Issue 40 February 2008 - Human Rights Stop Press

Although not decided on human rights grounds A (Appellant) v Hoare (Respondent); C (FC) (Appellant) v Middlesbrough Council (Respondents); X (FC) and another (FC) (Appellants) v London Borough of Wandsworth (Respondents) (Conjoined Appeals); H(FC) (Appellant v Suffolk County Council (Respondents); Young (FC) (Appellant) v Catholic Care (Diocese of Leeds) and others) [2008] UKHL 6 is a case which raises human rights considerations. The Strasbourg Court has long recognised the importance of providing protection and remedies to the victims of sexual abuse under Arts 3 and 8 and 13, including the Scottish application brought in E v United Kingdom (2003) 26 EHRR 31.

The case attracted much media coverage not least because in one of them A v Hoare, the victim of a convicted rapist seeks to recover substantial damages from her abuser who has, since the crime, become a millionaire by winning the National Lottery. The other cases involved allegations of abuse whilst in local authority care.

In a landmark judgment the House of Lords recognised the difficulties faced by victims of sexual abuse in bringing claims for compensation many years after the events in question. Although turning on English statute, these broader considerations underlying the decision are likely to have ramifications for similar litigation in Scotland.

The six appeals all raised the question of whether claims for sexual assaults and abuse which took place many years before the commencement of proceedings were barred by the Limitation Act 1980. There the general rule is that the period of limitation for an action in tort is six years from the date on which the cause of action accrues. All the claimants started proceedings well after the six years had expired. It follows that, if s.2 applied, their claims are barred. But ss.11-14 contain provisions, first introduced by the Limitation Act 1975, which create a different regime for actions for "damages for negligence, nuisance or breach of duty", where the damages are in respect of personal injuries. In such cases the limitation period is three years from either the date when the cause of action accrued or the "date of knowledge" as defined in s.14, whichever is the later. In addition, s.33 gives the court a discretion to extend the period when it appears that it would be equitable to do so. The chief question in these appeals was whether the claimants came within s.2 or s.11. In the latter case, the claimants say either that the date of knowledge was less than three years before the commencement of proceedings or that the discretion under s.33 should be exercised in their favour.

In Stubbings v Webb [1993] A.C. 498 the House of Lords unanimously decided that s.11 did not apply to a case of deliberate assault, including acts of indecent assault. It held that an action for an intentional trespass to the person was not an action for "negligence, nuisance or breach of duty" within the meaning of s.11(l). As a result of Stubbings v Webb, there was no way that an allegation of sex abuse could overcome the six year limitation period which would start when the claimant turned 18. In the present appeals the Court of Appeal was bound by that and decided that the claimants are statute-barred. But the claimants submitted that Stubbings was wrongly decided and that the House should depart from it in accordance with the Practice Statement Judicial Precedent) [1966] 1 WL.R. 1234.

Lord Hoffmann noted that the situation was radically changed when the House of Lords decided in Lister v Hesley Hall Ltd [2002] 1 A.C. 215 that sexual abuse was not necessarily outside the scope of an employment. It depended upon whether there was a sufficiently close connection between the work which the employee had been employed to do and the acts of abuse. A company which owned and operated a school boarding house was held liable for sexual abuse of pupils by a man employed as warden. After that, claims against the operators of schools, detention centres and similar institutions for sexual abuse by employees became common. And these threw into relief the anomalies created by Stubbings.

The House noted that claimants who have suffered sexual abuse but need to seek the discretion of the court under s.33 were driven to alleging that the abuse was the result of, or accompanied by, some other breach of duty which can be brought within the language of s.11. Thus, in addition to having to decide whether the claimant was sexually abused, the courts must decide whether this was the result of "systemic negligence" on the part of the abuser's employer or the negligence of some other person for whom the employer is responsible. In a non-employment case, such as A v Hoare, that option was not open. Given the anomalies created by Stubbings the House departed from it and reaffirmed the earlier law to the effect that intentional injuries were covered by the more generous limitation provisions which started time running from the date of knowledge of injury and also made available discretion under s.33 to extend the time.

However, Lord Hoffmann said: "Section 33 enables the judge to look at the matter broadly and not have to decide the highly artificial question of whether knowledge which the claimant has in some sense suppressed counts as knowledge for the purposes of the Act." In recognising the problem of suppression of memory of the abuse the House of Lords has made it easier for the victims of sexual abuse to bring claims even although they did have knowledge of the injury and wrong done outwith the limitation period.

In Scotland the time bar is laid down in s.17 of the Prescription and Limitation (Scotland) Act 1973. The time bar is three years from the date when the pursuer became aware, or it was reasonably practicable of the pursuer to have become aware of specified facts relating to the claim. These include when the pursuer was aware of having suffered an injury serious enough to justify bringing a claim by an act or omission by the defender or someone vicariously liable for the person who caused the injury. In the case of a child .time does not run until the age of 16 is reached. Clearly Scottish pursuers can have the difficulties identified in the House of Lords because of the problem of suppression of a memory of injury.

Section 19A of that Act contains very similar provisions to those in s.33 of the English Act. It is likely that the approach of the House of Lords will be followed in Scotland on the issue of how discretion to extend the time bar should be approached. The case makes it clear that the question of when a pursuer had relevant knowledge will have to be looked at in light of the difficulties faced by victims of abuse in recognising that they may have legal redress open to them.

It should be noted that the claimant in Stubbings applied to Strasbourg but lost, (1996) 23

EHRR 213. The European Court held that the strict six year time bar was within the margin of appreciation of the national legal system, not least because there was no European consensus on what an appropriate limitation period was. She had alleged that the limitation period breached Art.6 as it conferred a disproportionate immunity.

Her claims under Arts 8 and 14 also failed.

Looking at matters another way, the recent decision of the House of Lords departing from Stubbings would also be regarded by the European Court as a matter which fell with the margin, as the interpretation of national law is a matter for the national courts. Another lesson arising from the decision is that national systems are free to create higher standards of human rights protection than that afforded under the ECHR. The ECHR as always is a baseline for protection and not a ceiling.

The Strasbourg Court has been busy.

Saadi v United Kingdom, decided by a Grand Chamber on January 29, 2008 (App. No 13229/03) concerned an Iraqi doctor who arrived here in December 2000, seeking asylum. It has aroused a great deal of controversy as human rights groups, including Amnesty International, have claimed that it legitimises the detention of asylum seekers on grounds of administrative convenience rather than any genuine risk of absconding.

Mr Saadi made his claim for asylum as soon as he arrived. On the day of his arrival he was given "temporary admission", and was allowed to stay at a hotel of his choice, so long as he returned to the airport the following morning. This continued for three days, during which time he complied fully with the reporting requirements. As soon as a bed became available at Oakington Reception Centre he was detained there for seven days, while his claim was assessed under the so-called "fast track" procedure. He was released from Oakington following an initial refusal of his claim for asylum, against which he appealed. In January 2003 his appeal was allowed and he was granted asylum in the UK.

At all stages he had complied with all reporting requirements placed upon him. The decision to detain him at Oakington while his claim was considered was taken despite the fact that he was not adjudged to present any risk of absconding. Detention was not claimed to be "necessary" to prevent him from absconding, or for any other reason related to him personally; it was claimed only that it served the aim of processing claims for asylum more promptly, since if the immigration authorities could keep asylum-seekers detained, it could ensure that they would be available for an assessment interview as and when an interview slot became free.

All 17 judges agreed that the United Kingdom had violated his right to be given a prompt and genuine explanation of the reason for his detention; but the majority (11-6) of the judges held that detention had been permissible within the meaning of Art.5(1)(f), which allows detention of a person "to prevent his effecting an unauthorised entry into the country", among other reasons. The Court held that such detention was permissible provided it was not "arbitrary"; and that it would not be "arbitrary" provided that it was "carried out in good faith", and was "closely connected to the purpose of preventing unauthorised entry of the person to the country"; that "the place and conditions of detention [were] appropriate"; and that the length of the detention did not "exceed that reasonably required for the purpose pursued".