Martin Partington: Spotlight on the Justice System

In August 2020, I noted that the Government had launched a consultation on the Criminal Injuries Compensation scheme. See https://martinpartington.com/2020/08/24/reviewing-the-criminal-injuries-compensation-scheme/.

In December 2020, the Criminal Injuries Compensation Authority and the Ministry of Justice published revised guidance on how to make a claim under the scheme. The revised guidance is not, it seems, the fruit of the consultation exercise but simply an administrative update for those who might be considering an application to the scheme.

I will report on the outcome of the consultation in due course.

The updated guidance is at https://www.gov.uk/guidance/criminal-injuries-compensation-a-guide#contents

At the end of February 2019, the Government announced that it was introducing a measure to amend the criminal juries compensation scheme. The amendment would abolish the rule that a victim could not claim compensation under the scheme where he/she lived under the same roof at the perpetrator.

The ‘same roof rule’ was part of the original scheme introduced in 1964 and was intended to ensure perpetrators would not benefit from compensation paid to victims they lived with.

It was amended in October 1979 so future victims could claim compensation if they no longer lived with their attacker and were unlikely to do so again. However, as is common with many changes to the law, this was not made retrospective – which meant some victims may have missed out on compensation if they were a victim of a violent crime before the law change.

A statutory instrument, laid in Parliament on 28 Feb 2019, will remove the pre-1979 rule completely – enabling more victims access to compensation.

Ministers had recognised the rule’s unfair impact on victims of crimes such as child sexual abuse. The move will amend the Criminal Injuries Compensation Scheme so that all victims abused by someone they lived with can reapply for compensation – regardless of when the attack took place.

It will mean that victims who may not have come forward because of the rule, or were previously denied awards under it, will be eligible to claim compensation – with awards being made to those who meet the Scheme’s other criteria.

The ongoing review of the Criminal Injuries Compensation Scheme, which will report later in 2019, will look at, among other things, concerns around the eligibility rules, the definition of ‘violent crime’, and the type of injuries that are covered.

See press announcement https://www.gov.uk/government/news/access-to-compensation-scheme-for-victims-who-lived-with-their-attacker

When the Criminal Injuries Compensation scheme was originally introduced in 1964, there was a rule that applicants were not entitled to compensation if they were living with their assailant as members of the same family at the time of the incident.

The reasons for the rule were, broadly, difficulties with evidence in such cases, and a wish to ensure that offenders did not benefit from compensation paid to the victim who they were living with. The rule applied to all victims of abuse inflicted by a family member living under the same roof; this included physical as well as sexual abuse.

The rule was amended in 1979 to apply to adults only. Under the revised rule applicants could still be refused compensation if at the time of the incident they were adults living with the assailant as members of the same family, unless they no longer lived together and were unlikely to do so again. The amended rule gave CICA discretion to consider what had happened after the incident taking place, which  significantly reduced the number of applicants who were refused under this amended rule. The amended rule was, however, not retrospective.

In July 2018 the Court of Appeal found that the pre-1979 rule unlawfully discriminated against an applicant who had suffered injury before the 1979 changes.

The government has decided to not appeal this ruling. Instead, it confirmed it would consult on changes to the Criminal Injuries Compensation Scheme.

In September 2018, the Government announced that it was launching a review that will look at concerns around the eligibility rules of the scheme, the sustainability of the scheme and the affordability of any changes to be made. The review will also enable the government to take full account of recommendations made by the Independent Inquiry into Child Sexual Abuse.

More specifically, the review will look at issues including:

• time limits for applications – the scheme’s time limit requires that applications be made by a person over 18 as soon as practicable and no later than 2 years after the date of the incident. It is suggested that victims of child sex abuse disproportionately delay reporting such crimes and applications for compensation, and therefore miss out on compensation.
• the ‘same roof’ rule – we will remove the pre-1979 rule and we will consider further changes to the remaining ‘same roof’ rule and previous failed applications.
• unspent convictions – the scheme automatically excludes an award if the applicant has an unspent conviction which resulted in a specified sentence (custodial sentence, community order or youth rehabilitation order). It is suggested the rules disproportionately impact vulnerable victims of child sex abuse who may have offended in response to being abused/exploited/groomed.
• crime of violence– the scheme sets out what constitutes a crime of violence for the purposes of assessing entitlement to compensation. It is suggested that this definition should be broadened to include sexual exploitative behaviour, such as grooming.
• terrorism – the terrorist attacks of last year left people with serious life changing injuries and brought to light questions about the suitability of the scheme in providing support to victims of terrorism. The review will consider and clarify the eligibility, entitlement and amount of compensation to be awarded. This will build on the roll-out of the ground-breaking Victims of Terrorism Unit last year, to help ensure the best possible support.

The intention is that the review will be completed sometime in 2019, with change following thereafter. There is no hint that the review will expand the scope of the types of injury for which compensation can be claimed.

Details of the review can be found at https://www.gov.uk/government/news/justice-secretary-announces-victim-compensation-scheme-review-scraps-unfair-rule