Solicitor Peter Garsden on the latest government plans for offenders:
In the Houses of Parliament on 30th January, the Justice Secretary Ken Clarke announced plans to prevent most convicted criminals from gaining Criminal Injuries Compensation (CICA), arguing it was “perverse” that those convicted of crimes had been able to claim for injuries and psychological damage. He said the proposals were an “intelligent, radical reform to sort out a system that isn’t working well” – true it is not working well, but these proposals will make it a lot worse. It also ignores the plight of the victims of child abuse who are my primary concern.
Under the present scheme (Para 13) there is a CICA penalty points system, which prevents most criminals who have unspent convictions from applying for compensation arising from a crime of violence. The government have decided that criminals simply do not deserve compensation. For example, a period of imprisonment of 30 months attracts 10 penalty points which equates to a reduction of 100% compensation, whereas a fine of £250 up to 2 years after the conviction will reduce compensation by 15%
The CICA scheme was introduced in 1964 in order to ensure that the victims of crimes of violence could receive compensation from the government, particularly where the perpetrator did not have the funds to pay. This contrasts with compensation paid to the victims of car accidents by the blameworthy car driver’s insurance company. It was thought that only those who did not transgress the law deserved to apply.
The case of the victims of child abuse is clearly different, as is recognised by the current scheme. Provision is presently made for the CICA to ignore criminal convictions in appropriate cases. The obvious question is, “What sort of criminal record did the child have at the time they were abused?”
For example, it is not unusual for the victim to be abused at the age of 15 by, say, an older male care worker, and then tell no one what happened to them, out of shame, for 30 years. Moreover, so great is the shame, and so deep is the hurt, that they resort to drink and drugs as a form of emotional anaesthetic. How shameful would it be to confess that you have been assaulted in a homosexual encounter with an older male care worker? Acquisitive crimes to feed the drink and drug habit then frequently follow.
Thus the argument is, that any convictions which are caused, in any way, by the abuse in childhood should be ignored, even though the rules strictly disqualify the applicant. Similarly, the victim of abuse who goes onto commit offences related to the abuse of children, where the abuse caused in some way the later offences, can argue that his/her convictions should be ignored. Needless to say, statistics do not show, that victims of abuse go on to be abusers.
I can find no provision in the new proposals for any account to be taken of the plight of the victim of child abuse, which, in my book, is appalling. It seems that these proposals are simply about saving money with little regard for fairness or justice.
Should there be a one size fits all? Should all criminals with convictions be prohibited from claiming criminal injuries compensation? The point is that all cases are different. In none of these cases under the new system, will a claim be permitted. Some are deserving, and others not, dependent on the facts of the case eg.
Not Deserving (arguably) :-
- A gang member who is shot in a drug/gang related attack resulting from non-payment of drugs.
- A burglar who is injured by a householder during an attempt to burgle a domestic dwelling.
- A passenger in a vehicle stolen by a thief who is drunk and has an accident.
- Unwilling members of a gang that are assaulted by a gang member because they refuse to participate in a crime
Deserving (arguably) :-
- A career criminal goes straight, starts up a charity to help ex-offenders, but within the period covered by the unspent conviction, is assaulted by a stranger, causing severe injuries and a loss of earnings.
- A girl is caught smuggling drugs and given a fine or community service. A year afterwards, whilst in full time employment, she is raped, sustaining severe injuries.
- A victim of child abuse goes onto commit sexual offences clearly caused by the abuse. He/she tries to put in a claim for CICA for the original abuse after helping the police by giving evidence against the paedophile.
- A criminal is assaulted and paralysed whilst in police custody. Whilst he can make a civil claim against the police, he is prevented from pursuing a claim for CICA.
Ironically there are two separate systems.
- A prisoner , who is a victim of child abuse, is not prevented from pursuing a claim against his abuser personally through the civil courts because he has a criminal record. This depends upon his abuser, however, having enough money to make a claim worthwhile.
- The same prisoner, however, because of his convictions, cannot bring a claim under the CICA scheme, where, for example, his abuser is penniless. This is divisive and unfair.
I have been campaigning on this issue for many years. As long ago as 1997, one of our CICA Appeal cases called GB, RB, and RP, established the principle that even though victims of abuse from children’s homes had criminal records, they could still make a claim. Sadly, regulations made since, and certainly the recent proposals cleverly promoted as “intelligent and radical” are likely to do injustice to some of the most vulnerable members of our society. Letters to MP’s may be a way of protesting. Let us hope that the proposals do not come into force.[Peter Garsden is a partner of Simpson Millar LLP Solicitors, a national law firm. The firm has one of the largest dedicated child abuse compensation departments in the country (www.abuselaw.co.uk). They run several group actions. The firm were the winners of a Claims Technology award in 2010 for most innovative use of Legal Software, Personal Injury Team of the Year 2010, and Small Firm of the Year (Manchester Legal Awards) 2011. Email firstname.lastname@example.org.]