IICSA grinds on, the UKSC rejects “no-fault” divorce, vicarious liability resurfaces and the CJEU grapples with the customs tariff on hearses…
The public hearing of the Independent Inquiry into Child Sexual Abuse (IICSA) on the Peter Ball case study took place 23 – 27 July 2018. The week’s proceedings comprised: live evidence from 17 witnesses; 118 statements; 6,900 live streams via YouTube; 5 days, 27.5 hours of content; 53,000 pages of the material disclosed to Core Participants – and reached 310,000 users on Twitter. The transcripts of the proceedings and other documents, including a Schedule of Convictions and Allegations against Peter Ball, are available here and videos will be added in due course.
With this volume of material covering events over a long period of time, during which perceptions of the issues changed as new facts became available, the IICSA will have a difficult task in drawing up its final report. Likewise, media outlets seeking a particular headline will have little difficulty in cherry-picking appropriate parts of the evidence that align with their point of view. The IICSA’s final report is expected in the first quarter of 2019.
In a later post, we will consider the legal issues raised during the present hearing, set against a timeline of events; this will concern the uncertainties associated with the granting of PTO, the implications of a police caution; and the sanctions applicable to bishops.
Owens v Owens: the aftermath
On Wednesday, the Supreme Court unanimously – and with reluctance – dismissed Mrs Tini Owens’s appeal against the refusal to grant her divorce petition on the ground of irretrievable breakdown: we noted the judgments here. The immediate tweeted reaction from the Ministry of Justice was, “We are already looking as closely as possible at reforms to the system”. Which is very welcome: but we cannot help wondering whether any proposed reform might founder in the quicksands of that unfathomable substance, “Parliamentary time”. Governments always seem to manage to find time for things they want to do (the Dangerous Dogs Act?) but seem reluctant to get involved in matters that have any kind of “moral” dimension.
In a profoundly sensible comment on our post, Paul Kemp, an experienced family lawyer and mediator, suggested that “It might be helpful to the debate if all interested in reform were to adopt the term ‘no blame’ divorce rather than ‘no fault’.” Which makes sense to us: by the time a couple’s marriage has deteriorated so badly that they are seeking a divorce, trying to attribute “blame” seems likely to lead to nothing but recrimination and bitterness – just at the time when what they most need is calm and a willingness to compromise.
Permission to Officiate
During the IICSA hearing, there was a degree of confusion regarding permissions granted to Peter Ball, as evidenced by the exchange between Ms Fiona Scolding and Dame Moira Gibb [Day 5, 27 July, page 125, line 11]. However, the new House of Bishops Policy on Granting Permission to Officiate provides greater certainty regarding Permission to Officiate, Licences, with the meaning of “due regard”, and what bishops and clergy “must”, “should”, “may” do. In accordance with the recommendation in the Gibb Report, the new Policy also notes that it has been agreed to set up a national on-line register of all clergy who have the bishop’s authority to minister (whether on PTO, or licensed, or beneficed)
Following the conclusion of the IICSA public hearing on the Peter Ball case study, the Diocese of Oxford issued a statement from the Rt Revd Dr Steven Croft: Lord Carey PTO. This recognises that there will be renewed questions concerning Lord Carey’s Permission to Officiate following the IICSA hearings and states that he expresses his regret that his response to Lord Carey’s request for PTO in February caused additional distress to some survivors of abuse. It notes that there were no legal grounds to deny Lord Carey’s request for PTO in February this year  as he was not subject to a disciplinary process, and there has never been any suggestion that he is himself a risk to children, young people or vulnerable adults. However, the timing and content of this statement have attracted adverse comment on social media, within parts of the diocese, and from the Church’s lead bishop on safeguarding. The Guardian subsequently reported Church of England to review George Carey’s official role; however, this appears to be implicit in the final paragraph of Bishop Steven’s statement.
Vicarious liability again: Murray v Devenish
In Murray v Devenish & Ors (Sons of the Sacred Heart of Jesus)  EWHC 1895 (QB), the claimant sued the Provincial Superior of the London Province of the Sons of the Sacred Heart of Jesus for alleged sexual assault that took place between 1973 and 1974 at a school run by the Order in Mirfield. The alleged abuser, one Michael Riddle is presumed to have died in 1993, aged 93, in Kenmare, Ireland and it was accepted that, if the assaults took place and if the claim could otherwise be maintained, the Order would be vicariously liable.
The claimant was eighteen in April 1976, at which point the primary limitation period (i.e. the period that would apply unless the Court exercised its discretion under s.2D of the Limitation Act 1939 inserted by the Limitation Act 1975) began to run and would have expired in April 1979. The action was therefore well out-of-time. On balance, Nicol J decided that it would be inequitable to exercise his discretion in favour of Mr Murray and dismissed the claim.
Hearses in Italy
At the request of the Regional Tax Court in Rome, the CJEU gave a preliminary ruling in Case C‑445/17, involving an Italian firm, Pilato SpA, and the Agenzia delle Dogane e dei Monopoli, in which it was asked to determine whether a hearse is for transporting people or goods. However, considerations of “no property in a human body” did not come into the Court’s thinking as the case concerned aspects of vehicle design relevant to an essentially Brexit-related issue – the tariff and statistical nomenclature and the Common Customs Tariff within Regulation 2658/87, as amended.
For the curious, the Tenth Chamber held that “the answer to the question referred is that the CN [Combined Nomenclature] must be interpreted as meaning that hearses such as those at issue in the case in the main proceedings must be classified under CN heading 8703 [i.e. for carrying people rather than goods]” .
- Daniel Brown, The Conversation: Blood moon: lunar eclipse myths from around the world: part of which is on barmy religion.
- Rachel Hesh, The Conversation: Sex education gets a revamp but parents still allowed to opt kids out: “there’s no reason for the parental right to withdraw to still exist.”
- Julian Hughes, The Tablet: The conversation about genome editing begins: on the latest report from the Nuffield Council on Bioethics.
- Rachel Schraer, BBC: Does the Treason Act need updating?: in a word, “No” – and you can read the text of what remains in force of the Act here.
- Owain Thomas QC, UKHRB: New balance of probabilities test for suicide verdict: comment on R (Maughan) v Senior Coroner for Oxfordshire  EWHC 1955, which has overturned the criminal standard of proof for a coroner or jury to return a verdict of suicide in an inquest – that it must be established beyond a reasonable doubt – and substituted the civil standard of the balance of probabilities.
Heartiest congratulations to our good friend and occasional guest contributor, Russell Sandberg, on his promotion to a Professorship at Cardiff, where he is Head of Law.
From The Conversation: Gary Lewis of Royal Holloway College on publishing a spoof article in a so-called “predatory journal”. Very much in the “you couldn’t make it up” category – but there’s a serious point behind it. Both of us get regular e-mail invitations to submit papers to online journals we’ve never heard of, usually on subjects that are way outside any expertise that we might have. We’ll stick to the Ecclesiastical Law Journal and Law & Justice, thanks – but some people evidently get caught out.