A&B v Criminal Injuries Compensation Authority (intervention by ATLEU)
/In a judgment handed down on Friday 9 July 2021, the Supreme Court confirmed that refusing awards of compensation, under the Criminal Injuries Compensation Scheme (CICS), to applicants with unspent criminal convictions was lawful.
Under the CICS, applicants with an unspent criminal conviction are automatically barred from receiving an award of compensation. There is no discretion within the scheme. A CICS decision maker cannot conclude that the injury to the applicant was so great that an award should be made regardless of an unspent conviction.
Leigh Day acted on behalf of two victims of trafficking who had criminal convictions and were subsequently trafficked and subjected to threats and violence. Their applications for compensation were refused on the basis of their unspent convictions.
In July 2018, the Court of Appeal found that there was no legislation that compelled the state via the CICS to compensate victims of trafficking for injuries caused by others and further, that the automatic bar, did not impact on victims who had been compelled to commit a crime by their traffickers, because of non-punishment legislation, which would result in criminal charges or a conviction being set aside.
ATLEU intervened in the appeal to the Supreme Court primarily to highlight that, despite the principle of non – punishment, a large number of victims compelled to commit crimes were caught by the automatic bar. ATLEU provided evidence that:
Many victims take time to provide a full account and so were not advised in relation to non-punishment
Many criminal practitioners were still to appreciate how non punishment provisions might operate, resulting in victims pleading guilty despite there being a defence to their actions.
Obtaining legal advice and assistance to set aside convictions that had occurred abroad was extremely difficult
The Supreme Court dismissed the appeal in respect of the Appellants, concluding that the automatic bar was not discriminatory in its application to those with unspent convictions as any difference in treatment could be justified.
The Appellants in this matter did not contend that their criminal convictions arose from their having been trafficked. The convictions occurred before their trafficking and subsequent exploitation. As such, the Supreme Court did not go on to determine the position where a victim asserts that they were compelled to commit a crime but has been unable to use the non-punishment provisions.
The result of the Supreme Court’s judgment is that if the victim’s criminal conviction did not arise from actions compelled by the trafficker, then they are not entitled to an award of compensation under CICS. Any claims of this nature stayed either with the Criminal Injuries Compensation Authority or the First – tier Tribunal, will now need to be withdrawn and disposed of.
Where the criminal conviction arose from action the victim was compelled to take because of their trafficker, then those claims can and should be pursued as the Supreme Court has left the way open.
If you wish to discuss the implications of the judgment to existing cases please contact advice@atleu.org.uk
