Legal: No balance over criminal and civil cases

Someone who says that many years ago he or she was the victim of abuse will find it almost impossible to bring a claim for damages in the civil courts.

On the other hand, if taken up by the prosecuting authorities identical allegations will almost certainly result in prosecution in a criminal court.

Why is it so much easier to bring a criminal prosecution than to bring a claim for damages?

The death of such a high-profile, apparently abusive individual highlights the problem. Criminal prosecution is no longer possible for him. A claim for civil damages against his estate or against those vicariously responsible may now be the only opportunity to establish the truth in a court of law. Of course, the media feeding frenzy and the consequent scope for opportunists to make bogus claims must be taken into account. The fact that the person against whom the allegations are made is dead and cannot challenge them must be weighed in the balance in considering whether it is safe to proceed.

One might have thought that the lower standard of proof – balance of probabilities as opposed to the criminal standard of proof beyond reasonable doubt – would enhance the prospects of success in civil cases.

However, most civil claims would fail because of the strict three-year time limit set out in the applicable legislation. This period can only be extended at the discretion of the court. That discretion will not be exercised in the claimant’s favour unless the delay can be justified and an absence of prejudice demonstrated. Unless the defender can show that he is prejudiced because of the non-availability of witnesses, the absence of documents or the inability of witnesses to remember specific details then the court will not override the time bar.

It has also been made clear that in civil cases delay is not to be excused because of the psychological effects of abuse or the fear of not being believed. Recently, the Inner House also spelled out that suppression of memory is not a good reason either.

As one commentator put it in 2007: “The prospects for victims of (historic) child abuse, at least in securing ‘compensation’ through the civil courts in Scotland, seem now wholly circumscribed if not excluded. Even if justified under current law broader questions of justification – for others – remain.”

The hardline approach was reaffirmed by the House of Lords in AS v Poor Sisters of Nazareth 2008 SC (HL) 146 where Lord Hope said: “[Serious] breaches of the criminal law are not … subject to any time limits. But in the case of civil justice the position is different. It has been observed repeatedly that where there is delay the quality of justice diminishes. Witnesses may have died, memories become dimmed and relevant documents may have been destroyed and lost. As time goes on these effects may become less easy to detect, and this in itself is apt to produce injustice.

“Times change too, and conduct which may seem reprehensible today may have been regarded as acceptable or even as normal many years ago.”

No-one could seriously dispute that these are powerful reasons. Neither can the court’s interpretation of the applicable legislation concerning time bar be criticised.

What is difficult to understand is why there should be such steadfast resistance in the civil courts when exactly the same allegations would be pursued in the criminal courts. Surely the same delay reduces the quality of prosecution evidence to the same extent. The same witnesses die, the same memories fade and the same documents are lost and destroyed.

Exactly the same danger of judging past behaviour by today’s standards arises whether the claim is brought in the criminal as opposed to the civil courts.

Yet there is not a single modern example of a Scottish criminal court being prepared to hold that an accused should not face trial because there is no possibility of a fair hearing due to the passage of time.

In HMA v K 2011 SLT (Sh Ct) 205 the accused successfully argued at first instance that the delay was fatal. Sheriff Pender ruled that two persons charged with assaults allegedly having taken place in 1970 and 1971 should not face trial in 2011 due to the very long delay, loss of written records and the death and unavailability of potential witnesses. On appeal the High Court reversed his decision. Its reasons for so doing are not yet available.

What is clear is that none of the alleged victims would have the remotest prospect of a civil remedy. A civil court would hold that the prejudice caused by the delay was fatal to any extension of the time limit.

In the end the reason for the difference in treatment is simply that there is one rule for criminal cases and another rule for civil cases. Neither rule is satisfactory. Consistency demands that there be an adjustment to both so that those accused secure a fair trial and those genuinely abused secure a remedy.

Although the prospects for systematic reform look bleak there may be a glimmer of hope in civil cases. The Scottish Law Commission looked at the rules governing civil claims as recently as 2007 and did not recommend any major alteration. However, the Scottish Government is currently consulting on the issue of time limits in damages claims, and in particular whether there should be special rules in cases of historical sexual and physical abuse. The consultation ends on 15 March.

Surely the answer in civil cases is to remove the time limit altogether where serious criminal conduct causes personal injury. The test in such cases should be: can the delay be adequately explained and is a fair hearing still possible?

In criminal cases judicial development of the rules seems very far away. The current test is whether the prejudice caused by the delay is so grave that it cannot be removed by an appropriate direction by the trial judge to the jury. This test was developed in another context – prejudicial pre-trial publicity. It is at best doubtful whether it is suitable for the quite different questions that arise where there has been a long delay between events and the investigation of them.

The test begs the question as to what precise directions are to be given to the jury as to how it should deal with fading memories, unavailable witnesses and lost documents. It leaves considerable uncertainty as to what extent a jury takes such directions into account when reaching its verdict. There might be scope to challenge a conviction on the basis that the reasons for a particular jury’s verdict are unclear. There is just possibly some basis for such an approach in the Strasbourg jurisprudence.

The assiduousness with which the court protects a defender in a civil action does not recur when the same allegations are tried in the criminal courts. For consistency and common sense it is high time that it did.

• Simon Di Rollo QC is an advocate with Ampersand stable