The blame game: how a lack of representation harms victims of violent crime
Emily McFadden explains what lies behind poor decision-making on the part of the CICA and the challenges facing solicitors
The Criminal Injuries Compensation Authority (CICA) deals with applications for compensation from individuals who are the “blameless victim of a violent crime” and have been physically or mentally injured as a result. The Criminal Injuries Compensation Scheme 2012 (amended) was enacted by the Criminal Injuries Act 1995 and is a fund of last resort, compensating those unable to claim compensation elsewhere.
EU legislation requires member states to offer a compensation scheme for victims of crime but does not impose specific requirements. In a post-Brexit world, the existence and content of the 2012 Scheme will be determined solely by the 1995 Act. Although “significant alterations” of the Scheme must, under the Act, be laid before parliament and passed by resolution of both houses, Brexit will mean less external provision of compensation for victims of crime. Meanwhile, the government is undertaking a review of the Scheme. This review has a wide scope ranging from its efficiency; the definition of violent crime; time limits; consent in sexual assault cases; the level of evidence required to prove a case; and the time taken to determine an application. It will also consider compensation for victims of child sexual abuse and victims of terrorism. Changes are imperative and I hope the review will go some way to help.
ABOLITION OF THE SAME-ROOF RULE
Practitioners celebrated in February 2019 when the Ministry of Justice (MoJ) finally abolished the ‘same-roof ’ rule which was introduced in 1964 to prevent perpetrators living with their victims benefiting financially from their own crimes. The rule was changed in 1979, but not retrospectively, preventing applications for injuries suffered between 1964 and 1979. The practical consequence was that siblings born just a couple of years apart, who suffered the same abuse by the same perpetrator, were treated completely differently: one receiving compensation and the other none. The government was forced to make the amendment following the Court of Appeal ruling in JT v First Tier Tribunal  EWCA Civ 1735 that it unfairly denied compensation to those affected. The abolition of the rule now allows those affected to apply (or reapply) within two years of 13 June 2019 – the date on which the Scheme was amended.
IS REPRESENTATION NEEDED? The MoJ tells potential claimants 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 calling Victim Support for help, though such organisations are often heavily reliant on volunteers who are not formally legally trained or qualified. This can mean crucial information can be missed, as in D v Victim Support Scotland  SC EDIN 85. Perhaps it’s following this case that Victim Support (England) states the limit of its advice is to “help you to access information... find [the] online application form or to contact [the CICA] by telephone”. From experience, I don’t think it is sufficient for non-lawyer victims of crime to navigate this purportedly ‘simple’ process to obtain the compensation they deserve.
A LONG, CONTINUING ROAD TO JUSTICE
It can be a long process. 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 for making a CICA claim is two years from the incident or from the date on which it is reported to the police, or in exceptional circumstances at the CICA’s discretion. Our client applied within six months of the criminal verdict but her application was refused for being out of time. As with the majority of requests for review by litigants in person, the facts of the application were re-stated rather than legal submissions being made 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 the time limit should be waived. Had her application been considered properly in the first place, she would have been saved months of dreading the prospect of sitting 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 is 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 produced as the evidence on which an offer of an award is made; or that she’s 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 says in its CICA 2020 and 2017-18 Business Plan: “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 become efficient, fair or sensitive by 2020.
A LEGAL COSTS DETERRENT
If the CICA was responsible for legal fees in line with the usual civil rule about costs, it may make better decisions in the first instance. A recent Freedom of Information Act (FOI) request by the Association of Personal Injury Lawyers showed that from 2018 to 2019 there were 2,831 cases in which increased compensation was offered following a request for review. It also revealed: “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.” This is a 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 a concession because the appeal was “bound to succeed”. I’m proud to say our firm has a 100 per cent track record in these cases which indicates the tenacity of our solicitors. But it also demonstrates poor decision-making on the CICA’s part. Running these cases to tribunal creates significant increased costs and a strain on resources on (as we’re so often told) 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.
COSTS VERSUS MERIT
Apart from exceptional case funding (available to CICA applicants only 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 and the firm is also likely to lose out. Solicitors have to risk-assess the value of a claim – often without medical records or reports – and balance it against other, more profitable work to decide whether to make the (almost inevitable) loss on CICA cases. The awards payable under the Scheme’s tariff are often pitiful, for example, a rape victim may receive just £11,000. But such cases are important: these clients have often been unable to obtain justice elsewhere and have no other hope of compensation. The final nail in the coffin is a government agency denying they are victims of violent crime; 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 FOI requests and to keep assessing the correct level of award. Put bluntly, it is proper legal work which society and victims of crime need – and deserve – lawyers to do. And that’s why we as a profession must keep taking on these cases – even if it is at a loss. We have to keep challenging this gatekeeping compensation body and fight for justice for these vulnerable victims of violent crimes. They deserve better than the CICA as it currently operates. I hope the government review will acknowledge this and make the changes so desperately needed.