Baroness Scotland of Asthal (Minister of State, Home Office; Labour)
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 53.
The amendment adds new Clauses 7A to 7D, to the Criminal Injuries Compensation Act 1995, to give the Criminal Injuries Compensation Authority—the CICA—the power to recover from offenders the compensation that it has paid to their victims. This proposal is one of several set out in the consultation paper, Compensation and Support for Victims of Crime, issued on
We want to make offenders liable to reimburse the CICA for any money that it has paid out to the victim. The CICA will be able to pursue the offenders through the civil courts for that money. The clause provides an enabling power and sets out some of the parameters of the proposed arrangements, but the more detailed arrangements would be made by regulations under the Bill's enabling powers.
I am happy briefly to summarise the proposed provisions. After Section 7 of the 1995 Act there would be inserted new Clauses 7A to 7D. First, that sets out that the Secretary of State may by regulations make provision for the recovery of an amount from an offender, equal to or part of the compensation paid to a victim in respect of a criminal injury. It makes it clear that recovery will be possible only when the offender has been convicted of the relevant offence in the criminal courts. Such a conviction will establish that the offender was indeed guilty of the offence which led to the victim's injury, and this will obviate the need for CICA to establish liability in the civil courts.
The proposed arrangements will require the CICA to serve a recovery notice on the offender, setting out the amount of liability, the reasons for the determination and the basis on which it has been determined how it must be repaid and how the offender can object, if he contests either the amount recoverable or that he is not the person from whom it should be recovered. The information that must be contained in that notice is set out in the Bill and is an important safeguard to the offender. It would be the dream ticket for the noble Baroness, Lady Anelay, because it answers all her questions.
If the offender objects, the arrangement provides that the CICA must formally review that objection and that the review must be conducted by a person other than the one who took the original decision to issue a recovery notice. That is another important safeguard. After review, or if no objection is lodged and assuming no payment is made, the CICA may then initiate recovery action through the civil courts. In practice this means that it may seek to recover the money by normal debt recovery action. Such action will give the offender a further opportunity to object on the grounds set out on the face of the Bill. That is another important safeguard. Amendments Nos. 104 and 105 make a consequential change to the Long Title of the Bill to make it clear that the Bill now includes provision about the recovery, by the CICA, of compensation from offenders.
I should make it clear that these provisions do not take anything away from the rights of a victim or in any way compromise their ability to obtain appropriate redress. A victim will still have the right to sue the person who harmed them for compensation through the civil courts. What we want is to give the CICA a power to get back from offenders the money it has paid out in compensation to their victims, and we want it to use this power whenever there is a realistic chance of making a net recovery of public funds.
Fuller details of the procedure will be set out in regulations (for affirmative resolution). Parliament will accordingly have an opportunity to consider more of the detail when those regulations are laid before it. The compensation recovered under these arrangements will go back to the CICA so it can be used to pay compensation to other victims of violent crime. I am sure noble Lords will agree it is right that, whenever possible, offenders should be made to pay for the consequences of their crimes. I therefore commend the new clause to the House.
I turn swiftly to the amendments in the name of the noble Baroness, Lady Anelay of St Johns. The first of these amendments seeks to clarify the liability of each attacker when two or more of them are jointly responsible for causing the injury for which the victim has received compensation from the Criminal Injuries Compensation Authority. The amendment aims to make it express that each attacker is liable only for the proportion of the damage (or injury) he caused.
We do not think it is necessary to make this amendment to achieve that underlying aim. While the present provision is drafted in the singular, it does not mean that the words do not embrace the plural. In fact, we envisage that there may well be cases where multiple offenders cause injury which leads to compensation under the Criminal Injuries Compensation Scheme. Indeed, there could also be cases of multiple victims on any one set of facts.
We agree with the sentiment behind the amendment that the doctrine of joint and several liability would not be appropriate in this context. That would mean that where the CICA paid compensation in respect of injuries caused by multiple defendants, the CICA could demand full repayment from any one individual.
According to new Section 7A(3), the amount recoverable from a person under the regulations must be determined by reference only to the,
"extent to which the criminal injury is directly attributable to an offence of which he has been convicted".
Therefore, it would not be appropriate to demand full repayment from one individual if the criminal injury is not directly attributable to their particular conviction.
Much will depend upon the circumstances of the case in question and the facts that are proved or accepted. If the offenders are equally culpable, the CICA will seek to recover an equal share of the compensation from each of them. If one offender seems to be more culpable than the other (or others), the CICA is likely to make a corresponding adjustment of the apportionment. Separate notices would be served on each offender.
The offenders will, of course, have the right to challenge the level of their liability on the basis that the amount was not determined in accordance with the regulations, if they request a formal review by the CICA. They will have a further right to challenge that apportionment in the civil courts when the CICA asks for the debt recovery notice to be enforced.
With such assurances, and with such safeguards already in the Bill, I hope that noble Lords will agree that the further level of refinement they have suggested is not in fact necessary.
The second amendment relates to the information which must be given to offenders in the debt recovery notice requiring them to repay the compensation that the CICA has paid to the victim they injured. New Section 7B(2) lists the information that must be provided in the debt recovery notice and new Section 7B(3) empowers the Secretary of State to change that list of information by statutory instrument, subject to negative resolution. This amendment would require the statutory instrument to be approved by affirmative resolution.
I see no strong justification for that change. The affirmative resolution procedure is, of course, much more demanding of parliamentary time, which is all too frequently at a premium. Any changes to the list of information for a recovery notice are likely to be minor in nature, and the negative resolution procedure seems entirely adequate and appropriate for such minor changes.
The next two amendments would extend the grounds on which an alleged offender could formally request CICA to review either whether he was the right person from whom recovery should be sought, or the amount of the recovery. The new clause sets out the grounds on which such a review may be requested, restricting them to three, of which the one most relevant is that the offender was not convicted of the offence to which the injury was directly attributable. The amendments would seek to extend the grounds to include cases where, fourthly, the conviction for the relevant offence had been overturned on appeal and, fifthly, where the sentence for the relevant offence had been reduced on appeal.
We do not think either addition necessary. For any of the new provisions to bite, the offender must have been convicted of the offence to which the victim's injury is directly attributable. If the case were going to appeal, CICA would wait until the appeal had been heard before seeking to recover money from the offender. If the conviction were overturned, clearly CICA would not seek to recover any money, since it would have no powers to do so.
In the less likely event that a conviction was overturned some time after conviction and recovery of compensation, the offender would of course be entitled to his money back. That could be achieved in a number of ways, of which the most straightforward would be for CICA to make a simple payment. We do not think anything is needed in the Bill to provide for that unlikely event.
If the sentence were reduced on appeal, of course the conviction itself would still stand. Therefore, CICA would quite properly still be able to seek to recover the money that it had paid in compensation to the offender's victim. The sentence itself is not relevant in that context. The offender caused the victim's injury, and CICA will have paid out compensation to that victim—who must have been a blameless victim in order to qualify for compensation under the compensation scheme—and CICA accordingly has every right to try to recover the taxpayer's money.
The last amendment would add to the decision that a person undertaking a review of a recovery determination is empowered to take. At present, new Section 7C(4) proposed in Amendment No. 53 lists four possible decisions; namely, setting the determination aside, reducing or increasing the amount recoverable, or letting the initial recovery determination stand. The amendment would additionally empower the reviewing person to require an amount to be repaid to the offender from whom recovery had been sought.
We think that that amendment betrays a slight misunderstanding of the processes involved. At that stage, CICA will have served an initial recovery notice on the alleged offender. If the offender contests that notice, he can ask CICA to review its initial decision. At that stage, therefore, the offender will not have paid any money to CICA. If the CICA reviewer decides not to proceed with the recovery action or to reduce the amount of recovery sought, there will therefore be no question of CICA paying any money back to the offender. That being the case, the amendment seems to serve no purpose and would not be necessary.
The noble Lord, Lord Carlisle, has been particularly concerned about the issue, not least on how often the provision will be used. I make it clear that the Bill is an enabling piece of legislation, so CICA can decide whether it is appropriate to be used. Noble Lords will have seen in a number of the documents that we issued in relation to victims and witnesses that there was clearly worry about what happens if someone wins the lottery or comes into a great deal of money after moneys have been paid out.
However, a number of victims' organisations—not least SAMM, which deals with the families of murder victims and made the case powerfully clear to me at its AGM a few weeks ago—find it offensive that taxpayers have to pay money in such a way to compensate them, their members themselves being taxpayers. Then they discover that the perpetrator has set up a business, has a huge amount of money or comes into money, and there is no opportunity to get that money back through the CICA or anyone else. Of course we understand that sentiment. This amendment gives the CICA an opportunity to recover money if it deems that it is appropriate, feasible and proper. I beg to move.
Moved, That the House do agree with the Commons in their Amendment No. 53.—(Baroness Scotland of Asthal.)