UNEQUAL JUSTICEHow Victims Lose Out on Criminal Compensation
Maya Esslemont and Sian Norris reveal how crime victims are struggling to access the financial support they are entitled to
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Crime victims seeking criminal compensation receive almost twice as much in pay-outs when they have representation – which can include legal support, the presence of a family or friend, or support from a charity – compared to those who go through the system without any help at all.
Data analysis by Byline Times of criminal injury compensation awards, between April 2021 and 2022, found that people with some form of representation were awarded on average £16,080, compared to £8,985 being given to victims who argued their case alone.
In 2021, the Ministry of Justice (MoJ) publicly committed to make the Criminal Injuries and Compensation Scheme (CICS) “simpler and easier”. A letter to road safety charity Brake in March that year from the Department of Health and Social Care claimed a simpler CICS process would “ensure applicants feel confident making an application directly… without the need for legal assistance”.
Current guidance for victims states that they “do not need to appoint a legal or other representative to act on your claim”.
However, this newspaper’s analysis exposes inequality in the system, leaving those without access to support less likely to receive compensation after being the victim of crime. This is of particular concern when it comes to access to legal representation and cuts to legal aid that have left people without help.
Those who have support, including legal representation, are both more likely to win an award and receive a far higher pay-out. Those without support had a 37% chance of receiving a full award and 1% chance of receiving a partial award, with 62% facing rejection.
In contrast, those with support had a 52% chance of receiving a full award, 2% chance of a partial award, and 46% chance of rejection.
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Legal Aid Cuts
While the data focuses on people without any form of support, experts expressed concern to Byline Times about individuals applying for compensation without access to legal representation – something that has become out of reach for many due to cuts to legal aid.
Having a lawyer’s professional support when undertaking any legal case – including applying for criminal compensation – helps a victim to understand jargon, demystify the process, and feel less alone. For vulnerable victims, including those who have endured severe trauma or for whom English is not their first language, it can improve outcomes and ensure they are supported in what may be a retraumatising process.
Legal aid is only currently available to victims seeking compensation under a grant of Exceptional Case Funding (ECF).
The success rate of those applying for ECF grants without representation is not publicly available, but the process is an onerous one for those without lawyers. Applicants must provide evidence of a potential breach of their legal rights and return specified documentation to be considered. The Government advises that it cannot meet legal costs should a victim hire a private lawyer.
Jamila Duncan-Bosu, a solicitor with the Anti Trafficking and Labour Exploitation Unit (ATLEU) – a charity which supports victims/survivors of trafficking and modern slavery – told Byline Times how proving a survivor of trafficking is eligible for legal aid through an ECF grant can take months.
“We used to be told that applying for criminal compensation is just form-filling and therefore legal aid isn’t required,” she said. “It’s taken years of campaigning to get the Legal Aid Agency to routinely accept that applications made by trafficking survivors are complex, that it’s not just form-filling but that victims/survivors require legal support and assistance.”
While this is becoming increasingly recognised, for some survivors it is too late – with law firms making the difficult decision to stop working on legal aid cases for criminal compensation as it takes up significant resources to prove a victim is entitled to an ECF grant.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into effect in April 2013 and introduced funding cuts to legal aid, meaning fewer people can access legal advice.
The Act saw £350 million knocked off the £2 billion legal aid budget, leaving vast numbers of people losing access to legal support. The UK’s marginalised and vulnerable groups have felt the impact of these cuts most heavily.
Between 2010/11 and 2017/18, there was a 60% fall in the number of victims receiving payments from the criminal compensation scheme.
As the Government advises that potential claimants do not need legal representation, charities warn that victims of serious crime are facing significant barriers to both accessing compensation and funding for legal support.
For survivors of modern slavery, the most challenging area for getting legal advice and support is in accessing compensation. Survivors are forced to patch together several different claims which encompass the many wrongs done to them. This can make bringing claims against their traffickers incredibly challenging and retraumatising.
International law dictates that trafficking victims are appropriately compensated. But in practice, victims and survivors face multiple barriers, including ignorance about the process and their rights, a lengthy process to get legal redress, the difficulty of making a claim having been returned to their country of origin, and the lack of legal aid.
Little wonder then that data gathered via Freedom of Information request by ATLEU found that just 283 applications for compensation were made by victims of trafficking between January 2012 and February 2020. Of these, only 54 victims secured a grant.
“Even the notion that you can apply for compensation is news to lots of survivors,” Duncan-Bosu said. “Then, having established that they need to make an application, they will struggle to find assistance in doing that.”
Part of the issue, she said, is that decision-makers are not given specific guidance on how to handle compensation claims from victims of trafficking and modern slavery, and the unique challenges those cases bring.
For example, claimants have to prove they have cooperated with police investigations, but there are reasons why this may be more challenging for trafficking survivors, who are afraid that speaking up against their perpetrators may result in repercussions for their family. Others may come from countries where police corruption means they do not trust the authorities.
“I supported one victim who was trafficked into the sex industry but was later accused of not cooperating with the police,” said Duncan-Bosu. “She was traumatised and had not given a clear statement, but she had cooperated. She was initially refused compensation and without legal support she would not have known to, or been able to, appeal that decision.”
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In some cases, vulnerable victims will decide not to apply for compensation at all, due to the risk of being retraumatised. This can be exacerbated by the knowledge that they have to go through the process alone, without legal or charitable support.
The onus is on the victim to gather evidence, relive the criminal incident, and prove they are eligible for a financial award. Some victims feel embarrassed to ask for money, or worry that people will judge them.
The mean average award was £9,000. For victims who have lost income, who may have been left in debt due to domestic abuse, or who may have been destitute and never legally worked in the UK due to modern slavery, it may not cover the costs incurred by the crime.
In the case of the young woman Duncan-Bosu supported through the process, she was able to use the award she eventually received to go to college and undertake vocational training, as well as access healthcare to deal with trauma. She is now working and independent.
“The scheme itself is incredibly difficult for an unrepresented survivor,” Duncan-Bosu said. “Because they have got to know what is the test for getting compensation, what are decision-makers looking for, and what part of their trafficking they need to really drill down into, in order to show they come within the scheme at all. The scheme presents difficulties, but with a lawyer you have a better chance of overcoming those difficulties.”
A Ministry of Justice spokesperson said: “We want to ensure victims of violent crime can access the compensation they’re entitled to which is why the Criminal Injuries Compensation Authority provides a user-friendly online service helping applicants with the process. Further assistance is provided by CICA’s dedicated customer support team and Government-funded legal help is available to those appealing decisions at tribunal where they are eligible.”
- If you are a victim who needs support accessing legal help, you can speak to the Rights of Women criminal law helpline, which advises on criminal compensation, on 020 7251 8887. You can also contact the Law Centres Network for support
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