Legal Aid, Sentencing & Punishment of Offenders Act 2012 can benefit CICA applicants with pre-LASPO criminal convictions

The Upper-tier Tribunal has recently handed down judgment in G v The First-tier Tribunal (interested party: Criminal Injuries Compensation Authority) [2016] UKUT 0196 (AAC), a decision which has important ramifications for CICA applicants who have criminal convictions pre-dating the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’).

Gurion Taussig represented Mr G throughout his appeal against the CICA decision, including recent judicial review proceedings. Kate Lamont also represented Mr G at the first of two substantive first-instance First-tier Tribunal hearings, in 2014.

The Appellant, Mr G, was assaulted in 2003 and suffered a serious head injury, which resulted in brain injury. He applied in 2003 for compensation under the 2001 scheme. Initially, the CICA offered no payment to Mr G in respect of his injuries.

The relevant issue in terms of appeal to the Upper-tier Tribunal was whether Mr G’s award should be reduced on account of various criminal convictions. At the date of Mr G’s originating application to CICA, he had unspent convictions for driving while disqualified and for a Public Order Act 1986 offence. Subsequently, he attained convictions for disorderly behavior and for a further Public Order Act 1986 offence.

During the course of his appeal, in March 2014, LASPO came into force. Section 139 of the Act had the effect of amending the rehabilitation provisions of the Rehabilitation of Offenders Act 1974.

At first instance, Kate Lamont argued that the provisions of LASPO were retrospective and therefore had the effect of rendering Mr G’s convictions spent by date of the hearing, so that no reduction to his award should be made on account of past criminal convictions. The First-tier Tribunal rejected that submission and fixed a 25% reduction to Mr G’s award.

At the second first-instance hearing in respect of quantum, Gurion Taussig secured a gross award of £385,523, which was reduced by 25% to a net sum of £275,000.

Mr G subsequently applied by way of judicial review proceedings in respect of the First-tier Tribunal’s decision, contending that the decision to reduce his award by any amount was an error of law. In response, CICA as the interested party supported Mr G’s claim.

The Upper-tier Tribunal considered that the matter raised issues of wider importance and Judgment was handed down on 18 April 2016. The Upper-tier Tribunal considered the amendments to the 1974 Act were indeed given retrospective effect by Section 141 of LASPO and agreed that at the date of the First-tier Tribunal’s decision all of Mr G’s convictions were spent.

It was emphasized that pursuant to Section 4(1) of the 1974 Act a person who has become a rehabilitated person in respect of a conviction shall be treated for all purposes in law as a person who has not committed the offence or offences, which were the subject of that conviction. The Upper-tier Tribunal further held that, by reason of the retrospectivity of LASPO, Section 4(1) of the 1974 Act must apply to the 2001 scheme so that its references to spent convictions vary as the relevant provisions of the 1974 Act vary.

The inescapable conclusion was that the First-tier Tribunal had indeed erred in law by reducing Mr G’s award, and that the only lawful decision that could have been reached by the First-tier Tribunal was that no deduction should be made whatsoever. The Upper-tier Tribunal therefore quashed the First-tier Tribunal’s decision and substituted the ruling that Mr G was entitled to the full sum of £385,523 without reduction.

The decision clearly has potentially beneficial implications for a significant category of ongoing Criminal Injury Compensation claims: in particular those where the Applicant has attained historic criminal convictions which, following LASPO, may now be spent so that no penalty for bad character is warranted. Representatives of Applicants should be alive to the possibility that a pre-LASPO decision by CICA to reduce awards may now, post-LASPO, not be sustainable and open to successful appeal.

Find the judment here.