Blamed: Victims of Violent Crime: How a lack of representation harms victims

October 17, 2019

Posted by: Emily McFadden


The Criminal Injuries Compensation Authority (‘CICA’) is an executive agency dealing with applications for compensation from individuals physically or mentally injured having been the ‘blameless victim of a violent crime’.  The Criminal Injuries Compensation Scheme 2012 (amended) (‘the Scheme’) is currently in force, enacted by the Criminal Injuries Act 1995 (‘1995 Act’).  The Scheme exists to compensate those unable to claim compensation elsewhere; a fund of last resort.

Changes post-Brexit?

EU legislation requires Members States to offer such a scheme for victims of crime, but does not impose content requirements.  In a post-Brexit world, the existence and content of the Scheme will be determined solely by the 1995 Act.  Although the Act requires ‘significant alterations’ of the Scheme be laid before Parliament and passed by resolution of both houses, Brexit will mean reduced external protection of compensation for victims of crime.  In one of BBK’s main areas of CICA work, this reduction creates concern when it appears almost certain (at the time of writing) that our next Prime Minister will be a man who believes that investigating (never mind compensating!) child abuse is “spaffing” money up the wall.  We have to hope that the Government and Parliament will remain committed to the importance of this fund for all victims of crime.

Same-roof rule abolition

Practitioners celebrated in February 2019, when the Ministry of Justice finally laid legislation to abolish the ‘same-roof rule’.  This rule was introduced in 1964 to prevent perpetrators living with their victims benefitting financially from their own crime.  The rule was changed in 1979, but not retrospectively; preventing applications for injuries suffered between 1964 and 1979.  The practical consequences meant siblings born just a couple of years apart suffering the same abuse, by the same perpetrator, were treated completely differently; one receiving compensation and the other denied.  The Government was forced to amend this following a Court of Appeal ruling in July 2018 which held that its consequence was to unfairly deny compensation to those affected.  The rule’s abolition will allow those affected to apply (or re-apply) within two years of 13th June 2019 when the Scheme was amended.

Review of the Scheme

The Government is currently undertaking a review of the Scheme.  This review has a rather wide scope, which includes its efficiency, the definition of a violent crime, time limits, raising consent in sexual assault cases, the level of evidence required to prove a case, the time taken to determine an application, potential simplifications of the Scheme, its affordability and sustainability.  It will also consider compensation for victims of child sexual abuse and victims of terrorism.  As set out below, I believe changes to the Scheme and its operation are imperative and I hope that review will go some way to help.  It will be published later in 2019.

Is representation needed?

The Ministry of Justice (‘MoJ’) claims “There are a lot of organisations that offer free advice and can help you apply.  You won’t need to use a solicitor or claims management company.”  It recommends Victim Support can help.  Organisations like Victim Support are often heavily reliant on volunteers, who are not formally legally trained or qualified.  This can mean that crucial information can be missed, as seen in D v Victim Support Scotland.  Perhaps due to this case, Victim Support (England) states that the limit of its advice is to “help you to access information… find [the] online application form or to contact [the CICA] by telephone”.  They also offer emotional support.  They are not offering advice on the content of the application itself as a legal representative would.  From experience I just do not think that is sufficient for non-lawyer victims of crime to navigate this purportedly “simple” process to obtain the compensation they deserve.

A long (and continuing) road to justice

Take one of our cases.  Our client was raped by her father in her early teens.  After more than two long years of the criminal process, he was found guilty.  The time limit to make a CICA claim is two years from the incident or reporting to police; with discretion which may be exercised in exceptional circumstances.  Our client made her application within six months of the criminal verdict and was refused for being out of time.  As with the majority of ‘litigant in person’ requests for review, the facts of the application were re-stated rather than making legal submissions on the exercise of discretion.  She was refused again and instructed us.  We submitted detailed grounds of appeal, and the case was listed before the First Tier Tribunal.  One week before the hearing we received a letter from the CICA.  It acknowledged our client was the victim of a serious sexual assault and agreed that the time limit should be waived.  Had her application been considered properly in the first place, she would have been saved months of dreading that she was going to have to sit in yet another Court to explain to yet another set of strangers the details and circumstances of how her father had raped her.

Without representation, our client wouldn’t have known she was entitled to compensation even though ‘out of time’.  She wouldn’t have known she needed a psychiatrist’s or psychologist’s report, and that this should be provided to her as the evidence on which an offer of an award was made.  And she wouldn’t have known that she is entitled to compensation for the impact on her education and employment.

It is now three years since the application was made.  Our client has still not received any compensation.  The ‘CICA 2020’ plan says that ‘Our mission is to provide a sensitive, efficient and fair service to blameless victims of violent crime.’  With this level of ‘service’, they have a long way to go in the next few months to be efficient, fair or sensitive by 2020.

An argument for legal costs?

If the CICA were responsible for legal fees, as in the traditional civil rules of a loser paying a winner’s compensation, they may be inspired to make better decisions in the first instance.  A recent Freedom of Information Act request by the Association of Personal Injury Lawyers showed that in 2018/19 there were 2,831 cases in which increased compensation was offered following a request for review.  The FOI also showed “On average [of 271 cases], there was a £37,783 difference between the compensation claimants were initially offered and the compensation they were offered at their appeal.”

£37,783 is a very significant average increase.  It is disappointing that instead of a pragmatic and fair approach, cases are run to Tribunal unnecessarily, or conceded at the very last minute; even during the hearing itself.  In one of our recent cases, the Tribunal invited such a concession because the appeal was “bound to succeed”.  I’m proud to say that our firm has a 100% track record in these cases; which indicates the tenacity of our solicitors, but also demonstrates this poor decision-making on the outset.  Running these cases to Tribunal creates a significant increased cost and strain on resources on (as we’re told so often) an already overburdened Court and Tribunal system.  But without legal costs as a deterrent, there’s no financial incentive for the CICA to make more reasonable decisions.

If there are no legal costs, how do you fund a claim?

Apart from Exceptional Case Funding (available only to CICA applicants if they are victims of trafficking), a case has to be funded via a contingency fee agreement.  This means the client loses a percentage of their award.  But the firm is also likely to lose out.  Solicitors have to risk assess the value of a claim (often without any medical records or reports), and consider the balance of other profitable work to decide whether to make the (almost inevitable) loss on CICA cases.  In some cases by the time you’ve taken initial instructions, opened a file and sent client care letters, you may already be running at a deficit of recovery.

So, should we take on cases?

The awards payable under the Scheme’s tariff are often pitiful.  For example, a victim of rape by one perpetrator will receive just £11,000.  But these cases are important.  These clients have often been unable to obtain justice elsewhere, and have no hope of compensation otherwise.  And the final nail in the coffin of their quest for any acknowledgement, any justice, is a government agency telling them they are ‘not a victim of a crime of violence’, they are ‘out of time’ or their experience of grooming amounts to ‘consent’.  These are not easy cases.  It takes determination to keep pushing, to keep challenging, to keep making FOIA requests, and to keep assessing the correct level of award.  Put simply, it is proper legal work which society and victims of crime need and deserve lawyers to do.  Applicants suffering with injuries struggle to continue this fight themselves without admitting defeat.

And that’s why we, as a profession, have to keep taking on these cases (even at a loss).  We have to keep challenging this gatekeeping compensation body, and we have to keep fighting for justice for these vulnerable victims of violent crimes.  They deserve better than the CICA as it currently operates.  I hope that the Government review will acknowledge this and make the changes so desperately needed.

This article was originally published by the Solicitors Journal on 3 September 2019, and a copy is reproduced here with their kind permission.

Emily is a senior solicitor in the Abuse team at Bolt Burdon Kemp.  If you feel you may have a claim or are enquiring on behalf of a loved one, contact Emily free of charge and in confidence on 020 7288 4856 or at emilymcfadden@boltburdonkemp.co.uk.  Alternatively, complete this form and one of the solicitors in the Abuse team will contact you.  Find out more about the Abuse team.

Posted by: Emily McFadden

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