by Michael Lord
It is a common feature of most abuse claims that a victim will be able to make a claim for Criminal Injuries Compensation.
Under the terms of the scheme the Authority will look at your client’s criminal record. I believe that an injustice is caused by application of the rules in cases of historic abuse. Let me explain. Most of my clients are male and were abused in care in the 1960’s, 1970’s or early 1980’s. They have disclosed the abuse as part of the Police investigations, which started in the North West in about 1994. A large number of them have committed offences since leaving care. This often leads to a reduction in the award or no award at all. If the applicant had been able to make an application for compensation at the time of, or shortly after the abuse, it is highly unlikely that his offending history would have led to anything more than a very small reduction in the amount of compensation awarded. Indeed there are applicants who went into care, not because of bad behaviour or offending, but because of other factors such as family breakdown.
You may be of the view that the applicant has had some choice as to what sort of life style he has led since leaving care and therefore should not be compensated if he has a significant offending history. The scheme itself appears to have been created as recognition by “society” that it has a responsibility to the victims of crimes of violence. The basic principle is that a victim should be compensated for his injuries out of public monies where the person who caused the injury is unlikely to be able to pay. However, the scheme also reflects public concerns of fairness about when it is appropriate to award compensation to a victim. Therefore a person’s character is assessed by his or her offending history. Whilst it is easy to understand and indeed agree with the value system which produces this reasoning, in my view it can lead to an overly simplistic approach.
Many of my clients will have suffered repeated abuse over a number of years by members of staff in a care home. Many are suffering from Post Traumatic Stress Disorder or a range of other severe psychological problems that seriously inhibit their ability to function . Their offending behaviour may well have started whilst in care. On leaving care, and still very traumatised by their experiences, they attempt to block out traumatic memories which commonly involves excessive use of alcohol or drugs. The nature of his injury and his inability to relate to authority figures [authority figures were his abusers] may mean that he is unable to hold down a job. To finance his drink or drug habit he steals. Inevitably he will on occasion be caught, punished, and imprisoned for such offences. The nature of the injury he suffers, the failure to provide appropriate care whilst in care, and the failure to address the injury for many years means he is highly unlikely to have developed the skills or resources necessary to deal with these traumatic feelings. Time spent in prison has probably exacerbated the problem. A life style pattern emerges which is very hard to break, particularly because the victim has not disclosed the abuse or sought help or treatment. In many cases he may not even make the connection between his abusive experiences and the health problems he is now facing some 20 years later.
Having been through the process of disclosure, which has hopefully resulted in the conviction of his abuser, the victim applies for Criminal Injuries Compensation and is turned down because the scheme looks at his offending history and takes into account offences which are not spent. This may well mean that the victim receives no compensation through the scheme. He may be able to make a civil claim for compensation but as you are all probably aware such claims can take many years and to date no damages have been award through the Civil Courts in the North West Child Abuse Cases. It is worth pointing out that some of the abusers have by now served their sentences and been released from prison.
In my view the scheme fails to recognise the complex problems caused by childhood abuse. A simple application of the rules fails to recognise the type of injury the victim has suffered or that the failure to deal with the abuse at the time and offer appropriate help has led the victim to develop a life style that often results in offending behaviour.
I have found that on appeal the Appeals Panel has been more sympathetic to victims when looking at their criminal offences. In many cases, however, compensation is still not awarded, or there are significant reductions in awards. This means the victim may have to bear the legal costs of the appeal hearing.
In my opinion the terms of the scheme need to be reconsidered to deal with the complex consequences of historic childhood abuse. The victims should be adequately compensated for the injury they have suffered without having to rely on the successful outcome of civil proceedings, which may take many years. If we do not take this approach, then it seems to me, that we fail these people again, and ignore our responsibility for the damage caused to children who were taken into care to be cared for.
1st September 1999
