Andrew Griffiths MP has helped to highlight how the courts are failing CSA victims. As a result of highlighting how few criminal compensation orders are made at the conclusion of criminal proceedings today, we have learned the stark reality.
Figures provided by the MOJ just published reveal that of the 6,861 cases in 2017 where someone was convicted of and sentenced for child sex abuse, just 26 criminal compensation orders were made by the courts, and the awards made were and are astonishingly low such as in one case £20.
Compensation orders are governed by sections 130 – 133 Powers of Criminal Courts (Sentencing) Act 2000 (PCC(S)A), while section 40 (1) Magistrates’ Courts Act (MCA) lays down the maximum amount a magistrates’ court can order, currently £5,000 per charge (see section 133 PCC(S)A for the position on TICs). The Crown Court has unlimited powers but should have regard to the means of the offender. While the court’s powers are very widely drawn, the High Court has stated that compensation orders should only be made in simple straightforward cases.
From 3 December 2012, section 63 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 inserts section 130(2A) into the PCC(S)A 2000 providing: “A court must consider making a compensation order in any case where this section empowers it to do so”. This new requirement is in addition to the long-standing requirement in section 130(3) to “give reasons…if it does not make a compensation order …”.
The court must consider making a compensation order in any case where personal injury, loss or damage has resulted from the offence. It can either be an ancillary order or, a sentence in its own right (which does not attract a victim surcharge). The court must give reasons if it decides not to order.
The position is clear but this power appears to be more honoured in the breach than in the observance. The courts are not making use of the power in CSA cases, and the police who are supposed to be providing the CPS with the information to place before the courts to enable orders to be made are clearly not doing so either in a uniform or purposeful manner. The evidence before IICSA in relation to the reasons why so few orders are made is somewhat contradictory if not vapid. It would have been useful to have heard from the judiciary in relation to this but be that as it may it is clear that orders are not being made when it is submitted they should be. Victims are routinely asked to give consent to the release of their medical records in criminal proceedings and provide impact statements for the very purpose of assisting the court when sentencing. It is something of a paradox that victims provide this information yet the question of compensation appears at best tangential and at worse something of an inconvenience. The evidence suggests that CSA survivors are being let down through a general lack of awareness of, and lack of purpose, behind a fundamental statutory provision which is designed specifically to help deliver justice.
The courts have issued to them guidelines provided by the Sentencing Council which stipulate inter-alia that compensation should benefit, not inflict further harm on, the victim. Subject to consideration of the victim’s views, the court must order compensation wherever possible and should not have regard to the availability of other sources such as civil litigation or the Criminal Injuries Compensation Scheme. Any amount paid by an offender under a compensation order will generally be deducted from a subsequent civil award or payment under the Scheme to avoid double compensation. Any financial recompense from the offender may cause distress. A victim may or may not want compensation from the offender and assumptions should not be made either way. The victim’s views should be obtained through sensitive discussion by the police or witness care unit, when it can be explained that the offender’s ability to pay will ultimately determine whether, and how much, compensation is ordered and whether the compensation will be paid in one lump sum or by instalments. If the victim does not want compensation, this should be made known to the court and respected.
Paradoxically, of course, criminal courts routinely obtain medical and in particular psychiatric reports in relation to the accused (or the offender) before sentencing, and this begs the question why more attention cannot be given to the victim? Maybe the answer lies in the fact that the defendant is legally represented whereas the victim is not and his or her voice sits in the hands of the police and CPS.
The MOJ’s “Victim Strategy” document interestingly makes no reference to CCO’s. Yet it recognises the requirement for the need of the provision of impact statements. It is, therefore, telling that the MOJ itself does not fully understand the law viz the courts are required to make CCO’s. If the MOJ dies understand what chance is there for CCO’s to be made?
Again, and this is paradoxical, it is said that there is a concern that if survivors are advised about the right to compensation, let alone seek it, this may enable a defence to be run on the basis that he/she is making a complaint of sexual abuse only to secure compensation. Therefore there is at best a reticence in advising survivors. Yet no evidence has been placed before IICSA to show whether cases fail because they have done so. What evidence is there that a survivor has been accused of making a false allegation (which could lead to their own prosecution of course) in anticipation of a judge making a CCO? The statutory power to make a CCO is a creature of Parliament which decided that those convicted of offences should pay compensation. Accordingly why is it that the will of Parliament, and the rights of victims, cannot be respected? What is there to prevent there being a statutory instrument or practice direction to prohibit such a defence from being run by the accused? It is submitted that this is a practical answer to a nonsensical problem which is distorting the thinking in some quarters on the part of those who have the responsibility to advise survivors.
Through successful civil proceedings, brought by survivors against their abusers, compensation is awarded and obtained. This demonstrably demonstrates that if compensation orders were made and enforced they could be effective.
There has to be routine training and education of police officers, lawyers, and judges to ensure that the law is complied with and orders made.
As the land currently lies the unpalatable truth is that the State v the taxpayer is subsiding CSA through picking up the bill for the consequences of CSA when the offenders should be paying. The cost to the UK in human and financial terms of CSA is immense- it can only be right that offenders pick up some of that cost as Parliament intended.