Criminal injuries compensation: end the conviction rule

Legal Services Agency was invited by the Ministry of Justice in June 2022 to contribute its views on the so-called “unspent convictions rule”, under which an award of criminal injuries compensation may be withheld or reduced where the application has an unspent conviction (2012 Scheme, rule 26 and Annex D). 

As a law centre, LSA has processed criminal injuries compensation applications since the early 90s. Applicants are primarily those at the more serious end of victimisation, for example those who have suffered physical or sexual abuse or traumatic incidents in childhood as well as applications who can be considered particularly vulnerable, for example those with learning difficulties, mental health disorders or prior brain injury. 

Thus, staff in the organisation have been innovative: for instance, in 1984 the author submitted the first criminal injuries compensation application in Scotland for sexual abuse within the family. LSA has dealt with reviews, applications to the Criminal Injuries Compensation Appeal Panel and latterly the First-tier Tribunal, as well as a number of judicial reviews (including the leading Scots case as regards the “same roof rule”). We have written and lectured extensively, including the then leading text Claiming Criminal Injuries Compensation, by Brown, Hiram and others (LSA, 1997) and a more recent short e-book.

Prior to the changes made by the 2012 Scheme, we encountered few problems with the way prior convictions were dealt with. In general, our experience was that the Criminal Injuries Compensation Authority’s “points system” operated fairly, and on the comparatively rare occasions that it did not, appeals dealt with by the Appeals Panel were managed successfully. We are not aware of any criticism of the then system, or of any decline in “public sympathy” that could justify the much harsher treatment of prior convictions under the 2012 Scheme, contrasted with all the schemes which preceded it.

Unfairness challenges

LSA has had a policy of undertaking judicial review of all or any cases which have been treated with significant unfairness. On no occasion prior to the 2012 Scheme was this regarded as concerning the unspent convictions rule. The changes in the 2012 Scheme have, however, caused us major concern and in our view resulted in significant unfairness to our clients. For example, this has resulted in two recent judicial reviews which were, unfortunately, unsuccessful.

It is probably worthwhile scanning the principal features of these cases. Details have been amended to preserve anonymity. 

In the first case, the victim had suffered severe sexual abuse as a child. It has had lifelong effects and caused severe mental health disorders. She committed a comparatively minor offence in which her difficulty dealing with social situations, and her volatility, played a part. She received a community order. In the absence of expert legal advice, she submitted a criminal injuries compensation application, which was turned down. It would have been accepted if her victimisation had been in England: it was made some time after the sentence was pronounced, but while her community order would have been spent in England, in Scotland it was not. She received nothing. Her award, it has been estimated, would have been £50,000 plus. This is a hefty consequence for a minor incident directly caused by her having been abused. Had she received proper advice, the difficulty most likely would have been avoided.

In the second case, the victim had received a community order for throwing an egg at a politician. In the absence of expert legal advice, he submitted a criminal injuries compensation application for the HIV infection that he had sustained as a consequence of a sexual attack. He was excluded from eligibility for compensation, even despite the politician supporting the assertion that ineligibility was a disproportionately harsh consequence of his comparatively minor offending. 

In both cases, it is likely an award would have been made under the 2008 Scheme; even if the award had not been a full one, it would have been reduced by a small proportion.

In both cases also, the court noted that the applicants would have been eligible for an award had the victimisation taken place in England but not in Scotland. The court did not reject many of the human rights arguments; however it ultimately held there was an overall policy reason for a consistent application of the rehabilitation of offenders regime within Scotland and, accordingly, the applicants were unsuccessful.

This ruling resulted in a key part of the CICA Scheme, of course a UK matter, being applied inconsistently within the UK for over six years. (The Scots rehabilitation regime has now been reformed, rendering it much less harsh and largely comparable to the English regime.)

Very few advisers, save rare specialists, have much understanding of how the rehabilitation of offenders regime operates. In a Criminal Injuries Compensation Scheme which at least gives the impression that its administrators think that victims can “do it yourself”, this was a very unfortunate development, which did not exist prior to the 2012 Scheme.

This experience has significantly influenced the comments in this response.

General background

It is probably worth considering some of the general background.

It is frequently asserted that the object of the scheme is to allocate limited resources to victims as an expression of “public sympathy”. While this is in some respects entirely fair, the position does not stop there. 

The United Kingdom is signatory to the European Convention on the Compensation of Victims of Violent Crimes (Strasbourg 24XI1983). This is a longstanding Convention. It is understood that the UK had very substantial input to the considerations relating to it. 

It has been followed by further restatement – for instance the Council of Europe Committee of Ministers Recommendation (REC2006:8), adopted 14 June 2006.

The explanatory report to the Convention comments that policy makers “have emphasised that assisting victims must be a constant concern of crime policy, on a par with penal treatment of offenders”. Similar sentiments are regularly expressed through the report. At no point does it suggest that a mere statement of public sympathy is the basis for compensation.

With regard to article 8 of the Convention (to the effect that compensation may be reduced or withheld where compensation would be contrary to “a sense of justice [our emphasis] or public policy”), the report comments: “States which introduce compensation usually want to retain some discretion in awarding compensation and to be able to refuse it in certain cases where it is clear that a gesture of solidarity would be contrary to public feeling or interests or would be contrary to the basic principles of the legislation of the state concerned. This being so, a known criminal who was the victim of a crime of violence could be refused compensation even if the crime in question was unrelated to his criminal activities”.

However, the unspent convictions rule under the 2012 Scheme applies sanctions mechanically to many victims, particularly those with community orders, in circumstances which frequently are against our sense of justice; and whatever the position was in 2012, certainly does so now.

An additional point is that there are forms of state liability under human rights law for the acts of third parties, notwithstanding their probable absence under common law. The CICA Scheme can be seen as a recognition of this liability and accordingly a way of addressing an entitlement, which is not discretionary (see, for instance, Commissioner of Police of the Metropolis v DSD [2018] UKSC 11, Lord Kerr at paras 45-48). Accordingly, it can be argued that where victimisation is caused by state negligence or failure, the state has an obligation to provide compensation and this is not a matter of public sympathy, or indeed for that matter social justice or solidarity – the victim has a right, and notably a right which would not be affected by any convictions on their part.

All these observations provide a rather deeper approach to the issue of the rationale behind the Criminal Injuries Compensation Scheme: of course, it includes “public sympathy”, but the matter certainly does not rest there.

Accordingly, a detailed examination of how the issue of criminal activity by victims should be managed, must be looked at in the context of a much deeper set of issues. Thus, justice, fairness, proportionality and sensitivity to disadvantage are all relevant. Victims who have suffered three or more “adverse childhood experiences”, or have mental health disorders or brain injuries, are all very vulnerable and deserving of special consideration. Indeed, persons whose mental health problems were caused by the victimisation itself, it is argued, are particularly deserving of public recognition, and sympathy, particularly where their (mis)behaviour was caused by the emotional/mental health consequences of victimisation.

One issue of course is that in any event there are no means of judging the generality of public sympathy; in the Scottish cases described above, the respondent, in asserting that the operation of the exclusionary rule showed the high degree of “opprobrium in Scotland concerning criminality”, failed to produce any evidence of such public general views and indeed did not indicate how such views could be assessed.

The views of the public need to be assessed in much more sophisticated terms than appeals to the generality of public sympathy.

In any event, regarding the specific issues to which our comments are addressed, in our view the public would agree with our position, to the effect that in many respects the current arrangements are unjust and do not reflect public views. Fairness needs to be nuanced, to be flexible and proportionate.

Instances of unfairness 

It is worth giving some examples of how the operation of the 2012 Scheme is unlikely to reflect the views of, to be frank, anybody as regards fairness. 

1. Differential impact between Scotland and England

The 2012 Scheme rigidly imports the rehabilitation of offenders code. This is highly complex, and when the 2012 Scheme was mooted we did not note any discussion at all among policymakers about the complexities arising. For instance, very few non-experts correctly calculate the rehabilitation period for multiple sentences; and even those who do, would be well advised to get their assessment checked.

Not only is it difficult for individuals to establish how the code operates, from 2014 to 2020 it was markedly different in England & Wales when compared with Scotland. The regime in Scotland was much harsher. Thus, the exclusion caused by non-rehabilitated sentences was dependent on where the victimisation took place. There is no evidence that at any time there have been significantly different views on the part of the public in Scotland as opposed to England. Nonetheless, until the rehabilitation regime was changed in Scotland, in November 2020, those suffering victimisation there were subject to markedly harsher results.

Issues that arise include, for instance, that a victim who had the misfortune to suffer victimisation in Scotland and England, but had a minor offending history (for instance a community order), would find that they would be excluded from compensation as a consequence of the victimisation for years in Scotland but only one year as a consequence of the victimisation in England. Most people and, in our experience all victims, would find this difficult to understand or accept.

The importation of the rehabilitation regime lock, stock and barrel into the 2012 Scheme, without any discretion being available in individual cases, means that a key element is not under the control of the policymakers responsible for the Scheme; major inconsistencies have existed and indeed some still do. This is not fair. Retrospective removal of this injustice should be considered.

2. Lack of proportionality

The 2012 Scheme excludes from compensation all victims of crimes of violence who have a non-spent community order. 

As above indicated, during the discussion of the 2012 Scheme we are not aware of this issue having been noticed, far less discussed.

The point is that community orders are frequently given to individuals who have not committed particularly serious offences at all: as mentioned above, in one such case an individual’s only offence was to throw an egg at a politician. Indeed, in our experience, community orders are often given to individuals who are seen as deserving of support rather than punishment. However, a victim will have all eligibility for a criminal injuries compensation award completely removed if their application is made before the community order has become spent, or if the community order is imposed during the consideration of their criminal injuries compensation application.

Thus, the imposition of a community order may, in effect “fine” the victims of very serious crimes of violence tens of thousands of pounds. We are aware of several clients who were subject to extremely serious sexual offences in their childhood, who have suffered deeply emotionally and, as a consequence have been unlikely to be employed at any point during their life, having their applications for criminal injuries compensation rendered entirely ineligible by very minor offending behaviour. This is not proportionate.

It has been claimed that the current system takes account of any mitigating factors, as those will have been considered as part of the sentencing process. This is an error. The exclusion from all eligibility is as regards all non-spent community orders, even those which are very modest or largely aimed at rehabilitation. There is no proportionality here at all.

This is of course different from the scaled approach to other elements of the Scheme.

3. Obtaining advice 

The current arrangements are complex, requiring the victim to understand how the rehabilitation of offenders regime applies to them, and its significance in the 2012 Scheme. 

Victims who are well advised (and we say this advisedly as some advice given to victims is not of very high quality) will have their offending record (if any) analysed by their adviser before a compensation application is submitted.

Sometimes this may simply involve waiting a few months until, for instance, a community order has become spent. Other waiting times may last years.

One thing is for sure, however: currently there is no point in submitting an application until a community order or some other sentence has become fully spent (difficult though it may be to establish this).

This may result in the application being submitted after the two-year time limit has expired; the application however of that limit is discretionary. The exclusionary rule as a result of many non-spent convictions is not (see rule 98 on time limits).

The position of those who are well advised is markedly different from the ordinary person who simply applies themselves. We are aware of a number of victims who simply went ahead and applied reasonably soon after their victimisation, with no notion at all that their community order resulted in a complete removal of eligibility. 

There is at least a question mark about the fact that the CICA publicity does not recommend victims obtain expert legal advice, which is necessary in all but the most minor cases, and certainly where the victim has unspent convictions. There is an article 6 issue here. Interestingly, among the recommendations of the Committee of Ministers to member states on assistance to crime victims (14 June 2008), para 4.5 states that “legal advice should be made available where appropriate”.

Human rights

Any discussion of the Criminal Injuries Compensation Scheme needs to be viewed through a human rights lens. 

It has been asserted by the courts at all levels, for instance, that where a contracting state goes further than the European Convention on Human Rights requires in protecting any rights set forth in the Convention, it must do so in a manner compatible with article 14 of the Convention (prevention of discrimination).

Article 1 of Protocol 1 to the Convention provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one may be deprived of his possession except in the public interest and subject to the conditions provided for by law and by the general principles of international law”.

It has generally been conceded that legal disputes concerning the Scheme do indeed fall within the ambit of article 1 of Protocol 1 and, accordingly, a relevant unlawful discrimination on the grounds of status should not occur.

Status must be based on some identifiable personal characteristic. Merely having an unspent conviction, or residence, might constitute a status. 

Of course, differences in treatment can be justified; on the other hand they may be disproportionately prejudicial amounting to discrimination contrary to article 14. Applying these principles is complex, and in July 2021, the Supreme Court determined that the unspent conviction rule in the 2012 Scheme is lawful, considering that it “satisfies the requirement of proportionality” and strikes a “fair balance between competing interests”: A and B v Criminal Injuries Compensation Authority [2021] UKSC 27.

I submit however that this conclusion has to be seen in the context of the UK’s obligations, which plainly require consideration of the “principle of social solidarity”. This obligation has not been considered by the Supreme Court. In any event, the court at para 83 comments that this is “essentially a question of moral and political judgment”.

We would argue that such judgments need to be flexible, to take account of misfortune and vulnerability and generally ensure that sanctions are appropriate – let the punishment fit the crime. We particularly assert that minor criminality caused in whole or part by the victimisation of an applicant, should not be held against them to the net effect that they are not eligible for any form of compensation. Not only does that not infringe any moral judgment; it does not accord with notions of social solidarity nor, for that matter, our view of “sympathy”.

We submit that the pre-2012 treatment of unspent convictions was fair, proportionate and in accordance with contemporary morals: the 2012 exclusionary rule is crude and has no moral justification in many cases. We were extensively involved in the discussions prior to the 2012 Scheme; we are not aware of any discussion of these issues. Quite how it can be said that political judgment was exercised, is not clear. Most of the problems do not seem ever to have been mooted, including the difference between England and Scotland, which developed as an unrecognised consequence of law reform. In any event, the operation of the rehabilitation regime is very complex and we are not aware of any debate in this context having taken place.

Conclusion

In our view, there must always be an opportunity for victims to assert that “justice” entails waiver in whole or part of the sanctions occasioned by having prior convictions. The very essence of the foundational principle – social solidarity and justice – directs this.

The rule discriminates markedly against those who are poorly or not advised at all. Such victims are more likely to be unwell, from ethnic minorities, suffer from social isolation or have language difficulties. Victims who are well connected, or understand how to obtain high quality legal advice, are much less likely to be affected by the often random operation of the harshness of the rule.