appellant asked if he could see the complainant’s penis. The complainant reluctantly obliged but refused to allow the appellant to touch it when the appellant asked if he could do so.

7. Shortly after that the complainant’s parents stopped the lessons as the appellant had written a letter to them which implied that he wished the complainant to come and live with him. The complainant’s father spoke to the appellant around this time but the complainant’s parents noted that the complainant’s behaviour was changing. He had become aggressive and moody. They recalled the complainant complaining that the appellant was waiting for him at the bus stop when he came home from school. Indeed he was clearly becoming obsessed by the boy.

8. Letters were also sent to the complainant by the appellant. The complainant became disgusted by what the appellant had done, it contributed to problems that he already had. It had a very serious impact on this already troubled boy, who was in a difficult relationship with his family. It led to his leaving home at the age of 16 and estrangement from the family for nearly 10 years. He had been unable to discuss these problems with them and feared the reaction of his family.

9. The sentencing judge recognised that the appellant had no previous convictions, had many positive good character references from the community, which he had served well. The pre-sentence report showed that the appellant had not really realised what effect his behaviour had had on the boy and that made him upset and remorseful. He had persuaded himself that no harm was being done. He was married with adult children but had become aware of his attraction to male teenagers. There were no drug, alcohol, mental health or financial problems which underlay the offending. He had retained the support of his family and of his local church. There was a low risk of re-offending and a medium risk of serious harm.

10. The probation officer thought that he could be safely managed in the community under some form of community or suspended sentence order. We have read the good character references which have been supplied to the court, as they were to the sentencing judge.

11. The succinct submissions made by Mr Evans were these. In relation to count 1, the approach adopted by the sentencing judge to the application by analogy of the sexual assault guidelines meant that she has taken a starting point, far too high. The implied starting point was 12 months. The more appropriate starting point on those guidelines would have been a non-custodial sentence in the form of a community order.

12. The second and very important point made by Mr Evans was that count 1 came about because of the candour which the appellant showed in his interview with the police albeit that the plea of guilty was late. It was his candour which brought to light the offending behaviour which underlies count 1, which gave colour and significance to the way in which count 2 was sentenced as well.

13. So far as count 2 is concerned, Mr Evans submits that the guidelines were not specific about attempts. There was no clear explanation from the judge as to how she had dealt with the fact that this was an attempt, it had only been short and had not been persisted in once the complainant had declined to allow his penis to be touched. No sexual offences prevention order was made and the offences were 10 years old.

14. However, first, the judge was right to treat them as a series of linked offending. They had to be taken together and what was in effect a single overall sentence applied to both of them. Secondly, the judge was entirely right that a custodial sentence was called for. There was a very serious breach of trust. The vicar was a trusted person because of his position. He was trusted as a teacher and he was trusted by the boy and the boy’s parents. The offending was planned for the sexual gratification of the appellant. He exhibited obsessive behaviour after the parents had said that there were to be no more lessons and they clearly wanted contact to stop. The vicar should have known that a teenager was inevitably capable of being very troubled by this sort of behaviour and should have realised how damaging and destructive it could be. Instead he blinded himself to what would happen because of his own difficulties in coping with his sexuality. It was not just the boy that suffered; the family has suffered because of his estrangement for many years.

15. The good character is clearly relevant, but this offending plainly passed the custody threshold.

16. The Sentencing Guidelines in relation to sexual assault do not offer much assistance for dealing with the specific circumstances of this offending behaviour and it is not helpful to judging the appropriate level of sentence, to split the offending unduly and focus on very specific elements attributed to each count. Applying the precise language of guidelines which do not apply can wholly miss the gravity of the offending.

17. The appropriate sentence can be arrived at in a variety of ways, whether by taking 12 months as the appropriate starting point for the attempt in count 2, reducing it by, for example, a quarter to account for the fact that it was an attempt and then giving a fuller discount for the plea. Alternatively, one can focus on the behaviour in count 1 as the main driver for the sentence, and in addition to allowing a full discount for plea, recognise that the importance of the candour shown by the appellant here is that it is what led him to be charged with what in many ways is the more serious aspect of the offending behaviour. This candour also related to remorse.

18. It was the appellant’s admissions at interview which led to this offending behavioural being charged. It is important for those who have committed these serious offences to be candid about what they had done and fuller recognition of that particular fact should have been given.

19. We have come to the conclusion that was somewhat too high. Instead of 8 months, to reflect the importance of count 1 and the admissions the sentence should be 6 months to run concurrent on each count. To that extent the appeal is allowed.

Please note that victims of abuse may be triggered by reading this information. These links are generally UK based.

  • The Sanctuary for the Abused [A] has advice on how to prevent triggers.
  • National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups.
  • One in Four [C]
  • Havoca [D].
  • Useful post on Triggers [E]  from SurvivorsJustice [F] blog.
  • Jim Hoppers pages on Mindfulness [G]  and Meditation [H] may be useful.
  • Hwaairfan blog An Indigenous Australian Approach to Healing Trauma  [J]
  • Survivors UK for victims and survivors of male rape or the sexual abuse of men [K]
  • Voicing CSA group [L] helps arrange survivors meetings in your area
  • A Prescription for me blog Various emotional support links [M]
  • ShatterBoys -“Male Survivors Of Childhood Sexual Abuse Inspiring change, Through Shared Experience Whilst Building Connections…Together We Can Heal” [N]

Links

Posted in cathy fox blog, Child Abuse, Child sexual abuse, Lake District, North West | Tagged , , , , , , , , , , , , , , , , | 1 Comment

PS 15 Apr 2003 Court of Appeal (member of Methodist Church)

The several appeals posted today are all relevant to the Christian Church. See a list of all of them here at the end of the day – Index of Court Appeals on this blog [2]

It is not clear why PS was not named. The case glosses over “entirely consensual” sex with a 15 year old male prostitute. Councillor and member of Methodist Church in Warwickshire Area. Appeal judges appear lenient.

Redaction

Some court reports have had victims names redacted and some assault details redacted.

This is a difficult balance –  normally I would think that  I should not “censor” details but on consultation with various people I have taken the decision to redact. This is mainly to protect victims, their friends and relatives from unnecessary detail and to stop the gratification of those who seek salacious details.

In addition to the obvious “victims redaction” to protect victims details, there may also be “assault redaction” across most of the spectrum of abuse. The assaults are left in the charges, but mainly redacted when repeated with reference to the individual. I have also redacted unnecessary detail of assaults.

Redaction may obscure sometimes the legal reason for the appeal, but should make no large difference to the vital information for researchers that these documents contain. That vital information is mainly names of the perpetrators, past addresses, institutions where assaults occurred, the actual charges the perpetrators faced, and dates – on which newspapers are pathetically inaccurate and this information enables the links between people and places and abuse at various times to be ascertained.

Some transcripts may have been subject to automatic reading software and whilst effort has been made to correct these, the text should not be regarded as definitive.  Common mistakes in reprinting here are that quotation marks are sometimes not correct, replaced by odd symbols.

If you think that the balance is not correct or that a particular redaction needs reconsideration, please say.

This appeal is unredacted by cathy fox blog

Index of Newspaper and Journal articles on this blog [1]

Index of Court Appeals on this blog [2]

[2003] EWCA Crim 1380

No: 200301162/X3

IN THE COURT OF APPEALCRIMINAL DIVISION

Tuesday, 15th April 2003

Lord Justice Clarke

Regina

v.

PS


Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)

MR S BAILEY appeared on behalf of the APPELLANT

JUDGMENT

(As Approved by the Court)

15th April 2003

1.

MR JUSTICE MORISON: On 2nd December 2002 in the Crown Court at Warwick the appellant appeared for sentence and was sentenced in all to 21 months’ imprisonment for offences relating to male children. He was given a nine month sentence for an indecent assault on a 15 year old boy who was a male prostitute who he had met in public toilets.

2. The appellant was a bus driver and was aware that the particular toilets were used as a pick-up place for homosexual activity. The appellant believed the boy to be over the age of consent. After the entirely consensual sexual encounter took place in the appellant’s home the appellant paid the boy his fee. They met again when the appellant discovered the boy was wearing a curfew tag. There was no sexual event on this occasion, but the boy left apparently taking the appellant’s mobile phone.

3. The appellant went to the police. The young man was interviewed and as a result of what they discovered they executed a search warrant of the appellant’s home and seized numerous items, including photographs and videos depicting young children naked and in some cases participating in sexual acts. Such material was also stored on the appellant’s computer.

4. In relation to this aspect the appellant pleaded guilty to 21 charges of making, that is in the technical sense of downloading, indecent photographs of children. A significant number of them depicted penetrative sex between adult males and male children. The computer showed over 4000 images which contravened the legislation. The sentencing judge dealt with this aspect on the basis that the appellant himself had not taken the photographs and had not distributed any of the downloaded images. He described how he used the images to fuel his sexual fantasies.

5. The sentence of 12 months for this offending was consecutive to the nine months for the first offence, making a total of 21 months’ imprisonment in all. The judge also ordered an extended period of licence for three years on the appellant’s release and he expressed the hope that it would be made a condition of that licence that he should attend an appropriate sex offenders programme. The judge probably had well in mind that with a sentence of that length it was not going to be possible for the appellant to complete such a programme whilst in prison. The judge also made a restraining order under section 5(a) of the Sex Offenders Act 1977, requiring the appellant not to engage in any occupation or engagement of any kind which would be likely to bring him into contact with people under the age of 16 years. The judge said that was an indeterminate order.

6. There is much to be said in mitigation, and it has been said, by Mr Bailey who has represented his client with considerable ability in our view. First of all, the appellant’s previous good character. He was co-operative in his attitude with the police. He pleaded guilty at the first available opportunity. In addition, he has contributed to his local community, both as a councillor and through his Methodist Church. Some people have written in and speak highly of him and his contribution to society.

7. Secondly, the appellant is gay. He has attempted not to give way to his desires and act out his fantasies, and uses his computer access to the internet to fuel and satisfy his desires in his own home. He has not “corrupted” any child himself. The boy with whom he had sexual intimacy was experienced and not a first timer. The boy made no complaint and did not co-operate with the police in bringing the prosecution. The sexual encounter was purely consensual, although money was involved. None of the images downloaded from the web were traded or distributed by the appellant. They were kept for his own use.

8. On the other hand, sexual contact with people of 15 is always serious and as the older man it was his job to make sure that the boy was above the age of consent. His dilemma is that he is attracted to youth and it is difficult for him to have lawful sexual experience of the type which arouses his interest.

9. The access to pornography through the internet is a cancer in our society. Indirectly people like the appellant make a market for these pictures and thus encourage the pornographers to exploit the children. It seems clear from the comprehensive report on this appellant, which the sentencing judge had access to, that the appellant has very little understanding of the harm he does by indulging his fantasies.

10. The process of sentencing involves a balance between the interests of the victim, the public interest and the interests of the offender. The balance is not always easy to strike. Looked at purely from the appellant’s point of view, he has lost his good reputation. There are avenues which will now be denied to him. He has never been to prison before and any prison sentence will bear hard on him.

11. From the victim’s point of view the production of child pornography demeans the children concerned and damages them. Their right to grow up as normal decent people and their right to develop their own sexuality has been stolen from them. They need the court’s protection, and, more generally, the public interest suggests that the revulsion of ordinary decent people to offending of this sort must be reflected by what the court does in the sentencing process.

12. At this time we can only interfere with the sentence if we are satisfied that it is manifestly excessive.

13. Counsel has drawn our attention to the numerous points in mitigation to which we have alluded. He invited the Court to take the view that the two offences could be treated effectively as arising out of one occasion, not meriting a consecutive sentence. He says, in any event, 21 months was unduly harsh in the circumstances.

14. It seems to us that we can adopt a merciful approach to the sentences which the appellant deserves. It seems to us that overall a sentence of 15 months’ imprisonment would be appropriate. We are not persuaded that we ought to fiddle with that figure in order to produce a result that secures the appellant’s immediate release, although we recognise that by reducing the sentence to 15 months he will not in fact remain in prison for very many more days. We do that by quashing the sentence in relation to the first offence of nine months and substitute for it a sentence of three months which will be consecutive to the sentence of 12 months passed in relation to the pornographic pictures, such sentence of 12 months being entirely appropriate having regard to the nature of the offending in that respect.

15. We turn, therefore, to the only other matter, namely was the judge entitled to make a restraining order under section 5(a) of the 1977 Act? The court may make an order under that section if it is satisfied that it is necessary to do so in order to protect the public in general, or any particular members of the public, from serious harm from him.

16. The point that is made on this appeal is that the judge did not say that that was his view, namely that he was satisfied that it was necessary to protect the public in general from this appellant. We recognise that it would have been better had the judge said it in terms, but we are quite satisfied that the judge must have been of that view, and that if he were of that view it was an entirely justifiable view to adopt, having regard to the nature of the offending and the activities of this appellant. Therefore, it seems to us, that the judge was entitled to make an order, and entitled to make it until further order, rather than saying that it was an indeterminate order. So we quash the wording of that order and substitute for it an order that he does not engage in any occupation or engagement of any kind which would be likely to bring him into contact with people under the age of 16 years of age until further order.

Please note that victims of abuse may be triggered by reading this information. These links are generally UK based.

  • The Sanctuary for the Abused [A] has advice on how to prevent triggers.
  • National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups.
  • One in Four [C]
  • Havoca [D].
  • Useful post on Triggers [E]  from SurvivorsJustice [F] blog.
  • Jim Hoppers pages on Mindfulness [G]  and Meditation [H] may be useful.
  • Hwaairfan blog An Indigenous Australian Approach to Healing Trauma  [J]
  • Survivors UK for victims and survivors of male rape or the sexual abuse of men [K]
  • Voicing CSA group [L] helps arrange survivors meetings in your area
  • A Prescription for me blog Various emotional support links [M]
  • ShatterBoys -“Male Survivors Of Childhood Sexual Abuse Inspiring change, Through Shared Experience Whilst Building Connections…Together We Can Heal” [N]

Links

 

Posted in cathy fox blog, Child Abuse, Child sexual abuse, Court, Indecent Images, Warwickshire | Tagged , , , , , , , , , , , , , , , , , , , | 2 Comments

Anthony John Macallen 24 Nov 1993 Court of Appeal (Church)

The several appeals posted today are all relevant to the Christian Church. See a list of all of them here at the end of the day – Index of Court Appeals on this blog [2]

This appeal was by a Roman Catholic Priest Anthony John McCallen, Chaplain of St Anthony’s, Beverley Road, Kingston upon Hull. Indecent assaults and indecent images.

Redaction

Some court reports have had victims names redacted and some assault details redacted.

This is a difficult balance –  normally I would think that  I should not “censor” details but on consultation with various people I have taken the decision to redact. This is mainly to protect victims, their friends and relatives from unnecessary detail and to stop the gratification of those who seek salacious details.

In addition to the obvious “victims redaction” to protect victims details, there may also be “assault redaction” across most of the spectrum of abuse. The assaults are left in the charges, but mainly redacted when repeated with reference to the individual. I have also redacted unnecessary detail of assaults.

Redaction may obscure sometimes the legal reason for the appeal, but should make no large difference to the vital information for researchers that these documents contain. That vital information is mainly names of the perpetrators, past addresses, institutions where assaults occurred, the actual charges the perpetrators faced, and dates – on which newspapers are pathetically inaccurate and this information enables the links between people and places and abuse at various times to be ascertained.

Some transcripts may have been subject to automatic reading software and whilst effort has been made to correct these, the text should not be regarded as definitive.  Common mistakes in reprinting here are that quotation marks are sometimes not correct, replaced by odd symbols.

If you think that the balance is not correct or that a particular redaction needs reconsideration, please say.

This appeal is unredacted by cathy fox blog

Index of Newspaper and Journal articles on this blog [1]

Index of Court Appeals on this blog [2]

[1993] EWCA Crim J1124-6

IN THE COURT OF APPEAL CRIMINAL DIVISION
No. 93/3502/X3

Royal Courts of Justice
The Strand
London WC2

Wednesday 24 November 1993
Before: The Lord Chief Justice of England (Lord Taylor of Gosforth) Mr Justice Owen and Mr Justice Latham

Regina
v.
Anthony John McCallen

MR CARTWRIGHT appeared on behalf of THE APPELLANT

Computer Aided Transcription by John Larking, Chancery House, Chancery Lane, London WC2 Telephone 071–404 7464 (Official Shorthand Writers to the Court)

JUDGMENT (As Approved) Wednesday 24 November 1993
THE LORD CHIEF JUSTICE: Mr Justice Latham will give the judgment of the Court.
MR JUSTICE LATHAM: After pleading not guilty at the plea and directions hearing on 25 January 1993 the appellant pleaded guilty on 18 March 1993 to one offence of being knowingly concerned in the importation of an indecent video; six offences of taking indecent photographs of young boys; and finally, two offences of indecent assault. So far as the importation of the video was concerned he was sentenced to six months imprisonment; for the indecent photographs he was sentenced to 18 months imprisonment concurrent with each other and concurrent with the six months imposed for the video offence; and for the offences of indecent assault he was sentenced to three-and-a-half years imprisonment concurrently on each of those two counts and concurrently with the other sentences, making a total of three-and-a-half-years imprisonment. It is against that sentence that he now appeals with the leave of the Single Judge.

The appellant is 47 years of age and is a Roman Catholic priest. At the time he was the Chaplain of St Anthony’s, Beverley Road, Kingston upon Hull. The offences came to light in the following circumstances. Customs and Excise investigators followed an indecent video which had been imported from Germany. It was collected by the appellant. Although he sought in the first instance to deny it was for him, he was subsequently constrained to admit it.

A search warrant was obtained for the presbytery in Kingston upon Hull in which he lived, and a house, 4 Paradise Road on Holy Island, Northumberland. The latter was an address to which the appellant would take parties of young boys from his parish for holiday weekends, or even weeks. Investigators found in those addresses “literally thousands of photographs and articles of an indecent nature”, together with video tapes and drawings. It was clear that the appellant was obsessed by young boys. Amongst the material seized were narratives written by him of a highly explicit nature involving sexual activity with young boys.

So far as the video is concerned it is right to say that it was an indecent video; it was not a pornographic video and it did not display any sexual activity. The majority of the indecent photographs were of young boys who had come with him to 4 Paradise Road. They were of the boys in the shower at that address. He had so arranged things that from outside the door he could surreptitiously photograph the boys in the bathroom.

The photographs in question appear in the main to be simple nude photographs, but there are a few in which it appears that the boy is masturbating. The indecent assault charges also arise out of photographs. The evidence upon which the two counts were laid consisted of the photographs.

The first is of a boy standing naked against the appellant, who is dressed in a track suit, and who has his hand on the bare cheeks of the boy’s backside. The second is a photograph showing the appellant on a bed in a state of undress, with a boy wearing nothing but underpants lying across him. Neither photograph shows any act of gross indecency.

Only one statement from one of the boys was referred to by the prosecution in the opening of the facts to the Court below. In that statement it was said:

“Father McCallen (that is the appellant) always encouraged us to be ourselves. This included swearing and engaging in pranks with Father McCallen. Father McCallen would put his hand down my trousers and feel my naked backside, putting his hands in the crevice of my anus. I did not see anything wrong in this at the time as I trusted Father McCallen as a friend and I considered such actions to be part of playing around. Father McCallen also rubbed his beard on my backside and face, and also smacked my backside. Again I saw nothing wrong with this.”

Although there was no sexual activity between the appellant and any of the boys, the evidence suggests that the way in which the appellant behaved towards them has led at least one boy to be confused as to the real nature of the indecency that was being perpetrated.

In these circumstances it was inevitable that the judge would conclude —and rightly —that what happened was a very serious abuse. It was an abuse of the trust of both boys and their parents, bearing in mind the position that the appellant held in relation to them as their priest. It is clear that what he did has led to, at the very least, some concern as to the extent to which the boys have developed a proper sense of what is right and wrong in the area of indecency.

It is undoubtedly sad that the appellant should come before the Court in these circumstances, because it would appear that until these matters came to light he was a well-respected man who had served his community well. But the dark side of his nature, which emerged in the form of this erotic obsession, is one which has clearly caused great anguish to those parishioners with whom he lived and worked.

We have before us reports from Dr Spencer, a psychiatrist from Oxfordshire, a Dr Livingstone, a psychiatrist working at the therapeutic rehabilitation centre run by the Catholic church; and a pre-sentence report from Miss Carey. All those reports make it clear that the appellant is in fact a deeply disturbed man and requires substantial help if he is to overcome his obsession. It is worrying to see that certainly at one time he was seeking to minimise his part by to some extent blaming the boys.

One can see that from the reports. On the other hand, it is right to say that Dr Spencer’s report makes it clear that treatment is not only necessary but has some prospect of success. He has stated that the appropriate treatment is unlikely to be available in prison and he asserts —and counsel on behalf of the appellant seeks to support this assertion —that the right course is to make an order today which will allow that treatment to take place forthwith.

However, there are other considerations to which we have already referred. The abuse of trust rendered this a most serious case. In the circumstances there is no alternative but to say that a prison sentence was inevitable. However, although this was persistent behaviour over a substantial period of time, there was no more in terms of incident assault than touching. There was no gross indecency.

In those circumstances we consider that a sentence of three-and-a-half years imprisonment for these indecent assaults was too long, and we propose to reduce that sentence to one of two years imprisonment. As far as the taking of the indecent photographs is concerned, we again consider that the sentence of 18 months imprisonment was too long and should be reduced to 12.

All those sentences will remain, as they were in the first instance, concurrent sentences, so that the total will be one of two years imprisonment. We wish to say this. We clearly accept that this man needs help. There is no reason why he should not obtain some help in prison, but more importantly there is no reason why he should not seek and obtain help appropriate to his problems once he is released from prison. We encourage him to do so. To the extent we have indicated this appeal is allowed.

Please note that victims of abuse may be triggered by reading this information. These links are generally UK based.

  • The Sanctuary for the Abused [A] has advice on how to prevent triggers.
  • National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups.
  • One in Four [C]
  • Havoca [D].
  • Useful post on Triggers [E]  from SurvivorsJustice [F] blog.
  • Jim Hoppers pages on Mindfulness [G]  and Meditation [H] may be useful.
  • Hwaairfan blog An Indigenous Australian Approach to Healing Trauma  [J]
  • Survivors UK for victims and survivors of male rape or the sexual abuse of men [K]
  • Voicing CSA group [L] helps arrange survivors meetings in your area
  • A Prescription for me blog Various emotional support links [M]
  • ShatterBoys -“Male Survivors Of Childhood Sexual Abuse Inspiring change, Through Shared Experience Whilst Building Connections…Together We Can Heal” [N]

Links

Posted in cathy fox blog, Child Abuse, Child sexual abuse, Church, Church abuse, Court, Humberside, pedophile | Tagged , , , , , , , , , , , , , , , , , , , , , , , , , , | 1 Comment

Michael Walter 23 May 1988 Court of Appeal (Church)

The several appeals posted today are all relevant to the Christian Church. See a list of all of them here at the end of the day – Index of Court Appeals on this blog [2]

Defendant was a vicar in Hull and the offences convicted were minor physical abuse.

Redaction

Some court reports have had victims names redacted and some assault details redacted.

This is a difficult balance –  normally I would think that  I should not “censor” details but on consultation with various people I have taken the decision to redact. This is mainly to protect victims, their friends and relatives from unnecessary detail and to stop the gratification of those who seek salacious details.

In addition to the obvious “victims redaction” to protect victims details, there may also be “assault redaction” across most of the spectrum of abuse. The assaults are left in the charges, but mainly redacted when repeated with reference to the individual. I have also redacted unnecessary detail of assaults.

Redaction may obscure sometimes the legal reason for the appeal, but should make no large difference to the vital information for researchers that these documents contain. That vital information is mainly names of the perpetrators, past addresses, institutions where assaults occurred, the actual charges the perpetrators faced, and dates – on which newspapers are pathetically inaccurate and this information enables the links between people and places and abuse at various times to be ascertained.

Some transcripts may have been subject to automatic reading software and whilst effort has been made to correct these, the text should not be regarded as definitive.  Common mistakes in reprinting here are that quotation marks are sometimes not correct, replaced by odd symbols.

If you think that the balance is not correct or that a particular redaction needs reconsideration, please say.

This appeal is unredacted by cathy fox blog

Index of Newspaper and Journal articles on this blog [1]

Index of Court Appeals on this blog [2]

[1988] EWCA Crim J0523-2

No. 819/F2/88

IN THE COURT OF APPEAL

Monday, 23rd May 1988

Lord Justice May

Regina

v.

Michael Walter


(Transcript of the Shorthand Notes of Marten Walsh Cherer Ltd., Pemberton House, East Harding Street, London, EC4A 3AS. Telephone No: 01-583 7635. Shorthand Writers to the Court).

MR. T. CRACKNELL appeared on behalf of the Appellant.

JUDGMENT

(As approved by Judge)

MR. JUSTICE KENNEDY: On 22nd January, 1988, in the Crown Court at Beverley, the appellant was convicted and sentenced in respect of three offences of common assault. The sentence in respect of each of those offences was one of six months’ imprisonment suspended for two years, those sentences to run concurrently. He now appeals against sentence by leave of the single judge.

The appellant was at the material time 51 years of age and, in 1970, he was convicted of an offence of indecent assault, for which he served a sentence of imprisonment. From 1985 to 1986 he was the vicar of a church in Hull. Children used to visit the vicarage and the appellant would on occasions take them on outings in groups. Coming to the first common assault, a boy of 10 in June/July, 1985 was playing draughts with the appellant and he accused the appellant of cheating. The appellant then hit him across the head with his left hand, knocking the boy to one side, so that his head hit the kitchen wall. The boy then left and went home in tears.

The second common assault occurred in July/August, 1986, when a girl, who was then 12, visited the vicarage in order to play with the appellant’s train set. He twisted her arm behind her back and she ran home in tears. The pain continued for some time that evening, but she said that she did not think that the appellant had meant to hurt her and that the incident had started as a bit of fun. She returned to the vicarage on subsequent occasions until she was prevented from going there by her parents.

The third offence of common assault related to a girl who was then 14 years of age. On one day during the summer of 1986, she had also been playing with the appellant’s train set. She touched a button which sent the train onto a different track, the appellant stood up and slapped her across the right cheek with the flat of his hand, leaving a red mark, and she then stopped visiting him.

On 10th December, 1986 police officers visited the appellant having been alerted by the Child Watch organisation. In June, 1987 he was arrested. It is important to appreciate that there were in this indictment serious charges of indecent assault, of which he was acquitted.

In the grounds of appeal, which are put forward on his behalf, reference is made to the fact that there was no injury of any lasting nature occasioned to any child, and each of the assaults was a reaction to bad behaviour on the part of a child. There was no evidence of sadism or gratuitous violence. It is submitted that the 1970 incident really has no bearing at all because it was of an entirely different character and here the learned judge was dealing with a man who had not been shown to behave in this way towards children on any prior occasion and who clearly accomplished a great deal of good in the parish which he served.

It seems to us that there is force in all of those submissions and that it was not appropriate here for the learned judge to pass a sentence of imprisonment. The sentence which ought to have been imposed was one of conditional discharge.

Accordingly, the sentences which were imposed will be quashed and there will be substituted for them a sentence of 12 months’ conditional discharge.

LORD JUSTICE MAY: Mr. Cracknell, is it possible for you to undertake to explain to Mr. Walter the effect of the conditional discharge?

MR. CRACKNELL: My Lord, Mr. Walter is here.

LORD JUSTICE MAY: If he is here, you can explain precisely what a conditional discharge means and what the consequences will be if (and we hope not) that conditional discharge is broken in the 12 months from the date of conviction.

MR. CRACKNELL: I will do that now.

LORD JUSTICE MAY: Very well. Thank you very much indeed.

Please note that victims of abuse may be triggered by reading this information. These links are generally UK based.

  • The Sanctuary for the Abused [A] has advice on how to prevent triggers.
  • National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups.
  • One in Four [C]
  • Havoca [D].
  • Useful post on Triggers [E]  from SurvivorsJustice [F] blog.
  • Jim Hoppers pages on Mindfulness [G]  and Meditation [H] may be useful.
  • Hwaairfan blog An Indigenous Australian Approach to Healing Trauma  [J]
  • Survivors UK for victims and survivors of male rape or the sexual abuse of men [K]
  • Voicing CSA group [L] helps arrange survivors meetings in your area
  • A Prescription for me blog Various emotional support links [M]
  • ShatterBoys -“Male Survivors Of Childhood Sexual Abuse Inspiring change, Through Shared Experience Whilst Building Connections…Together We Can Heal” [N]

Links

Posted in cathy fox blog, Child Abuse, Church, Church abuse, Humberside, physical abuse | Tagged , , , , , , , , , , , , , | 1 Comment

Robin Nigel Everett 30 Jun 2003 Court of Appeal (Church)

The several appeals posted today are all relevant to the Christian Church. See a list of all of them here at the end of the day – Index of Court Appeals on this blog [2]

Robin Nigel Everett was the vicar of a church in Leicester. Offences were in 1980-85. Indecent assault. Victim  aged 12

Robin Nigel Everett

Redaction

Some court reports have had victims names redacted and some assault details redacted.

This is a difficult balance –  normally I would think that  I should not “censor” details but on consultation with various people I have taken the decision to redact. This is mainly to protect victims, their friends and relatives from unnecessary detail and to stop the gratification of those who seek salacious details.

In addition to the obvious “victims redaction” to protect victims details, there may also be “assault redaction” across most of the spectrum of abuse. The assaults are left in the charges, but mainly redacted when repeated with reference to the individual. I have also redacted unnecessary detail of assaults.

Redaction may obscure sometimes the legal reason for the appeal, but should make no large difference to the vital information for researchers that these documents contain. That vital information is mainly names of the perpetrators, past addresses, institutions where assaults occurred, the actual charges the perpetrators faced, and dates – on which newspapers are pathetically inaccurate and this information enables the links between people and places and abuse at various times to be ascertained.

Some transcripts may have been subject to automatic reading software and whilst effort has been made to correct these, the text should not be regarded as definitive.  Common mistakes in reprinting here are that quotation marks are sometimes not correct, replaced by odd symbols.

If you think that the balance is not correct or that a particular redaction needs reconsideration, please say.

This appeal is redacted for personal and assault detail by cathy fox blog

Index of Newspaper and Journal articles on this blog [1]

Index of Court Appeals on this blog [2]

[2006] EWCA Crim 1863

No: 200504975/C2

IN THE COURT OF APPEAL


Royal Courts of Justice

Strand

London, WC2

Friday, 30TH June 2003

Mr Justice Crane

Regina

v.

Robin Nigel Everett


Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)

MR M BARLOW appeared on behalf of the APPLICANT

JUDGMENT

(As Approved by the Court)

1.

MR JUSTICE CRANE: On 6th June 2003 in the Crown Court at Leicester, after a trial before His Honour Judge Hammond and a jury, the applicant was convicted by 11 to 1 on seven counts of indecent assault on a female. Counts 1, 3, 4, 5 and 6 related to the first of two complainants and the remaining count on which he was convicted related to the other. He appealed against sentence and that appeal was dealt with ultimately by the Full Court on 30th October 2003, the Court being differently constituted. The appeal against the sentence of 5 years’ imprisonment was dismissed. He renewed his application for leave to appeal against conviction. That was very much out of time but the Single Judge granted the necessary extension of time but refused leave. We now consider, as a Full Court, the renewed application for leave to appeal against conviction.

2. The applicant was the vicar of a church in Leicestershire and he had an affair with the mother of the two complainants after her husband had left her. The applicant became a regular visitor to the family home. The applicant’s own relationship with his wife was in difficulties. There were occasions when the applicant was left in the house together with the two daughters.

3. The first complainant was born in October 1969. She was described for the purpose of the proceedings as A. She contended that between January 1981 and December 1984, when she was between 12 and 15 years old, he indecently assaulted her on a number of occasions by touching her [assault redacted] The offences usually took place when she was in bed but on one occasion it had occurred, according to her, in the vestry of his church.

4. The second complainant was born in July 1976. She contended that between 1984 and 1985, when she was aged 8 and 9, he indecently assaulted her [assault redacted]. She asked what he meant when he said that he should “stop being a dirty old man”. He told her he would get into trouble and she should not tell anyone. Later he made her[assault redacted]. The counts relating to her were counts 7 and 8.

5. The relationship was ended by the mother some time after the applicant returned from working abroad in 1987.

6. There was some evidence given about occasions when the two complainants told others about the offences that they alleged had occurred. It is not necessary, in circumstances we shall outline, to provide details of the history of complaints.

7. The applicant was arrested in August 2002. In interview he denied all the offences, saying they had been fabricated and were a complete fantasy. When he gave evidence he said much the same. There had been some contact between him and the two daughters after the parting, but at all times he completely denied the allegations against him.

8. The grounds of appeal all relate to the summing-up by the learned judge. There were three grounds of appeal. The first related to the direction as to similar fact evidence and mutual admissibility. The second related to the standard of proof and the third related to the good character direction. Mr Barlow tells us today that having further considered recently the learned judge’s direction on similar facts and mutual admissibility, those are submissions that he cannot and does not pursue.

9. We therefore consider the other two. Mr Barlow refers us to the case of R v CAS 99/01664 decided by this Court on the 20th December 1999. It was a case where the Court made certain observations in relation to delayed accusations of sexual conduct and the Court referred to the judgment in the case of R v Percival in 1988. At paragraph 12, the Court in CAS emphasised the need to alert the jury to the consequences of delay.

10. In this particular case, however, Mr Barlow does not make any direct complaint about the directions that the learned judge gave in relation to delay. They are to be found at pages 27 and 28 of the transcript that he has been using and he says that they are adequate. What he says, however, is that in a case where there has been delay, it is all the more important that the learned judge should follow through the concerns about delay and its consequence in the other directions that are given.

11. As to the standard of proof, what the learned judge said was this (pages 24E and F):

“The prosecution cannot ask you to return a verdict of guilty unless the prosecution bring to this state of mind —that having considered all the evidence in the case in relation to each particular count you can say: ‘We are sure that on that charge the defendant is guilty, and we have no real doubt about it.’ If you’re sure in that way, then on that charge you will convict the defendant. If, on the other hand, you’re left in a real doubt about it, then the prosecution have failed to prove the defendant’s guilt and you will acquit the defendant. When I speak of real doubt, I mean simply the sort of doubt which appeals to your common sense as a real doubt. It doesn’t need me to say your knowledge of people and common sense are important factors you’ll bring to bear in your discharge of your serious duties as jurors.”

It is to be noted that at page 28G he also said this when he was dealing with motive and possibility of false allegations:

“At the end of the day it really does come down to this: that in relation to count 1, 3, 4, 5 and 6, you must be sure that [L] was telling the truth in relation to count 7, 8 and 9, you must be sure that [A] was telling the truth.”

12. Mr Barlow’s complaint is that, having first dealt correctly with the standard of proof, the learned judge qualified it by reference to a real doubt. The advice in the Judicial Studies Board Specimen Directions is that it is not usually necessary to use the phrase “beyond reasonable doubt” except where counsel in their speeches have referred to it. However, there cannot be anything wrong, as Mr Barlow concedes, in a reference to proof beyond reasonable doubt, however desirable it may be to keep the direction simple. He contends, however, that a mention of “real” in effect lowers the standard that the jury have to be satisfied about. This Court accepts that, generally speaking, the less the basic direction on the standard of proof is qualified or explained, the better. However, we do not accept the proposition that mention of a real doubt is something that is more prejudicial to the defendant than the mention of a reasonable doubt. Indeed it is in our view highly arguable that the phrase “reasonable doubt” might be less advantageous to the defendant in a particular case than the phrase “real doubt”.

13. Looking at the directions as a whole and bearing in mind what he said later, we are satisfied that the direction as to standard of proof properly got across to the jury the necessity of being sure.

14. We turn to the question of character. What the learned judge said was this (page 27C):

“The defendant is a man aged 69, and is of good character, and you’ve heard today from three people who have spoken very highly of him and said they would have no concern with him being with children. Good character can’t by itself provide a defence to a criminal charge, but it is evidence which is taken into account in the defendant’s favour in the following ways: first, the defendant has given evidence, and as with any person of good character, it supports his credibility. This means it’s a fact which you should take into account when deciding whether you believe his evidence. And secondly, the fact that he is a person of good character may mean that he is less likely than otherwise might be the case to commit a crime, and certainly these are matters to which you should have regard in the defendant’s favour. It is for you to decide what weight you should give to them in this case.”

Then immediately he went on to deal directly with the question of delay.

15. Mr Barlow refers us to the passage in CAS at paragraph 23, where they pointed out that the good character direction may need to be expanded in order to remind the jury of the defendant’s good character and that it is relevant at all times up to the trial. At that stage the Judicial Studies Board direction was set out in its then wording. The essence of it remains the same in its present version. Where a person has a positively good character and particularly if the defendant is a person of unblemished character of mature years it may, as the Judicial Studies Board says, be pointed out to the jury with such words as the following:

“having regard to what you know about this defendant, you may think that he is entitled to ask him to give [considerable] weight to his good character in deciding whether the prosecution has satisfied you of his guilt.”

16. In essence Mr Barlow accepts the direction as far as it went was correct but he says that this was a case where it was, he would submit, essential to add the additional words.

17. We would certainly not wish to discourage the adding of those words in appropriate cases. But it is plainly a matter for the judge’s discretion. In this case the jury were squarely faced with the fact that the defendant is a man of 69. They knew perfectly well that he was a clergyman. There was reference to the very recent evidence, given that very day, of the three people who spoke highly of him. The lack of an additional sentence emphasising in his particular case good character does not appear to us to have been essential to have resulted in any significant flaw in an otherwise satisfactory summing-up.

18. Standing back, considering the summing-up as a whole and in particular the passages referred to, we cannot see that this summing-up was defective, or that the matter was not fairly and properly laid before the jury. We come to conclusion that the verdicts were here safe. The consequence is that this application for leave must be refused.

Please note that victims of abuse may be triggered by reading this information. These links are generally UK based.

  • The Sanctuary for the Abused [A] has advice on how to prevent triggers.
  • National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups.
  • One in Four [C]
  • Havoca [D].
  • Useful post on Triggers [E]  from SurvivorsJustice [F] blog.
  • Jim Hoppers pages on Mindfulness [G]  and Meditation [H] may be useful.
  • Hwaairfan blog An Indigenous Australian Approach to Healing Trauma  [J]
  • Survivors UK for victims and survivors of male rape or the sexual abuse of men [K]
  • Voicing CSA group [L] helps arrange survivors meetings in your area
  • A Prescription for me blog Various emotional support links [M]
  • ShatterBoys -“Male Survivors Of Childhood Sexual Abuse Inspiring change, Through Shared Experience Whilst Building Connections…Together We Can Heal” [N]

Links

Posted in cathy fox blog, Child Abuse, Child sexual abuse, Church, Church abuse, Court, East Midlands, Leicestershire | Tagged , , , , , , , , , , , , , , , , , | 1 Comment

Lyons 10 Jun 1975 Court of Appeal (Church)

The several appeals posted today are all relevant to the Christian Church. See a list of all of them here at the end of the day – Index of Court Appeals on this b

Lyons offences were on boys of an age that would not now be an offence, hence redaction of some personal detail. He was sentenced with two others, Patrick and  Smith.

Redaction

Some court reports have had victims names redacted and some assault details redacted.

This is a difficult balance –  normally I would think that  I should not “censor” details but on consultation with various people I have taken the decision to redact. This is mainly to protect victims, their friends and relatives from unnecessary detail and to stop the gratification of those who seek salacious details.

In addition to the obvious “victims redaction” to protect victims details, there may also be “assault redaction” across most of the spectrum of abuse. The assaults are left in the charges, but mainly redacted when repeated with reference to the individual. I have also redacted unnecessary detail of assaults.

Redaction may obscure sometimes the legal reason for the appeal, but should make no large difference to the vital information for researchers that these documents contain. That vital information is mainly names of the perpetrators, past addresses, institutions where assaults occurred, the actual charges the perpetrators faced, and dates – on which newspapers are pathetically inaccurate and this information enables the links between people and places and abuse at various times to be ascertained.

Some transcripts may have been subject to automatic reading software and whilst effort has been made to correct these, the text should not be regarded as definitive.  Common mistakes in reprinting here are that quotation marks are sometimes not correct, replaced by odd symbols.

If you think that the balance is not correct or that a particular redaction needs reconsideration, please say.

This appeal is redacted for some personal detail by cathy fox blog

Index of Newspaper and Journal articles on this blog [1]

Index of Court Appeals on this blog [2]

[1975] EWCA Crim J0610-4

No. 1672/C/75

IN THE COURT OF APPEAL

Tuesday, 10thJune1975

Lord Justice James

Regina

v.

[redacted] Lyons


(From the Shorthand Notes of Cherer & Co., 34 Essex Street, Strand, London, WC2R 3AT. Telephone No. 01-583 4121. Shorthand Writers to the Court.)

MR. N. TAYLOR, Q.C. and MR. C. MAGILL appeared as Counsel for the Appellant.

JUDGMENT

LORD JUSTICE JAMES: On the 24th March last at the Central Criminal Court [redacted] Lyons, the Appellant, pleaded guilty to two offences of gross indecency. The offences were committed on the 6th July, 1974 and the gross indecency was committed with two youths, one just over the age of eighteen and another youth of sixteen. For those offences the Appellant was sentenced to a term of two years’ imprisonment concurrently. He appeals to this Court by leave of the single Judge. There were others involved on the indictment, in particular the Appellant’s friend named Smith who was twenty-eight years of age. He was sentenced to five years’ imprisonment in all for offences of indecent assault, attempted buggery and publishing obscene articles. Another person named Patrick, who was forty years of age, was sentenced to two years’ imprisonment for indecent assault on male persons and gross indecency, the higher sentence being imposed on the gross indecency charges. The activities of the co-accused were not confined to the 6th July; those of the Appellant were.

The facts can be stated quite shortly. The Appellant was of good character up to these offences. He had educated himself and trained himself into the Church, having attended a theological college. He had various positions in the Church and the post that he held at the time of these matters was one that he had recently taken up as curate at a church in North London. The offences were committed after he had been with his friend, the co-accused Smith, to an organ recital. The two of them had gone with five youths, two just over the age of eighteen and the others younger, the youngest being some fourteen years of age. They had gone to licenced premises where they had taken alcoholic refreshment, beer and gin, and they had gone then to the flat occupied by the co-accused Smith.

Taking the facts from there on from the statement that was subsequently made by the Appellant himself it appears from what he says that everyone got rather boisterous ” …..making a lot of noise and then someone turned the light out in the room we were in. I am not sure how many of us were there, but it was something like six to eight people. I remember someone trying to take my trousers off and touching me. Everyone was generally engaged in mutual masturbation and were in different stages of undress. I remember that I masturbated AB and he masturbated me. I also remember that I orally masturbated one of the boys, but I’m not sure which one. This was not a passionate affair, it was just a lot of people behaving stupidly.” And, having regard to what was later said in the medical report, it is right to point out that at the conclusion of that statement, naming another boy, he says: ” … although I do like”, so-and-so, “and would have liked to have had a relationship with him, …. the opportunity never presented itself apart from being able to put my arm round him while others were present.” That statement was made in connection with his observation that he had not had any relationship with any of the other boys on that occasion.

The Court has available, as did the trial Court, a report from a senior and experienced probation officer, Miss Putnam, who, having interviewed the Appellant, came to the conclusion that the difficulties and anxieties and “even turmoil of Mr. Lyons’ emotional life come from the conflicts he experiences in his sexual orientation.” That is confirmed by the two medical reports obtained from Dr. Snowdon of the Bethlem Royal Hospital and the Maudsley Hospital which we have had an opportunity to consider. Miss Putnam points out that the consequences of the conviction for these offences have been great indeed. The Appellant is full of shame and feels degraded by what he has done. He has lost his future, it would appear, so far as the Church is concerned in relation to his active service as a priest. But let it be said his future in respect of the Church, so far as advice and comfort is concerned, is assured in that his spiritual adviser, the Reverend Dean, has continued to show even greater interest in him and to give all the support that can be given, and the Court is assured that that will be available in the future.

The explanation put forward from the result of medical investigation or psychiatric investigation is that at the time this Appellant, who is bisexually orientated, had his social judgment impaired by what had gone on before the offence took place and by the circumstances and behaviour of those who were with him at that time. It is suggested that this experience, resulting in the conviction and sentence, will ensure that nothing of this sort will occur again.

In the second report of Dr. Snowdon it is said that imprisonment “serves merely as a punishment and cannot be thought of as therapeutic in any sense. Indeed, I believe it serves as a counter-therapeutic measure in two respects: firstly by depriving the community of the excellent social work with old people that he had just commenced in Camden Town; secondly, by increasing the chance of him remaining bitter and chronically tense as a result of what he sees as the unfairness of the law.”

It is right to say that after the conviction and his suspension from duties in the Church he did take up employment under the London Borough of Camden, working with elderly people, and he has served the community so well in respect of that that the local authority have written two letters which in their totality confirm that employment in that field would be open to him if he were to regain his freedom as a result of this appeal, and they support his appeal.

Mr. Taylor, who appears on behalf of the Appellant, has argued everything that can be argued on behalf of the Appellant. It is right, as has been said, that both boys clearly had considerable sexual experience of this sort before the 6th July when this Appellant became involved with them. Indeed, none of the boys who were present were members of or attached to the church where the Appellant was a curate. But, looking at the evidence, it is quite clear that those boys who were present when the offences were committed knew the Appellant as the curate of a church.

It is argued properly that at the time of these offences the Appellant was coming out of some acute emotional disturbance over the breakdown of a relationship he had had with a young lady, which he had hoped would come to fruition in a marriage but which was, in fact, terminated.

Although it does not appear as a ground of appeal Mr. Taylor has argued that the sentence of two years’ imprisonment upon the Appellant is inequitable when one considers the sentence of two years’ imprisonment imposed upon the co-defendant Patrick, whose offences were, as to some of them, more grave in their classification though not necessarily in their circumstance and whose offences were in fact stretched over a period of some four years and not confined to one particular date.

Disparity of sentence is a perfectly proper argument to put forward. It is a difficult argument upon which to succeed because, if only for this reason, that the trial Judge has an advantage over any appellate court in having had the matter placed before him on behalf of all those who appear before him at the same time. We cannot find here anything that would lead us to interfere with the sentences on the Appellant on the ground of disparity with the sentences imposed upon Patrick.

The main burden of the argument of Mr. Taylor is that bearing in mind particularly the terms of Section 20 of the Powers of Criminal Courts Act 1973, which provides that a Court should not pass a sentence of imprisonment upon a person who has not been sentenced previously to a term of imprisonment unless there is no other method of dealing with that person appropriately, the advantages and disadvantages of allowing this man his freedom as against sentencing him to prison are such that make the balance come down heavily in favour of a non-custodial method of dealing with the Appellant and on that basis it is urged that these sentences should be quashed.

One accepts without hesitation that prison is unlikely to do the Appellant any good. One accepts without hesitation the argument that life in prison for him will be difficult and will subject him to pressures which cannot be of any advantage or good for him. One accepts that he was a person of good character and one accepts that since conviction he has shown himself keen and eager to do the good work that he has been doing and which has been in the interests of the public in the Camden area of London. Looking at the matter from the point of view of the individual alone, the Appellant alone, there is considerable force in the arguments that are put forward by Mr. Taylor on his behalf.

Mr. Taylor has invited our attention to the case of R. v. Willis , which is reported in (1975) 1 Weekly Law Reports, page 292 , and in particular to the passages in the judgment of Lord Justice Lawton commencing at page 295 and going on to page 296 in which the learned Lord Justice sought to give some general guidelines to courts faced with the task of sentencing persons for sexual offences and drew attention to headings under which circumstances can properly be considered when sentence has to be passed in such cases – such as physical injury, moral corruption, abuse of authority and trust, mental imbalance and so forth.

It is not without significance that the learned Lord Justice in that case did say that it is not the label of indecent assault which is important but the nature of the act. The same thing applies if one uses those words in the offence of gross indecency. The learned Lord Justice went on: “In many cases it amounts to no more than putting a hand on or under clothing in the region of the testicles or buttocks. Such cases are not serious. In some the assault may take the form of a revolting act of fellatio, which is as bad as buggery, maybe more so. Sentences should reflect the seriousness of the act constituting the indecent assault.”

It is not indecent assault and there is no element of corruption on the particular facts of this case, but it does remain a case in which the circumstances have to be taken into account in assessing what the proper method of dealing with the offender is. Mr. Taylor has pointed out one side of the coin, and rightly so. The other side of the coin is this, that one of the purposes of passing a sentence is to make clear the seriousness which the Courts on behalf of the public attribute to the offending behaviour. Here we have the circumstance of a man of the cloth, known to be such, going with young boys to what he must have known was going to be an orgy or might develop into an orgy and not resisting whatever temptations, pressures or inclinations he may have felt and indulging in two acts against which the public, although sorry for him in some ways, would nevertheless revolt and would regard as meriting punishment.

Having considered carefully all the arguments addressed to us we cannot find that these sentences are wrong in principle or excessive and the appeal is dismissed.

Please note that victims of abuse may be triggered by reading this information. These links are generally UK based.

  • The Sanctuary for the Abused [A] has advice on how to prevent triggers.
  • National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups.
  • One in Four [C]
  • Havoca [D].
  • Useful post on Triggers [E]  from SurvivorsJustice [F] blog.
  • Jim Hoppers pages on Mindfulness [G]  and Meditation [H] may be useful.
  • Hwaairfan blog An Indigenous Australian Approach to Healing Trauma  [J]
  • Survivors UK for victims and survivors of male rape or the sexual abuse of men [K]
  • Voicing CSA group [L] helps arrange survivors meetings in your area
  • A Prescription for me blog Various emotional support links [M]
  • ShatterBoys -“Male Survivors Of Childhood Sexual Abuse Inspiring change, Through Shared Experience Whilst Building Connections…Together We Can Heal” [N]

Links

Posted in Camden, cathy fox blog, Child Abuse, Church, Church abuse, Court, Judges Remarks, London | Tagged , , , , , , , , , , , , , , , , , , , , , , , , | 1 Comment

Paul Frederick Bridgewater 24 Jan 2003 Court of Appeal (Salvation Army)

The several appeals posted today are all relevant to the Christian Church. See a list of all of them here at the end of the day – Index of Court Appeals on this blog [2]

Victim aged 11.

Redaction

Some court reports have had victims names redacted and some assault details redacted.

This is a difficult balance –  normally I would think that  I should not “censor” details but on consultation with various people I have taken the decision to redact. This is mainly to protect victims, their friends and relatives from unnecessary detail and to stop the gratification of those who seek salacious details.

In addition to the obvious “victims redaction” to protect victims details, there may also be “assault redaction” across most of the spectrum of abuse. The assaults are left in the charges, but mainly redacted when repeated with reference to the individual. I have also redacted unnecessary detail of assaults.

Redaction may obscure sometimes the legal reason for the appeal, but should make no large difference to the vital information for researchers that these documents contain. That vital information is mainly names of the perpetrators, past addresses, institutions where assaults occurred, the actual charges the perpetrators faced, and dates – on which newspapers are pathetically inaccurate and this information enables the links between people and places and abuse at various times to be ascertained.

Some transcripts may have been subject to automatic reading software and whilst effort has been made to correct these, the text should not be regarded as definitive.  Common mistakes in reprinting here are that quotation marks are sometimes not correct, replaced by odd symbols.

If you think that the balance is not correct or that a particular redaction needs reconsideration, please say.

This appeal has been redacted for assults by cathy fox blog

Index of Newspaper and Journal articles on this blog [1]

Index of Court Appeals on this blog [2]

[2003] EWCA Crim 158

No. 2002/02051/Y2

IN THE COURT OF APPEAL CRIMINAL DIVISION

Friday 24 January 2003

Mr Justice Stanley Burnton and

Regina

v.

Paul Frederick Bridgewater


Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020–7421 4040 (Official Shorthand Writers to the Court)

MR M GREY appeared on behalf of THE APPELLANT

JUDGMENT

(As Approved by the Court)

Friday 24 January 2003

MR JUSTICE STANLEY BURNTON:

His Honour Judge Fawcus will give the judgment of the court.

HIS HONOUR JUDGE FAWCUS:

1. On 26 July 2002, in the Crown Court at Wolverhampton, this appellant was convicted on an eight-count indictment containing two offences of indecent assault on a male, one offence of indecency with a child and five offences of buggery. He was sentenced by His Honour Judge Chapman to five years’ imprisonment on each charge of buggery, to two years’ imprisonment on the indecency with a child and one of the indecent assaults, and 12 months on the other indecent assault, all those sentences to run concurrently. He appeals against those sentences with the leave of the single judge.

2. These charges represented an escalating course of conduct over a period of upwards of four years between the end of 1990 and early 1995. The appellant is now aged 41. He was therefore in his late twenties when this behaviour started. His victim at the beginning of their acquaintance was a 9 year old schoolboy.

3. The appellant was a youth leader in the Salvation Army when he and his family met the victim who soon became friendly with the appellant’s family and became a regular visitor. He stayed at their home overnight and joined them in various activities. The abuse first began when the boy, then aged 11, slept in the bed of the appellant and his wife. The appellant would kiss the boy on the mouth and [assault redacted]. The abuse progressed to the boy [assault redacted] The boy said that this happened on a regular basis when he stayed at the home of the appellant’s family, usually in the living room and usually when the appellant’s wife had gone to bed. The abuse also took place on two holiday trips when he was driven home in the appellant’s car. At the time the appellant was a lorry driver and would take the boy on trips, often stopping in a lorry park and sleeping in the cab. Abuse would also take place on these occasions.

4. The buggery and abuse took place over a five-year period up until the boy was aged about 16. It was not until April 2000 that the boy told his mother what had happened. On 20 July 2000, the appellant was arrested. When interviewed he denied committing any sexual offence.

5. In passing sentence, having recited the background to which we have already referred, the judge said:

“You held a position of authority in the Salvation Army, and because of that his parents trusted you. You won his friendship and love, but then used it to your advantage for your own perverted purposes.”

Pausing there, it is one of the grounds of appeal that the judge failed to take into account that this behaviour was consensual. But it has to be recognised, as indeed the judge did, that the word “consensual” is in the context of an 11 year old boy. The judge went on:

“. there were at least 15 occasions when you buggered him.”

It is clear that there were only five counts, and the judge should only have been sentencing on the five counts rather than the fifteen occasions. There is clear authority on that, but in our judgment that makes no difference to the way the judge, or indeed this court, should approach the appropriate sentence on the facts of this case. He continued:

“I bear in mind you have not been convicted of rape. If you had been, if that had been the allegation, the sentence here would have been nine or ten years.”

He then made the point:

“. he [the boy] was not in a position to resist you physically, and did not want really to resist you. because he liked and enjoyed having your affection.”

6. The grounds of appeal which have been set out succinctly by Mr Grey, and which he has elaborated upon this morning, are the ones to which we have already referred. The other main ground of appeal is the appellant’s good character -not just in the sense that he had not offended before, but there was very positive evidence of good character before the court. As we observed to Mr Grey, unhappily in cases where people in authority who have access to young boys behave in this way, it is very often that they are of good character.

7. This was disgraceful conduct over a long period. The eventual coming to light of it must have caused the most terrible pain and distress not only to the boy’s family, but to the appellant’s own family. We are told by Mr Grey that, notwithstanding what he has done, the appellant’s family are here in court today to support him. Unfortunately this situation very often arises. The people who are punished almost as much, if not more than the transgressor himself, are the family.

8. We have to look at the public interest where this sort of behaviour occurs. The sentence of the court was not out of step with offences of buggery. We were referred to R v Jacks (12.4.2002 [2002] EWCA Crim 102 ) where there are certain similarities: the age of the victim and the age of the appellant in that case were very similar; the appellant in that case was a Roman Catholic priest. But the difference was that the nature of offending in that case was very much less serious, and in particular did not involve the offence of buggery, as Mr Grey has accepted.

9. In all those circumstances we are unable to say that the judge passed a sentence which could be said either to be wrong in principle (and that has not been suggested), or indeed to be manifestly excessive. In those circumstances this appeal is dismissed.

Please note that victims of abuse may be triggered by reading this information. These links are generally UK based.

  • The Sanctuary for the Abused [A] has advice on how to prevent triggers.
  • National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups.
  • One in Four [C]
  • Havoca [D].
  • Useful post on Triggers [E]  from SurvivorsJustice [F] blog.
  • Jim Hoppers pages on Mindfulness [G]  and Meditation [H] may be useful.
  • Hwaairfan blog An Indigenous Australian Approach to Healing Trauma  [J]
  • Survivors UK for victims and survivors of male rape or the sexual abuse of men [K]
  • Voicing CSA group [L] helps arrange survivors meetings in your area
  • A Prescription for me blog Various emotional support links [M]
  • ShatterBoys -“Male Survivors Of Childhood Sexual Abuse Inspiring change, Through Shared Experience Whilst Building Connections…Together We Can Heal” [N]

Links

Posted in cathy fox blog, Child Abuse, Child sexual abuse, Church, Church abuse, Judges Remarks, West Midlands | Tagged , , , , , , , , , , , , , , , , , , , , | 1 Comment

Colin Ivor Pritchard 26 Mar 2009 Court of Appeal (Church)

The several appeals posted today are all relevant to the Christian Church. See a list of all of them here at the end of the day – Index of Court Appeals on this blog [2]

Colin Ivor Pritchard was an ordained vicar in the Church of England and in 1980 took up his position as the parish priest of a church in Wellingborough. Offences were in the early 1980s. Gross Indecency. Victims 12 years and above.

Redaction

Some court reports have had victims names redacted and some assault details redacted.

This is a difficult balance –  normally I would think that  I should not “censor” details but on consultation with various people I have taken the decision to redact. This is mainly to protect victims, their friends and relatives from unnecessary detail and to stop the gratification of those who seek salacious details.

In addition to the obvious “victims redaction” to protect victims details, there may also be “assault redaction” across most of the spectrum of abuse. The assaults are left in the charges, but mainly redacted when repeated with reference to the individual. I have also redacted unnecessary detail of assaults.

Redaction may obscure sometimes the legal reason for the appeal, but should make no large difference to the vital information for researchers that these documents contain. That vital information is mainly names of the perpetrators, past addresses, institutions where assaults occurred, the actual charges the perpetrators faced, and dates – on which newspapers are pathetically inaccurate and this information enables the links between people and places and abuse at various times to be ascertained.

Some transcripts may have been subject to automatic reading software and whilst effort has been made to correct these, the text should not be regarded as definitive.  Common mistakes in reprinting here are that quotation marks are sometimes not correct, replaced by odd symbols.

If you think that the balance is not correct or that a particular redaction needs reconsideration, please say.

This appeal is redacted by cathy fox blog for personal and assault detail

Index of Newspaper and Journal articles on this blog [1]

Index of Court Appeals on this blog [2]

[2009] EWCA Crim 965

No: 200804588/D4

IN THE COURT OF APPEAL CRIMINAL DIVISION

Thursday, 26th March 2009

Lord Justice Dyson

Regina

v.

Colin Ivor Pritchard


Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)

Mr I Peart QC appeared on behalf of the Appellant

Miss A Cotcher QC appeared on behalf of the Crown

JUDGMENT

(As approved by the Court)

1. LORD JUSTICE DYSON: On 28th July 2008 in the Crown Court at Northampton the appellant pleaded guilty on rearraignment to four counts of indecent assault on a male, contrary to section 15(1) of the Sexual Offences Act 1956, counts 2, 4, 6 and 9 on the indictment, and was sentenced to 5 years’ imprisonment concurrent on each count. He also pleaded guilty to three counts of indecency with a child, counts 3, 5 and 7, contrary to section 1(1) of the Indecency with Children Act 1960 and was sentenced to 5 years’ imprisonment on each of those counts concurrently with each other and concurrently with the other terms of imprisonment. The total sentence was therefore one of 5 years’ imprisonment. He appeals against conviction on counts 5 and 7 and against sentence with the leave of the Full Court.

2. The appellant who is now 64 years of age was an ordained vicar in the Church of England and in 1980 took up his position as the parish priest of a church in Wellingborough. The victim of all the counts except for count 9 was A, who was born on [redacted] 1968. He was a choirboy at the church and later became an altar boy. When he was about 12 years of age, A asked the appellant if there were any odd jobs he could do to supplement his pocket money. The appellant found him odd jobs to do.

3. The appellant befriended the child, bought him meals, encouraged him to stay overnight and soon started to kiss and cuddle him. This behaviour escalated to include mutual masturbation and oral sex and continued over a 3 year period when A was aged between 12 and 14. That was the subject of counts 2 to 7.

4. The victim of count 9, B, was born [redacted] 1965. He had been sexually abused by another priest who is now deceased. That priest was a friend of the appellant and over the New Year when B was aged 14 or 15, B was visiting the appellant and the other priest. Both priests plied him with alcoholic drinks on New Year’s Eve and when the boy got up in the morning he went downstairs and found the appellant alone in the kitchen. The appellant grabbed his genitals for a moment before releasing him. That was the subject of count 9.

5. The basis of the appeal against conviction is that the convictions on counts 5 and 7 are unsafe because until the law was changed, with effect from 11th January 2001, the offence of committing an act of gross indecency with a child, contrary to section 1(1) of the 1960 Act could only be committed where the complainant was a child under the age of 14. Pursuant to section 39 of the Criminal Justice Court Services Act 2000, the age of a complainant for the purposes of section 1(1) of the 1960 Act was increased to 16 years. It is submitted on behalf of the appellant, and accepted by the Crown, that M was over the age of 14 throughout the period covered by count 7. That conviction must therefore be quashed.

6. The position relating to count 5 is this. That count charged the appellant with committing an act of gross indecency on A between 6th November 1981 and 7th November 1982. As we have said, A was born on [redacted] 1968. Accordingly he reached his 14th birthday [redacted] covered by count 5. The appellant pleaded guilty to that count on the footing that it was a sample count which particularised a course of conduct which took place between 6th November 1981 and 7th November 1982. Miss Cotcher QC has told us that the case on this count and indeed, as we understand it other counts too, was opened on the basis that the offending took place on most Saturdays during the year. It was to that count, understood in that way, that the appellant pleaded guilty. It is submitted on behalf of the appellant that the conviction on count 5 cannot stand because the appellant, 30 years later, is unable to say how often and when the gross indecency acts took place during the relevant year. But we are satisfied that, having regard to the way in which this count was presented by the Crown and to which the appellant pleaded guilty, he must have pleaded guilty to acts of gross indecency on occasions other than the last day of the period covered by the count. In these circumstances the conviction on count 5 is safe and the appeal against conviction on that count is dismissed.

7. We turn to the appeal against sentence. The maximum sentence that could have been passed at the material time in respect of the offences contrary to section 1(1) of the 1960 Act was 2 years’ imprisonment. This was increased to 10 years’ imprisonment by section 52 of the Crime (Sentences) Act 1997. Section 52 was brought into force on 1st October 1997 by Article 2(k) of the Crime (Sentences) Act 1997 (Commencement No 2) Order 1997. Article 5(a) of that order provided that section 52 did not apply where the offence was committed before 1st October 1997. It follows that the 5 year sentences passed in respect of count 3, 5 and 7 were ones in respect of which the maximum sentence that could have been imposed was one of 2 years’ imprisonment. Accordingly, we quash the sentences of 5 years’ imprisonment passed in respect of those three counts and we substitute for them sentences of 15 months’ imprisonment concurrent with each other and concurrent with the other sentences.

8. There is, however, a general appeal against sentence on the basis that total sentences of 5 years’ imprisonment were manifestly excessive. The particular criticism that is made of the judge’s sentences is not so much that 5 years was too long of itself. It is rather that the judge indicated at page 5 of his sentencing remarks that, had the appellant not pleaded guilty, the total sentences that he would have passed would have been concurrent sentences of seven-and-a-half years’ imprisonment. Having stated that, the judge went on to say:

“To give you credit, as I shall and faithfully do, the sentence is one of five years’ imprisonment, concurrent on each count.â€

It is clear that the credit to which the judge was there referring was the credit for the pleas of guilty. What is said on behalf of the appellant is that the judge failed to give further credit to the appellant for the significant personal mitigation which was available to him. The judge referred to the personal mitigation on the first page of his sentencing remarks when he said:

“I take into account in your favour, quite clearly, the many, many positive things that have been written and spoken about you, which describe a very different person from the one that was seen by the two victims in your case. Obviously you have no previous convictions, but it is a man of positive good character that I have to sentence, I accept and clearly a highly respected man, a caring man, a man of integrity and someone, I have heard, was respected and highly regarded both inside the Church and out. You are plainly seen as a dedicated parish priest and you have been missed.â€

The judge went on to say that he was mindful of the passage of time, the fact that the impact of a prison sentence was going to be grave in the case of the appellant, having regard to his age and also his medical report which described his decline in health. The judge said that he took account of all those things. It is submitted that, although the judge said that he had taken these matters into account on the first page of his sentencing remarks, he lost sight of them when he came to say what he said towards the end of his sentencing remarks in the passage to which we have already referred. We cannot accept this submission. It seems to us that the judge clearly took into account the personal mitigation in reaching the conclusion that, if the appellant had contested these charges, he would have imposed a total sentence of seven-and-a-half years’ imprisonment. He took into account the mitigation and the unquestionably grave aggravating factors that existed in this case in arriving at that seven-and-a-half year figure. It then remained for him only to reduce that figure to reflect the credit that the appellant was entitled to receive for his pleas of guilty. In our judgment, the foundation for the appeal against sentence that the judge failed to take into account the personal mitigation is not there. In our judgment, these sentences were the correct sentences to impose for this very serious offending, over a prolonged period of time. We accordingly allow the appeal against sentence to the extent indicated but otherwise the appeal against sentence is dismissed.

Please note that victims of abuse may be triggered by reading this information. These links are generally UK based.

  • The Sanctuary for the Abused [A] has advice on how to prevent triggers.
  • National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups.
  • One in Four [C]
  • Havoca [D].
  • Useful post on Triggers [E]  from SurvivorsJustice [F] blog.
  • Jim Hoppers pages on Mindfulness [G]  and Meditation [H] may be useful.
  • Hwaairfan blog An Indigenous Australian Approach to Healing Trauma  [J]
  • Survivors UK for victims and survivors of male rape or the sexual abuse of men [K]
  • Voicing CSA group [L] helps arrange survivors meetings in your area
  • A Prescription for me blog Various emotional support links [M]
  • ShatterBoys -“Male Survivors Of Childhood Sexual Abuse Inspiring change, Through Shared Experience Whilst Building Connections…Together We Can Heal” [N]

Links

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