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5.2 Criminal justice

The Inquiry’s work so far

Criminal justice in England and Wales

The Ministry of Justice is responsible for most aspects of the criminal justice system in England and Wales including the administration of criminal courts, the commissioning of prison services, rehabilitation and reducing offending, and victim support. The Home Office is responsible for reducing and preventing crime, including policing policy.

The Crown Prosecution Service (CPS) prosecutes criminal cases that have been investigated by the police and other investigative organisations in England and Wales. It is independent of the police and Government.

The Inquiry has gathered information and views about how child sexual abuse is addressed by institutions in the criminal justice system. In November 2017, it held a two-day seminar and heard from victims and survivors about their experiences of the criminal justice system. It also heard from victims and survivors’ support services, criminal justice representatives and expert stakeholders to identify where improvements to the criminal justice system are needed.[1]

Separately, the Inquiry has also been examining the operation of the national Criminal Injuries Compensation Scheme (‘the Scheme’) as part of the Inquiry’s ‘Accountability and reparations’ investigation. An issues paper (which gives individuals and organisations the chance to formally provide their opinions on particular topics) was published in August 2016 to seek views on different elements of the Scheme.[2] A seminar on criminal injuries compensation was held in February 2017 to discuss some of the issues raised in more detail.[3]

Criminal justice seminar

Victims and survivors at the criminal justice system seminar explained that their experiences of reporting abuse to the police in recent years were positive when compared with their contact with the police in previous decades.[4] However, those contributing to the seminar highlighted key issues arising from their experience of reporting the abuse they suffered to the police.

The Inquiry heard that victims and survivors can face a harrowing and lengthy journey through the criminal justice system due to its complexities. For example, the process of getting a case to trial can last a long time ‒ routinely over a year ‒ and the professionals involved in a case may change. This can mean that victims and survivors are asked to repeat their evidence ‒ and relive the abuse ‒ over and over again.

Seminar participants also explained that communication can break down when cases are delayed or complex. They described how regular and accurate communication is crucial to avoid victims and survivors feeling anxious and distressed, and re-experiencing feelings (such as a lack of control and isolation) from when the sexual abuse took place. The positive impact of intermediaries and Independent Sexual Violence Advisers (ISVAs) who provide support to victims and survivors was also raised, although concerns were expressed about the number and availability of both across England and Wales.

The entitlements set out in the Ministry of Justice’s Code of Practice for Victims of Crime (‘Victims’ Code’) were widely supported at the seminar. The Victims’ Code sets out what victims and survivors of crime are entitled to expect from different agencies involved in the criminal justice system.[5] However, seminar participants explained that implementation of the Victims’ Code is variable and some referred to a “postcode lottery”.

Seminar participants described victims and survivors not being offered therapy and counselling in advance of their trial, to which they are entitled under the Code, due to concerns that it might undermine the prosecution. Participants also indicated that victims and survivors were being discouraged by the police from seeking compensation through the Scheme, another entitlement in the Code, for the same reason.

I was told by the police officer that was dealing with our case that I shouldn't apply for compensation while we were waiting to go to trial because I could be asked the question. You know, the barrister may suggest that I was doing ‒ in this for the money, and I don't think that should be allowed to happen. It shouldn't be allowed. I think it's disgraceful that barristers are allowed to say, 'You have applied for compensation. Are you doing this for the money?'

Victim and survivor, criminal justice system seminar

These issues relating to the implementation of the Victims’ Code have also been raised in other parts of the Inquiry’s work. The Inquiry is concerned that victims and survivors of child sexual abuse are not consistently receiving the service to which they are entitled under the Victims’ Code.

Recommendation

The Chair and Panel recommend that the Ministry of Justice, Home Office and Attorney General commission a joint inspection of compliance with the Victims’ Code in relation to victims and survivors of child sexual abuse.

The Victims’ Commissioner should be consulted on the inspection approach to ensure that it is fully informed by the experiences of victims and survivors of child sexual abuse.

Criminal injuries compensation seminar

The Scheme compensates victims of violent crime in England, Scotland and Wales.[6] It is administered by the Criminal Injuries Compensation Authority (CICA) under rules set out in legislation by the Ministry of Justice.

During the criminal injuries compensation seminar, participants highlighted a range of barriers faced by victims and survivors of child sexual abuse when they have tried to apply for compensation.[7] In particular, they explained that there are several eligibility criteria that have an unfair impact on victims and survivors.

The first issue identified by participants related to consent. Under the rules in place at the time of the seminar, a victim and survivor would not be eligible if they were considered to have consented ‘in fact’ to the sexual abuse. As pointed out by those at the seminar, this meant that victims and survivors of child sexual exploitation were having compensation claims refused because they were deemed to have consented to the sexual abuse they had suffered. Since the seminar took place, CICA has announced that the detail of each case will be examined to ensure that victims and survivors of child sexual abuse who are groomed or exploited are not refused compensation on this basis.

CICA’s rule on unspent criminal convictions was also raised at the seminar. Following changes to the Scheme introduced in 2012, anyone with an unspent criminal conviction is excluded from claiming compensation (except for particular types of crime that are settled out of court). CICA can make the award if it considers there to be exceptional circumstances.

Research shows that some victims and survivors of child sexual abuse may commit criminal offences that can be directly attributed to the abuse they suffered.[8] This can be offending behaviour encouraged by a grooming abuser, or that follows the abuse they suffered and is completely out of character for that individual. Many of the organisations responding to the Inquiry’s issues paper noted that CICA’s rules on unspent convictions are unfair and penalise victims and survivors of child sexual abuse. One respondent noted that “The 2012 Scheme rules out those with certain convictions no matter how they came about.”[9]

The Inquiry considers that the current rules about criminal convictions are unfair to victims and survivors of child sexual abuse and fail to recognise that the abuse may have led directly to their offending. Given what is known about the effects of child sexual abuse, the Inquiry considers it essential that CICA considers the nature and context of an applicant’s criminal history before making its decision.

More broadly, the Inquiry welcomes the steps CICA is already taking to increase the knowledge and understanding of its staff in relation to child sexual abuse but recommends that more should be done. Applications for compensation in relation to child sexual abuse can raise complex issues that require careful consideration and sensitive decision-making. The evidence provided by CICA confirms that it is aware of this, yet it indicates that applications relating to child sexual abuse are handled by the general pool of CICA caseworkers.

 

Recommendations

The Chair and Panel recommend that the Ministry of Justice revises Criminal Injuries Compensation Authority (CICA) rules, so that awards are not automatically rejected in circumstances where an applicant’s criminal convictions are likely to be linked to their child sexual abuse. Each case should be considered on its merits.

The Chair and Panel recommend that CICA ensures that claims relating to child sexual abuse are only considered by caseworkers who have specific and detailed training in the nature and impact of child sexual abuse.

Lastly, there was discussion at the seminar about the ‘same-roof’ rule. When the Scheme was introduced in 1964, it specifically prevented victims and survivors from receiving compensation when they were living under the same roof as their assailant. This was to prevent the assailant from benefiting from the award. The Scheme was amended in 1979 to abolish the rule where a prosecution had taken place (or where there were good reasons why it had not), but this change did not have retrospective effect. In other words, the ‘same-roof’ rule continues to apply where the incident occurred before 1 October 1979.

Seminar participants told the Inquiry that the application of this rule was unfair and arbitrary. For example, one seminar participant highlighted a case where one sibling was entitled to compensation and the other was not. It was noted that the rule has a particular impact on cases of child sexual abuse, given that many victims and survivors will wait a long time before deciding to come forward.

The Inquiry agrees that the rule is unfair to those whose abuse occurred before 1979. However, it also recognises that CICA will face significant practical challenges in considering cases prior to that date, and that there is a risk of encouraging speculative applications. As a result, the Inquiry’s recommendation enables victims and survivors who have previously been denied compensation on these grounds to reapply. The Inquiry recognises that the recommendation will not benefit those who have not previously made an application.

Recommendation

The Chair and Panel recommend that the Ministry of Justice revises CICA rules so that all applicants who previously applied for compensation in relation to child sexual abuse ‒ but were refused solely due to the ‘same-roof’ rule ‒ should be entitled to reapply for compensation and have their claim approved by CICA.

Next steps

During the course of 2018, the ‘Accountability and reparations’ investigation will continue to examine the effectiveness of criminal injuries compensation and how it sits alongside arrangements for seeking financial awards in civil courts.

References

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