IICSA – a guide to the initial preliminary hearings

Preliminary hearings in four of the investigations resulted in a flurry of activity before Easter and have provided some clarification as to how the Public Hearings project will proceed. Common strands from the hearings, along with a subsequent press statement which focuses on false allegations, are as follows:

  1. Scope and proportionality – the scope of the Inquiry is broad and unprecedented. The Inquiry will examine the extent to which public and private institutions in England and Wales have failed to protect children from sexual abuse and will make recommendations for the future. However the investigations must be targeted and dealt with in a proportionate manner within the context of the bigger picture which the Inquiry is seeking to address. To balance this wide remit with proportionality will be a very delicate act to achieve, particularly to ensure that those victims and survivors who want their experiences to be heard do not feel they have been ignored. As the Truth and Research projects runs alongside the public hearings it will be interesting to see how the evidence crosses over from one project in to the other. One challenge to its scope which has already arisen is that it is focused on sexual abuse of children but it will consider the abusive behaviour of Bishop Peter Ball. He pleaded guilty to offences which relate to the abuse of young males over age 18. Four victims who were over age 18 at the time of the abuse applied for core participant status in the Anglican investigation. They had been refused and renewed their applications. A decision is yet to be made, they would logically seem to fall out with the terms of reference of the Inquiry and yet the Inquiry has announced that it will consider matters relating to Peter Ball so it is hard to see how it can exclude such evidence.
  2. Core participants – as we know core participants have the right to make opening and closing statements, can seek leave to ask questions of witnesses, and should be given disclosure. Over 80 individuals or organisations made applications to be core participants in respect of these 4 investigations alone. Core participants will only be designated in relation to individual investigations and not across the Inquiry as a whole. However to date the CPS and the Dept of Education (acting on its own behalf and that of the Dept of Health) have been granted core participant status in all 4 investigations. A number of police forces are involved (the Met re Lambeth; Gloucester, Sussex and Surrey re the Anglican Church; Lancashire and Greater Manchester re Rochdale; and Leicestershire re Janner). Other organisations granted core participant status are Lambeth, Rochdale and Leicestershire Councils; the Archbishop’s Council (as representative of the Church of England); the Church of Wales; Ecclesiastical Insurance; and the IPCC. A number of victim groups (SOSA re Lambeth and MACSAS re the Anglican Church) are now core participants alongside a significant number of individual victims of abuse. To date the only accused to be deemed a core participant is Bishop Peter Ball.
  3. Burden of proof and findings of fact – the Inquiry will consider institutional failings, rather than individual abuse, however, it may need to make findings of fact relating to the underlying allegations of abuse in order to meet this aim. As set out in the Inquiry’s terms of reference, where the evidence justifies it or if it is necessary to fulfil the Inquiry’s terms of reference, the Inquiry will make findings of fact. In reaching those conclusions no specific burden of proof will be used. Instead if the Inquiry considers that a general or specific matter is well founded then that will be enough. “Well-founded” in terms of the investigation means that an allegation could be true, or there could be sufficient evidence at the time for an institution to have investigated the allegation and, as a result, have made child protection changes. “Well-founded” will relate not just to a finding of fact into an allegation, but also whether something should have triggered an institutional response. Much will depend on the context. This is clearly going to be an approach which will be the subject of close scrutiny in terms of determining how a matter considered to have been “well-founded” will be viewed in any subsequent civil claim. Whilst previously decisions in Inquiries have been considered only useful background material in later civil claims in reality it is likely to take substantive evidence to contradict an Inquiry report. This may, depending on the outcome of the Accountability and Reparations investigation, become irrelevant if there are wide changes to the methods of compensation for victims and survivors of abuse. However until such recommendations are made and implemented there will need to be a pragmatic approach to what the Inquiry has concluded and how that translates in to legal claims.
  4. Actual and constructive knowledge – the Inquiry will be examining not just the actual but also the constructive knowledge of the institutions involved in the subject matter of each investigation. An organisation may be able to prove that it did not know of an allegation but that will not necessarily mean it will avoid criticism because the Inquiry will also consider whether the organisation should have known of the allegation and whether the failure to do so was because of institutional failings. As was seen with the BBC and Jimmy Savile proving what an institution did and did not know and whether it should have known is a far from straightforward issue.
  5. False allegations – many victims and survivors would say that on too many occasions their disclosure has been met with counter-suggestions that they have made false allegations. However the Inquiry clearly cannot ignore the outcome of Operation Midland and the impact that Operation has had on many people, including those who have been publically accused of abuse which has not subsequently been the subject of criminal action. The Inquiry has reiterated that it will strike a balance between the rights of accusers and the accused. It will hear evidence from those affected by false allegations recognising the damage that can be caused. The Inquiry had been criticised for saying that it would consider the actions of the police from the standpoint of victims and survivors
  6. Inter-action – in considering each investigation the Inquiry will be looking at the inter-action between the core participants and other organisations at the relevant time. Hence for example in the Lambeth investigation regard will be had to the inter-action Lambeth Council had with other public authorities and government agencies. This highlights the importance of not just those organisations who are named in investigations looking back through documents and speaking with key potential witnesses, but also the organisations they worked or inter-acted with must be considering their positions. They may hold key evidence or in due course be called upon to participate because documents they have produced and sent to a core participant are likely to find their way to the Inquiry and prompt further questions.
  7. Overlap – although the Inquiry began by setting out its 5 work streams none of the investigations named to date can be seen in isolation. Hence all 4 of these investigations have potential links to Westminster and People of Prominence in public office – Janner himself; Cyril Smith re Rochdale; Bishop Peter Ball re the Anglican Church; and Lord Boateng in the Lambeth Inquiry who is not accused of abuse but rather his connections with Michael Carroll (who was convicted of abuse). The Rochdale investigation also clearly overlaps with the thematic investigation in to Child Sexual Exploitation; and the Anglican investigation will consider matters which will clearly be pertinent to the Accountability and Reparations Investigation. Costs and time must dictate that these issues cannot be investigated repeatedly in isolation. The extent of the overlap also evidences how complex a challenge the Inquiry faces in producing its ultimate report.
  8. Time spans – the allegations against Lord Janner are said to date from 1955-1988. The claim against Bishop George Bell, which dates back to the late 1940’s/early 1950’s, will form part of the Anglican investigation. Lambeth and Rochdale issues date from the 1960’s up to and including police and CPS decisions in this century. The Inquiry has said there is no time period in respect of which it will not consider abuse and these 4 investigations are representative of that.
  9. Practicalities:
  • Terminology – the Inquiry has already announced it will use both the terms victims and survivors but has also now said that in the public hearings if there has not been a criminal conviction those who state they have been abused will be referred to as complainants.
  • Transcripts – these have been available on the Inquiry website within hours of each preliminary hearing, thus making the day’s proceedings available very quickly to a very wide audience.
  • Broadcasting – no decision has been made about live broadcasting or streaming of the hearings. A specific decision will be made for each investigation and different approaches may be taken to evidence from varying sources within each investigation. This issue will be reconsidered at the next preliminary hearing in to each investigation.
  • Anonymity – this is likely to be given to all complainants/victims/survivors but they have to specifically make a request for anonymity and dates have been given for such applications, although those who have been granted core participant status (or had sought the same) have already been given anonymous codes.
  • Timetables – there will be further preliminary hearings in all 4 investigations before the summer recess. Only in the Janner hearing has there been an indication of the likely start date for the full public hearing which is anticipated to start in September and last for eight weeks.

Author

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Written by Paula Jefferson, partner

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