Focus: limitation in child sexual exploitation claims
In recent months many forces have been faced with the prospect of civil claims relating to historic child sexual exploitation allegations, some of which date back many years.
Whether the claims are presented as negligence or alleged failure to investigate or protect claims, they are usually complex and time consuming. Knowledge of not only the relevant police law but also of the legal duties of the local authority, since many victims will have been in care, is fundamental.
Two of our specialist abuse lawyers, Sarah Swan and Ian Carroll, review a recent case concerning time limits in abuse claims and consider how defendants might deal with this issue.
Limitation - indefinite exposure?
The recent case of RE -v- GE provided guidance on limitation. Before January 2008 individuals who brought personal injury claims arising from alleged deliberate assaults were required to do so within a non-extendable six-year period, that period being measured from their 18th birthday if they were a child at the time of the assault. If claimants failed to pursue their claim it would be statute-barred pursuant to section 2 of the Limitation Act 1980. Any individual alleging sexual abuse or exploitation as a child therefore had until their 24th birthday to bring a claim, a straightforward calculation for defendants to carry out.
However in 2008 the case of A -v- Hoare changed this position. The House of Lords ruled that victims of alleged deliberate assaults had a three year period in which to bring a claim (section 11 of the Act) but also underlined that section 33 permits the court to override that limitation period where it is equitable to do so. While the initial period was shorter, there was more flexibility to extend that period than there had been previously. The decision brought about flurries of claims where individuals had delayed for long periods. Victims of historic sexual abuse for whom a six-year limitation period would previously have been an insurmountable hurdle were no longer so limited.
In RE -v- GE, the judge has confirmed that the correct test under section 33 was not whether a fair trial was still possible, but rather whether it was fair for the defendant to face such a trial. In this respect, the court focused upon the claimant’s reasons for the delay in pursuing the matter. Following Hoare in 2008 the claimant in RE was advised by solicitors that she had a potential claim yet she still delayed a further 4 ½ years before finally issuing. The court therefore found that while it may have been possible to explain away some of the delay following the claimant’s 18th birthday, it was impossible to explain her delay after receiving clear legal advice in 2008 that she could pursue a claim. The claimant had effectively chosen to put her claim on a shelf to be taken down at a time of her choosing. Accordingly, the court concluded that there was no reasonable explanation for this further delay and refused to exercise its discretion in the claimant’s favour to allow the claim to proceed.
How should defendants respond?
While the defendant in this case was not a police force, the principle drawn out by it can be applied by forces considering claims.
The case should be borne in mind where a historic claim for alleged child sexual exploitation or abuse is presented and where a claimant may have previously taken early legal advice or could be said to have failed to act expeditiously and/or failed to progress a claim with any or any adequate intent.
Whilst being careful not to probe and invite the progression of a civil claim, practitioners should nonetheless ensure that the claimant’s solicitors are put on early notice of the prejudice which may be caused if they fail to proceed appropriately.
Following Hoare, claimants had started to expect judges to exercise their discretion in their favour as a matter of course, making it difficult for defendants to accurately assess their likely exposure. However on appropriate facts, RE -v- GE has improved that position and may be deployed either as an absolute defence or, as a minimum, in order to bolster the negotiating position.
1. How did you get into insurance?
I started in insurance by working for Sun Alliance in Leeds in 1990, as a personal lines motor underwriter and dealing with property claims for corporate clients. I then moved to Royal Insurance in Leeds as a supervisor before I progressed to team leader in personal lines property. Following the merger of Royal and Sun Alliance I secured the role of claims operations manager with responsibility for overseeing both personal and property claims and underwriting, as well as operational risk.
2. Define your current job and responsibilities, in one sentence if you can!
To deliver and develop a compliant risk management framework in order to provide assurance to key stakeholders that West Yorkshire Police and the Office of the Police and Crime Commissioner of West Yorkshire have an effective process in place for managing risk, including risk financing through insurance and self-insurance.
3. How have your roles changed over the years?
Moving from private to public sector practice was a big change. An emergency service has different classes of insurance, high self-insured retention levels and a high profile comprehensive risk portfolio. I now work with insurance brokers and insurers rather than for them, so my role has reversed!
4. What attracted you to working for the police? What is your favourite part of the job?
When the Royal Sun Alliance office in Leeds closed in 2004, as the call handling function was outsourced to India, I had to manage the closure of the call centre while sustaining customer service levels with reduced staffing, and helping staff secure new jobs (myself included!).
I saw an advert for someone to implement West Yorkshire Police’s risk management framework and be responsible for their insurance portfolio. I had already been offered a claims manager role with another insurer travelling between Leeds and Manchester which was an excellent position and a higher salary but the thought of doing something completely different in the public sector for the emergency services and nearer to my home really attracted me.
I am a believer in things happening for a reason. Looking back now my work life balance is much improved. I take my children to school and am involved in their after school activities due to the flexibility of the role whereas when I worked in Leeds I had to rely on my parents to do everything.
Nowadays my favourite part of the job is working with all the different people that I meet on a daily basis, at all levels. My job brings me into contact with all districts and departments within West Yorkshire Police, the Office of the Police and Crime Commissioner, the National Police Air Service, other police forces, local authorities, insurance brokers, insurers and other agencies and organisations that we collaborate with to share good practice.
5. What has been the biggest challenge over the last 12 months?
Budget cuts mean less physical resources to deliver the Police and Crime Plan and failing to manage risk is not an option as the public demand high levels of quality in service. Financial pressures mean budgets have no surplus to pay for the costs of failure.
6. What is likely to be your biggest challenge within the next 12 months?
All forces are going through organisational reviews due to budget cuts, having to do more for less and needing to be leaner. The restructure needs to be managed effectively to achieve 2016/17 budget savings. An unstructured reduction in staff or resources could impact resilience, quality of service and staff morale. Also, new mobile technology is being supplied to front line police officers so that systems can be accessed more quickly and efficiently.
7. What opportunity have you sought to make the most of in the last year?
I’ve really enjoyed working with my colleagues in the Northern Insurance Consortium to tender for all our insurance programmes. The results have been excellent and working with other forces enables us all to lead on different procurement projects, share good practice, benchmark insurance programmes/claims and improve our technical skills.
8. What alternative career path might you have followed and why?
I would love to have been an actress. My two children, aged 13 and 9, are with acting agencies and have done various commercials, TV work, musicals and operas. Having been in Emmerdale a few times with my eldest son and a McDonalds commercial with both of them I can honestly say it was really good fun!
9. What has been the strangest matter/ request you have ever had to deal with?
That relates to covert operations which is restricted information!
10.What is your proudest achievement in your career to date and why?
I’m very proud of all the commendations and awards I have received for my work with the police services. In February 2014 I received a commendation from the Chief Constable and Police and Crime Commissioner for outstanding achievement in delivering the National Police Air Service project which recognised effort, commitment, adaptability and determination in delivering the first national operational policing function that will achieve significant operational benefits. We also won the Alarm Insurance Risk Award (Public Risk Management Association) in June 2014 for the National Police Air Service insurance and risk programme.
11. What has been your biggest mistake and what did you learn from it?
When I incorporated opportunity risk into our prioritisation scoring matrix, which was complex. I learned to keep the process simple and easy to understand after that!
12. What quality do you most admire/like to see in the staff of your force?
The 3T’s (from my days at RSA) have always stuck with me in terms of what’s fundamentally important - truth, trust and teamwork. Leading by good example is also paramount along with integrity, honesty, being accountable for your actions, treating people with respect and giving reward and recognition to make people feel valued.
13.What are your top tips for climbing the career ladder?
Make the most of opportunities when they arise for being multi-skilled in different disciplines and involvement in projects. Pursue specialist qualifications such as the CII and IRM and attend training courses if they are available to you. Become a member or committee member of supporting organisations such as Alarm and AIRMIC, and attend their annual learning and development forums to network and share good practice.
The first half of 2015 has already seen a number of judgments handed down involving the police. Here is a reminder of what some of the most important ones dealt with.
In the Supreme Court
Considered whether the police owed a duty in negligence to a specific member of the public who had called 999 in fear for her safety/ life, having been assaulted. That same night she was killed by her ex-partner. The Supreme Court decided that no duty was owed in negligence. It was not necessary to develop such a duty in order to comply with Articles 2 or 3 of the ECHR.
Considered whether retention of records was proportionate for the purposes of Article 8 ECHR in the context of (i) a 91 year old nonviolent man’s participation in demonstrations organised by an extremist protest group; and (ii) a woman sent a Protection from Harassment Act notice following an alleged homophobic insult directed at a neighbour.
In the first case retention was deemed proportionate. Reasons included that there was only minor interference with the complainant’s private life and retention was justified by legitimate requirements of police intelligence-gathering.
In the second case retention of data for seven or twelve years (which would have been the case had the police not in fact erased the record after two and a half years) would not have been justified.
Considered indefinite retention of fingerprints, photographs and DNA profiles of convicted persons in the context of a man convicted in Northern Ireland of driving with excess alcohol (spent after five years). The Supreme Court considered whether the breach of Article 8 which such retention involved was proportionate. It decided that it was.
In the High Court
Considered whether the chief constable had breached his duty of care to an undercover police officer, who alleged to have suffered psychiatric injury as a result of a period undercover. He had used cocaine whilst on deployment and this made him unsuitable for further undercover work. The claim was rejected as the court found that the injury had not been caused by the undercover work, rather as a result of the sudden loss of identity and status suffered by the claimant after evidence of his misconduct emerged.
Anthony Crook -v- Chief Constable of Essex
Considered whether it was necessary and proportionate for a force to issue a press release of the ‘10 most wanted’ including a photograph of the claimant who had been accused of rape (for which he was subsequently cleared). The claimant pursued breach of confidence, breach of the Data Protection Act 1998 and breach of Article 8 ECHR claims. The court held that the release had not, in the particular circumstances, been necessary and proportionate, and awarded the claimant damages of £67,750 (including special damages).