New child abuse trial guidelines

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New guidelines have been published in respect of the prosecution of child abuse cases in England and Wales.

They are also to be applied to adult victims of sexual abuse in childhood. Emphasis is placed on the credibility of allegations as opposed to the conduct of the victims and whether they would be deemed to be competent at giving evidence in court. Director of Public Prosecutions, Kier Starmer, has described this as the biggest shift in a generation. This has been welcomed by Alan Wardle of the NSPCC who described that the changes: "will start to make a positive difference for child sex abuse prosecutions which in the past have been dogged by difficulties". This may also help the police in dealing with the surge of historical child abuse cases, post Jimmy Savile. Chris Doidge reported for the BBC that: "The number of allegations rose by 70% after Jimmy Savile's past was widely publicised, but arrests fell by 6% over the same period."

Mr Starmer discusses the concept of the 'model victim' and how common myths and stereotypes surrounding this idea are to be done away with. He referred to the list of these preconceptions which can now be actively challenged in court and are contained in Annex C of the guidelines:

  • The victim invited sex by the way they dressed or acted
  • The victim drank alcohol or used drugs and was therefore available sexually
  • The victim didn't scream, fight or protest and so it can't be a sexual assault
  • If the victim didn't complain immediately then it wasn't a sexual assault
  • A victim in a relationship with the alleged offender is a willing sexual partner
  • A victim who has been sexually assaulted will remember events consistently
  • Parents should know what is happening to the victim and be able to stop it
  • Children and young people can consent to their own sexual exploitation
  • Sexual exploitation only happens in large towns and cities
  • It only happens to teenage girls by adult men
  • The victim is usually living in a care home away from their family
  • Sexual exploitation is only perpetrated by certain ethnic/cultural communities
  • It only happens to girls and young women
  • Sexual abuse and exploitation does not happen to children and young people from Black and Minority Ethnic (BME) backgrounds
  • Children who are being abused will show physical evidence of abuse.

In short sexual abuse can take place in any context and to an individual from any background. Mr Starmer elaborated that: "For too long, child sex abuse cases have been plagued by myths about how 'real' victims behave which simply do not withstand scrutiny. The days of the model victim are over. From now on these cases will be investigated and prosecuted differently, whatever the vulnerabilities of the victim."

From the abuse cases this firm takes on it is evident that victims behave and react to abuse in different ways. It would seem that these new guidelines have been devised in a bid to encapsulate all manner of child abuse, and indeed historic abuse cases, in the wider context, and recognises that there is no one model of child abuse. Perhaps more importantly the document acknowledges that the perpetrator, or perpetrators, will abuse in the context of manipulation and control. They will often isolate and befriend the victim in order to gain their trust, enabling them to carry out the abuse in a discreet manner. The perpetrator will more often than not extend this manipulation and control over the victims' families or carers, further isolating the victim and making the abuse more possible without raising suspicion. The abuser will work in such a way that the abuse is masked by normality: "The fact that a victim of abuse is maintaining a seemingly normal routine does not mean that they cannot have been the victim of sexual abuse." This is how they are able to carry out their crimes. However the guidelines stipulate that prosecutors in particular should be vigilant:

"Prosecutors should also be aware that offenders may use various control elements as a tool to stop the victim reporting the sexual abuse. For example the control might take the form of threatening to publish photographs or recordings of them, including images of them naked or being abused or threatening harm to the victim and/or their family."

A joint protocol for information sharing has been published by the Crown Prosecution Service alongside the Guidelines on Prosecuting Cases of Child Sexual Abuse. This means that police and prosecutors are obliged to share information about those individuals who are suspected to be vulnerable to abuse, with all manner of government institutions, namely social services, schools and family courts. This will hopefully speed up the process of collecting and sharing evidence as well as making the evidence more compelling in order to ultimately secure a conviction against the perpetrator. In addition this may help with the process of any victim making a claim for compensation for the abuse they endured.

Most victims, as children, are not in the frame of mind and neither have they reached the stage in which they could contemplate the litigation process. Consequently many clients do not instruct solicitors until they are adults. Such a client presents themselves with a limitation problem, in that in order to make a personal injury claim they have to issue legal proceedings three years after the date upon which the incident or period of abuse occurred or before they reach their 21st birthday. However, the Limitation Act takes into account the fact that those individuals who have been subject to abuse in childhood cannot commence legal proceedings until they are an adult for various complex, and often psychological reasons. Nevertheless overcoming this limitation problem is not guaranteed, and any application to waive the limitation deadline is strengthened by a conviction or at least a criminal trial.

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