Following a high court ruling, the government has launched a consultation on the ‘exclusionary rule’, which prevents victims of serious crime from accessing compensation if they have an unspent conviction. We are calling for this rule to be abolished, and for the return to a discretionary system like the one in place before 2012.
Read on to find out more about the rule, and for guidance on how to respond to the consultation by 5 August.
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What is the exclusionary rule?
The exclusionary rule is a part of the Criminal Injuries Compensation Scheme. The rule was introduced in 2012, and prevents people with unspent convictions from accessing compensation if they’re a victim of a serious crime.
A blunt instrument
The exclusionary rule takes no account of individual circumstances. There is no room to distinguish a person who was injured while committing a serious offence from someone whose conviction is completely unrelated to the serious crime they’ve been a victim of.
Fails victims of childhood sexual abuse
Evidence shows that people who experience childhood sexual abuse are at increased risk of criminalisation – either as part of the abuse or later as a result of the trauma they have suffered. And yet the exclusionary rule denies ‘victim’ status to people who have endured some of the worst crimes imaginable, simply because they have an unspent conviction.
The exclusionary rule takes no account of efforts to live a good life since receiving a conviction. People with criminal records tell us that they feel like second class citizens because of this rule. How can the system claim to support rehabilitation, while also telling people who have served their sentence that they still aren’t full members of society?
Responding to the consultation
It’s important that everyone who thinks the exclusionary rule is unfair makes their voice heard by responding to the government consultation. We’ve put together some information and guidance, based on our own response, to help you answer the questions – but it’s important to write your response in your own words. If you have been personally impacted by the rule, sharing your experiences in this consultation could be valuable.
We recommend you open the government consultation in a new tab or window, and keep this page open to refer to as you go along. The consultation is open until 5 August.
1. What are your views about the exclusionary part of the rule being retained unchanged?
Unlock’s opinion is that the exclusionary part of the rule cannot be retained unchanged under any circumstances.
- The present rule directly contradicts the government’s policy expressed in the Victims Strategy and more recently the Victims Bill to fairly compensate ALL victims of crime, particularly those of intimate partner violence or childhood sexual exploitation.
- The exclusionary rule does not consider rehabilitation; that people can and do change. It ensures a person’s behaviour since serving their sentence, including attempts to make amends, are never considered.
- In the 2012/13 annual report the then Criminal Injuries Compensation Authority Chief Executive stated the 2012 changes were ‘…designed to put the Scheme on a more sustainable financial footing by removing awards for people with the least serious injuries and focusing awards on victims with more serious injuries’. But instead, victims of serious violence and exploitation are routinely denied compensation due to the exclusionary rule.
2. What are your views on the recommendation of the Independent Inquiry into Child Sexual Abuse that the unspent convictions rule be revised so that awards are not automatically rejected in circumstances where an applicant’s criminal conviction is likely to be linked to their child sexual abuse, and that each case be considered on its merits?
Unlock strongly supports the recommendations from the Independent Inquiry into Child Sexual Abuse.
- Victims/survivors of child sexual abuse are at a hugely elevated risk of negative outcomes, including offending, whether due to direct compulsion or linked to a chaotic childhood and significant trauma.
- It is extremely difficult to create a system that could tell the difference between offences linked to abuse and those which are not. Even years after abuse has stopped, victims are disproportionately likely to suffer from mental illness, substance abuse issues and to be the victims of other kinds of crime and victimisation.
- We strongly agree that abuse victims should be considered on their own terms, but Unlock would argue that this is best achieved by considering ALL cases on their merits. This will ensure that victims of childhood sexual exploitation have the opportunity to claim compensation as well as many other deserving victims who were not officially classified as victims of abuse.
3. Do you consider that exemptions should be considered only for some applicants? (Yes/no) If so, what should the basis of the exemptions be and when should discretion be available?
No, this creates an idea that some victims are more deserving than others.
- Statutory exemptions are a black-and-white approach, which will result in victims being excluded simply because they do not exactly fit the specification given in the regulations. This does not work well with the messy complexity of the criminal justice system. The victim has no control over which specific offences their abuser was charged with.
- The Independent Inquiry into Child Sexual Abuse was only concerned with victims of childhood sexual exploitation and so made a recommendation on that basis. However, if an exemption is made for childhood sexual exploitation victims, we would ask why people who suffered from violent abuse, emotional abuse or neglect as a child, a young person or adult are not also included?
- Exemptions are not a useful way to decide which cases can continue and which will be rejected. Discretion should be available in all cases.
4. What are your views about any exemptions and guidance on exercising discretion being set out in the Scheme?
Unlock do not support the use of exemptions in this case.
- However if the government were to pursue this approach, guidance needs to be delivered separately from the scheme itself and in a form that can be regularly and transparently updated.
5. What are your views on amending the exclusionary part of the rule to reduce the number of claims that would be automatically rejected on the basis of a specified unspent conviction?
- Amending the rule would certainly be better than nothing but any attempt to do so must offer a clear and convincing argument for why some people will still be automatically rejected. We don’t believe this is good enough.
- The suggested change would still mean that at least the 100,000 people per year who receive immediate or suspended custodial sentences would be excluded.
- The length of time that any given disposal remains unspent for is not necessarily linked to the severity of the offence. The suggested change in paragraph 49 does not take this into account.
- An example of this is that summary motoring offences remain unspent for five years, longer than most prison sentences, regardless of whether person received a fine or community order.
- Some 35,000 people per year in the UK receive community sentences resulting from a summary motoring offence and as such will be rejected by the Criminal Injuries Compensation Scheme for five years. A person who receives a six-month prison sentence for ABH will stop being rejected by the Criminal Injuries Compensation Scheme 18 months after conviction. This highlights that there is no rational place to draw the line between who is and isn’t worthy of individual consideration.
6. What are your views about guidance on exercising discretion being set out in the Scheme?
See question 4.
- We believe that the guidance shouldn’t be written into the statutes because this makes it difficult to change.
- Unlock would prefer to see guidance being guidance published separately by CICA, because then it’s easier to change and improve it.
7. What are your views about removing the exclusionary part of the rule?
Unlock believes that removing the exclusionary part of the rule is the only solution that will allow the Criminal Injuries Compensation Scheme to properly compensate ALL victims of crime.
- Removing the exclusionary rule removes the idea that some victims are more deserving than others.
- Arbitrary rules excluding some people ensure that many people deserving of compensation will not receive it, no matter how carefully that line is drawn.
- There is no such thing as a ‘perfect victim’, and it is simply wrong to believe that the only ‘real’ victims are those who have never been criminalised.
- It is important to remember that this consultation is only happening at all because of a judicial review brought by Kim Mitchell, a survivor of childhood sexual abuse who was denied compensation by the Criminal Injuries Compensation Scheme because of her criminal record. Ms Mitchell was certainly a victim and that is not changed by the life she went on to live. She was eight years old when she was abused, but according to paragraph 42 of the consultation document the ‘degree of harm done to others and the cost to society’ of a subsequent public order offence was so large that there was no point in even considering the harm that she suffered as a child.
- There are complex interconnected factors underlying a person’s criminal record and history of victimisation. Sometimes one directly causes the other, but sometimes not. In many cases, victimisation and criminal behaviour are cyclical. Prior interactions with the justice system make victims less likely to speak up; and so they become easier to victimise. There is no simple way to tell how these factors influence each other, so it must always be a case-by-case decision.
8. What are your views about defining in the Scheme how discretion should be exercised?
See question 6.
9. Do you agree that we have correctly identified the range and extent of the equalities impacts for no change and each of the potential reforms set out in this consultation? (Yes/No) Please give reasons and supply evidence of further equalities impacts as appropriate.
- Unlock believes that the consultation document does not properly consider the issue of age or age-related discrimination. The victim’s age is distinct from a person’s age when they apply to the scheme, but the existing rules do not acknowledge this.
- The Criminal Injuries Compensation Scheme is structured so that, in general, claims must be made relatively quickly following victimisation. There are certain exceptions to this, the most common being where applicants were victimised as children. However, there is no consideration of this important difference in the exclusionary rule. Both historic and recent victims follow the same rules regarding automatic rejection.
- This means that most applicants to the Criminal Injuries Compensation Scheme do so with the criminal record that existed at the time that they were victimised. This is not true for people who were victimised as children. Instead they are judged based on whatever criminal record they have subsequently acquired as an adult.
- For example, a 32 year old victim is considered as the person they were when they were victimised; a 12 year old victim is not. They will be judged based on the life they lived since, and will face rejection if they happen to have an unspent conviction today.
- Additionally, childhood sexual exploitation is incredibly damaging and strongly correlated to criminalisation, both during and after abuse. And because more time has passed before a claim is made, victims are at greater risk of criminalisation and a resulting criminal record.
- The exclusionary rule discriminates against young victims who are not able to make claims at the time that they are abused. They are treated differently to adult victims and have a higher standard to be accepted by the scheme.
- Unlock agrees with the assessment made in paragraphs 18 to 21 in the Annex; that the exclusionary rule results in unequal treatment. However, we would describe these outcomes as discriminatory, which the consultation document conspicuously does not. The effects discussed may not be direct, intentional discrimination from the Criminal Injuries Compensation Authority itself, but by using decisions made earlier in the criminal justice process (sentencing outcomes) as a foundation, the Criminal Injuries Compensation Scheme inherently has the same discrimination built into it.
- There is a simple way to redress this: have a single process where each case is assessed on its own merits.