Compo culture and the child abuse panic

In a debate on the Crown Prosecution Service (CPS) in the UK Houses of Parliament on 23 June 2015, the solicitor general described the problem of child sexual exploitation as ‘a national emergency’. When a law officer engages in such hyperbole, it shows how much hysteria surrounds the subject of child abuse today.

One of the driving factors behind this hysteria is the compensation industry. This plays a key role in the explosive amplification of claims of abuse. It began in the US, with the upsurge in litigation about clerical-abuse scandals in the 1980s. As Philip Jenkins noted in Pedophiles and Priests: Anatomy of a Contemporary Crisis (1996): ‘Intensive litigation and high-damages awards effectively create a range of interest groups with a powerful interest in discovering and exposing new clerical-abuse cases, and in the most visible public forum.’

Ironically, as Jenkins points out, this led to institutions seeking insurance cover to protect themselves against future claims, but the existence of insurance only fuelled more multimillion-dollar claims. Intense media coverage created a snowball effect with more and more past victims, both real and imaginary, coming forward to complain. Self-help books like The Courage to Heal (1988) popularised the idea that abuse causes lifelong damage. Similar claims were replicated in lawsuits claiming huge damages for expensive, prolonged therapy and loss of a lifetime’s earning potential.

Victims’ lawyers have become ‘claims-makers’ in the sociological sense: that is, they make political demands in the public sphere. They demand that laws on limitation be amended (that is, a law which forbids someone being charged with a crime that was committed more than a specified number of years ago) to enable stale claims to be litigated. They also press courts continually to expand the grounds on which institutions can be held liable for others’ misconduct.

While many lawyers are genuinely motivated by a desire to obtain justice for their clients, there is an undeniable element of self-interest. The considerable awards afforded by abuse law cannot be ignored from a business perspective. Another feature of lawyers’ work is the criminal dimension: their clients are making extremely serious criminal accusations – a far cry from ‘tripping and slipping’ claims.

Millionaire ambulance-chasers

A handful of firms do this specialist work in the UK. One is Abney Garsden, and another is Pannone (now part of the Australian giant, Slater and Gordon, the first law firm in the world to be floated on a stock exchange).

These law firms like to present their services in therapeutic terms, and downplay the money side of things. As Slater and Gordon put it: ‘[A]side from any monetary claim for compensation, we help victims of sexual and physical abuse in achieving recognition of the trauma that they have suffered, and hopefully some closure.’

Since the 1990s, English lawyers could take cases on a ‘no win, no fee’ basis. As in the US, group claims are attractive, as high volumes generate extremely high fees. In 2009, the oil company Trafigura settled a claim in the English High Court by 30,000 Ivorians, over the dumping of toxic waste. The claimants received £1,000 each. Trafigura’s own legal costs were £14million. By contrast, the claimants’ lawyers’ bill was a staggering £104.8million, including a success fee of £43million. The Court of Appeal reduced law firm Leigh Day’s bill to £83million, with the success fee being cut to £25million. The costs dispute was then settled confidentially. Leigh Day has since been active in campaigning for a statutory inquiry into historic sex abuse in UK institutions.

New rules laid down in 2013 now mean that injury lawyers acting for claimants are limited to claiming their legal costs from the losing party, together with a success fee capped at 25 per cent payable out of any damages secured for their clients (excluding damages for future care and loss). Last year, the British-American law firm AO Advocates told the BBC it wanted to see US-style seven-figure damages for historic abuse in UK courts, instead of the going rates of £30,000 to £50,000. AOA partner Ann Olivarius argued that damages should act as a deterrent: ‘If people don’t pay real money to stop this problem, the problem is not going to end.’ But abuse law firms have an obvious financial interest in this argument: if damages rise, so do their success fees.

Jumping on the bandwagon

A problem with group claims is known as the ‘bandwagon effect’. As Lord Woolf, a one-time Lord Chief Justice, explained in his report Access to Justice in 1996: ‘The bandwagon effect, in cases such as benzodiazepine, has the effect of swamping stronger claims with a host of weaker claims, many of them with very questionable foundation, and making the action as a whole unviable.’

There is no reason to think that this problem is any different with abuse claims. Consider this advertisement in the prisoners’ newspaper Inside Time, asking ‘Do you want to claim for your lost childhood?’. It is bound to elicit interest, not just from genuine victims of abuse, but also from opportunist pseudo-victims. This poses a dilemma for claimant firms – or at least it should. How do they filter out spurious claims?

Unlike a train crash or a disaster like Thalidomide, where the damage is obvious, an acute problem with historic abuse claims is the absence of direct evidence, apart from the claimant’s unsupported word. An uncritical approach to claimants, then, is going to make it easier for those who are either mistaken or malicious to make false allegations.

A parody of justice

A further problem is the general acceptance of the notion of ‘corroboration by volume’, where claims of sexual abuse are involved. This means that the greater the volume of claims, the more they are seen as mutually supporting. So weak claims reinforce strong ones, and vice versa. Indeed, a mass of weak claims is also taken as compelling. So there is little incentive to weed out weak claims.

Back in 1924, the then Lord Chief Justice warned of the danger of this approach:

‘The risk, the danger, the logical fallacy is indeed quite manifest to those who are in the habit of thinking about such matters. It is so easy to derive from a series of unsatisfactory accusations, if there are enough of them, an accusation which at least appears satisfactory. It is so easy to collect from a mass of ingredients, not one of which is sufficient, a totality which will appear to contain what is missing.’ (1)

But in the topsy-turvy world of historic abuse cases today, the vaguer the claim, the stronger it is considered to be. The criminal courts have ruled that complainants can be utterly unspecific about dates. This makes the defence’s task impossible, because he cannot identify any documents or witnesses to rebut unparticularised allegations, or challenge any inconsistency. Such a cavalier and lopsided approach would not be tolerated in the commercial or chancery courts, where very serious allegations like fraud may not be raised without proper particulars, and credible supporting evidence.

Worse, criminal courts generally reject applications to stay trials of historic abuse charges on grounds of delay. Judges claim that the trial process will remedy any unfairness. But this is nonsense. As a recent article in the journal of the Criminal Bar Association (CBA) acknowledges: ‘In reality, the defendant is unable to mount any form of defence…’

The CBA article also admits that it is difficult to imagine any other category of offence being prosecuted involving the extreme delays of historic sex cases (2). So we have a cruel and farcical situation, where everyone agrees that an accused’s prospects of success in such cases are zero.

Looking for victims

When a scandal breaks, the police and abuse law firms use the media to urge claimants to ‘come forward’. No one seems willing to accept the possibility (or at least not publicly) that such calls may encourage pseudo-victims.

At present, it seems that abuse law firms welcome the involvement of the police and prosecutors: these agencies can take on the burden of investigations and of testing claims in a criminal court. But the police have become quite unbalanced, constantly describing complainants as ‘victims’, and attacking prosecutorial decisions not to bring charges, as with the case of the 86-year-old peer Lord Janner earlier this year.

There is something incongruous in some abuse law firms’ continual demands for their clients’ voices to be heard or listened to, given that they sometimes seem reluctant to pursue civil lawsuits for those clients, while agitating for accused persons to face the music. In truth, if there is no proper basis for a court case, then there is no ‘right to be heard’. These firms’ rhetoric also ignores the fact that a trial is not a monologue. The purpose of giving evidence on oath is to have your account tested.

But this new rhetoric of ‘hearing voices’ is helping to copper-fasten a new model of therapeutic justice in the minds of the public. As Luke Gittos has argued, the role of therapeutic justice is to provide a ceremonial confirmation of complainants’ experiences. In this new model, the role and rights of an accused are obliterated.

One high-profile abuse lawyer blogged that she was ‘absolutely delighted’ that the CPS will now prosecute Lord Janner (who is unfit to plead). Her triumphalism is disturbing, precisely because it does not acknowledge that there should be another voice in this contest. That replying voice cannot now be heard, because time and misfortune have conspired to silence it.

Barbara Hewson is a barrister. Her views here are personal.

(1) R v Bailey [1924] 2 KB 300

(2) ‘Historic Sexual Offences and Stay Proceedings’, by Genevieve Reed, in Criminal Bar Quarterly, Winter 2014, Issue 4, pp4-5