16th Dec 2014
Are Claims against the Scouts on the increase?
Every year some 400,000 youngsters aged between six and 25 years old and of both sexes will enjoy adventure, purpose and camaraderie within the Scouts. It is the U.K.’s biggest mixed use organisation and over its 100 or so years, has provided opportunities that many children would have otherwise enjoyed. It is generally held in high esteem and few people would question the calibre of volunteers that make the Scouting Association possible.
However, it is a sad but true adage that people who wish to abuse children will deliberately target organisations where they can expect to come into contact with children on a regular basis. For this reason the Scouts has always been an organisation that had the potential to fall prey to infiltration by paedophiles.
Indeed, it is suggested that in excess of 50 people have instructed claimant lawyers in relation to historic sexual abuse claims against the Scouting Association since the emergence of the Jimmy Savile scandal and other associated abuse revelations. Some figures suggest the Scouting Association and individual scoutmasters have paid almost £900,000 in damages to claimants. The Scouting Association suggest it has been notified of only 36 claims since October 2012 and has paid out a little under £500,000 in compensation. Whatever the true figures, undeniably there have been high-profile prosecutions against scoutmasters.
In June 2013 David Hopkins was jailed for the second time for child abuse offences having previously received a custodial sentence for the systematic abuse of young boys over a period of almost 30 years. Having served six a half years of the 10 year custodial sentence, David Hopkins was released only to be subsequently found guilty of possessing indecent images for which he received a further eight months imprisonment.
In January 2013 Nick Thorpe received a 14 year jail sentence for sexually abusing young boys between 1996 and 2005. The court heard that Nick Thorpe, a Scout leader would ply the young scouts with alcohol and then abuse them. The case only came to light when one of his victims saw a photograph in a local newspaper of Mr Thorpe posing with young scouts.
In 2014 Rex Meaden a Cub Scout leader of a Bristol group from the 1970's was prosecuted and received a maximum 10 years jail sentence after being found guilty of sexual assault. The court was told the defendant fondled a young boy before photographing the victim when naked and group photographing the victim and his friend in a naked handstand.
Earlier this year Martyn Tucker, a scoutmaster from Chester was jailed for 12 years following a conviction for 26 sex offences against boys in the 1960's and 1970's.
Perhaps, just as worryingly, it is alleged that during the Tucker investigation, North Wales police uncovered documents from the Scout Association’s headquarters including contemporaneous witness statements from a number of boys alleging abuse that had not been passed on to the police by the Scout Association. Following an internal review of procedures after the Tucker case, the Scout Association acknowledged that it should have actively passed the evidence to the appropriate statutory authorities. Had it done so at the time, then possibly some children would have escaped abuse.
The Scouts acknowledge that before computers it operated a paper based Kardex system whose purpose was to log all complaints that were made about adult Scout volunteers. These complaints were not limited to instances of sexual abuse but were varied, and often the complaint referred to general management such as the wearing of incorrect uniform and swearing in front of Scouts. Because the complaints were generic and because the complaints were not cross-referenced, allegations of sexual abuse often passed unnoticed, notwithstanding that the Scouts maintain that for the last 20 years all adult volunteers have been required to report all cases of abuse to the police.
Undeniably sexual abuse has occurred within the Scouting movement, although in fairness the Scout Association has said that it has 550,000 members and that like other institutions, it had "experienced an increase in reported historic cases since 2012".
Over the last few years victims have been much more willing to come forward to report historic sex abuse. However, historic sex abuse is, by its nature, difficult to prove. There are unlikely to be any independent witnesses of the incident in question and it will be the word of the victim against the word of the perpetrator. Any physical injuries will long since have healed and so there is unlikely to be any medical evidence of abuse. Furthermore, there may be a natural scepticism if the victim has waited a long time to report the abuse without any obvious reason, particularly as a successful claim may mean compensation for the claimant.
The Scouting Association has historically been able to avoid civil liability principally because it has successfully argued that the volunteers and scoutmasters who runs Scout packs are not employees of the Scouting Association and therefore are not liable for their actions.
However, in 2012 in an analogous case the Court of Appeal was asked to decide whether a local diocese was liable to a victim who suffered sexual abuse at the hands of a priest. Two questions arose. Firstly, could an employer be responsible for all actions of its employee or only certain actions. Secondly, could an organisation be responsible for the actions of its officers if they were not strictly employees. In the past employers could be held liable for the actions of their employees, but vicarious liability was rarely imposed outside an employment relationship. Thus a business would rarely be liable for the actions of its sub-contractors or other non-employees.
The first question was answered by the case of Lister v Hesley Hall in which the House of Lords confirmed, on the facts, that if an employee was entrusted to look after children, the employer would be liable for any sexual abuse by the employee of those children when he was supposed to be looking after them and victims could obtain compensation from the employer. This was despite the obvious point that sexual abuse clearly fell outside the employee’s duties. The court considered that the actions of the employee was sufficiently closely connected to his employment so as to fix liability on the employer.
The second question was not resolved in favour of claimant’s until the 2012 case of JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust. Here the young victim had been sexually abused by a priest. Both parties accepted the priest was not an employee of the diocese. However, the claimant argued that so close was the relationship between the diocese and the priest that the court could construe a relationship that was akin to employment. The diocese argued that the priest did not obviously present as an employee. He was not paid a salary, or subject to daily control by the diocese. The claimant argued the priest was a quasi-employee. He could be dismissed from his office by the Bishop and, naturally, he was expected to show reverence and obedience to the diocese. The court decided that in specific circumstances vicarious liability could be extended beyond an employment relationships to a legal relationship that was akin to employment. So, even though the priest was not considered to be an employee, the diocese could still be liable for his actions because he was in a position which was akin to employment and the diocese was in a position of being able to control priest. The fact that the diocese had not controlled the priest in any proper sense meant it assumed civil liability for the actions of that priest.
This principle has progressively been extended to cover instances of sexual abuse by scoutmasters and other volunteers within the Scout Association. Clearly scoutmasters and volunteers are not employed by the Scouts. They generally receive no salary and are free to opt in and opt out of the organisation as they choose. However, they are required to adhere to Scouting principles and practices. Scoutmasters have to follow Scouting manuals and most troops are run in a recognisable way that is prescribed by the Scouting Association. Thus it is now become less burdensome to successfully sue the Scouting Association for any sexual abuse committed by its scoutmasters and other volunteers.
It is very important that any victims who have suffered sexual abuse come forward. Initially the complaint should be made to the police so that a criminal prosecution can ensue. If successful, the defendant may well face a jail sentence and will certainly be put on the sex offenders register so that they can never again offend as a Scout master or other volunteer in the Scouts. Although a criminal conviction is not a prerequisite to successfully bring a civil claim, it certainly assists as there can be no defence that the abuse did not take place. A civil claim can then be made against the Scouting Association who should assume civil liability for the wrong-doing of it Scoutmaster.
Samantha Robson has successfully brought a number of compensation claims against the Scouts and has won six-figure awards against the Scouts. Sam specialises in sexual abuse compensation claims and conducts claims against the Scouts on a no win no fee basis. Sam can be contacted on a confidential, no obligation basis on 01392 345333, alternatively please email sam@robsonshaw.uk
Category: Scouts