Should we trust our doctors, teachers and priests? Keir Starmer QC, who recently stepped down as Director of Public Prosecutions, believes we should not. Instead we should place our trust in the criminal law and the lawyers of the Crown Prosecution Service. That is the conclusion one is driven to after he told BBC Panorama in November that it should be mandatory to notify the authorities of a reasonable belief that a child has been sexually abused.
A prosecutor is often tempted to regard prosecution as the answer to our social problems. And in the wake of the Jimmy Savile and clergy scandals Mr Starmer’s proposal has attracted considerable support, not least from the higher reaches of both the Anglican and Roman Catholic Churches, despite the obvious danger that such a law would criminalise any priest preserving the seal of the confessional.
Notwithstanding the support of clerics, reeling after the exposure of the libidinous criminality of their former colleagues, the implementation of Mr Starmer’s idea would do little to help vulnerable children. It might actually both deter abused children from seeking help and divert police attention to the investigation and consequent publicising of baseless rumours.
Outside of areas like health and safety, offences of omission are now unusual in English law, and of failing to report suspicion that somebody has committed a crime even more so. If you believe that your neighbour is fraudulently claiming benefit, that your builder is not paying his income tax or that your son has committed a theft, or even a murder, you are under no legal obligation to inform the authorities.
The law was different until 1967 when, as one of Roy Jenkins’s lesser-known legal reforms, the delightfully Tudor-sounding offence of “misprision of felony” was finally abolished in England and Wales. It survived in Northern Ireland under the guise of “failing to report an arrestable offence”, although the threat of ten years in jail did not persuade the Sinn Fein leader Gerry Adams to report either his knowledge of mass murder committed by his followers, or his suspicions that his niece was being raped by his brother Liam. (In fairness to Mr Adams he did tell social services that the niece in question might have nits.) Nor did the continuing existence of misprision in the law of the Irish Republic up to 1998 do much to encourage bishops and cardinals to report abuse within the Catholic Church.
In England new duties to report have been created in recent years. Banks and others handling large sums of money in suspicious circumstances have to alert the authorities, and there is now a general duty to report terrorist activity. Nevertheless, in general, unless you believe your neighbour is planning a terrorist offence, you commit no offence by staying mum. You may sometimes have a moral obligation to report illegal activity. But life would become intolerable for everyone except nosey-parkers, busy-bodies and sneaks if that flexible moral obligation were to be replaced by an inflexible legal obligation to report every crime.
But Mr Starmer’s proposed law is not so wide-ranging. It would not apply, for example, to a future Gerry Adams. He suggests that the legal obligation to report sexual abuse should apply only to “those in a position of authority” over children. While it may be a little unclear whom he had in mind, it was certainly not those such as Mr Adams, who exercise authority deriving from a position as a gangster capo di tutti capi. He was referring to those whose professional duty it is to exercise some form of care for children, in particular doctors and teachers.
All these professions now issue guidance on how their members should handle allegations of child abuse. There are any number of protocols, directives and procedures to ensure that suspicions are investigated. Any parent taking a child to hospital with a broken bone or bruising will be familiar with the polite but suspicious questions that are almost always asked in such circumstances. If a doctor or teacher is made aware of an allegation of sexual abuse it is overwhelmingly likely that he or she will inform the police. A failure to comply with professional guidelines is likely to be a serious disciplinary matter.
But such professional guidance does not have the force of the criminal law, and this is what Mr Starmer wishes to change. Wherever there is “reasonable belief” that abuse has occurred he wants the police to be informed; and, upon the completion of their inquiries, he wants the CPS to decide whether a prosecution should take place.
Mr Starmer offered no evidence that a reluctance to involve the police or the CPS is seriously contributing to child abuse or preventing its investigation. Before creating a whole category of new offences the most crucial question should be what impact the adoption of Mr Starmer’s proposal would have on abused children.
In some cases the first person to learn that a child has been sexually abused is a doctor, perhaps in the context of a request for contraception or abortion. A law requiring the doctor to inform the police inevitably conflicts with the doctor’s duty of patient confidentiality. That may not be an issue where young children are concerned: it certainly would be in the case of teenagers entitled to expect medical confidentiality. That was the rationale behind the landmark decision in Gillick v. Norfolk Area Health Authority (1986) in which the House of Lords ruled that a doctor could prescribe contraception to underage girls without telling their parents. In every case where a teenage girl under the age of consent asks for contraception the doctor must have grounds for a strong belief that a sexual offence has recently been committed, or shortly will be. It would be extraordinary if the doctor was to be forbidden from exercising his professional judgment in such circumstances.
The General Medical Council has issued guidance which permits disclosure of confidential information even in the absence of a patient’s consent when it is, in the view of the doctor:
necessary to protect the child or young person, or someone else, from risk of death or serious harm. Such cases may arise, for example, if
a) a child or young person is at risk of neglect or sexual, physical or emotional abuse
But this falls far short of requiring a breach of confidence in every case. The doctor has to balance the public interest in disclosing confidential information against the patient’s and society’s interest in keeping medical information confidential:
A disclosure is in the public interest if the benefits which are likely to arise from the release of information outweigh both the child or young person’s interest in keeping the information confidential and society’s interest in maintaining trust between doctors and patients. You must make this judgment case by case, by weighing up the various interests involved.
In some cases doctors will agonise before deciding that the involvement of the police is likely to harm rather than assist their patient. The last thing that will help satisfactorily to resolve the sort of dilemmas that arise is the requirement to summon PC Plod to the waiting room or, even worse, the fear that he will turn up without an appointment, with an arrest warrant to elbow his way past the receptionist.
And from the teenager’s point of view, knowledge of a doctor’s legal duty to report would make her less likely to reveal what is going on. The same principle applies to other professions with a duty of care. What child would not dread the prospect of revealing to another teacher that dear old Mr Chips, far from being a respectable pillar of the school community, is in fact a dirty old man? If they know that the police will inevitably be informed, that dread could become so great that it is easier to say nothing at all.
As well as deterring genuine complaints, a legal obligation to inform the authorities about suspected abuse would also encourage spurious ones. Teachers in particular are already peculiarly vulnerable to malicious complaints but at least they have the reassurance of knowing that if a school decides that a complaint is utterly ridiculous it need not be reported to the police. Mr Starmer’s law would, in effect, make it compulsory to report any complaint, however absurd it might be, because a headteacher or governor who failed to do so would run the risk of prosecution. The law might require “reasonable belief” rather than mere suspicion, but what headteacher would have the courage not to report every rumour and snippet of gossip, which the police will then have to investigate?
Even if sensitively done, such investigations waste valuable police resources and cause acute embarrassment, alarm and humiliation to the innocent. It is not exaggerating to say that they can destroy lives and tear families apart. Even if the publicity consequent upon such investigations does not lead to the lynching of an innocent man on the basis of a groundless rumour — as occurred in Bristol in July when Bijan Ebrahami was beaten and burned by vigilantes because they thought he was a paedophile — these are not trivial concerns. Were there solid evidence that children would benefit from the implementation of Mr Starmer’s proposals then they would deserve support. In its absence we should be deeply sceptical of introducing a law that would deter frightened children from seeking help, criminalise dedicated professionals and lead to the police investigating and shattering the lives of innocent people.