By the editor, Sep 4 2017 12:05PM
Payments made by the Criminal Injuries Compensation Authority have been in the news recently, particularly because of a payment made to Jemma Beale for what turned out to be false claims of rape and other sexual offences, for which she has subsequently been convicted. (An excellent analysis of that case can be found here: http://barristerblogger.com/2017/08/30/ian-watkins-jemma-beale-cases-make-us-uncomfortable-justice-system/#more-2303.)
This blog considers a number of features of the Criminal Injuries Compensation Scheme, which the CICA operates, that may strike those who are unfamiliar with it as surprising and perhaps disturbing. The full scheme can be accessed here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/243480/9780108512117.pdf.
There's already been comment on what many would agree to be a low sum for a "standard" rape, which was awarded to Ms Beale, £11,000. If you take a look at Annex E to the Scheme, there is a comprehensive list of the tariffs for each injury, from £1000 for a perforated ear drum up to £250,000 for quadraplegia. (Interestingly, death comes at the lower end of the scale. Payments to bereaved relatives are fairly token.) The full calculation may need to take account of multiplier tables and other factors. The maximum anyone can get is £500,000.
These assessments of the financial value to be attached to different injuries will inevitably strike the observer as being inadequate and unbalanced to some degree. One obvious criticism to make is that all the sums look too low. The response of the Government here (the CICA is an agency of the Ministry of Justice, and the Scheme is the responsibility of the MoJ) would be that at a time of intense pressure on public funds, there isn't scope for increasing amounts across the board. People are likely to differ as to what sums look relatively too high or too low. This writer is slightly surprised at what appear to be relatively low sums for sexual and mental injuries compared to the others, but it is possible to see arguments the other way..
It is actually two other aspects of the Scheme that are more worrying. The first aspect concerns the CICA's powers to withhold or reduce awards. The second aspect concerns what constitutes a "criminal injury" for the purposes of the Scheme.
Powers to reduce or withdraw compensation otherwise payable
There is the following provision in paragraph 25 of the Scheme: "Annex D sets out the circumstances in which an award under this Scheme will be withheld or reduced because the applicant to whom an award would otherwise be made has unspent convictions."
So the effect of this is that those who themselves have been convicted of an offence are liable to lose all or some of the compensation they'd otherwise be entitled to (unless the conviction is "spent"). Note that's it's irrelevant whether the earlier conviction has any connection with the crime that led to the injury. It's not limited to convictions resulting in imprisonment, or violent crimes. The rationale presumably is that those who've caused harm through criminal activity should not be compensated - or not to the same degree as others - when they themselves suffer harm.
But this does in effect impose a double punishmemt on those convicted. Their original sentence determined the full extent to which they should be punished. It seems unfair and disproportionate to punish someone again, particularly when it results from an injury, for which they may be entirely blameless. Also, is it a sensible social policy? Imagine if someone has been convicted, and has seved their sentence, and is trying to get their life in order, and then gets attacked and permanently disabled, or raped. Why shouldn't they get as fully compensated for that injury as anyone else in order to help them get their life back on track? Arguably the value to society of that compensation is at least as high as that given to any other person.
The suspicion here is that, whatever the official rationale, the real reason for this provision is to limit the potential for tabloid stories about criminals getting payouts from the taxpayer.
But at least it's possible to see the theoretical basis for this provision. Other provisions are more opaque.
In paragraph 25: “An award may be withheld or reduced where the conduct of the applicant before, during or after the incident giving rise to the criminal injury makes it inappropriate to make an award or a full award.”
It's possible to see here that if, for example, the applicant was a person who was involved in a fight, and provoked the assailant, or struck a few blows himself, there may be some contributory blame, and it may be fair to reduce any compensation. But the provision is worded incredibly widely. It leaves it entirely up to the CICA to determine what type and level of "conduct" might make it "inappropriate" to make a full award. For example, if one of these officials disapproves of women getting drunk. mignt he decide to withdraw an award to a date rape victim? And how long "after" the incident might such conduct be relevant? Could this concern conduct that has nothing to do with the crime, concerning assessments of a person's general character?
Such a provision encourages officials to look beyond what a court has determined at trial, and make their own value judgements about the suitability of an applicant in determining whether they deserve compensation.
What constitutes a "criminal injury" under the Scheme?
The second worrying aspect of the Scheme concerns how it defines a "criminal injury" in the first place. This is simultaneously narrower and wider than might be expected.
It's narrower because some injuries - however severe - will not be compensated because the crimes will not be classified as a "crime of violence", and so are excluded from the Scheme (see paragraph 4 and Annex B). "Crime of violence" is a slight misnomer, because violence isn't a prerequisite, although the description does gives a flavour of what is included (as well as offences causing physical violence, sex offences are included, as are offences including threats of violence). Crimes such as fraud will be excluded, whatever mental suffering might have resulted. In addition, a crime "will not constitute a crime of violence unless it is done either intentionally or recklessly". So if the prosecution is only able to prove that a crime was committed negligently, for example, compensation probably wouldn't be payable, however serious the injury..
It's also wider in scope for two reasons: firstly, no conviction needs to have occurred, and secondly, conduct that is not actually capable of being prosecuted as a crime is also included.
Paragraph 10 is unequivocal on the first point: “A person may be eligible for an award under this Scheme whether or not the incident giving rise to the criminal injury to which their application relates has resulted in the conviction of an assailant…”
So this means that CICA officials can decide that a crime has been committed in the absence of any determination by a court, and compensate accordingly. There are of course many reasons why a conviction does not occur after someone has suffered, or says they have suffered, harm. It may be lack of reliable evidence, for example. Perhaps the CPS decides not to prosecute, or perhaps a trial collapses for some reason. There's obviously a very careful process in place to test this. But under the Scheme, all that can be bypassed, for the purposes of determining compensation.
On the second point, under Annex B paragraph 3:
"In exceptional cases, an act may be treated as a crime of violence where the assailant: ... (b) is a child below the age of criminal responsibility who in fact understood the consequences of their actions."
So the CICA can determine for themselves that an act that's incapable of being a crime in law - because the child concerned is too young to commit a criminal act - is nevertheless a crime for the purposes of the Scheme. Under an earlier version of this Scheme, this resulted in one case in the CICA giving compensation regarding an injury allegedly inflicted by a three year old child. Only "allegedly", of course, because this was never tested at a criminal trial, because three year olds can't be prosecuted. It was the CICA officials who made that finding. And note they would have had to be satisfied that the three year old had acted "recklessly or intentionally".
Of course opinions differ about the correct minimum age of criminal responsibility. But a line has to be drawn somewhere - for criminal trials, anyway. For the CICA, it's up to them, to determine on a case-by-case basis.
This brings us to what may be the most troubling aspect of all this. Under Annex B paragraph 2 (d), a "crime of violence" for the purposes of the Scheme includes "a sexual assault to which a person did not in fact consent".
The words "in fact" are important here. They're added for a reason. They mean that it may be insufficient that a criminal conviction for rape or some other sexual assault has occurred. If the CICA believe that the victim (or alleged victim) "in fact" consented, even if for example a jury took a different view, they're entitled to refuse to pay compensation. Why has this provision been added? The Ministry of Justice clearly believes that despite the law on what constitutes consent, there are some cases where the alleged victims do "in fact" consent, even if "in law" they do not or cannot. What sort of cases are those? Where the victim was below the age of consent? (Paedophiles often complain that their young victims were really gagging for it. Does the Government think they have a point?) But the age limit is there for a reason, surely? Does the Government believe that the law is too lenient to victims of sexual abuse?
Why should Government officials be given all these powers - and indeed encouragement - to base decisions on compensation on matters of personal judgement rather than in accordance with the carefully constructed rules governing the criminal law?
The Scheme has been approved by Parliament. So at least it's been through a democratic process, and could be changed again if necessary? Well, yes and no. It's a piece of secondary legislation, so it got minimal scrutiny, and with such legislation, Parliament only gets the option to approve or reject the whole thing, rather than suggest amendments. It's doubtful many MPs gave it much thought, and just rubber-stamped it. It'd be up to the Government to decide if it wanted to introduce a new Scheme. Even if it was persuaded of the merits of any change, that may not be high on its list of priorties at the moment.