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Preliminary Hearing Q&As

on Friday, 05 August 2016.

A General Investigations hearing and various investigation-specific preliminary hearings took place last week.

We set out some Q&As below regarding lessons we can learn from them:


Is there any more guidance on the provision of information to the Inquiry?

The Inquiry's redaction protocol still applies and can be accessed here.

However the Inquiry has also circulated redaction guidance to Core Participants which provides that:

  • the names and personal details of all anonymised core participants should be redacted and ciphered
  • the names of individuals convicted of child sexual abuse should not be redacted
  • the identities of individuals who are alleged to have committed child sexual abuse should be redacted and ciphered, unless their identity is very widely known (eg. where their name has been widely published in the regulated media, such that the allegations are fully in the public domain)
  • employees of institutions who are not alleged to have been involved in sexual abuse should not generally be redacted unless there is a specific good reason to do so and
  • children, other than Core Participants, whose names appear in the evidence, should be redacted and the Inquiry will apply a cipher if their identity is relevant to the investigation

Submissions were sought about this guidance at the preliminary hearings and there was particular concern about it and over potential 'jigsaw identification' of anonymised witnesses. The guidance will be reviewed.

 

Does the Inquiry have a fact-finding role in relation to allegations of abuse?

Is it right for the Inquiry to make findings of fact? What if the alleged assailant is unable to answer those allegations (such as Lord Janner who has since died)? How do such findings fit with the Inquiries Act 2005 ban on determining 'any person's civil or criminal liability'?

The Inquiry has heard extensive representations about this. Several commentators have suggested that the Inquiry need not consider whether allegations are justified in order to explore whether authorities breached their duties of care.

Further guidance may follow, but Ben Emmerson QC has suggested that the panel will only make findings of fact concerning allegations of abuse in the Janner investigation if three conditions are satisfied:

  1. Those findings are relevant to the discharge of the Inquiry's overall terms of reference
  2. They are open and available on the evidence and
  3. It is fair in all the circumstances to make those findings [and fairness must include the fact that Janner cannot answer the allegations made]

Mr Emmerson concluded by submitting that there was no need for the Chair to make any general ruling as to the Inquiry's approach to findings of fact or fairness at this point. These matters will not be addressed until after the receipt of all the evidence. However we anticipate that these general principles will apply to all investigations.

 

Will hearings be televised?

The Inquiry has determined that the hearings in the Janner, Anglican Church, Rochdale and Lambeth investigations will be televised as 'the considerable arguments in favour of broadcasting outweigh those against it'.  This will be effected in these investigations by:

  • a live-stream provided by the Inquiry, accessible from the Inquiry's website.
  • the operation of a 5 minute delay to the live-stream so that broadcast can be edited to remove material which would breach a restriction order, violate the right to anonymity under the 1992 Act, or accuse a person of criminal conduct without warning.

The appropriate redaction of transcripts if necessary.

The Inquiry has made it clear that this will be considered separately for each investigation and that core participants should be given the opportunity to make submissions about broadcasting in each investigation at the appropriate time, but it is difficult to envisage a different outcome given Justice Goddard's statement:

'As I said in my Opening Statement, this Inquiry intends to get to the truth of allegations of child sexual abuse and institutional failure. Such allegations have not been subjected to proper public scrutiny in the past and it is the purpose of this Inquiry to consider them openly and to reveal to the public the full extent of any institutional failure to protect children. The secrecy that appears to have traditionally surrounded child sexual abuse strengthens the imperative for public transparency and accountability in this Inquiry.''

 

What arrangements have been made for hearings to be made public?

The Inquiry has ordered that the following directions will apply to all hearings:

  • providing designated media seating in the hearing room and in an overflow annex showing live video of proceedings with a 5 minute delay
  • granting permission to use live text-based communications from the Inquiry room
  • providing live transcription of proceedings visible within the Inquiry room and
  • posting transcripts of oral evidence to the website
     

How will anonymity be protected?

The Chair has made a provisional restriction order that gives statutory anonymity to all complainant core participants and will make a final order shortly. The Inquiry accepts the need for appropriate protective measures during the hearings and will invite submissions on this in due course. The Inquiry was not yet at the stage of identifying with certainty which witnesses will be called to give live evidence at public hearings.

For core participants and witnesses whose identities have been anonymised pursuant to a restriction order, it is currently proposed that:

  • they will give their evidence in the hearing room without a screen
  • they will not be filmed during their testimony and the camera will be directed towards the Inquiry Panel and/or the lawyers
  • their voices will be subject to distortion
  • the press and members of the public will be excluded from the hearing during the course of their testimony. They will be able to watch proceedings which will be relayed to them subject to the 5 minute delay in a media annex.

No guidance has yet been issued as to protection of anonymity in documents.

 

Are there any investigation-specific updates?

Roman Catholic Church - directions have been given for this investigation, including:

  • applications for legal expenses by Core Participants, waivers of anonymity by complainant Core Participants and applications for anonymity by non-complainant Core Participants should be filed by 8 September 2016
  • any Core Participant wishing to file submissions in relation to applications by others for restriction orders must be filed by 22 September and
  • a further preliminary hearing will be held in the latter part of this year, but in light of the scale of this investigation, the hearing of evidence will not take place before June 2017

Child Migration Programmes (a case study in the Protection of Children Outside the UK) - directions have been given for this investigation, including:

  • applications for legal expenses by Core participants, waivers of anonymity by complainant Core Participants and applications for anonymity by non-complainant Core Participants should be filed by 8 September 2016
  • Any Core Participant wishing to file submissions in relation to applications by other Core Participants for restriction orders must be filed by 22 September and
  • A public hearing lasting up to 2 weeks is to be held in February 2017

Accountability and Reparations - directions have been given for this investigation, including:

  • applications for legal expenses made by Core Participants, waivers of anonymity by complainant Core Participants and applications for anonymity by non-complainant Core Participants should be filed by on 8 September 2016 and
  • any Core Participant wishing to file submissions in relation to applications by other Core Participants for restriction orders must be filed by 22 September

it is too soon to consider listing hearings of evidence.

In her opening statement, the Chair made a commitment to publish a series of issues papers on current topics and debates concerned with the identification and prevention of child sexual abuse.

The aim is to give any individuals and organisations who wish to do so, the chance to provide their opinions. All relevant submissions will be published on the Inquiry website, along with a report summarising the key themes from the submissions received. The first issues papers have been released for the Accountability and Reparations investigation seeking views on the effectiveness of the criminal compensation and the civil justice systems for victims and survivors of child sexual abuse in England and Wales, and responses are requested by 29 September. In particular they consider the extent to which existing support services and legal processes effectively deliver just outcomes to victims and survivors of child sexual abuse where there has been an institutional failure.

The issues papers will look at whether:

  • processes are accessible for all victims and survivors;
  • processes are conducted in as timely a manner as possible
  • claims are investigated fairly and claimants/applicants treated equally
  • claimants/applicants are treated with sensitivity
  • an apology and/or admission of liability is made (civil justice system)
  • an appropriate amount of compensation is awarded (Civil and existing procedures for criminal compensation).

Inquiry Chair, Hon Dame Lowell Goddard said:

“Many victims and survivors of child sexual abuse may be seeking more than financial compensation, or outcomes other than those currently available through the civil justice system in England and Wales. We want to examine whether, and how effective, current systems and processes are, and hear about the broader outcomes people may want to see.”

Following the responses, the Inquiry intends to arrange expert seminars of invited experts. The first is expected to be scheduled in or around late November, with others following in the early part of 2017.

Janner - The hearing of evidence in the Janner investigation will be postponed until 7 March 2017 to mitigate the risk that adopting an uncoordinated approach to gathering evidence from complainants could result in contamination of evidence and prejudice any future criminal trials (there are ongoing Leicestershire police and IPCC investigations) and may compromise the welfare of vulnerable witnesses.

Anglican Church - part of this investigation is focusing on case studies into the Chichester Diocese and the case of former Bishop Peter Ball and a 'great deal of evidence has been requested from a range of organisations to date'. Mr Emmerson confirmed that information has been requested from organisations tasked with investigating the response to child sexual abuse within the Anglican Church or which have done so, including the Independent Schools Inspectorate. No date has yet been scheduled for the next preliminary hearing.

Cambridge House, Knowl View and Rochdale - it is anticipated that a further preliminary hearing will be held towards the end of this year to determine hearing dates for evidence.

Lambeth Council Investigation - the hearing was adjourned to a date to be fixed in due course.

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