CIC is particularly relevant for people who have suffered abuse. Abuse is varied, covering a huge range of different situations, and we approach this topic with a very wide definition. What we view as specific to abuse is that it is something more than a one-off assault by a stranger: it comes from an abuse of power and creates or enhances a certain vulnerability. One of the clearest examples of this is historic sexual abuse.

Abusive crimes raise specific issues for those looking to claim compensation and those assisting them. I hope to outline the common pitfalls in applying for compensation for victims of abuse and convince readers of the very real benefits that CIC offers.

A person can claim if they have suffered a crime of violence, and as a result of that violence they have been injured (paras 4–21, which deal with general issues of eligibility). Fundamentally, the crime must be reported to the police [Q1], even if the perpetrator’s identity is unknown or the perpetrator is dead, and even if the offence occurred decades ago (para 22 [Q2]). Without the crime being reported to the police, no CIC will be awarded.

There are some specific restrictions on when applications should be made. For example, asylum-seekers must apply [Q3] for asylum on or before the date on which they applied for compensation (para 13 [Q4]). Victims of trafficking must be referred to the competent authority before applying to CICA (para 10.13 [Q5]). In terms of domestic violence specifically, applicants must show that they have permanently stopped living with the offender before applying (if they are 18 or over) and show any compensation paid will not benefit the offender in any way (paras 21–22).

Annex B to the scheme sets out the criteria to be used in deciding whether a crime of violence has been committed. Any crimes of violence can be committed intentionally or recklessly (Annex B para 2(2)). It includes the obvious: a physical attack or sexual assault (Annex B para 2 [Q6]). It is necessary for the injury to be of sufficient seriousness [Q7]. It is also important that victims get treatment for all potentially eligible injuries [Q8].

Compensation is awarded for a variety of injuries based on a detailed tariff (Annex E). The tariff means it is easy to work out what award an applicant might expect to receive for the injury itself. It may be necessary to obtain medical evidence of the injury sustained.

Importantly, mental injuries sustained as a result of a sexual assault can be claimed for, but only if the amount the applicant would receive for the mental injury exceeds the amount s/he would receive for the physical injury (para 35 [Q9]). Mental injuries also need to be confirmed by a psychiatrist or clinical psychologist (see the relevant injuries in the tariff in Annex E [Q10]).

In addition to the tariff award, ‘add-on’ awards can be sought. Possibly the most important is for loss of earning potential, which kicks in after 28 weeks (paras 42–49).

Further, as the system is based on the civil standard of proof (the balance of probabilities; see para 16.2 of Padley and Begley, Criminal injuries compensation claims (The Law Society, 2005 [Q11])), the eligibility of victims is even broader than it might first appear. Not only is it not necessary for there to be a successful prosecution, there doesn’t need to be a prosecution at all, or even an identified culprit. There just needs to have been a crime of violence and a report to the police, as well as, of course, an eligible injury.

The fact that a prosecution is not necessary in particularly important for sexual abuse victims. For example, in 2015/16, 1,692 rapes and 117 attempted rapes were reported to the police in Scotland (Recorded crime in Scotland, 2015–16, Office for National Statistics (ONS)/Scottish government, 27 September 2016, page 85 [Q12]). It cannot be known for sure how many rapes occurred that were not reported. In the same year, just 206 [Q13] rape cases proceeded to trial, with a 48 per cent acquittal rate (Criminal proceedings in Scotland, 2015–16, ONS/Scottish government, 17 January 2017, page 15 [Q14]).

[Q15] The application for compensation must be received by CICA within two years after the incident (para 87). This may be extended where the applicant was under 18 when injured: the two-year time limit runs from the applicant’s 18th birthday if the crime was reported before s/he turned 18; if the crime was not reported until after s/he turned 18, it runs from the date the crime was reported (para 88).

The time limit can be particularly important in cases of abuse, as the victims of historic child abuse sometimes cannot report their assault until years later. However, the is scope within the scheme for this time limit to be extended where:

There has been quite a lot of judicial support for taking a reasonably flexible approach to the time limit with respect to victims of historic abuse. In JM v Advocate General for Scotland [2013] CSOH 169, Lord Boyd of Duncansby stated (at para 20 of the judgment):

Additionally, R (MJ) v FTT and CICA (No 3) [2014] UKUT 279 (AAC) explains the Upper Tribunal’s approach to time-bar cases under the 2008 scheme. It states that ‘in cases involving child sexual abuse [it] most probably will nearly always be the case, that condition (b) [of para 18 of the 2008 scheme [Q16]] simply has no purchase’, where condition (b) read: ‘in the particular circumstances of the case, it would not have been reasonable to expect the applicant to have made an application within the two-year period.’

While this case cannot be considered authoritative, given that it relates to the 2008 scheme, which had different rules on time limits, it demonstrates support and understanding to the victims of historic sexual assault, and shows that historic sexual abuse is likely to constitute exceptional circumstances.

When demonstrating that, though late, the victim’s case should be accepted, it is not only about showing that there were exceptional circumstances; you must also show that the case can be determined without further significant investigations by the claims officer.

Generally speaking, it is good practice to front-load your case anyway: by obtaining full copies of social work records, medical records, and any other data you can obtain on the victim and the offence, you are more likely to be able to identify all of the aspects of compensation the victim is entitled to. However, it is essential to do this where the case is outside of the two-year time limit, in order to meet the relevant test.

In practice, you will need to undertake most, if not all, of the investigations that CICA would otherwise have undertaken. This may also involve proactive investigation. For example, if the victim advises that s/he has suffered mental injury as a result of being sexually assaulted, you would need to contact his/her psychiatrist, or instruct an independent psychiatrist, to substantiate this to CICA.

Ultimately, time limits are flexible but you need to understand them and understand what to do where there is a time limit issue.

It is important to identify all the elements of compensation. Legal advice and representation can assist by taking a proactive approach and ensuring all avenues are explored. People unfamiliar with the scheme may adopt a passive role and accept the first offer of compensation. For example, a person who was raped is eligible for £11,000. However, s/he may have suffered mental injuries, and consequently wage loss, which could result in much higher compensation. If someone familiar with the scheme is assisting and, where appropriate, challenging CICA, it is more likely that the maximum compensation will be obtained.

Legal advice also becomes important when a victim’s case raises issues beyond the his/her own claim, bringing up a legal point that needs to be resolved. For example, we [Q17] are currently instructed in a test case regarding the ‘same roof’ rule. There is a blanket exclusion for victims claiming compensation for abuse perpetrated by members of their family, with whom they were living, prior to 1 October 1979 (para 19), commonly known as the ‘same roof’ rule or, more accurately, the ‘same roof, same family’ rule.

We are challenging this rule on human rights grounds, arguing it is discriminatory. We have been granted permission to appeal to the Supreme Court, as although the Inner House of the Court of Session ruled that our client was discriminated against, as they could not obtain what would otherwise be a right under European Convention on Human Rights [Q18] article 1 of Protocol No 1, the court found that the discrimination was a proportionate means of meeting a legitimate aim, ie, avoiding an unknown cost burden that could affect the viability of the 2008 [Q19] scheme (MA v A Decision of the Criminal Injuries Compensation Board [2017] CSIH 46). It is our position that considerations of cost alone do not justify discrimination, and that the cost is not unquantifiable and it could be established whether it is an affordable one.

Lawyers willing to pursue these cases as far as necessary therefore have an opportunity to effect real change and vindicate the rights of vulnerable people.

Having practitioners and publicity can result in changes. For example, CICA, as a result of considerable pressure, has recently produced draft revised guidelines on child abuse [Q20]. The draft now states that it should only be in exceptional circumstances that an applicant would not be eligible for compensation where the incident involved an adult engaging in sexual activity with a child under 16. There remains a risk that children over 14 could be held to have ‘consented’ to their own sexual abuse: This is an area that undoubtedly deserves further thought.

However, it is important to continue to work for and with victims of abuse to obtain some recognition of the wrong that was done to them. Compensation is a real expression of sympathy to, and demonstration of solidarity with, people who have suffered.

Our [Q21] two tasks are to ensure potential applicants know about the scheme and apply for compensation where appropriate, with practitioners taking a critical view of the capital scheme, challenging the way it works. We hope that a broadening of knowledge will result in specialists in other areas ensuring that claims are comprehensively pursued.