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IICSA Independent Inquiry into Child Sexual Abuse

Children in the care of the Nottinghamshire Councils Investigation Report

E.6: Nottinghamshire Police and Crown Prosecution Service approach to non‐recent harmful sexual behaviour

Nottinghamshire Police

70. Although Nottinghamshire Police had a specialist team dealing with cases of child sexual abuse from 1988 onwards,[1] allegations of harmful sexual behaviour were excluded from its remit and were instead dealt with by its Criminal Investigation Department (CID).[2] This was because harmful sexual behaviour does not involve a perpetrator with care of or control over the victim.[3] 

71. From 2006,[4] certain cases of harmful sexual behaviour were dealt with by the CAIU and others by the CID, depending on the severity of the alleged offence. In any event, all harmful sexual behaviour cases should have been discussed with the CAIU, given its role in advising and monitoring the conclusions of harmful sexual behaviour investigations to ensure a consistent and appropriate response.[5] Since 2011, all allegations of harmful sexual behaviour should be referred to the CAIU.[6]

72. We have not seen any guidance or policy specific to the investigation of allegations of harmful sexual behaviour by Nottinghamshire Police.[7] We were told that “generally these cases are dealt with in a way that is similar to other cases of abuse”.[8] Child Abuse Investigation procedures simply state that where the suspect is a child, “this will not prevent a crime from being investigated”.[9]

The Crown Prosecution Service

73. Since 2009, all harmful sexual behaviour allegations must be referred to the Crown Prosecution Service for it to authorise charges.[10]

74. The Crown Prosecution Service’s approach has changed over time as it has become more aware of issues in relation to the vulnerability of both victims and children exhibiting harmful sexual behaviour, consent, adolescent relationships and public interest criteria. From 1986, when deciding whether to institute proceedings the Crown Prosecution Service was required to take into account the relative ages of the complainant and alleged perpetrator, and whether there was any element of “seduction or corruption”.[11] Specific guidance relating to the prosecution of harmful sexual behaviour cases was first included in the 2009 guidelines on prosecuting cases of child abuse, which required all such cases to be reviewed by a youth prosecutor.[12] 

75. More recently, Youth Offenders Guidance[13] set out some of the unique considerations for prosecutors dealing with harmful sexual behaviour cases, which primarily affect the public interest test. It is emphasised that the overriding public concern is to protect children, rather than punish them unnecessarily.[14] Factors to consider include: the relevant ages and the sexual and emotional maturity of the parties, the views of other agencies involved, the likely impact of any prosecution on the parties, and whether there is any element of exploitation, coercion, threat, deception, grooming, seduction, manipulation or breach of trust in the relationship. A distinction is drawn in relation to children under the age of 13: 

“There is a fine line between sexual experimentation and offending and in general, children under the age of 13 should not be criminalised for sexual behaviour in the absence of coercion, exploitation or abuse of trust.”[15]

Allegations of non‑recent harmful sexual behaviour

76. More than 50 complainants who were in the care of the Councils allege non‑recent harmful sexual behaviour, but few have reported their allegations to the police. For those who did report to the police, some allegations have led to a decision by the police or Crown Prosecution Service to take no further action,[16] whilst investigations into others were still ongoing as at October 2018.[17] We are aware of only one prosecution for non‑recent harmful sexual behaviour, which took place in the early 1990s and related to harmful sexual behaviour at Hazelwood in 1985.

77. L43 contacted the police recently regarding harmful sexual behaviour in 2002. He was told that there was nothing that the police could do because he did not press charges at the time.[18] Chief Superintendent Robert Griffin confirmed that a complainant’s earlier decision not to proceed with allegations would not be a bar to the police now taking his complaint forward, and that on the face of it there should have been an investigation into L43’s allegations.[19] Despite the police not pursuing an investigation in this case, Chief Superintendent Griffin had not sensed any reluctance in general to investigate non‑recent allegations of harmful sexual behaviour.[20] 

78. At present, allegations of non‑recent harmful sexual behaviour in care (made by adults no longer in care) are generally investigated by the adult team within Nottinghamshire Police’s Public Protection Unit. If a complainant alleges non‑recent abuse in care by staff and also alleges they were abused by a child, it will be investigated by Operation Equinox.[21]

79. Neither the police nor the Crown Prosecution Service appear to have specific guidance on the prosecution of cases of non‑recent harmful sexual behaviour. This means that there is no specific guidance on some of the difficult issues in these cases, such as the extent to which someone should be held responsible for offences carried out many years ago whilst he or she was a child in care, the impact of a child exhibiting harmful sexual behaviour having been abused themselves, and how the question of consent should be approached. Instead, these matters are left to individual police officers and prosecutors to consider. 

80. The understanding of and response to harmful sexual behaviour between children has developed significantly over the past three decades. There had been a focus on the issue in the County in the late 1980s and early 1990s, with five enquiries into harmful sexual behaviour in children’s homes, the formation of an Adolescent Sex Offenders Group, and the development of policies and procedures. Whilst the enquiries established that harmful sexual behaviour was widespread in its children’s homes, the County did not address the prevalence of harmful sexual behaviour or take sufficient action to prevent and respond to incidents. More recently, however, the County has taken steps to evaluate and improve its response to harmful sexual behaviour, to better understand its scale, and to develop new approaches to its prevention. 

References

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