25. The CICA is an independent executive agency funded by central government, with responsibility for making awards of compensation to victims of violent crime.
26. Applications for compensation are considered under the Criminal Injuries Compensation Scheme (the scheme). The first scheme was set up in 1964 and was administered by the Criminal Injuries Compensation Board. The Criminal Injuries Compensation Act 1996 created the CICA and placed the scheme on a statutory footing. The scheme has since been updated in 2001, 2008 and 2012.
27. Awards by the CICA differ from CCOs. They are publicly funded, rather than paid for by convicted perpetrators, and may be made to victims whether or not there has been a successful criminal conviction.[1] They are only made where compensation is not available by other means.[2] They may also be significantly lower in value than the compensation payable in successful civil claims.
28. In September 2018, the government announced a review of the scheme in order to improve access to compensation and consider how the scheme might better serve victims, especially victims and survivors of child sexual abuse. The review is expected to report in 2019 with recommendations for reform.[3]
29. A number of victims and survivors in the case studies told us that they were unaware of the availability of criminal compensation under the scheme.
29.1. AR-A194, who told us that he had not previously disclosed his abuse to anyone, never made a claim for criminal compensation. He explained that he was totally unaware of the scheme’s existence.[4]
29.2. AR-A3, who was unaware that there had been criminal convictions arising from Forde Park until 2017, also said that he did not know that the scheme existed.[5]
30. In recent years the government has attempted to improve the support and services offered to victims of crime.
31. The Victims’ Code makes clear that victims are entitled to apply for compensation under the scheme, and provides information on how to do so.[6] However, it is not clear that the Victims’ Code has improved awareness of the scheme amongst victims and survivors. Melissa Case told us that awareness of the Victims’ Code is “pretty low” and that it is “perhaps for a layperson not terribly accessible”. As a result of this, the government published the Victims Strategy in September 2018. Its aims include improving the accessibility and awareness of the Code.[7]
32. Information about the CICA and the scheme is also available online at GOV.UK and the Victims’ Information Service. Linda Brown, Chief Executive of the CICA, also told the Inquiry that the CICA works with stakeholders in various victims’ organisations to help promote the scheme and educate them about it so that they can help victims and survivors.[8]
33. Victims and survivors also rely on the police to signpost their entitlement to compensation under the scheme. This is particularly important given that the police may be the first, and sometimes the only, recipients of reports of abuse, and given there are time limits for making applications to the CICA.
34. One of the issues that arose in the case studies was the consistency with which the police raised awareness of the scheme with victims and survivors, particularly in the 1990s and early 2000s when several of the criminal investigations took place.
34.1. Neill Anderson said that, based on the recollections of retired North Wales Police officers and the limited documentation now available, it appeared that officers did not proactively mention compensation to victims and survivors in the 1990s. However, if asked about it, they would indicate that it could be discussed at the conclusion of the criminal case.[9]
34.2. Serena Kennedy said that the policy of Merseyside Police during the St Vincent’s investigations that concluded in 2003[10] was that officers should not discuss CICA or civil compensation with victims and survivors. A helpline card was provided to victims but she was not able to identify whether the helpline gave information on the compensation available.[11]
35. It appears that, as with civil compensation, there may have been concerns in the past that any criminal proceedings could be undermined by accusations that the victims and survivors had fabricated allegations to obtain compensation. Daniel O’Malley said:
“My view about this was very simple: we would do what we could at the end to assist claimants to go through the process of CICA applications. We would not offer it up at the outset. If they asked, we wouldn’t be dishonest with them, we would tell them that it existed, but I was conscious of trying to put it … ‘on the back burner’ … I didn’t want to run the risk, the potential for undermining the very reason that my part of the inquiry existed, which was to give effect to a proper and thorough criminal investigation.”[12]
36. These past practices may have changed since the publication of national guidance in 2013 by the College of Policing.[13] This guidance is not mandatory but it is taken into account by police forces.[14] It makes clear that applications to the CICA for awards should not be delayed until the conclusion of a criminal investigation or trial. However, the guidance assumes that victims are already aware of the scheme; it does not require police officers to be proactive in raising the scheme’s existence.[15]
37. The Ministry of Justice also published a leaflet entitled Information for Victims of Crime[16] in 2013 for use by police forces in the delivery of entitlements under the Victims’ Code.[17] The current version of the leaflet tells victims that they may be eligible for compensation from the CICA and provides information on how to apply. The CICA also works with police forces to ensure that they advise victims and survivors about the time limit for applications to the CICA, and that they should not wait until the conclusion of criminal proceedings to apply.[18]
38. The Victims’ Code states that victims and survivors are entitled to receive written information on what to expect from the criminal justice system, such as the Information for Victims of Crime leaflet. Victims and survivors should usually be provided with written information on how to seek compensation from their first contact with the police, or within five working days thereafter.[19]
39. The six police forces involved in the case studies, and the National Crime Agency, said that they do now generally signpost the issue of criminal compensation to victims and survivors. However, there remains some variation in when and how this may be done, either verbally or in writing by, for example, letters or leaflets.[20] This may reflect the autonomy of local forces and their ability to develop their own policies and guidance to reflect the needs of their local communities.[21]
40. Emma Barnett, Assistant Chief Constable of Staffordshire Police and Lead for Victims and Witnesses in the National Police Chiefs’ Council, accepted that there is variation in how police forces approach referrals for criminal compensation. She told us that this is dependent on the relationships and discussions between police officers and victims.[22] She also acknowledged that there may still be some concern among police officers that the issue of compensation may be used to undermine a victim’s credibility at the criminal trial.[23]
41. A number of victims and survivors were not sure about the process of making a CICA claim, or doubted whether they could be successful.
41.1. AR-A31 said that his former solicitors may have given him advice about the possibility of making an application but that he did not know what the process involved and was not sure that any application would be successful.[24]
41.2. AR-A2 said that he had not been informed about the availability of CICA compensation during the criminal trial. His solicitors in the civil claim made him aware of the scheme and it was also mentioned to him by police investigating an unrelated matter. He said that he did not make an application due to a lack of knowledge about the CICA scheme.[25]
41.3. AR-A79 did not make an application for criminal compensation. He was not sure how to make such a claim and was sceptical that he would be believed.[26]
42. Some victims and survivors may not want compensation. For example, AR-A9 told us that he has not sought any form of compensation as he does not believe that money could compensate for:
“the lives we lost whilst in care and the psychological and physical scars we still carry with us. I will always be haunted by the memories of Forde Park and compensation will not make them go away.”[27]
Others declined CICA compensation as they had already received larger sums in civil compensation.[28]
43. There is a general two-year time limit from the date of the incident of sexual abuse to make an application to the CICA. Under the current scheme, this may be extended where:
44. Many victims and survivors feel unable to report that they were sexually abused when they were children, and will therefore exceed the time limit. Linda Brown said that the CICA “are respectful” of the issues around disclosure of non-recent child sexual abuse “wherever we can”, and referred to guidance on making exceptions to the two-year rule. She told us that, over the 18 months prior to the hearings, the CICA have done more work with their staff to “help educate them around the experience of victims of historic child sexual abuse”, in order to “try and help educate our staff to be more confident in exercising the discretion they have around the two-year rule”.[30]
45. Victims and survivors may also be late making applications as the police do not always inform them of their right to criminal compensation while criminal investigations and trials are ongoing. This contributes to the risk of applications being made out of time.
46. During Operation Mapperton, Daniel O’Malley recognised this risk and took the initiative of agreeing with the CICA that the time limits would not be automatically imposed.[31] Craig Turner called this agreement a gold standard but explained that it probably would not be made today as the Metropolitan Police now adhere to the College of Policing guidelines. He also pointed out that there is a distinction between large, complex investigations such as Operation Mapperton and individual cases which should be dealt with on a case-by-case basis.[32]
47. Emma Barnett was asked whether or not it would be sensible for the police to agree a policy with the CICA, so that the time limit is suspended whilst active investigations are ongoing. She said that it could be discussed with the CICA, although she referred to the discretion to extend the time limits as happened “from time to time”.[33] Linda Brown and Melissa Case agreed that the current review of the scheme provided the opportunity to look at the “exceptional circumstances” provision again.[34] While Linda Brown did not have experience of the Operation Mapperton moratorium, she said this was something that could be considered.[35]
48. Applications were originally made in writing, on a form obtainable from the CICA. It is now possible to make the application online or on the phone.[36] There is no public funding available to assist applicants either to make an application or to appeal against a decision.[37] Melissa Case told the Inquiry that the process is relatively straightforward, guidance is available and the CICA is able to provide assistance where required.[38] Assistance with applications may be available from solicitors (who will ordinarily be paid if an award is made), charitable organisations such as Citizens Advice, the police or local independent sexual violence advisers (ISVAs)[39] who provide support, advice and help to victims and survivors of sexual violence.[40]
49. AR-A26 told us that the application paperwork seemed straightforward.[41] However, Peter Robson said that he found the process difficult.[42] So too did AR-A1: it “felt very matter of fact, very disengaged to what I was experiencing, because it was just all facts and figures”.[43] Linda Brown reported feedback from applicants more generally that they do not always understand the questions put to them. She said that the CICA was in the process of reviewing and simplifying the application form.[44]
50. There did not appear to be a consistent, national, police policy on providing direct assistance to victims and survivors. Philip Marshall said that the National Crime Agency does not help with filling in forms,[45] although he recognised that more support could be given.[46] Deborah Marsden told us that Devon and Cornwall Police’s Victim Care Unit and ISVAs may provide support completing the CICA form.[47] Neill Anderson and Serena Kennedy both also referred to assistance provided by ISVAs.[48] Craig Turner said that, at some point during criminal investigations, Sexual Offence Investigation Technique officers would take victims through the forms.[49] David Orford said that he would expect all of the officers in Durham Constabulary to help with the forms in circumstances where it becomes apparent that the applicant is having difficulties.[50]
51. A small number of victims and survivors said that they would have benefitted from some assistance at the review or appeal stage. For example, Robert Balfour said that he felt unable to challenge his award because of lack of advice:
“A free specialist legal advice service and access to medical experts to write clinical reports would have vastly improved my experience of CICA.”[51]
Similarly, AR-A23 made a claim with the assistance of Citizens Advice, although she did most of the application herself. She was awarded £6,000, which she did not think was enough. With the benefit of hindsight, she wishes she had received more advice and had applied for a review or appealed the decision.[52]
52. The decision to make an award is made by a CICA claims officer, who considers whether, on the balance of probabilities,[53] the evidence makes it more likely than not that a compensatable crime has occurred. That decision is then set out in writing,[54] which provides a “gist” of the evidence on which it is based.[55]
53. An applicant can apply for a review of this decision,[56] which is then carried out by a different claims officer.[57] If an applicant is dissatisfied with the outcome of a review, they can appeal the decision to the First-tier Tribunal (Criminal Injuries Compensation), previously the Criminal Injuries Compensation Appeals Panel, which is administered independently by Her Majesty’s Courts and Tribunals Service.[58]
54. Peter Robson told us how difficult it can be for a victim of non-recent child sexual abuse to bring a successful CICA claim. He applied for an award based on his account that he had been repeatedly raped at Stanhope Castle by a fellow pupil.[59] His application was rejected, as the alleged perpetrator had not been found and, based on the available evidence, it was not possible to say that he had been a victim of abuse.[60] This occurred despite Detective Constable Dawn Clarke of Durham Constabulary telling the CICA that the lack of corroborating evidence did not mean that he had not been abused.[61] He told us he was very upset that he had not been believed by the CICA.[62] He asked for a review of the decision. Upon review, it was decided that there was sufficient evidence to come to a different conclusion, and he was awarded £22,000 shortly before he gave oral evidence to the Inquiry. He told us that he did not care how much the award was. He was just happy finally to be believed.[63]
55. Linda Brown told us that this case illustrated the evidential difficulties in such cases. She explained that there is “a degree of subjectivity” in relation to the balance of probability test, “no matter how hard we try to establish certain lines of consistency”. She accepted that, sometimes, the CICA “get the balance of probability decision wrong”, and explained that the review process provided a safeguard. In this case, she explained that a review of the evidence, together with Peter Robson’s request to review the decision, was sufficient to come to a different decision.[64]
56. Linda Brown stated that, since the Inquiry’s Interim Report[65] (discussed further below), the CICA has “formed a number of partnerships with third sector victims’ organisations to help build awareness about victim experience and help our people shape their service in a way that supports them better”. She referred to training provided to the CICA’s operational staff by the police and Rape Crisis.[66]
57. The CICA may refuse to make an award to an applicant if:
58. Awards may also be withheld or reduced if:
59. In its Interim Report, the Inquiry considered another rule – known as the same-roof rule – that prevented applicants who were abused before 1 October 1979 from receiving compensation when they were living under the same roof as their assailant.[72] We concluded that this rule was unfair and recommended that the Ministry of Justice revise the 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 the CICA. The government has subsequently introduced legislation which abolishes the rule and implements the Inquiry’s recommendation.
60. The CICA does not make awards to applicants who have unspent convictions (convictions which have not been removed from an offender’s criminal record due to the passage of time) which resulted in a custodial sentence, a community order, a youth rehabilitation order or equivalent sentences.[73]
61. Previous schemes gave the CICA discretion to make full or reduced awards to applicants with certain criminal convictions.[74] This discretion was removed in the 2012 scheme, based on government policy that people who have themselves committed crimes should not benefit from a publicly funded scheme.[75]
62. Several victims and survivors told us that they considered the rule on previous convictions and non-cooperation with the police to be unfair.
62.1. AR-A20 said his claim was rejected on the basis of his previous convictions. He said: “This was absurd. My convictions related to my experiences whilst in care.”[76] He ultimately gave evidence to the CICA and was awarded £8,500. He said that applicants should not be penalised for non-cooperation with the “criminal justice authorities”, and that rejecting claims for criminal convictions “unfairly prejudices victims of sexual abuse who often fall into harmful patterns of behaviour as a result”.[77]
62.2. Similarly, AR-A26’s claim was refused on the basis of his previous convictions. He said: “I couldn’t understand how I could be denied compensation when the things they used against me were as a result of what he had done to me.”[78]
62.3. AR-A78 did not make a claim because he understood that it would be rejected on the grounds of his previous convictions. He said: “I think it is deeply unfair to penalise victims of child sexual abuse with CICA claims for having a criminal record, when having a criminal record is often a direct result of having been abused.”[79]
62.4. Paul Sinclair said he did not make an application as he believed that any award would be reduced due to him having a criminal record. He said:
“I do not understand why my having a criminal record has anything to do with me being abused in care as a child. I think it is very unfair that an award for being sexually abused as a child in care is reduced because a person goes on to have a criminal record. I believe that children who are abused in care often go on to offend because of the abuse that they suffered.”[80]
62.5. AR-A36 applied for a CICA award, but the CICA assessed that his damages of £6,000 for abuse from Colin Dick and £6,000 for abuse from Keith Sutton should be reduced by half, due to his own criminal convictions. AR-A36 explained to us that he ran away from abuse in care and stole jewellery from a travelling family because he “needed to survive”. He was delighted when he got some compensation because he felt that “it proved a point”, that the CICA agreed that the crimes against him had been proven.[81] He considered, however, that the CICA should be reformed to reflect that some children only offend because they have suffered abuse whilst in the care of the authorities.[82]
63. Melissa Case accepted that the case of AR-A36 was “a stark example” of where offending is related to the abuse. She also said that there had been other examples that witnesses had raised, and that “very powerful evidence” had been put before the Inquiry.
“It is now one of the key tenets that we are going to look at under the review the Secretary of State announced and obviously the evidence from this inquiry will be part of that … I think we have to think about whether our understanding of the impact of child sexual abuse particularly has moved on. I mean, I think there are, in the whole field of offending, we know a lot more about the causes and reasons for offending, so I think the other thing we need to bear in mind is that there are probably a significant amount of other examples of where it could be said that the state failed people and that led to their offending. And potentially, opening up this eligibility criteria starts to open up a much wider set of questions, so all of those, in public policy terms, need to be balanced.”[83]
64. The CICA awards compensation for sexual abuse based on a tariff, set out in the scheme.[84] (There are also additional categories of loss allowed under the rules, such as financial losses.)
65. There is a range of tariffs for sexual offences against children, based on the seriousness of the offence and the impact on the victim. The levels of awards have increased over the years, but they are still modest. The current level extends from £1,000 for minor, non-penetrative, sexual, physical act(s) over clothing, to £11,000 for one incident of non-consensual penile penetration of the vagina, anus or mouth (with an increase for repeated incidents up to £22,000). Where the abuse results in serious mental and physical illness, awards can go up to £44,000.[85] For separate criminal injuries, an award is made up of the full tariff of the highest value injury and 30 percent of the tariff for the next injury.[86]
66. The scheme includes provision for damages for other losses, including loss of earnings and expenses incurred as a consequence of the injury. The loss of earnings calculations contain stringent rules which only arise after 28 weeks out of work and require the applicant to have no capacity for work,[87] calculated by reference to statutory sick pay rather than actual earnings.[88] Previous schemes allowed loss of earnings payments by reference to industrial standards which were more generous to applicants.[89] There is also an overall maximum compensation cap of £500,000, a figure that has remained the same since 1996, without any allowance for inflation.[90]
67. Melissa Case told us that there was presently no political appetite for increasing the levels of awards available from the CICA. However, she did acknowledge that these would be looked at as part of the comprehensive review of the scheme that was taking place.[91]