HJ Talks About Abuse

Do lawyers push child sexual abuse survivors into making compensation claims?

The answer as far as we are concerned is No!

The reason why this question features in our latest podcast is because it was said at the recent IICSA hearing into accountability and reparation.

IICSA was and is looking further into redress for child sexual abuse (CSA) survivors.

Evidence has been given that suggests the existing justice systems are not working effectively for survivors. Many are unable to claim compensation, and where it cannot be awarded, often is not.

There are powerful arguments to say that much needs to change, but it is not clear how and whether the lot of survivors can be improved.

The civil justice system has come under scrutiny and that will be the subject of a further podcast, but for the moment let’s look at what happens when a survivor approaches us for the first time.

We try to provide a holistic approach in the sense that we point out that the survivor is in charge of the discussion, and no one is ever going to make them do anything that they do not want to do. We recognise that survivors in other settings, perhaps, feel compelled or obliged to do as they asked. We try to engineer a sense that they feel no compulsion to do anything, and to do nothing is fine.

We consider it vital to allow the survivor to tell us whatever they feel necessary. Yes we may ask questions to clarify or to understand what we might have heard.

If asked we can advise as to the legal options that might be available. We might signpost the survivor to the police, or elsewhere for services that they might need.

This is the opposite of telling survivors what to do. It is not our place to tell them. It is our place to advise and inform, and to represent if that is what they want.

We have to be frank when advising. If legal action is appropriate we have to advise that and explain what is involved. If legal action is not possible we have to explain that too. We have to do this so that survivors can make informed decisions and it’s about empowering and not telling them what to do. That is an important and fundamental difference.

It is clear from the IICSA hearings that there is a major information deficit for survivors who by and large are not being informed of their civil rights by those who are in a position to do so. Survivors are too often dependent on those who ought to know but do not, and that just exacerbates the problem. This is a cause that we are trying to pursue with parliamentarians who we consider have a particular responsibility to make sure that the laws that have been passed to assist with redress are observed and enforced.

Jeffrey Epstein and Prince Andrew - Relationships

The recent BBC interview with Prince Andrew about his relationship with US financier and convicted sex offender Jeffrey Epstein attracted to put it neutrally, some controversy.

The interview was unprecedented and the prince explained his “friendship” with Epstein which has come under considerable scrutiny since the American killed himself in August while awaiting trial on sex trafficking charges.

Prince Andrew said it was wrong of him to visit and stay at Epstein's house in 2010 after the financier's conviction but that he did not regret their entire friendship. He also categorically denied any allegations of wrong doing on his part.

In this podcast we are not going to comment on the allegations or pass judgement but what we are going to do instead is talk about relationships, and that is those that are shared with sex offenders.

Before doing so we will recap a little on Epstein to provide context.

Allegations against Jeffrey Epstein started surfacing in 2005 when the parents of a 14-year-old girl told police in Florida that Epstein had molested their daughter at his Palm Beach home. He was accused of paying girls under the age of 18 to perform sex acts at his Manhattan and Florida mansions between 2002 and 2005.

It transpired that a controversial secret plea deal in 2008 saw him plead guilty to a lesser charge of soliciting a minor for prostitution. He received an 18-month prison sentence and was released on probation after 13 months.

In July 2019 he was charged in New York with further allegations of sex trafficking and conspiracy and was due to face trial next year. He pleaded not guilty to all the charges but was facing up to 45 years in prison if convicted.

In his interview Prince Andrew explained his friendship with Epstein and how and why it continued post-conviction and this has led us to choose to explore the issue of relationships with sex offenders.

Most victims of sexual abuse know their abuser. It’s an uncomfortable fact of life that sexual abuse frequently occurs within the familiarity of a relationship no matter how damaged that might be: the father who sexually abuses his daughter, the uncle who abuses his nephew and so on.

Relationships provide a misplaced sense of normality. Survivors will say that they thought the abuse was “normal” because they knew no different. There may have been grooming too on the part of the abuser to manipulate the relationship.

The abuser exerts considerable power not just over their victim(s) but those around them who can also be groomed. We have seen many a case where the survivor has explained that family members turned a blind-eye to what was happening, or were themselves in the thrall of the abuser. There has been many a case where the abuser was considered to be a model citizen – the “pillar of the community” but this was just a sophisticated disguise that took in those close to him/her, enabling them to abuse. There have been many high profile cases of late where the abusers were committing child sexual abuse in plain sight but those around him allowed this to happen by closing not just their eyes so to speak but their minds too.

In summary we can learn what we want from the Prince Andrew interview but we suggest that it gives pause for thought, because it provides an opportunity to understand how child sex offenders operate, and how in particular they use innocent people (the wise as well as the unwise) to achieve their perverted desires.

HJ Talks About Abuse: Safeguarding in the Roman Catholic Church

The IICSA Roman Catholic Church investigation has recently concluded. IICSA was examining safeguarding in the Roman Catholic Church and the interwoven issue of mandatory reporting.

The last day of the hearing (8^th November 2019) was concerned with the hearing of submissions by the lawyers representing the various parties. I was concerned to make the point that there was a moral and legal obligation on the Roman Catholic Church to accept what needed to be done to ensure that there was adequate safeguarding so that children and young people would be safe.

I quote in part the submission I made:

Over the course of the last few days, we have heard much about cardinals, bishops, dioceses, conferences, commissions, priests, and I have to say, or I have to confess, that I do not pretend, even now, to fully understand how the Roman Catholic Church, in these many guises, actually functions, but it is abundantly clear that, when it comes to safeguarding, the levers of power are operated by a very small number of people. Maybe that helps to explain why the Roman Catholic Church has failed when it's come to safeguarding and continues to fail when it comes to safeguarding. Those failures arise from a failure of leadership which is the fruit of a dysfunctional culture.

It is patently apparent that the Roman Catholic Church in this country is incapable of fulfilling its safeguarding obligations. Those safeguarding obligations can only be met when the culture is right and when there is the right leadership.

It was very telling yesterday, I thought, towards the end of Cardinal Nichols' evidence, when he was asked about mandatory reporting and the seal of confession.

He said, and I quote:

"The history of the Catholic Church has a number of people who have been put to death in defence of the seal of confession. It might come to that."

He went on, but for my purposes, we will leave it at that.

That patently demonstrates that the Roman Catholic Church has hitched its star to a wagon where the primacy of the Roman Catholic Church and the interests of its priests are paramount at the expense of all else, and in this context, the interests of children, young people and survivors.

I ask myself, what is leadership in the Roman Catholic Church? And I would like to repeat a quote, give a quote, from Cardinal Newman, who converted from the Anglican Church to the Roman Catholic Church in the mid 19th century, and he was appointed as a cardinal in 1879. He said this:

"Among the obligations of a cardinal, I am pledged never to let my high dignity suffer in the eyes of men by fault of mine, never to forget what I have been made and whom I represent, and if there is a man who more requires the support of others in satisfying the duties for which he was not born and in making himself more than himself, surely it is I."

That speaks of humility. It speaks of humility to me. That is my understanding.

The leadership of the Roman Catholic Church needs to express humility because there can be no other way. If the Roman Catholic Church is to genuinely embrace safeguarding, given all the opportunities it has had so far -- with Nolan[i] and Cumberlege[ii] -- it has got to find a new way, and it is quite clear, I would submit, that it's incapable of doing it by itself.

And so it is inevitable that there is going to have to be statutory intervention. A regulator or a commissioner is going to have to be appointed by parliament to ensure that the Roman Catholic Church meets the most minimum standards of when it comes to safeguarding.

How those various orders and dioceses and various bodies come to terms with that will be of their choosing, but if they are to have a future, a future that enables them to work with children and to have a future, then they are going to have to embrace those minimum standards, and maybe, from what you have heard, you may be of the opinion that maybe there is a chance there, but that chance will never flourish unless the Roman Catholic Church conforms to what is expected by our society in the 21st century. There can be no other way.

It is no good for a cardinal to say, "If we don't like it, we will reject it". That is not acceptable. It is not acceptable in the civilised world in the 21st century.

The issue is not what is said in confession. The seal of confession is not a talisman. Mandatory reporting, in itself, is no panacea, but it's an expedient part, an important part, an integral part, of what safeguarding is all about.

It is essential that the Roman Catholic Church comes to accept that. It cannot, as we heard earlier on, simply "pick and mix". It's not going to work.

What is going to be required, in my submission, if there is to be statutory regulation, is some minimum standards, and we will expand on this in the written submission. But getting back to culture and leadership, one of those minimum standards should be that child safety is embedded in institutional leadership, governance and culture, and I will repeat that because I say this goes to the heart of what you are looking at: child safety is embedded in institutional leadership, governance and culture.

Such standards, or something very similar, would provide a benchmark by which the Roman Catholic Church can measure itself. It also provides a benchmark for a regulator or commissioner to judge or to measure the Roman Catholic Church by.

That must surely be the way to go[iii].

If the Roman Catholic Church chooses not to, then it has to live with the consequences. I am sure you are not going to simply produce a retread of Nolan and Cumberlege, because it is patently apparent, as I have said, in all that you have heard, from the evidence submitted to you, that mandatory regulation with mandatory reporting is going to be necessary

I would like to close on this note, to pick up on what the cardinal said to you yesterday, and it was telling when he talked about the history of the church, but very revealing. Perhaps it was unfortunate for him to have said it in the context of this inquiry, because it reminded me of the German theologian Dietrich Bonhoeffer, who was executed in Flossenburg concentration camp in 1945 for standing up against tyranny, oppression and wrong. He went to his death because of his faith and because of what he thought he was fighting for and for what he thought he was going to his death for. He said this:

"The ultimate test of a moral society is the kind of world that it leaves to its children."

It is inevitable in my opinion that mandatory reporting will be introduced and it is only a question of when. It is impossible to see how there can be an exception for catholic priests who may hear about CSA in confession. The Roman Catholic Church will have to find a way to move on from its entrenched position in relation to the seal of confession. 

 

[i] http://bitly.ws/6NFs

[ii] http://bitly.ws/6NFx

[iii] The Tablet www.thetablet.co.uk 14.11.19 accepts that priests are going to have comply with the law or face prison

HJ Talks About Abuse: Empathy

Our latest HJ Talks About Abuse podcast is on the topic of 'empathy'.

We have chosen this as a subject because we were asked by one of our listeners to explain how we manage our emotions when dealing with Child Sexual Abuse cases.

The question is apt because empathy or perhaps the lack of it was explored at the recent IICSA hearing in to the Roman Catholic Church.

Baroness Hollins when she gave evidence to IICSA said, in relation to church leaders in the Roman Catholic Church:

"I think my perspective is that people understand the need for procedures and policies, but at a cognitive level. There is a sort of cognitive empathy, but not an emotional empathy. It's the failure to actually understand at a deeper level what the...why this really matters. I believe that we can teach empathy.

"I believe empathy can be taught. But if it hasn't been taught, and if...and not everybody develops empathy naturally. If people have grown up in a particularly empathetic family, maybe they will have more emotional connectivity and more emotional understanding. But my sense is that some people didn't get it at an emotional level, and that doesn't mean they didn't get it at a legalistic perspective."

As lawyers we have to be professional and strive to the highest of standards, but we are human! We can only be taught so much, and we have to find our own way in developing the skills we need to relate to people, and not just clients. We can watch and learn and see how others deal with unfamiliar situations and conversations.

Turing to Child Sexual Abuse it is needless to say not an easy subject to discuss, let alone raise in conversation, but through experience we have hopefully learnt enough to do so.

We have to remain emotionally detached. That might sound cold but we have to be in order to be objective. Clients such as Child Sexual Abuse survivors come to us not for sympathy, but for advice and representation. We cannot deliver if we lack objectivity and so we have to remain emotionally uninvolved, but we can and should have empathy.

Empathy is not sympathy. Empathy is the ability to understand and share the feelings of another or to put it another way, standing in the shoes of another, whereas sympathy is feeling sorrow or pity. The practical difference as practitioners is to try and see matters from the client’s perspective as opposed to saying “I understand what you are going through” which unless you have gone through their experience it is impossible.

To provide objective advice and representation we have to be conscious of that distinction.

Can empathy be taught? On the basis of experience and training then yes, and with it that ability not to get caught up emotionally in the clients’ cases.

Of equal importance is to recognise it is a privilege to represent survivors and to listen to their accounts which very often have not been shared before. Likewise we have the unique opportunity of witnessing how a survivor very often has been able to overcome the adversities of life inflicted upon them as result of the abuse, and that in a way can be humbling. This in its own way gives us a sense of perspective and assists in helping us to remain objective.

As for empathy in the Roman Catholic Church leadership we will discuss that some more in a future podcast.

All-Party Parliamentary Groups: Hearings into “positions of trust” in faith settings

This week the Abuse team at Hugh James discusses the All-Party Parliamentary Groups (APPG): Hearings into “positions of trust” in faith settings.

The APPG is investigating whether the definition of “positions of trust” in the Sexual Offences Act 2003 ought to be amended to include faith settings.

Currently, this “positions of trust” covers educational, youth justice and medical settings. This is effectively to ensure, for example, a teacher who is 30 is not permitted to engage in a sex act with a student who is 17, despite that student being over the age of consent, which is 16.

This is because the nature of the relationship renders what is ostensibly consensual, non-consensual.  The reasons for this are many, but mainly because of the undue influence, power imbalance and vulnerabilities which surround the child in the context of the relationship.

It does not currently include within that definition faith settings.  As such, a priest who is 40 could have a sexual relationship with a child member of the church who is 17 and this would be legal. 

Hugh James were asked to speak to the APPG on behalf of the Ex-Jehovah’s Witnesses Advocates Opposing Crimes Against Children (the “Group”), as Sam Barker of the Hugh James abuse team represents the Group at the Independent Inquiry into Child Sexual Abuse’s upcoming hearings into safeguarding in faith settings.

It is the view of the Group that Jehovah’s Witnesses as a religion demonstrates perfectly why the law needs to change given the significant trust and power placed in adult male members of the faith, such that one of those members engaging in a sex act with a child in the congregation ought to be illegal.  However, the Group submits this is relevant to all religions.

The Group submitted that:

• The Jehovah’s Witnesses as a religious institution clothes men in official positions (such as a circuit overseer, elder or ministerial servant) with profound trust, power and authority as it is consistently conveyed that their appointments are approved by God’s Holy Spirit;
• The Jehovah’s Witnesses literature, which is frequently read at meetings, studied and said to be “spiritual food” from God, requires members to obey elders unquestionably and be submissive to them even when they act in error;
• The elders and to a lesser extent, ministerial servants, play a crucial role within a congregation which goes directly to the care, supervision, instruction and training of children within the congregation, whether that is through mentoring, spiritual guidance, evangelising, religious instruction and teaching through Bible study and meetings, spiritual investigations and/or judicial committee hearings;
• The significant power placed in elders within a congregation consequently has the effect of placing those men to whom the elders designate roles, duties and/or administrative functions with the same power, trust and authority;
• The role of adult men within the Jehovah’s Witnesses is absolutely paramount to the role of women and children and it is ingrained, particularly in children, to respect and obey adult men within the congregation (even if that person is not an elder or ministerial servant);
• The Jehovah’s Witnesses literature encourages all adults to take an active part in the mentoring of children in the teachings of the religion and the same literature encourages the children to trust the adult and they will benefit from this mentoring; and
• The roles allocated to elders and ministerial servants and indirectly allocated to other senior members of the Jehovah’s Witnesses in respect of children engage the same trust relationship which involves an imbalance of power, vulnerability and susceptibility to harm as those which are already covered by the Part 1 of the Sexual Offences Act 2003 but are not criminalised in the context of faith settings.

Overall, this change would put the UK in line with other common law jurisdictions like Australia, where this conduct is criminalised.  In Victoria, faith settings is included in the definition of “care, supervision or authority”, which is:

• “Without limiting the circumstances in which a child is under the care, supervision or authority of a person, a person (A) has a child (B) under their care supervision or authority if (A) is – 'a religious or spiritual guide, or a leader or official (including a lay member) of a church or religious body, however any such guide, leader, official, church or body is described, who provides care, advice or instruction to B or has authority over B'”.

All-Party Parliamentary Groups - Can adult survivors of childhood sexual abuse access justice and support?

The All-Party Parliamentary Group Adult Survivors of Childhood Sexual Abuse works to highlight the needs of survivors across the country, and to give a voice to their concerns in Parliament.

They published a report earlier this year: Can adult survivors of childhood sexual abuse access justice and support?

Part One: Achieving quality information and support for survivors, can be found here:

https://static1.squarespace.com/static/5c8faf788d97401af928638c/t/5cd05b45eb3931052c31b479/1557158727790/Achieving+quality+information+and+support+for+survivors.pdf

We were pleased to assist the APPG with its investigation, as we are concerned that survivors have to navigate a complex set of support systems to gain access to justice. Much of what is available is patchy and in our experience differs in quality. The system is very often hampered by a lack of knowledge, on the part of many whose task it is to advise survivors of their legal rights and entitlement to services.

Survivors are entitled to be treated as equal citizens and not as a class apart, which again is a frequent refrain. It is also worrying that those who have the ability to make a difference seem to treat survivors of CSA as somehow “different”. This just entrenches the problem. This causes real difficulty for survivors because they miss out too often on quality advice and assistance that would enable them to access the services they need and could make a real difference to their lives for example, specialist therapy.

We also see survivors not being told about their right to be compensated whether through criminal or legal proceedings. We are pleased to see that IICSA has recently recommended that this be put right. It is down to the Home office and Ministry of Justice to make sure that survivors are told of their rights to access justice, and that specialist help is available.

HJ Talks About Abuse: All-Party Parliamentary Groups - Positions of Trust in Faith Settings

There are calls for child protection laws to be updated so that those in faith settings who are in a position of trust can be prosecuted if they sexually abuse young people aged 16/17, as they are considered to be a responsible person.

Teachers for example are in a position of trust in relation to their pupils. It is a criminal offence if they abuse that position by having a “relationship “ with their pupil.  Readers will be familiar with the soap story line in Emmerdale, where a teacher had a longstanding sexual “relationship “ with a pupil.

The All-Party Parliamentary Group on Faith Settings has recently taken evidence on the issue and received submissions that those in positions of trust, for example elders, should be covered by the law too. Sam Barker, a solicitor in the Hugh James abuse team, made a submission in relation to Jehovah's Witnesses and argued that mandatory reporting is needed, otherwise the law may remain ineffectual.

The APPG took evidence that sexual abuse of young people in faith settings was possibly under reported and possibly not fully understood. Therefore, law reform was pressing.

HJ Talks About Abuse: Child Marriage

In the UK you cannot vote until you are 18, and you cannot get a tattoo either, but you can married…In this week's episode of the HJ Talks About Abuse podcast, Sam and I discuss Child Marriage.

“Child marriage” which is defined internationally as marriage under 18 - remains legal in Britain. In England, Wales and Northern Ireland, teenagers can wed at 16 with parental consent. In Scotland, they do not need consent.

The UN has said that governments around the world should make it illegal for children to get married. The age at which you can get married should be set at 18.

The reason being is that children and young people are being exploited and sexually abused through sham, forced and “arranged” marriages.

Nearly 2,000 young people in Britain, the vast majority of them girls, were wed before the age of 18 between 2010 and 2015, according to official data.

Although the numbers are low, campaigners believe most are pressured into marriage by their families. If the minimum age was raised, girls would be more empowered to say no, and society would accept it as the norm.

The impact of getting married young is similar wherever girls live. The consequences can be physical, psychological and practical. They are more likely to drop out of school and at a greater risk of marital rape, domestic abuse and health problems relating to teenage pregnancy.

The minimum age of 16 was set in 1929 when living together or falling pregnant out of wedlock was socially unacceptable. But campaigners fear that the “parental consent” clause for under 18s has now become an “open door” to forced marriage. The APPG at Westminster will hopefully take this up with the UK government.

Campaigners say it is time that Britain - which has been vocal about ending child marriage in developing countries - got its own laws in order. The UK could be breaching its international legal obligations for example, the Convention of the Rights of the Child.

The UK parliament needs to decide how to define a child. Should it be as an individual under the age of 18, without exception? There is a powerful argument that the answer should be “yes”.

It is important that children are recognised in the law as being children and that they are accorded the full protection of the law. Laws that set a minimum age of marriage are an important way to safeguard boys and girls from being married before they are ready.

Setting the minimum age of marriage at 18 provides an objective rather than subjective standard of maturity, which safeguards a child from being married when they are not physically, mentally or emotionally ready. Why allow children to marry at an age when, for example, they do not have the right to vote or enter into other contracts recognised in law? The most widely accepted definition for a child is 18, in line with the Convention on the Rights of the Child.

A minimum age of marriage of 18 will also help to ensure that children are able to give their free and full consent to marry and have the minimum level of maturity needed before marrying.

Pros and Cons of Redress Schemes

IICSA (Independent Inquiry Child Sexual Abuse) as part of its Accountability and Reparations investigation will be looking at redress schemes.

Redress schemes are often seen as vehicles to deliver justice to victims outside the litigation process. They naturally as a consequence have an attraction, but might it be superficial?

Justice of course can mean different things to different people. Usually the general components are:

• Compensation
• Recognition
• Apologies

It will be interesting to see what IICSA has to make of redress schemes when they come under its spotlight.

We know from our work with survivors that redress schemes can deliver justice when there is no alternative, perhaps, for complex legal reasons. We have experience of such schemes in a wide set of circumstances:

• State schemes such as those that operated in the Australian states
• The Historic Abuse redress scheme in Jersey
• The current Jersey Redress Scheme
• Lambeth
• Bespoke schemes in relation to offenders.

The success or otherwise of such schemes is very much dependent on the small print. The devil is often in the detail. Navigating successfully can sometimes be fraught and what ought to be straightforward turns out not to be, and can be very testing not just for the applicant but their lawyer too.

Redress schemes which might also be known in some contexts as compensation schemes can be found in non-sexual abuse arenas too.

There is the Windrush Compensation Scheme which was set-up by the government in the wake of the scandal that erupted when it came to public notice that some of those who came to the UK to live from the Commonwealth were being wrongly deprived to live and work here. This primarily concerned those who were of the “Empire Windrush” generation and their descendants. Redress under the scheme could mean compensation for loss of employment, homelessness, detention etc.

Applicants are encouraged to apply online. There is a right of review and there is no litigation.

How effective from an applicant the process and outcome will be, remains to be seen. There is a risk and concern that they might be under-compensated in comparison with what a court might award in the event of successful litigation.

There is also the miscarriages of justice scheme: MOJAS

MOJAS is available to all those who were innocent but convicted of a crime.

It is also open potentially for those victims of trafficking who would have had the benefit of protection under Article 26 ECAT.

Victims and survivors should always remember that there are time limits with schemes. They should never sit on the fence, but apply or at the very least seek expert legal advice.

Cardinal Pell Sexual Abuse Case Update - Appeal Verdict

Cardinal Pell was convicted in the County Court of Victoria by a Jury for sexually assaulting two children in the sacristy.  This was appealed to the Victorian Court of Appeal.

There were three central grounds of appeal, two were legal and one based on the factual outcome.  Those were:

1. Pell was not arraigned “in the presence of” the Jury pool. The argument being that the accused ought to be able to enter their plea in front of the potential Jury.  Given the size of the Jury, Pell entered the plea by video link.
2. Pell’s defence team was not permitted to screen to the Jury a video animation of the alleged crimes, which Pell says would have shown he was unable to commit the crimes as alleged without someone witnessing it.
3. The Jury’s verdict was so unreasonable that no reasonable juror would have arrived at that opinion on the basis of the evidence.

Split decision of the Court of Appeal, with all three judges agreeing on the two points of law and two of the three finding the Jury verdict was not unreasonable, the third finding that it was unreasonable on the evidence.

The unanimous opinion in relation to the first two points is not surprising – those are technicalities and do not result in a miscarriage of justice.  The judges in fact found that playing the virtual representation would have in itself been extremely prejudicial to the prosecution and would mislead the Jury.

The final point – whether the finding was open on the evidence, requires a very technical analysis of the evidence shown to the jury and the jury’s verdict.  It is not a matter of retrying the facts of the case; it is a matter of analyzing whether the verdict was open to the jury on the facts.  This is a very high bar because it is at first principle the jury which is required to be the arbiter of the facts – not the court.  Therefore, a substantial miscarriage of justice would need to be shown to overturn the jury verdict.

The Court of Appeal needed to assess this, along with an assessment of the complainant – is the complainant credible and reliable and the account detailed, consistent and plausible?  If so, then it is difficult to justify overturning the jury’s verdict and this is indeed what transpired.

Two of the three justices found the complainant a credible witness and so the verdict stands.

So where to from now?    

Pell has one final avenue of appeal – to the Australian High Court, the highest court in Australia. 

In order to do this, Pell must obtain leave from the High Court to bring the appeal.   Pell’s legal team will need to convince the High Court that:

1. Whether the proceedings involve a question of law that is of public importance or in respect of which the High Court is to resolve differences of opinion between different courts or within the one court, as to the state of the law; and
2. Whether the interests of or administration of justice require consideration by the High Court.

As outlined at the start, two of the questions were those of law and the Court of Appeal judges agreed unanimously.  It seems unlikely the High Court would consider these points of law – technicalities at that – are sufficiently important to the public to require consideration by the High Court.  

The third point – whether the jury verdict was unreasonable and not open on the evidence, is, as noted earlier, not a question of fact as the facts can’t be retried, but a question of whether, on an assessment of the evidence, the verdict was open to the jury and reasonable.

It is difficult to see the High Court granting leave for a third consideration of the factual matrix.  The importance of the jury assessing the evidence and returning a verdict in Australian criminal courts is enshrined in the constitution.  This is why the bar is so high in overturning the verdict.  The Court of Appeal then undertook the enormous task of itself analyzing the evidence and attending viewings of the same sacristy (the room in the church where the abuse was alleged to have been committed) the jury was shown and upheld the verdict – with one dissenting opinion.  The High Court engaging in further scrutiny appears to undermine the process itself. 

Further, what message does this send to survivors of sexual abuse?  Your allegation will not just be subject to examination by a jury, but also the Court of Appeal and then the High Court?  This wouldn’t, of course, be the case in most matters, but regardless, it is the message sent in this instance if Pell is allowed to make an appeal to the High Court.

The jury’s verdict has been scrutinized by fine legal minds.  The verdict was upheld.  A further examination would undermine the public’s faith in the judicial system.  Historic sex cases are by their very nature difficult to prosecute. 

The Australian Royal Commission into Institutional Responses to Child Sexual Abuse found that 57% of survivors first disclosed as adults and it took an average of 31.9 years to disclose.  This undoubtedly plays to the benefit of those who sexually abuse children.  There is no doubt evidence will not be of the best quality 31 years after the fact, but this should not avoid prosecutions for crimes involving child sexual abuse – instead, rigorous measures to scrutinize the facts should be implemented. 

In Pell’s case, this has occurred.  Pell had the best legal defence money can buy.  He was represented by two of Australia’s leading Queen’s Counsel – one of the best criminal defence advocates in the land and one of the best appellate advocates.  The facts were scrutinized by a jury and then a bench of three Court of Appeal judges.  The matter should be finalised.

Having said this, given the public division on the case and how seemingly important it is to many faithful – it might be that the High Court is convinced a third go is justified.