The press has recently reported that children who were victims of serious sexual abuse have received paltry sums, £20 for example, as compensation from the courts.
So, what exactly is a criminal compensation order?
The court has a duty to consider making a compensation order in any case where personal injury, loss, or damage has resulted from the offence. If it does not make a compensation order, it must give its reasons.
The order requires that the offender pay a certain amount to the victim, usually within a year or two if paid in instalments.
The low figure of £20 was made public by Andrew Griffiths MP. He received the data in answer to a written question to the Ministry of Justice. His questions uncovered that of 6,861 people convicted of child sex offences only 26 were ordered to pay compensation.
It’s difficult to comment on these cases because we simply don’t have most of the facts, but we will try to answer general questions about criminal compensation orders.
Why was the compensation so low?
The court must take into account the means of the offender when making a compensation order.
This means that a compensation order will not ordinarily go hand in hand with a custodial sentence, especially a longer sentence, because the offender will not be able to earn and make payments.
That is one of the reasons that an order of £20 may have been made, and that so few orders were made in the first place, as serious sex offences are more likely to lead to a custodial sentence.
The fact that there is no monetary loss to a victim in cases like this is also relevant. Child sexual abuse is a serious and severe crime, but not always one where compensation from the offender is appropriate.
Can I get compensation from the Government?
Yes, in many cases you can get compensation from the Government. The Criminal Injuries Compensation Authority is a publicly funded body that awards compensation to victims of violent, including sexual, crime. Parliament sets the awards.
In 2017-2018, the Authority paid out £150 million to victims of violent crime. There is a two-year time limit for making a claim, in most circumstances. That time limit does not begin until age eighteen.
To be eligible for a payment from the CICA, a person need only show that it is more likely than not that they were the victim of crime.
This is a lower standard than is applied at a criminal trial, so it is available in some cases where there is not enough evidence to proceed in a criminal court.
The CICA operates under complicated rules, and people are not always able to navigate them well. Solicitors can help with making a claim, but their fees will eat into the amount of compensation.
CICA payments can also be reduced or refused if you don’t co-operate with the CICA, or the police, or have a previous conviction, even where you are totally blameless for your injury.
Can I sue my abuser?
Yes, a claim for trespass to the person is also available in a civil court. This requires the same standard of proof as a claim to the CICA. If there has already been a criminal conviction, that will usually satisfy the requirement of proof.
In a civil court, however, the time limit for making a claim is longer. In most cases of personal injury, it is three years, but when that limit starts running can be different. It will not start in any event until a person turns eighteen.
Civil claims are brought by a person individually. If you chose to sue someone for a sexual assault, you would have to pay.
Costs are usually recoverable from the loser. That is not so in small claims court where the claim is for personal injury of £1,000 or less.
If you are able to recover costs when you win, it also means that if you lose you may have to pay to other person’s costs. Claims of this sort are rarely made unless likely to involve a substantial sum of money, and the other party definitely has the means to pay.
What if the offender is a child?
Child offenders are not exempt from the compensation order. Some of those payments uncovered by Griffiths were offences by a person under 18 and ranged from £50 to £150.
The court still has a duty to consider making one. One crucial consideration will be the means – how much can a child be expected to pay? It’s unlikely they will have a significant income to put towards any order.
Can a child’s parent be made to pay compensation?
In some cases, yes. If the offender is sixteen or over, the court may order the parents to pay any financial penalty, such as compensation or a fine.
Where the offender is under sixteen, the court must order the parents to pay the financial penalty. If the parents cannot be found, or it would be unreasonable, the court doesn’t have to order them to pay.
Why order compensation of £20?
Without the full facts, it’s difficult to say. There are many variables, but it does, on the face of it, seem an odd decision.
People could think that it’s more insulting to order £20 compensation than to make no order at all. It could easily leave the victim with a feeling that £20 is all their abuse is worth.
Equally, given the offender clearly had minimal means to pay, was an order worth making in the first place?
How much should someone be paid for being the victim of a sexual offence?
Amounts vary across offences, but there are some guideline figures to look at. The CICA official table gives £11,000 as the amount for a child victim of rape, the same circumstances as the case where a compensation order of only £20 was made.
The Sentencing Council gives starting points for criminal compensation orders. For the same offence, the suggested starting point is only £3,300.
Without all the facts, it’s difficult to say why the compensation, in this case, wasn’t closer to these figures. It may be that the offender was sent to prison and only had £20 in his property, it may be that it was a child or person for whom £20 was a lot of money, the compensation may have been for money taken or lost during the assault or it may even be a reporting error, we simply do not know.
How we can assist
If you need specialist advice, then get in touch with John Howey on 020 7388 1658 and let us help. We can advise on all aspects of your case.Read More
If you were able to listen in to a conference between client and solicitor, you might hear an exchange a little like this one:
‘What am I looking at?’
‘Around 12-15 months, suspended if you are very lucky.’
‘Oh, I can live with that!’
‘But there is something else?’
‘You are going to lose your money, your house and your car.’
What is confiscation?
At its most simple it is the process by which those convicted of a crime are deprived of their benefit from that crime.
So, for example, Jill steals £10,000 from her employer and spends it on a luxury holiday.
Her proceeds from that crime (referred to as the ‘benefit’) is £10,000, so she can expect a confiscation order to be made in that sum.
That sounds fair
Well, it does sound ok on the face of it, but it is a little more complicated than that. The £10,000 from the confiscation order will not go to the employer; it will go to the state.
But the court may also make a compensation order in the sum of £10,000 to repay the employer for their loss.
So, Jill will have to pay £20,000?
It can get a whole lot worse!
For example, Paul steals a Porsche worth £130,000 but a few hours later he is stopped by the police, the car is recovered, and it is returned to its owner.
The ‘benefit’ here is £130,000 (the value of the car), even though the car has been returned.
Yes, it is. The examples above are all from real cases, and while the result outlined above does not always follow, the starting point is that confiscation is ‘draconian and intended to be draconian’.
Certain convictions trigger what are known as ‘lifestyle provisions’ which means that your finances going back many years will be subject to investigation – unless you can establish that the income was lawfully obtained, the monies will be at risk of being added to the ‘benefit’ figure.
I haven’t got any money, so I don’t care
Sure, but the benefit figure will still be determined, and if for example, you come into some money at a later date (for example an inheritance or pension), the prosecution can seek to take that money from you. Any property of value can be seized in order to satisfy a confiscation order, and if the court believes that you can pay the order, and you fail to do so, you can be sent to prison in default.
It all sounds rather complicated
It is, and we haven’t even mentioned gifts, hidden assets, corporate veils and A1P1 considerations.
Often the real punishment felt by an offender is not the headline sentence but the financial penalty that flows from a confiscation order.
The rules are incredibly complicated, and we often find fundamental errors and assumptions being made by financial investigators. Basic errors can result in wrongful calculations amounting to many tens of thousands of pounds.
In some cases, we can argue that the making of a confiscation order is so disproportionate that to do so would be unlawful.
So, before entrusting your case to any other solicitor ensure that they are up to speed not only on the basics of the offence with which you have been charged, but also in relation to confiscation.
John Howey, Senior SolicitorRead More
Even as a criminal solicitor in London, in over 20 years I have never come across a client accused of breaching the Official Secrets Act. Reference is often made to someone ‘signing the Official Secrets Act’, and this week I came across such a signed document, headed ‘Official Secrets Act’, amongst the papers of an elderly relative who died recently.
Contrary to many people’s belief, those who are bound by the Act are bound by it whether they have signed anything or not. ‘Crown Servants’, a term that includes civil servants, police, judicial officials and the armed forces and ‘government contractors’, ie companies who produce goods or services under contract for the government, are all bound by the Act, as well as members of the security services. Signing a document merely acts as a reminder to individuals that they continue to be bound by the Act even after they cease to be employed.
Prosecutions under the Official Secrets Act
To be an offence, the disclosure must be damaging. Prosecutions under the Official Secrets Act are rare; Clive Ponting in 1985 for leaking details of the sinking of the General Belgrano during the Falklands War; Richard Tomlinson in 1997 for passing secrets to a journalist; Sarah Tisdall for leaking details of the arrival of American missiles in the UK, and David Shayler.
David Shayler was arrested in France in 1998. He had been working for MI5, and revealed sensitive information to the Daily Mail, suggesting amongst other things that the security services were deliberately planting misinformation in the media and had ignored information that could have prevented terrorist attacks in the UK. The French courts refused to extradite him, ruling that the prosecution was politically motivated. A similar bar exists in the Extradition Act, S13 ‘extraneous considerations’, which prevents the extradition of a person where the warrant is issued for the purpose of prosecuting him or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions, or he might be prejudiced at his trial for any of those reasons.
Shayler eventually returned to the UK and was prosecuted. He was convicted after the Judge directed the jury to convict him.
A similar direction to the previous case had been given to the jury in the trial of Clive Ponting, who argued that the Act as it then stood allowed for the publication of information if it was in the interests of the state to do so. Although the trial judge directed the jury that it was up to Government Ministers to decide what was and what was not in the interest of the state, and that the jury should convict the defendant, they acquitted him.
Katharine Gun was charged in 2003 with leaking an email from the National Security Agency in the United States. The email was asking for help in a bugging operation at the United Nations, in the run up to the UN Security Council vote on the invasion of Iraq. Countries who were thought to be undecided were to have their offices bugged. Gun’s defence was that she was acting to prevent imminent loss of life in an illegal war. On the day of trial, for reasons never fully explained, the prosecution offered no evidence.
This seems to have been the last notable prosecution under the Act. Earlier this year, the Law Commission published a paper suggesting ways to bring the Official Secrets Act up to date, to deal with modern issues. the consultation has now closed, but you can still access the documents.
With the majority of Parliamentary time over coming months and years being taken up with Brexit, it seems unlikely that there will be progress soon.
John Howey, Senior SolicitorRead More
Victory against unlawful stop and search
Duncan Roberts recently represented a client charged with possession of a bladed article.
The client had been present at the scene of an incident he had witnessed and was assisting police. Almost an hour after the police met him they decided to search him. They recovered a knife in the pocket of the jacket he was wearing.
Duncan argued that the officer who had been speaking to our client had no reasonable grounds for suspicion, and as such could not legally search our client. The officer claimed that he was relying on his superior officer’s suspicion. Duncan argued that as that officer had not been named and no statement provided by them, those suspicions amounted to hearsay and therefore could not be repeated before the court.
This meant that the Officer who conducted the search had no lawful reasons for searching our client.
There were also a number of other aspects of the search which were not conducted in accordance with the Police and Criminal Evidence Act (PACE).
The result of this argument was that if the search was unlawful, the fact that the knife was found could not be relied upon and there was no case to answer.
4 Main procedures in a stop and search
- The police officer must identify himself appropriately;
- must show his warrant card;
- must identify the item sought;
- must provide a written record of the search or inform a suspect that a record can be made available for them.
If one or more of these procedures are failed, the search itself could be unlawful, and therefore weaken the case against you.
If you have been found in possession of a weapon, drugs or anything else illegal and are unsure whether the search was lawfully conducted contact us. We can advise on the procedures the police should undertake and whether they have conducted a stop and search appropriately.
How can we help?
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch with. Call John Howey on 020 7388 1658 or email firstname.lastname@example.org. Let us help.