Clause 38 - Extent

Domestic Violence, Crime and Victims Bill [Lords] – in a Public Bill Committee at 9:45 am on 6 July 2004.

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Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office 9:45, 6 July 2004

I beg to move amendment No. 81, in clause 38, page 20, line 18, at end insert—

'(1A) Section [Recovery of criminal injuries compensation from offenders] also extends to Scotland.'.

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss the following: Government new clause 28—Recovery of criminal injuries compensation from offenders.

Government amendments Nos. 127 and 128.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

The aim of the new clause is to arm the Criminal Injuries Compensation Authority with powers to recover from offenders the money that it has paid in compensation to their victims under the criminal injuries compensation scheme. The new clause would do that by inserting four new sections into the Criminal Injuries Compensation Act 1995, which paved the way to the introduction in 1996 of the present, tariff-based compensation scheme.

The proposal to give the CICA a right to recover money from offenders was one of several set out in the consultation paper ''Compensation and Support for Victims of Crime'', which was issued on 12 January this year. More than 30 respondents commented on the proposal, the overwhelming majority in favour of it. In the light of that strong support, we decided to give effect to the proposal as soon as possible. We aim to make offenders liable to reimburse the CICA for any money paid out to their victims, and the CICA would be able to pursue the offenders through the civil courts for that money.

I will summarise briefly the proposed arrangements. New sections 7A to 7D would be inserted after section 7 of the 1995 Act. They set out that

''The Secretary of State may, by regulations . . . make provision for the recovery of . . . an amount''

from an offender

''equal to all or part of the compensation paid''

to a victim

''in respect of a criminal injury.''

They make it clear that recovery would be possible only when the offender had been convicted of the relevant offence in a criminal court. Such a conviction would establish that the offender was indeed guilty of the offence that led to the victim's injury, which would obviate the need for the CICA to establish guilt in the civil courts.

The proposed arrangements would require the CICA to serve a recovery notice on the offender which would set out: first, the amount of liability; secondly, the reasons for the determination and the basis on which it has been made; thirdly, how the money must be repaid; and fourthly, how the alleged offender can object, if he contests either the amount recoverable or that he is the person from whom it should be recovered.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

Will the Minister make it clear that there is no possibility of an award of compensation to a victim being

contingent on recovery of that sum from the perpetrator?

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I can give an absolute assurance. The CICA would make the payment; then, separately, it would be able to use the new powers to recover the money from the offender. However, the one would not be contingent on the other.

The information that I have just outlined would have to be contained in the notice. That is an important safeguard for an offender. If an offender objects, the arrangements provide that the CICA must formally to review that objection and that that 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. If the offender's objection is unsuccessful, or if no objection is lodged, the CICA can then initiate recovery action through the civil courts. In practice, that means that it will seek to recover the money by normal debt recovery action.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am trying to follow the Minister's comment about people contesting whether they are the right person to pay the sum. One would have thought that, if someone has been convicted of an offence of violence against another, such a contest would be pointless. In what circumstances do the Government envisage an alleged offender contesting whether the order should be made against him?

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I wish to reflect a little on the detail of that but, for example, there may be complications because somebody of the same name has been convicted in court, or two people in the same family might have the same name. That could create confusion, and in those circumstances the person who is not the person from whom compensation should be sought will be able to defend themselves.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

That is an extremely helpful answer, but I want to take this a stage further. It is my understanding that the Minister envisages that in those circumstances a review will be carried out in-house by the Criminal Injuries Compensation Authority, but what if that review still gets the decision wrong? Where does the person concerned get redress under the proposed system if he believes that he is wrongly being required to pay a sum of money?

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

In the civil court. There is an internal arrangement and common sense may well prevail, but if there is a contest that will be resolved in the civil court. I should emphasise that the action will give the offender a further opportunity to object on the grounds set out in the Bill. That is another important safeguard.

Photo of Vera Baird Vera Baird Labour, Redcar

My hon. Friend's last answer has made me think about another situation. If three people are convicted of an offence, will the compensation ordered to be paid to their single victim be apportioned among them, or will each be jointly and severally liable for all of it?

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

Again, I wish to reflect a little on that question. However, the compensation cannot exceed the sum paid out by the criminal injuries compensation

scheme. Therefore, I assume that the full amount that has been paid out is all that can be recovered, and that that would be apportioned between the three parties. However, if my hon. and learned Friend will forgive me, I will not get into a debate now on an issue that I need to reflect on.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

That raises another important issue. I do not expect the Minister to answer the question, but where there are co-defendants who are jointly responsible, will the total compensation be apportioned according to an assessment of the contribution of each of them to the injury, or will it simply be apportioned equally between those who are held jointly responsible for the crime? We are getting into complicated areas and we need clear advice about how these things will work.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I shall provide more precise advice, but the answer clearly depends on the circumstances of the case.

Amendment No. 81 is a consequential amendment to clause 38 to make it clear that new clause 28 extends to Scotland. We will need to make a slight further amendment to the new clause to reflect the fact that the Limitation Act 1980, to which clause 7D(4) of the new clause refers, does not apply in Scotland: the relevant Scottish legislation is the Prescription and Limitation (Scotland) Act 1973, and we need to add an appropriate reference to it. We will make that necessary technical adjustment on Report.

Amendment Nos. 127 and 128 make consequential changes to the long title of the Bill to make it clear that it now includes provision about the recovery by the CICA of compensation from offenders. Those provisions take nothing away from the rights of victims or compromise victims' ability to obtain appropriate redress. A victim will still have the right to sue the person who harmed them for damages through the civil courts. Our intention is to give the CICA a power to get back from offenders the money that it has paid out in compensation to their victims under the compensation scheme. The details of those procedures will be set out in regulations, and they will be updated in the light of experience. All such regulations will require the affirmative resolution.

Any compensation recovered, less the costs of recovery, will go through the Consolidated Fund and back to the CICA, which will then be able to use the money to pay compensation to other victims of violent crime. The money will not be kept in the Treasury. I am sure that the Committee would agree that it is right that, wherever possible, offenders be made to pay for the consequences of their crimes. That being the case, it must also be right for the CICA to be armed with the necessary powers to get compensation back from offenders.

Photo of Joe Benton Joe Benton Labour, Bootle

Before I call the next speaker, I want to mention something for the Committee to be thinking about before we get to it. Very shortly we will come to a series of new clauses, which I understand the Clerk has discussed with different bodies. I propose to put new clauses 18 and 19 together and to take new clause 20 separately, because I understand that it may be opposed. Then we have to

deal with new clauses 21, 23 to 29 and 35 to 38. New clauses 43 and 44, which are a little further on, will also be taken together. If there is any problem with that suggestion, will hon. Members please let me know during the next couple of debates?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 10:00, 6 July 2004

Thank you, Mr. Benton.

Let me say at the outset that the principle of what the Minister is seeking to achieve in new clause 28 will command acceptance across the Committee and, indeed, on both sides of the House. Therefore, I hope that he will excuse me if I examine the proposal in a little detail, because good intentions can have unintended consequences when they are translated into statute, and there are one or two issues on which I would like to get clarification.

As the Minister is aware, the proposal has been introduced at a late stage of the Bill's passage, so there has not been the opportunity to consider carefully its implications. I apologise to him if I raise issues to which he knows the answers. Has an assessment been made of the likely financial benefits that will flow from the proposal? We know that a large proportion of offenders—by no means all—come from a category of individuals who lead chaotic lifestyles and have few financial resources. Often, therefore, the chance of recovering any sensible sum will be small, but the resources that have to be put into achieving recovery may be considerable until one ascertains that the person does not have any money that one can lay one's hands on. Has an assessment been made of the cost effectiveness of the proposal? I realise that that might be a difficult thing to do, but one would hope that someone within a Department has done a few forward projections and estimated what the measure will generate. Without that, there is a serious danger that we could end up with a sum recovered that is neutral or negative when balanced against the resources that need to be put into the process of recovery. I would be grateful if the Minister could help me on that.

The Minister said that the money would not be kept in the Treasury, but will the Treasury keep the interest on the money that is acquired, or will the benefit of that also go to the fund in order to build it up? I would be grateful if the Minister told us about that. In my experience, the interest on money held tends to be important, especially when the sums are large. It would be useful for the Committee to know what will happen in that respect.

Some of the nub issues were touched on in interventions. In a straightforward case, if a person had been convicted of bludgeoning another with a piece of wood and was serving a term of imprisonment, but had a car and a house waiting for him on his release, one would expect few problems if action was taken to recover the assessed sum to compensate the victim; but if there are co-defendants, will the liability be joint and several, or joint, so that there has to be apportionment? How will the determination system work?

What happens if a person does not like how the review of a recovery determination has been carried out? The Minister told me that in such cases, there

would be a contest in the civil courts, which surprised me, because if as a result of a review a debt is established as being due and owing from a person as if it were under a civil judgment, the matter of whether it is owed will not subsequently be reviewed by the civil courts. In such circumstances, the only mechanism open to a person would be a judicial review of the recovery determination. Can the Minister clarify that? It is important for the Committee to understand the mechanisms.

On damages from the civil courts, the Minister said that a person would not be prevented by the scheme from seeking damages from the offender concerned under ordinary civil recovery provisions for tort. However, if that person does so, how will it affect the situation in respect of the board? Let us suppose that the compensation scheme has paid £500,000 to a person who has suffered serious, traumatic injuries and been left permanently handicapped. The scheme would recover that money from the offender, but what happens if the person brings civil proceedings against the offender? Will the offender pay out a second time under the civil recovery mechanism, or is something else envisaged? It would be helpful if the Minister clarified that, because it is not clear in the Bill.

Subject to those comments, I welcome the broad principle.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

I apologise to the Committee for being late. I was carrying out parliamentary duties in Edinburgh and although I left at quarter-past five this morning, it was insufficiently early to get to the Committee on time.

I have no problem with the principle behind the proposal, but a lot of thought needs to go into the implementation. My principal area of concern has been outlined in interventions and by the hon. Member for Beaconsfield (Mr. Grieve). There is a real problem with the apportionment in cases involving co-defendants who have been found guilty of offences that constitute an assault, for example. The Minister made it clear that the amount sought in compensation could not exceed the amount given to the victim, so we have a quantum of compensation.

Given that it would be manifestly unfair if the compensation were to be recovered from only one co-defendant, there is a need for apportionment, but who is to do that, and on what grounds? Will the authority accept that where several people are jointly responsible for injuries, the compensation sum should be shared out arithmetically, or will there be an attempt to establish who was responsible for a particular kick, or blow to the head, and so on, that caused the injury for which compensation is paid? If the latter, there will be a complex process of arbitration that will almost certainly be challenged, and we will be entering a new area. As I said, although I have no difficulty with the principle, I believe that implementation will be difficult.

I am insufficiently knowledgeable about whether there are criminal offences occasioning compensation through the criminal injuries compensation scheme that could be caused by a corporate body rather than ''a person'', meaning an individual. I am trying to

think of an instance. Many of us have long argued that there should be an offence of corporate manslaughter, but we have not quite got there yet. Should there be provision for bodies corporate, or are they covered by the word ''person'', meaning a legal person? Perhaps the Minister can assist me with that.

The Minister may also be able to tell us whether the Home Office has any intention of amending the terms of the criminal injuries compensation scheme. There is a great deal of concern outside the House that plans are afoot to remove the lower bands from the scheme. Many are extremely concerned about the effect that that will have on victims. It would be a most retrograde step if that were to be combined with this measure in a way that purports to assist the victim, but in fact assists only the Treasury.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I refrained from raising that issue, because it was not directly germane to the amendment. However, I, too, would be delighted if the Minister took this opportunity to clear up the matter.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

The hon. Gentleman was much better behaved than I in deciding that the matter was not germane to the amendment. It would be helpful if the Minister was as explicit as possible on the subject. If there are proposals for change, the sooner the House knows about them the better. Many people will be concerned if there are to be retrograde moves, as we suspect there will be.

I look forward to hearing what the Minister says, and acknowledge that he might wish to deal with apportionment in writing and explain more fully on Report. I would entirely accept that, if it were necessary, because we seem to have raised issues that have not yet been thought through—or if they have, the results of that thought have not yet been communicated to the Minister.

Photo of Vera Baird Vera Baird Labour, Redcar

I, too, welcome the proposal, and have some queries that are closely related to each other.

The criminal injuries compensation scheme has its own internal appellate structures and they are often used for issues of quantum. It can take a considerable time to settle on the appropriate payment to a victim because the authorities have to look at issues such as how long the trauma lasted and the extent of the injury. I have noted that the limitation period does not start until compensation is paid. After that, the state may embark on the job of recovering from the perpetrator the compensation that is to be paid. I heard clearly in the reply given earlier that there is no contingency in terms of getting the amount. I would like reassurance that there is no question of the victim waiting until the action against the perpetrator is triggered and completed to receive her payout, as that could be a long wait.

Another issue, which is closely linked, is the right—proper, I suppose—of the perpetrator to seek a review under proposed new section 7B. Under subsection (2)(e) of that new section, there is provision for review of both the determination that an amount is recoverable, and the amount determined to be recoverable. Therefore, the review can be not just

about whether the person is the right chap, which is all that we thought of under proposed new section 7B(1), but about the amount to be recovered from him. What is that about? Is the provision only about apportionment, so that if there are two sums and the claims officer has said that the person should pay all of it, it can be argued that he should pay only half? Is that what the right to discuss the sum on review is about? I would not want it to be about any reopening of the quantum that the CICA has already decided should be paid out to the victim, because that will have been fixed and settled, and it ought to have been paid out by the time that this stage is reached. It would greatly concern me if, ex post that occurring, the perpetrator were able to bring forward fresh medical evidence to suggest that the victim was not as traumatised as she had suggested, or anything of that kind.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 10:15, 6 July 2004

Proposed new section 7D(2)(b) refers to the defence

''that the compensation paid was not determined in accordance with the Scheme''.

That raises the possibility of saying that there has been a poor or wrongful determination of the amount. How far that extends is difficult to tell.

Photo of Vera Baird Vera Baird Labour, Redcar

The hon. Gentleman is echoing my wish that it should be made completely clear that once somebody has got their award it will not be changed by the intervention of the perpetrator, when what is intended is only to recover the award that has been made from him.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

There have been a number of interesting questions. I compliment the hon. Member for Somerton and Frome (Mr. Heath) on looking remarkably fresh after a 5.15 am start from Edinburgh.

I am grateful to the hon. Member for Beaconsfield for making it plain from the outset that he had no quibble with the principle of the proposal but wanted to raise some issues of detail. That is what Committee is supposed to do. He mentioned again that the proposals were brought forward at a late stage. We have rehearsed the reasons for that on a number of occasions, but it is worth repeating that that was because there was a consultation that began in January and concluded only earlier this summer. We were able to respond to that on Second Reading, and I am pleased that we can use the Bill as an opportunity to advance this set of proposals.

The hon. Gentleman asked about the financial benefit that might accrue from the measure. I assure him that cases will only be pursued where the value of what is recovered exceeds the cost of recovering it—in other words, where there is a net gain from the process. Decisions will sometimes reflect the ability of the individual to pay, and at other times the amount of money that we are seeking to recover. However, nothing is recovered at present; as soon as we implement these procedures, more money will be raised and more money will be made available to the CICA. I also assure the hon. Gentleman that the Treasury will keep neither the money nor the interest

that will be added to the money that is paid into the Consolidated Fund.

The hon. Gentleman and others raised a number of questions about the civil courts. An offender will be able to raise the defences set out in proposed new section 7D in enforcement proceedings in the county court or the sheriff court. He can contest on the grounds that he has not been convicted of the offence,

''(b) that the compensation paid was not determined in accordance with the Scheme; or

(c) that the amount determined as recoverable from him was not determined in accordance with regulations under section 7A.''

I say to my hon. and learned Friend the Member for Redcar that there could be a challenge to the amount that has been determined on the grounds of apportionment, as in the example that she gave, or the argument could simply be that the figures are wrong. However, I give her an absolute assurance that that could not lead to a reopening of the question of quantum—in other words, to a reopening of the case. That cannot happen. All we are talking about is the CICA being able to recover money after it has paid out a sum as an award. It will be possible for the offender to challenge things through the civil courts in the way that we are setting out, but it will not be possible for the original case to be reopened.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I have another question for the Minister. The answer must be obvious, but it is not made obvious in the provisions. What will happen where someone is convicted of an offence, several tens of thousands of pounds in compensation is paid to the victim, the sum is recovered from the convicted person, and three years later the Court of Appeal overturns his conviction? I assume that at that point he will get his money back, but the clause does not make provision for that. Although that might not happen very often, we can say with certainty that it will happen at some point.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

The hon. Gentleman makes an interesting point that I shall have to think about further. It appears to be logical that where someone's conviction is overturned the amount that has been recovered should be paid back, but I shall check that and write to the hon. Gentleman. If he has put his finger on a difficult issue, he will see on Report that we have taken account of his point.

Just to finish my remarks on the civil courts, an offender will be able to challenge the CICA's assessment before a tribunal with full jurisdiction, as is required by article 6 of the European convention on human rights.

On the apportionment question, I emphasise again that that will depend on the specific case being dealt with. However, I repeat that the amount claimed back cannot exceed the amount that has been paid out as an award. For example, where £1,000 compensation has been to the victim, and the award is of £2,000, the CICA will claim the difference between the two: £1,000. It will not be possible to exceed the full amount. I am happy to write to hon. Members in a little more detail about apportionment if that would be helpful. My hon. and learned Friend the Member for

Redcar is clearly concerned that the victim could lose out because of the additional step in the process, but I emphasise that it is a further step beyond the existing system. These proposals will not in any way delay the process by which the victim is paid out an award. That will not change as a result of these measures, all of which will come in after the process as it stands at the moment.

The hon. Member for Somerton and Frome mentioned corporate responsibility. As an example, if a care home is responsible for an injury through lack of care, the CICA could effect recovery from that care home. Corporate accountability is built in to the measures.

The hon. Members for Somerton and Frome and for Beaconsfield mentioned the criminal injuries compensation scheme. I emphasise that nothing in today's proposals has a bearing on the scheme as a whole. They are entirely additional. Of course, the Government keep the scheme under review, and if there were at any stage proposals to change it, the House would be notified in the normal way and we would have the normal debates, because change in regulation would be required. That can be done only in the House.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

At one point I was distracted from the Minister's remarks, so I may have missed what he said, but I asked for clarification of the relationship between the compensation scheme and civil proceedings. How will that work in respect of double recovery from a defendant of money through the scheme and money through civil proceedings? Did he answer my question on that? If he did so, I missed it and I apologise.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I may not have dealt with the point in sufficient detail. I shall write to the hon. Gentleman about that issue, but for the purposes of this debate, I emphasise that there cannot be double payment or counting. There can be only the one figure, and I emphasise very strongly that it cannot be paid twice. That is very important.

I repeat that if any changes were made or proposed to the scheme, they would be brought forward in the normal way. We are certainly not introducing anything to change the scheme this morning. It is worth bearing in mind that in the current year, the CICA will have about £163 million at its disposal to pay out in awards. That figure will be added to by the measures that we are proposing.

Amendment agreed to.

Amendments made: No. 83, in clause 38, page 20, line 28, at end insert—

'section [Victims of mentally disordered persons: Northern Ireland].'.

No. 58, in clause 38, page 20, line 28, at end insert—

'section (Procedure for determining fitness to be tried: Northern Ireland).'.

No. 105, in clause 38, page 20, line 32, after 'Schedule', insert

'(Unfitness to stand trial and insanity: courts-martial etc),'.

No. 59, in clause 38, page 20, leave out lines 34 and 35.—[Paul Goggins.]

Clause 38, as amended, ordered to stand part of the Bill.