1. The background: What
existed before "Society"? The law of the jungle. Might is right = no
rights for those without might/power. The invention of Society. The
invention of redress for wrongs suffered. Revenge. Restitution.
Reinstatement.
2. What do we mean by
"compensation"? Here are some possibilities:-
a) Damages for a wrongful act,
recognised by the law -- e.g. an assault, negligence
resulting in loss to the aggrieved party, defamation, breach of a
contract.
NOTE that the same act can
constitute both a criminal offence (such as assault) and a civil wrong
for which damages can be claimed. The prevention, suppression and
punishment of crime are generally functions of the state or community.
Individuals seeking redress for civil wrongs (which lawyers call torts)
generally have to sue in the civil courts. Sometimes, a criminal court
has and exercises a power, when sentencing a person convicted of a
criminal offence, to order them to pay compensation to the victim.
b) There are statutory rights to
compensation, such as for the late arrival of a train. They are created
to deal with specific situations. They have the advantage of simplicity
-- all you have to do is to show that you fall within the relevant
definition. The amount of compensation is prescribed -- and the
disadvantage (among others) that the payment may be vastly less than
the loss suffered. c) The Criminal Injuries Compensation
scheme was created by statute, to meet the need of victims
of crime to obtain redress. It is paid by the state. Most
criminals are unable to pay damages equal to the loss they have caused.
The state raises taxes, partly to maintain law and order, and
recognises its obligation to compensate those who suffer when it fails
to do so (but only in respect of personal injury: the scheme does
not cover loss of or damage to goods or reputation).
2 d) Insurance: Airlines, motorists,
employers and other groups and individuals are required by law to
insure against specified risks. Solicitors are compelled to insure in
respect of negligence claims by clients and to prove that they are
insured before they may practise. Where there is insurance, injured
parties can usually be sure of being paid, if damages are awarded to
them. e) Compensation for wrongful
conviction and imprisonment. It is awarded to those who have (i) been
convicted and (ii) imprisoned and (iii) whose convictions have been
overturned on appeal but NOT to those who have been acquitted, even if
they have spent time in custody awaiting trial. It is sometimes
possible to claim damages for false arrest/imprisonment and malicious
prosecution, but the right to damages does not arise automatically,
following an acquittal. NOTE that this list is
not exhaustive. 3. Who can claim? At
first sight, this may appear to be easy, but there are whole categories
of people who suffer from the wrongful acts of others, but cannot
assert a claim -- for example, the dependants of someone who is
dismissed from their employment, in breach of the terms of the
employment contract, cannot sue the employer for their losses. If a
claimant dies, some claims survive for the benefit of their estate, but
not others. I am not an expert in this field. I shall deal with
individual questions if I can. If I were still in practice now, there
would be many cases which I would refer to other lawyers, rather than
attempt to deal with them myself. I doubt whether even the largest
solicitors' firms, employing thousands of lawyers, now attempt to cover
the whole range of English law -- though what they do do, they do with
incredible depth.
The law is not static. The Human Rights Act has extended both people's
rights and their obligations. Judicial decisions can have the same
effect.
You may like to consider whether a "right" has any value, unless at
least one
person
(which may be the state) has a legally enforceable duty to observe and
maintain it. Even then, such a duty may be qualified. Thus, in the USA
the right to life is held to be sacred, but capital punishment exists.
I leave you to work out where these issues can lead.
Many people have rights which are effectively worthless, because they
cannot afford to assert them. The position is getting worse with the
passing of time, because of increasing restrictions on legal aid -- for
example, legal aid for claims against the police has been reduced and
will soon be abolished. Furthermore, legal aid firms are giving up
because the pay allowed does not cover the cost of doing the work.
An act may be wrongful and damaging, and the law may still provide no
remedy. Suppose a witness to a robbery describes the robber, to the
police, as short, black-haired and white. A police officer picks up the
story on his police radio, which is subject to local interference. He
arrests a short, black-haired black man who lives close to the scene of
the crime. The man happens to be of unimpeachable character, but has
had a lot to drink and resists arrest. He is taken to the police
station, bruised and incoherent. The custody sergeant decides to detain
him until he sobers up. In the morning the man identifies himself and
the police release him without charge. He has missed an important
appointment and wants to claim compensation from the police. On the
facts set out, I would advise him to lie low. He might have been
charged with assaulting a police officer in the execution of his duty,
causing damage to the officer's uniform and disorderly behaviour, and
he might be lucky to escape conviction on all three charges. 4. You
are likely to be interested in two aspects of compensation --
compensation for the victims of crime and compensation for those
wrongly accused of crime -- and in the remainder of this talk, I
concentrate on these.
3
a) Towards the end of 20C there was growing concern that the victims of
crime had no remedy, save against the offender who, in most cases, was
unable (even when identified) to make good the loss which he had
caused. Most victims are poor and cannot afford insurance, even when it
is available. Hence statutory compensation for the victims of criminal
injury. Much restricted (in particular, it is excluded in the very
common situation, in which the injury is at the hands of a family
member). Often inadequate. And there is no compensation for damage to
property. On the other hand, the possibility of comp. can act as a lure
to the making of false allegations and we believe that it often does
so. The remedy for such abuse does not lie in abolishing the CIC
Scheme. It needs to be enhanced.
b) A far greater inducement to the making of claims for
compensation based on false allegations is the reluctance of insurers
to finance litigation. You are familiar with the situation. Schools,
care homes and other institutions are managed by corporate bodies which
are vicariously liable for the wrongful acts of their employees. They
insure in respect of this liability. When allegations are made (for
example, of historical sexual abuse by a teacher or carer), the
interests of the person against whom they are made count for virtually
nothing. The insurers, by the terms of a policy effected for the
protection of the employer, have almost total control. Their
approach to the claim is based on commercial considerations. The bigger
the potential claim, the more likely they are to settle it, not least
because legal and related costs frequently exceed the damages claim.
Therefore
c) The remedy lies partly in more robust defences. The criminal justice
system, contrary to popular myth, is weighted against defendants. The
balance must be redressed and the presumption of innocence restored.
Long overdue improvement is needed in the standard of criminal defence
lawyers. The latter should receive substantially enhanced pay,
commensurate with their skill and commitment.
d) To level the field, we could start by recognising that the
prosecution always employs people who do nothing else. It trains them.
It funds their training courses. It provides their working
accommodation, their salaries and their pensions. This is true, whether
we are thinking of the police, much of the forensic science service or
the Crown Prosecution Service. The only exceptions are prosecuting
counsel (who also do defence work), but even with these the Crown tends
to get first pick. By contrast, most defence work is done by firms for
whom criminal defence is one of several competing activities.
Furthermore, since criminal defence almost always means legal aid,
which is paid at less than half the rate obtainable for comparable
skill and experience in other branches of legal practice, the criminal
department in a mixed-practice firm is likely to have a Cinderella role.
e) Changes in criminal procedure during the last quarter century have
all been aimed at increasing the likelihood of convictions. Here are
some examples:- i) Where once the Crown had to
convince all the jurors of a defendant's guilt, he can now be convicted
even if two are opposed. AND --- a point not generally known -- even if
all but three are convinced that the defendant is NOT guilty, he is not
entitled to a ""not guilty" verdict. The foreman has to report that the
jury is unable to agree and the Crown can then opt for a further trial. ii) Committal hearings have been
abolished. The police may spend years accumulating evidence before
arresting and charging a suspect who, once charged, is sent almost
immediately to the Crown Court. He is then required to give details of
his defence to the Court and the CPS WITHIN TWO WEEKS. iii) Delays in trials are frequently
due to failure by the prosecution to give essential disclosure, but the
only loser is the defendant. Without disclosure, he cannot prepare his
defence. Delay increases the pressure on him, not on the prosecution
team.
f) What about compensation for those wrongly accused, or
subjected to Press publicity before they are even charged, let
alone convicted? Here are some of the things which people might
reasonably seek. You may think of others -- but remember that at
present, none of them is granted as of right. The media, and
Parliament, scarcely consider them. A political campaign has to be
waged, to achieve them:- Public acknowledgement of
their innocence Reinstatement in
employment, including lost advances in pay, status or pension Payment for
distress suffered by them and their immediate family as a result of the
case Indemnification in
respect of legal and related expenses and any lost earnings
Ivan Geffen 2003
About Ivan Geffen
Born in London March 1920. Graduated
in English Law and qualified as a solicitor in 1940. Following war service (1940-46)
was solicitor to the National Union of Mineworkers (1947-57). Set up
own socialist legal practice in Walsall in 1959, with a commitment to
civil liberties and legal aid. Labour candidate at Parliamentary
General Elections in 1950, 1951, 1974 (both elections) and 1979. In the
1955 election supported John Loverseed, Independent Anti-H Bomb
candidate in South Lewisham - the seat held by the then Foreign
Secretary Herbert Morrison. Between 1952 and 1999 served at
various times on the governing bodies of the National Council for Civil
Liberties, Peace Pledge Union, British Legal Association, Legal Aid
Practitioners Group, Criminal Law Solicitors' Association, Walsall
Committee for Human Rights, West Midlands Travellers' School. Active TU member from 1950s to
90s.
Represented 2 of the Birmingham 6 in
proceedings against the Police and the Home Office for damages
(following their convictions in 1975), in their ultimately successful
appeals against conviction in 1987 and 1991 and ran the lead claim for
compensation (1991-2002).
Involved in many other high profile
cases involving West Midlands Police and other Police Forces from 1959
onwards.
In 2000 was in line for a (very rare)
Legal Aid franchise to conduct actions against the police.
Arrested in late July 2000 on
allegations of indecent assaults on young girls. Not then charged, but
Police publicity -- including a full-length photograph -- produced
further allegations. By the end of the year the initial allegation had
grown to 27, reduced to 11 by the beginning of the trial in June 2001.
Acquitted of 8 by the jury, which failed to agree on 3. Crown opted for
a second trial. In August 2001 police disclosed 3 further allegations,
one of which had been made to them over 6 months earlier. By May 2002
the police had failed to give crucial disclosure and were put on terms
by a Judge. Finally acquitted of all outstanding charges in July 2002,
when the Crown offered no evidence.
Was forced to close legal practice in
September 2001 when bank terminated overdraft.