23 July 2015
Proposed Removal of Time Bar for Scottish Abuse Cases
A consultation on the removal of the time bar for abuse cases in Scotland is now underway.
This follows an announcement by the Scottish government on 28th May that one of Scotland’s leading QCs, Susan O’Brien, will chair a public inquiry into non-recent child abuse in Scotland.
Scottish Education Secretary, Angela Constance, who announced Ms O’Brien’s appointment, described her as someone who “understands the issues that are so important to survivors.”
Ms O’Brien is an expert in human rights, has represented abuse victims in the past and was lead counsel for the appellant in AS v Poor Sisters of Nazareth  – the only Scottish case concerning non-recent child abuse to reach the House of Lords.
Shining a Light in the Dark Corners of the Past
In her speech to the Scottish parliament, Angela Constance expressed how the inquiry “aims to shine a light in the dark corners of the past” and how she hopes that survivors of abuse would “use the opportunity” to come forward.
Regarding the remit of the abuse inquiry, Ms Constance said that it will examine failures of the state to protect children “in care” – including those who were abused in residential care, foster care, children’s homes and young offenders institutions.
The inquiry will have the power to compel witnesses to attend and give evidence, with Ms Constance pledging that the "full force of the law" would be used to bring those responsible to justice should any crimes be uncovered.
Removal of the Time Bar
The Prescription and Limitation (Scotland) Act 1973 prescribes that all personal injury compensation claims must be brought before a civil court within three years – a similar limitation period to that which exists in England and Wales under the 1980 Limitation Act.
In England and Wales, however, there is provision for a claimant to ask the court to use its discretion to allow claims to proceed out of time. At Slater and Gordon, we have been successful in bringing claims for abuse survivors in England and Wales many years after the three-year time bar has passed.
At present, no such provision exists in Scottish law. For survivors of non-recent child abuse in Scotland to be able to seek justice, this time bar needs to be removed.
In outlining to the Scottish Parliament why the time bar should be removed, Ms Constance put it perfectly:
“At the heart of the issue is the reality of childhood abuse. It can take decades for a survivor to have the strength to challenge their abuser in court.”
The aim of the time bar is to help ensure court proceedings begin whilst evidence is still relatively fresh – but this is difficult to do for people who have survived abuse in the past. They have remained silent for years – either through fear, a desire to supress their memories or an assumption that nobody would believe them.
The Scottish government’s plans to remove the time bar were officially put out to consultation on 25th June.
Questions within the consultation paper seek views on certain definitions, particularly on “abuse” and what types should be covered.
The Scottish government proposes that “abuse” should cover “physical, sexual, emotional or psychological abuse, unacceptable practices and neglect” and that any change in the law with respect to the time bar is, for now, confined to abuse in "care”.
Launching the consultation, Scottish Minister for Community Safety and Legal Affairs Paul Wheelhouse promised that, by the end of the current Scottish parliamentary session in 2016, a draft bill would be published, informed by the responses to the consultation on the removal of the time bar.
Improving Access to Justice
Calls for the removal of the time bar in Scotland are nothing new, with Lord McEwan in 2008 saying, “the legislation and the strict way the courts have interpreted it has failed a generation of children who have been abused.”
Removing the time bar from Scottish law would, at the very least, offer survivors of abuse in Scotland the same level of access to justice as those who have survived abuse in England and Wales.
In issuing the consultation on the time bar removal, the Scottish government have now taken the first step in improving the prospect of access to justice for survivors of abuse in Scotland. We hope that the results from the consultation are positive and that the time bar can be removed as a matter of urgency.
Hywel Thomas is a Personal Injury Solicitor at Slater and Gordon Lawyers UK, specialising in non-recent child abuse cases.
Slater and Gordon have the most experienced team of Abuse Lawyers in the UK who are currently representing over 800 survivors of abuse, including many who have suffered abuse at institutions such as schools and hospitals, or when they were children in care.
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