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Bad Law or the Art of Spin – Today’s Mail, Telegraph and Independent re Compensation for Criminals – A Case Study

 

 

The days of the Christmas holidays are light for news. Newspapers are desperate for articles to take up column inches. Private Eye’s own Polly Filler columnist would be engaged 24/7 at this time of year, should she wish.

It is therefore not surprising to see political stories running in the press because, as most politicians are on holiday, and Parliament is not sitting, there is little chance of stories being questioned seriously.

This morning there are three stories I have seen (there may be more elsewhere too) about criminals being compensated for their injuries. These can be found in the Daily Mail, the Daily Telegraph and the Independent. Click on the names of the papers for the respective stories.

On the face of it, there is a “scandal” taking place which must be stopped. No right thinking person reading the articles could fail to agree that “something must be done”. However, the pieces all seem to be blatant attempts at government spin, ignoring the present legal position, and in fact, apparently, though inadvertently disclose a far greater “outrage”.

What we have, it appears, is a Ministry of Justice (MoJ) attempt to look tough on criminals by denying them compensation for ridiculous injuries, including, for example, Ian Huntley being compensated for being attached in prison, as this keeps money from innocent victims who in fact are left owed huge sums by the Criminal Injuries Compensation Authority (CICA). The “official sources” quoted however fail to disclose the reality of the rules of the CICA scheme just now, and attempt to conflate two entirely different issues in an effort to appear even tougher on the convicts and jailbirds. The spin is to create a sense of outrage, and having done so, to emphasis that the Coalition is not going to let this continue.

The “source” has also taken the chance to take a kick at Legal Aid, which is generally not a topic people want to support, unless they, or someone close to them, are being denied help for a vital legal battle.

The MoJ seems successfully to have worked on the basis that hard pressed newspapers, especially those without correspondents with relevant legal backgrounds, simply cannot devote the time and resources to having a Government inspired “story” subjected to detailed critical analysis.

The articles are written by Tim Shipman, Martin Evans and Oliver Wright respectively. I do not intend to criticise any of these journalists who, I am sure, are excellent practitioners. However the story seems to me anyway to be an exercise in the Government getting out a story for headline effect, whilst hoping no-one will actually look too closely at what they are saying.

 

A Brief History of Criminal Injures Compensation in Britain

In 1964 the Government established the Criminal Injuries Compensation Board (CICB), to pay compensation to victims of violent crime, based on an assessment of what victims would have received for their injuries if pursuing claims in a civil court. This was the commencement of what was, and remains, the most comprehensive system for compensating victims of crime in the world, a fact of which successive governments should be proud.

In the mid 1990’s, as a result of concern about the increasing costs, the Conservative Home Secretary, Michael Howard, brought in a revised “Tariff Scheme” where set amounts of compensation were to be paid for specified injuries. The new scheme was overturned by the High Court, after a challenge by various Trades Unions, but was, with some amendments, reintroduced and in 1996 the CICA was born and took over from the CICB.

The Scheme has been revised on various occasions, most recently in 2008, though it seems further revisions are on their way.

Now victims of crime who suffer injury can receive a maximum award of £250,000 for their injuries and a maximum additional sum of £250,000 for financial losses, as long as various conditions are satisfied.

However, as a function perhaps of present day society, the numbers of claims continue to increase year after year, and despite various efforts to streamline the claiming process, there are delays endemic in the system.

The CICA only makes news after a large tragedy, like the London bombings, when it gets criticised for delays, or hen apparently perverse decisions are made. An understanding of the scheme would render these apparently odd decisions clear (in most instances).

As the Annual Report of the CICA for 2010-2011 said, over 65,000 claims were resolved in the last year, and over £280 million paid out in compensation.

 

The Details

It is of note, before we get to the legalities, that the pieces have the following similarities.

1                     Each is illustrated with a picture of convicted murderer Ian Huntley.

2                     All three refer to him claming £15,000 for having his throat slashed in prison.

3                     Each quotes “a senior source close to Kenneth Clarke”. The Telegraph attributes its quote to what the source told the Mail, but the Independent does not.

4                     Each has the same quote from a “Ministry of Justice spokesman” (presumably not the senior source close to Mr Clarke).

5                     All the articles refer to £5 million per year being paid out to convicted criminals, or “jailbirds” as the Mail refers to them.

6                     Two of the pieces (Mail and Independent) also have a quote from Philip Davies, a Conservative MP complaining about the “outrage and scandal” of taxpayers’ money being “wasted on compensating criminals”.

One difference, in keeping with the respective papers’ philosophies, is that the Independent quotes the Prison Reform Trust and NACRO putting the case against the changes. No such “balance” appears in the Telegraph or the Mail. (Though, to be fair, that would not be expected anyway on an issue like this.)

 

So what is being suggested?

Even though all three pieces come from the one origin, one assumes, the detail is not on all fours.

The Mail states that “Convicted criminals will be banned from claiming compensation for their injuries…Ken Clarke will announce plans to ensure the money goes to victims of crime rather than criminals…Every year criminals claim around £5 million from the CICA”.

The Mail refers to “controversial claims in which burglars have demanded money for injuries sustained while escaping the scene of the crime.” The Mail states “Thousands is (sic) also paid out every year to criminals who sustain injuries in prison as a result of feuds and drug-fuelled violence”.

The Telegraph goes further, stating that “In some of the most extreme cases burglars, who have been hurt as they escape the scene of a crime, have received payments”.

The “official figures” and the detail around them quoted in the pieces are of interest too.

According to the Mail, “340 inmates made successful claims for injuries resulting in payouts and costs of £3.1 million last year. More than 3,000 prisoners made claims…Another £2 million was claimed by convicted criminals who are not jailed. Most of the payouts for jailbirds are for injuries caused by trips, falls or slips as well as accidents while playing sport.”

The Telegraph also refers to the applications covering “a range of injuries and activities, but included slips and falls and also accents while playing sport.”

All three articles refer to the lack of money available to the CICA for compensating victims of crime, and the impression is clearly given that dealing with, and paying, these criminals is a reason for, as the Mail puts it, “Almost 50,000 victims of violent crime have been kept waiting for compensation worth in excess of £600 million because the compensation authority has run out of funds. They include the children of murder victims and others who need the money to cover medical bills and compensate them for their disabilities and lost wages. Some are owed up to £500,000 after being crippled by vicious thugs.”

 

So what is wrong with the articles?

Why Do All These Criminals Get These Payouts?

They don’t!

First of all, there are two targets, and only the Mail piece makes clear that one of them remains untouched. The CICA only deals, as the name suggests, with “criminal injuries”. Slips, trips and falls, and sporting injuries are nothing to do with the CICA. They are negligence claims. If a prisoner, or indeed anyone else in prison, suffers injury there which is the fault of another party, then a negligence claim can be pursued and, if blame can be established, they would be entitled to compensation. These are civil court matters, dealt with in the normal way. Mr Huntley has as much right to pursue such a claim as anyone else, although ay damages he might receive could result in legal action for damages being taken against him by his victims’ representatives.

The civil courts would not reduce any award of damages because the victim was a convicted criminal. The “source” does not appear to suggest any change in that principle.

The target therefore is the CICA system.

However, the scheme, dating back to the days of the CICB has always taken account of criminal convictions! Under the initial scheme, the CICB was empowered to take account of the applicant’s “character, conduct and way of life, as evidenced by their criminal convictions” even where the convictions had nothing to do with the incident in which the injuries were inflicted. Over the years I conducted a number of appeals for clients where awards of compensation had been either reduced, or refused entirely because of convictions, and, as was said by more than more than one member of the Board “Why should we pay compensation to someone who has probably already cost the CICB in compensation for someone else?” It is hard, in general, to argue with that principle, which has been a part of the criminal injuries regime since 1964! However, the CICB allowed the exercise of discretion. In one case, I acted for a man who had been imprisoned for a number of years at a young age. He had lived his next 35 years after his release as a model citizen. The CICB decided that it was in the interests of justice to make him a full award. He was credited for having made a radical and positive change in his life.

Equally I know of cases where a family member claiming compensation for the death of a child was refused, because of the father’s own criminal record, and also where the family was denied compensation following the murder of their child due to the child’s “offences” which had led him to appear before the Children’s Panel.

Criminal convictions have therefore always been one of the factors to be considered.

When the tariff scheme was created there was also the inception of the “Penalty Points” system. The discretionary element all but disappeared. There is now a sliding scale of percentage reductions from any award based on the number of penalty points the claimant has.

The scale is detailed on pages 62 and 63 of the Guide to the CICA Scheme. The scale make sit clear that the “problem” of criminals obtaining criminal injuries compensation is already well covered.

A 10 point count reduces the award of compensation by 100%.

What results in 10 points? Any sentence of imprisonment results in 10 points for the duration of the sentence imposed. This applies even if the sentence is suspended, or there is early release. In addition, even after the sentence has been served, there is a sliding scale of points. Obviously multiple offences make it even less likely that a claimant will receive any award.

Mr Huntley, who is serving a life sentence, will therefore have a 100% deduction applied to any award of compensation for criminal injuries otherwise made to him, unless exceptional circumstances can be shown. In light of the drafting of the scheme, the only “exceptional circumstances” considered would be where he was injured in the course of preventing crime, or assisting the police or other authorities in preventing crime.

Even at the other end of the scale, a criminal conviction resulting in a fine of £250 or less, results in 2 penalty points (a 15% reduction) for 2 years from the date of sentence, and 1 point (10% deduction) form 2 years till the conviction is spent.

The scheme therefore covers far more than “jailbirds”.  The case mentioned above, where the claimant had lived free of trouble for 35 years, would, under today’s rules, have resulted in 5 points and at least a 35% reduction from any award.

Anyone in prison who receives an award from the CICA has gone through a rigorous process to get there and will have had any award reduced to some extent. In addition, they must have been successful in satisfying the “exceptional” circumstances test.

 

Who is a Criminal?

As Mr Davies, MP, suggests, we should be concerned about “criminals” getting money due to innocent citizens. But the penalty point scheme goes all the way down to dealing with cautions and absolute discharges! Does Mr Davies, or the MoJ intend to prevent anyone with an unspent conviction, of any type, from pursuing a Criminal Injuries claim? If so, it would be a surprise quite how many people were to be excluded.

The scheme keeps in place, but with the more draconian penalty point system, the restrictions on claims in fatal cases. The criminal convictions of both the deceased and of the claimant come into play.

It is a matter of policy whether or not family members with criminal records (even for trivial matters) should be compensated for the killing of a close relative. The papers report every so often an aggrieved claimant who falls foul of this rule, and generally the reports focus on the unfairness of the decision. However, it all depends who you classify as a “criminal”. Mr Davies wants a wide net cast. Is that fair?

 

Do Escaping Burglars Get Compensation?

The reports, especially those in the Mail and Telegraph, look to show the ridiculous things which result in criminals being paid. Suggestions that there are people “demanding” payment for being injured when escaping, and according to the Telegraph being paid, seem daft. It might be that, in one or two specific cases there have been circumstances justifying such awards, whether by Criminal Injuries or via negligence. I suspect that is all of that type there have been, if indeed any exist.

The Tony Martin case, where Mr Martin was imprisoned for shooting an escaping burglar in the back, was one of the rare cases where such a claim might possibly be successful, even to a small degree.

In fact, I am surprised that health and safety was not mentioned by the Mail!

 

Don’t These Cases Delay Justice for Everyone?

The figures also make clear that, despite the impression given, the CICA is not gummed up dealing with all of these prisoners’ claims. They make up a small percentage of the total case load and an even smaller percentage of the payments made.

People are not sitting waiting for decisions simply because prisoners make claims. If people in the 10 point category were barred from applying, it might save some administrative time, but on the other hand, some of these people might still apply, and their applications would still need to be weeded out of the system.

 

Financial “Errors”

The Mail refers to payments plus costs, which ignores the fact that no costs are paid. Any legal fees charged to the successful claimant come out of the compensation awarded.

The Mail also states that Government “sources” describe the present system as a “shambles” overspending by £50 million per year. The Labour administration is blamed.

The system in place however is one created in 1996 by the Conservatives. The annual report for 2010-2011 linked above shows that significant progress has been made in shortening administrative delays. However, the cost of the system in payouts goes up as more and more people apply!

From my own knowledge of the system I would not say that it was an unduly extravagant one as far as running costs were concerned. The staff of the CICA at its Glasgow HQ were always as helpful as they could be, bearing in mind they enormous workload they had.

Blaming Labour for the “overspending” seems to be a cheap party political point, designed to appeal to the Mail readership, as I am sure it did.

 

Rights of Prisoners

It should be said also that, if a claimant succeeds in a Criminal Injuries claim, and later received damages through an insurance company or civil court for the same injuries, then the CICA is reimbursed.

Not every prisoner attacked in gaol will have been a victim of negligence by the prison authorities. However, in the case of prisoners such as Mr Huntley, his very notoriety, and the evil of his crimes, in fact makes it easier for him to succeed in such a claim. The prison authorities would find it very hard to say that they were not aware of risks and threats to him, more than to other criminals, and as such need to put in place greater security measures.

As the spokesman for the Prison Reform Trust said in the Independent, a gaol sentence does not deprive someone of all their rights.

Unless the Coalition wants to move to a Fort Apache: The Bronx style of prison regime, than they have to be able to protect prisoners, as far as is reasonable. The authorities have a duty of “reasonable care”. They need to fulfil it.

 

Legal Aid

The Mail also has a sly dig at Legal Aid. It states that “The legal aid bill for convicts has doubled in two years to £21 million – although that sum also covers those demanding release from jail and softer punishments.”

The latter half of that statement seems to describe legal aid for appeals! Does the Mail want convicts to be told that they have no right to assistance from lawyers if they think their conviction is wrong or unsafe, or if the sentence imposed is excessive?

If the Crown appeal on the basis that a sentence is too lenient does the Mail believe that no representation is needed, as the court will see to fair play?

The answers to the above are probably yes, but that should not be the determining factor for the country as a whole.

This is spun though as the Coalition “trimming” the Legal Aid budget as part of its austerity measures. Trimming is a word with few of the unpleasant connotations of “cutting” isn’t it?

 

What is the Real Scandal?   

First of all, I do not think there is a real scandal here. But if there is, then the Mail report completely misses the point.

The article states ”Almost 50,000 victims of violent crime have been kept waiting for compensation worth in excess of £600 million because the compensation authority has run out of funds.. Some are owed up to £500,000 after being left crippled by vicious thugs.”

If the government run and funded scheme was actually lagging to that extent, as a result of dealing with prisoners’ claims, as the article implies, this would be a disgrace. Indeed any reason for such a delay would be unacceptable. The impression is given that almost 50,000 people have been awarded money, up to £500,000 but have not been paid as the fund is empty.

That is simply not true. The CICA has a budget, but as the payments it makes are dependent on the level of claims assessed, it does not “run out of money” any more than the DWP would run out of money for benefits.

Read the Annual Report for yourself. If the situation was as bad as the “senior source” makes out, one wonders (a) why it has taken this length of time for the Government to speak out and (b) why the only matter being addressed relates to claims by criminals.

 

In Conclusion

We have a blatant effort by the MoJ to get good headlines, by relying on the pressures on newspapers not actually to look at what is proposed and to analyse it.

As I state in the heading, I am not sure of this counts as Bad Law on the part of the press, or blatant political spinning, with a bit of “churnalism” as defined by Nick Davies in “Flat Earth News” thrown in.

In any event, it fails to give anything like an accurate picture of the problem and simply blames the bogeymen of convicts, lawyers and the Labour government for the present issues.

I find it sad.

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Filed under Bad Law, Civil Law, Conservative Party, Daily Mail, Damages Claims, Independent, Politics, Press

The Chancellor’s Changes To Employment Tribunals – An Attack on the Workers?

 

 

The Coalition Government proclaims that, in this time of economic crisis, we are “all in this together”. However, the Chancellor’s speech today at the Conservative Party Conference suggests that that is not, at least in the field of employment law and Employment Tribunals, the case. Let us pass over for now the fact that he is declaring new policy to his Party Conference, and not to Parliament, despite this being a regular complaint by the then Opposition against the Blair and Brown Governments. Let us look instead at the two main changes proposed.

Chancellor Osborne

Employers and Employment Tribunals

Employers hate employment tribunals. Whilst some companies might have insurance cover for such matters, or access to one of the organisations that provides assistance on these issues for payment of an annual fee (a bit like going to Green Flag or the AA for breakdown cover) many, particularly small businesses, are faced with a choice of acting for themselves, with the risks that can bring, or engaging a solicitor to represent them. The legal costs incurred by an employer can, especially if a full hearing proceeds over a number of days, run into thousands of pounds.

Whilst the Tribunal can award costs against a party where it is determined that they have acted unreasonably, this is much less of a risk for a claimant than the rule in court proceedings that the loser pays the costs. Often the claimant has no funds to meet a costs award anyway, even if one is made.

Employers view these cases as an interference with their right to run their business, large or small, as they see fit, and a needless drain on their time and resources.

The Eagle Building - Home to the Employment Tribunal in Glasgow

Employees and Employment Tribunals

Employees are not very keen on them either, but find it necessary at times to have to go there. Employment Tribunals hear much more than simply unfair dismissal cases, although that is the most common type of claim presented.

Whilst there are a few high profile Employment Tribunal cases, where City financiers allege sex discrimination and seek million pound awards, the vast majority of claims relate to termination of employment, whether by dismissal or unfair selection for redundancy.

It is only the minority of cases which proceed to a full hearing. Often claimants give up as they cannot afford their own legal costs or they no longer have the stomach for the fight.

When it comes to legal costs the press coverage complains about the costs to business of defending these claims, whilst never looking at how the claims are funded by claimants.

As with employers, some employees have cover for a Tribunal claim, either through legal expenses insurance or through their membership of a Trades Union. However, in Scotland, most claimants do not have such cover, and proceed on their own, with the help of voluntary organisations like the Citizen’s Advice Bureaux or with a private solicitor or adviser.

Whilst there are solicitors and claims representatives willing to proceed on a “contingency fee” basis i.e. taking a fee only if the claim is successful, these are less useful in employment cases where there is normally no award of costs against the employer who loses the case – any payment to the solicitor, in a no win, no fee case has to come from the damages awarded.

In theory there is limited Legal Aid cover in Scotland for pursuing an Employment Tribunal claim, but this only kicks in where the case raises some issue of wider legal importance, and where the claimant meets strict financial limits.

Finally of course, employees are often reluctant to pursue a Tribunal case because of fear of what a new or prospective employer might think. “If he can take his last employer to a Tribunal, he could do the same to me” is a sentiment I have heard on a number of occasions from employers. In most cases the award due to a successful applicant would not make it worth their while to be out of work for a couple of years or more.

What Effect Does All This Have on Proceedings?

The result of these competing pressures on cost is that many cases settle by agreement before a full hearing takes place. An employer, even feeling that they have a strong defence, might make an offer to settle a case knowing that the claimant might have to accept the offer simply to meet their legal costs.

Equally, an employee with a strong claim may find themselves forced into settling a case (a) because unemployment means that funds are needed sooner rather than later and (b) the claimant does not want to risk their adviser ending up with most of their damages. So an early settlement, caused by these economic factors, is common, and, although on one view might not be seen as far, actually helps the system. On one cynical view, if the employer pays more than they want to pay, and employees receive less than they are looking for, then an appropriate balance has been struck.

In addition ACAS provides an excellent service in seeking to assist the parties, even where represented, to reach a settlement. Sadly ACAS has found itself ever more hard pressed by the increasing number of claims and by budget restrictions. The ACAS oil is now spread very thin.

Why Does The Chancellor Want to Change Things Now?

The CBI and other employers’ organisations have campaigned for many years to clamp down on the number of Employment Tribunal claims, for the reasons mentioned above.

It is a truism to say that the Conservative Party is more in tune with the employers than the Labour Party. The Government therefore has been looking for ways to reduce what are called the “vexatious” applications which are “hopeless” and exist only to trouble employers.

There has been a large increase in numbers of claims over recent years, although much of this has been caused by the growth of unemployment due to the recession. It is very easy, for example, to make a mess of a redundancy selection process, leaving the employer liable, but as long as they cannot show they have acted fairly.

There Is No Suggestion That Mr Trump Has Ever Acted Unfairly Towards Any Employee Ever

What Are The Rules Mr Osborne Wants To Change?

Normally an employee will need to have had twelve months’ continuous employment with an employer to make an unfair dismissal claim, although if a dismissal falls into one of the “discrimination” categories, (of which there are many) then the minimum period does not apply.

Some years ago the time limit was reduced to one year as a result of a legal challenge on the grounds of sex discrimination. Because generally women had shorter periods of continuous employment than men, the former two year limit was deemed to be indirect discrimination against women – the rule affected far more women than men.

As matters stand today, there are no costs payable by a claimant when lodging an application with the Employment Tribunal and, unlike some Scottish court cases, no fees payable to the Tribunal as the claim proceeds. Some view this as encouraging frivolous claims, as if a “free bet” for the claimants.

So What Will Be New?

Mr Osborne now proposes that the time limit, except in discrimination cases, should go back to two years.

First of all, I wonder of a challenge might be brought to this on the basis that again there will be unfair and disproportionate discrimination against women.

Secondly, that should result in a fall in the number of cases as workers with between 12 and 24 months employment fall out of eligibility to claim. There has already been comment that in fact claimants will circumvent this by claiming “discrimination” but Employment Judges are very good at clarifying the position as regards precisely in what way discrimination is alleged, and if the Tribunal determines that there has been no discrimination, then the case can fall foul of the time limit. It is not enough to cry “discrimination” – it actually needs to be there.

Of course, there might simply be an increase in preliminary hearings designed to ascertain if there was discrimination or not, and that will mitigate the effect of the change, and in fact might make things worse as, even with fewer cases, there might have to be more hearings.

The other change and the one which has the potential to be most damaging to a prospective claimant, is the imposition of fees on claimants. The Guardian reports that:-

“Under the plans, applicants will be obliged to pay the costs of an unfair dismissal claim – £250 for lodging a claim and a further £1,000 if the case goes to a hearing – which will only be refunded if the employee wins.”

This is a remarkable change, and one expressly designed to price people who may have been sacked unfairly out of vindicating their rights. At the present time, in particular, a person dismissed from work might not find it easy to get back into employment and will find their funds very precious indeed. In such a case how is a sacked employee to be able to find the cash to pursue a case to the end? Employers might fell happy to sit tight until, depending on the stage it has to be paid, the claimant has actually stumped up the hearing fee.

I do not see the Scottish Legal Aid Board agreeing to fund new outlays which did not exist before, especially in a class of case they have little to do with just now.

It is possible that the same exemption from paying court costs which applies in Scottish court cases just now might simply be extended. The above exemption allows people in receipt of certain Income Based benefits to be exempt from paying the court fees, for as long as they remain eligible, not for the duration of the case.

But as the Employment Tribunals have a UK wide jurisdiction, I imagine the intention will be to have the same system across the board, and in these straitened times, I can well see the exemption being limited if not eliminated totally.

If I was a potential claimant, recently dismissed, struggling with the DWP to be paid the benefits to which I thought I was entitled, the prospect of having to pay over £1,000 to pursue a Tribunal case would be daunting in the extreme.

And the suggestion that the fees would be refundable if successful are unclear. Does this mean that the Tribunal has to find in the claimant’s favour? What if they win, but their award is reduced to “nil” under Polkey? What if a claimant wins on four grounds out of seven, or eight or nine?

Claimant’s advisers would obviously want to insist on employer’s refunding the cost as part of a settlement, but if they are not obliged to do so, will an employee be prepared to proceed to a Tribunal hearing simply to get their Tribunal payment back?

Conclusion

Expecting the Conservatives to extend the reach of the Employment Tribunals is unrealistic in the extreme.

However, what we have seen here is a blatantly political attack on the rights of the working person, at a time when they are at their most vulnerable.

One hopes that the lawyers who act for the main Trades Unions, for example, are poised to see the new Regulations, and mount whatever legal challenge they can.

In a week when the Home Secretary has already called for repeal of the Human Rights Act because it interferers with the work of her department and causes her “problems” we are going to be left again to look to the courts to protect the people. Let’s hope they find a way to do so!

 

 

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