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33 page 17, line 4, leave out "criminal"
34 page 17, line 9, after "means" insert "(a)"
35 page 17, line 9, after "offence" insert ", or
(b) a victim of anti-social behaviour"
36 page 17, line 10, after "(2)" insert "(a)"
37 page 17, line 15, leave out "criminal" and insert "relevant"
38 page 17, line 17, leave out "criminal" and insert "relevant"
39 page 17, line 19, leave out "criminal" and insert "relevant"
40 page 17, line 24, leave out "criminal" and insert "relevant"
41 page 17, line 26, leave out "criminal" and insert "relevant"
42 page 17, line 28, leave out "criminal" and insert "relevant"
43 page 17, line 29, after "(4)" insert "— (a)"
44 page 17, line 31, after "proceedings" insert—
"(b) a person is a defendant in relation to any other relevant proceedings if he might be, has been or might have been the subject of an order made in those proceedings."
45 page 17, line 31, at end insert—
"(7) In subsections (4) to (6) "relevant proceedings" means—
(a) criminal proceedings;
(b) proceedings of any other kind in respect of anti-social behaviour.
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(8) For the purposes of this section—
(a) "anti-social behaviour" means behaviour by a person which causes or is likely to cause harassment, alarm or distress to one or more persons not of the same household as the person;
(b) a person is a victim of anti-social behaviour if the behaviour has caused him harassment, alarm or distress and he is not of the same household as the person who engages in the behaviour."
46 page 17, line 34, at end insert—
"(1A) An authority specified in Schedule 6 that has functions in relation to an area outside England and Wales is within the Commissioner's remit only to the extent that it discharges its functions in relation to England and Wales.
(1B) Subsection (1A) does not apply in relation to the Foreign and Commonwealth Office."
Baroness Scotland of Asthal: My Lords, I beg to move that this House do agree with the Commons in their Amendments Nos. 33 to 46.
We are now dealing with the amendments relating to the victims' commissioner, which brings the Ministry of Defence Police and NCIS within the remit of the commissioner. They also make it clear that the victims' commissioner and the Victims Advisory Panel can consider victims of anti-social behaviour together with the others to be included.
The group of amendments extends the remit of the Commissioner for Victims and Witnesses, both by making clear that he or she will have power to consider issues relating to all anti-social behaviour, and not only criminal anti-social behaviour, and by adding extra authorities to his or her remit. This measure was sought on the last occasion that we discussed it, so I have pleasure in making that statement.
Amendments Nos. 33 to 45 and Amendments Nos. 48 to 52, which extend the definition of victims and witnesses of crime to include victims and witnesses of anti-social behaviour, will enable the commissioner to address issues, including issues arising from civil court proceedings, relating to victims and witnesses of anti-social behaviour. They will also ensure that the Victims Advisory Panel will be able to consider national policy to tackle anti-social behaviour and provide its views to the Government.
The effects of some anti-social behaviour, for its victims, can be as devastating as those for victims of theft or burglary, or other offences of that level of seriousness.
We have put in place a tough programme to address anti-social behaviour. We should like the commissioner to have powers to examine whether it has made a difference to the lives of individuals and communities and to advise on what further action we should take.
Amendments Nos. 66 and 67 bring within the commissioner's remit in Schedule 9 the Ministry of Defence police in so far as it exercises its functions in relation to the non-service criminal justice system in England and Wales, and the National Crime Squad and National Criminal Intelligence Agency, which we propose will jointly form a new serious organised crime agency in future legislation.
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Amendment No. 46 makes it clear that with the exception of the Foreign and Commonwealth Office, the commissioner's role does not extend beyond how the organisations within his or her remit discharge their duties in England and Wales.
I invite noble Lords to accept these amendments to extend, and provide greater clarity to, the role of the Commissioner for Victims and Witnesses. I hope that in that regard, while we near the end of our time, I have given a little pleasure to those who wanted this inclusion to be made.
Moved, That the House do agree with the Commons in their Amendments Nos. 33 to 46.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.
47 page 18, line 7, leave out paragraph (b) and insert—
"(b) compliance with sections (Victims of persons sentenced to imprisonment or detention) to (Victims of persons subject to transfer direction and restriction direction);"
48 page 18, line 20, after "victims" insert "of offences or anti-social behaviour"
49 page 18, line 20, after "witnesses" insert "of offences or anti-social behaviour"
50 page 18, line 21, after "offences" insert "or anti-social behaviour"
51 page 19, line 3, after first "offences" insert "or anti-social behaviour"
52 page 19, line 3, after second "offences" insert "or anti-social behaviour"
Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 47 to 52, to which I have spoken with Amendments Nos. 21 and 33.
Moved, That the House do agree with the Commons in their Amendments Nos. 47 to 52.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.
53 After Clause 33, insert the following new clause—
"RECOVERY OF CRIMINAL INJURIES COMPENSATION FROM OFFENDERS
(1) The Criminal Injuries Compensation Act 1995 (c. 53) is amended as follows.
(2) After section 7 insert—
"7A RECOVERY OF COMPENSATION FROM OFFENDERS: GENERAL
(1) The Secretary of State may, by regulations made by statutory instrument, make provision for the recovery from an appropriate person of an amount equal to all or part of the compensation paid in respect of a criminal injury.
(2) An appropriate person is a person who has been convicted of an offence in respect of the criminal injury.
(3) The amount recoverable from a person under the regulations must be determined by reference only to the extent to which the criminal injury is directly attributable to an offence of which he has been convicted.
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(4) The regulations may confer functions in respect of recovery on—
(a) claims officers;
(b) if a Scheme manager has been appointed, persons appointed by the Scheme manager under section 3(4)(a).
(5) The regulations may not authorise the recovery of an amount in respect of compensation from a person to the extent that the compensation has been repaid in accordance with the Scheme.
7B RECOVERY NOTICES
(1) If, under regulations made under section 7A(1), an amount has been determined as recoverable from a person, he must be given a notice (a "recovery notice") in accordance with the regulations which—
(a) requires him to pay that amount, and
(b) contains the information mentioned in subsection (2).
(2) The information is—
(a) the reasons for the determination that an amount is recoverable from the person;
(b) the basis on which the amount has been determined;
(c) the way in which and the date before which the amount is required to be paid;
(d) the means by which the amount may be recovered if it is not paid in accordance with the notice;
(e) the grounds on which and the procedure by means of which he may seek a review if he objects to—
(i) the determination that an amount is recoverable from him;
(ii) the amount determined as recoverable from him.
(3) The Secretary of State may by order made by statutory instrument amend subsection (2) by—
(a) adding information;
(b) omitting information;
(c) changing the description of information.
7C REVIEW OF RECOVERY DETERMINATIONS
(1) Regulations under section 7A(1) shall include provision for the review, in such circumstances as may be prescribed by the regulations, of—
(a) a determination that an amount is recoverable from a person;
(b) the amount determined as recoverable from a person.
(2) A person from whom an amount has been determined as recoverable under the regulations may seek such a review only on the grounds—
(a) that he has not been convicted of an offence to which the injury is directly attributable;
(b) that the compensation paid was not determined in accordance with the Scheme;
(c) that the amount determined as recoverable from him was not determined in accordance with the regulations.
(3) Any such review must be conducted by a person other than the person who made the determination under review.
(4) The person conducting any such review may—
(a) set aside the determination that the amount is recoverable;
(b) reduce the amount determined as recoverable;
(c) increase the amount determined as recoverable;
(d) determine to take no action under paragraphs (a) to (c).
(5) But the person conducting any such review may increase the amount determined as recoverable if (but only if) it appears to that person that the interests of justice require the amount to be increased.
2 Nov 2004 : Column 265
7D RECOVERY PROCEEDINGS
(1) An amount determined as recoverable from a person under regulations under section 7A(1) is recoverable from him as a debt due to the Crown if (but only if)—
(a) he has been given a recovery notice in accordance with the regulations which complies with the requirements of section 7B, and
(b) he has failed to pay the amount in accordance with the notice.
(2) In any proceedings for the recovery of the amount from a person, it is a defence for the person to show—
(a) that he has not been convicted of an offence to which the injury is directly attributable;
(b) that the compensation paid was not determined in accordance with the Scheme; or
(c) that the amount determined as recoverable from him was not determined in accordance with regulations under section 7A.
(3) In any such proceedings, except for the purposes of subsection (2)(b), no question may be raised or finding made as to the amount that was, or ought to have been, the subject of an award.
(4) For the purposes of section 9 of the Limitation Act 1980 (time limit for actions for sums recoverable by statute to run from date on which cause of action accrued) the cause of action to recover that amount shall be taken to have accrued—
(a) on the date on which the compensation was paid; or
(b) if later, on the date on which a person from whom an amount is sought to be recovered was convicted of an offence to which the injury is directly attributable.
(5) If that person is convicted of more than one such offence and the convictions are made on different dates, the reference in subsection (4)(b) to the date on which he was convicted of such an offence shall be taken to be a reference to the earlier or earliest (as the case may be) of the dates on which he was convicted of such an offence.".
(3) In section 9(7) (financial provisions: sums payable into Consolidated Fund), after "section 3(1)(c)" insert ", or by virtue of regulations made under section 7A(1),".
(4) In section 11, after subsection (8) insert—
"(8A) No regulations under section 7A(1) or order under section 7B(3) shall be made unless a draft of the regulations or order has been laid before Parliament and approved by a resolution of each House.""
Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 53.
The amendment adds new Clauses 7A to 7D, to the Criminal Injuries Compensation Act 1995, to give the Criminal Injuries Compensation Authority—the CICA—the power to recover from offenders the compensation that it has paid to their victims. This proposal is one of several set out in the consultation paper, Compensation and Support for Victims of Crime, issued on 12 January this year. The proposal received strong support, and the resulting new clause was welcomed when it was introduced in the other place.
We want to make offenders liable to reimburse the CICA for any money that it has paid out to the victim. The CICA will be able to pursue the offenders through the civil courts for that money. The clause provides an enabling power and sets out some of the parameters of the proposed arrangements, but the more detailed arrangements would be made by regulations under the Bill's enabling powers.
2 Nov 2004 : Column 266
I am happy briefly to summarise the proposed provisions. After Section 7 of the 1995 Act there would be inserted new Clauses 7A to 7D. First, that sets out that the Secretary of State may by regulations make provision for the recovery of an amount from an offender, equal to or part of the compensation paid to a victim in respect of a criminal injury. It makes it clear that recovery will be possible only when the offender has been convicted of the relevant offence in the criminal courts. Such a conviction will establish that the offender was indeed guilty of the offence which led to the victim's injury, and this will obviate the need for CICA to establish liability in the civil courts.
The proposed arrangements will require the CICA to serve a recovery notice on the offender, setting out the amount of liability, the reasons for the determination and the basis on which it has been determined how it must be repaid and how the offender can object, if he contests either the amount recoverable or that he is not the person from whom it should be recovered. The information that must be contained in that notice is set out in the Bill and is an important safeguard to the offender. It would be the dream ticket for the noble Baroness, Lady Anelay, because it answers all her questions.
If the offender objects, the arrangement provides that the CICA must formally review that objection and that the review must be conducted by a person other than the one who took the original decision to issue a recovery notice. That is another important safeguard. After review, or if no objection is lodged and assuming no payment is made, the CICA may then initiate recovery action through the civil courts. In practice this means that it may seek to recover the money by normal debt recovery action. Such action will give the offender a further opportunity to object on the grounds set out on the face of the Bill. That is another important safeguard. Amendments Nos. 104 and 105 make a consequential change to the Long Title of the Bill to make it clear that the Bill now includes provision about the recovery, by the CICA, of compensation from offenders.
I should make it clear that these provisions do not take anything away from the rights of a victim or in any way compromise their ability to obtain appropriate redress. A victim will still have the right to sue the person who harmed them for compensation through the civil courts. What we want is to give the CICA a power to get back from offenders the money it has paid out in compensation to their victims, and we want it to use this power whenever there is a realistic chance of making a net recovery of public funds.
Fuller details of the procedure will be set out in regulations (for affirmative resolution). Parliament will accordingly have an opportunity to consider more of the detail when those regulations are laid before it. The compensation recovered under these arrangements will go back to the CICA so it can be used to pay compensation to other victims of violent crime. I am sure noble Lords will agree it is right that, whenever possible, offenders should be made to pay for the consequences of their crimes. I therefore commend the new clause to the House.
2 Nov 2004 : Column 267
I turn swiftly to the amendments in the name of the noble Baroness, Lady Anelay of St Johns. The first of these amendments seeks to clarify the liability of each attacker when two or more of them are jointly responsible for causing the injury for which the victim has received compensation from the Criminal Injuries Compensation Authority. The amendment aims to make it express that each attacker is liable only for the proportion of the damage (or injury) he caused.
We do not think it is necessary to make this amendment to achieve that underlying aim. While the present provision is drafted in the singular, it does not mean that the words do not embrace the plural. In fact, we envisage that there may well be cases where multiple offenders cause injury which leads to compensation under the Criminal Injuries Compensation Scheme. Indeed, there could also be cases of multiple victims on any one set of facts.
We agree with the sentiment behind the amendment that the doctrine of joint and several liability would not be appropriate in this context. That would mean that where the CICA paid compensation in respect of injuries caused by multiple defendants, the CICA could demand full repayment from any one individual.
According to new Section 7A(3), the amount recoverable from a person under the regulations must be determined by reference only to the,
"extent to which the criminal injury is directly attributable to an offence of which he has been convicted".
Therefore, it would not be appropriate to demand full repayment from one individual if the criminal injury is not directly attributable to their particular conviction.
Much will depend upon the circumstances of the case in question and the facts that are proved or accepted. If the offenders are equally culpable, the CICA will seek to recover an equal share of the compensation from each of them. If one offender seems to be more culpable than the other (or others), the CICA is likely to make a corresponding adjustment of the apportionment. Separate notices would be served on each offender.
The offenders will, of course, have the right to challenge the level of their liability on the basis that the amount was not determined in accordance with the regulations, if they request a formal review by the CICA. They will have a further right to challenge that apportionment in the civil courts when the CICA asks for the debt recovery notice to be enforced.
With such assurances, and with such safeguards already in the Bill, I hope that noble Lords will agree that the further level of refinement they have suggested is not in fact necessary.
The second amendment relates to the information which must be given to offenders in the debt recovery notice requiring them to repay the compensation that the CICA has paid to the victim they injured. New Section 7B(2) lists the information that must be provided in the debt recovery notice and new Section 7B(3) empowers the Secretary of State to change that list of information by statutory instrument, subject to
2 Nov 2004 : Column 268
negative resolution. This amendment would require the statutory instrument to be approved by affirmative resolution.
I see no strong justification for that change. The affirmative resolution procedure is, of course, much more demanding of parliamentary time, which is all too frequently at a premium. Any changes to the list of information for a recovery notice are likely to be minor in nature, and the negative resolution procedure seems entirely adequate and appropriate for such minor changes.
The next two amendments would extend the grounds on which an alleged offender could formally request CICA to review either whether he was the right person from whom recovery should be sought, or the amount of the recovery. The new clause sets out the grounds on which such a review may be requested, restricting them to three, of which the one most relevant is that the offender was not convicted of the offence to which the injury was directly attributable. The amendments would seek to extend the grounds to include cases where, fourthly, the conviction for the relevant offence had been overturned on appeal and, fifthly, where the sentence for the relevant offence had been reduced on appeal.
We do not think either addition necessary. For any of the new provisions to bite, the offender must have been convicted of the offence to which the victim's injury is directly attributable. If the case were going to appeal, CICA would wait until the appeal had been heard before seeking to recover money from the offender. If the conviction were overturned, clearly CICA would not seek to recover any money, since it would have no powers to do so.
In the less likely event that a conviction was overturned some time after conviction and recovery of compensation, the offender would of course be entitled to his money back. That could be achieved in a number of ways, of which the most straightforward would be for CICA to make a simple payment. We do not think anything is needed in the Bill to provide for that unlikely event.
If the sentence were reduced on appeal, of course the conviction itself would still stand. Therefore, CICA would quite properly still be able to seek to recover the money that it had paid in compensation to the offender's victim. The sentence itself is not relevant in that context. The offender caused the victim's injury, and CICA will have paid out compensation to that victim—who must have been a blameless victim in order to qualify for compensation under the compensation scheme—and CICA accordingly has every right to try to recover the taxpayer's money.
The last amendment would add to the decision that a person undertaking a review of a recovery determination is empowered to take. At present, new Section 7C(4) proposed in Amendment No. 53 lists four possible decisions; namely, setting the determination aside, reducing or increasing the amount recoverable, or letting the initial recovery determination stand. The amendment would
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additionally empower the reviewing person to require an amount to be repaid to the offender from whom recovery had been sought.
We think that that amendment betrays a slight misunderstanding of the processes involved. At that stage, CICA will have served an initial recovery notice on the alleged offender. If the offender contests that notice, he can ask CICA to review its initial decision. At that stage, therefore, the offender will not have paid any money to CICA. If the CICA reviewer decides not to proceed with the recovery action or to reduce the amount of recovery sought, there will therefore be no question of CICA paying any money back to the offender. That being the case, the amendment seems to serve no purpose and would not be necessary.
The noble Lord, Lord Carlisle, has been particularly concerned about the issue, not least on how often the provision will be used. I make it clear that the Bill is an enabling piece of legislation, so CICA can decide whether it is appropriate to be used. Noble Lords will have seen in a number of the documents that we issued in relation to victims and witnesses that there was clearly worry about what happens if someone wins the lottery or comes into a great deal of money after moneys have been paid out.
However, a number of victims' organisations—not least SAMM, which deals with the families of murder victims and made the case powerfully clear to me at its AGM a few weeks ago—find it offensive that taxpayers have to pay money in such a way to compensate them, their members themselves being taxpayers. Then they discover that the perpetrator has set up a business, has a huge amount of money or comes into money, and there is no opportunity to get that money back through the CICA or anyone else. Of course we understand that sentiment. This amendment gives the CICA an opportunity to recover money if it deems that it is appropriate, feasible and proper. I beg to move.
Moved, That the House do agree with the Commons in their Amendment No. 53.—(Baroness Scotland of Asthal.)
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