1. The SEC hears appeals against CICA decisions taken on review, and appeals against awards (2012 Scheme paras 125–134): the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI 2008/2685 and Tribunals Service, Practice Statement, ‘Composition of Tribunals in relation to matters that fall to be decided in criminal injury compensation cases in the Social Entitlement Chamber on or after 3rd November 2008’. SEC's decisions on the Scheme can, apart from some minor instances, only be challenged by way of judicial review to the Administrative Appeals Chamber of the Upper Tribunal: Tribunals, Courts and Enforcement Act 2007, s 15, Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, Practice and Guidance Statement (CI-6); and see NF v First-tier Tribunal and CICA [2012] UKUT 287 (AAC). CICA's procedures for the reconsideration, reopening and review of claims officers' decisions are unaffected: 2012 Scheme paras 109–113, 114–116 and 117–124, respectively.

2. The National Audit Office's 2007 review found that neither CICA nor CICAP had performed well against the targets they had set for themselves: NAO Compensating Victims of Violent Crime, HC 100 (2007); House of Commons Committee of Public Accounts Compensating Victims of Violent Crime, Fifty-fourth Report of Session 2007–08 HC 251 (2008). Since then, CICA has improved the speed with which it processes claims: CICA Annual Report and Accounts 2011/12, HC 296 (2012) pp 9–10. In the interests of space, a reference to a CICA Annual Report and Accounts will, following the first full reference, be cited simply as ‘CICA (report year)’. The Tribunals Service Annual Report and Accounts 2010/11 HC 1245 (2011) Table B p 16 suggested that the particular problems that the NAO identified concerning delays in disposing of appeals were continuing.

3. Ministry of Justice Cm 8288 (January 2012). There is a substantial literature on the relationship between victims and the criminal justice system: see RockP Constructing Victims' Rights (Oxford: Oxford University Press, 2004); BottomsA and RobertsJ Hearing the Victim (Abingdon: Willan Publishing, 2010); HallM Victims and Policy Making (Abindson: Willan Publishing, 2010); HoyleC ‘Victims, the criminal process, and restorative justice’ in MaguireM , MorganR and ReinerR (eds) The Oxford Handbook of Criminology (Oxford: Oxford University Press, 2012), ch 14.

4. See eg Office for Criminal Justice Reform Working Together to Cut Crime and Deliver Justice a Strategic Plan for Criminal Justice 2008–2011: an Overview (November 2007) s 3, p 16. For a recent critique of the ‘rebalancing’ agenda, see McEwanJ ‘From adversarialism to managerialism: criminal justice in transition’ (2011) 31 Legal Stud 519, 534–536.

5. Ministry of Justice, the Criminal Injuries Compensation Scheme 2012, which came into effect on 27 November 2012 (‘2012 Scheme’). See also CICA A Guide to the Criminal Injuries Compensation Scheme 2012 (28 November 2012) (‘2012 Scheme Guide’).

6. See GreenDamian MP (Minister for Policing and Criminal Justice), Hansard HC Deb, vol 552, col 940, 7 November 2012.

7. ‘The way Government money is spent should, in other words, make good sense for victims and witnesses and it should make good sense for the taxpayer’: Ministry of Justice, Getting It Right for Victims and Witnesses: the Government Response, Cm 8397 (July 2012) para 2.

8. Home Office Compensation and Support for Victims of Crime (2004) and Rebuilding Lives: Supporting Victims of Crime, Cm 6705 (2005); see MiersD ‘Rebuilding lives: operational and policy issues in the compensation of victims of violent and terrorist crimes’ [2006] Crim L R 695.

9. See Hansard HC Deb, vol 549, col 556, 7 September 2012, and the First Delegated Legislation Committee Session 2012–13 (10 September 2012). The draft Scheme was also badly received in the Lords, though it was (barely) approved: see Secondary Legislation Scrutiny Committee (2 July 2012) HL Paper 36 (published 19 July 2012), and Hansard HL Deb, vol 739, col 719, 25 July 2012. The amendment, ‘that this House regrets that, despite the Government's claims to be on the side of victims, this scheme would actually cut financial compensation for an estimated 92 per cent of victims of crime, many of whom will be considerably worse off through no fault of their own and will find redress much more difficult in the future because of cuts to legal aid’, though attracting much support, was disagreed on a vote.

10. See Seventh Delegated Legislation Committee Session 2012–13 (1 November 2012) col 5 (Helen Grant MP, Parliamentary Under-Secretary of State for Justice). The Scheme survived a further Opposition challenge before being formally approved on 12 November 2012: Hansard HC Deb, vol 552, above 6, col 933; Hansard HC Deb, vol 553, cols 141, 161, 12 and 13 November 2012.

11. Ministry of Justice, above 3, Foreword p 3. The consultation document was supported by an extensive evidential base published as two Equality Impact Assessments as required by s 149 of the Equality Act 2010. One accompanied Part 1, Getting It Right for Victims and Witnesses; the second accompanied Part 2, Reform of the Criminal Injuries Compensation Scheme; hereafter EIA(1) and EIA(2), respectively.

12. Ministry of Justice, above 3, para 8.

13. Ministry of Justice, above 3, paras 29–62, and above 7, para 21.

14. These include a reformed Victim's Code, a clear commitment that the Victim Personal Statement is to be taken into account in sentencing, and more focused guidance for victims and witnesses attending trial or giving evidence: Ministry of Justice, above 3, paras 63–109; EIA(1), paras 56–62. See also the Directive of the European Parliament and of the Council establishing minimum standards on the rights, support and protection of victims of crime COM (2011) 275 final (18 May 2011), adopted by the European Parliament on 12 September 2012, which these proposals are intended to complement; Ministry of Justice, above 3, para 12.

15. A court has had power since 1972 to order the offender to pay compensation on conviction, which in 1982, and re-enacted in s 130 of the Powers of Criminal Courts (Sentencing) Act 2000, became a duty to give reasons why it had not done so; £30 million was paid by offenders in 2010/11. This duty becomes more onerous by virtue of s (2A), added by s 63 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012: ‘A court must consider making a compensation order in any case where this section empowers it to do so’ (emphasis added).

16. Ministry of Justice, above 3, paras 110–166; EIA(1) paras 63, 87–120. The expected £50 million additional revenue from the Surcharge will be used to support victim services, substituting for the equivalent expected saving on the Scheme: see Hansard HC Deb, above 6, col 940 (Damian Green MP); the increases are set out in the Criminal Justice Act 2003 (Surcharge) Order 2012, SI 2012/1696.

17. Ministry of Justice, above 3, para 172.

18. Ministry of Justice, above 3, Foreword p 4; and see the Secretary of State, ‘proper protection and support for those who have suffered at the hands of criminals is a fundamental part of a civilised justice system’, Hansard HC Deb, vol 539, col 551, 30 January 2012.

19. ‘The Criminal Injuries Compensation Scheme was set up in 1964 to compensate blameless victims of violent crime. Before 1996, awards were set according to what the victim would have received in a successful civil action against the offender’: CICA (2011/12) p 2. For the history of the Scheme, see Miers, State Compensation for Criminal Injuries (London: Blackstone Press, 1997) pp 9–13; and for a detailed analysis of the pre-2012 revisions,Google Scholar Padley, C and Begley, L Criminal Injuries Compensation Claims (London: The Law Society, 2005) andGoogle Scholar Begley, L, Downey, A and Padley, C Criminal Injuries Compensation Claims 2008 (London: The Law Society, 2010) Part 3.Google Scholar

20. For the government, ‘seriously injured’ in this context means injuries that are in themselves severe or are so by virtue of their duration or permanence: see Hansard HC Deb, above 6, cols 942, 945 (Damian Green MP). On the historical relationship between crimes and torts against the person, see DysonM ‘The timing of tortious and criminal actions for the same wrong’ (2012) 71 CLJ 86.

21. In the first edition of Accidents, Compensation and the Law (London: Weidenfeld and Nicolson, 1970) p 324, Patrick Atiyah was characteristically critical of the decision to privilege injured victims of violent crime over victims of accidentally caused injury and disease who also had no (realistic) civil remedy.

22. Ministry of Justice, above 7, para 22. See Miers, above 8; the analysis is drawn from P. de Greiff, ‘Justice and reparations’ in P de Greiff (ed) The Handbook of Reparations (Oxford: Oxford University Press, 2006) pp 461–464; see also MatraversM ‘The victim, the State, and civil society’ in Bottoms and Roberts , above 3, ch 1.

23. ‘The Government owes it to victims of crime to ensure as far as possible that offenders are caught, that they are punished, and that they are dealt with in a way that reduces the likelihood of their re-offending and creating more victims’: Ministry of Justice, above 3, para 1 (emphasis added).

24. The Home Secretary, introducing the 1995 Act, Hansard HC Deb, vol 260, col 734, 23 May 1995; and see the government's comment on the 2008 revision: ‘The scheme does not make the state liable for injuries caused to people by the acts of others. It is a recognition of the public feeling of sympathy and solidarity with blameless victims of violent crime. Since 1964, the state has sought to provide a monetary award on behalf of the community that is not compensation for all of the injuries suffered, but a recognition of that solidarity, fellow feeling and sympathy’: First Delegated Legislation Committee Session 2007–08 (14 July 2008) col 13 (Maria Eagle MP, Parliamentary Under-Secretary of State for Justice).

25. 2012 Scheme Guide s 1 para 1. But the restrictions introduced by the 2012 Scheme equally prompted the following objection. ‘I want to ask Government Members seriously to consider when they vote that if the scheme is adopted, the Government and those who voted for the scheme will be remembered for being tough on crime and tough on the victims of crime’: Seventh Delegated Legislation Committee, above 10, col 21 (Teresa Pearce MP).

26. See the range of provision across the EU: European Commission Directorate-General Justice Freedom & Security Analysis of the Application of Directive 2004/80/Ec Relating to Compensation to Crime Victims Synthesis Report (Matrix Insight, 12 December 2008).

27. Compensating only deserving victims helps to reinforce the ‘rebalancing’ agenda by differentiating their beneficial treatment from perceived ‘soft’ sentencing regimes or otherwise inappropriate use of public money on undeserving offenders. ‘Absurdly, tens of millions of pounds have been spent on compensation for people who are themselves convicted criminals’: Ministry of Justice, above 3, p 3. See also the Secretary of State's comment when introducing his Victims and Witnesses Strategy, that criminals should be required to ‘contribute to the costs of victims’ services, instead of being able to make claims as if they were blameless, law-abiding victims of crime themselves': Hansard HC Deb, vol 539, col 551, 30 January 2012. See McEwan, above 4; WarnerK and DavisJ ‘Using jurors to explore public attitudes to sentencing’ (2012) 52 B J Crim 93.

28. Ministry of Justice, above 7, Foreword p 4.

29. That is, to protect payments to those most seriously affected by their injuries and to recognise public concern for particularly vulnerable groups and for those who have been the victims of particularly distressing crimes: Ministry of Justice, above 7, para 150.

30. Ministry of Justice, above 3, para 22. This is not a new concern. Against a backdrop of increases in crimes of violence and of victims' willingness to report them, the government commented in 2004, ‘there is a serious risk that the number of claims paid out under the CICS will increase’: Home Office, above 8, ch 3, Risk Assessment, paras 10–13.

31. Ministry of Justice, above 7, para 149.

32. GrantHelen MP, Hansard HC Deb, vol 553, col 161, 13 November 2012.

33. Ministry of Justice, above 7, para 160. ‘There are two problems with the scheme as it stands: the policy rationale, which is flawed, and the scheme's affordability. The policy problem is that the scheme is not currently clear just what a crime of violence is’: GreenDamian MP, above 6, col 941.

34. ‘Directly attributable’ implies ‘an approach somewhat narrower than is taken to the concept of causation in, for example, the common law of negligence’, and thus not simply objectively foreseeable': R v CICB, ex parte Williams [2000] PIQR Q339 [40] per Laws LJ. All three of the defined criminal injuries (paras 4–6) must be sustained in ‘a relevant place’. This means (para 8) ‘Great Britain or any other place specified in Annex C’, which restates the notes on jurisdiction contained in earlier Schemes.

35. For the judiciary, ‘a crime of violence’ was not a term of art but a ‘jury question’ whose answer depends on ‘a reasonable and literate man's understanding of the circumstances in which he could under the Scheme be paid compensation for personal injury caused by a crime of violence’: R v CICB ex p Webb [1987] 1 QB 74, 77G per Lawton LJ, approved in R v CICAP ex parte August and Brown [2001] QB 774 [15] per Collins J.

36. Of 57,480 applications resolved in 2011–2012, 30,219 were disallowed, of which 3201 (10.6%) did not result from a crime of violence: CICA (2011/12) p 14.

37. 2012 Scheme, Annex B para 2(1)(a). CICA Annual Report and Accounts 2002/03 HC 451 (2004) p 7, case study three (attack with baseball bat); CICAP Annual Report and Accounts 2004–05 HC 849 (2006) p 19, case study (victim injured by catapulted stone). In the interests of space, a reference to a CICAP Annual Report and Accounts will, following the first full reference, be cited simply as ‘CICAP (report year)’. And see 2012 Scheme Guide s 2 para 6.

38. CICA Annual Report and Accounts 2004/05 HC 1427 (2006) p 7, case summary one; CICAP Annual Report and Accounts 2003/04 HC 1120 (2004) p 20, case study three; CICA v CICP/FTT and TS [2012] UKUT 444 (AAC). Concerned that awards were being made where the dog's owner was only reckless as to the possibility of injury to another ( Ministry of Justice, above 7, para 159), Annex B para 4(1)(c) of the 2012 Scheme provides that an injury resulting from an animal attack will not be a criminal injury ‘unless the animal was used with intent to cause injury to a person’. One of the principal objections raised in the debates concerned injuries to postal workers caused by uncontrolled dogs, but the government was clear that the Scheme should extend only to cases where the dog was used (and see below on the analogy with the use of a vehicle), ‘as a weapon’: GreenDamian MP, above 6, col. 946. By implication, and as discussed below, the Scheme was not designed to compensate injuries sustained in the course of a person's employment.

39. 2012 Scheme, Annex B para 2(1)(c).

40. This covered applicants who were present during the robbery of another as well as where they were themselves victims of an attempted robbery: CICA Annual Report and Accounts 2000/01 HC 705 (2002) p 10, case summary one. The applicant must meet both the subjective and the objective tests of ‘fear’; see HW v FTT (SEC) [2010] UKUT 199 (AAC).

41. Chan-Fook (1994) 99 Cr App Rep 147; Ireland [1998] AC 147; D [2006] EWCA Crim 1139; where it is persistent, the offender commits an offence under the Protection from Harassment Act 1997, not of itself a crime of violence.

42. As the Independent Parliamentary Inquiry into Stalking Law Reform found was not always present in such cases: Justice Unions' Parliamentary Group (Chair: Rt Hon Elfyn Llwyd MP, February 2012).

43. Ministry of Justice, above 7, paras 156, 161. By s 4A of the Protection from Harassment Act 1997 (inserted by s 111 of the Protection of Freedoms Act 2012), stalking involving fear of violence or serious alarm or distress to a person is a criminal offence, which could found a successful claim.

44. Sexual Offences Act 2003, ss 66–68.

45. In determining whether the injury was caused by a crime of violence, ‘it is necessary to look at the nature and not the consequences of the unlawful conduct’: [2001] QB 774 [24] per Buxton LJ, approving Wien J's dictum in R v CICB, ex p Clowes (1977) 65 Cr App Rep 289, 298 that the injury be caused by ‘some crime which by definition as applied to the facts of a particular case involves the possibility of violence to another person’. Conversely, as the government put it, the fact that a person's actions are technically capable of being a crime – even a crime giving in some way to injury – does not mean the crime will definitely be a crime of violence: Ministry of Justice, above 3, para 179. Thus the trauma that a person suffers following a false accusation of rape for which the accuser was convicted of perverting the course of justice cannot ‘reasonably be described as a crime of violence. Nor, in the present circumstances, do the consequences serve to illuminate the nature of the crime itself’: HW v FTT (SEC) [2010] UKUT (AAC) 199 [27] per Nichol J.

46. Because they are not necessarily acts ‘of a violent nature’, the Scheme has always specifically included arson, fire-raising and poisoning. The consultation and government response confirmed that ‘for the removal of any doubt’, they would continue to be included, presumably by name: Ministry of Justice, above 3, para 183, and above 7, para 157. But Annex B para 2(1)(e) specifies only ‘arson or fire-raising’.

47. CICA (2000/01) p 10, case summary four (first aider); CICA (2002/03) p 6, case summary two (school teacher); CICA Annual Report and Accounts 2003/04 HC 1196 (2006) p 8, case summary two (immigration officer).

48. This comment was made in the context of yearly payments averaging £11.6 million: Home Office (2004), above 8, p 21. Its proposals that both public- and private-sector employers should in these cases assume responsibility for compensating their employees generated strong opposition, in particular from the police, who accounted for 48% of the awards made under this heading in 2004/05, totalling £4.8 million: Home Office (2005), above 8, Annex 3 para 28. Some respondents to the consultation on loss of earnings suggested ‘removing all claimants who sustained a criminal injury in the workplace from eligibility to claim’: Ministry of Justice, above 7, para 192. Because the 2012 Scheme has substantially restructured tariff awards, the number of applicants likely to be eligible for loss of earning payments (now based on statutory sick pay) will be much reduced.

49. ‘We believe that it is important to support the work of the police and those individual citizens who take action to prevent crime’: Ministry of Justice, above 3, para 184. Its continuance also disarms what would otherwise be a politically uncomfortable encounter with the Police Federation.

50. The ‘exceptional risk’ condition was introduced some years ago to limit the number of police claims for accidental injuries while chasing offenders. What might be exceptional for a citizen (tackling an armed offender) might not be so for a police officer. ‘When deciding if the risk was exceptional, we will consider if what you did was unusual, and was not something which you were trained to deal with’: 2012 Scheme Guide s 2 para 14.

51. Under the earlier Schemes, this provision applied where mental injury was the only injury in respect of which a claim was being made, forming part of the scope of ‘personal injury’. Its inclusion as a criminal injury follows from the restructuring of the definitions of a ‘criminal’ and a ‘personal’ injury within the 2012 Scheme.

52. ‘Those who drafted paragraphs 8 and 9 [of the 2008 Scheme] may well have had in mind what they discerned to be principles governing civil liability in tort. The test for the purposes of the Scheme, however, is not what may or may not have been the principles of civil liability in tort at the time the Scheme was drafted. Still less is it what may or may not be principles of civil liability current at the time when the claim is made or the case comes before the tribunal. What the tribunal must consider is the test as described in paragraphs 8 and 9 of the Scheme’: RS v First-tier Tribunal & CICA [2012] UKUT 205 (AAC) [13] per Walker J.

53. See CICA's strict interpretation of the phrase ‘immediate aftermath’ in AP v First-tier Tribunal & CICA [2011] UKUT 368 (AAC); and 2012 Scheme Guide s 2 para 17.

54. It was under this provision that CICA was able to compensate victims who suffered mental injury in Great Britain when witnessing in real time the deaths of their relatives in the Twin Towers on 9/11. Not being personally ‘involved in its immediate aftermath’, the applicants satisfied the alternative condition of being temporally ‘present on the occasion when the other person sustained the injury’. This will not be possible under the 2012 Scheme, which requires the crime of violence to have been committed in Great Britain or other ‘relevant place’: above 34. Those victims who survive such an incident in the future or who are their dependants will be compensable under the Victims of Overseas Terrorism Compensation Scheme made under ss 47–54 of the Crime and Security Act 2010, which is based on the domestic scheme and was approved with it: Seventh Delegated Legislation Committee, above 1, col 26.

55. Ministry of Justice, above 3, para 177.

56. The injuries defined in the Scheme ‘will only constitute a crime of violence if there was intention on the part of the assailant to cause you harm, or if the injury sustained was because of the intentional or reckless behaviour of an individual who was likely to have foreseen that their actions could cause significant injury to another, and proceeded to act regardless of this outcome’: 2012 Scheme Guide s 2 para 5. By Annex A of the 2012 Scheme, ‘“assailant” means a person responsible for the criminal injury which is the subject of the application’.

57. The 1995 Act, s 3(2); the applicant is likewise required to meet the civil standard on any matter on which a claims officer must be satisfied.

58. By Annex B para (2), ‘An act or omission under sub-paragraph (1) will not constitute a crime of violence unless it is done either intentionally or recklessly’; CICA Annual Report and Accounts 2001/02 HC 450 (2003) p 12, case summaries one and two, and (2002/03) p 7, case summary four. In essence, the claims officer must be satisfied that there is sufficient evidence to warrant a finding that the injury was caused by a crime of violence, rather than being an accident. The finding may be hampered in cases where there is a reporting delay (R (on the application of VA) v First Tier CICAP [2009] UKUT 147 AAC) or where there are conflicting accounts of the incident (R v CICAP, ex p Gravett [2001] EWCA Admin 1193).

59. By para 9 of the 2012 Scheme, ‘A person may be eligible for an award under this Scheme whether or not the incident giving rise to the criminal injury to which their application relates has resulted in the conviction of an assailant in any part of the United Kingdom or elsewhere.’

60. CICA might reject an application in whole or in part where the victim provoked the assault, and even where the jury must have rejected the assailant's defence of self-defence: 2012 Scheme para 25 (see text below). Conversely, an acquittal (because the Crown could not discharge its burden of proof) does not mean that on the civil standard there was no assault: see CICA (2000/01) p 14, case summary three. ‘But it will be a very rare case indeed where a payment is made in relation to circumstances which did not amount to a criminal offence for technical legal reasons’: Ministry of Justice, above 3, para 180.

61. Annex B para 3 of the 2012 Scheme provides that, ‘In exceptional cases, an act may be treated as a crime of violence where the assailant: (a) is not capable of forming the necessary mental element due to insanity; or (b) is a child below the age of criminal responsibility who in fact understood the consequences of their actions.’ This continues the long-standing provision concerning age and insanity, but omits diplomatic immunity, which figured in para 20 of the 2008 Scheme, and which the consultation indicated would be specified: Ministry of Justice, above 3, para 182.

62. The emphasis on ‘the need to demonstrate a hostile act directed towards the victim, in my view, expresses the test too narrowly’: [2011] EWCA Civ 400 [28] per Patten LJ. In determining whether an assailant was reckless, CICA is bound to follow R v G and R [2003] UKHL 50. But in this case the application of the now rejected objective test of recklessness would probably conclude the matter in the applicant's favour.

63. [2011] EWCA Civ 400 [26]: ‘most reasonable people faced with those facts would, I think, conclude that this was a crime of violence’. On appeal, the Supreme Court restored the FTT's decision. The Court of Appeal had focused too closely on whether a s 20 offence had been committed rather than whether the suicide's actions amounted to a crime of violence; the question whether he did actually foresee this possibility of harm to another was for the FTT to answer, which it had. [2013] UKSC 19 (17 April 2013).

64. Ministry of Justice, above 3, para 180, and above 7, para 154.

65. By Annex A of the 2012 Scheme, ‘“applicant” means the person for whose benefit an application for compensation is made’.

66. The victim in DPP v DA [2001] Crim L R 140, whose friend shot and blinded him in one eye while they were playing with air pistols, would be compensable if it could be inferred that the friend had the relevant fault element. What appears to be an accidentally caused injury may subsequently be seen to have been a deliberate act: CICA (2004/05) p 8, case summary three.

67. The times 29 December 2006, 25 April 2007: the applicant, who was travelling well within the speed limit, could not have seen the boy; nor could the boy have seen him.

68. Consideration was given to s 22A(i)(a) of the Road Traffic Act 1988 (causing danger to road users), but in Jones the FTT did not consider that the deceased's actions met the elements of this offence, and the Court of Appeal did not pursue the point: [2011] EWCA Civ 400 [10]. In reaching a decision based on s 20 of the 1861 Act, CICA is bound to follow the interpretation reached in Savage [1992] 1 AC 699 that a person acts ‘maliciously’ who foresaw that some physical harm to the victim, albeit of a minor character, might result. Where the defendant is a child, the question is whether an ordinarily prudent and reasonable child of the same age and in the same situation would have realised that his actions gave rise to a risk of injury: Orchard v. Lee [2009] EWCA Civ 295, and see R (GI) v FTT & CICA [2011] UKUT 83 (AAC).

69. Above 61; and see Ministry of Justice, above 3, para 181: ‘Exceptional cases include some cases where an injury arises from a criminal act done by a child even where the child could not be criminally responsible for it. Payments will not normally be made, though, where injuries arise from risks against which those responsible for children should be expected to guard, for example, where injuries arise in controlled situations (in schools or clubs, or where there should be supervision) or from accidents caused by children.’ Blake v Galloway [2004] 3 All ER 315 brings ‘horseplay’ amongst children within the notion of implicit rule-bound activities.

70. Barnes [2004] EWCA Crim. 3246 [28]. Being deliberately kicked in a rugby match would fall outside the normal sporting (or ‘legitimate’) play: CICA (2002/03) p 8, case summary three.

71. It should be noted that even where CICA concludes that the assailant intentionally or recklessly cause the victim's injury when playing games of this kind, any compensation may be reduced under para 25 (applicant's conduct): see text below. Would CICA refuse an application by a person injured in a dangerous entertainment that goes wrong? S Cooper and M James ‘Entertainment: the painful process of rethinking consent’ [2012] Crim L R 188.

72. 2008 Scheme para 8(c); s 34 of the 1861 Act. Where a child plays ‘chicken’ on a railway line, such that a train driver is unable to stop her train from hitting and killing him and herself sustained mental injury as a result, her application would have readily fallen within para 8(b), as the boy would have committed an offence of trespass on a railway: see The times, 9 June 2005, and by contrast, above 67.

73. R v CICB, ex parte Webb, above 35.

74. Home Office (2005), above 8, p 21; for an example, see CICAP Annual Report and Accounts 2005/06 HC 1428 (2006) p 49, case study one (reported in connection with the question whether the applicant's mental injury was ‘disabling’ within the Scheme).

75. Home Office (2004), above 8, para 5.4: at this time the annual cost to the Scheme was £0.5 million – Home Office (2005), above 8, Annex 3 para 28. The government was unable to generate a consensus around proposals to remove this provision: Home Office Compensation and Support for Victims of Crime: Summary of Responses (July 2004) s 3.4 (iii).

76. Ministry of Justice, above 3, paras 178, 185, and EIA(2) para 96. Because a high proportion of railway workers are male, the proposal is likely to have a greater effect on men, though EIA(2) could not identify any differential effect on specific age groups: paras 88, 95–96.

77. Responses from some trades unions argued that this provision should be retained, but the government was not deflected from its purpose: Ministry of Justice, above 7, para 155. The revision will also exclude uncontroversial cases unless the trespassing offender committed a crime of violence of which an injured train driver or passenger was a ‘direct victim’.

78. 2008 Scheme, para 11. Using the vehicle as a weapon would readily include driving at a police officer who is seeking to apprehend the driver, or driving at another person in a fit of ‘road rage’: Tait v CICAP [2009] EWHC 767 (Admin), where Stadlen J held that CICAP's decision that a driver's motive in ramming a police car so as to enable his escape was inconsistent with a finding that it was used ‘deliberately’ to inflict injury was in error; in the circumstances, injury to the occupants of the police car was very likely if not inevitable. But an attack in person in a road rage incident will simply be a crime of violence: CICAP (2003/04), case study four.

79. Of the 30,219 applications disallowed in 2011/12, 312 were normal motor vehicle cases: CICA (2011/12) p 14.

80. [2000] RTR 21, 27E–F. The court also dealt with a rejected claim by a victim struck and injured by an untraced motorist in a public house car park, and with the same outcome: R v CICB, ex parte Keane. The court's interpretation went well beyond the underlying policy, excluding cases to which its terms simply could not apply; most obviously injuries caused by reckless cyclists: CICAP (2005/06) p 49, case study two.

81. 2012 Scheme, Annex B para 4(2). A swimmer injured by a recklessly piloted jet ski (for which the user is not required by law to be insured) would be excluded. See the Scottish claim in which the ‘culpable and reckless conduct’ of the driver of the motor boat towing the applicant's inflatable ‘doughnut’ caused him to be injured by hitting a boat moored at a jetty: CICA (2001/02) p 12.

82. The consultation clearly indicated that the government intended to maintain what it (more narrowly) described as ‘offences committed by a driver in relation to road traffic’, and that ‘dangerous or reckless driving causing injury in other circumstances will not give rise to a payment under the Scheme’: Ministry of Justice, above 3, para 186.

83. Ministry of Justice, above 7, para 160. The government considered that a compensation order could also be the remedy for postal workers injured by uncontrolled dogs: Seventh Delegated Legislation Committee, above 10, col 8.

84. See Lerner, M The Belief in a Just World (New York: Plenum Press, 1980);CrossRefGoogle Scholar Christie, N ‘The ideal victim’ in Fattah, E (ed) From Crime Policy to Victim Policy (London: Macmillan, 1986) p 1;Google Scholar Rock, P ‘On becoming a victim’ in Hoyle, C and Young, R (eds) New Visions of Crime Victims (Oxford: Hart, 2002), ch 1;Google Scholar Dijk, J ‘Free the victim: a critique of the Western conception of victimhood’ (2009) 16 Int Rev Victimol 1;CrossRefGoogle Scholar

85. See Bottoms, A and Costello, A ‘The phenomenon of victim–offender overlap: a study of offences against households’ in Bottoms, and Roberts, , above 3, pp 104–106;Google Scholar Miers, D ‘Taking the law into their own hands: victims as offenders’ in Crawford, A and Goodey, J (eds) Integrating a Victim Perspective within Criminal Justice: International Debates (Aldershot: Ashgate, 2000) p 77;Google Scholar T Hope ‘Theory and method: the social epidemiology of crime victims’ and Green, S ‘Crime, victimisation and vulnerability’, both in Walklate, , above 84, chs 3 and 4, respectively.CrossRefGoogle Scholar

86. Paragraph 9(c) of the 2008 Scheme provided that in a claim arising out of a sexual offence, compensation would not be payable unless the victim ‘was the non-consenting victim of that offence (which does not include a victim who consented in fact but was deemed in law not to have consented)’. The exclusion in the first statutory Scheme was limited to those claims in which the victim of a sexual offence sought compensation only for mental injury or disease; it was broadened in the 2001 revision to include physical injury.

87. Ministry of Justice, above 3, para 186.

88. Above 45, and accompanying text.

89. Buggery contrary to s 12 of the Sexual Offences Act 1956, for which the victim's consent was, as is now the case under s 9 of the Sexual Offences Act 2003 for the offence of sexual activity with a child, irrelevant.

90. R (on the application of JE) v CICAP [2003] EWCA Civ 237 [28]: ‘In our judgment, properly understood, the court in August recognised that a crime could be a crime of violence as long as there was not “real consent”. Real consent may exclude a crime from eligibility under the Scheme. Consent that is not real will not do so. Nor will submission, which is not the same thing as consent. It is always important to assess whether the applicant can still properly be regarded as a victim. In each case, the Panel has to ask itself whether the proper conclusion on the facts is that the applicant was, in relation to what happened, a victim of a crime of violence. This will be the situation if there was no real consent.’

91. A man or woman may be deceived into thinking that sexual intercourse will improve their singing voices: the question is whether their consent in fact to a sexual assault means that the accompanying transmission of a venereal disease will not amount to a criminal injury; see the old case, Williams [1923] KB 340. Going to the nature and purpose of the act, s 76(2)(a) of the Sexual Offences 2003 Act conclusively presumes that they did not consent in law.

92. [2005] EWCA Crim 706 [49]. The presumption in s 76(2)(a) of the 2003 Act did not apply in Dica [2004] EWCA Crim 1103, so there was no rape. But he was guilty of a s 20 offence, which raises the question whether his victims, to whom he transmitted the HIV virus, sustained a criminal injury under para 4 of the 2012 Scheme, notwithstanding their consent to intercourse. If they did, they would be eligible for an ‘additional payment’ under Annex E Part B: below 151.

93. In the case of children under the age of 13, CICA has started from the assumption that compensation will be payable even where the applicant clearly consented in fact to the sexual activity: Ministry of Justice, above 3, para 186 29, and for examples, R (on the application of CD and JM) v CICAP [2004] EWHC Admin 1674 (applicant JM, 12 years of age, sexually abused over a period of years by the son of her foster carer); R (on the application of JE) v CICAP, above 90, (22-year-old but highly suggestible applicant, who was sexually abused by his cellmate while in prison); CICAP Accounts for the year ended 31 March 1999 (2000 Cm 4670) para 4.6 p 19 (12-year-old boys from broken homes, one of whom had learning difficulties).

94. R (on the application of CD and JM) v CICAP, above 93 (applicant CD 12 years of age, but clear evidence of previous sexual experience and wholly voluntary participation).

95. [1994] 1 AC 212. In R (on the application of JE) v CICAP, above 90, Lord Woolf LCJ commented [17], ‘In the case of such an offence, it would be an absurd result if a willing participant could obtain compensation for the injuries, the infliction of which had been welcomed. A willing participant is hardly a victim and the Scheme is intended to compensate victims. It is to avoid this absurdity that as the authorities make clear, consent can be fatal to a claim for compensation for an offence of violence.’

96. The government made its position very clear, proposing to extend the principle underlying the 2008 Scheme's approach to cases in which the victim has consented in fact to a violent offence: Ministry of Justice, above 3, para 186.

97. Ministry of Justice, above 7, para 162. By para 28 of the 2012 Scheme, the requirements concerning reporting to the police and cooperation with the authorities apply equally to claims in respect of a fatal criminal injury.

98. Paragraph 21 of the 2012 Scheme continues to provide that ‘an award will not be made if the assailant may benefit from the award’: CICA (2004/05) p 7, case summary two (victim cohabiting with the offender, with whom he had a long-term ‘on and off’ relationship). This needs to be read with paras 19 and 20, which impose significant constraints on injuries arising from domestic violence. The 2012 Scheme also provides by para 106(c) that a claims officer may make arrangements for ‘retaining the award until the applicant's 18th birthday’: see Ministry of Justice, above 3, para 199, and above 7, para 173.

99. 2008 Scheme, para 13(a). Of the 30,219 claims disallowed in 2011/12, 1533 were rejected for non-reporting: CICA (2011/12) p 14. CICA Annual Report and Accounts 1999/2000 HC 356 (2001) p 11, case summary (nursing auxiliary who claimed to have been attacked in the hospital but reported to neither the police nor the hospital authorities); (2000/01) p 13, case summary one (victim not reporting until 2 weeks after being discharged from hospital); (2004/05) p 7, case summary two (victim refusing to make a formal complaint to the police when they arrived at the incident).

100. Ministry of Justice, above 7, paras 171 and 176: ‘With regard to workplace injuries, we are removing minor injuries from the scheme, and consider that victims who remain eligible to apply to the scheme will have sustained injuries serious enough to warrant a report to the police (as opposed to another body such as an employer) on every occasion.’ The requirement is a principal obstacle to fraudulent claims.

101. This change refocuses the reporting requirement on the victim's capacity to report, rather than on its timing, and in so doing addresses the concerns raised in the Stern Review about the inhibitions that rape victims may feel about ‘taking the legal route’: Government Equalities Office The Stern Review: an Independent Review into How Rape Complaints are Handled by Public Authorities in England and Wales (2010) p 16, recommendation 22. On the role of the police, see ch 2 and The Government Response to the Stern Review: An Independent Review into How Rape Complaints are Handled by Public Authorities in England and Wales (London: Cabinet Office, 2011) p 15.

102. A victim who was too young to be expected to report the incident, or by reason of his injuries could not do so immediately, might be excused: 2012 Scheme Guide s 5 para 2; and see R (JC) v First-tier Tribunal Criminal Injuries Compensation: Reasons [2010] UKUT 396 (AAC), where the applicant argued that she was too traumatised by the assault to report.

103. Ministry of Justice, above 3, para 197.

104. 2012 Scheme para 22; Ministry of Justice, above 7, paras 172, 175. The Upper Tribunal's observations on the interpretation of ‘all reasonable steps’ in the earlier reporting requirement are surely relevant to what CICA might consider to be ‘as soon as reasonably practicable’. ‘The Authority and the First-tier Tribunal are required to consider all material circumstances, having regard to the purpose of the paragraph. When considering a failure to report an incident promptly to the police or other authority, it seems to me that the reason for the claimant not having done so may be highly relevant, as may the identified consequence … Moreover, in considering whether the claimant took “all reasonable steps” to inform the police, regard must be had to the position as it would have appeared to him at the time’: R (RW) v First-tier Tribunal (CIC) [2012] UKUT 280 (AAC), [26]–[27] per Rowland J.

105. 2012 Scheme Guide s 5 para 3. ‘We believe that it is vital that victims engage with the criminal justice process in order to bring offenders to justice. There are a number of organisations who offer support and assistance to victims of crime which often includes help to report crimes to the police and access justice’: Ministry of Justice, above 7, para 174.

106. Of the 30,219 claims disallowed in 2011/12, 4381 were rejected for what is now failure to cooperate in bringing the assailant to justice: CICA (2011/12) p 14. See eg CICAP Annual Report and Accounts 2004/05 p 18, case study 3 (failure to supply the police with a DNA sample to assist in forensic examination of clothing); CICA (2003/04) p 8, case summary three (victim refused to view photographs of possible offenders); (2002/03) p 7, case summary one (victim refused to attend an identity parade); (2000/01) p 13, case summary two (victim withdrawing complaint because of family pressure); Cleary v CICAP [2003] EWCA Civ 1437 (victim not cooperating because he was known to the police); R (CR) v First-tier Tribunal (CIC) [2010] UKUT 388 (AAC) (victim not pursuing complaint, but decision remitted to FTT as it had not given proper reasons for rejection).

107. ‘While you may be reluctant to bring charges (for example, if you fear a revenge attack or reprisal) the Scheme is publicly funded and you will not be eligible for a payment unless you co-operate fully with the investigation into the crime and any prosecution that follows’: 2012 Scheme Guide s 5 para 4.

108. See EIA(2) paras 140–154, which considered the impact of the proposed change on victims within ethnic minorities and of trafficking, domestic violence and homophobia, and of sexual offences.

109. Tyler, T Why People Obey the Law (Princeton, NJ: Princeton University Press, 2006). If an award is made, para 110(1) provides that the applicant may be required to repay all or part of it where a claims officer ‘is satisfied that evidence received after final payment has been made shows that the applicant: (a) has not cooperated as far as reasonably practicable in bringing the assailant to justice’, giving effect to the proposals in Ministry of Justice, above 3, para 268 and above 7, para 215.Google Scholar

110. Of the 30,219 claims disallowed in 2011/12, 1996 were rejected for not cooperating with the Authority: CICA (2011/12) p 14. Paragraph 24 addresses the chronic problem of non-responses from addresses from which the applicant had moved but not informed CICA by specifying that ‘Such failure includes repeated failure to respond to communications sent to the address given by the applicant’: see eg CICA (2004/05) p 8, case summary two.

111. [2009] UKHL 33 [29]. See generally Deakin, S, Johnson, A and Markesinsis, B Markesinsis and Deakin's Tort Law (Oxford: Clarendon Press, 2008) pp 922–926;Google Scholar The Law Commission The Illegality Defence HC 412 (2010) paras 3.11–3.41.

112. These instances are drawn from the 2012 Scheme Guide s 5 paras 7–9. For examples, see: CICA (2000/01) p 10, case summary three (victim ‘a willing participant’ in a fight, for which her alleged assailant was acquitted); (2002/03) p 8, case summary two (victim agreeing with the offender to meet in a secluded location to ‘speak about’ an argument between them); CICAP (2004/05) p 18, case study two (victim repeatedly taunting a person when the applicant had been asked to desist); R (SB) v First-tier Tribunal (CIC) [2010] UKUT 250 (AAC) (blowing a whistle in a cinema, prompting an assault). Where the applicant was engaged in a fight that he precipitated but from which he then ran away, it was necessary for CICAP to be clear that the injuries that he later sustained were in fact a continuation of the fight: R (on the application of Green) v CICAP [2008] EWHC 3501 Admin. Of the 30,219 claims disallowed in 2011/12, 2967 were rejected under this provision: CICA (2011/12) p 14.

113. QBENF 99/0526/A2, Court of Appeal (Civil Division), 18 February 2000. Although this and similar formulations were subsequently approved, in Gray v Thames Trains Lord Hoffman said [54], ‘It might be better to avoid metaphors like “inextricably linked” or “integral part” and to treat the question as simply one of causation. Can one say that, although the damage would not have happened but for the tortious conduct of the defendant, it was caused by the criminal act of the claimant?’ And see Delany v Pickett [2011] EWCA Civ 1532 [36] per Ward LJ.

114. In R (on the application of Mohammed) v CICAP [2008] EWHC 1733 (Admin), the victim, following a serious argument with the offender in his home, remained outside his house with a view to continuing the argument and to summoning reinforcements, but was in fact killed by the offender in the ensuing fight. Although the victim ‘got very much more than he bargained for’, CICAP did not err when it rejected his widow's claim under para 13(1)(d) of the 2001 Scheme, per Mitting J [27]–[28]. Compare the position in tort law: Lane v Holloway [1968] 1 QB 379 and Murphy v Culhane [1977] QB 94; see generally Deakin etal, above 111, pp 892–905.

115. The Illegality Defence, above 111, para 3.18.

116. [1996] QB 567. In Gray v Thames Trains the House preferred Lord Hoffmann's analysis of a ‘narrow’ and a ‘wide’ form of the illegality defence to one that relied on an unhelpful Latin tag (ex turpi causa): [2009] UKHL 33 [54].

117. It would be ‘inappropriate that someone who was injured in the course of illegal conduct burgling someone's home, and who struggled to escape when detained, should receive an award from public funds’: CICAP Annual Report and Accounts 1996-97 Cm 3840 (1998) p 17 para 5. It is similarly safe to assume that had the hunt protestor in Cross v Kirkby applied to CICA, his claim would have been rejected.

118. Exact figures are elusive. The British Crime Survey (Crime in England and Wales 2010/11, Supplementary Table 7.11) noted that victims believed that in nearly 50% of cases the offender(s) who attacked them in a violent incident were under the influence of alcohol. See also The Institute of Alcohol Studies Alcohol and Crime, IAS Factsheet (July 2010) p 4, http://www.ias.org.uk.

119. Under the caption ‘cutting out drunks’, the Home Office noted that ‘removing public house related incidents from the scope of the Scheme’ would save some £10 million a year; Home Office Compensation for Victims of Violent Crime: Possible Changes to the Criminal Injuries Compensation Scheme (1999) para 50.

120. The fact that the applicant had engaged in drunken verbal abuse of his attacker need not, though relevant, be the ground on which the claim would be rejected because of his conduct: CICA (2003/04) p 7, case summary one.

121. See the Stern Review, recommendation 20 and the Government Response, above 101, pp 107–108 and pp 15–16, respectively. Cf the evidential presumptions in the Sexual Offences Act 2003, s 75(2)(d) and (f), and see Ministry of Justice, above 3, para 202.

122. Of the 30,219 claims disallowed in 2011/12, 4485 were rejected on account of the applicant's bad character: CICA (2011/12) p 14.

123. See Victim Support Criminal Neglect: No Justice beyond Criminal Justice (2002) p 17, and Victim Support's Response to ‘Getting It Right for Victims and Witnesses’ The Ministry of Justice's Consultation Document, Appendix p 37 Q41.

124. The Stern Review argued that the provision should not apply to rape victims: The Stern Review, above 101, p 37, recommendation 21. The consultation acknowledged that there might be some differential impact on female sex workers (EIA(2) para 202), but the government rejected the criticism ‘that a reduction in award for a rape victim who has unspent criminal convictions implies that rape victims are accorded less protection and support from the state’: The Government Response to The Stern Review, above 101, p 16.

125. In this respect, the Scheme is one of only six of the 24 EU Member States having such schemes that responded to an EC research project conducted during 2007, though all have provisions equivalent to para 25: European Commission Directorate-General Justice Freedom & Security, above 26, s 4.3.4 pp 42–44.

126. Ministry of Justice, above 3, para 207. We might also note that in an analogous area of taxpayer-funded provision where abuse is both endemic and costly, the loss of social security benefit provision extends only to those claimants who have been convicted of benefit fraud, and that the disqualifications are of limited duration and may result in reductions as an alternative to withdrawal. The cost of benefit fraud in 2008/09 was £900 million: see DWP, Sanction Policy: in Respect of Fraudulent Social Security Benefit Claims (April 2010) s 6, Loss of Benefit Provision.

127. 2008 Scheme, para 13(1)(e); CICA (2000/01) p 14, case summary one; (2001/02) p 15, case summary two.

128. 2012 Scheme Guide Appendix 2 para 12.

129. R (PB) v CICAP [2010] UKUT 124 (AAC). Nor did it bind CICAP, which could take a more lenient or a harsher view of the applicant's criminal record; CICA (2002/03) p 8, case summary one, and Cleary v CICAP [2003] EWCA Civ 1437. Nor, of course, can it bind the supervisory tribunals.

130. R v CICB, ex parte Thompstone and Crowe [1984] 1 WLR 1234; R v CICB, ex parte Thomas [1995] PIQR 99; R v CICB, ex parte Cook [1996] 1 WLR 1097; R v CICB, ex parte Moore [1999] 2 All ER 90.

131. Ministry of Justice, above 7, para 180.

132. Ministry of Justice, above 3, para 207. The judiciary are of like mind. In R v CICB , ex parte Thomas, above 130, CICB refused to make an award to an 11-year-old boy who had been blinded in one eye in an assault on the ground of the offences he had committed after he was injured. Holding that the Board had properly exercised its discretion, Popplewell J commented at 101, ‘The purpose behind the Scheme must necessarily be that those who are involved in criminal activity should not receive money from the public purse for an injury which they have sustained.’

133. By para 2, the operative provisions of Annex D do not apply to a spent conviction, which is to be interpreted according to the Rehabilitation of Offenders Act 1974. This specifies ‘rehabilitation periods’ that run from the date of sentence; when reached, the conviction is spent and it is as if the offender had never been convicted of that offence. Some sentences can never be spent; rehabilitation periods run from 10 years to 6 months, reduced by 50% for persons aged under 18 at the date of conviction.

134. 2012 Scheme, Annex D, paras 3 and 8 list the disqualifying sentences, which include service offences. This is too lengthy to reproduce here, but includes equivalent sentences imposed by courts in Northern Ireland, an EU Member State or ‘such a sentence properly imposed in a country outside the European Union’.

135. Ministry of Justice, above 7, para 180.

136. 2012 Scheme, Annex D para 4; which by para 5 does not apply ‘where the applicant has received an endorsement, penalty points or a fine for a driving offence’; Ministry of Justice, above 7, para 181.

137. Ministry of Justice, above 7, para 181 and CICA (2003/04) p 7, case summary three (victim otherwise with a 25% reduction made a full award when protecting a woman from an assault by two armed men). But because para 3 provides that an award will be withheld in the case of ‘(a) a sentence excluded from rehabilitation’, adult victims who when young were convicted of offences that can never be spent will be ineligible even where they have ‘shown themselves to have fully reformed later in life’: Ministry of Justice, above 3, para 207.

138. The Court of Appeal's decision in Muir v CICAP [2004] EWCA Civ 1382 centred on the question of what approach should be taken where the applicant had been subject to sexual abuse as a child and was later convicted of a number of offences both before and after her application. The court held that ‘the discretion to be exercised was a broad one’, by which CICAP could ‘on a common sense basis’ properly take account of the abuse as a contributory factor in the post-abuse convictions, but offered less scope where the convictions were subsequent to making the application; per Potter LJ [21]–[23]. See also CICA (2002/03) p 7, case summary one (abuse while in care of local authority, a contributing factor to later convictions, led to a 50% reduction).

139. Claims arising from child abuse have always proved difficult, not least because of their sensitivity and the loss or deterioration of evidence consequent upon the frequent reporting delays. By para 87 of the 2012 Scheme, the standard time limit for applications is 2 years from the date of the incident, with some variation in para 88 where the applicant was aged under 18 at that date. By para 89, a claims officer may extend the limitation period: for instance, under earlier Schemes, see R (on the Application of M) v CICAP [2003] EWHC 243 (Admin); Hutton v CICA [2011] EWCA 1560); R (MJ) v FTT & CICA [2011] UKUT 402 (AAC); R (MA) v FTT (CIC) [2012] UKUT 55 (AAC). See 2012 Scheme Guide s 2 para 11.

140. Ministry of Justice, above 3, para 203 fn 35.

141. 2012 Scheme Guide, s 5 para 17. On CICA's handling of the police's evidence of their investigation of the incident and commentary on the victim, which is frequently determinative of the application, see R v CICA, ex parte Leatherland, Bramall and Kay [2001] ACD 13 QBD, discussed in Padley and Begley, above 19, s 16.4.

142. CICAP (2005/06) p 49 annex a (case study three, applicant guilty of social security fraud). Neither are they evasive about their immigration status: R (on the application of Andronati) v CICAP [2001] EWCH 1420 (Admin).

143. See R (on the application of Hudson) v CICAP [2002] EWHC 463 Admin, where the court held that there was no error when CICAP upheld CICA's decision in a claim in which the applicant's ‘common law’ husband was the victim of homicide to make a one third reduction for his conduct and then to make no award because of the applicant's failure to cooperate with the police.

144. 2012 Scheme, para 28(a), which includes the provision concerning intoxication; but paras 22–27 equally apply to dependant applicants, whose own conduct may disqualify them.

145. Ministry of Justice, above 3, para 209.

146. Ministry of Justice, above 3, para 210.

147. Funeral expenses may be awarded for the benefit of the estate in cases where the victim died as a result of the criminal injury; 2012 Scheme para 35. See below 200 and accompanying text concerning ‘qualifying relatives’.

148. Other purposes were to bring greater clarity to the process for victims, to enable government to add new descriptions of injury and to adjust their monetary values, and, by the use of the fixed injury categories, to speed claims officers' decision making.

149. Home Office, above 119, para 49. For example, when dealing with mitigation of loss, the issue is not whether ‘common law principles’ apply, but what the Scheme provides: Rust-Andrews v First Tier Tribunal (Social Entitlement Chamber) & Anr [2011] EWCA Civ 1548 [34] per Carnwath LJ.

150. There is ‘a strong case for radically simplifying the current compensation scheme so that it is quicker and more efficient, and focused on the most serious cases’: Home Office (2005), above 8, pp 3, 18.

151. In the case of multiple injuries each of whose tariff amount exceeds the minimum injury payment, para 37 provides that the applicant will receive the full amount of the highest payment, followed by 30% and 15% for the second and the third most serious injuries. This provision does not apply to ‘additional payments’ in Annex E Part B in respect of pregnancy or a sexually transmitted infection caused by a sexual offence, or in respect of infection with HIV, Hepatitis B or C as a result of any crime of violence.

152. R v CICAP, ex parte Embling [2000] PIQR Q36. By para 36, a criminal injury that accelerates or exacerbates an existing condition will qualify only for the degree of acceleration or exacerbation.

153. ‘The Scheme does not aim to provide individually tailored compensation packages covering each and every type of damage … Anybody who thinks that it does misunderstands the nature and purpose of the scheme’: Maria Eagle MP, above 24, col 13. But being originally based on a survey of some 20,000 CICB awards for pain and suffering, tariff payments include an element of compensation for mental injury: Ministry of Justice, above 3, para 211.

154. The 1995 Act, s 2(5). Paragraphs 38–41 make provision for an injury that is not described in Annex E Part A but which a claims officer considers is equivalent in seriousness to one that is. Following consideration by the FTT and the Secretary of State, a new injury payment may be added to the tariff and the applicant made an award, which is not recoverable should the government ultimately decide not to add it.

155. For example, the 2008 Scheme substantially recast the payment amounts for injuries to the brain. Together with payments for major paralysis, additional intermediate levels are included in the 2012 Scheme following a review by the FTT; Ministry of Justice, above 7, para 187. The 2008 Scheme had also amended the descriptions of injury arising from sexual offences to align with the Sexual Offences Act 2003, though the Upper Tribunal rejected the FTT's purposive approach in holding that forced oral sex should therefore be treated as rape (level 13) rather than indecent assault (level 7) on facts arising before the 2008 Scheme came into force: CICA v First Tier Tribunal & JC (CIC) [2011] UKUT 77 (AAC).

156. Ministry of Justice, above 3, para 212, and paras 172 and 174.

157. These are set out in Part 1 of the consultation and are to be paid for by overall Scheme cuts: Ministry of Justice, above 3, paras 217, 227. A number of Australian and Canadian compensation schemes have been restructured in this way, and for similar reasons; see MiersD ‘Looking beyond Great Britain: the development of criminal injuries compensation’ in Walklate , above 84, pp 337, 355–356.

158. These include reduction in the quality of life, relationship problems and emotional distress: Ministry of Justice, above 3, paras 220–223; see DolanP etal ‘Estimating the intangible victim costs of violent crime’ (2005) 45 B J Crim 958. These injuries are often associated with domestic violence and abuse in private or local authority care homes and other accommodation: see EIA(2) paras 258–267.

159. Annex E Part A lists the 20 tariff levels for all physical and mental injuries, the ‘protected’ levels being A8 (£11,000) to A20 (£250,000). Part B lists the 15 tariff levels (£1,000–£44,000) for sexual and physical abuse. In other recognition of the physical or mental trauma following a sexual offence, para 34, reversing the position under the 2008 Scheme, provides that the victim ‘will be entitled to an injury payment for whichever of the sexual assault or the mental injury would give rise to the highest payment under the tariff’. And see also the provision of ‘additional payments’, above 151.

160. EIA(2) paras 216–257 and Annex B Table 18. See also the consultation paper's analysis based on averages of the years 2008/09 and 2009/10: Ministry of Justice, above 3, Annex B.

161. The total of resolved applications in 2011/12 was 57,480, of which 30,219 were disallowed, leaving a total of 27,261 awards: CICA (2011/12), pp 12 and 14. Its Annual Reports do not give a total of the number of applicants who received a tariff award.

162. The 2012 lists these new, apportioned amounts in Annex E as levels A1 (£1000) to A7 (£6200). By virtue of the apportionment at band 6 of the 2008 tariff, the minimum level remains at £1000 (£2500×40%).

163. Ministry of Justice, above 7, para 183. There was concern that victims of workplace assaults, who ‘relied on the tariff award as their main source of compensation’ while they were absent from work, would lose out. But, as the government response noted, the tariff is not intended to be a substitute for loss of earnings: as all people who suffer injuries in the lower bands who are in employment will be entitled to statutory sick pay, ‘the state already compensates them’: Ministry of Justice, above 7, paras 183, 186. This concern also figured prominently in the parliamentary debates. In response, the government announced that ‘a £500,000 hardship fund has been established for people who are temporarily unable to work and who are not in receipt of statutory sick pay or an equivalent employer-provided scheme’, to be administered by CICA: Seventh Delegated Legislation Committee, above 10, col 6 (Helen Grant MP).

164. Under the 2008 Scheme, minor injuries that individually would otherwise be excluded by virtue of the financial threshold could be compensated at level 1 (£1000) where the victim sustained multiple injuries (eg black eyes, bloody nose, soft tissue bruising). Examples of other relatively minor injuries that are no longer included in the tariff are temporary mental anxiety (£1000); minor scarring of an upper limb (level 2, £1250, and see R (SC) v FTT & CICA [2011] UKUT 331 (AAC)); temporary deafness (level 3, £1500); temporary blurred or double vision (level 4, £1750); broken nose or teeth (level 5, £2000).

165. Ministry of Justice, above 7, para 186.

166. Ministry of Justice, above 3, para 220.

167. EIA(2), above 158, Table 18.

168. House of Commons Committee of Public Accounts, above 2, Figure 1.

169. Of the many criticisms of the revised tariff, the following is typical. ‘Of the victims of the 7 July attacks who received compensation, 60% had injuries in bands 6 to 12, including many with permanent disabilities. Even from such a major incident with many horrendous injuries, just 9% of victims would see their compensation protected under the proposals. Would MPs support denying or cutting the small amounts compensation available to over 90% of victims of a future atrocity like the 7/7 attacks?’: Seventh Delegated Legislation Committee, above 10, col 11 (Robert Flello MP, Shadow Minister of Justice), who also quoted (col 12) an unnamed FTT judge: ‘The wholesale removal of awards for current tariff levels one to five and significant reduction in awards for injury descriptions at the lower to mid-end of injury descriptions is perverse and grossly unfair to victims of crimes of violence.’

170. As the Home Office clearly indicated in the White Paper on which the ex gratia Scheme was based: Compensation for the Victims of Crimes of Violence Cmnd 1406 (1961) para 49. A response to the 2012 consultation proposing two rates for loss of earnings ‘with a higher rate to cover those claimants with a profession or professional qualifications’ received short shrift: Ministry of Justice, above 7, paras 189, 194.

171. First Tier Tribunal, Criminal injuries compensation, Practice Guidance CI-4, ‘Cap on loss of earnings’ (June 2010); the 2011 Annual Survey of Hours and Earnings gives £501 as the median weekly pay for full-time employees.

172. Ministry of Justice, above 3, para 230 (original emphasis); and see GrantHelen MP, above 32, col 161: ‘The scheme provides some payment in recognition of loss of earnings, but it was never designed to compensate for a full lifetime's loss of earnings.’

173. ‘Most of the alternatives would lead to significantly increased costs, at a time when the Scheme needs to be made sustainable’: Ministry of Justice, above 7, para 194.

174. Ministry of Justice, above 7, para 194. The government expects ‘modest’ savings of around £10 million a year on the £45 million that was paid in 2009/10: Ministry of Justice, above 3, para 233.

175. Ministry of Justice, above 3, para 234. ‘We believe that funds should be allocated to those most seriously affected by their injuries, and focussing on those with no, or very limited capacity to earn is the best way to do this’: Ministry of Justice, above 7, para 195.

176. By para 46, ‘A loss of earnings payment may relate to earnings lost before an application is determined (past loss of earnings) and such loss after the determination (future loss of earnings).’ The government's choice of statutory sick pay (Option B in the consultation; Ministry of Justice, above 3, paras 235–238) is also intended to make the Scheme ‘administratively simple both for applicants and claims officers’: Ministry of Justice, above 7, para 194.

177. Although there were differences in detail between them, the actual loss figure for the Scheme was achieved on the basis of principles that echoed those applicable in a personal injury action, the claims officer ‘calculating the applicant's net anticipated actual earnings and comparing these with his likely receipts comprising any earnings, pension benefits and DSS benefits’: Padley and Begley, above 19, p 157. See also Begley etal, above 19, ch 8 and, for an example, R (SR) v First-tier Tribunal (CIC) [2010] UKUT 460 (AAC).

178. In the case of past loss of earnings the period of loss commences, as has always been the case, in the 29th week of loss, the victim having been eligible for statutory sick pay for the preceding 28 weeks, and ends on the day the application is determined (2012 Scheme, paras 44 and 47). In the case of future loss, the period of loss commences on the day after the application is determined and ends on the day on the applicant reaches the earliest of the day on which the applicant no longer satisfies the condition in paragraph 43(1) (see text), will reach state pension age, or the expected end of the applicant's life where the criminal injury has resulted in a life expectancy below the state pension age (2012 Scheme, paras 45 and 48). For both paras 47 and 48, the weekly loss is the weekly rate under s 157 of the Social Security Contributions and Benefits Act 1992.

179. 2012 Scheme, para 49 and Annex F.

180. Ministry of Justice, above 3, para 234.

181. By para 43(2)(c) and (3), a good reason being, ‘if, for example, they were unable to work because they were in full-time education, or by reason of their age or caring responsibilities’.

182. Ministry of Justice, above 3, para 236, and above 7, para 193; see eg CICA (2004/05) p 8, case summary one. Decisions about what constitutes ‘very limited capacity for paid work’ will depend on such factors as the nature of the injury, the number of hours that someone is capable of working and the salary that a person with residual earning capacity might earn. Compare the DWP Work Capability Assessment required for claimants for Employment and Support Allowance (ESA).

183. Green Damian MP, above 6, col 946. See 2012 Scheme Guide s 4 paras 7–12.

184. A review of 99 live case files suggested ‘that any reduction in loss of earnings payments, particularly in relation to medium to long-term loss, will potentially disadvantage those applicants disabled severely enough to lose earning capacity’: EIA(2) paras 276–288, at 283, and Annex B Table 24.

185. Ministry of Justice, above 3, Foreword p 3; ‘a further key aim of reform is to put the Scheme in a more sustainable position so it can continue to offer timely compensation to victims in the long-term and provide a set of fair, realistic expectations’; EIA(2) para 290.

186. 2012 Scheme, paras 52 and 53; and by para 50, ‘An applicant who is eligible for an injury payment will be eligible for a special expenses payment if, as a direct result of an injury for which they are eligible for an injury payment, they have lost earnings or earning capacity, or been incapacitated to a similar extent, for more than 28 weeks.’

187. Unlike the common law, payments for private medical care will no longer be made; 2012 Scheme para 52(b). ‘If applicants wish to purchase health care beyond that which the NHS provides they can use some of their tariff award for this purpose’: Ministry of Justice, above 3, para 241, EIA(2) paras 294–304.

188. 2012 Scheme, para 51(c). See 2012 Scheme Guide s 4 paras 13–26.

189. 2012 Scheme, para 51(a). See commentary by Padley and Begley, above 19, p 173 on R v CICAP, ex parte DB [2002] EWHC Admin 398.

190. Social Security (Recovery of Benefits) Act 1997, and DWP, Recovery of Benefits and or Lump Sum Payments and Nhs Charges – February 2012, s 1.2: Listed Benefits Recoverable under the 1997 Act.

191. 2012 Scheme, para 55; insurance paid for entirely by the applicant is exempt. Cf Peters v East Midlands Strategic Health Authority [2009] EWCA Civ 145, where the court held that there was no reason in policy or principle why a claimant who wished to opt for self-funding and damages in preference to reliance on the statutory obligations of a public authority should not be entitled to do so as a matter of right, provided that there was no double recovery; per Dyson LJ [57]–[66].

192. 2012 Scheme, para 85; compensation orders are exempt payments under para 2 of Schedule 1 to the 1997 Act. Section 7A of the Criminal Injuries Compensation Act 1995 (inserted by the Domestic Violence, Crime and Witnesses Act 2004) gives the Secretary of State power to provide for the recovery of compensation awards from convicted offenders; not in force at the time of writing. By para 98(b), a claims officer may defer determination of an application until ‘satisfied that the applicant has taken all reasonable steps to obtain any social security benefits, insurance payments, damages or compensation to which the applicant may be entitled in respect of the same injury’.

193. EIA(2) para 299 and Annex B Table 25.

194. 2012 Scheme, para 31; the maximum figure is determined before any deductions are made under paras 24–28 (undeserving victims). On the interaction between the maximum and special expenses payments, see R (CICA) v FTT & IM (CIC) [2011] UKUT 70 (AAC) [45]–[47] decided under the 2008 Scheme provisions.

195. Paragraph 45(1) and Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injury Cases (Oxford: Oxford University Press, 8th edn, 2006) s 1.

196. CICA Annual Report and Accounts 2010/11 HC 1246 (2011) pp 10–14. The number of applications resolved may include some pre-tariff cases and will always, as here, include some from the preceding year. Nevertheless, in aggregate they give a fair indication of CICA's workload and outputs.

197. Chaplin, R, Flatley, J and Smith, K (eds) Crime in England and Wales 2010/11: Findings from the British Crime Survey and Police Recorded Crime, Home Office Statistical Bulletin 10/11 (London: Home Office, 2nd edn, July 2011)Google Scholar Table 2.04; Scottish Government, Recorded Crime in Scotland 2010–11 Table 1. There is no direct correlation between these numbers and the number of applications to CICA in that year, whose totals also include but do not disaggregate Scottish applications, on which see NAO, above 2, p 14 22.

198. And they have for many years been declining. A decade ago, there were 78,272 applications: CICA (2001/02) p 9.

199. NAO, above 2, para 2.1 and Table 5, based on its commissioned demographic analysis; Characteristics of Victims of Violent Crime Applying for Compensation (London: Atkins Management Consultants, December 2007).

200. ‘Qualifying relatives’ continue to be eligible for bereavement, dependency and child's payments (2012 Scheme paras 57–74), subject to the £500,000 maximum (para 60); see generally 2012 Scheme Guide s 4 paras 27–48. ‘We have taken into consideration the very particular position of those who lose a loved one as a result of a crime of violence. We believe that it is right, as an expression of public sympathy, for these payments to be protected at their current level’, though the rate at which dependency is calculated will be as for loss of earnings: Ministry of Justice, above 3, para 242. ‘We also propose this principle should extend to protecting the level of award for loss of a foetus, whether as a result of sexual or violent crime’: Ministry of Justice, above 7, para 205. But a crime of violence will not have been committed where, by para 4(1)(e) of Annex B, the injury ‘was sustained in utero as a result of harmful substances willingly ingested by the mother during pregnancy, with intent to cause, or being reckless as to, injury to the foetus’.

201. The 2012 Scheme also introduces new eligibility rules requiring the applicant to have ‘a defined connection to the UK’, as evidenced by residence in the UK: Ministry of Justice, above 3, para 169. Formerly, anyone criminally injured in Great Britain could apply irrespective of the duration of their presence here. These rules, which need to take account of the UK's international and EU obligations, are complex and are not dealt with here (2012 Scheme paras 10–16; summarised in 2012 Scheme Guide s 2 para 34).