A review of the law
IS THERE A LEGAL JUSTIFICATION FOR THE DIOCESE OF CHICHESTER WITHHOLDING THE DETAILS OF THE CLAIM MADE BY BISHOP BELL’S ALLEGED VICTIM ?
A review of the law by His Honour Alan Pardoe QC and Desmond Browne QC
- It is obviously critical to any assessment of whether on the balance of probabilities the late Bishop George Bell sexually assaulted the woman now known as “Carol” to be able to consider the full details of her account (or accounts) of what occurred. The Master of Trinity Hall, Cambridge, the Rev. Dr Jeremy Morris, was one of a number of signatories to a letter to the Church Times in November 2015 hoping that something of the expert independent reports relied on by the Diocese would be released, appropriately redacted, to demonstrate the strength of the evidence against Bishop Bell. The Diocese has, however, refused to disclose any of this material – even in redacted form. The Diocesan Secretary, Gabrielle Higgins, has cited a number of legal provisions to justify this stance. They are:
(1) The Sexual Offences (Amendment) Act 1992.
(2) Civil Procedure Rules (“CPR”): r.31.22.
(3) CPR r.32.12.
(4) Para. 9.2, Practice Direction: Pre-Action Conduct.
- In our view not one of these four provisions justifies the course taken by the Diocese, which has resulted in seriously handicapping the efforts of those wishing to see Bishop Bell’s name cleared and his reputation restored.
The Sexual Offences (Amendment) Act 1992:
- By reason of S.1(1) and s.5(1) “where an allegation has been made that an offence to which [the] Act applies has been committed against a person” [emphasis added], it is a criminal offence to publish or broadcast the name, address or picture of that person during their lifetime, if it is likely to lead to their identification by members of the public.
- S.1(2) deals with the situation “where a person is accused of an offence to which [the] Act applies” [emphasis added]. It is then a criminal offence to publish any matter likely to lead members of the public to identify that person as the person against whom the offence is alleged to have been committed.
- The offences alleged by Carol are of serial indecent assault over a four-year period from 1948 to 1952. So the first question is whether those are offences to which the Act of 1992 applies. The answer to this question is to be found in s.2, which contains an exhaustive list of the statutory offences to which the Act applies. The earliest statute listed in point of time is the Sexual Offences Act 1956, which of course post-dates the end of the alleged period of offending by Bishop Bell.
- It is a cardinal principle of English criminal law that criminal offences are not created retrospectively – in other words, the Sexual Offences Act 1956 did not create an offence under the Act in relation to conduct prior to the Act’s commencement date. It is irrelevant what statute might have covered such conduct prior to 1956, since s.2 is a complete (or exhaustive) list of all the offences to which the Act applies. For that reason neither s.1(1) or 1(2) are offences to which the 1992 Act applies, and there is no question of the commission of any offence under s.5.
- S.1(2) is concerned with what is sometimes called “jigsaw identification” – in other words, the publication of details (the word in the statute is “matter”) which would be likely to lead the public to identify Carol. However, s.1(2) is only applicable where a person is accused of a relevant offence. “Accused” in this context means formally accused, not merely being made the subject of an allegation. The word is defined in s.6(3), which makes it clear that it means the initiation of criminal proceedings, for example, by laying an information. Since Bell died in 1958 long before Carol made any allegation against him and since for obvious reasons there could be no criminal proceedings against him falling within s.6(3), there is no question of any offence under s.1(2).
Civil Procedure Rules: 31.22 and 32.12:
- The Diocese’s statement of 22 October 2015 referred to the settlement with Carol having been reached after “a thorough pre-litigation process”. It is now clear that there were never any proceedings between Carol and the Diocese and the action was settled without any litigation being initiated. For that reason neither r.31.22, nor 32.12 can have any application.
- R.31.22 relates to documents compulsorily disclosed by a party to proceedings at the discovery stage in litigation. It rehearses the very familiar common law principle that those documents may only be used for the purpose of use in the same proceedings, unless the court orders otherwise. The rationale of the principle is to afford protection to a party who has had to disclose documents in litigation under the compelling power of the Court. It is plainly not applicable in the present case.
- R.32.12 protects witness statements served in proceedings. Until they are put in evidence at a hearing, they may not be used without the leave of the court for any purpose other than the proceedings in which they are served. Here there have been no proceedings, still less any witness statements, so the provision does not apply.
Para.9.2 Practice Direction: Pre-Action Conduct:
- In her capacity as Diocesan Secretary, Ms Higgins (a non-practising barrister) told a correspondent that she personally would have thought that this provision was relevant. She cited the provision from the 2014 edition of the White Book (the practitioners’ procedural Bible) at p2667, but she acknowledged that by the time of the 2016 edition the provision had been dropped from the Rules. However, even were the 2014 provision still in force, it would not be applicable.
- The former provision cited by Ms Higgins reads as follows:
“Disclosure. Documents provided by one party to another in the course of complying with this Practice Direction or any relevant pre-action protocol must not be used for any purpose other than resolving the matter, unless the disclosing party agrees in writing.”
- Carol’s letter (or letters) of claim, together with the expert reports on her claim, cannot be documents supplied to the Diocese in the course of complying with the Practice Direction or any relevant pre-action protocol. The letter of claim is no more than that – a letter setting out her claim. It might or might not have led to the activation of the pre-action protocol. That would depend on the reaction of the Diocese to the claim. The mere fact that the parties subsequently chose to follow the Practice Direction would not retrospectively convert the initial letter or letters of claim into a document supplied by Carol in the course of complying with the Pre-Action Practice Direction. The old provision was concerned to protect documents (or evidence) which might be supplied to support the prospective claimant’s case or undermine that of the prospective defendant. The policy behind the provision was not applicable to a mere letter of claim.
- As Ms Higgins acknowledges, the provision has been removed from the version of the Practice Direction operative in 2016. This is not a casual omission: the reason for the change appears to have been an appreciation that (unlike at the disclosure stage in an action) pre-action disclosure – precisely because it is pre-action – is made voluntarily and not under the compelling power of the court. Accordingly there is no need to afford the claimant the protection provided in relation to documents which the court has compelled him or her to produce.
- The letter or letters in which Carol set out her claim are vital to any assessment of the credibility of the allegation that Bishop Bell was guilty of serial sexual assault of a young child. His reputation has been damned by the Diocese’s public statement of 22 October 2015, yet by reason of misconceived legal arguments the public has been prevented from judging for itself the material on which the Diocese acted.
- Redaction would protect Carol’s identity, and the argument that the documents should be disclosed becomes overwhelming when one takes into account the three occasions when Carol has waived any supposed confidentiality and provided the public with her own version of the details of the alleged assaults. She has done this in a lengthy interview in The Argus of 3 February 2016, a BBC Television South interview of 9 February 2016 (in shadow but with her voice undisguised) and in a BBC Radio Sussex interview (again with voice undisguised) on 8 March 2016.
HIS HONOUR ALAN PARDOE QC
DESMOND BROWNE QC
10th June 2016