July 21 2022

Justice and the prison gates

Justice and the prison gates

Ken Clarke, the justice secretary, told MPs that changes were needed to make the Criminal Injuries Compensation Board (CICB) scheme economically sustainable.  The changes to the compensation scheme form part of a new victims’ strategy published on Monday.

Clarke said future payouts would target the most serious injuries – current levels of compensation are based on 25 bands ranging from band 1 which attracts a payout of £1000 to band 25 which is at £250,000. Under the proposals, the lower five bands would be scrapped entirely though even band 12 – covering brain injuries, including minor brain damage, well-controlled epilepsy and permanent disabling fractures – are to face reduced payments. Tariff awards for the families of homicide victims, and awards for sexual crimes or persistent physical abuse will be protected

The cuts in compensation under the scheme, which was first set up in 1964, are designed to save between £35m and £45m a year out of the annual £200m budget. A further £50m saving is to be found by extending the ‘victim’s surcharge’ to cover all people found guilty of a criminal offence (from speeding fines through to murder) with a levy ranging from £20 to £120 depending on the severity of the crime.

The compensation scheme would be extended to help British victims of terror attacks abroad (overseas nationals – in the UK less than six months –will be barred) and so foreign nationals injured or killed in a home grown atrocity like 7/7 will presumably have their visas checked by UK Borders Agency at the hospital doors or when their remains are repatriated – to ensure they don’t make any claims on our money.

Ministry of Justice officials also confirmed the much-trailed initiative to block criminal injuries compensation payments to people convicted of criminal offences – meaning a person with any criminal record will now only be able to claim compensation in ‘exceptional circumstances’. Clarke declaredthose who have committed crimes against others and have unspent criminal convictions will, in most cases, no longer be eligible to seek taxpayer compensation when others commit crimes against them’.

Of course under the present system prisoners are very unlikely to be able to able to obtain compensation from the CICB anyway – the scheme is entirely discretionary – and awards can be refused if it would be inappropriate to make a payment from public funds because of the person’s character or past behaviour. In R v Criminal Injuries Compensation Board ex parte Thompstone – the Court of Appeal upheld a decision to refuse an award to a prisoner who had been assaulted whilst in custody on these grounds – even though the prisoner did not have any convictions for violence and the conviction he did have had no connection to the injury suffered by him. It has subsequently been held in R v CICB ex parte Cook that the general operation of a policy refusing or reducing compensation to people with previous convictions is lawful – there no award was made to the wife of a prisoner who had been murdered whilst unlawfully at large from his prison sentence for armed robbery.

Last year 3,000 prisoners made claims to the CICB but – and this figure has been rather less prominent in the reporting than some others – only around 1 in TEN actually received any payout at all.

Shadow justice secretary Sadiq Khan predictably felt the changes did not go far enough: ‘My fear is whether this government will be able to deliver the justice the victims in this country deserve.’ Sadiq Khan – as people with long memories may be aware – used to be a human rights lawyer. However in regard to the concept of ‘justice’ he seems sadly blind and to be suffering from some sort of permanent amnesia – which to be fair to him would – if it was the result of a criminal act against him rather than simply political opportunism – still be within a claimable band under the new proposals.

Prisoners do still, despite politician’s best endeavors, retain some fundamental if diminishing rights – and prisons do still retain some parallel duties towards them. Any visitor to a prison in England and Wales will be struck by a short clear statement prominently displayed at the entrance – it is a ‘Statement of Purpose’  adopted in 1988 and reads: ‘Her Majesty’s Prison Service serves the public by keeping in custody those committed by the courts. Our duty is to look after them with humanity and help them lead law abiding and useful lives in custody and after release.’

I am unsure how these proposed changes fits into this statement but – unless my dictionary is very out of date – ‘humanity’ almost certainly has not be redefined to mean the complete abandonment of even the pretence that we should all be treated with fairness and equality before the law.

It also seems odd, given the staggering and acknowledged number of prisoners who have horrendous childhood and adult histories of sexual and physical abuse, that protected tariffs will of course not apply to the very people in our society in whom such abuse is most shockingly in evidence and been perpetrated against.

In 1975 the European Court in Golder, one of the first cases that reviewed how prisons were administered, famously declared ‘Justice does not stop at the prison gates’. Shamefully these proposals – if allowed to go ahead – would go some way to destroying this important and most misunderstood principle.