The impact on the Criminal Injuries Compensation Scheme of the removal of the “same roof” rule, and the pending changes in Scotland to the need to disclose previous convictions

The Criminal Injuries Compensation Scheme is a Government scheme in place to help victims of crimes of violence receive compensation for injuries they have suffered. The current Criminal Injuries Compensation Scheme came into effect in 2012. There has recently been some legislation which has amended and will amend the current scheme. These changes could have a substantial impact on the scheme and enable victims of crimes of violence to claim compensation where they had been previously unable to. 

“Same roof” rule

The first change to the scheme is the removal of what was known as “the same roof rule”. This rule was previously governed by para 19 of the 2012 scheme which stated: “An award will not be made in respect of a criminal injury sustained before 1 October 1979 if, at the time of the incident giving rise to that injury, the applicant and the assailant were living together as members of the same family”.

This paragraph meant that may victims, particularly of childhood abuse or domestic violence, where the incident occurred before 1 October 1979, were not entitled to claim compensation as, when the abuse occurred, they were living with the assailant. This contrasted to the approach taken with victims of crimes of violence that occurred after 1 October 1979, where the scheme only prevented claiming if the victim continued to reside with their assailant at the time of applying for compensation. 

Paragraph 19 was however challenged by the case of JT v First-tier Tribunal in England & Wales and the Scottish case of Monica Allan (MA v Criminal Injuries Compensation Board [2017] CSIH 46), in which Legal Services Agency was involved. Both these cases challenged the same roof rule on the basis that it was discriminatory, as someone who was subject to domestic abuse or childhood abuse after 1 October 1979 could claim compensation in relation to the incident but someone in the same circumstances making a claim prior to that date could not. 

Monica Allan was unsuccessful in the Inner House and appealed to the Supreme Court. Following, however, the case of JT [2018] EWCA Civ 1735, where the Court of Appeal in England ruled that the same roof rule was discriminatory, the Criminal Injuries Compensation Authority dropped its opposition to the appeal. On 30 January 2019 the Supreme Court ordered that the appeal be allowed, and the judgment of the Inner House set aside. 

Effect of the changes

Following these decisions, the 2019 amendment to the scheme was introduced. This amendment removed para 19 from the original scheme so victims of abuse prior to 1979, where their assailant lived in the same house, were entitled to compensation. 

This change not only allows new applicants to claim compensation if they were previously unable to do so due to the same roof rule: it also allows applicants who had previously tried to claim compensation but had been refused either wholly or partially due to the same roof rule to make a new application under the scheme.

Anyone who is now eligible to claim compensation due to the removal of the same roof rule has two years from the date that the amendments came into effect (13 July 2019) to make an application for criminal injuries compensation – that is, until 12 July 2021. 

If an application is being made under the amended scheme, the applicant will also need to provide sufficient evidence to CICA that will allow their claim to be determined without further extensive enquiry by the claims officer. This will usually mean obtaining police records of the incident together with medical records confirming the injuries that the applicant has suffered. 

Key points

The key points to note with regard to same roof rule cases are as follows:

  • Victims of crimes of violence who were living with their assailant prior to 1979 can now claim criminal injuries compensation. 
  • Those who previously tried to claim compensation but were refused either wholly or partially because of the “same roof rule” can now make a fresh application.
  • The applicant may need to provide police records and medical evidence to help verify their claim. 
  • The application can be made be until 12 July 2021. 

As these claims usually require a further amount of evidence to be gathered by the applicant prior to submitting a claim, it is advisable that anyone seeking to apply obtains advice regarding completing an application for compensation.  

Rehabilitation of Offenders Act 1974

The second change to the scheme involves the Rehabilitation of Offenders Act 1974. One of the tenets of the scheme has been that its aim is to help “blameless” victims of crime. This means that an applicant’s conduct and character will be taken into account when deciding whether a crime of violence has taken place. 

One of the ways that the CICA considers conduct and character is by considering the applicant’s unspent convictions. 

The rules surrounding criminal convictions are found in Annex D of the 2012 Scheme, which provides, inter alia:

“3. An award will not be made to an applicant who on the date of their application has a conviction for an offence which resulted in:

(a) a sentence excluded from rehabilitation; 

(b) a custodial sentence; 

(c) a sentence of service detention; 

(d) removal from Her Majesty’s service;

(e) a community order; 

(f) a youth rehabilitation order; or 

(g) a sentence equivalent to a sentence under sub-paragraphs (a) to (f) imposed under the law of Northern Ireland or a member state of the European Union, or such a sentence properly imposed in a country outside the European Union.

“4. An award will be withheld or reduced where, on the date of their application, the applicant has a conviction for an offence in respect of which a sentence other than a sentence specified in paragraph 3 was imposed unless there are exceptional reasons not to withhold or reduce it.”

Unbalanced effect

These rules relate to convictions that are considered unspent, and are based on the sentence that the offender received rather than the offence itself. 

The time it takes for a conviction to become spent is governed in the Rehabilitation of Offenders Act 1974. Under this Act there are different time limits governing when an offence is spent, depending on the sentence. 

The position also differs between Scotland and England & Wales. For example, if the applicant were to receive a fine in England & Wales, the conviction would be considered spent after one year from the date of conviction. In Scotland, at present, the same conviction would not be considered spent until five years from the date of convictions. This creates a disparity in the compensation scheme which applies to England, Wales and Scotland, whereby someone who is a victim of a crime of violence but has previous convictions may have their award reduced or refused in Scotland where it would not be in England. 

Similarly with community payback orders: the English equivalent is considered spent after one year plus the length of the order, but a Scottish order is only considered spent after five years; and with custodial sentences, all of which take longer to be considered spent in Scotland than in England & Wales. The most extreme example of this is a sentence for between 30 and 48 months, which is considered spent in England after the length of the sentence plus seven years, but in Scotland is never considered to be spent. 

At Legal Services Agency, we are currently challenging this discrepancy in the Outer House of the Court of Session on the basis that this is discriminatory to applicants in Scotland compared to those in England & Wales. This action is at present sisted pending the appeal of the case of A and B v Criminal Injuries Compensation Authority [2018] EWCA Civ 1534 to the Supreme Court. The latter case is challenging the blanket refusal of CICA in the case where the applicant has an unspent conviction which resulted in either a community order or a custodial sentence. It involves Lithuanian twin brothers who were trafficked to the United Kingdom in 2013. Both brothers made an application to CICA with respect to being victims of trafficking; however they both had unspent convictions from Lithuania which had resulted in a custodial sentence, so CICA refused to grant compensation. 

In the Court of Appeal, the appellants argued that the complete refusal to award compensation where the applicant has received either a community order or custodial sentence breaches article 17 of Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combatting trafficking in human beings and protecting its victims. Furthermore they argued that the terms of the scheme fell within the ambit of article 4 ECHR and amounted to unjustified discrimination against the appellants (on the ground of their “other status” of having unspent convictions for offences which resulted in a custodial or community sentence), contrary to article 14 of the ECHR when read with article 4. The Court of Appeal rejected their argument. If their appeal is successful, it may have the effect of loosening the strict rules surrounding the blanket ban for claiming compensation. 

Restoring equilibrium

Additionally, part 2 of the Management of Offenders (Scotland) Act 2019 (which received Royal Assent on 30 July 2019) will amend the Rehabilitation of Offenders Act 1974 as respects the Scottish time limits regarding spent convictions, reducing them so they are more in line with their English counterparts. 

The Scottish Government announced on 24 August 2020, that part 2 will come into effect on 30 November 2020, with Justice Secretary Humza Yousaf noting: “These important reforms balance the requirement for safeguards to understand a person’s recent offending behaviour with the need to allow people to move on with their lives.”

This change will mean that some applicants who may not have previously been able to apply for criminal injuries compensation due to their unspent convictions may become eligible. This will be especially helpful to those who have served either a custodial sentence or received a community payback order, both of which, if unspent, will result in the applicant being refused compensation entirely. 

One important thing to bear in mind with regard to this change is the time limits for applying for compensation. This is usually two years from the date of the incident, but can be waived in exceptional circumstances. 

Until the 2019 Act comes into force, it may be beneficial in some cases to delay applying for compensation if the applicant has previous convictions that would be considered unspent under the present legislation but would be considered spent under the new rules, so that any award they received was not reduced or refused. This would have to be weighed up against the risk of falling foul of the time limit.

Key points

The key points to note in relation to the Rehabilitation of Offenders Act 1974 are:

  • Under the Criminal Injuries Compensation Scheme 2012, awards of compensation can be reduced or refused for unspent convictions. 
  • At present there is no discretion regarding this, although there are ongoing challenges to this in the courts.
  • When a conviction is spent is covered by the Rehabilitation of Offenders Act 1974. 
  • This Act has differing rehabilitation periods as between Scotland and England & Wales. 
  • The rehabilitation periods in Scotland will be adjusted by the Management of Offenders Act 2019, which is due to come into force on 30 November 2020. 

As this area involves consideration of a number of factors including the time limit; when any previous convictions will be considered spent under both the old and new guidance; and what effect an unspent conviction would have on an award, it is important for the applicant to receive advice regarding how a claim may be affected by the changes and when they should apply.

The Author

Hannah Goldsmith is a solicitor with Legal Services Agency, Glasgow

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