Court to consider fair hearing defence as woman sues stepfather’s estate over historical sex abuse allegations

The woman’s stepbrother, the executor of the estate, argued that the action should not be allowed to proceed because it would not be possible for fair hearing to take place, but a sheriff decided that she should hear the evidence before determining whether a fair trial was possible - the first time such a defence has been considered by the courts since a change in the law removed the time limit for raising an action for historical child sex abuse.

‘Historical abuse’

Sheriff Lorna Drummond QC heard that the pursuer “LM” averred that her stepfather “DG” sexually abused her for between 1981 and 1985, when she was between 11 and 15 years old.

She claimed that he would rape her at least twice a week during that five-year period.

The pursuer complained to Police Scotland in 1989 and again in 2001, but no further action was taken at the time.

On 13 March 2017, after further evidence came to light, the deceased was charged and served with a petition, but he died 11 days later, on 24 March 2017.

The woman, who claims she has required “psychological and psychiatric help” throughout her adult life as a result of the effects the abuse has had on her, raised the action in May 2017 - some 36 years after the alleged child abuse began - following a change in the law which removed the time bar for historical sex abuse cases.

Section 17A(1) of the Prescription and Limitation (Scotland) Act 1973, inserted into the 1973 Act by the Limitation (Childhood Abuse) (Scotland) Act 2017, provides that the triennium time limit in section 17 does not apply to an action of damages if (a) the damages claimed consist of damages in respect of personal injuries and (b) the person who sustained the injuries was a child on the date the act or omission to which the injuries were attributable occurred, or where the act or omission was a continuing one, the date the act or omission began, (c) the act or omission to which the injuries were attributable constitutes abuse of the person who sustained the injuries, and (d) the action is brought by the person who sustained the injuries.

The defender, the deceased’s son and the pursuer’s stepbrother claimed he had “no knowledge” of the events complained about since they were alleged to have occurred between 34 and 39 years ago, which in itself had a “devastating effect” on the quality of evidence.

Relying on section 17D(2) of the 1973 Act, he argued that it was “not possible for a fair hearing to take place” as the court could only ever hear “one half of the case”.

There was no means of presenting the deceased’s version of events and having his credibility assessed, of ascertaining his position in response to the allegations, nor of obtaining his assistance to gather evidence to refute, contradict or explain the pursuer’s account.

Nothing could be done at proof to offset the “prejudice” caused to the defender by the delay and associated loss of the evidence of the deceased, it was submitted.

‘Fair hearing’

However, the pursuer proposed to give evidence at the hearing and lead evidence from her sister, who also claimed that she was sexually abused by the deceased.

Evidence would also be led from a clinical psychologist, Professor Craig White, regarding the effects of sexual abuse suffered by the pursuer on her mental health.

The pursuer averred that she had been diagnosed with post-traumatic stress disorder and that she suffers from “anxiety and depressions, flashbacks and sleep deprivation”, adding that she had struggled to sustain employment as a result of the effects of the abuse.

The defender would have the opportunity to cross-examine these witnesses if the matter was allowed to proceed, it was submitted.

There was also transcript of the deceased’s police interview from February 2017, during which he answered “no comment” to many questions, but also made specific denials that various incidents occurred and stated that the pursuer and her sister were “liars” and that the abuse did not happen.

The pursuer argued that by removing the time bar for historical sex abuse cases, Parliament recognised that “safeguards” required to be built into the legislation for defenders; section 17D was included to ensure the legislation was complaint with the right to a fair trial under Article 6(1) and Article 1 of Protocol 1 of the European Convention on Human Rights.

The pursuer’s position was that the court required to hear all the evidence in the case before the preliminary issue raised by the defender could be determined.

Dundee Sheriff Court was told that thus far there have been no decided cases in Scotland under section 17D, but reference was made to a number of Australian authorities and cases from the European Court of Human Rights.

‘Novel case’

Ultimately, the sheriff decided that, in order to determine whether it was possible for a fair hearing to take place, evidence should be heard.

She described it as a “novel case” under section 17D of the 1973 Act, which was “previously untested by the courts”.

In a written judgment, Sheriff Drummond said: “Section 17A(1) provides that the time limit of three years in section 17 of the 1973 Act does not apply to an action of damages for sexual abuse where the conditions set out in that section are fulfilled. The section was enacted recognising that cases of childhood abuse have unique characteristics which justify a specific limitation regime.

“Section 17D(2) provides that the case should not be allowed to proceed if it is not possible for a fair hearing to take place. Parties were agreed that the onus is on the defender to satisfy me that it is not possible for a fair hearing to take place. That is the statutory test and, I am told, this is the first case where the courts have applied that provision.

“I accept in this case that it is known that the court will hear the pursuer’s version of events. The pursuer proposes to give evidence and lead her sister and Professor White, clinical psychologist, as witnesses.

“It is also known that the deceased will not be able to give instructions or give evidence at the hearing. However, it seems to me that it is not accurate to say that there is no meaningful record of the deceased’s response to the allegations.

“The content of the police interview at the very least would allow the defender at a hearing to refute the allegations. Further, some of these replies may be evidentially significant and some may be capable of investigation by the defender.

“In the present case there is a basis on which to cross examine the pursuer and her sister. At the very least their accounts can be tested against their police statements and possibly against each other’s accounts too.”

The defender had argued that it would be “illogical” to require the hearing to take place before a decision on the fairness of the hearing is reached, but the sheriff considered that to do otherwise “runs the risk of making a decision in the abstract based on speculation and false prediction”.

She added: “In particular, I cannot properly and fully assess the significance of the police interview, nor the extent to which the evidence may be capable of being challenged by the defender, without assessing the evidence as a whole and the hearing overall.

“I accept, on the face of it, that the absence of the deceased may cause problems for the defender, but whether, as a consequence of that, the hearing becomes nothing more than a formal enactment of the process of hearing and determining the claim, cannot be objectively determined in the abstract and before any evidence is led.

“I appreciate that will mean the pursuer and her sister giving evidence with the possibility nonetheless that the proceedings may be later dismissed, but that risk exists to some extent in all cases. It does, in my view, allow the court to properly assess the fairness of the proceedings as a whole.

“The defender does not lose the opportunity to raise section 17D(2) once the evidence had concluded, or at any stage to raise questions about the fairness of the hearing under section 6 of the Human Rights Act 1998. But the issue is, in my view, premature at this stage.”

The sheriff therefore fixed a proof before answer and a pre-proof hearing.