Paul Brown, Kirsti Nelson and Rona Macleod provide a short overview of the Criminal Injuries Compensation Scheme aimed at advisers of abuse survivors.
For the uninitiated, the Criminal Injuries Compensation Scheme 2012
is a government scheme that allows people who are the victims of violent crime or who have suffered a qualifying injury to claim criminal injuries compensation (CIC) from the government organisation, the Criminal Injuries Compensation Authority (CICA).1Unless otherwise specified, paragraph numbers, annexes, etc refer to those of the 2012 scheme.
In our experience, it is less well known, both among the public and legal advisers, than it should be.
CIC is particularly relevant for people who have suffered abuse. Abuse is varied, covering a huge range of different situations, and we approach this topic with a very wide definition. What we view as specific to abuse is that it is something more than a one-off assault by a stranger: it comes from an abuse of power and creates or enhances a certain vulnerability. One of the clearest examples of this is historic sexual abuse.
Abusive crimes raise specific issues for those looking to claim compensation and those assisting them. We outline the common pitfalls in applying for compensation for victims of abuse and hope to convince readers of the very real benefits that CIC offers.
The basics: how to apply to CICA
A person can claim if s/he has suffered a crime of violence, and as a result of that violence s/he has been injured (paras 4–21, which deal with general issues of eligibility). Fundamentally, the crime must be reported to the police as soon as reasonably practicable, even if the perpetrator’s identity is unknown or the perpetrator is dead, and even if the offence occurred decades ago (para 22). Without the crime being reported to the police, no CIC will be awarded.
There are some specific restrictions on when applications should be made. For example, asylum-seekers must have applied for asylum on or before the date on which they apply for compensation (para 13(b)). Victims of trafficking must be referred to the competent authority before applying to CICA (para 13(a)). In terms of domestic violence specifically, applicants must show that they have permanently stopped living with the offender before applying (if they are 18 or over) and show any compensation paid will not benefit the offender in any way (paras 20–21).
Annex B to the scheme sets out the criteria to be used in deciding whether a crime of violence has been committed. Any crimes of violence can be committed intentionally or recklessly (Annex B para 2(2)). It includes the obvious – a physical attack or sexual assault (Annex B para 2(1)) – and it also includes a period of repeated abuse. It is necessary for the injury to be of sufficient seriousness. It is also important that victims get treatment for all potentially eligible injuries.
Compensation is awarded for a variety of injuries based on a detailed tariff, which means it is easy to work out what award an applicant might expect to receive for the injury itself.
Compensation is awarded for a variety of injuries based on a detailed tariff (Annex E). The tariff means it is easy to work out what award an applicant might expect to receive for the injury itself. It may be necessary to obtain medical evidence of the injury sustained.
Importantly, mental injuries sustained as a result of a sexual assault can be claimed for, but only if the amount the applicant would receive for the mental injury exceeds the amount s/he would receive for the physical injury (para 34). In that situation, the victim will only receive an award for whichever tariff figure is greater, not both. Mental injuries also need to be confirmed by a psychiatrist or clinical psychologist (see the relevant injuries in the tariff in Annex E at pages 47 and 67–70).
In addition to the tariff award, ‘add-on’ awards can be sought. Possibly the most important is for loss of earning potential, which kicks in after 28 weeks (paras 42–49).
Further, as the system is based on the civil standard of proof (the balance of probabilities; see page 141 of Begley, Criminal injuries compensation claims, 2nd edn, The Law Society, 2016), the eligibility of victims is even broader than it might first appear. Not only is it not necessary for there to be a successful prosecution, there doesn’t need to be a prosecution at all, or even an identified culprit. There just needs to have been a crime of violence and a report to the police, as well as, of course, an eligible injury.
The fact that a prosecution is not necessary is particularly important for sexual abuse victims. For example, in 2015/16, 1,692 rapes and 117 attempted rapes were reported to the police in Scotland (Recorded crime in Scotland, 2015–16
, Office for National Statistics (ONS)/Scottish government, 27 September 2016, page 85). It cannot be known for sure how many rapes occurred that were not reported. In the same year, just 216 rape cases proceeded to trial, with a 48 per cent acquittal rate (Criminal proceedings in Scotland, 2015–16
, ONS/Scottish government, 17 January 2017, page 15).
Crime of violence: not just a crime
An important point to note, which can sometimes be the downfall of an initial application, is that the crime must be a ‘crime of violence’. While there are some crimes that clearly fall within this definition, such as physical assault, other situations are less clear-cut.
Two examples of this are human trafficking and crime emanating from underage sexual activity. Where human trafficking is concerned, it is important to gather evidence that there was some constraint on the victim, and to at least show that the perpetrator stopped him/her from living freely (as well as, of course, an injury).
There have been very recent changes in CICA’s approach to children who have been sexually abused. As a result of considerable pressure, CICA has recently produced draft revised guidelines on child abuse. Although the draft is not currently available online, we understand it states that it should only be in exceptional circumstances that an applicant would not be eligible for compensation where the incident involved an adult engaging in sexual activity with a child under 16. Previously, as reported by the Guardian
(Owen Bowcott, ‘Child sexual abuse victims to be granted compensation following criticism’
, 31 October 2017),2See also 'Government agency apologises to sexually abused child', Barnardo's news release, 8 November 2017.
many children were assessed as having consented to their own abuse. We view the way CICA interpreted consent as too simplistic, as it did not look beyond the surface of the case and into the coercion and manipulation that is inherent in child grooming situations. A change in this viewpoint is welcome. It is therefore important to demonstrate that there was an element of control or coercion on the part of the abuser, and to differentiate this from a romantic relationship, and in doing so show that there was an injury to the victim.
You should be careful to demonstrate that a crime of violence was committed, especially if you are instructed at a review or appeal stage, or higher. In terms of child exploitation cases, it may be possible to obtain a report from a child psychologist or a social worker engaged with the victim to assist you. We discuss ‘front-loading’ your case below, and doing this and fact-finding early in the process can help you identify issues such as these.
Checking for previous convictions
The rules in the 2012 scheme are harsh in terms of previous convictions: para 4 of Annex D states that an award will be withheld or reduced where, on the date of his/her application, the applicant had a conviction for an offence (with exceptions) unless there are exceptional reasons not to do so, though this does not apply to a spent conviction in terms of the Rehabilitation of Offenders Act 1974.
The position is harsher still for some applicants: there are seven forms of conviction that, if not spent at the time of the application, will result in no award being made at all. This includes sentences excluded from rehabilitation (victims who come within this limitation will never receive an award) as well as victims who have a conviction for an offence that resulted in a custodial sentence or even a community order. Applicants will have to wait until the sentence is spent to have any eligibility at all, hopefully with the possibility of an application for CIC being made within the two-year time limit.
Accordingly, advisers must establish the applicant’s conviction history where appropriate and establish when convictions become spent. The applicant must decide whether to apply and seek to avoid an award being reduced or withdrawn because of exceptional reasons or wait until the conviction has become spent. Difficult issues will obviously arise where the conviction becomes spent after the expiry of the two-year time limit. We would speculate that deliberate delay in applying until after a conviction becomes spent will not result in a sympathetic response to an attempt to extend the two-year time limit.
We consider this to be particularly problematic in terms of people whose crimes may be connected to their injury, such as those who have been coerced in the course of abuse to commit crime, or those who have suffered a mental injury and this has contributed to their committing a crime. This is an area that deserves further consideration and something that could be open to challenge if the rules are not changed.
The application for compensation must be received by CICA within two years after the incident (para 87). Where the applicant was under 18 when injured: the two-year time limit runs from the applicant’s 18th birthday if the crime was reported before s/he turned 18; if the crime was not reported until after s/he turned 18, it runs from the date the crime was reported (para 88).
The time limit can be particularly important in cases of abuse, as the victims of historic child abuse sometimes cannot report their assault until years later. However, there is scope within the scheme for this time limit to be extended where:
(a) due to exceptional circumstances the applicant could not have applied earlier; and
(b) the evidence presented in support of the application means that it can be determined without further extensive enquiries by a claims officer (para 89).
There has been quite a lot of judicial support for taking a reasonably flexible approach to the time limit with respect to victims of historic abuse. In JM v Advocate General for Scotland  CSOH 169
, Lord Boyd stated (at para 20 of the judgment):
[T]hose who have presided over trials of historic sex abuse of children are only too aware of the deep psychological and emotional trauma that surrounds such criminal activity. In order to carry off such abuse the victim has to be cowed or otherwise subdued into remaining silent … To suggest that this effect disappears once the child has reached adulthood is to misunderstand the pervasive nature of the trauma which victims of childhood sexual abuse invariably suffer.
Additionally, R (MJ) v FTT and CICA (No 3)  UKUT 279 (AAC)
explains the Upper Tribunal’s approach to time-bar cases under the 2008 scheme. It states at para 30 that ‘in cases involving child sexual abuse [it] most probably will nearly always be the case, that condition (b) [of para 18 of the 2008 scheme3Para 89 is the equivalent paragraph in the 2012 scheme.
] simply has no purchase’, where condition (b) read: ‘in the particular circumstances of the case, it would not have been reasonable to expect the applicant to have made an application within the two-year period'.
While this case cannot be considered authoritative, given that it relates to the 2008 scheme, which had different rules on time limits, it demonstrates support and understanding to the victims of historic sexual assault, and shows that historic sexual abuse is likely to constitute exceptional circumstances.
Generally speaking, it is good practice to front-load your case: by obtaining full copies of social work records, medical records, and any other data you can obtain on the victim and the offence. By doing this you are more likely to identify all of the aspects of compensation the victim is entitled to, and other issues, such as whether a crime of violence has been committed. Taking a pre-emptive approach by information-gathering in this way can assist in ensuring that as much information is given to CICA as early as possible, making a speedy resolution for the victim more likely.
However, it is essential to do this where the case is outside the two-year time limit, in order to meet the relevant test. When demonstrating that, though late, the victim’s case should be accepted, it is not only about showing that there were exceptional circumstances; you must also show that the case can be determined without further significant investigations by the claims officer.
In practice, you will need to undertake most, if not all, of the investigations that CICA would otherwise have undertaken. This may also involve proactive investigation. For example, if the victim advises that s/he has suffered mental injury as a result of being sexually assaulted, you would need to contact his/her psychiatrist, or instruct an independent psychiatrist, to substantiate this to CICA.
Ultimately, time limits are flexible but you need to understand them and understand what to do where there is a time limit issue.
It is important to identify all the elements of compensation. Legal advice and representation can assist by taking a proactive approach and ensuring all avenues are explored. People unfamiliar with the scheme may adopt a passive role and accept the first offer of compensation. For example, a person who was raped is eligible for £11,000. However, s/he may have suffered mental injuries, and consequently wage loss, which could result in much higher compensation. If someone familiar with the scheme is assisting and, where appropriate, challenging CICA, it is more likely that the maximum compensation will be obtained.
‘Same roof, same family’
Legal advice also becomes important when a victim’s case raises issues beyond his/her own claim, bringing up a legal point that needs to be resolved. For example, we are currently instructed in a test case regarding the ‘same roof’ rule. There is a blanket exclusion for victims claiming compensation for abuse perpetrated by members of their family, with whom they were living, prior to 1 October 1979 (para 19), commonly known as the ‘same roof’ rule or, more accurately, the ‘same roof, same family’ rule.
We at the Legal Services Agency (LSA) are challenging this rule on human rights grounds, arguing it is discriminatory. The Inner House of the Court of Session ruled that our client was discriminated against, as she could not obtain what would otherwise be a right, under European Convention on Human Rights article 14, read with article 1 of Protocol No 1, but the court found that the discrimination was a proportionate means of meeting a legitimate aim, ie, avoiding an unknown cost burden that could affect the viability of the 2008 scheme (MA v A Decision of the Criminal Injuries Compensation Board  CSIH 46, 14 July 2017
It is our position that considerations of cost alone do not justify discrimination, and that the cost is not unquantifiable and it could be established whether it is an affordable one. The Inner House was of the view that our case is of general public importance and granted permission to appeal to the Supreme Court. Like buses, challenges to the ‘same roof, same family’ rule have all come at once, as there are currently three cases in three jurisdictions: our own, one in England and one in Northern Ireland.
Lawyers willing to pursue these cases as far as necessary therefore have an opportunity to effect real change and vindicate the rights of vulnerable people.
Practitioners’ awareness of the scheme, along with publicity, can result in changes. It is important to continue to work for and with victims of abuse to obtain some recognition of the wrong that was done to them. Compensation is a real expression of sympathy to, and demonstration of solidarity with, people who have suffered.
Compensation is a real expression of sympathy to, and demonstration of solidarity with, people who have suffered.
We at LSA consider that we have two tasks: first, to ensure potential applicants and the practitioners advising them know about the scheme; and, second, to assist them to apply for compensation where appropriate, with practitioners taking a critical view of the capital scheme, challenging the way it works. We hope that a broadening of knowledge will result in specialists in other areas ensuring that claims are comprehensively pursued and the rights of victims of abuse are fully vindicated.
Paul Brown is principal solicitor, Kirsti Nelson is a solicitor and Rona Macleod is a trainee solicitor at Brown & Co Legal LLP at the Legal Services Agency, a charity and law centre operating in Glasgow, Greenock and Edinburgh. The second edition of Paul Brown’s book, The 2012 Criminal Injuries Compensation Scheme: an introduction for advisors, is currently being edited ready for publication.