CICA unspent convictions rule

Ellis Meade, a Solicitor in our Serious Injuries team, considers the impact of unspent convictions if the victim of violent crimes seeks compensation via the Criminal Injuries Compensation Authority.

What is the Criminal Injuries Compensation Authority (CICA)?

The CICA is an executive agency of the UK Government which provides financial recompense to victims of violent crimes. Under the 2012 scheme, victims of violent crime who have suffered either physical or psychological injury (or both) may be entitled to compensation which ranges from £1,000 to £500,000.

Eligibility

The scheme imposes various eligibility criteria, which includes:

• You must be a direct victim of a crime of violence
• You must not be to blame for the incident
• You sustained an injury while taking an exceptional and justified risk, while trying to remedy or prevent a crime
• Sustained a mental injury as a result of witnessing or being involved in the immediate aftermath of an incident in which a loved one is injured; or
• Are a qualifying relative of a victim who has died from injuries caused by a crime of violence.
• You must not have an unspent conviction

An area of controversy within the Scheme relates to the ‘unspent convictions rule’. If an individual has an unspent criminal conviction, this may affect whether they are entitled to an award or the amount of any award. Convictions are considered in line with the Rehabilitation of Offenders Act 1974 (as amended) and as a general rule, the more serious the sentence received, and the more recently it was given, the longer the conviction will take to become spent.

The CICA are able to refuse or reduce an award under the Scheme if an applicant has an unspent conviction at the date of their application or if they are convicted of a crime before a final decision in relation to their claim is made. The CICA will refuse to make an award if the applicant has an unspent conviction for an offence which resulted in:

1. a sentence excluded from rehabilitation
2. a custodial sentence
3. a sentence of service detention
4. removal from His Majesty’s Service
5. a community order
6. a youth rehabilitation order, or
7. a sentence equivalent to a sentence under sub-paragraphs (1) to (6) 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.

The unspent convictions rule has been subject to significant debate and has been considered in the U.K’s Supreme Court. In the case of A and B v Criminal Injuries Compensation Authority [2021] UKSC 27, the Supreme Court upheld the rule, determining that it did not breach the applicants’ rights under Articles 4 and 14 of the European Convention on Human Rights. However, subsequent challenges have prompted reconsideration. In August 2021, the High Court declared that the government’s failure to consult on revising the unspent convictions rule, as promised in the Victims Strategy, was unlawful. This ruling was influenced by cases where victims of child sexual abuse were denied compensation due to unspent convictions that were directly linked to their exploitation. In 2022, the Ministry of Justice launched a consultation consider potential changes to the unspent convictions rule and in 2023 an additional consultation considered the scope and time limits of the rule. Tangible reform of the scheme is however still awaited. In its current form, the penal nature of the unspent convictions rule can have devastating consequences for applicants, particularly those who have sustained severe, life changing injuries. It is perhaps arguable that the rule unjustly penalises victims who have unspent convictions for ‘minor offences’.

Case study

We represented client X following an incident in which they were the victim of a random, violent attack with a hammer, as a result of which they sustained a traumatic brain injury with life changing consequences, including paranoia. X was unable to work as a result of his injuries and was therefore reliant on state benefits for his income. It was anticipated that the application would be successful and the CICA would award a 6-figure compensation settlement.

An application was submitted to the CICA on behalf of X. However, during the lifetime of the claim, X was convicted of two offences. Firstly, the possession of an offensive weapon, namely, a baton and also the possession of an electric torch taser, which was deemed to contravene section 5 (1) (b) of and Schedule 6 of the Firearms Act 1968. X received a 12-month Community Order and a small fine. X claimed that the paranoia he suffered following the assault led to him keeping the offensive items in the boot of his car for protection.

The CICA were notified of this unspent conviction and advised that X was no longer eligible to receive an award of compensation.

X had fallen victim to the unspent conviction rule and was left with no other avenues of compensation following the violent attack to which he was a victim of.

It is cases such as this which highlight the strict rules of the CICA regarding the unspent convictions rule and the perceived injustices, particularly for victims whose offences are intricately linked to the incident which gave rise to their claim in the first place.

It remains to be seen whether reform of the Scheme will be implemented by the current government, or whether victims of violent crime will continue to fall foul of the unspent convictions rule.