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Allegations of involvement in covering up child abuse have dogged Pope Benedict VXI, and now senior figures in Scotland say there is a criminal case to answer under Scots law. Steven Raeburn investigates whether the Pope could face prosecution when he visits Scotland in September.
Your eyebrows may have been briefly raised during April by a series of press reports claiming that noted anti-theist and proponent of evolutionary theory Richard Dawkins was calling for the arrest of his Holiness Pope Benedict XVI during his visit to Britain in September. The reports treated rather hilariously the genuine and serious contention that the incumbent Pontiff may actually have a case to answer arising from his claimed historic knowledge of ritualised paedophilia undertaken by priests under his authority.
After a few follow up comments the story has moved off the agenda and Dawkins -together with colleague Christopher Hitchens - has been largely silent on the subject since then. Both had in fact engaged solicitor Mark Stephens and human rights counsel Geoffrey Robertson QC to shore up their argument, and on the face of it there appears to be a compelling logic to the proposal, which considers factors including jurisdiction, civil and criminal liability, and the question of the Pope's immunity as head of state, a defence which they dismiss on the basis that the Vatican is not recognised as a state under international law.
However, with typical anglocentricity, the coverage totally omitted any reference to Pope Benedict's trip across the Hadrianic divide into our jurisdiction, which not only has a completely different criminal justice system and process, it also has its own priorities which have -post Operation Algebra and the Strachan & Rennie case- set new benchmarks and standards of evidence for securing convictions not only for sex offenders, but for those who assist in conspiring to cover them up. Dawkins, even if he was minded to, couldn't get near the Pope during the English leg of his trip, but the prospect of Strathclyde or Lothian and Borders Police slapping the handcuffs on the Pontiff just as soon as he has kissed the tarmac may yet be such a sufficiently real prospect that the visit may be cancelled. The Crown Office have not ruled out the possibility of a prosecution, and a recent papal excursion to Malta was marred by fresh allegations of his involvement in covering up for paedophile priests. The defining event of his tenure as Pontiff could see Benedict XVI escorted from the tarmac to a Reliance van and into the dock in Glasgow's High Court, and off to Barlinnie thereafter, which would make for quite a photograph.
The scenario is not far fetched, according to civil and criminal specialists in Scotland.
"For more than 20 years before he was made pontiff, Cardinal Ratzinger led the Congregation for the Doctrine of Faith - the Vatican office with responsibility, among other issues, for investigation of these cases of child abuse by priests. There appears to be evidence that, during his time there, the Cardinal was told of specific abuse and did little or nothing to ensure that it was brought to the attention of the authorities," says solicitor advocate John Scott.
"On its own that would be reprehensible but may not amount to a crime. Moving an offending priest on to another parish without any safeguards might be unacceptable recklessness but the key to a successful prosecution would be to demonstrate knowledge on the part of the Pope that a crime had been committed and that he had assisted in an attempt to cover it up. The relevant correspondence would have to be considered to see if there was any suggestion of interfering with a criminal investigation, discouraging the victims from going to the police or encouraging the offending priests in their activities in some way.
"From some reports it seems to me that there would certainly be a basis for a police investigation into either an attempt to pervert the course of justice or even a conspiracy to pervert the course of justice."
There are three routes to mounting a criminal prosecution in England, according to Stephens: "One is that we apply for a warrant to the international criminal court. Alternatively, criminal proceedings could be brought here, either a public prosecution brought by the Crown Prosecution Service or a private prosecution. That would require at least one victim to come forward who is either from this jurisdiction or was abused here. The third option is for individuals to lodge civil claims."
The likelihood of each of the Scottish equivalents can be assessed. Securing an international arrest warrant - the Pinochet option- would present even more of an international incident than the erstwhile General's case, and would require participation on the part of the Scottish Government to enforce it, and there is no sign at this stage that they would be willing to do so. The option of attempting to found criminal jurisdiction in Scotland is a very real possibility that, even if it did not result in a case being brought to court, might force the police or Crown office into the embarrassing position of not acting, which may be hard to justify given the volume at which they have been lauding their newfound prioritising of conspiracy to carry out sexual crimes.
The Lord Advocate Elish Angiolini said only last year following Operation Algebra that the decision to utilise the conspiracy charge - the very act alleged against Pope Benedict - provided "clear evidence" and allowed the Crown to demonstrate to the jury "not only the full scale and truly sinister nature of the offences already committed, but also the shocking extent of the crimes that the accused had agreed to commit,"
"These convictions for conspiring to abuse children make it clear that taking part in this kind of conduct is in itself an offence, and can be struck at by the law," she said. And at the launch of the Crown's new dedicated Sexual Offences Unit, Derek Ogg QC underlined their determination to pursue the most difficult cases.
"We will not shy away from cases simply because they are difficult or challenging. We will always seek to prosecute where the law enables us to do so," he said.
"Above all, we want people who come forward to report sexual crime to be reassured that all of the facts will be thoroughly investigated and that there is commitment at the highest level in Scotland's prosecution service to delivering justice in these cases."
With such a high level of commitment, policy inaction in the Pontiff's case, which could send out an international signal that Scotland is passively tolerant of historic abusers, is "inconceivable" argues Scott.
"In Scotland we now have a National Sexual Crimes Unit at Crown Office which specialises in the investigation and prosecution of serious sexual crimes across Scotland. It is inconceivable that they could choose to ignore the scandal and apparent cover-up," says Scott.
"The recent Scottish case of the paedophile network, convicted and imprisoned for lengthy periods, showed an increased determination on the part of the Crown to widen its nets when it comes to such crimes. The charge of conspiracy to participate in the commission of sexual offences against children was used successfully and may point to an unwillingness to leave any stone unturned. There is a clear intent on the part of the Crown to leave no hiding places for serious sexual offenders."
Such intent may be put to the test come September. Certainly, at this stage, the Crown seemed unwilling to even engage with the Pope's imminent and inevitable arrival into our jurisdiction, and told the Firm the matter was "hypothetical," although tellingly they did not rule out the "potential" for a prosecution to be raised. Scotland's justice system and prosecution machinery has however proven to be somewhat gun shy and hesitant to enter into any area where it could take a world lead, as demonstrated by its failure to act over crimes of rendition alleged in Scotland. And as Dawkins points out, when it comes to the potential for proving Papal fallibility, Scotland is not alone.
"The only strange thing about our proposal is that it had to come from us: where have the world's governments been all this time? Where is their moral fibre? Where is their commitment to treating everyone equally under the law?" he asks.
The third option, that of raising a civil action in Scotland, is fraught with challenges when the respondent is an institution such as the church, and as civil specialist Cameron Fyfe - who has acted for clients who suffered sex abuse at the hands of the priesthood- explains, even when the burden of proof is on the balance of probabilities, the route to court is far from direct.
"A civil action against the Pope could only be raised in Scotland if it could be proved that he was made aware of abuse of children in Scotland, made a decision not to take any action against the abusers and as a result the abuse continued," he says.
"A lot of the abuse cases I dealt with involved the catholic church. One of the first things we found out was you can't actually sue the catholic church because it doesn't really exist. It is just a generic term, it's not a legal body. It is broken down into various orders, and you have to find the particular order that was responsible for that institution.
"For example, our clients were alleging abuse in an institution called Nazareth House and we found out that the order of the catholic church in that case was the Poor Sisters of Nazareth, and so the action was raised against them. Technically and legally, other orders were immune from being sued. So logically, you could only make an accusation against someone higher up - a cardinal, a priest or whatever, if they were actually part of that order and had responsibility for the institution itself.
"Now with the Pope, what was unique in the cases in Germany and America was that he actually did have responsibility over the priests who were carrying out the abuse, and therefore if you could indicate that he was personally responsible for any priest or other member of the church who had carried out abuse, then your court action would be against that order of the church, and you could argue that he was a member. If you could show that the Pope was responsible for the running of an order, which in turn was responsible for abuse, then he could be one of those being sued."
To date, whilst the church has made a series of admissions, apologies and payouts in respect of historic sexual abuse, the allegations relating to the possible knowledge and responsibility of the current Pontiff relate to cases only in the United States and Germany, so far. If a victim of abuse resided in Scotland or similar allegations surfaced in relation to a Scottish cover up, then the papal visit to Scotland could trigger jurisdiction to raise a civil action. However, Fyfe warns that raising the action is only the beginning of the difficulty.
"The scale of the challenge is enormous, having ridden the course myself. One of your problems is that, whomever you were acting for would probably have to rely on legal aid because of the costs involved, and it is difficult to proceed with just legal aid; you can only use so many witnesses and so many experts, whereas the church have resources that are massive, and can throw anything at you," he says.
"The main legal challenge is the time bar, and on the face of it you couldn't get over that. The House of Lords have said that if abuse took place several years ago, you are stuck, because it is unfair on a defender. So it would have to be fairly recent before you could have a chance of successfully pursuing it.
"However if it came to light that someone very high up in the church was involved in abuse in the sense that they conspired to cover it up and could have done something to prevent it, it could be argued that the three years runs from whenever that information came to light. On the face of it, you would have a legal argument to present which might well be accepted."
It is politically unlikely that Pope Benedict VXI will face criminal sanction upon his arrival in Scotland, but the fact that the action is being contemplated in England is perhaps indicative of a new willingness to test the powers of international law, which forces state machinery into rising to or wilting under the challenge. Recently, Israeli government opposition leader Tzipi Livni cancelled a proposed trip to London after a warrant was issued for her arrest there for alleged war crimes, proving that the policy can restrict the extent to which high ranking officials can act and thereafter freely move with impunity. Much may happen between now and September, and the Pontiff may find his every international step dogged by similar calls for prosecution. Until such claims are tested in court - and there appears to be no reason in law why a Scottish court could not be the forum- the stains of association with these offences are likely to follow him around the world, until he lands in a jurisdiction whose will to act is equal to its morals.
"Today there is a far greater readiness to give justice to the victims, regardless of the identity of the criminal or the status of their protectors," says John Scott.
"According to his own faith the Pope will have to answer for his actions at some point in a place where there are no rules of evidence and no immunities, but, if he does so, it will not be during his visit here."
Or will it?