IICSA – business as usual

After the media frenzy around the resignation and appointment of a new Chair, the IICSA is continuing its work as normal and has published many of the outstanding decisions from the July hearings. There has been a subtle change of emphasis as can be seen in some of the decisions and an attempt to clarify the scope and purpose of the Inquiry.

A new case study has been added to the Accountability & Reparations (A&R) Investigation bringing the total to five. This case study relates to Stanhope Castle Approved School. The rationale for consideration of this as a case study is that unlike the other cases studies, which will look at the adequacy of reparation obtained, this case study will consider what happens when there is no possibility of reparation. In association with the announcement of this case study the Stanhope Castle Survivors Group was granted core participant (CP) status.

The approach to the granting of core participant status is interesting. Many individual applicants whose initial request had been refused by Dame Goddard have had their applications granted by Professor Jay. These include not just victims but also the partner of a Forde Park victim who had applied to be a CP based on her experience of supporting her partner during his engagement with the criminal and civil justice systems. She is not the only CP who does not have direct experience of being abused (or as with Peter Ball, accused). Hence in the Roman Catholic investigation Jonathan West has been granted CP status in connection with his role as a campaigner and blogger about abuse at schools affiliated with the English Benedictine Congregation; and Adrian Child is also granted CP status in connection with the roles he held in relation to child protection and safeguarding practices in the Roman Catholic Church from 2006-2015.

There are 140 CPs. Not all who have applied have been designated. Hence a number of parents who have applied in connection with the abuse of their children have not been designated as CPs. In determining CP status the decision is made by reference to the issues in each investigation. Survivors of Organised and Institutional Abuse (SOIA) had applied to hold CP status across all investigations. That application had already been denied and they therefore re-applied for CP status in six of the seven more advanced investigations. They have been designated as a CP only in the A&R investigation. Other applicants who were not granted CP status included Ecclesiastical, Methodist and Baptist Insurance as they did not have any direct involvement in the specific A&R case studies. By contrast RSA, Zurich and MMI were granted CP status as they had specific experiences relevant to the case studies. Insurers are encouraged to participate with the A&R investigation by answering the issues papers.

A large number of legal advisers have been confirmed as legal representatives. For victims and survivors Slater & Gordon have the greatest representation. They are joined by Switalskis, Howe & Co, Hugh James, Uppal Taylor, Imran Khan & Partners, Quality Solicitors Abney Garsden & Affinity Law. Clearly there are concerns not to have too many firms involved as one individual CP in the Roman Catholic investigation was not granted the legal representative of his choice and advised to choose from one of the other four firms already representing individual CP’s in that investigation. Peter Garsden and Billhar Singh Uppal had each applied to be CPs in their own right so they could provide evidence of the civil justice and CICA process. Both were not designated and instead were encouraged to give evidence as witnesses.

Many times throughout the designation notices, reference is made to ensuring that a proportionate approach is taken to the work of the Inquiry. Thus:

  • The Inquiry will not investigate fully the circumstances of every CP’s experience.
  • Whilst designation as a CP will give access to documentary material obtained by the Inquiry, it is likely that the Inquiry will limit such disclosure to material which relates to their specific interest in the investigation – so all CPs in any one investigation will not necessarily see all documentation relating to that investigation.
  • The questioning of witnesses will be by Counsel to the Inquiry and not by CPs or their legal representatives.
  • Granting of CP status will not be given unless the criteria specified in the Inquiry Act is fulfilled. Hence for example the fact that an individual or organisation has significant sensitive material to pass to the Inquiry is not on its own necessarily a sufficient justification for CP status. Parties can still engage without CP status and indeed will be encouraged to do so.

Finally from all of the published decisions four further significant points have been made:

  • The scope of the investigations are such that they will not examine or resolve disputed factual issues relating to the underlying allegations of child sexual abuse – this would seem to be a shift to clarify the concerns raised in the Janner investigation about the burden of proof and the “well-founded” basis for determining facts.
  • The decisions appear to have been made in a more consultative basis with references to Prof Jay having consulted with her fellow panel members in reaching her decisions.
  • Article 3 of the European Convention on Human Rights had been argued as a justification for SOIA being a core participant across all investigations. It was said there was an absolute right to effective participation. This was rejected and it was noted that “the Inquiry is established to fulfil the terms of reference set out by the Home Office. It is not its function to discharge the UK’s obligation under Article 3.” This seems to make it clear that the Inquiry will not be interested in challenges based on the issue of Human Rights.
  • Schools have not been retaining documentation such that it has been necessary for the IICSA to write again to the Department for Education asking for dissemination to all state and private schools the requirement that all documentation which could be of relevance is retained.

It is clear that it is business as usual at the IICSA and those who considered that the resignation of Dame Goddard would halt the progress of the Inquiry have been proved wrong.


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Paula Jefferson, Partner

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