What is the process for claiming damages from the offender? (e.g. court case, civil claim, adhesion procedure)
Criminal Court Case
A. 'Compensation Order'
Under the provisions of sections 249 to 253 of the Criminal Procedure (Scotland) Act 1995, any criminal court in Scotland has power in appropriate cases to order an offender to pay some compensation to the victim of his/her crime for any injury, loss or damage which the victim has suffered as a result of the crime, without the need for separate civil action.
The 1995 Act does not provide for a victim to make an application to a court for a 'compensation order' personally; however, the Procurator Fiscal may raise the question with the court in appropriate cases and in all cases, the Procurator Fiscal should provide the court with available information about the extent and value of any injury, loss or damage sustained.
Under the existing law a victim has the right to sue the offender for damages in a civil court or (if he/she sustained physical or mental injuries) to see an award from the Criminal Injuries Compensation Authority (CICA). The ordering of compensation by the criminal courts does not affect these rights, although any award made to the victim by the civil courts or the CICA will be reduced by the amount paid under the 'compensation order'.
In solemn criminal proceedings, there is no limit on the amount that may be awarded under a 'compensation order'.
In summary, criminal proceedings the following limits apply:
- In the Sheriff Court, the maximum for each offence is the prescribed sum (£10,000) (but for statutory offences committed on or after 28 March 2011, where the maximum fine which can be imposed exceeds the prescribed sum, the maximum compensation order which can be imposed is the same as that maximum fine).
- In the Justice of the Peace Court, the maximum for each offence is Level 4 on the Standard Scale (£2500)
Payment of any amount under a 'compensation order' is made to the clerk of court who will then account for the amount to the entitled person.
B. 'Compensation requirement' in Community Payback Order
When an accused is convicted of an offence, the court may, in certain circumstances, impose a Community Payback Order (CPO). In terms of section 227H of the Criminal Procedure (Scotland) Act 1995, payment of compensation (together with an offender supervision requirement) may be a requirement of a CPO.
The same limits in respect of the amount of the awards, apply to 'compensation requirements' as to 'compensation orders' (as detailed above)
The compensation can be paid either in a lump sum or by installments to the clerk of court who will then account for the amount to the entitled person. The compensation must be paid in full no later than 18 months after the CPO is imposed or not later than 2 months before the end of the supervision period, whichever is earlier. Failure by the offender to make the payment may constitute a breach of the CPO.
C. 'Compensation offer' by Procurator Fiscal
In terms of section 302A of the Criminal Procedure (Scotland) Act 1995, the Procurator Fiscal can send a 'compensation offer' to an alleged offender if it appears that a relevant offence has been committed. The 'compensation offer' is an effective direct measure for offences where an individual has suffered monetary loss, personal loss, or alarm or distress.
If a 'compensation offer' is accepted or deemed accepted (when the alleged offender does not formally reject the offer) no prosecution can take place, and no conviction will be recorded.
The maximum amount available as a compensation offer is £5,000 in terms of the Criminal Procedure (Scotland) Act 1995 Compensation Order (Maximum Amount) Order 2008.
Payment of any amount under a 'compensation offer' is made to the clerk of court who will then account for the amount to the entitled person.
Civil Court case:
Under the existing law, a victim has the right to sue the offender for damages in a civil court. In the event that the victim decides to raise an action in the civil courts, there are different procedures governed by different sets of court rules and these are also dependent on whether actions are raised in a Sheriff Court or the Court of Session. The various rules are available on the Scottish Courts and Tribunals Service website under Rules and Practice.
The drafting of any writ or petition and the various court procedures are quite complex, and legal advice is recommended.
Adhesion Procedure - not applicable in Scotland:
This is a procedure through which a court of law can rule on compensation for the victim of a criminal offence. Rather than pursuing damages in a separate civil action, the victim files a civil claim against the offender as a part of a criminal trial. It should be noted that whilst this system exists in some civil law jurisdictions, it does not in Scotland.
The court ordered the offender to pay me damages/compensation. How do I make sure the offender pays?
Enforcement of compensation in a criminal case
Payment of any amount under:
- A 'Compensation Order';
- A 'Compensation Requirement' in a Community Payback Order (CPO), or
- A 'Compensation Offer' by the Procurator Fiscal
is made to the clerk of court who has to account for the amount to the entitled person.
Payment can only be enforced by the court and on no account should the entitled person contact or attempt to contact the offender directly or accept payment from him/her personally.
If payment is not made in respect of a 'compensation order' or a 'compensation offer', further action may be taken by the court to recover the money by using a range of sanctions including:
- Deduction from Benefits Orders;
- Earnings Arrestment Orders;
- Arrestment of Fund Orders; and
- Seizure of Vehicle Orders.
If payment is not made in respect of a 'compensation requirement' in a CPO, this may constitute a breach of the CPO and the offender can be brought back before the court. Section 227ZC of the Criminal Procedure (Scotland) Act 1995 contains provisions in respect of breaches of CPOs and what actions the court may take.
Enforcement of compensation in a civil case:
If the victim raises a successful action in the civil court and the court grants a decree for a sum of money in his/her favor, the victim should contact a firm of Sheriff Officers who will advise of the procedure for recovery of the debt. Further information can be found on the Society of Messengers-at-Arms and Sheriff Officers website.
If the offender does not pay, can the state pay me an advance? Under what conditions?
Payment of compensation from CICA
The state will not pay any advance to a victim of crime where an offender has been ordered by a court to pay but the offender has not done so. See also Enforcement of compensation above.
Am I entitled to compensation from the state?
The Criminal Injuries Compensation Authority (CICA) deal with compensation claims from people who have been physically or mentally injured because they were the blameless victim of violent crime in England, Scotland or Wales. The government's Criminal Injuries Compensation Scheme sets the criteria and amounts for compensation.
The Criminal Injuries Compensation Scheme 2012 is a government-funded scheme that exists to compensate blameless victims of violent crime who have sustained serious physical or mental injuries directly attributable to their being a direct victim of crime of violence. The rules in the Scheme and the value of the awards paid are approved by the UK Parliament, and the CICA is responsible for the administration of the Scheme and all the decisions made on individual applications. The Scheme contains a tariff of injuries which sets out compensation payable in respect of injuries sustained.
There are two types of compensation - personal and fatal injury awards - with additional compensation payable in some cases for loss of earnings, dependency or special expenses where appropriate.
Payments can be awarded to the most seriously injured victims, victims of rape and other sexual abuse, victims of child abuse and the bereaved. The Scheme does not make compensation payments for minor injuries.
Not all claims for compensation will be successful. An applicant must be eligible under the rules of the Scheme. There are nationality and residence criteria that must be met (paragraphs 10 to 16 of the Scheme). Applications must be made as soon as reasonably practicable, and in any even within two years of the incident which gave rise to the criminal injury (although in exceptional circumstances in some cases the time limit may be extended, see paragraphs 87 to 89). There are also rules which require and applicant to have reported the incident which gave rise to the criminal injury as soon as reasonably practicable and to cooperate as far as reasonably practicable in bringing the assailant to justice (paragraphs 22 and 23). Awards may be withheld or reduced in various other circumstances, such as where the conduct of the applicant makes it inappropriate to make an award (paragraph 25) and where the applicant has unspent criminal convictions at the time of their application to the CICA (paragraph 26 and Annex D). Further information about the Scheme can be found here.
Am I entitled to an emergency payment while I wait for the decision on my compensation claim?
The Criminal Injuries Compensation Scheme 2012 is designed to be a scheme of last resort. Awards under the Scheme are not designed to meet immediate needs; in most cases an applicant's claim will ne be settle until sometime after that incident. No payment will be made until the Criminal Injuries Compensation Authority (CICA) is satisfied that the applicant is eligible under the Scheme; they will make enquiries of the police to obtain information about the incident and the applicant to ensure that the application meets the eligibility criteria. Where CICA are satisfied that an applicant is eligible for a payment but they cannot make a final decision, they may consider payment. This may be the case where the CICA are waiting until the long term impact of the applicant's injury is understood.
Am I entitled to compensation if the offender is not convicted?
It is not necessary for the offender to be identified or convicted for the victim of a crime of violence to be eligible for compensation (paragraph 9 of The Criminal Injuries Compensation Scheme). However, the Scheme requires that an applicant has reported the incident to the police as soon as reasonably practicable and has co-operated as far as reasonably practicable in bringing the offender to justice (paragraphs 22 and 23). Applicants will therefore not be eligible for compensation unless they have co-operated fully with the investigation into the crime and any prosecution that follows.
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Last update: 17/05/2019