For all of you who have studied with us you know that we spend time trying to clarify the interactions between statute, criminal, common and civil law. Common and statute both being sources of the law whereas criminal and civil are two parts of our justice system which deal with any breaches. In a majority of cases if an employee or individual is injured they will seek compensation through the civil courts, quoting the relevant duty of care within common law e.g., a safe place of work was not provided. However, the criminal law system does allow for the criminal courts to order compensation awards in some cases.
Both the magistrates and the Crown Court have a discretionary power to make an order requiring a convicted defendant to pay compensation for any personal injury, loss or damage resulting from the offence. A court must consider making a compensation order in any case where it is empowered to do so. If the court does not make a compensation order when it is empowered to do so, it must give reasons for its decision. Loss, damage or injury has to result from the offence(s) charged, for a compensation order to be made.
The maximum sum that could be awarded by magistrates is now unlimited for each offence; the Crown Court can order an unlimited sum to be paid as compensation. An order can be made in favour of the relatives and dependents of a deceased person, in respect of bereavement and funeral expenses.
A compensation order can be imposed alongside a separate sentence or as a penalty in its own right. Where both a fine and a compensation order are appropriate but the offender lacks the means to pay both, the compensation order payments will take priority as it does over the victim surcharge.
The amount of compensation should be such as the court considers appropriate. In making the order, the court must have regard to the defendant’s means, and the defendant and the prosecutor can make representations to the court as to the loss suffered by the victim. Compensation paid to the victim is deducted from any damages received in civil proceedings. For this reason, the existence of a pending civil claim should not in itself prevent an award of compensation.
The prosecutor should be ready to assist the court to reach the appropriate decision as to sentence, which includes drawing the court’s attention to its powers to award compensation and inviting them to make such an order where appropriate. Normally, the loss will be proved to the court by way of a witness statement and/or other documentary evidence.
Compensation orders may be particularly appropriate where:
- The loss is relatively small and easily quantifiable;
- The injured party is in need of immediate financial help, for example with funeral or other expenses resulting from the offence.
In these situations, the victim might prefer a compensation award in the criminal proceedings without having to resort to civil litigation. Where the loss amounts to less than the small claims limit at the county court (currently £1,000 for personal injury, £10,000 for other types of loss), the victim would have to pursue a civil case under the small claims procedure in order to recover damages.
Even though compensation can be awarded for most H&S issues the route will be through the civil law system especially when the compensation sought is significant.
Where the injury or loss is not easily quantifiable or is disputed by the defendant (for example, the extent of injuries suffered), the court may well require additional evidence (such as an independent medical report). In these circumstances, the court may adjourn the hearing until the injured party can provide further evidence or the court may decide not to make an order, leaving the issue of compensation to the civil proceedings.
The prosecution can draw the court’s attention to its power to grant a compensation order, if this is done it is advisable to inform the victim or his/her family of this in advance and invite them to collate evidence to help the court (for example, a doctor’s letter, medical report or breakdown of funeral expenses). The prosecutor, is to assist the court and not to represent the victim but they may be able to provide documentary evidence of the injury (e.g., the accident report), loss or damage. Courts are guided by a table of suggested awards for various types of injury, although typical industrial injuries may not be included.
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