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Is the Criminal Injuries Compensation Authority fit for purpose?

With applications for Criminal Injuries Compensation increasing,[1] the question of whether the Criminal Injuries Compensation Authority (CICA) is fit for purpose or not, arises.

A claim for compensation can be made where a victim suffers from a ‘crime of violence’[2] which includes inter alia a physical attack, a violent act or omission or a sexual assault where there was no consent.[3]  However, when family members become involved in crimes of violence, the biggest question of the purpose, scope and reach of the CICA becomes apparent.

In MA v Criminal Injuries Compensation Board,[4] the Petitioner sought to reclaim against a decision of the Board to deny compensation on grounds that any injury sought was under the ‘same roof, same family’ rule.  The Petitioner’s mother was prosecuted for attempted murder and subsequently convicted of assault.  This rule has since ceased and claims can be made for injuries sustained after October 1st 1979.  In this case, the Inner House decided that an award should not be granted, agreeing with the original decision to deny compensation on the grounds that the 1979 Criminal Injuries Compensation Scheme was correctly interpreted.  The case proved no unlawful discrimination, under Article 1 Protocol 1 of the European Convention of Human Rights, to the Petitioner based on a loss of a socio-economic ‘asset’ and that there was parliamentary agreement that this rule was not sustainable.  As a result of this rule, many cases of compensation have been denied.  The 2012 Scheme has not changed and the government has no plans to change this rule.[5] thus, the question remains: if justice for each victim is at the heart of CICA, then how can CICA and the government continue to deny claims that, on the balance of probabilities, would have good prospects of success?

The Court, in MA v Criminal Injuries Compensation Board decided it was for the Government to decide on public policy.  It can be argued that if the Courts moved to intervene and if they decided that the “same roof” rule was indeed discriminatory, then they would be interfering in Government policy which has classically been out-with the scope of the Court.  Judges have never held themselves out to be policymakers and this scope of jurisprudence would certainly be interpreted as the judiciary involving themselves in public policy, harming the reputation of the judiciary to be impartial.  Policymakers, on the other hand, have come under huge scrutiny to change the law and it has been agreed that it is for them to change the law via parliament.

In any event, CICA will change and with it, the possible existence of the “same roof” rule.

[1] Clifton, Helen (2017) “Sex abuse victims ‘failed’ by criminal payout scheme” BBC News

[2] HM Government (2012) “The Criminal Injuries Compensation Scheme 2012” Paragraph 4

[3] Ibid, Annex B, Paragraph 2

[4] MA v Criminal Injuries Compensation Board, 2017, Scot (D) 17/7

[5] Pat Strickland (2016) “Criminal Injuries Compensation: The “same roof” rule” Briefing Paper, House of Commons Library

 

 

This Blog was written by Blair Duffy, LLB and current student of the Diploma in Professional Legal Practice

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