People’s Tribunals are independent, peaceful, grassroots movements, created by members of civil society, to address impunity that is associated with ongoing or past atrocities. As such, they offer society an alternative history and create a space for healing and reconciliation to take place that may otherwise be stifled by political agendas and legal technicalities. Since the 1960’s, People’s Tribunals have grown and developed to address many kinds of situations, from genocide to environmental degradation.

In this episode of the HJ Talks About Abuse podcast Alan and Reg Paulose discuss the concept of the People’s Tribunal and question their effectiveness.

In the context of that question they discuss:

  • Can they be seen as legitimate responses to injustice?
  • How do they work?
  • What do they achieve that conventional legal models do not?
  • So are they effective?
  • How do we measure effectiveness, what does it look like?

Reference is made to the UKCSAPT – the People’s Tribunal established in the UK to examine child sexual abuse (see website HJ).

These issues are discussed in the recently published book: People’s Tribunals Human Rights and the Law: Searching for Justice (published by Routledge, and edited by Reg. Alan wrote the chapter on “People’s Tribunals and how they examine child sexual abuse).

This book presents a balance of academic and practitioner perspectives on People’s Tribunals. It explores key questions relating to their formation and roles and discusses what they can offer to victims and survivors. The volume provides an introduction to the subject, theoretically informed discussion reflecting different perspectives, and a range of contributions focusing on different types of People’s Tribunals and various aspects of their operation. The authors analyse the advantages and disadvantages of these movements in a variety of contexts. The impact and contribution they have in the international criminal law and international human rights context is also discussed.

In this week’s podcast Alan discusses issues of elder abuse with Prof. John Williams.

John was Professor of Law and Criminology at Aberystwyth University. His main area of research is examining how the law affects older people with a particular emphasis on human rights, social care, the criminal justice system and elder abuse. He is the author of many academic and practitioner papers on topics such as the rights of older prisoners, social care of older prisoners, the case for a public law on the protection of adults at risk, care home design and human rights, and international human rights and older people. Most recently, he authored Protection Of Older People in Wales: A Guide To The Law. This guide was published by the Older People’s Commissioner for Wales and is designed to assist practitioners working with older people at risk of abuse.

John is currently a member of the Welsh Government's advisory group on the new law on adult protection in Wales. He recently acted as legislative adviser to the Health and Social Care Committee of the National Assembly for Wales on the Social Services and Well-being (Wales) Bill. In June 2012 John was a member the Expert Group on the Human Rights of Older People that was organised by the United Nations. He is a trustee of Age UK, Age Scotland, and Ceredigion CAB, and a board member of Consumer Futures. John is a member of the Welsh Advisory Group of the Law Commission for England and Wales.

Elder abuse is a complex and emotive issue and it is difficult to discuss but we all have something in common: we were children once and we are all getting older yet our society experiences ageism.

Elder abuse encompasses not just physical assaults, but neglect and exploitation. Abuse can occur in the home, within families, and in care settings.

In this episode of the podcast, the question is asked whether further legislation is needed to promote and protect the legal rights of older people, or whether it’s a case that existing laws and policies need to be respected?

In that context, is it right that when an older person is involved, exploitation is sometimes seen as a welfare issue as opposed to a potential crime? When those with a responsibility to investigate exploitation allegations do so, is their investigation done through the prism of ageism, even if only subconsciously?

Alan and John discuss some of these issues in the context of COVID–19 pandemic and its impact on care and nursing homes. If elderly people are being confined to their rooms, or decisions are being made not to give them equal access to medical treatment (if that is the case), are their legal rights being compromised? All have the right to life under the European Convention of Human Rights, and equally a right not to be unlawfully detained or falsely imprisoned. In a recent episode of the podcast, we pointed out that you do not have to have bars on your window to be imprisoned. There is considerable scope in the “lockdown” provisions for people’s rights to freedom and life to be subconsciously or inadvertently compromised, and there are no exceptions just because you are “over 70”.

In this episode of the HJ Talks About Abuse podcast, Partner Alan Collins and Senior Associate Robert Hurling discuss personal injury trusts.

What is a personal injury trust?

An injured person sometimes places or has placed for them their compensation into a personal injury trust which is a legally binding arrangement for the holding and managing of monies – compensation received as a consequence of injury.

When and why would a personal injury trust be needed?

The injured  person may be unable to work and their family members may have given-up employment to  provide care. They will continue to have their regular living costs to meet, including providing maintenance costs for their children or other dependant relatives. All these obligations and needs could mean that the person may still need to access  DWP and local authority means-tested benefits and funding for care services. Receipt of compensation could affect entitlement.

A personal injury trust  is a legal vehicle that can be used to ensure that the receipt of compensation does not affect entitlement to certain DWP and local authority means-tested benefits.

It is important to consider whether a personal injury trust could be used to ensure that the injured person:

  • Is able to claim all of the state benefits and care funding that they may be entitled to, both now and in the future
  • has a suitable structure in place to manage their compensation in the future

A personal injury trust can, therefore, protect the interests of very young, old, disabled or otherwise vulnerable people.

How does the personal injury trust work?

The personal injury trust is created by a legal document called a deed. The injury person appoints two but no more than four trustees who will manage the fund – the compensation. They will make decisions about investment and payments. This a very responsible job and depending on the individual’s circumstances  whether family members or close friends act as a trustee together with the person receiving the compensation, or professionals are appointed such as solicitors. The trustees must each authorise all transactions within the trust, providing protection against inappropriate use of funds.

Trustees must each be over 18 years of age and mentally capable of fulfilling their responsibilities. They have to set-up a bank or building society account to hold the trust funds, which must be kept separate from all other personal finances. All cheques and transactions will be signed and authorised by the trustees. It is important to choose the right trustees, as they will have full control over the personal injury trust and the funds held within it. The trustees chosen must be able to work well together and act in the best interests of the injured  person for whom the funds are held.

It is important that the injured  person receives legal advice from a specialist solicitor about the right kind of trust to put in place. The simplest type of trust is called a ‘bare trust’ and this is often the most appropriate for personal injury funds. In this type of trust, the money still belongs to the injured person and they can end the trust at any time if they so wish.

However, other types of trust may be appropriate so the person’s specific circumstances should be considered. For example, the type of trust may affect the distribution of the injured person’s estate when they pass away, so provisions for their family in the future should be taken into account.

A personal injury trust can protect the interests of very young, old, disabled or otherwise vulnerable people

An injured person can benefit from the knowledge and experience of their trustees. Appropriate trustees can provide valuable advice and support when making important decisions. This can ensure that funds are managed appropriately to protect the injured person's long-term interests.

A personal injury trust helps to define and ‘ring-fence’ the funds that have arisen from a personal injury, keeping them separate from other assets. This can assist if a person's circumstances change and they become entitled to means-tested benefits and care services in the future.

How much does it cost to set-up a personal injury trust?

There will be a cost in setting up a personal injury trust. It should be remembered though that the trust may pay for itself several times over, and should be factored in when decided whether to go ahead.

The cost of creating a trust can sometimes be included in a compensation settlement, but often people will have to pay the costs themselves. Also, if a professional trustee, such as a specialist solicitor, is appointed to manage the fund then they will usually charge an annual fee.

When should the personal injury trust be created?

There is a 52-week disregard for payments relating to personal injury. This means that clients will have 52 weeks from the first payment of compensation (whether that is an interim payment of the final settlement) to set up a trust to receive the compensation.

Once set up, it  will ensure that the funds can be transferred into the trust immediately and there will be no loss of DWP benefits or care funding entitlement provided this is done within the 52 week limit.

Some injured people may not be entitled to means-tested benefits and services at the time they receive their funds, and so a personal injury trust may not seem immediately relevant but circumstances can change, and some thought needs to be given to what might happen in the future.

It is possible for a trust to be created at a later date but it is not retrospective and does not allow for the injured person to claim for DWP benefits that they have missed out on.

Trusts for people without mental capacity

Some injured people lack the  mental capacity to deal with their own financial affairs, under the criteria set out in the Mental Capacity Act 2005 (MCA). In order to make decisions for someone who lacks capacity, an application must be made to the Court of Protection (CoP). A CoP judge will then have to decide the most appropriate method for management of the person's financial affairs.

A deputy will usually be appointed in order to manage another’s property and financial affairs. This is usually preferred to the establishment of a personal injury trust, because a deputy is required to report to the Office of the Public Guardian (OPG). This requirement provides assurance that the person lacking capacity will have their best interests looked after. Funds held by a deputy will also be disregarded for means-tested benefits and services, in the same way as funds held in a trust.

In cases involving a child, a judge will need to approve the establishment of a personal injury trust to manage their funds until they reach 18 years of age. The court will need to be satisfied that a trust is suitable and is likely to be beneficial to the child, as well as approving the trustees and the type of trust that is to be used.

But it’s my compensation!

Yes it is, and remains so even with the establishment of a personal injury trust. An injured person (provided they have capacity) can always end the trust.

If you have any questions about setting up a personal injury trust, you can speak to Robert Hurling by visiting the Court of Protection page on the Hugh James website.

You can email aboutabuse@hjtalks.co.uk to speak to Alan about something you have heard today or to suggest a topic for a future episode of the podcast.

In this episode of the HJ Talks About Abuse podcast, Alan Collins discusses the role that institutions take in producing abusive sexualities with Dr Michael Salter. The discussion centres around the trend of people, particularly men, who are in positions of power being able to sexually abuse people within the institutions they are part of.

What is it about the institutions themselves that produces or at least encourages people to offend?

When the people within institutions lose their identity as individual people, but instead begin to be seen as numbers, they lose their voice and their power which leaves them vulnerable to abuse.

This loss of power can apply to anyone, although it is most common among children and young women.

Dr Salter gives the example of young actresses being seen as interchangeable leaving them vulnerable to sexual exploitation. They are seen as powerless and voiceless, which means that the movie executives they are reliant on have opportunities to offend that they wouldn’t have if the young women had a voice and were treated more seriously.

There can be a generational component to this kind of abuse where those who were abused or were witnesses to others being abused then grow up to be part of the same institutions. They are then more likely to either become perpetrators of abuse or to reinforce the culture of silence about the abuse that occurs as it has become the accepted norm within the institution.

In one prestigious school in Australia, a student went on to become a teacher at the school and was subsequently convicted of grooming and abuse. People who knew about the abuse remained silent because of the homophobic culture within the school and the potential consequences of word of the abuse getting out. Many top solicitors, barristers, politicians and business leaders sent their children to that school and had spent many thousands of dollars on tuition to ensure that their children had the best chances of success. These parents also contributed to the culture of silence as any whisper of a scandal might jeopardise their children’s futures.

Our institutions will continue to produce and perpetuate abuse unless we are willing to make the kinds of changes that would give children their voice back and ensure that the culture of silence ends.

Until that time, the Abuse Team at Hugh James continues to give survivors of child sexual abuse their voice back by helping them to access justice. If you would like to speak to Alan Collins about your experiences with abuse within an institutional setting, you can email aboutabuse@hjtalks.co.uk.

In this episode of the HJ Talks About Abuse podcast we will discuss what the Criminal Injuries Compensation Authority Scheme is – “CICA” Scheme and how, despite its good intentions, it is failing survivors of abuse.

The CICA Scheme is a government-funded scheme designed to compensate victims of violent crime in Great Britain. Compensation is calculated using a “tariff of injuries”, and so the size of the award varies to reflect the seriousness of the injury.

You must have reported matters to the police in order to apply; but it is free to apply to the scheme and you do not necessarily need a solicitor to complete the application for you.

The main pitfall of the scheme is the fact that survivors are refused compensation because of convictions that are unspent. This is regardless of any relevance to the abuse they suffered.

In recent weeks it has been publicised that a survivor of the well-known grooming gang scandal in Huddersfield was refused compensation because of a driving offence. (You can read about this here https://www.independent.co.uk/news/uk/home-news/huddersfield-grooming-gang-child-sex-abuse-compensation-driving-a9394736.html )

We often advise our sexually abused clients to make an application to the scheme, particularly those whose abuser is unknown, dead, or the institution involved is no longer operational.

We ensure that we advise our clients, and now advise you, to consider three important things:

  1. Your unspent convictions. A solution could be to wait and apply for the scheme when your conviction has become spent.
  2. The time limit. We have mentioned in previous podcasts the Limitation Act in relation to bringing a civil claim for sexual abuse. There is also a time limit to the CICA Scheme of 2 years from the date of the incident. However, there is discretion for the CICA to overlook this time limit if, for example, you have only recently reported matters to the police, you did not know the scheme existed, or you have some psychological reason for your delay in applying.
  3. Repaying a civil claim. You cannot be compensated twice for the same incident. So if you are bringing a civil claim against the perpetrators of the abuse, or an institution, and are compensated by them you will have to repay the CICA compensation award.

It is hoped that the CICA will adapt its strict approach to unspent convictions but we will have to wait and see.

If you are interested to learn more about the background to this podcast we direct you to our podcast from last March on Grooming Gangs.

April 24, 2020

Limitation Law Reforrm

In this episode Partner Alan Collins and Sam Barker discuss the proposed changes to the limitation laws that apply to childhood sexual abuse. 

In England and Wales, the limitation legislation states that you have three years to bring a claim for sexual abuse unless you were a child at the time of the abuse in which case you would have three years from the time you turn 18. 

Very similar laws in Scotland and Australia have now been reformed. Alan has been consulting with IICSA's investigation into limitation law in England and Wales.

While judicial thought about limitation has changed a lot in the last 30 years, there is still more reform that could be made to make the legal system more open, accessible and fair to survivors of child sexual abuse.

Cardinal George Pell has successfully overturned his convictions for sexual abuse at his High Court appeal.

The Australian High Court found that Cardinal Pell should never have been convicted on the basis of the evidence that was placed before the jury at his trial.

On 11 December 2018, following a trial by jury in the County Court of Victoria, the applicant, who was Archbishop of Melbourne at the time of the alleged offending, was convicted of one charge of sexual penetration of a child under 16 years and four charges of committing an act of indecency with or in the presence of a child under the age of 16 years.

The successful appeal, of course, adds to the controversy that the prosecution and conviction in themselves created. There are those who are convinced that Pell was and is innocent and has spent unjustly a year in prison, and there are those who remain convinced of his guilt.

In this podcast we look at the issues and what the successful appeal may mean for future investigations and prosecutions?

We need to understand why the appeal was successful.

The Pell case in many ways was no different to many a prosecution in the UK and Australia where the allegations are far from recent. It is commonplace for victims- survivors of sexual abuse to come forward many years after the assaults were committed. This invariably brings challenges for any investigation and prosecution or, indeed, a civil claim.

The case has to be proved to a very high standard. In the criminal case beyond a reasonable doubt, and in the civil sphere on the balance of probability.

The complainants have to be reliable. To put it simply they need to know what they are talking about, and in our experience they usually do. Sometimes that is enough, but not always and particularly so where the allegations are disputed as in the Pell case. Therefore the lawyers bringing the case are looking for reliable corroboration that is evidence that backs the complainants’ accounts. This can be difficult because sexual abuse frequently occurs behind close doors, but there may be other victims who can give similar fact evidence, or there may be a history of complaints.

In the Cardinal Pell case, there were plenty of witnesses but as the High Court has pointed out in its judgment their evidence undermined the prosecution not supported it. Their evidence pointed to the lack of opportunity and potentially the impossibility of the offence being committed. Consequently, the jury, acting rationally on the whole of the evidence, ought to have entertained a doubt as to Pell’s guilt with respect to each of the offences for which he was convicted.

There is an argument that that cases such as this should be tried by judge alone but that does not stand up to scrutiny. If the High Court is correct in allowing the appeal then it has demonstrated that a series of judges got it wrong. To put it crudely they ignored the weight of the evidence that pointed to a verdict of “not guilty”. If the judges get it wrong don’t blame the jurors.

Juries weigh-up the evidence and are directed by the judge as to the law. The judge when summing-up will remind the jury that if he/she has misdirected them then it's not their fault. Juries are reminded that if there is doubt they must acquit, but they are dependent on the evidence before them and the judge’s directions.

The successful appeal highlights the challenges in bringing a prosecution or a civil case. The evidential burden is tough to discharge because, if there are flaws in the evidence, the case runs the risk of ultimately failing.

It cannot be ignored that the sight of Pell gaining his freedom may well discourage victims coming forward. Further, it may encourage those institutions who face allegations of child sexual abuse to fight the cases when, perhaps, they should not.

The High Court judgment needs to be considered objectively because regardless of whether you agree with it, there are clearly lessons to be learned and they all revolve around in ensuring that the evidence stacks-up. That is a constructive lesson that needs to be understood by all those concerned with these cases whether advising, defending or prosecuting.

 

In this episode of the HJ Talks About Abuse podcast, host Alan Collins speaks to Dr Michael Salter about the issue of systemic child abuse within religious bureaucracies.

Dr Salter explains how some seminaries are fertile ground for abuse to take place and that once committed, sexual abuse can be too easily perpetuated through a generational cycle of abuse. 

It is clear from this interview that the organisational structure of a religious institution matters less than the vigilance of those within the institution to report abuse when they see it and to minimise the risk that abuse can happen.

If you have experienced abuse within a religious organisation or know someone who has, speak to Alan Collins about your rights and what you can do about it by emailing aboutabuse@hjtalks.co.uk 

In this podcast Alan Collins and Dr Michael Salter, Associate Professor of Criminology at The University of New South Wales, discuss the risks associated with posting supposedly private images online.

Alan asks the question whether posting private and intimate images is now seen as acceptable behaviour? Dr Salter in answering this question highlights research in this area and how paedophiles are able to exploit this behaviour by gaining access to children. Alan highlights that IICSA as part of its research, revealed that children and young people come under pressure to share images. The research also shows however, that they have considerable insight and that there is much to learn from their insights.  

Before the invention of the smartphone, child abuse images were created by adults and Alan recalls a case that he worked on called 'Green Field House' where in the 1960's, boys from this institution appeared in pornographic photographs and films which were clandestinely commercially produced. So in one sense this is not a new problem but now a radically developing and different one. Children and young people engaging in the sharing of images maybe doing so innocently, maybe naively and consensually. What is of further concern is that there maybe coercion. The research points to pressure to conform and engage, and that can become coercive. All of this has considerable ramifications because it can lead to both physical and psychological harm for the young people concerned.

Partner, Alan Collins, is joined in this latest podcast by freelance broadcaster and journalist, Gary Burgess. Many of you may know Gary from reporting on ITV News Channel, his journalism and his blogs.

In this podcast Alan and Gary discuss Coronavirus and what we perhaps can learn from the crisis that we are all having to contend with. They discuss the strength of the human character at times of adversity and how this will see us through the challenges that society will face in the months and years ahead. They reflect on their own experiences and how this may shape our own responses to the immediate and the future.

Load more