Using Expert Evidence To Prove Historic Sexual Abuse

Prove Historic Sexual Abuse

Olympic diver Brian Phelps, who won a 1960 bronze medal at the Rome Olympics as a teenager, was jailed in 2008, aged 64, after admitting a string of sexual assaults against three children. The offences were committed when Phelps worked as a trampoline and swimming coach. Fifteen years after Phelps was imprisoned, ‘Emma’ (not her real name) told the BBC that in the 1970s, she was raped and molested by Phelps from the age of five and she believed there were a further 12 victims. This is just one of several recent high profile allegations of historic sexual abuse, which include ‘The Forgotten Boys’, a group of former students at a council-run school in Liverpool who claim they suffered horrific physical, emotional, and sexual abuse at the hands of school staff.

Claims of historic sexual abuse are heard in the criminal and civil courts, the latter being claims for compensation, typically against local authorities, sports clubs, and other organisations such as religious institutions. Civil claims often rely on establishing vicarious liability, an arduous task in itself. Adding to this is the challenge of proving the abuse took place after time has eroded physical evidence and memories. And the task of providing credible and persuasive evidence starts right at the beginning of the process, by way of convincing the Court to use its discretion under section 33 of the Limitation Act 1980 to allow a claim to be heard even though it is time-barred.

Bringing a time-barred historic sexual abuse case

Under the Limitation Act 1980, a personal injury Claimant has three years from the time of the accident or from when they became aware of the negligence to bring a claim. If the Claimant was under 18 years when the personal injury occurred, they have three years from the date they turn 18 years to bring a claim.

The Courts seldom allow out of time claims to proceed as to do so can risk prejudicing the Defendant due to, among other factors, the fading memories of witnesses. Section 33 of the Limitation Act 1980 does allow the Court to exercise its discretion to disapply the limitation period and most historic sexual abuse claims must first cross this hurdle.

In London Borough of Haringey v FZO [2020] EWCA Civ 180, the Defendant appealed to the Court of Appeal on several grounds, one being that the judge at first instance had erred in using her discretion under section 33 to disapply the personal injury limitation period.

Expert evidence from Psychiatrists stated that challenges arose from the fact that material events took place over 30 years previously.

“… and memory is often not reliable over such long periods of time. We agree that recall is an active mental process and that sometimes the content and meaning of recollections change with time”.

They also agreed that the Claimant’s recall might have been further affected by drugs and alcohol.

On the issue of limitation, the expert witnesses made a joint statement expressing to the Court that the reason the Claimant did not make a complaint for many years was because he did not regard the relationship to be abusive. The also agreed that the delay had “greatly complicated the work of the expert because of a deterioration in the cogency of the evidence as the result of the passage of time.”

In applying this and other evidence to the issue of limitation, the Court of Appeal ruled that the judge at first instance had not erred. Although the Claimant’s evidence did contain some inconsistencies, as noted by the experts, they were not enough to justify disapplying the limitation period. Furthermore, In addition, although the psychiatric experts disagreed as the scale to which the delay had made their job more difficult, they were still able to reach conclusions and debate these in Court.

Evaluating quantum of damages in historic sexual abuse cases

Expert evidence is also typically required to assist the Court in assessing quantum of damages in an historic sexual abuse negligence case.

In TVZ v Manchester City Football Club Ltd [2022] EWHC 7 (QB); [2022] 1 WLUK 11 (QBD), the Claimants sought compensation for sexual abuse perpetrated by a coach working for the Defendant football club in the early 1980s. As well as giving evidence concerning the issue of disapplying the limitation period, the expert Psychiatrists provided substantial evidence in relation to quantum for each Claimant. This involved examining the damage the sexual abuse caused to the boy’s developing personalities, whether or not PTSD existed and if so, to what extent and duration, other consequences of the abuse, including the long term effects on the Claimants’ education, careers, and relationships, their mental health, and the loss of chance concerning their possible football careers.

How can Expert Court Reports Ltd help?

At Expert Court Reports, our team of skilled and highly qualified psychiatrists and psychologists are regularly instructed to give expert evidence in historic abuse cases. They provide invaluable assistance to the Court in not only establishing whether the abuse occurred, but also on matters involving time-barred claims and quantum assessments.

Based on the details of the historic sexual abuse case, we will prepare an expert witness report and provide oral evidence on behalf of your client in court to ensure they achieve the best possible outcome.

How can Expert Court Reports Ltd help?

Expert Court Reports provides expert witnesses and medicolegal court reports for solicitors, barristers and other agencies, including the police, probation services, prisons, and third-sector organisations, as well as private clients.

To discuss any issues raised in this article, please call us on 01865 587865, email office@expertcourtreports.co.uk, or request a call by completing our online form.