Compensation in the justice system
Guidance on the different types of compensation within the justice system.
Applies to England and Wales
There are 3 routes for victims and their families to receive compensation within the justice system:
- Criminal compensation orders made by criminal courts – the offender is ordered to make financial reparation to their victim for any personal injury, loss or damage resulting from the offence, subject to means
- Criminal Injuries Compensation Scheme – a government-funded compensation scheme available to victims of violent crime
- Claims made in civil courts – victims can claim damages from perpetrators through the civil courts
Compensation orders made by the criminal courts
When someone is convicted of an offence, criminal courts can give an offender a compensation order. This means the offender compensates the victim for any personal injury, loss or damage resulting from the offence. A compensation order can be given either as a sentence in its own right or alongside another sentence – such as a fine or a community order.
Compensation orders meet one of the 5 purposes of sentencing that courts must consider when dealing with offenders: to make an offender give something back to people affected by their offences. It is not a form of punishment.
The court must give reasons if it decides not to order compensation in appropriate cases.
Amount of compensation
The amount of compensation that a court may give is unlimited.
Compensation may be ordered for any amount that the court considers appropriate, taking into account any evidence and any representations made by:
- the prosecutor – such as how much compensation the victim is seeking and any evidence demonstrating the personal injury, loss or damage that has occurred
- the offender – for example about their financial circumstances
Compensation orders are appropriate in straightforward cases where the amount of compensation can be easily calculated.
Where the offender does not have enough money to pay the full amount requested by the victim, the court may:
- reduce the amount of the compensation order which means it may not cover the full cost of any personal injury, loss or damage caused, or
- allow additional time for the offender to pay – compensation may be paid over a period of up to 3 years in appropriate cases
In setting the amount of compensation, the courts have to strike a balance between seeking compensation and not imposing debts that are unrealistic.
Any compensation to a victim is collected from an offender first, before any other financial orders given by the court, such as victim surcharge, a fine or costs.
A compensation order should benefit and not inflict harm on victims. If, for any reason, the victim does not want compensation, this should be made known to the court and respected.
Bereavement and funeral expenses
A compensation order can also be given to an offender requiring them to make payments for funeral expenses or bereavement in respect of a death resulting from an offence.
Bereavement
A compensation order in respect of bereavement may be made only for the benefit of the spouse of the deceased, or, in the case of a minor, his or her parents. Compensation orders in respect of bereavement must not exceed £15,120.
Funeral expenses
A compensation order in respect of funeral expenses may be made to benefit anyone who incurred the expenses.
Victim surcharge
The surcharge (often referred to as the ‘victim surcharge’) is a charge imposed on offenders by the court. The surcharge applies to the majority of criminal sentences and the amount the offender is required to pay will vary, depending on the severity of the sentence and the age of the offender.
The surcharge does not apply if the court discharges the person absolutely or makes an order under the Mental Health Act 1983.
The purpose of the surcharge is to ensure that offenders hold some responsibility towards the cost of supporting victims and witnesses. However, income from the surcharge does not go directly to individual victims of crime in the same way that compensation does.
Instead, income from the surcharge contributes to funding given to Police and Crime Commissioners who commission local support services for victims of crime in their communities. It also funds nationally commissioned support such as:
- rape support centres across England and Wales
- the Court Based Witness Service
- the National Homicide Service
Further information about the surcharge rates.
Compensation awarded under the Criminal Injuries Compensation Scheme
The Criminal Injuries Compensation Scheme is a government funded scheme. It compensates victims with physical or mental injury caused by a violent crime occurring in Great Britain. It also compensates bereaved families of victims.
The scheme defines a crime of violence as a physical attack, a sexual assault, a threat causing fear of immediate violence, or an act or omission of a violent nature which causes physical injury.
Compensation payments can only be made for qualifying injuries which are set out in annex E of the scheme. In addition, loss of earnings and expenses, child and dependency payments, and bereavement and funeral payments are available.
All applicants are subject to strict eligibility criteria.
The criminal injuries compensation guide contains further information about the scheme and the application process.
Immediate financial assistance is not available from the scheme. It is intended to be a scheme of last resort and where the opportunity exists to pursue compensation elsewhere, applicants should do so.
Claims in the civil courts for damages
In addition to criminal compensation, it is also possible to make a claim through the civil courts – for example, a personal injury claim against the person who committed an attack. This type of claim can include psychological harm caused to the victim.
You should seek professional advice if considering this option as the process is more complex than the criminal injuries compensation scheme and can expose you to cost risks, especially if the defendant does not have enough money to pay compensation.
Personal injury claims must be brought within 3 years of the criminal offence, although the courts may agree to extend this (for example, in historic child sex abuse claims).
It’s possible to also seek advice on funding a civil claim. For example, by entering into a conditional fee agreement (‘no-win, no-fee’ agreement) where legal costs do not have to be paid on losing a claim (although you may be liable for the other parties’ costs in those circumstances).
The civil courts require the claimant to prove the defendant was responsible for the injury/loss suffered, and the claim may be challenged.
It may be possible to seek this form of compensation even where there was no conviction for the offence in the criminal courts, as the tests used by the civil courts are different. Seeking professional advice is even more important for this type of claim as any civil claim brings costs risks.
Effect of compensation order on subsequent award of damages in civil proceedings or under the scheme
Any monies received by the victim from the offender as part of a compensation order given by the criminal courts, will normally be deducted from any subsequent award made in civil court proceedings, or any award made under the Criminal Injuries Compensation Scheme.