10 April 2019 | Comment | Article by Alan Collins

HJ Talks About Abuse: Criminal Compensation Orders - vital for sexual abuse cases

In this episode, Partner Alan Collins and Sam Barker discuss Criminal Compensation Orders (CCO) and why the courts ought to be making better use of them.

Listed below are some of the key points about Criminal Compensation Orders that are brought out in this week's episode:

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 are clearly not doing so in either a uniform or purposeful manner. The evidence before the International Inquiry into Child Sexual Abuse (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 as 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 worst something of an inconvenience. IICSA might conclude 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 the victim, not inflict further harm on them. 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 are properly 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 also appears that it recognises through research that the police are not providing the information which confirms, possibly, the impression that IICSA might have formed from the evidence it has taken, that is needed 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.

Andrew Griffiths MP on 28th March 2019 presented to Parliament a bill to require the Lord Chancellor to report on the use by courts of compensation orders for child sexual abuse offences. This is the report from Hansard:

I beg to move,

That leave be given to bring in a Bill to require the Lord Chancellor to report on the use by courts of compensation orders for child sexual abuse offences; and for connected purposes.

People come to this House for many reasons—to deliver Brexit, to fight racism, to champion social justice, to reform Parliament—but I am sure that everyone in the House, from all parties, comes here to help the victims, the vulnerable, and those with the least voice, and there can be fewer in our society more in need of our help than the victims of crime, and in particular victims of child sexual abuse. In this place, we regularly discuss the abuse that has occurred in our country. It has occupied much of our time in the Chamber. We have discussed the horrendous abuse that took place in the 1970s and in the Catholic Church and the Church of England.

More recently, we have spent much time talking about the horrific and widespread abuse in towns up and down the country such as Rotherham and Bradford. The suffering of those children is indescribable and unimaginable, and it is only right that this place does all it can to reduce the possibility of such things happening again. Nobody can take away from those victims the pain that their abuse has caused, the trauma and the suffering that they have endured, not just as a child when the abuse happened but, all too often, in later life, when the trauma comes back and bubbles to the surface.

We all want to do our very best in this place for those survivors. As someone who was himself a victim of child sexual abuse, I know how difficult and traumatic it is to discuss such issues. I kept my secret hidden for some 40 years. I locked it away, chained it down and hoped it would never surface. I convinced myself that if I did not give it words, I could deny it a reality. That was my view. How wrong I was! Talking about what happened to me, and explaining it to other people, was the best thing I could have done. I hope that other people who see this debate or read my testimony will think about coming forward and speaking out about their abuse and the trauma they have suffered.

To talk about these things takes courage. If it took sitting in a psychiatric ward with a psychiatrist for me to be able to talk about my trauma, how much more difficult must it be for victims who find themselves in the courtroom—in that intimidating and forbidding place—who have to suffer cross-examination by a skilled and forensic barrister? All too often, they have to face the perpetrator—the person who caused them so much pain and anguish over their lifetime—across the courtroom. And yet they do it. They speak out. They find, from somewhere within, the courage to be able to do that. Surely we—Parliament, the judiciary and the police—should support them in any way we can if we are to stamp out the scourge of child abuse that we see all too often in our country.

The House has mandated support for those victims. One of the objectives of the Criminal Justice Act 1982 was to increase the use of criminal compensation orders to ensure that victims of crime were compensated by right, as a norm, without the need for expensive civil litigation and the prospect of having to retell and relive the story of their abuse in the courtroom. That was consolidated in the Powers of Criminal Courts (Sentencing) Act 2000. The Sentencing Council itself says:

“the court must order compensation wherever possible and should not have regard to… other sources such as civil litigation or the Criminal Injuries Compensation Scheme.”

So if everyone agrees that survivors should receive compensation as of right, and judges have the power to award that compensation straight away, at the time of sentencing, CCOs in child sexual abuse cases should be used regularly and to good effect. Surely that is a given, is it not? Sadly, the answer is a resounding “No”.

In 2017, the last year for which figures are available, there were some 6,861 convictions: 6,861 people were found guilty and sentenced for committing a child sexual abuse crime. Yet in how many of those 6,861 cases in which a CCO could have been used was one received? How many would the House suggest—50%, 25%, even 10%? The shocking reality is that just 26 people received compensation: just 0.4%. That is a criminal act. We should be ashamed that we are treating victims of child sexual abuse in that way. It is an outrage. We are letting down the survivors, and we must do something to change that.

The power is there. It lies in the hands of the judges, but they are simply choosing to ignore the use of CCOs. Despite all the guidance that the Ministry of Justice has issued and all the advice that has been given to the judiciary over many years, the courts are simply ignoring it, either by design or by accident, and compensation is not being given to the people who so justly deserve it. Moreover, although the police are supposed to be providing the CPS with information at an early stage so that judges can make the necessary decisions when sentencing, that information is simply not being collated. The crazy thing is that all too often the police do collate information for the courts, but when in this instance, when there seems to be an obvious opportunity to use CCOs for a good purpose, the information is not being gathered.

Evidence shows that victims are being let down through a general lack of awareness and a lack of purpose behind a fundamental statutory provision. How can it be that we are not using such a simple tool to help those victims? I am sorry to report to the Minister that the Ministry of Justice’s “Victims Strategy” document, although it is a great document—very worthy and very laudable—makes no reference to the use of CCOs.

My Bill asks the Government to report routinely to Parliament on the use of CCOs in child sexual abuse cases. Let me quote a well-known phrase that my dad used to use: “What gets measured gets done”. I firmly believe that such reporting, if adopted by the Government—in association with other simple and straightforward methods—will stimulate the judiciary to secure for the victims the compensation scheme that they deserve.

I thank all the Members who have supported the Bill so far, particularly my hon. Friends the Members for Lewes (Maria Caulfield) and for Congleton (Fiona Bruce), the hon. Members for Rotherham (Sarah Champion) and for Batley and Spen (Tracy Brabin), and my hon. Friend the Member for Truro and Falmouth (Sarah Newton), all of whom have been hugely helpful, as has Alan Collins of Hugh James, the solicitors, whom I also thank. However, there must be more that we can do to help those victims. It is in the Minister’s hands. Victims of child sexual abuse deserve better, and we can deliver it. I ask the House please to accept the Bill.

Question put and agreed to.

Ordered,

In our experience offenders often have the ability to pay meaningful compensation. Through civil proceedings, we have recently recovered for clients – survivors - compensation in excess of £100,000 which has and does enable them to rebuild their lives.

Click here for more information about sexual abuse claims.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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