Lord Janner: Pressure mounts for a criminal prosecution
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The Sunday Times for the 26th April 2016 reports on the growing pressure for a criminal prosecution against Lord Greville Janner. Lord Janner and his family have consistently denied all allegations that he abused children.
Earlier in the week, I read a column in the Times by Lord Pannick QC. He made the point that a criminal prosecution against a Defendant with severe dementia was simply not permissible under the present law. However later on that week, I heard Linda Lee, a former president of the Law Society speak on Radio 4. She questioned the psychiatric evidence that apparently persuaded the Crown Prosecution Service not to prosecute Lord Janner. Last week, the Sunday Times revealed a letter apparently signed by the peer, confirming his wish to remain a member of the House of Lords, 10 days before the decision was made not to prosecute him.
What about a claim for compensation brought directly against a person who has severe dementia?
First of all, victims of childhood abuse always have the option of applying to the Criminal Injuries Compensation Authority. The absence of a successful prosecution is not a bar to making such a claim, as is made clear in the present Scheme for compensation.
Secondly a claim brought in a civil court directly against an alleged abuser who has dementia, will not fail for that reason alone. In a case reported last year, Bradbury and Others v Paterson  EWHC 3992, former patients of a surgeon were suing him for damages arising out of alleged negligent surgery for breast cancer. During the course of the litigation, towards the end of 2013 he became increasingly unwell due to the pressures he was under and his solicitors obtained a psychiatric report upon him which supported the view that he lacked the capacity to give instructions for the purposes of this litigation. The court made orders in each of the actions that the Official Solicitor should be appointed to act as the First Defendant’s litigation friend pursuant to CPR 21.3(3).
However there is still the defence of limitation. Normally a person abused in childhood has until their 21st birthday to bring a claim. The court has the power to waive that time limit under section 33 of the Limitation Act 1980, as long as it considers the various factors listed in that section, including the need for a “fair trial”.
Those acting for a Defendant accused of abuse many years back will argue that he or she cannot have a fair trial because the allegations relate to matters that happened so long ago, and because the Defendant’s psychiatric illness make it impossible for him/her to speak in court. On the other hand, courts have been less than impressed that the absence of a Defendant in court makes a section 33 argument more difficult. This is what happened in Raggett v Society of Jesus  EWHC 909 (QB) where the abuser, one Father Spencer had died by the time, the case came to court. Justice Swift waived limitation in the Claimant’s favour and said:-
“Viewed realistically, however, it is difficult to envisage circumstances in which a denial of the abuse by Father Spencer (assuming he had denied it) would have prevailed over the evidence of the claimant and his witnesses. In particular, he could have had no plausible innocent explanation for the contents of his letter of 28 June 2000. Nor would a denial from other members of staff at the College (in addition to Father Edwards, who provided a witness statement) have been likely to be determinative. They may have been understandably reluctant to admit having any knowledge of Father Spencer's activities. They may genuinely not have been aware of them – as Mr Malone was apparently unaware of the deeply unsatisfactory behaviour of Father Spencer which led to Father Wren's letter requesting his removal from the College. I regard it as highly unlikely that the availability of other members of the staff of the College would have improved the second defendants' prospects of succeeding on the issue of liability. As to documents, most of the second defendants' documentation was still in existence and they were not able to point to any specific document(s) which were unavailable and would have been likely materially to have affected the outcome on liability.”
Malcolm Johnson is an Associate in the London office of BL Claims Solicitors. He is one of the authors of “Child Abuse Compensation Claims” published by Jordans.
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