UK: Tensions Between Criminal And Civil Investigations

Why should a victim of abuse be penalised by any time delay caused by the criminal prosecution?

Why should the claimant’s solicitor be expected to bring civil proceedings with one arm tied behind his back?

Because the abuser faces the possibility of imprisonment the law appertaining to unused material in criminal trials has been extended considerably so as to ensure that all documents, whether relevant or not, are shown to him. In this respect the law has moved considerably in the last few years. For understandable reasons the claimant’s solicitor is not allowed to see any documentation until the criminal trial is over. After its conclusion however, the very same documents attract the protection of public interest immunity provisions and the Data Protection Act 1984. The Police are not allowed to release any "personal data" under the Data Protection Act legislation without that person’s consent. No exception is made in the legislation for civil proceedings. The law ought to be changed. The Police will not release any documents over which they had interim custody during the criminal trial unless they are the owners of those documents. The Police return the documents to their owners, and leave the claimant’s solicitor to obtain the documents direct. This causes delay. The home owners or their insurers, historically, have refused to disclose those documents until discovery in the civil proceedings. In the North West Cases we have still not reached the discovery stage two and a half years into the action. The Police should be allowed to release documents they have held during the criminal process. Similarly the Police will not release the names and addresses of witnesses from whom they have taken statements. Particularly useful are care workers or managers of the home. The Police kindly operate a post box procedure whereby they send out proforma letters to witnesses we identify whose addresses they hold on their Database. To preserve confidentiality we give certain undertakings. The process is convoluted and time consuming. If we were allowed access to unused material a huge amount of time and expense would be saved to not only the Police but ourselves. We would still need to liase with the Police as to the progress of criminal trials. "Public interest immunity" is a phrase that can be stretched and manipulated to cover any instance which suits the case at the time. There are many valid instances of its use, but in the writer’s opinion this is not one of them.

As most of these cases occurred many years ago one has to rely upon the exceptions contained in the Limitation Act in order to persuade the court to deal with them. It is difficult to assess when date of knowledge starts. Because the test is both subjective and objective the clock could start ticking on a number of different dates. Without going into copious detail, any delay in the police investigation and prosecution can prejudice the claimant’s limitation position.

At a Police Conference in Cheltenham at the end of October 1999 I explained the tensions between the criminal and the civil investigation to an audience of Senior Police Officers involved in child abuse investigations. They were sympathetic and understood more clearly the problems involved in the two processes. I am campaigning for a change in the provisions of the Data Protection Act 1984 so as to allow unused material and personal data to be released by the Police to ourselves. I have also suggested new Home Office guidelines similar to rules issued for road traffic accident reports at the end of the 1960’s. All Police Forces are independent of each other, and sometimes a Police Force I have not dealt with before refuses to co-operate at all.

Any police witness could be warned when their statement was being taken that their details may be released to claimants’ lawyers after the criminal trial is over. They could even given their written authority at the time. It would therefore not offend their sense of privacy to be contacted after the police prosecution was over by the claimant’s solicitor. I would not have to conduct group actions with one arm tied behind my back.

In the Beck case a lot of useful evidence was unearthed by a Public Enquiry. Sadly, it is unlikely that Central Government will spend another ten million pounds upon a public enquiry for the North West Cases in a similar way to North Wales.