End unspent convictions bar to compensation: LSA

The "harsh" rule barring applications to the Criminal Injuries Compensation Scheme where the applicant has an unspent criminal conviction resulting in a custodial or community sentence, should be abolished, the Legal Services Agency is claiming.

The call comes in the Glasgow-based advice agency's response to a UK Government consultation on proposed changes to the 2012 Compensation Scheme – published following a ruling by the High Court in England & Wales that the Government has not met a legitimate expectation to consult on the reform of the rule.

Introduced in 2012, the rule has been justified by the Government due to "public sentiment" that criminals should not receive compensation. The LSA said it was "notable that in two recent Outer House cases, the Government failed to indicate how such sentiment had been assessed; if indeed that was possible".

Human rights lawyers, it adds, assert that regard must be had for individual circumstances. For example, one victim suffering from profound mental health disorders, caused by severe sexual abuse as a child, struggled with social situations and volatility, leading her to commit a comparatively minor offence. She received a community order as a consequence, and this made her ineligible for compensation. 

In another case, a man who received a community order after throwing an egg at a politician, submitted a compensation application for the HIV infection that he had sustained as a consequence of a sexual attack. He was deemed ineligible – despite support from the politician.

The submission has also drawn attention to the effect of differing periods between Scotland and England as to when an offence can be regarded as spent. For some years until 2021, Scots law retained much longer periods than England, following reforms south of the border to the Rehabilitation of Offenders Act, creating an anomalous and unfair situation for Scottish applicants.

Paul Brown, principal solicitor at LSA, who authored a lengthy submission, supporting abolition said: “I am deeply concerned about the unfairness caused by the way unspent convictions are treated by the 2012 Criminal Injuries Compensation Scheme. Many people with very severe injuries caused by crimes of violence end up with nothing, because of minor unspent convictions. In some cases there is no discretion and there is nothing that can be done about it. This was introduced by the 2012 Scheme and, to be frank, without any debate or justification.

"The worst cases are people suffering severe brain injuries, and who commit minor offences as a result of their injury. The arrangements before 2012 had built in discretion so the individual circumstances could be taken into account. We are calling on the UK Government to return to the approach taken before then, and on the Scottish Government to state their position, as this is a cross border issue.”