Pre trial cross-examination of sexual offence complainants
For many of those affected by crime, reporting the offence to the police or even securing the conviction of the perpetrator can fall short of remedying the damage sustained. It may be that the injury and trauma are so severe that additional funding is required for medical care, household adjustments, or even future therapy.
In those circumstances, there are two viable options for obtaining compensation. The first involves bringing a civil claim for personal injuries against the perpetuator of the crime. The second is for victims to apply for compensation through a government scheme administered by the Criminal Injury Compensation Authority (“CICA”). The Scheme is considered a last resort in circumstances where the assailant cannot be traced, or is unlikely to have the financial means to pay the victim compensation. Both routes are explored in a series of FAQs below.
Option 1: Bringing a civil claim for personal injury
Q: For what types of crime is compensation available?
A: Compensation is available for a number of crimes, including physical and sexual assaults.
Q: Who would the claim be against?
A: The civil claim would be brought personally against the perpetrator of the crime (known as the “Defendant”). There can be several Defendants in a case and, on occasion, organisations can be found responsible for the actions of the individual. For example, a school has some responsibility over its staff members.
Q: What types of damages can I claim?
A: An award for damages for a personal injury claim usually comprises of the following 3 elements:
Q: How do I start a civil claim?
A: It is best to request legal assistance from an early stage. Your solicitor will begin by gathering evidence of the crime, which can include details of the criminal conviction, and arrange for you to be seen by a medical expert to understand how the crime has affected you. The next step is to write a letter to the Defendant, known as a “Letter of Claim”, setting out the case against them. They will be asked to respond and provide their version of events should they deny responsibility.
Q: Is it necessary for the Defendant to have been convicted in a criminal court?
A: Civil proceedings are very different to criminal proceedings. There does not need to be a criminal conviction against the Defendant for a claim for damages to be brought, although it can be helpful to demonstrate that he or she is liable for the injury.
Q: Will I have to go to a civil court?
A: We work hard to settle cases out of court whenever possible. This involves negotiating with the other side’s legal representative to reach a fair and just outcome. Every case is different and needs to be considered on its own circumstances. If proceedings are issued in the civil courts, then you may be able to apply for anonymity, should that be a concern.
Option 2: Making an application to CICA
Q: What is the Scheme?
A: Administered by the Government via CICA, the Scheme was launched in 2012 with the view to offering financial compensation to blameless victims of violent crime who have sustained physical or mental injury.
Q: How much can you recover?
A: The total fee recoverable is capped at £500,000. It is very rare to be awarded an amount this high under the Scheme, and in 2016/2017 it was awarded to only 36 applicants claiming for injuries that ranged from moderate/ severe brain damage to sexual assault. Of the 13,662 people who were successful in obtaining the award under the Scheme, just 174 (1.3%) applicants received £100,000 and over.
The amount of the award is determined with reference to the Scheme’s Tariff (pages 43 – 70), which is a table setting out the value of each possible injury. A maximum of three injuries can be claimed, but only a percentage (30% and then 15%) of two the least severe injuries can be recovered. Loss of earnings payments can be recouped, as well as special expenses. A qualifying relative may also make a dependency or bereavement claim in respect of a deceased relative, and can claim for funeral payments of up to £5,000.
By contrast, a civil personal injury claim can run into millions of pounds, depending on the injury or the level of future care required.
Q: Who is eligible?
A: To be eligible the applicant’s injuries must be attributable to being a direct victim of a crime of violence. A “crime of violence” includes a straightforward physical attack, an act or omission, or even a sexual assault.
It is possible to claim the award as the “loved one” of a victim of violent crime if you witnessed and were present at either the incident or its immediate aftermath.
Q: Is it necessary for the person who committed the crime to have been convicted?
A: The person or persons responsible for the crime do not need to have been convicted for a claim to succeed. Indeed for this reason, a CICA claim can be pursued in circumstances where the perpetrator of the assault is unknown or unidentifiable.
Q: Is it quicker than a civil claim for personal injury?
A: In general, the process for making an application to CICA is considerably shorter than that for a civil personal injury claim.
According to CICA, you can expect to wait for up to 12 months for a straightforward claim. However, more complex cases can be considerably longer. In the CICA statistics for 2016/17, the days between submission of the application and the final a decision ranged from 0 – 4697 (12 years!). However, it should be noted that the majority of applications were processed within 12 months. A straightforward civil personal injury claim by comparison will typically last between 1 – 4 years. This is often because PI claims will involve negotiating with the other side, which can be an unpredictable process and can take time.
Q: Are there any fees involved with bringing a claim under the Scheme?
A: The application is itself free, and CICA will cover the costs of obtaining certain evidence. For instance, medical evidence will be funded by CICA where the applicant is unable to acquire the information him/herself, or where the cost of doing so exceeds £50. Where expert evidence is necessary for the proper consideration of the application, and it would be reasonable for it to do so, CICA will cover this expense as well.
As a general principle, CICA will not fund any advice or representation sought by the applicant.
Q: Do you need a lawyer to bring a claim?
A: It is not necessary to make an application to CICA through a lawyer, and indeed in 2016/7 57% of applications were made without representation.
Circumstances where it might be advisable to instruct a lawyer are where the matter is particularly complex or sensitive, requires detailed evidence, or where there are other elements at play (such as a concurrent PI claim or other legal proceedings).
Q: What are the bars to compensation?
A: An application must be submitted as soon as reasonably practical after the incident in question, and in any event within two years.
There are a number of other factors which could lead to an award being withheld or reduced:
Neither CICA or a civil claim for personal injury offer a quick fire solution. Victims of violent crime should think carefully about which will be the best fit for them in the circumstances. On the one hand, the Scheme is more advantageous than a civil claim for personal injury because it may be processed more quickly, does not require the instruction of a lawyer, and does not involve any engagement with the person who committed the offence. On the other hand, bringing a civil claim for personal injury will give you more control over the proceedings, and can ultimately be more rewarding in terms of receiving a settlement or award that more accurately reflects the pain and suffering of the injury sustained as well as any future needs.
Victims of violent or sexual crime should not shy from seeking a financial remedy to which they are entitled and, as described above, various options are available.
If you have been affected by the issues discussed in this blog, please contact a member of our Clinical Negligence or Regulatory team. Alternatively, you can contact us on 020 7814 1200 or email us at firstname.lastname@example.org.
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