Historic sexual abuse in Scotland: psychological trauma could be an ‘exceptional circumstance’ for late compensation application

A First-tier Tribunal had failed to adequately assess whether the petitioner’s reasons for her delay in applying for compensation constituted…

MM v Criminal Injuries Compensation Authority [2018] CSOH 63

Executive summary

There are many complex reasons why sexual assault victims may be unwilling or unable to come forward. A First-tier Tribunal had failed to adequately assess whether the petitioner’s reasons for her delay in applying for compensation constituted exceptional circumstances. The tribunal’s finding that her application was out of time could not stand.

Criminal Injuries Compensation

Victims of crime may be eligible for compensation under the Criminal Injuries Compensation Scheme (“the Scheme”). Applications must be made within two years of the date of the crime unless there are exceptional circumstances which meant that the applicant could not have applied earlier.

The petitioner, MM, was assaulted and raped in 1965 aged 20, resulting in the birth of a son. She did not report the assault until she visited a Rape Crisis Centre in 2013 where she was encouraged to do so and advised that she might be eligible for the Scheme. She made her application in late 2014, which was rejected on the basis that it was out of time and that she had not provided evidence of exceptional circumstances which had meant that she was unable to apply earlier. A review of the decision came to the same conclusion and her appeal to the First-tier Tribunal (FTT) was rejected. The present case concerned a judicial review of the FTT’s decision.

Exceptional circumstances

Throughout the case, MM gave three reasons why she had been unable to apply earlier:

  • Social standards at the time of the assault deterred her from reporting the incident. She lived in a small religious community where she felt stigmatised, ashamed and afraid that she would not be taken seriously. The intense media coverage of historic sexual assaults such as the Jimmy Savile case gave her the belief that such crimes were now being taken seriously, prompting her to report her own experience;
  • She was unaware of the Scheme until the Rape Crisis Centre mentioned it; and
  • She had suffered deep psychological and emotional trauma as a result of the assault.

Rejecting the appeal, the FTT stated that, while it accepted MM’s written and oral evidence, it did not consider that she had experienced ‘exceptional circumstances’ as:

  • Although the social climate in the 1960s, 1970s and 1980s could have deterred her from reporting the assault, it would have been reasonable to expect her to do so prior to 2014 as she was well-educated and independent;
  • Ignorance of the Scheme was not an exceptional circumstance; and
  • It did not accept that MM failed to report the assault earlier due to psychological or emotional trauma and there was no supporting evidence.

MM submitted that the FTT’s reasoning that she could have reported the assault earlier due to her education and independence demonstrated a failure to understand why victims of sexual assault do not report such crimes.

Lord Glennie’s opinion

The FTT’s decision was either perverse or unsupported by cogent reasoning and could not stand. It had made a finding of fact that MM had not been prevented from making an earlier claim by psychological or emotional trauma but it also stated that it had accepted all of her evidence. The reasons for the decision were not clear and the FTT had failed to consider whether the trauma of the assault constituted an ‘exceptional circumstance’. The FTT was also wrong to disregard MM’s ignorance of the Scheme and had failed to show any evidence of moral and cultural changes in her community which would have allowed her to report the assault.

Lord Glennie remitted the matter to another tribunal for consideration and commented that it would be difficult to see how a tribunal could fail to consider psychological trauma following sexual assault to be exceptional.

Comment

Lord Glennie expressed sympathy for those who have suffered historic sexual abuse and highlighted several cases which have urged the courts to consider many circumstances which could prevent a complainant from reporting a crime. While MM was not a child at the time of the assault, the opinion mirrors the recent legislative changes brought about by the Limitation (Childhood Abuse) (Scotland) Act 2017 which removed the three-year time bar for victims of childhood abuse to bring civil claims. It is now accepted that victims of sexual abuse may be unwilling or unable to come forward and that the effects of a sexual crime do not diminish with time or age.

Another recent Court of Session decision in A & B v C [2018] CSOH 65 has demonstrated the high levels of damages which the courts are prepared to award in cases of childhood sexual abuse in awarding £167,000 and £33,000 to the two pursuers respectively. ‘A’ gave evidence of the serious and frequent sexual abuse inflicted on her by her step-father between the ages of 8 and 19 which affected her education, employment and mental health. Due to the nature, severity, frequency and duration of the abuse by a person in a position of trust, the court awarded solatium of £90,000 as well as an award of £10,000 for past and future loss of earnings. ‘B’, A’s cousin, also suffered from repeated incidents of sexual abuse when she was a visitor to the defender’s home between the ages of 8 and 11. Her award consisted of solatium of £20,000 plus interest.

It is understood that there are several thousand historical abuse claims currently waiting in the wings and it is thought that that pursuer solicitors are waiting for QOCS to be implemented in Scotland, with the associated protection provided, prior to proceeding with the claims through the courts. In light of the anticipated volume of claims, a pre-action protocol is to be introduced and a Working Party has been set up to agree an appropriate structure.

In the meantime, if you have any questions or would like to know more, please get in touch with your usual Weightmans contact or Pamela Stevenson (Partner).

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