Seeking justice

Written by Alan Robertson on 30 October 2014 in Interviews

Scotland’s top prosecutor on efforts to tackle historic sexual abuse

This week, survivors sat down with representatives from institutions and government, residential care workers as well as others from across civil society to finalise an Action Plan on Justice for Victims of Historic Abuse of Children in Care. It was the latest step in a process that started almost a decade ago when the then First Minister, Jack McConnell, issued an apology in the Scottish Parliament on behalf of the people of Scotland for past child abuse in residential care homes.

Such acknowledgment and meaningful apologies is only half of what a final action plan will seek to achieve, however. The other half calls for accountability, including prosecution of perpetrators of criminal abuse stretching back decades. Ministers have thus far rebuffed calls for a full public inquiry into institutional child abuse north of the border, similar to those that have been set up by Westminster. However, that has not prevented a number of high-profile cases coming to the fore in Scotland.

Now, Holyrood can reveal specialist training is being devised for national prosecutors within the Crown Office and Procurator Fiscal Service (COPFS), in an effort to deliver further convictions in what has become an increasingly complex area of investigation. “One particular area we’ve had a lot of discussions about was building up an expertise to deal with historical sexual abuse which occurred within an institution,” the Lord Advocate, Frank Mulholland QC, told Holyrood. 

“What we’re in the process of doing is drawing up very detailed bespoke training for our investigators and prosecutors to be able to bring an expertise to that. That’s an area which I think we really need to gear up [for] and get better at ourselves to be able to recognise that and deal with it because it comes with challenges. You’re dealing with things that happened many, many years ago where the perpetrators live abroad, they may be retired, they may suffer from health problems, they may be unable to stand trial, [it’s] difficult to trace persons [or] witnesses in these cases.”

In 2009, the Crown Office established the National Sexual Crimes Unit, currently headed up by Senior Advocate Depute Alison Di Rollo, to lead on the investigation and prosecution of some of the most serious sex crimes, including child sexual abuse. However, in a number of cases involving historic sexual abuse going back several years, prosecutors still find themselves hamstrung by the passage of time and, consequently, a lack of medical or forensic evidence. 

“We need to understand the dynamics [and] the psychology of it,” explained Mulholland. “One of the things that we’ve learned through the National Sexual Crimes Unit is what we call counterintuitive behaviour, so it is normative behaviour for someone not to report being sexually abused at the time. That is a fairly new phenomenon. We now lead evidence as standard to educate juries that this is normative behaviour, whereas 20, 30 years ago, that was a very productive line in cross-examination. ‘Well, why didn’t you report it at the time? Why didn’t you resist it physically?’ and then in a defence speech, they would point that out as a couple of factors which the jury should take into account when assessing the credibility. Whereas now we say, ‘well, it’s normative behaviour because…’. 

“That’s learnt in the past few years through NSCU and we’ve got expert witnesses to educate juries. What we need to do is be alive to how we deal with historical sexual abuse in institutions and see whether there is any psychology attached to it, is there a nuance in delayed disclosure, that type of stuff. That’s what we’re currently gearing up to be able to deal with because we recognise that we’re seeing quite a few of these cases now and we need to be able to deal with them properly.”

Mulholland sat down with Holyrood prior to a landmark summit in Edinburgh earlier this month that saw law enforcement agencies join the heads of prosecution services from across the UK and Ireland to reaffirm their determination to combat human trafficking. The Lord Advocate, along with his equivalent colleagues in England, Wales, Northern Ireland and the Republic of Ireland, will publish, within a year, detailed commitments to tackle human trafficking while regular cross-border meetings are to be arranged.

It came just a few weeks after the National Crime Agency’s latest estimates for 2013 put the number of victims of trafficking across the UK up by more than a fifth, at 2,744 people, including 602 children. However, the “most alarming” statistic for Mulholland – who was at NCA headquarters in the weeks prior to publication of the figures to meet with officers from the Child Exploitation and Online Protection Centre (CEOP) – was one showing the UK as the third most prevalent country of origin for potential victims of trafficking, up from eighth the previous year. 

Two-thirds of the 193 potential UK victims were minors, a proportion that rises to almost four in five when only sexual exploitation is considered. Technology and social media are playing an increasing role in the recruitment of victims, while the NCA also pointed to dating sites as an avenue traffickers are seeking to exploit.

“One of our prosecutors went to a meeting with the FBI a good few years ago,” explains Mulholland, “and there was a live demonstration where one of the investigators posed as a 12-year-old girl and just put it out on social media, ‘12-year-old girl looking for a friend’. It was reported to me by the prosecutor that attended that the board lit up like a Christmas tree and they were able to say, we know him, we know him. There are real dangers and any parent, any person, who uses the internet should be alive to that. You need to be careful… because you can’t see who you’re dealing with, so it’s certainly one of the areas that we are very aware that we need to have the skills to be able to deal with it.”

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