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Jimmy Savile – the final cost

16 October 2012 One Comment

Jimmy e1350399738428 150x150 Jimmy Savile – the final costDezo Hoffmann/Rex Features
By Jenny James

The Metropolitan police, which is coordinating a nationwide investigation into allegations of abuse against Jimmy Savile, has said that the claims against Savile date back to 1959 and could include more than 60 victims. In my view, this is likely to be a considerable underestimate, based upon the length of time Savile was active (roughly half a century) and the sheer number of children’s homes, hospitals, TV shows and other organisations connected with Savile, where he had access to children on an almost daily basis.

However, given the time elapsed since these events, can they be proved and is the Limitation Act 1980 likely to be a bar to successful recovery?

Dealing with the second point first, the case of A v Hoare [2008] UKHL 6 construed the Limitation Act 1980 s 14(2) so as to transfer from that provision to s 33 of the Act consideration of the inhibiting effect of sexual abuse upon a victim’s preparedness to bring proceedings, and offered guidance as to how the court might exercise its discretion under s 33 (which gives the court a discretion to extend the Limitation period when it appears that it would be equitable to do so).

Ms A, having been assaulted (in an attempted rape) on 22 February 1988, and having learned that her attacker, Iorworth Hoare, had won £7m on the Lottery on day release from a life sentence in prison, had sought to sue him on 22 December 2004. Although outside the normal time limit for bringing such an action, she was allowed by the House of Lords to do so, but only after having lost at three previous tiers of hearings. There was comment in the House of Lords that, as regards the exercise of the court’s discretion under s 33 of the 1980 Act, by no means everyone who brought a late claim for damages for sexual abuse, however genuine, could reasonably expect the court to exercise the s 33 discretion in his favour.

Upon remittal to the High Court, Ms A won her case and, in addition to his own costs of £239,583, Hoare was ordered to pay £537,885.20 in legal costs and £50,000 in compensation to Ms A. Hoare tried to overturn the HL ruling in the European Court of Human Rights but was unsuccessful there also (Hoare v United Kingdon (2011) 53 EHRR SE1)

In that regard, when the case went back to the High Court, Coulson J ruled that Ms A had an exceptional case. Hoare had rendered himself impecunious by attempting to rape her and being sentenced to life imprisonment for it, and he had then gone on to win £7m on the Lottery whilst on day release from prison; that is not a confluence of events likely to open floodgates to hundreds of new claims.

The fact that Hoare had been imprisoned for life for the attempted rape of Ms A because he was a serial sex offender may explain the vigour with which he contested this matter as there must by definition have been other victims watching the outcome.

The case of Raggett v Society of Jesus Trust 1929 for Roman Catholic Purposes [2010] EWCA Civ 1002 further suggests that victims of child abuse who come forward many years after the event, may still benefit from the court’s discretion under s 33. Mr Raggett had been assaulted by a Jesuit priest between 1969 and 1976 but had not issued proceedings until February 2007, apparently well out of time. Upholding a first-instance decision in Mr Raggett’s favour, the Court of Appeal held that the judge should decide the s 33 issue on the basis, not of the finding that the abuse had in fact occurred, but on an overall assessment of the factors relevant to s 33 , namely, an assessment of the reasons for the delay, the cogency of the claimant’s case against the prejudice likely to be caused to the defendant and other relevant considerations.

It is at this point that my first question reappears: will Savile’s victims be able to prove the abuse they now allege, to the point where a court will find it would be unequitable not to allow them to proceed simply on the grounds of time delay?

In A v Hoare of course, the evidence was clear; Iorworth Hoare had been convicted and sentenced to life imprisonment for the attempted rape of Ms A, and she was most unlikely to have encountered great difficulty in proving on balance of probabilities that the attack had actually occurred.

In Raggett the judge at first instance was cited with approval in the Court of Appeal for having gone into the evidence so thoroughly. She was able to state that this was a case where the allegations did not bear the hallmarks of exaggeration and where the claimant had not jumped on a bandwagon of other similar complaints; further that there was evidence to support the allegations from a number of contemporaries, one of whom had seen the abuser filming the claimant.

In any case against Savile, however, the evidence may vary enormously in quality, and its impact may vary widely also. Those who lodged contemporaneous complaints with the Police (and were shockingly disregarded) may on the one hand have strong evidence that, at the very least, this is not a recent fabrication. On the other hand, they may have a much harder time persuading a court that if they knew the abuse was serious enough to report to the Police decades ago, they should nevertheless be entitled to the court’s discretion so as to sue Savile’s estate now. Savile was not impecunious (like Hoare) and whereas Mr Raggett had repressed his memories of the abuse and only recalled them decades later, in around 2005, those who lodged timely Police complaints presumably cannot say the same.

Those who come forward now, after fairly detailed allegations have been widely reported in the media, may themselves be accused of jumping on to a bandwagon; yet might these people not be in exactly the same boat as Mr Raggett, having buried the memories only to have them resurrected by recent events (here, the coverage of Savile’s (alleged) past conduct)? Would it be right and proper, or a gross injustice, if those who have suffered for decades receive nothing whilst those who have only now recalled the abuse, succeed?

The saving grace for victims may be the knowledge that his employers at the BBC were evidently aware that something was amiss; similarly, reports are now rife that staff at Stoke Mandeville Hospital were aware of his misdeeds, to the point where sick children were advised to pretend to be asleep if he were around. These institutions and others like them owe a duty of care to children on their premises and it is certainly news, as far as I am concerned, that they were so cavalier with the young lives in their care.

The upshot may be that Savile’s estate itself passes to its intended beneficiaries relatively unscathed and that the victims, or such of them as can prove their claims, pursue damages claims against those in power who for so long turned a blind eye to the predator in the gold lame tracksuit.

 

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