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 from his demand for a new offence of failing to notify the authorities of a reasonable belief that a child has been sexually abused.
It is hardly surprising that a DPP should wish to create new crimes. A prosecutor is often tempted to regard prosecution as the answer to our social problems. And his 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 sanctity of the confessional.
Notwithstanding the support of clerics, battered and befuddled after the exposure of the libidinous criminality of their former colleagues, the implementation of Mr Starmer’s idea would be a mistake that would do little to help vulnerable children. It might actually achieve the dual effect of deterring abused children from seeking help, and diverting police attention to the investigation and consequent publicising of baseless rumours.
Offences of omission are now anomalous in English law, and crimes of failing to report suspicion that somebody else has committed a crime are 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 the offence of “failing to report an arrestable offence,” although the threat of 10 years in gaol did not persuade 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, against these omissions one should balance the fact that he did tell social services that the niece in question might have nits).
Nor did the continuing existence of misprision in the law of Eire up to 1998 do much to encourage bishops and cardinals to report abuse within the Catholic Church.
In England more 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. Whilst it may be a little unclear who 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 they 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 was 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  AC 112 in which the House of Lords ruled that a doctor could prescribe contraception to under-aged girls without telling their parents. In every case where a young teenage girl asks for contraception the doctor must have at least a strong belief that a sexual offence has recently been committed, or shortly will be. It would be extraordinary if the doctor were to be forbidden from exercising his professional judgement in such circumstances.
The GMC 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 judgement 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 past the receptionist.
And from the teenager’s point of view, knowledge of a doctor’s legal duty to report could have the consequence that they become less likely to reveal what is going on. The same principle applies to other “caring” professions. 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 protection 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 every single complaint, however absurd it might be, because a head teacher or governor who failed to do so would run the risk of prosecution. The law might require “reasonable belief” rather than mere suspicion, but which head-teacher 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 October, these are not trivial concerns. Were there solid evidence that children would in fact be protected by the implementation of Mr Starmer’s proposals then they would deserve support. In its absence we should be deeply sceptical of 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.
This article first appeared in Standpoint December 2013