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Criminal Injuries Compensation Bill

4.10 p.m.

Read a third time.

Clause 2 [Basis on which compensation is to be calculated]:

Lord McIntosh of Haringey moved Amendment No. 1:

Page 2, line 13, at end insert—
("( ) Provision shall be made for compensation to be paid for mental injury alone in accordance with such provisions of the Scheme as may be relevant, but in particular—
(a) mental injury shall not be considered an accidental injury for the purpose of any exclusions from the Scheme; and
(b) provision shall be made for compensation to be paid for mental injury alone where such injury is sustained by a person who, during the immediate aftermath of a crime of violence or offence of trespass on a railway, was involved in containing, limiting or remedying the consequences of that crime or offence, whether or not that person had a close relationship of love and affection with the person who sustained the injury.").

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The noble Lord said: My Lords, this is the first of a small and select body of amendments which we have been able to table following the very welcome publication of the second draft of the Criminal Injuries Compensation Scheme and tariff. We express our gratitude to the Government for making it possible for us to see that on Wednesday evening of last week. I am afraid that it has meant that we were not able to table our amendments until Friday, which explains why they are starred on the Marshalled List today. But I hope that, despite that short time, your Lordships will feel that it is desirable and legitimate to raise at this stage of the Bill issues arising from the new draft of the scheme and the tariff.

I emphasise that in all of these amendments which we are putting forward, we are using the text of the Bill to raise issues which we accept will be dealt with in the tariff. That is the way in which we must secure debate in this House on what are still important matters which your Lordships have to consider. &

Amendment No. 1 is concerned with a particular issue of mental injury which is defined in paragraph 9 of the new scheme as a medically recognised psychiatric or psychological illness. Paragraph 9 of the new scheme defines the circumstances in which compensation for mental injury will not be payable by defining the circumstances in which it can be payable by itself; in other words, not accompanied by physical injury or disease.

The four conditions under which compensation for mental injury can be paid are: when the applicant is put in reasonable fear of immediate physical harm; when the applicant has a close relationship of love and affection with the person when that person has sustained a physical injury; thirdly, when the applicant was a non-consenting victim of a sexual offence; and fourthly—I am merely reading out the gist of what the scheme says—when the applicant is employed in the business of a railway and has witnessed an occasion when another person sustained physical injury attributable directly to an offence of trespass. In other words, that is normally a train driver who has had a suicide on the line or somebody in similar circumstances.

So far, so good. Your Lordships may think that those requirements for compensation for mental injury alone might be broadly acceptable. But then, if one looks at paragraph 12 and in particular paragraph 12b, one sees that compensation is not payable for accidental injury by a person who is engaged in any other activity directed to containing, limiting or remedying the consequences of crime unless the person injured was, at the time that he sustained the injury, taking exceptional risk which was justified in all the circumstances.

We debated that provision at some length at earlier stages of the Bill when we were concerned with fire fighters who have protection if they are taking exceptional risks—for example, entering a burning building to rescue somebody—but not in other circumstances. I do not raise that issue again but I should point out that there is a potential conflict between paragraphs 9 and 12.

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Many of the people who may need to be compensated for mental injury—what is very often called trauma—as a result of an incident which could be caused by a criminal action will not be taking exceptional risks. They will be doing their job. They may be driving a train or bringing first aid to a victim of a criminal act. It could occur other than on the railways. Therefore, we feel that the second draft of the scheme needs to be thought out much further in order to be sure that the provisions of paragraph 12b do not negate the provisions of paragraph 9. While the Government may not necessarily wish to accept the amendment, we note that the Government will recognise that further drafting is necessary before the scheme is put before Parliament.

4.15 p.m.

The Minister of State, Home Office (Baroness Blatch): My Lords, as the noble Lord said, this amendment is aimed at the exceptional risk provisions of the draft scheme (the latest draft of which was made available last week). Under those provisions, an award is not payable for injury sustained accidentally unless the person sustaining the injury was, at the time, taking an exceptional risk which was justified in all the circumstances. The first limb of this amendment would seek to exclude mental injury from this prohibition.

We accept that employees in the business of a railway and who are deemed eligible for an award for witnessing or clearing up a suicide on a railway—under paragraph 9d of the draft scheme—may, as the scheme now stands, be excluded from an award by the effects of paragraph 12b. That was not the intention. The noble Lord is right to point that out. We shall therefore make this quite clear by adding to the end of sub-paragraph 9d the following sentence:

    "Paragraph 12 below does not apply where mental injury is sustained as described in this sub-paragraph."

I believe that that will meet the concern of the noble Lord. The second limb of this amendment is not dissimilar, and seeks to extend the scheme so that mental injury suffered by anyone involved in helping at the scene of a crime or its immediate aftermath would be eligible for compensation. I am afraid that is not acceptable.

I recognise that this is a contentious and difficult area of the common law, and one which is continuing to develop. And there is of course the work of the Law Commission, which continues to examine the position of what are generally known as "secondary victims", namely, those who have been indirectly affected in one way or another by injury inflicted on others. But, as has been made clear on many occasions during earlier stages of this Bill, we are no longer attempting to provide finely judged compensation on the same basis as before, nor attempting to match each and every head of damage that might conceivably be available under common law damages. We must set some limit on what the taxpayer can reasonably be asked to pay for. Thus, while we feel that "secondary victims" who have a close personal relationship with the victim should be able to qualify for

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mental injury under the terms of paragraph 9, we do not think it would be right to include others as suggested here, be they "professional" rescuers or anyone else.

Lord McIntosh of Haringey: My Lords, I am extremely grateful to the Minister for her response to the first part of the amendment which is clearly totally satisfactory. We look forward to seeing the amended text and, indeed, to debating that amended text in Parliament when the orders are laid.

I do not agree with the noble Baroness about the second part of the amendment. I believe that there should be more recognition of the mental as well as the physical risks which rescuers take in the course of their work, which is often unpaid and voluntary. They may be amateur rescuers; for example, from the St. John's Ambulance or the Red Cross. However, this is not an issue on which I wish to divide the House at this stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 2:

Page 2, line 13, at end insert—
("( ) Where provision is made under section 2(2)(c) for an additional amount of compensation calculated with respect to special expenses, this provision shall include an amount for unpaid care provided at home by a relative or friend of the person to whom an award is being made, whether or not that friend or relative has suffered any actual loss of earnings or incurred additional personal or living expenses.").

The noble Lord said: My Lords, Amendment No. 2 refers to paragraph 35 of the second draft of the scheme. We are grateful for the recognition in the second draft of some of the arguments that we put forward at earlier stages of consideration of the Bill. Those of your Lordships who have taken an interest in these matters will recall that we were particularly concerned that there should be compensation, not just for paid care and associated expenses, but also for unpaid care provided by friends or relatives. Apart from the argument of principle, we put forward the practical argument that if the Bill compensated paid care but not unpaid care, victims would no longer receive unpaid care but would be tempted to go for paid care instead and the taxpayer would have to pay for it. Part of that argument is recognised in the last sub-paragraph of paragraph 35 of the draft scheme which says:

    "the expense of unpaid care provided at home by a relative or friend of the victim will be compensated by assessing the carer's loss of earnings and/or additional personal living expenses".

That nearly goes far enough but not quite far enough. I apologise for continuing to press the matter. It must be recognised that often many hours of unpaid care are provided by carers which do not involve loss of earnings. The unpaid carers would not otherwise have been earning, and it would not involve additional personal living expenses. Of course, if they were not to devote themselves to the care of the victim of crime they could be earning. Therefore, I believe that what is needed is a simple additional phrase. There is a requirement for recognition of earning capacity as well as actual loss of earnings. I believe that such an

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amendment will be in the spirit of the progress that has already been made in the direction of an improved scheme. I beg to move.

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