Criminal Injuries Compensation and the Unspent Convictions Rule

Criminal Injuries Compensation is a government funded scheme designed to compensate victims of crimes of violence.

The eligibility criteria are set out in the scheme. Our Abuse Team are specialists in criminal injuries work and in particular at ensuring that our clients gain the maximum level of compensation.

One of the difficulties with the scheme, however, is what we call the unspent convictions rule. Paragraph 5 of the 2012 Criminal Injuries Compensation Scheme, in conjunction with annex D, sets out the circumstances where an award may be withheld/reduced where the applicant has unspent convictions. The effect of these provisions basically means that anyone with any form of unspent criminal conviction, even for minor offences, at the time of their application will be automatically refused an award. There is no discretion.

Prior to 2012 the scheme gave caseworkers more of a discretion. An applicant’s own convictions may have affected the level of compensation. An award would be reduced on a sliding scale percentage system according to the type or severity of the applicant’s own convictions. The publication of the new scheme in 2012 saw a drastic amendment to the rule, providing for a total bar to compensation.

The rule applies to convictions where a sentence listed in paragraph 3 of annex D was received and includes community orders. Therefore, all crimes, other than minor driving offences and those which result in fines, are included. Whether a conviction is spent is determined in accordance with the Rehabilitation of Offenders Act 1974. Generally, the longer the sentence received, the longer it takes to become spent.

The rules apply not only to existing convictions at the time of the application but also to convictions received during the course of the application. If the applicant has a pending prosecution at the time the application is made, the CICA will put the application on hold.

The unfairness of this rule is particularly evident in sexual and physical abuse cases. Those of us who act for survivors of sexual and physical abuse know all too well that our clients are more likely to suffer mental health, drug and alcohol problems which in turn can lead to criminality.

We act for many individuals who have been abused in care homes and detention centres, been failed by the care system and have found themselves stuck in a pattern of offending. Those who manage to break free of this lifestyle and turn their lives around will still be penalised for their past.

The biggest concern is that this rule refuses to recognise the situation where the applicant’s own offending can be directly or indirectly linked to the crime of violence in respect of which they are seeking compensation. This is the case even where there is medical evidence to support this.

The Government justification for the rule is that those who have committed crimes should not be able to claim for crimes committed against them and that taxpayers should not have compensate criminals.  Those will a criminal record, will often be taxpayers themselves. This absolute bar is neither fair nor reasoned. There are many cases where an individual may have suffered serious sexual assaults, causing significant mental health issues and then are denied criminal injuries compensation due to a relatively minor criminal offence, such as petty theft, non- payment of fines or debts for example.

Many of the charities and support groups we work with deal with domestic violence cases where a women may have committed an assault on her abusive partner at the end of years of domestic abuse or may have been prosecuted for shoplifting for food to feed herself and their children when they have been forced to leave an abusive home and find themselves struggling financially. These women will not be able to claim criminal injuries compensation if their convictions are unspent.

During a review of the Scheme in 2020 may professional organisations, charities and support groups all submitted detailed arguments as to why the current unspent convictions rule needed to be revisited and revised, highlighting the unfairness for survivors of sexual abuse and assault.

The published Review was disappointing when it came to reconsideration of the rule. Rather than properly consulting as promised, it merely outlined that an internal review had been conducted and the rule would not be changed. Unsurprisingly, this approach was not welcomed and this decision not to consult has been challenged. In August 2021 the High Court ordered the Ministry of Justice to conduct another public consultation.

The case of Kim Mitchell v Secretary of State of Justice was brought by the Centre for Women’s Justice* on behalf of the victim of assault who was refused compensation due to her convictions. The Judge was critical of how the Review failed to do what was promised. As yet there have been no further developments, but clearly ourselves and others involved in supporting and fighting for justice for survivors of abuse are keen to ensure that a further public consultation does take place.

If you have been the victim of a sexual or physical assault and have a past criminal records but do not know whether your convictions are spent our abuse team can advise you. Even where criminal injuries would not be available due to your own criminal record, you may be able to pursue a civil claim.