Public Petitions Committee

Meeting date: Thursday, November 10, 2016

Official Report 443KB pdf

---

New Petitions

---

Criminal Injuries Compensation Scheme (PE1612)

Item 3 is the consideration of two new petitions. The first, PE1612, by Graham McKinlay, is on the criminal injuries compensation scheme’s same-roof rule. Members have a briefing paper along with a copy of the petition. I am pleased to welcome Mr McKinlay to this morning’s meeting. He will speak to the petition and answer any questions that members have, to help our consideration of the petition.

Mr McKinlay, you have an opportunity to make a brief opening statement, after which we will move to questions from members.

Thank you for seeing me. I am here today further to my petition on compensation for victims of childhood sexual abuse who have thus far been denied compensation under what is called the same-roof rule.

There are many factors and experiences in our childhood that influence our future path. I have served on a children’s panel and have witnessed some pretty awful cases of neglect and cruelty, and I have been a foster carer and have witnessed the trauma that children have had to live with.

I have family members who are alcoholics. With an alcoholic, one can relatively easily spot when they have been drinking, times of sobriety and times of reckless abandon. There is usually some event that triggers the drinking—the loss of a loved one, family breakdown and so on. Their pain is obvious. The path that they walk is usually plain to see.

Sure, we all have good and bad days, but many victims of childhood sexual abuse suffer in silence. They have been abused, betrayed and let down. Often, they have been threatened to make them keep quiet—told to tell no one, or else. They experience the mental anguish that is suffered by alcoholics or those with mental health issues, for example. However, to an outsider, or even to close family members, the cause of their anguish and their pain is often hard to establish.

It is a time of silence for such victims. They dare not speak for fear of retribution. However, worse than that is the fear that, somehow, they have only themselves to blame. The abuse leaves victims feeling dirty, ashamed and worthless. They wonder, “What will happen to me if I tell my mother? What will happen to my siblings? Where does that leave me? Surely I am damaged goods. I have been mentally and physically abused. Who would ever want to love me for me, with all the baggage that has been forced on me? If I tell someone, will they believe me? Will they help me? What help is out there? Who can I turn to, and who can I trust?”

For many reasons, many victims of childhood sexual abuse remain silent. It affects their whole lives. It affects their mental health and it can affect their physical health. Studies have shown that victims often have more medical problems and may even have a shorter lifespan because of the abuse.

10:15  

I know that. I had a great childhood. I was not aware of childhood sexual abuse until I met Linda, whom I was to marry and be with for some 25 years. Linda had been abused by her father from a very early age up until she ran away from home on the day of her 16th birthday. It was a year or so after we had been together that Linda felt able to tell me about the abuse.

Linda got help and, by and large, it worked, but it did not stop the memories, the feeling of fear or the feeling of being used and of being worthless, nor did it stop the nightmares, the sense of shame or the feeling of being in some way to blame.

Linda died at the age of 58 three years ago. Poor health and terrible memories were with her every day. I am seeking not just financial compensation for such victims but something that is perhaps more important: recognition of the wrongs that were inflicted on them. To explain being abused as a child is, quite honestly, beyond any words. It involves being let down by family and by everyone else, including themselves. It involves being let down by a system that discriminates against victims because of some arbitrary dates, which have been chosen as a money-saving scheme. Linda, along with so many others, was let down by the powers that be.

I am here in Parliament, and I ask—as I request in my petition—that you give help to those who are presently excluded under the so-called same-roof rule. It is not fair, it is wrong and it must be changed. I, along with many others, have tried over many years to have the rule abolished. This is the very place—the very building—that contains the very people who have the power to bring about such a change.

The law applies equally to all. No one is above the law. All persons shall be equal before the law—apart, it seems, from those victims who have so far been denied compensation.

The issue is not just about money; it is about recognition for what happened to all those who still suffer, many years after they were abused. I most respectfully ask for your help.

Thank you very much for that. I appreciate your thoughtfulness. Given that the issue is personal to you, I know how difficult that must have been for you. I very much appreciate your statement, which was very powerful.

I want to start by asking about some of the technicalities. You suggested that there is a cut-off date simply because of financial considerations. Can you help us to understand why 1 October 1979 was chosen as the cut-off date? What was the thinking behind that?

I have tried relentlessly to find that out, as have other people who have been involved in the process, including solicitors, MSPs and MPs. Nobody can give me any reason for that arbitrary date.

That is the first thing that we can pursue.

Your petition suggests two options for making a change to enable people to claim compensation for injuries that they have suffered. We will try to tease out a bit of detail on each of those options as we go on. Do you have a particular preference for one option over the other?

Not really. I think that recognition is the primary objective. Whether victims get a lump sum from whatever source or whether they get what they are entitled to through the criminal injuries compensation scheme is, in many ways, irrelevant. What is important is that they get recognition and some acknowledgement that they have not been excluded from what other people can get by law and by rights.

So you flag up both options, but you do not have a preference for one over the other.

None whatever.

Having said that, I am aware that the money would come out of the public purse, as it were. That is at the back of my mind as well.

It was very interesting to hear what you had to say in your statement. You offer two suggestions in your petition. The first is to seek a change in the rules that are applicable to Scotland. How do you envisage that that might happen? Our briefing paper refers to the eligibility criteria that are set out in paragraphs 19 and 20 of the current scheme—the criminal injuries compensation scheme 2012. Could the wording be adjusted to say that those provisions do not apply to Scotland?

I understand that that could happen. Money that is paid through the criminal injuries compensation scheme to victims in Scotland comes out of the Scottish purse, so it might be simple to add to the 2012 regulations that those eligibility provisions do not apply in Scotland.

As we know, the eligibility restrictions under the same-roof rule are less restrictive for cases after 1 October 1979 and apply only to adults after that date. Unfortunately, however, that position does not apply retrospectively back to 1964. We know that the power to establish a separate scheme for Scotland lies within the devolved competence of the Scottish Parliament. Clearly, we need to find out what the Scottish Government’s position is on that. You suggest that the Scottish Parliament could create a separate mechanism to ensure that individuals who are unable to claim under the present scheme are fully compensated for their injuries. Have you considered how such a mechanism might work? Who would administer it and would it mean complete withdrawal from the existing scheme?

I do not think that complete withdrawal from the existing scheme would be needed. I have spoken to the Criminal Injuries Compensation Authority and I think that it would be able to provide a list of people who have been refused under the same-roof rule. That would make it possible to re-examine those cases and make a decision on them, but I am not certain exactly who would do that. However, the Criminal Injuries Compensation Authority could provide a list of people and provide reasons as to why claims were refused. If a claim was refused only because of the same-roof rule, I think that that would be reasonably simple to remedy.

Excluding the same-roof rule, do you think that the existing scheme works?

It does, by and large, but there are inequalities in it. There are different compensation rates that depend on the nature of the injury and its long-lasting effects. Generally, the criminal injuries compensation scheme could do with an overall. I am not sure that it is up to date or as fair to everyone, not just victims of sexual abuse, as it could be. It possibly needs re-examined.

Our briefing on the petition notes that the same-roof rule was introduced to prevent offenders from benefiting from compensation paid to victims who lived with them and that, for cost and other reasons, successive Governments have decided not to change the rule. What is your view on the issue of preventing offenders from benefiting and on the reasons that the Government has given for not changing the rule?

The Government’s reason for not changing the rule is to save money, to put it bluntly. With regard to preventing offenders from benefiting from compensation, if a father abused his daughter and she received money in compensation for that, it is understandable that the perpetrator should not be able to benefit by getting his hands on that money. However, that may be a slightly misleading example, because I do not think that any body paying out compensation money would do so to someone who was too young or if someone else could have access to it. I therefore do not think that there is a desperately valid reason for the rule.

Can you say a little bit about your view that changes to the rule were not applied retrospectively because it was consistent with the general Government approach that rule changes apply to future claimants?

I am still uncertain as to why those specific dates exist. I am not sure why the change was not made retrospective. I am just at a loss as to why that happened and cannot explain it, but I am angry that it happened. Had my wife’s claim been successful at the time, the petition would not have taken place. However, I know from having spoken to many other victims, support groups, solicitors and the like that there are still a number of people out there who have been denied what the petition seeks. I am not sure whether that answers your question.

That is fine—thank you.

This may be a bit of an unfair question, so I will understand if you are unable to answer. Are you aware of any financial projections of how much money would be required to meet any claims in respect of abuse prior to 1979 if retrospective claims were allowed?

In its annual report, the Criminal Injuries Compensation Authority publishes the number of claims that have been refused. I cannot remember the exact numbers but, given the ages that the victims are now, I do not think that there would be many and I do not think that the figure would be millions of pounds.

An alternative way of ensuring that whatever budget was set was adhered to would be to put a limit on individual claims. That figure might be considerably less than a claimant would get under the criminal injuries compensation scheme. However, if Scotland said that it would pay out in retrospective cases but that each claim would be limited to £5,000 or whatever, that would be one way of ensuring that the budget was not blown out of all proportion.

Can you clarify the sense of injustice that people feel about the fact that, if someone was abused by their father in their own home while they were living together as a family, they would not qualify for compensation whereas, if the father was estranged and living somewhere else, they would?

l had a conversation about that earlier today, in a discussion about where the line should be drawn. Each case is looked at on its merits, but there is a sense of injustice when a person who was abused on one occasion by a television celebrity receives many thousands of pounds, whereas someone who was abused from age two to age 16 receives nothing because they were abused by a family member under the same roof. That is where the injustice is more apparent and more personal to me.

I have been aware of that issue more generally. Survivors feel quite strongly about the attention that is sometimes paid to celebrities, sadly, in order to focus on things that are happening.

I am interested in what you say about the flaws in the criminal injuries compensation scheme. Many years ago, I dealt with a case in which someone had suffered terrible trauma—there had been a murder in his family—but his compensation was reduced because he had a conviction for a breach of the peace or something, which was probably related to the trauma of what had happened in his family. Do you have a view on the general way in which compensation is reduced according to a tariff? Would you like that issue to be looked at, too?

There is possibly a good reason for having the tariff. One of the reasons for its existence is possibly that it is not fair for someone to benefit if they have committed crimes themselves for which other people have been compensated. I think that there is a need to look at the background and history of the individual who applies. Does that answer your question?

Absolutely. Among other issues, you highlight the impact on somebody who is a survivor or victim of this kind of abuse. You will know that there is a national inquiry into historic cases of abuse against people in care. Do you think that the issues that you are highlighting should be fed in—not into that inquiry, because the abuse that you are talking about happened in the home—or presented to Government in the context of its broader strategy for dealing with people who are victims of abuse?

I think so. I spoke to Susan O’Brien QC, who was the chair at the time, and I had correspondence with the inquiry. I think that the inquiry is superb but it obviously relates to people who have been in foster care or an institution. I would like its remit to be expanded to take account of victims who have been abused outwith the particular areas that are being looked at.

Their childhood sense of not being believed and being frightened is compounded by a system that says that their abuse does not fit into the hierarchy of abuse that it is looking at.

Exactly.

Are there any further questions?

10:30  

I am puzzled by the idea of not getting compensation because the victim lived within the environment in which they were abused. It seems to be highly unlikely that, if such abuse was highlighted, they would remain within that environment.

I understand what you are saying. My wife was abused and lived under the same family roof because there was nowhere else for her to go because she was scared to speak out. She did not speak about it until she was in her late 30s or early 40s. That is where the problem arises. Nowadays, if a child of 14 was abused and social work, the police and everybody else became involved, either the child or the perpetrator would be removed from the home. There are now a lot more safeguards, especially for younger children. However, we are really talking about victims who were not able to speak out at the time of the abuse.

People aged 80 are coming forward to say that they were abused and have lived with it all these years.

My point was that if abuse came to light, the likelihood is that one or the other would not be allowed to remain in the environment.

Correct. One would certainly like to think that that is true nowadays.

Do you have any concluding comments before the committee tries to pull things together?

No. I hope that I have been able to answer your questions and explain what we are looking for.

Thank you. Do members have views on how we can take the petition forward?

The obvious thing to do is to establish why that date was set. Who would we ask? The petitioner has commented that he has been unable to find out.

It would be worth asking the Scottish Government for its comments more generally. The Criminal Injuries Compensation Authority might also be able to address the questions and the broader points that have been highlighted about its willingness to review its processes.

I have notes that go back many years. I have written to the Ministry of Justice and every other Government department, including David Cameron, who was Prime Minister at the time, to establish why the dates were set. Nobody can tell me.

Even if we were able to get them to accept that the date is arbitrary, that might be something. It would be interesting to see comments on that. From the information that we have, even when the issue has been highlighted to successive Governments, they have not been willing to shift on it. It would be interesting to know what the thinking on that is. Some of it is about preventing the perpetrator from benefiting from a scheme that is meant to protect victims.

Is there anything else that the committee wants to do?

Seeking the views of the Survivors Trust and Victim Support Scotland is important. We need to dig down a bit on some of the points that Mr McKinlay has brought out because that will be our argument against the date problem.

Perhaps, with the clerks’ help, we could look at what survivors organisations would have an interest. There is clearly a range of organisations for those who were abused while they were in care, but there is a sense that there has not been as much focus on those who were abused in the family, in terms of recompense and recognising their challenges.

There is quite a lot there for us to investigate. As we seem to be agreed on our course of action, I thank you for your attendance, Mr McKinlay. Once we have responses, we will get back to you to keep you informed of the petition’s progress.

Thank you.

---

Museum of Fire (PE1620)

PE1620, on the museum of fire, by Colin Fraser on behalf of the friends of the museum of fire, calls on the Scottish Government to meet the Scottish Fire and Rescue Service to discuss the future of the museum of fire, including its collection and location, in the context of the national strategy for Scotland’s museums and galleries.

Members will note that we have received copies of correspondence between Gordon Lindhurst MSP and the chief fire officer.

Members will see from the meeting papers that since the petition was lodged the building in which the museum of fire is located has been sold to the University of Edinburgh.

The petitioner has provided a written submission to explain that the friends of the museum of fire have met the Scottish Fire and Rescue Service to agree a way forward for the museum. As such, the petitioner has indicated that he would like to withdraw the petition.

Do members have any comments or suggestions on how we deal with the petition?

Given that the petitioner has indicated his intention to withdraw the petition, I would have thought that it would be in order for us to close it.

We can, as has been suggested by the clerks, close the petition under rule 15.7 of the standing orders, on the basis that the petitioner has indicated that he would like to withdraw the petition because the museum volunteers have come to an agreement with the SFRS on the museum’s future. Do members agree to close the petition?

Members indicated agreement.

We thank the petitioner for bringing the petition before us.