§ 4.9 p.m.
§ The Secretary of State for the Home Department (Mr. Henry Brooke)
I beg to move,That this House takes note of the White Paper on Compensation for Victims of Crimes of Violence. Command Payer No. 2323.In a White Paper which I recently presented, entitled The War Against Crime in England and Wales 1959–1964, the Government set out all that is being done to deal more effectively with criminals, but if we truly care about protecting the public we should not stop at that but should also think and plan how we can more effectively help their victims.
The idea that the victims of crimes should be compensated by State action is comparatively recent. Only during the last 10 years has it been discussed in this country to any extent. There is by now widespread agreement that some form of State compensation is desirable, but that it should be limited to crimes causing personal injury. Reasons for excluding compensation for loss of property or damage to property were set out, for example, in a report that was produced in 1962 by a committee of "Justice", on which I remember that hon. Members of all three parties sat.
One of these reasons is the assumption that owners will seek some protection for their property through insurance. That assumption, as the "Justice" report said,cannot easily be made in the case of crimes of violence, since the victim's risk is more remote, and the need for personal protection through private insurance is less obvious in a civilised community.The "Justice" report went on to make the point thatthe community should be concerned more with loss of life and limb than with loss of property.The Government have all along taken a similar view, and that is why the scheme proposed in the White Paper is confined to personal injury.
The previous White Paper which was presented to Parliament in 1961 by my predecessor suggested two possible types of scheme: one of them would be 1128 broadly similar to the Industrial Injuries Scheme and would involve weekly payments of compensation. Under the other, described as a "court scheme", the victim of a crime of violence could make a claim against the Home Secretary, much on the lines of the claim for damages which, under the existing law, the victim makes against the aggressor. Under this second type of scheme, entitlement to compensation would be decided by the courts, unless, of course, a settlement was reached out of court, and compensation would take the form not of weekly payments, but of a lump sum.
Possible compensation schemes have also been put forward by a number of other bodies all of whose views the Government have taken into account. Indeed, some of their proposals will be found embodied in this White Paper. There were proposals not only by the committee of "Justice," but by the Bow Group and by the Association of Municipal Corporations. Also, there was a particularly valuable report, on which we have largely drawn, by a committee under the chairmanship of my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth), in which several other of my hon. Friends took part.
The schemes submitted to us were embarrassingly different in their form, but all were agreed on two fundamental points: that claims for compensation should be determined by a judicial or quasi-judicial body, and that compensation should be payable only in deserving cases—that is, that the victim of a crime of violence should not be entitled automatically to compensation. For instance, if the victim himself was partly to blame, that ought to be taken into account.
Apart from these two fundamental points, there Were sharp differences among the various proposals on a number of matters, including in particular the scope of the arrangements—for example, to what extent sexual offences should be included. The schemes differed also as to the basis of compensation. Some favoured a lump sum; others favoured periodical payments; and others, a combination of the two. To devise a theoretical scheme in this field is not so very difficult. But how will it work out in practice? That is the test.
1129 The Government's concern has been to produce a scheme which will stand the test of practical experience. There are all sorts of imponderables. Nobody can tell how many claims there will be. Any estimate based on the number of crimes of violence shown in the criminal statistics would suggest that each year many thousands of victims might apply for compensation. But, as the White Paper which we are discussing points out, a great many of these crimes arise out of brawls or family disputes where there may be no case whatever for any compensation. Besides that, many who deserve compensation may already be entitled, as a result of their injuries, to other payments from public funds, and this will reduce or possibly even eliminate the compensation payable to them by the Board proposed in the White Paper.
It is because of these doubts about the extent to which the scheme will be needed, and because of the difficulty of ensuring in a pioneer scheme that public money is not wasted on undeserving or fraudulent claims, that the Government think that the sensible thing to do is to start on an experimental basis which can be modified later if necessary. We propose that compensation shall be paid ex gratia because, as the White Paper says, we do not think that the State can be held liable for injuries caused to people by the acts of others.
I will go through the main details of the scheme as set out in the White Paper. This, of course, is a Motion to take note of the White Paper. The White Paper is not the law of the Medes and Persians, which cannot be altered. It is not law at all. We will certainly take note also of any proposals made in the debate, and we will consider whether we could improve the scheme by incorporating them.
In paragraph 9 of the White Paper it proposes the establishment of a Victims of Crimes of Violence Compensation Board. If someone can think of a shorter title than that, well and good. Pending discussion of the White Paper in Parliament, my right hon. Friend the Secretary of State for Scotland and I have, of course, not yet been able to send out any invitations to people to become members of the Board, but we 1130 have been considering possible names, in consultation with my right hon. and learned Friend the Lord Chancellor. We are also planning to second a small number of civil servants to form the Board's initial staff quickly.
The necessary Supplementary Estimate will be presented to the House as soon as practicable. If the Board has to incur expenditure before the Supplementary Estimate is voted, an advance will be made from the Civil Contingencies Fund.
§ Sir Hugh Lucas-Tooth (Hendon, South)
Could my right hon. Friend say whether the Government plan that the members of the Board should be full-time paid, or how otherwise?
§ Mr. Brooke
This is one of the matters for consideration. It may be that the chairman will need to be full time; I am not sure. I do not think the other members will need to be full time, but we cannot tell this for certain until we see how the claims come along. Therefore, we should avoid creating a large Board of full-time people in the first instance. It may well be that not even the chairman will need to be full time.
I was saying that if the Board has to incur any expenditure in advance of a Supplementary Estimate, the Civil Contingencies Fund will be used. At least, until we find that the number of claims requires a more elaborate organisation, we do not propose to set up offices all over the country for dealing locally with applications for compensation. As paragraph 11 says, the Board will be based on London. I would like the House to know that the selection of premises for the Board is going ahead, though, of course, nothing will be committed until after this debate. The Board will also hold hearings in Edinburgh and Cardiff, and elsewhere if necessary.
The decisions in individual cases are to be those of the Board alone. That is made clear in paragraph 12, and I am sure that this is right. Neither my right hon. Friend the Secretary of State for Scotland nor I propose to intervene in individual cases. Our object in setting up a body of distinguished lawyers to determine claims in accordance with the procedure laid down in the White Paper 1131 is to make the decisions of the Board wholly independent of Government Departments.
This is, of course, on the understanding, first, that the Board acts in accordance with the principles and procedure outlined in the White Paper, subject to any modifications that may seem desirable after this debate, and, secondly, that the Board submits an annual report and accounts to Parliament. The accounts of the Board will be audited by the Comptroller and Auditor General.
Paragraphs 13 to 18 of the White Paper describe the scope of the scheme. It is explained there that personal injury may arise from a great variety of offences, and that it is not, therefore, proposed to specify a comprehensive list of crimes to which the scheme will apply. Any list of that sort might prove to be unduly restrictive. It might exclude some offences which could occasionally give rise to personal injuries. Besides the precise nature of the crime is not always apparent when the offender has not actually been brought to justice. What matters more than the name of the offence is the circumstances of the incident.
For these reasons, we think it right, at least in an experimental scheme of this sort, to do without a list of offences, but we intend that the scheme shall cover very much the same ground as the other schemes which have been proposed.
It is proposed to exclude certain categories of injury from the scheme: in the first place, the more minor injuries as defined in paragraph 14, that is to say, injuries giving rise to less than three weeks' loss of earnings, or, alternatively, for which less than £50 compensation would be awarded. Drawing the line there, I think, will not exclude any really deserving case, and it will help to keep the scheme, at this experimental stage, to manageable proportions.
Two categories of offence are excluded altogether: first, motoring offences, which, I think it will be generally agreed, fall into quite a different class from the rest of offences with which the scheme is designed to deal except, of course, where the motor vehicle has been used in a deliberate attempt to run the victim down; and, second, offences committed against a member of the offender's 1132 household living with him. In this latter case, we feel that the difficulties in clearly establishing the facts and ensuring that the compensation does not, in the end, benefit the offender are so great that these offences should be excluded, at least from an experimental scheme.
Paragraph 15 makes clear that the Board will take into account any share of responsibility attaching to the victim of the crime. This is one of the fundamental points on which all who have studied the matter are agreed.
To assist the Board in determining whether an applicant was in any way to blame, the Board will have before it not only the applicant's own version of events, but also information about the relevant circumstances obtained by the Board's staff from the police. The sort of case in which one might expect the amount of compensation to be reduced, or, indeed, no award at all to be made would be where there had been a public house brawl, for instance, or a fight between rival gangs. Again, the Board will have to pay particular regard to the question of the victim's responsibility when considering applications arising out of sexual offences.
Paragraphs 19 to 22 deal with the basis of compensation, and on this there are two points which I wish to make. First, the House will see that the Government have decided on a scheme based on common law damages rather than on the Industrial Injuries Scheme. We feel that lump sum payments are more satisfactory, particularly for a scheme which is experimental. We think it right that the basis should be broadly the same as that on which the victim is entitled to recover damages from the offender.
Secondly, the common law damages basis is to be subject to certain limits, in particular as to the rate of loss of earnings which may be taken into account. If there were no such limit, the scheme might result in very wide variations of compensation for similar offences which would be quite inappropriate in an ex gratia scheme. The film star or industrial tycoon earning many thousands a year might receive an award which was disproportionately and astonishingly high if no limit of earnings were included.
1133 It is proposed in paragraphs 23 to 27 that the initial decision on a claim shall be made by one member of the Board. If the applicant is not satisfied with that decision, he may claim a hearing before three other members of the Board, the original member not taking any part. In reaching the initial decision, the Board member will have before him such information as the Board's staff have been able to obtain on the circumstances of the application, and this will include information provided by the police. Where, however, a hearing is held, the three members of the Board will reach their decision solely on the evidence brought out at the hearing.
§ Mr. Niall MacDermot (Derby, North)
Purely for explanation, will the right hon. Gentleman answer a question on the point he has just left, the basis of compensation? In paragraph 22 of the White Paper it is said that, although compensation will be based on common law damages, there will be no award for "loss of expectation of happiness". What is intended to be excluded by that phrase? Is it, in effect, a reference to what common lawyers think of as general damages as opposed to actual pecuniary loss? In accident cases, of course, general loss of amenity and loss of enjoyment of life may be a major part of the damages.
§ Mr. Brooke
I am not a lawyer, so I hesitate to answer "off the cuff" when a lawyer puts that question to me. I was advised that, in general, these words in paragraph 22 would have a clear meaning for lawyers and that the exclusion of a consideration for loss of expectation of happiness would convey a precise interpretation to lawyers. However, the hon. and learned Gentleman will, no doubt, speak later in the debate, and my hon. Friend will have the opportunity to reply.
§ Mr. Eric Fletcher (Islington, East)
Will the Home Secretary just confirm that it is not intended to exclude a payment of general damages for pain and suffering?
§ Mr. Brooke
It is intended that the compensation shall be as closely as possible on the basis of common law damages for which the victim might sue 1134 the assailant, subject simply to these three exceptions which are set out here.
§ Sir Frank Soskice (Newport)
I am sorry to interrupt the Home Secretary further, but we are on a vital point here. To say that the damages will be on the common law basis, and then to say that one does not know whether what is a prime element in the assessment of damages on the common law basis will or will not be excluded, is hardly to give an adequate answer.
We want to know: is a person who has been impeded in the enjoyment of life to receive compensation for that—it may run into several thousands of pounds—or is he not? With respect to the right hon. Gentleman, it makes all the difference. As the Minister responsible for the White Paper, he ought to be able to tell us whether the element to which I refer will or will not be included.
§ Mr. Brooke
I have said that the White Paper, in my view, sets out the position perfectly clearly here. It may well be that the compensation will in some cases run into thousands of pounds—I have no doubt of that—but there will not be an element comparable to exemplary or punitive damages and there will not be an award for loss of expectation of happiness.
§ Sir F. Soskice
I am sorry to press the Home Secretary, but we must understand what we are discussing. If the right hon. Gentleman does not know what the answer to the question is, and if he does not have a piece of paper in his possession to tell him what the answer is, will he please get some information from his expert advisers on what, to my mind, this extremely obscure phrase is intended to mean?
The right hon. Gentleman says that, in his opinion, what the White Paper says is perfectly clear. All I can tell him is that those of us who have had anything to do with the law on this side of the House find this particular aspect of it most obscure; and we should be very surprised if lawyers on the benches opposite found it any easier to understand.
If the right hon. Gentleman can get some spiritual sustenance on it during the course of his speech, if he can go on long enough for a message to go to the Official Box and for a reply to come 1135 back to him, it would be a great help. Otherwise, I must put it to the right hon. Gentleman that he is not doing his duty to the House.
§ Mr. Brooke
I do not need any spiritual sustenance at all. I am not a lawyer myself, but I have put paragraph 22 to eminent lawyers and they have told me that, in their opinion, there is no dubiety at all as to its meaning. If lawyers on both sides of the House wish to question that, the debate is, after all, taking place so that any points on which hon. Members are uncertain may be ventilated. My hon. Friend the Joint Under-Secretary of State is to wind up the debate later. In my view, there is no uncertainty here.
§ Sir F. Soskice
I am very sorry to intervene again, but it really is not good enough for the right hon. Gentleman to tell us that all the distinguished lawyers who have been at his elbow tell him that there is no dubiety about it. Will he please tell us what they tell him it means and what he thinks it means? It is no good saying that it is perfectly clear, but that as he is not a lawyer he has not the dimmest idea what it means. We want to know what the right hon. Gentleman thinks it means and what the Government intend it to mean.
§ Mr. Brooke
I have told the House that the Government intends it to mean exactly what is set out here, and I am not going to redefine this in my own words for the pleasure of the right hon. and learned Gentleman. I am assured that this is perfectly clear to those who have studied it. If it is not clear to hon. Members, we have five hours ahead of us in which the matter can be ventilated and discussed. Members on both sides who belong to the legal profession will say whether or not it is clear to them.
§ Mr. Charles Doughty (Surrey, East)
If hon. Members opposite reflect for a moment, they will realise that one of the elements of general damages is loss of amenities of life in future, not earning capacity. That is defined as loss of happiness—an unfortunate word. Surely, while giving damages for loss of earning power, that would be sufficient to exclude damages for loss of enjoyment in future, 1136 such as the enjoyment of holidays, theatres and cinemas. That is an element now included in general damages, but which by this expression would be excluded.
§ Sir F. Soskice
I do not know whether the hon. and learned Member for Surrey, East (Mr. Doughty) is one of the distinguished lawyers who advised the Home Secretary, but does not the right hon. Gentleman know enough about his own White Paper to say whether he agrees with the hon. and learned Member? If the hon. and learned Member is right, it means that instead of damages being several thousands of pounds they will be limited to very small sums. May we know what the Government mean? What do they want? Surely the right hon. Gentleman can tell us that.
§ Mr. Brooke
I have said that the damages in a number of these cases may amount to several thousands of pounds. As far as I could ascertain, my hon. and learned Friend the Member for Surrey, East (Mr. Doughty) gave a correct paraphrase of paragraph 22. But I do not propose myself to paraphrase paragraph 22. We are discussing the White Paper, which has been before the House for several weeks. It was very carefully drafted, and, in my submission, there is no uncertainty about this. If there is uncertainty about it, we can make good use of this debate to discuss it. If further questions are asked, we will endeavour to answer them.
I think that the right hon. and learned Member for Newport (Sir F. Soskice) should permit me to conclude my speech, because all I am seeking to do is to make a short speech in introducing the White Paper and to throw the whole matter open to debate. If my speech is to be interrupted throughout by individual points which hon. Members may wish to raise later, I fear that it may occupy far too much time.
§ Mr. Sydney Silverman (Nelson and Colne)
I sympathise a great deal with what the right hon. Gentleman has said. Whether or not the White Paper was plain in its meaning, it has ceased to be plain by the intervention of the hon. and learned Member for Surrey, East 1137 (Mr. Doughty), who raised the key question which nobody has answered. The White Paper says that expectation of happiness is to be excluded. The Home Secretary says that that is perfectly clear, and that if it is not we can argue about it in the debate. That is well and good. But the hon. and learned Member has said that expectation of life——
§ Mr. Silverman
Very well—that the expectation of happiness is to be equated with amenities within the ordinary meaning of the common law. If that is so, clearly there is excluded from it the principal element in the assessment of common law damages. Surely the House is entitled to be told at an early stage whether the Government intend that or not.
§ Mr. Brooke
I do not intend to say anything more at this stage beyond drawing attention to the terms of the White Paper. It is the terms of the White Paper which matter. I do not clearly carry in my head the words used by my hon. and learned Friend the Member for Surrey, East. I do not propose at this stage further to define paragraph 22. It would be best if I were enabled to continue my speech. I should like simply to finish describing the procedure which we suggest and then to throw the whole matter open to debate.
The object of the procedure which I have described by which, in the first instance, an application would go to one member of the Board who would reach an initial decision on it and then, if the applicant was dissatisfied, he could claim a hearing before three other members of the board is twofold. The first is to ensure that the Board is provided with all relevant information to assist it in reaching its decision. The second is, in disputed cases, which we hope will be a very small percentage of the total, to ensure that the applicant is given a judicial-type hearing by people who are not in possession of information to which he, the applicant, has not had access.
1138 It is a matter of deep regret that the perpetrators of crimes of violence can so rarely be made to recompense their victims. Where the offender is a man of means, be can be sued in the courts, as I have indicated. But far more often these criminals have no means, and if the crime is serious they are likely to have been sent away to prison. As I explained when the White Paper was published, until prisoners generally are able to do a full week's work in prison for a reasonable wage, it is not practicable to hold back part of their earnings for compensation to the victims. But the Government do not think it right to delay the implementation of the scheme proposed in the White Paper until that stage is reached.
It may well be that in future the concept of personal reparation to the victim should play a greater part in our penal system. If this was to come about, there would be less call for a State compensation scheme. This is a large question witch I hope will, in due course, be examined by the Royal Commission which has recently been announced. For my part, I want, if I possibly can, to keep my speech short, because many hon. Members wish to take part in the debate, and to let the White Paper speak for itself.
I commend the scheme to the House as a plan which makes it possible to go ahead quickly, without legislation, on a flexible and experimental basis. It is a scheme which makes very adequate provision for its purpose and which in operation will be fair to the applicant without omitting the necessary safeguards for the public purse. My right hon. Friend the Secretary of State for Scotland and I will welcome any constructive comments from both sides of the House. As the White Paper emphasises, there is virtually no previous experience anywhere in the world on which to draw. It may well be that experience of running the scheme will suggest that it should be modified in some respects. The basis on which we propose that it should be introduced will allow that to be done.
No other country of comparable size has embarked on any such scheme. Except for a scheme introduced by New Zealand three months ago for its far smaller population, we are the pioneers 1139 of the world in this. If, in the light of experience, it is eventually decided to have a permanent scheme, it may well become desirable then to put it on a statutory basis. But since the principle of compensation for crimes of violence is generally agreed, it seemed to us desirable to get ahead with the experiment to enable victims of crimes of violence who deserve compensation to receive it.
I hope that the House will support the Government in a new and humane reform.
§ 4.39 p.m.
§ Sir Frank Soskice (Newport)
I should very much like to discharge the normal courtesy of the House in thanking the Home Secretary for explaining the purposes of the White Paper. My difficulty is that I am not sure what the appropriate form of thanks would be in this case, since the Minister responsible for the White Paper called the House's attention to paragraph 22, said that that was a crucial paragraph because in it was defined the quantum and basis of the compensation which would be awarded, and then, almost in the same breath, said that he had not the dimmest idea of what it meant.
§ Sir F. Soskice
I absolutely agree. I am most grateful to the right hon. Gentleman. I have not the dimmest idea what it means; I wish I had. I feel a considerable disadvantage in proceeding to discuss a scheme without knowing what the right hon. Gentleman means it to mean. However, subject to that qualification—which seems to be one which ought to be posed—I thank the right hon. Gentleman and say no more about it.
I had hoped when I saw that paragraph that it meant that compensation would be awarded subject to some limitation as to the rate of earnings to be taken into account and subject to the exclusion of exemplary and punitive damages, upon a full common law basis. If that were the case, and I greatly hope that it is, it would mean that loss of enjoyment of life, loss of faculty and loss of capacity to do this, that or the other that a normal 1140 person can do, would all be matters which can be taken into account in the assessment of damages, but after they are taken into account the resulting figure may in particular cases be very large indeed.
As the Home Secretary said, it may reach thousands of pounds. His hon. and learned Friend the Member for Surrey, East (Mr. Doughty) came to his help. The Home Secretary did not quite understand what the intervention meant, although I think that we all understood it. It seemed to conflict with what the right hon. Gentleman thinks that these words mean. However, I thank him.
We start this debate with a wealth of valuable and learned authority. The Home Secretary referred to the publication by "Justice" and the committee, which was also very valuable, over which the hon. Member for Hendon, North (Sir H. Lucas-Tooth) presided. There is also the extremely valuable report of the working party of the Home Office which reported in June, 1961, together with other reports to which the right hon. Gentleman referred. We have had two Bills on the subject. One was introduced by my hon. Friend the Member for East Ham, North (Mr. Prentice) and one introduced by my hon. Friend the Member for Lewisham, South (Mr. C. Johnson). Both were similar in terms.
So we start after very considerable consideration has been given to this matter. I think that it is agreed by all, as the Home Secretary said, that the time has come when we as a pioneer country, with the single exception of New Zealand, should recognise that this ought to be part of our welfare scheme and that persons who are completely innocent members of the public and, owing to some misfortune are physically injured by criminal acts of violence, should receive compensation. We start from that premise.
I go with the Home Secretary at least this far in thinking and saying that the situation is one which will evolve. We have little experience of this and I do not disagree with him in principle in putting before the House what is, admittedly—paragraph 8 of the White Paper says so in terms—a purely experimental proposal. I did not gather whether he suggested that it should be 1141 followed by a more precise outline of a scheme, but I gathered that there should not be such a further paper and that this rather vague proposal is all we are to have before the Board is set up and begins its work.
So far so good. We cannot, in matters of compensation, obtain complete consistency. In the publications to which I have referred, the basis on which compensation should be awarded is discussed. It is said by some that it is the duty of the State to the citizen to maintain law and order and that, if the State falls down in the discharge of that duty and consequent harm results to the citizen, the citizen has at any rate a moral claim to compensation. I think that a difficult argument to accept. We are all "the State". The State, viewed as a kind of abstract conception remote and different from us, seems in the context we are discussing to be somewhat of an unreality.
We all collectively try to see that law and order is enforced. We set up a police force and public institutions, but we know in advance that we shall not succeed altogether. All we can do is to do our best to see that law and order on a broad scale is maintained. Therefore, it seems unreal to base a claim for compensation upon the assumed failure of the State or society at large to maintain law and order. That is not the basis on which we can proceed. The real basis is that as society evolves new situations are uncovered on which strong public feeling works.
In view of the increase in crimes of violence recently and the emergence of cases in which, obviously, there is a strong claim to sympathy, such as cases set out on page 9 of the Home Office working party's report—several cases are set out of people being attacked by criminals—public sympathy is with the victims of those assaults. It says that as a matter of moral right they should be assisted in the only way in which, unfortunately, they can be assisted—by some monetary compensation. In framing details of a Welfare State, one finds it is not always possible to arrive at complete consistency.
If a workman is injured while at work and there is no fault that he can show on the part of his employer, he gets industrial injury benefit and a disability pension, 1142 whereas, if he can show that there was a fault or an unsafe system in which he was required to work, he is entitled to a lump sum award by way of damages. That seems illogical because it makes little difference to him whether there is a fault or not; he has been injured and the injury may be lasting and serious.
Similarly, when we consider motor accident cases I have always thought it very illogical that the question whether an injured person was at fault should play such a large rôle in the determination of an award of damages which he should receive. If an elderly pedestrian crosses the road and steps out immediately in front of a motor car owing to absent-mindedness, he receives no compensation because it is his fault. If, however, he steps out into the road 30 or 40 yards away from the motor car so that the driver would have an opportunity of avoiding an accident if he were exercising reasonable care and then the pedestrian is injured, he may be awarded £10,000 damages.
The absence or presence of fault on his part or on the part of the motorist in a case of a human tragedy of that sort is something which, comparatively speaking, is irrelevant. If we wanted to reach complete consistency we should have to examine the whole basis on which awards are based. It is in the public interest that a man should not be suddenly reduced to a wreck and made an invalid. If he is so reduced he should be cared for as far as an award can see that he is provided for. One must accept the fact that we cannot be wholly logical. If one tried to be completely logical in these matters it would seem difficult in the first place to justify simply giving compensation for personal injuries received by the victims of crime.
One of the examples given is of a ruffian who breaks into a cottage occupied by two elderly people, cracks the old gentleman over the head and steals his life savings, which are kept in a box under the bed. Under the Government's proposal the old gentleman would receive compensation for having his skull broken, but not for having his life savings taken away from him.
It is quite unrealistic to say to him, "You might have kept your savings in a bank; then you would not have 1143 lost them." That is just as unreal as if he were told that had he been wearing a crash helmet he would not have had his skull broken. People live like that and in the long run it may be very difficult to confine claims for compensation simply to personal injuries which result from violence.
It may be difficult to say that when a rascal diverts many thousands of small depositors' savings to his own use some form of compensation should not be made available in their case. It is very difficult to draw a line. However, I do not put that as a reason for not at any rate making this limited but very valuable and human reform, and I entirely support the Government in their determination to do so.
I underline that this proposal of the Government should be strictly regarded as an interim measure. I do not believe that one can operate a scheme of this sort simply on an informal ex gratia basis. Sooner or later, when we have experience of the kind of claims which are thrown up and of the difficulties which emerge, the Government must address themselves to the task of reducing to legislation the basis on which claims can be made by victims of aggression by criminals. It may take a long time to do this, but in the long run I believe that it will be found impossible to work a scheme of this sort on this comparatively informal basis.
Furthermore, it is right that it should be done in the long run through a Statute and not on this informal basis. There is, after all, something humiliating about an ex gratia payment. If a man or woman has been seriously injured and it is the feeling of the moral sense of society that he or she should be compensated, then the compensation should not be by way of grace, as it were; it should not be a gift. Such people either should or should not be entitled to it, and the Statute should lay down the circumstances and the conditions on which they should be entitled to receive such compensation as the law provides.
In any case, I do not think that the ex gratia system can work on this informal basis for the following reason: experience shows—and I am certain that those in the House who are lawyers 1144 Will agree—that most difficult questions are thrown up in the assessment of compensation. That was why I was anxious to know what were the Government's intentions on the general question of pain and suffering and loss of happiness. Day in and day out in the courts cases arise in which there is acute controversy between medical men and other experts as to what is the proper basis on which compensation should be assessed by the judge who tries the case.
There is the well-known case in which there is an hysterical element in the injury. One expert will say that when the case is disposed of the hysterical element is likely to clear up and the loss of faculty is likely to come to an end, but another expert will say that the hysterical element is so deeply rooted that, looking forward into the years, there is little likelihood of the patient ever regaining his powers or becoming anything like what he was before he sustained the injury. That type of dispute occupies the courts a great deal. The courts do what they can by asking that medical reports should as far as possible be agreed, to eliminate this extremely expensive sort of controversy, but it is not altogether possible to do so.
I therefore fear that a tribunal which approaches the matter on the basis suggested by the Government—admittedly simply as an interim measure—will find that in the long run if it does not have clear terms of reference and all the paraphernalia of law by reference to which to judge the case there will be much dissatisfaction especially if there is no right of appeal. Many persons will go away from the tribunal feeling that they have not been properly dealt with.
It is to be hoped that in a very large number of cases, irrespective of whether there is a lower limit imposed, as the Home Secretary suggests in the White Paper, there will be preliminary negotiations, as there are in the courts when personal injury cases arise, and that a large percentage will be disposed of without any hearing. But that leaves over the serious type of case, such as the examples quoted on page 9 of the Home Office Report of people reduced to a physical wreck. Such cases may involve damages of £10,000, £15,000 or £20,000. These elements must all be taken into account. It is a major piece 1145 of litigation and the right result, as far as human judgment can bring it to a proper result in a difficult situation of that sort, must be achieved. That is what justice demands.
That is one side of the difficulty which will have to be encountered. The other side arises from what the Home Secretary said in his speech. It is the consideration that those who are responsible, as it were, for the infliction upon them, in a general sense, of the injury ought not to benefit either at all or to the same extent. If a person is injured in a gang fight because he is a participant in the fighting, he cannot expect to have very much public sympathy when he sustains a wound.
But while so stating the question, one raises a series of different possible hypotheses. There may be a man who has frequented criminal circles and of whom at first sight one would say, "He has no claim if he is knifed during a public house brawl". But he may say that that is not the case, that he had left his former associates and that they were after him because, for example, they thought that he would be a potential squealer. Or he may say that he was doing his best to prevent violence from being inflicted on others by the person ultimately charged with the offence of inflicting the violence on him. If one is to try to achieve justice one needs a proper form of judicial hearing.
For these reasons I think that we must face the situation that a judge, in the full sense, should be asked to undertake these cases—a judge of the Queen's Bench Division, or, in smaller cases, a judge of the county court. The question of the victim's character has been raised. A man who has been an habitual associate of violent persons perhaps should not have the same claim to compensation as a completely innocent member of the public who has never had such associates but who is suddenly attacked in his shop by a violent criminal.
On the other hand, a man's character may be bad, but bad in an irrelevant sense. Most people would say that if a member of the public is injured by a violent criminal it is not very relevant that the victim is a man who habitually presents misleading and fraudulent returns for the purpose of his income tax assessments. These are all cases which must be precisely provided for by the letter of 1146 the Statute. One needs judges to try these cases, and it is requisite that the Statute should provide judges with guidance as to the sort of situations and circumstances which they must take into account.
I take the view that this kind of problem will be one of the most difficult which the courts have to deal with. Goodness knows, already cases of compensation as a result of personal injury in motor accidents are very puzzling for courts who have to try to arrive at a fair figure to compensate the person who is badly injured. That is one of the most difficult tasks which judges have to perform. Here, the judge not merely has that task, but, in addition, must address himself to trying to assess the degree of culpability or participation of the injured person in the commission of the offence.
I put another point to the right hon. Gentleman. It has been said in a number of the publications to which I have referred that an award, if a hearing is necessary, should not take place until after the person charged, it' there is a person to be charged, has been brought to trial. The question has been raised and discussed whether, when a member of the public is injured by a violent criminal, it should be necessary that the criminal, or any criminal, should be charged and convicted of that offence.
What is asked is whether it is first necessary, when a man has had his head cracked open, that the cracker should be brought to justice and convicted. If that is necessary, then we are providing inducement for the person who is injured as it were to make certain of the conviction of the aggressor. That is utterly undesirable. The hope that he will gain compensation should not influence a victim who gives evidence at the trial of the person accused of a violent offence.
I should have thought that it would be most undesirable that it should be requisite that there should be a conviction before compensation is awarded. If so, juries will begin to wonder when they listen to the evidence of witnesses for the prosecution, witnesses who may have received injuries, whether the hope of an award of compensation conceivably could have influenced the witnesses' evidence. I should have thought that it is much better that it should not be 1147 necessary that a conviction should first be obtained.
If the view is taken that it should not be necessary that there should first be a conviction, other difficulties arise which must be carefully thought about. A criminal who is charged with an offence and acquitted may be in considerable danger. An offence is committed and a man may be accused, brought to trial and acquitted, or there may be not enough evidence to bring anybody to trial with any hope of proving up to the level of certainty which is requisite in a criminal case that he was guilty of the offence.
I put this position to the Home Secretary. A man is acquitted and is, therefore, prima facie entitled to be regarded by his fellow citizens as completely innocent. It is true that at the moment the victim of his violence could sue him in the courts. In practice, we know that that very rarely happens, because in 99 cases out of 100 he is not worth powder and shot. If there is to be a public fund from which compensation can be obtained, I should have thought that it would not be unusual that there might be a kind of second hearing of the circumstances attending the commission of the crime.
I ask the Home Secretary to consider, for example, the case of a housing estate and a small child who has been violently assaulted, whether sexually or otherwise—it does not matter. X is suspected. A rumour runs round the estate. There may be not sufficient evidence to bring X to trial, or X may be brought to trial and acquitted. If then there is to be a hearing before a judge in which the child is called upon to give evidence in support of a claim for compensation in respect of perhaps very serious injuries to the child, rumour begins to go around that X was responsible after all. People say, "He was lucky to get away with it. They could not prove it against him, but the child got compensation." If the child giving evidence says: "I was assaulted. I think that it was X: It was a man like X, but it was dark and he hit me on the head and I cannot be certain", X will be faced with ruin. He cannot go on living on that council estate.
1148 That kind of contingency is one for which some provision must be made. The Home Secretary has not said—I do not think the White Paper says—whether the proceedings of the tribunal will be in private.
§ Mr. Brooke
I know how carefully the right hon. and learned Gentleman has read the White Paper, but may I point out to him that paragraph 27 says this:Procedure at a hearing will be as informal as is consistent with a proper determination of the application, and the hearing will be in private.
§ Sir F. Soskice
I am obliged to the Home Secretary. I remember that passage, now that he reminds me of it. But is that altogether right? Is justice, if justice is involved here—it is bound to be in a great many cases—to be done in private? It might be said that the rule should be that the hearing should be in private, unless either the accused person, if he is to give evidence, or the victim wishes that it should be thrown open to the public.
Even that is difficult, because it presents the possibility of pressure and blackmail. For example, a married woman struck on the head by a man who has come into the house may know perfectly well that, if she makes a claim, he is likely to say that she invited him into the house and will ask for the hearing to be in public. That is an undesirable situation, and I think that the question of publicity must be very carefully considered.
If it is to be in private, at least the person who if he has been acquitted is, nevertheless, impugned as the result of the hearing of a claim for compensation should be able again to defend himself. He should not be in the position of having been acquitted by a jury of the commission of a crime and then not being heard in relation to an award made for compensation to an assumed victim of his when he still denies that he had anything to do with the infliction of the injuries.
Those are problems which I put to the Home Secretary. I think that, when we have had more experience of the working of the scheme, they will be thrown up, and it may not be altogether easy to resolve them. Therefore, to 1149 summarise that part of my argument, I think that one must contemplate in due course that this informal scheme will have to be superseded by a scheme which is properly defined by Statute and it will not have to be administered by a somewhat informal board.
It will have to be administered by judges of the High Court or the county court, as the case may be, and proper legal procedure will have to be applied, because matters of very great moment, both for the person accused and for the person claiming compensation, in a large number of cases, though not in all cases, may be involved. It is greatly to be hoped that it will be possible to settle a very high percentage of cases before they get to any court. I do not think that in the long run we shall be able to leave the matter as it is.
I turn now to the question of the basis on which the compensation should be assessed. Personally, I very much prefer the conception of a common law award of damages to the alternative proposal of a pension under the terms of the Industrial Injuries Act. I prefer it, because violent injury can affect different people in all sorts of different ways. It can make one person a nervous wreck. It may have all sorts of effects which cannot be foretold at first sight. The basis on which judges award damages when they make a common law award is best calculated to evaluate fairly to the claimant all these imponderables in his condition which may result from the infliction of the injury.
Therefore, I hope myself that the Home Secretary will adhere to what he has embodied in his scheme, namely, the common law basis of award, but I hope that it will be made sufficiently wide to enable all the consequences to the injured person to be taken into account, so that, if he is a wreck, if he is seriously crippled, the award will be commensurate and the happiness of which he is deprived in the enjoyment of his life will not be excluded as an element which the judge can take into account in making the award.
I pass from that side of the scheme to the other side of the scheme. A public fund is now being set up. It is based, broadly speaking, on the concept that the criminal has injured an individual 1150 and that these should, therefore, be some retributive payment, as it were. I think that it is very useful in the reform of our penal system that the fact that a criminal has done injury to a person should be brought home to him in the form of some contributory payment on his part by way of compensation.
I quite agree with the Home Secretary that this cannot be done practicably until criminals are allowed to work upon the basis of full and complete remuneration. When they are, those who are concerned with the question of penal reform might well think that the principle of retribution by way of a money payment, not so substantial in size as seriously to impede the prospect of the criminal returning to society and being ultimately rehabilitated into it, should be taken into account.
That is useful, but it is a completely different side of the problem which we are considering. It is a matter for penal reform. What we are doing now is setting up a public fund, and I should have thought that it was desirable that there should be a well understood dichotomy between them. It should be well understood that the claimant here is being compensated from the public purse. He is not being compensated directly by the person who has inflicted the injury on him.
As a matter of penal reform, however, the criminal who has done the injury might well be called upon—it would be of value as a feature in our penal system—out of the money which he is enabled to earn whilst serving his sentence, or even after he comes out, to make some suitable retribution to the public fund, but there should not be a relation between the injury that he has inflicted and the amount which the judge, or whoever the appropriate authority may be, decrees that he should restore to the public fund.
There should be two quite separate things—his punishment and what he should contribute out of his earnings, and the compensation the victim gets out of the public fund. These should not be related to each other. There should be no more than the very general relation which resides in the concept that the person who is injured is entitled to compensation and, in a broad sense. 1151 the person who inflicts the injury should make some retribution for the offence he has committed.
Those are the general considerations that I venture to put forward. To summarise them shortly before I conclude my observations, I think that the attitude which the Government have adopted in accepting liability for compensation is to be commended. We are right to do that. No doubt we are inconsistent in some ways in accepting this liability on behalf of the public purse. That cannot be helped. Later, perhaps, the scope of the compensation will have to be enlarged as the problem develops. That. I submit, is absolutely right.
I agree with the right hon. Gentleman in proposing as he has done, something by way of a purely experimental scheme purely for an interim period. I think that it should be reviewed soon and constantly re-examined to see what problems it throws up. In due course, we must accept, I think, that an informal basis of ex gratia compensation will not meet the needs thrown up by this problem in the long run and that a Statute will have to be substituted setting out precisely what has to be determined, both in terms of amount and in terms of participation of the injured person in the commission of the offence, so that judges may have clear guidance on what it is they are to determine.
I think, further, that the scheme will have to be, in the cases which are not capable of easy solution by preliminary negotiation, decided properly on judicial principles by Her Majesty's judges. I myself believe that the question of appeal will also have to be considered. That should be one of the features which are applicable in the case of a full hearing of claims by persons who have been badly injurd as a result of aggression by others.
§ 5.12 p.m.
§ Sir Hugh Lucas-Tooth (Hendon, South)
I am glad that the right hon. and learned Member for Newport (Sir F. Soskice) has given the general blessing of the Opposition to the Government's proposal, because it is important that a venture of this kind should start in a spirit of general agreement. Men have always suffered from the slings and arrows of outrageous fortune and most 1152 of the sufferers have suffered without any compensation. In this age of the Welfare State, we look to the State to provide compensation to individuals who have suffered through no fault of their own.
Hitherto, all State schemes for paying compensation have been built up on foundations which have been laid by charity, or charitable individuals, or other private people who made it their business to try to right some wrong. The pioneering work has been done by private munificence, sometimes from private profit, by the Church and by other organisations, and in every case the ground has been thoroughly explored before the State has started to take over and to run the scheme.
This afternoon, for the first time in history, I think, the State is entering into a virtually unchartered area of social aid. This is a completely novel idea which we are now canvassing. I think that there will probably be those who will say that such a project is one which really ought not to be undertaken at all. For my own part, I disagree with them. If this work has not hitherto been attempted, I think that the reason has been that it has been too difficult a task for anyone but the State to undertake. I think, too, that there is a very wide feeling among the public of a special sense of responsibility for those who are the victims of criminal violence.
The right hon. and learned Gentleman referred to cases which had been mentioned in a Government White Paper. Perhaps the most obvious and classical example is that referred to on page 9:A middle-aged woman was attacked and robbed when returning from a church service on Christmas Eve. Several of her ribs and teeth were broken and she lost the sight of one eye. As a result, she lost her employment as a secretary and has been unable to work again.A number of other cases of the same kind are given, which, I think are cases which everyone would feel are deserving of compensation from some source, but so far no source has been forthcoming, charitable or otherwise. This afternoon we are considering whether we cannot do something about cases of that kind.
If this is a novel idea, I feel that there are very strong reasons for making an altogether novel approach to it. 1153 I had the honour to follow my right hon. and learned Friend the Attorney-General as chairman of a Committee which considered this problem. I think that all of us on that Committee felt the need for something to be done to deal with the straightforward kind of case to which I have referred and which will be present in the minds of all hon. Members. But, of course, the trouble is that the majority of cases which fall within the broad definition of victims of crimes of violence are not at all straightforward. The violent crime is very seldom a simple matter. I refer to the paragraph in page 14 of the Report of the Committee on Victims of Violence, in which we said:We consider that accomplices and accessories should have no right to compensation in any event. The case of others who are not wholly free from responsibility is more difficult. They may include victims who have been guilty of provocation or of some negligence, and victims who have been in association with the criminal, for instance members of the same gang. We do not think that it is possible or desirable to legislate for all these cases.On the following page, we go on:The question of family relationship is relevant. For instance, compensation paid to a wife injured by her husband would often go straight into the husband's pocket. We are of opinion that no claims for injuries caused between spouses whether living together or not ought to be allowed. In the case of other family relationships and also of certain social relationships—for instance, partnerships—it would be necessary to give the court some discretion in order to prevent abuse. Injury sustained by one prisoner as the result of a criminal assault by another prisoner would need special consideration. Special provision would need to be made for the police and for prison officers. These two classes of people are particularly at risk.The majority of crimes of the kind that we are considering this afternoon are concerned with accomplices, with relations, with lovers, and with others who have contributed by provocation or by negligence to their own injury.
In the Committee, of course, we were thinking in terms of providing compensation as of right. We therefore recommended giving wide discretionary powers to the courts in dealing with such claims. Indeed, we suggested that the courts should have complete power in their discretion to reduce or extinguish the compensation in any case where they thought it appropriate. I confess that I was uneasy and so I think 1154 have been all of us who have considered this matter. It would be extremely difficult for the courts to exercise such a discretion. They would not be adjudicating as between two individuals or as between an individual and a public department. They would be dealing simply with the payment out of public money, and they would be doing so with the barest framework of rules upon which to act to guide them.
I think, therefore, that there are immense advantages in doing as the Government now propose, that is to say in starting with an ex gratia scheme. I have no doubt that a whole case law of rules can be built up and that when that case law comes into existence it may well be possible, as the right hon. and learned Member for Newport has suggested, to review this scheme and to put it into statutory form.
I am sure that the Government are right in basing their proposals on the principle of common law damages rather than on that of social insurance. It is very commonly thought that the difference between these two schemes is the difference between a scheme involving weekly payment on the one hand and one involving lump sum payment on the other. I do not think that that is so. I believe that the fundamental difference between the two schemes is the basis on which we shall calculate the amount of compensation which will be paid over. In the case of common law damages account is normally taken of pain and suffering and loss of amenities as well as of earnings.
As I understand the White Paper, the phrase used which has given rise to some discussion, "loss of happiness" was probably intended to be not too explicit. This, as I would read it, was because the Government's intention in issuing the White Paper was to give rise to debate so that these difficult problems could be discussed. No doubt the Government will listen to the debate and will carry out to the best of their powers the various suggestions made in it.
I hope that compensation will include a full and fair element for pain and suffering and for loss of amenities. If it does not, it will be simply coming back again to a National Insurance basis. National Insurance would give a flat-rate maintenance grant having 1155 regard to nothing else than the duration of the disability and the family responsibility of the victim in question. I prefer the first of these. I wish to press that view strongly on the Government.
I began my consideration of this problem in favour of the National Insurance principle, but it seems to me that National Insurance is by its nature intended to cover some specific risk—general loss of earnings—and that the victims of crimes of violence are very often themselves not earners. When the hon. Member for Lewisham, South (Mr. C. Johnson) introduced a Bill to deal with the matter on a National Insurance basis he had to insert in it a wholly artificial provision to assume that the individual injured was an earner although he was not earning. That seems to me wrong in principle. It would be much better to deal with the matter on a proper basis of compensation for injury.
There is another reason why we should deal with the matter in this way. When criminal proceedings are pending, and they will be in a number of these cases because the criminal may be apprehended, the question will arise at his trial whether a crime has been committed. Also, an equally important question from the point of view of the victim, will be whether he or she was involved in circumstances which might disentitle him or her to any compensation, whether provocation or otherwise. It would clearly be wrong to prejudge these issues of the trial by some preliminary quasi-judicial proceedings before the tribunal at which these very issues would have to be tried. Criminal trials, fortunately, do not take as long as civil actions; nevertheless, they take a long time and there will be appeals, and so on. Therefore, it will be necessary to hold up any payment of compensation for weeks and months. That is wholly contrary to the idea of National Insurance weekly payments.
A large element in assessing common law damages is the weekly earnings of the person concerned. My right hon. Friend is entirely right in adopting the principle, which I think was first recommended by the Committee over which I presided, of putting an upper ceiling on the amount of earnings which can be 1156 taken into account. Although we should have fairly broad bands of differentiation if we are to do justice, nevertheless I believe that there should be a limit to the width of the bands. As my right hon. Friend has said, it would be quite wrong to compensate in full a man who is earning tens of thousands of pounds a year at the Bar when a man who has suffered exactly the same injury has received only a few hundred pounds because he was old and unemployed. I therefore think that this limit is absolutely justified.
A scheme to cover ordinary people who suffer injury or loss of health, whether temporarily or permanently by the malicious act of a fellow-subject is what we want, and I think that this is what is suggested by the White Paper. People with higher earnings, just as people with property, ought to insure against the loss if they want some special compensation. Both the Committees referred to in paragraph 4 of the White Paper set out a list of the crimes in respect of which compensation should be paid. There was very little difference between the two lists, and there is little difference between the suggestions of either Committee and what is suggested in the White Paper, namely, the total refusal to enumerate any particular crimes.
It could be said that what all of us have in mind in this connection is that compensation should be payable for a criminal assault, which is an element in nearly all these crimes, but unfortunately that definition in itself is not quite wide enough. I should like to ask my right hon. Friend what he has in mind about such crimes as poisoning.
When thinking of victims of crimes of violence people do not ordinarily think of poison, but it can have a very powerful physical effect upon the sufferers. If we are going to include poison then at once we are venturing into a new and much wider field. A crime can be committed, for instance, under the Food and Drugs Act which may lead to the very severe poisoning of individuals. Those individuals are the victims of crimes. Are such cases as those to be capable of being included within the Government scheme? Of course, the moment that we enter upon the Food and Drugs Act we enter also 1157 on offences under the Factories Act, and so on.
Here we are embarking on a much wider field than any of us, I am sure, had in mind. I do not want to enter into that field. I would sooner limit our definition to a criminal assault, but if we are going wider than that I want to know just how wide we are going. For instance, here is the kind of case which could occur. It might be the result of some kind of criminal negligence on the part of someone, possibly the pilot of an aeroplane, and, possibly, someone not in the aeroplane, resulting in a very serious air accident and a great number of claims being made.
Are cases such as that to be included? My feeling about it is that they should not be included. Indeed, I would like to see them deliberately excluded, because I do not think that such cases are the kind that we have in mind. I think that if compensation is payable in a case of that kind it should come from the air company or some other source and that no attempt should be made to recover it from the individual whose criminal negligence might possibly be the cause of the damage.
§ Mr. Eric Lubbock (Orpington)
I think the hon. Gentleman will find that air operators are already required to cover passengers against accident up to £12,000 per passenger.
§ Sir H. Lucas-Tooth
That may be so, but, nevertheless, it might be possible for passengers to claim Government compensation in cases of this sort and it might be possible, therefore, for the airline to recover compensation from the Government without benefit to the passenger concerned simply because of the operation of a scheme of this sort.
I am certainly apprehensive about the proposals in the White Paper covering pregnancy from rape. The Committee recommended against any such compensation. We were, of course, considering the payment of compensation as a right, and again it is different when we are dealing with the matter on an ex gratia basis. Ex gratia payments are more flexible, but there will certainly be a number of cases where women who have become pregnant will put forward claims that such pregnancy is due to 1158 rape, and it will be exceedingly difficult to adjudicate on those cases.
I have little doubt that quite a number of suck cases will find their way to Members of this House and that we shall be asked to take the matter up. Parliamentary pressure will be brought to bear. I think I am right in saying that it will be out of order to put down Parliamentary Questions about particular cases because I imagine that there will be no direct Governmental responsibility, but it will certainly not he out of order to raise the general question, which must, of course, be the responsibility of my right hon. Friend, as he said this afternoon. I am particularly anxious that cases which can involve controversy of this kind should not come in in the first place. I think that it is asking for trouble, but I am afraid that as it is in the White Paper it is too late to go back on this particular promise.
Finally, something about recovery from the criminal himself. Of course, the criminal is primarily liable to his victim. That is the present law, and I do not think that anybody would wish to change that. But it is generally quite useless to pursue the criminal because he has little or no means. If he is caught he probably goes to gaol for a spell and is therefore unlikely to earn any money. In a short time the victim loses touch with the offender and there is an end of the matter.
In any case, even if there are cases where the victim can successfully bring an action against the criminal, he will do so in the civil courts and he will be quite a different person from the prosecuting public. Therefore, the criminal will not generally regard himself as being punished twice over. If, however, the State pays the victim, as proposed by this scheme, the State itself will quite rightly claim the right to recover what it has paid from the victim in due course. Indeed, this is in the White Paper and is common ground and the proposal has been pressed by the right hon. and learned Member for Newport.
I have some doubts about it because there will be great practical difficulties in the situation as a result of this scheme. The individual victim loses touch with the criminal, but the State rarely if ever loses touch with criminals. There will, therefore, be a continuing 1159 liability and the State will know only too well that it has paid out £1,000 or £2,000 which is due back from A whenever A has the money.
When A comes out of gaol he may continue in his wicked ways, and nothing much can happen. We all hope that when A comes out of gaol he will go into ordinary life, become a good citizen and start earning money. Is it likely to make A a good citizen to know that he has a debt of, say, £2,000 hanging over his head and that if he begins to earn and save money the State can take it all away from him? I do not think that this will do much to help to reduce crime. Therefore, I do not think that this right of subrogation, as it is called, will be very helpful. On the contrary, I think that it will do a great deal of damage and that it will need a great deal of thought.
Another consideration. Even supposing that we have, as suggested by my right hon. Friend, a system of the payment of wages in prison, those wages will have to be found by the State. The man will know that he is in prison as a punishment for his crime, and if the State says, "Ha ha, we are going to have it out of you now; we are going to dock you a couple of pounds a week for the man you have injured," this is going to be regarded as double punishment, and no amount of argument will explain that away.
§ Mr. Charles Curran (Uxbridge)
It seems to me that my hon. Friend is reading into the White Paper more than I am. The White Paper says…a person who has been compensated by the Board will be required to undertake to repay them from any damages he may obtain by suing the offender.It does not say that a person who has been compensated by the Board shall be required to take proceedings against the offender, and still less does it say that the State shall be required to take action against the offender. It simply says that if the person who has been compensated obtains damages then he may be required to repay the compensation. There is no obligation imposed. My hon. Friend's argument amounts to an obligation imposed.
§ Sir H. Lucas-Tooth
I am not saying that we should impose an obligation but that when the State makes payment under the White Paper it will, by the process of subrogation, itself be entitled to sue the offender. All I am saying is that the State's right arises from the fact that it pays the victim. I do not say that the State will be obliged to exercise that right, but it will have the right, which it will be extremely difficult to exercise. Although I am certainly not against this principle, because I think that it will be essential, I do not think that it will be impossible to say that the State shall pay and not be entitled to recover, but it will give rise to extraordinarily difficult questions that will have to be considered.
The scheme will give rise to many difficult questions. I am not in any sense trying to "crab" it; on the contrary, I think that these questions are important, and should be raised. Their solution is probably the solution of our whole system of criminal law, and for that reason I welcome this White Paper. The scheme will not be simple to work. It will not do anything to solve our difficulties, but that is a good thing, because it will force us to set to work to solve our difficulties. I see this as the beginning of a new system that may lead us, some day or other, to a better system of punishment and criminal law.
§ 5.40 p.m.
§ Mr. Niall MacDermot (Derby, North)
As I have a number of critical things to say about the White Paper, perhaps I may begin by giving as warm a welcome as I can to the scheme itself. I think it the logical corollary of the general movement away from the retributive conception of punishment to putting more emphasis on deterrence, prevention and reform that, at the same time, society should take an attitude of greater responsibility towards the victims of crimes of violence. It is significant that in the movement that has been taking place in the last few years, penal reformers have been prominent in advocating such a scheme.
One can quite understand why the Government wish to introduce a temporary and experimental scheme. Nevertheless, it is a matter for regret that after so much labour they have not been able to produce a Bill; and that, 1161 instead, we have this constitutional anomaly of a scheme of far-reaching importance being introduced merely by a White Paper. We are, presumably, to have one debate on it which is to be, at the same time, in effect, a Second Reading debate, and a complete series of Committee debates on every paragraph of the scheme. The result will be that this House will be unable to give the details of the scheme the attention they deserve.
I propose to respond to the Home Secretary's invitation to try to make some constructive suggestions, and I must therefore apologise in advance for making what will be primarily a Committee speech. The only other Second Reading point, as it were, that I wish to make is to express agreement with what has already been said in congratulating the Government on having come down on the side of a compensation scheme rather than of an insurance scheme, though I would only be repetitive if I gave my reasons.
Is what we have in the White Paper intended to be the scheme? I am not quite clear of that. I see the Home Secretary nod his head—perhaps he means that this is the scheme subject to any amendments he will make as a result of what is said in this debate. I understand that to be the proposition. If so, my comment—and I hope that it will not be dismissed as a lawyer's quibble—is that a serious defect of the scheme is that it is vague and incoherent.
The scheme must be applied, and it must be applied by lawyers. That is right, particularly as the common law basis of damages is being accepted as the basis of compensation. It is only lawyers who know what that basis is in practice so, rightly, the tribunal must comprise lawyers. But if lawyers are to approach such a scheme as this they first have to know the precise definition of what is meant. They must know what is to be the scope of the scheme, what kind of crimes are to be covered by it, what exactly is to be the measure of damages, what exactly they are to discuss or leave out. On what are practical matters from the lawyer's point of view, I find myself on reading the scheme riddled with doubt, as I think most lawyers will be.
1162 Let me give some examples of what I mean. In paragraph 13, which is headed "Scope of Compensation Scheme", I am unable to find a definition of the scope of the scheme. I am told what it is not, but I am not told what it is. It begins with the general statement:Personal injury may arise from a great variety of offences, including crimes against property as well as crimes against the person.That means, presumably, that the scheme will be limited to personal injury, but the White Paper does not say so specifically, and it does not make clear the very pertinent point mentioned by the hon. Member for Hendon, South (Sir H. Lucas-Tooth), about whether or not poisoning is covered.
The paragraph continues:It is not, therefore, proposed to specify a comprehensive list of crimes, the victims of which may apply for compensation.I think that other schemes, and the New Zealand Act in particular, give a specific list of crimes. There are strong arguments for making a list but, if that is not done, let us at least define the kind of crimes to be covered. Instead of that, the paragraph says:Broadly speaking, however, applications are likely to arise either out of…and there comes a list of various offences. The question is not what applications are likely to arise but what applications will be received as valid. Are those words intended to mean that any applications arising out of these classes of offences will be accepted, and none other? If so, the scheme should say so, and it does not.
One reason why this is very important is that in paragraph 26 we read that no costs of legal representation will be paid. People who have serious injuries and want to know in a borderline case whether or not they should pursue a claim will, in my view, be foolish not to employ lawyers, because lawyers will present their case better and more effectively for them. That will involve applicants in quite substantial costs. As I say, they will want to take advice on whether or no they have a valid claim under the scheme. If the whole thing is worded in woolly terms—as I think this is—lawyers will not be able to give any confident answer to them.
1163 It is no good the Home Secretary saying that to start with it will be experimental, that we will see how it works out, and that it will be informal. People will incur liabilities and costs, and will want to be advised whether or not they have a good claim. That is one of the practical reasons why parity should apply——
§ Mr. Brooke
The hon. and learned Gentleman interrupted me, so I hope that he will not mind my interrupting him at this point. We both have a common object; we both want to get this scheme into as good shape as possible. It is fair to me to make the point that whereas the hon. and learned Gentleman is quoting from paragraph 13 and the broad outline of the scheme, it is in paragraph 14, which he has not yet mentioned, that it is stated that the Board will entertain applications only in certain cases. That is where the definition comes that he says is missing.
§ Mr. MacDermot
With respect, I have not made my point clear. I agree that there are various limitations, which are considerably clearer, in the succeeding paragraphs, including paragraph 14, but nowhere in paragraph 14 can I find the kinds of crime of which a person has to be the victim before he can successfully make an application under the scheme. That is what is not clear. That is dealt with in paragraph 13 only, and in a negative and unclear way.
I want now to deal with the basis of compensation, a matter on which a number of us interrupted the Home Secretary at length. I think that I carry all lawyers with me in saying that the phrase which disturbs us—no award for loss of expectation of happiness"—is not a term of art known to the law.
§ The Attorney-General (Sir John Hobson)
It is a quite well-known phrase which is used frequently. It is used in Clerk and Lindsell on Torts. It came from Benham v. Gambling, which is discussed in Clerk and Lindsell, and it means little more than the expectation of life. The law in Rose v. Ford dealt with the loss of expectation of life. What was said in Benham v. Gambling is that one looked, not to the expectation of life, but 1164 to the expectation of happiness in life. This idea is set forth in Clerk and Lindsell. To make it clear that this is what is intended, one need only turn to paragraphs 128 and 129 of the Government White Paper published in 1961 which make it plain that the phrase "loss of expectation of happiness" is intended only to deal with what used to be known as loss of expectation of life.
The hon. and learned Member will, I am sure, be delighted to know that certainly the view of the Government is that it is not intended to limit claims for damages in respect of loss of faculty, capacity or anything of that nature or loss of the ordinary amenities of life because of loss of faculty or capacity.
§ Mr. MacDermot
I hope that with that intervention the right hon. and learned Gentleman has persuaded the Home Secretary at least that this phrase is not clear to lawyers, because from two distinguished lawyers on the benches opposite we have had completely different and conflicting explanations of the meaning of the phrase.
I cannot think that the Attorney-General's explanation can be accepted, and for this reason. He says that "loss of expectation of happiness" means that term as used in the case of Benham v. Gambling—that is, a claim for damages under the Law Reform (Miscellaneous Provisions) Act, 1934, arising out of the death of a person. In the White Paper, we see that the limitation that there will be no loss of expectation of happiness deals with the ordinary case of compensation based upon common law damages. It is the next sentence of paragraph 22 that deals with fatal injuries.
If it were said in relation to cases of fatal injury that there would be no award for loss of expectation of happiness, my mind would have gone at once to Benham v. Gambling, but it does not turn at once to that case when we are dealing generally with the basis of compensation.
§ The Attorney-General
There are people who, although they are not dead at the time of their claim, plainly will live only two instead of 20 years. They have lost what might be called expectation of life, but they have, in fact, lost an expectation of happiness. Whether a person is dead and his dependants are 1165 claiming or whether he is alive and not expecting to live so long, it is only the loss of expectation of living a happy life which is excluded by these words.
§ Mr. MacDermot
I am comforted by that reply and I hope that among the amendments to be included in the scheme will be a change of the wording to make it abundantly clear to the tribunal that that is what is intended, and nothing else, because on reading the wording many of us feared that it would extend to a large part of the sphere of general common law damages. We are certainly greatly relieved by the reply which the Attorney-General has given.
I will review rapidly some of the other points which have occurred to me. I do not want to make my speech long, because many other hon. Members wish to participate. I hope, therefore, that I will be forgiven if I do no more than refer briefly to a number of the points. The proposed name of the tribunal is long and the Home Secretary invited suggestions. For what it is worth, I throw out as a suggestion "violent crimes compensation board", saving quite a number of words.
On paragraph 12, I agree that as part of a permanent scheme we surely cannot accept that there should be no right of appeal. We all know that in dealing with common law damages, even the most experienced judges sometimes go very much astray in their assessments and have to be rectified by the Court of Appeal. Unless there is a similar right of appeal, the same kind of error will from time to time undoubtedly arise in dealing with a tribunal of this kind. In addition, if it is intended to relate the level of damages to the general common law damages, one of the most effective ways of doing this would be to give a right of appeal to the same tribunal as hears appeals against damages at common law.
To deal with paragraph 14, I should like to express some dissent from the views of my right hon. and learned Friend the Member for Newport (Sir F. Soskice) concerning cases where an offender has not been brought to justice. I understood my right hon. and learned Friend to suggest that if a man who was alleged to have committed the crime had been prosecuted and acquitted, it would 1166 not be right that the victim could then try to reassert the claim before the tribunal in order to get damages. Surely, the victim is already entitled to go to the common law courts and, if the alleged criminal was a man of means and was worth suing, to say "Even though he was acquitted by the jury, nevertheless I still allege that he assaulted me. The burden of proof is not so high on me here. I only have to prove on the balance of probability that I am right and do not have to prove, as in a criminal case, beyond reasonable doubt."
Clearly, it is right to have the provision as is contained in the scheme that it is not necessary that the offender should have been brought to justice, so that compensation can be awarded in cases where the identity of the offender cannot be established. In my view, that should apply also in cases where the alleged offender has been acquitted by a jury.
On paragraph 15 and the question of taking account of any share of responsibility of the victim, I entirely accept the principle that it is right that this should be written into the scheme. This, again, is a matter in which a clearer definition would help. Is it intended that there should be an apportionment of liability as in, for example, a claim for negligence at common law, where damages are reduced proportionately to the share of responsibility of the plaintiff? Is that what is meant by the words "take account"? If so, I suggest that this should be stated specifically.
Paragraph 16 deals with the admittedly difficult question of claims in relation to sexual offences. I entirely agree with what was said by the hon. Member for Hendon, South about the danger—indeed, we must accept it as being more than a danger, even a certainty—that fraudulent claims will be put forward in this connection. Paragraph 16 is designed to protect the public funds against claims of that sort. I wonder, however, whether it does not go a little too far in that it specifically requires that the circumstances of the alleged assault musthave been immediately reported to the police".Obviously, in many cases, if the matter has not been reported to the police with 1167 promptness, that of itself would cast serious doubts upon the claim. That is something which would be looked at and investigated by the tribunal.
Must this, however, be an absolute prohibition? Surely, there may be occasions when there are good reasons why the matter was not reported at the time to the police but, nevertheless, the person concerned later wanted to pursue the claim. There would be a heavy burden upon claimants to establish their case, but if they could satisfy the tribunal that they were the subject of a criminal assault, even though it was not immediately reported to the police, should that be a bar upon them? If a bar of this kind is to be proposed, let it be more precise. What does "immediately" mean? Surely, there should be a specific time limit so that people advising a claimant will be in a position to advise whether the delay which has occurred would be accepted as within the meaning of the phrase "immediately reported to the police". Personally I welcome the fact that the scheme does extend to the damages resulting from a pregnancy created by a sexual assault. I, indeed, would have liked to have seen it extended to the maintenance of a child born as the result. I can see that in the initial stages of a scheme of this sort it is perhaps better to limit it at first.
Paragraph 23 provides for the determining of applications and thatEvery application will be made in writing, as soon as possible after the event…Again, this is very vague. Is it not better to have some prescribed time limit and, if necessary, give the tribunal a discretionary power to allow an extension of time on good cause being shown?
Paragraph 27 says:Procedure at a hearing will be as informal as is consistent with a proper determination of the application, and the hearing will be in private.I think that is right. Nothing is said about rules of evidence, but obviously from the fact that inquiries are to be made of the police and so forth, it is clear that this tribunal is not going to be bound and tied to the ordinary rules of evidence but presumably to some 1168 extent will have to work out its own code of evidence.
In view of this and other uncertainties, would it not be advantageous if reports of this tribunal were published periodically? This would easily be done, and still preserve anonymity, as is done, for example, with periodical reports of appeals on planning decisions, and there are other examples from other tribunals. But again, for the benefit of those who have to advise prospective claimants, it is going to be very difficult for the ordinary practitioner to know what the practice and what the form is if he does not happen to have dealt with this sort of case before, unless some system of reporting is developed, and I suggest that to the Minister for consideration.
§ Mr. Brooke
I think that is a valuable suggestion, but on certain points the hon. and learned Gentleman made earlier he seemed to me to have fallen into the same difficulty as we were in. Either we have a general scheme based on a White Paper which gives the Board considerable opportunity during this initial experimental period to use its common sense, or we use a statutory scheme under which judges will be required to apply the law laid down by Parliament with exactitude, and I do not think that the hon. and learned Gentleman should criticise it at one and the same time for being too vague and too rigid, as he did.
§ Mr. MacDermot
I do not remember complaining that it was too rigid at any point. I do not know what the Home Secretary has in mind. I have complained a number of times that a number of terms were too vague. The Home Secretary urges that the tribunal should be allowed to apply its common sense. That, of course, is an unusual quality, because it is one we all think we have ourselves to a sufficient degree but are reluctant to recognise in anyone else. I stress the point that the more we leave things loose and flexible to the tribunal to develop, the more difficult the task of the tribunal will be, and also—and it is a very important factor—the more difficult is going to be the task of anybody who tries to advise a claimant as to what his position is under this scheme.
There is just one other point which I omitted to deal with on the basis of 1169 compensation. The last sentence of paragraph 22 provides thatWhere applicable, compensation will be reduced by the amount of any payments from public funds payable, as a result of the injury or death, to the person to whom the award is made.I suppose the implications of this have been considered. Presumably what it means is this. Suppose, for example, a widow receives a pension under some State scheme, albeit as the result of some contributory scheme, this benefit will hdve to be deducted from any compensation she gets, whilst a precisely similar benefit she gets under a private scheme—for example, a group life pension as provided and run by many employers—would be outside this provision and no deduction would have to be made for that. It seems to me that to try to draw a dividing line between benefits she receives, as a result of death, from public funds and benefits which she receives from other funds may produce anomalies which will certainly seem unjust to many of the claimants.
Those are the principal points I wanted to raise. I commented on the difficulty we are in here in having both a Second Reading and a Committee debate at the same time. I am wondering whether, as the whole of this matter is being dealt with on such a very informal basis, it will be possible after this debate, when the Government spokesman has replied, for the House to find some means of having an informal committee to go through the scheme to try to see that it is in the best shape possible before it leaves this House. I feel sure that if this scheme had been put forward as a Bill in the ordinary way it would have been very substantially amended in Committee.
§ 6.6 p.m.
§ Sir Gerald Wills (Bridgwater)
I should like, quite briefly, to welcome the proposals which are set out in the White Paper. Many of us have felt for some time that the innocent victims of crimes of violence should, in certain circumstances, be compensated. That is something we have felt increasingly strongly about as the years have gone on. The problem has been to find the best way of doing it and to settle such questions as, from whom should the compensation come? How should it be calculated? 1170 For what types of crimes of violence should it be paid? Those are the problems which have exercised the minds of many thinking people, and as the result of this consideration this White Paper has been produced.
I must say that it makes it clear that we are sailing in almost uncharted waters, and, so far., the course of this debate has certainly not contributed to making the waters any clearer. Indeed, a few more shaols have been placed in the water as the debate has progressed. It is quite clear, however, that the proposals in this White Paper must be in the nature of a trial run, and what is said in the debate will be taken into consideration by my right hon. Friend, and his proposals will be modified to the extent of the effect that consideration has upon his mind.
Therefore, with these views in mind, I consider that it is right that this scheme should at present be non-statutory. I think, also, that it is right hat the compensation should be ex gratia and that it should come from a grant in aid. Nevertheless, I imagine that the time will come when the whole scheme has to be on a statutory basis and that more adequate means will have to be taken to provide the moneys from which the compensation will be paid.
To come to the composition of the Board which is to be set up, I do not think that it will have an altogether easy task. It is to have as its chairman a man of wide legal experience and the rest of the Board will be people with high legal qualifications. Judging by the lawyers who have spoken this afternoon, it will need them. But I have no doubt that if modifications are needed, in the light of the arguments which have been put forward, they will be made, in the composition of the Board, and in other ways as, for instance, the places in which it is to sit.
I certainly think that it is a good thing that the Board's reports and accounts will be open to debate in the House. They may give good cause for debate each year, and provide the House with excellent opportunity to consider the work of the Board and the benefits which the Board is giving to those who suffer from these crimes of violence.
In paragraph 12 of the White Paper it seems to be made clear that the Board's 1171 decision on the compensation will not be subject to an appeal or Ministerial review. This may be reasonable enough, at any rate while we are gaining experience of how the Board is operating, but in paragraph 25 we seem to be a little less clear. Here it seems to be envisaged that one member can decide whether an application is to be allowed and also that that one member can decide on the amount of the compensation to be offered. If the applicant is not satisfied he can take his case to three other Members of the Board, not including the member who has already given what the applicant regards as an unsatisfactory decision. The applicant can make out his case again and can bring witnesses in order, he hopes, to strengthen his case.
This appears to be a system of appeal; it is an appeal from a decision of a Board to the same Board. I suppose that, in fact, it is not an appeal at all, and I wonder whether there ought not to be a system of appeal. If this is deemed to be an appeal from the original decision of the one member, it does not seem right that it should be made to the same Board. Experience will show. We ought to keep this in mind as a possible weakness in the mechanism.
It is entirely to the good that in paragraph 28 the principle of contributions from the offender is upheld. It would be quite wrong that an offender should not be required to contribute towards the compensation paid in respect of the harm which he has done. I know that there are vast complications, but at least he should contribute for as long as he is under sentence—if he is caught. This is, of course, entirely dependent on whether we introduce a system whereby a prisoner is allowed to earn reasonable wages while serving his sentence—and to do the work to earn them.
This is outside the scope of the White Paper, but I hope that before long it will be possible to provide full-time productive work for prisoners undergoing sentence. This might well enable them to earn sufficient towards the compensation which the State has paid to the victims of violence and possibly—not a bad thing—to pay towards the upkeep of their families while in prison; and 1172 although I know that I am a little outside the scope of the White Paper, I hope that it will also help towards the rehabilitation of prisoners.
I know the difficulties which my right hon. Friend must have had in framing a White Paper which was flexible, experimental and yet sufficiently definite to avoid some of the criticisms which lawyers, in particular, have found it so easy to make about the scheme. I know, too, that my right hon. Friend realises that it is necessary to provide compensation for victims of crimes of violence. I am glad that this realisation has been indicated in the White Paper, because I often feel that far too much attention is paid to the criminal who has knocked someone about or hit a woman on the head and not nearly enough is paid to the victim of the assault. I have sometimes felt that it is a tendency of our age that we spread all the consideration around the criminal and not nearly enough around his victim.
In the White Paper an attempt is being made to adjust that balance. I hope that if the scheme becomes effective it will work well and will meet a need which hon. Members on both sides of the House have acknowledged to exist for a considerable time. I congratulate my right hon. Friend on bringing the White Paper forward. It is one more example of the constructive thinking which he and the Home Office are bringing to bear on our penal problems. I welcome the White Paper.
§ 6.15 p.m.
§ Mr. Alan Fitch (Wigan)
I am in general agreement with the proposals outlined in the White Paper. It is a timely document, because the general public are certainly in favour of some such scheme. As the hon. Member for Bridgwater (Sir G. Wells) said, there is a feeling in the country that those of us who are interested in penal reform are more concerned with the offender than with the victim. This is not so, as will be shown by the fact that the House will almost wholeheartedly agree with the general principles, if not some of the details, outlined in the White Paper. This will show the public that we are as concerned with the victim as with the offender. It was Margery Fry, a great penal reformer, who was most concerned 1173 that the offender should make restitution to the person harmed.
The other day I was reading a copy of the Howard Journal, the organ of the Howard League—a copy from 1958. The Journal was calling upon the Home Secretary to take this matter up with the Committee for the Treatment of Offenders so that the whole question of compensationto the victims of assaults who have suffered injuries such as to impair their future earning capacity and usefulnesscould be considered. The Journal said:The number of assaults which have such consequences is fortunately not very large. But, to the victims, they may mean the end of any normal sort of life. The whole question deserves urgent and careful consideration.That paragraph appeared in the Journal of the Howard League as far back as 1958.
I turn to the White Paper. I am not a lawyer and it would be impertinent to attempt to argue—as I have not the knowledge with which to argue—as some of my hon. and learned Friends and some learned Members opposite have argued today. But I feel that the right hon. Gentleman is right. There are many things on which I do not agree with him, but on this occasion I feel that he is right in introducing what I would call a pilot scheme with the principle of ex gratia payments, for the simple reason that we have no previous experience to go on. It is common knowledge that such a scheme has been introduced in New Zealand; it came into operation at the beginning of this year. I know that three or four months is not a long time but the Home Secretary, who mentioned the scheme, may have some idea of how it is working.
I hope that this will be only a pilot scheme and that it will eventually give way to a far more fundamental and comprehensive system of compensation. But I feel that at this stage—possibly some of my hon. Friends will disagree—to have introduced a more comprehensive and fundamental scheme would have been too risky, because if it had failed the whole idea of compensation for the victims of violent crime would have been prejudiced for the future. I do not suggest that this is a simple scheme after what we have heard today, but I think that it is far better to start with a scheme which 1174 I might describe as elementary in the best sense and that we can certainly move on from there.
The more fundamental scheme must in my opinion bring in the offender, but, as the Home Secretary and others have said, this is not a practical proposition at the moment. We cannot ask a prisoner who is being paid a very small amount a week in prison to make any contribution—not that morally he should not do so, but on practical grounds it would be quite impossible.
I am more interested in the broad principles of the White Paper than in the more legalistic aspects. There are certain things on which I have doubts, however. Perhaps that is because of my legal ignorance. For example, there is the proposal that people living in the household of the offender cannot claim compensation if they are the victims. What about the sub-tenant living in the same house? Is he counted as a member of the household? Is he included in those who cannot claim compensation?
Again, it is possible for a mother-in-law to be living in the household. If she is violently attacked, will she get nothing? After all, if she happened to live only next door presumably she would be able to claim. There are certain questions like this which are vaguely dealt with in the White Paper. I agree that perhaps it is because I am not a lawyer, but I am not sure that all the members of the Board should be legally qualified. The majority certainly should be, for obviously this is a legal matter. But it should be possible to include members who have some expert knowledge of penal matters, but who are not necessarily lawyers.
Then there is the interesting question that any one apprehending a criminal—by assisting the police, for instance—and who is injured in doing so will be liable for compensation. What about a political demonstration which turns out to be rather violent so that the police have to take certain action? Suppose a member of the public, an extremist, helps the police from a political motive. Will such a person be eligible for compensation? While, in principle, this may be right, there are dangers since, as I say, one may have an extremist joining in and using violence on the 1175 excuse that he is assisting the police but becoming a victim himself. These are points which should be made clear. On the other hand, if this scheme encourages members of the public to help the police in difficulty then it is all to the good. There has been a certain reluctance among members of the public to help the police in the apprehending of criminals.
I presume that those appearing before the compensation board will be entitled to legal aid. We are also informed that these hearings will be in private. That is probably good in principle, but I wonder whether the Press should not get some information. It is desirable, at least in certain cases where people are awarded compensation due to particularly vicious attacks, that reports should be issued to the Press. I do not think that secrecy should be carried to the length of not even issuing a statement after a hearing, provided that intimate details are not revealed. I assume from the wording of the White Paper that the Press will not be admitted to hearings by the Board.
As has been emphasised by several hon. Members, this is a pilot scheme. I hope that, in a few years time, we shall have a far more fundamental one to replace it. Certainly, such a scheme should have provision whereby the offenders are made at least partially responsible for some kind of restitution. We should think about this now and, in considering priorities for penal reform, those of us who are particularly interested in it put the question of a full week's work and a mere normal wage at the top of the list. I appreciate the Home Secretary's difficulty at the moment in that there is such overcrowding in our prisons that it is hard to operate a scheme whereby prisoners could put in a 48 or 44-hour week.
It is also at present impossible to pay a full week's wage because one cannot do this without first consulting the unions and the employers. But this is something that the right hon. Gentleman could do now. He should immediately open discussions with the unions and employers of this problem. If we are to make a practical reality of the view that offenders should make a practical contribution towards compensating their victims it can only be done if the problem is tackled 1176 in the way I have suggested. We should think about this now and not leave it to the future.
But not only is work itself necessary. It must be the right type of work. Much of the work done in our prisons, at least in the past—I think it is improving now—has been of a destructive nature, such as the dismantling of telephones and mail bag sewing. There is little purpose in that sort of thing. When I visited Strange-ways, three or four years ago—I hope that things have changed now—many prisoners were sorting cigarette boxes, separating the paper from the cardboard. That is not the kind of job which is likely to rehabilitate them.
These are matters which can be tackled now. If we are to have, eventually, a comprehensive scheme we should be seriously thinking of these problems. I believe that the Government are right to be cautious. We should not over emphasise the problem and give the impression that there are thousands of victims. It has been emphasised by a well-known professor, Professor F. H. McClintock, that the chance of being attacked by someone unknown to one is about one in 10,000, and I think that a fair estimate.
Those of us interested in the subject will watch the progress of the scheme with interest and look forward to debating the annual reports. But our main interest will be in regarding this White Paper as the basis for a more fundamental and comprehensive scheme.
§ 6.30 p.m.
§ Mr. Frederic Harris (Croydon, North-West)
I hope that my lawyer colleagues on both sides of the House will not mind if I say that when I saw the Motion on this subject, in which I take a very close interest, I was somewhat concerned that this might turn into a lawyers' field day, as often happens with such debates. I was not disappointed up to the last couple of contributions, even to the extent of the many interruptions of the Home Secretary, because it was natural that this should follow. However, I would be concerned if the Home Secretary decided to appoint too many lawyers to the Board because, from what we have heard today, there will obviously be tremendous differences of opinion when the scheme is operated. I could imagine in such circumstances 1177 that some compensation would then be forthcoming extremely late after the discussions.
It seems to be a contradiction in terms that in what is presumably a fully civilised country, where mainly the circumstances of our people in the main are obviously much better than ever before, the incidence of crime, and in this context crimes of violence in particular, is sadly and steadily on the increase. Regrettably, this is an unfortunate fact which makes this Measure we are considering today both necessary and urgent.
During my Parliamentary career have been a very strong advocate of compensation being paid to innocent—and I stress "innocent"—victims of crimes of violence. This special interest of mine stems from many years ago when a police officer in Croydon was tragically killed on duty. Subsequently, in an Adjournment debate in November, 1952, I asked the Government for renewed consideration for widows of police officers killed on duty, and I was gratified that they finally agreed. I then pressed for general insurance for police officers themselves when on duty. In due course, this subsequently followed with compensation for innocent members of the public who themselves were victims of crimes of violence.
If I had any major criticism to offer, it would be of the time that all this has taken. The wheels of Government turn very slowly in such matters. My own personal interest goes back for more than 11 years. However, I am reminded, as we are reminded by the White Paper, that, with the exception of New Zealand which started a scheme at the beginning of the year, no other country has yet tackled this rather difficult problem. I am very pleased that our Government's outlook is so progressive.
Unless the present unfortunate crime rate is in some way abated or arrested, with an ever substantially increasing population, on the face of it, crimes of violence, too, will continue to increase. In Croydon one learns only too frequently of such disturbing cases. The figures for Croydon for 1962—the latest I can find available and which I have obtained from the Report of the Croydon Justices—show that there were 203 1178 cases of general crimes of violence compared with 131 in 1958, an increase of some 70 per cent. in four years. In the same period, the population of Croydon increased by only 1.6 per cent., namely, from 249,500 to 253,690. While the population has increased by only 1.6 per cent., recorded crimes of violence—I admit, of a general nature—have risen by more than 70 per cent. These startling comparisons should be carefully recorded.
As will be noted, the rate of such crime in Croydon has increased far faster than the increase in the population, yet I am given to understand that in this respect Croydon compares very favourably with the rest of the country. This proposed legislation will therefore cover a major problem, for, on the face of it, the number of cases will steadily increase.
As is so with most towns, Croydon has very efficient local newspapers which always endeavour to highlight cases coming before the local courts. Only last Friday I read a report saying that thugs had attacked a watchman of 70 years of age for a mere £3 and that he had eventually had to be taken to Croydon General Hospital and treated for rather severe cuts about the head. Such an incident is mild compared with many. Too often we learn of young girls being physically and violently attacked, and also of lonely old ladies being so attacked.
Nor do these troubles stem only from people born in this country. Today we have more immigrants than ever before. Some of them come from countries without a moral code similar to that to which we are accustomed and from countries which do not have sufficient resources necessary to keep law and order properly. Quite understandably, therefore different standards are set. Consequently, such immigrants often imagine that they can achieve their ends by taking the law into their own hands and using physical violence on unsuspecting victims.
It is therefore only right and proper that financial compensation should be provided for the victims of such terrible acts via the State and on behalf of the community, and that, wherever possible, the State should try to recover some of the compensation from the guilty party. 1179 One assumes regretfully that this will be only very seldom. In a way, it is rather strange to call this compensation, for nothing can really compensate the victim. However, such monetary payments as are made obviously can be put to good use and often, one trusts, to restoring the victim to something approaching normal health.
One other pleasant fact about these proposals is that, on the fact of it, they are out of reach of all political argument and we can unanimously give them full support. I cannot imagine that any hon. Member will be opposed to the principles of the scheme, although obviously many are critical of the details. Nor could I imagine that anyone in the country would seriously oppose the main proposition. With such unanimous support, any comment can apply only to the details. For instance, one disturbing feature with such a scheme is that a line has to be drawn somewhere. We will have a situation whereby someone will be physically attacked one day and will receive no compensation, yet if he is attacked the next day he will receive it. This, sadly, is pointed out in paragraph 14 of the White Paper, but obviously it is unavoidable. The White Paper rightly sets out, too, those who will be entitled to claim compensation, and with public funds at stake, one realises that it is necessary to be as specific as possible.
I should like to repeat to our present Home Secretary what I said in the House to our former Home Secretary, now the Foreign Secretary. I sincerely hope that the authorities will be as sympathetic as possible, for if it is agreed that the State is going to compensate in such cases, let us for goodness sake compensate. Do not let us try to find reasons why we should not compensate the victim.
Another justification for this is that many members of the public, including myself, often feel that the interests of the offender are placed before those of the victim. The White Paper itself quotes emphatically that this is certainly not the correct emphasis.
I am reminded, too, that much physical violence these days stems from excessive drunkenness. Unfortunately, 1180 many of us feel that sometimes magistrates and judges do not use the severest of penalties. In my opinion there cannot be any mercy for a person who commits physical violence at all, and the strongest possible penalties should always be enforced.
Against that general background, while realising that such a scheme must be flexible, I would assume that, on average, in a town like Croydon there might be only five or six cases out of about 200 who would be in a position to claim compensation under this scheme. If that be a correct assumption, I suppose that the average number of cases a year on which the Board might have to pay out might be about 1,000, although on the face of it the Board will handle many thousands of applications.
I do not know whether in winding up the Minister will be able to give any information on the assumed total amounts of compensation in which the country might be involved, or, indeed, if the Government have any thoughts about the number of cases which the Board may handle. I do not know whether the Minister can give an indication of the amounts of compensation which will be paid in certain circumstances. Is it possible to give any kind of examples, for such general information, whilst obviously hypothetical, will be very helpful in giving us an idea of what the Government have in mind with these proposals.
After all these years, I would particularly like to know the date on which the scheme will actually become operative. I have listened to the debate, and I have read the White Paper most carefully, but I still do not know the actual date which the Government have in mind from which the scheme would operate.
I conclude by saying that I very much welcome this Measure, and I ask my right hon. Friend that it should be instilled right through the Board when it is set up, and through the officials who will operate the scheme, that it should be interpreted in the broadest and most generous sense. Although, unfortunately, Parliament cannot put right the entire harm done to such victims of violence, it can by this small measure express some practical and limited consideration for them.
§ 6.44 p.m.
§ Mr. R. E. Prentice (East Ham, North)
I am glad of the opportunity to follow the hon. Member for Croydon, North-West (Mr. F. Harris). It reminds me of occasions in the past when we used to follow each other in debates on the Croydon Council, usually with less agreement than we have this afternoon. It reminds me, too, of occasions when I was his opponent in two General Elections before I moved to an area of greater political sophistication. I was glad to hear what the hon. Gentleman said about the timing of this scheme. He felt that it could have come in earlier, and I shall develop that point in a moment.
I think that the House is in a rather curious situation in this debate. We seem to be doing what might be described as legislating by White Paper. As my hon. and learned Friend the Member for Derby, North (Mr. MacDermot) pointed out, we have to concentrate our Second Reading points and all our Committee points into one debate. It is not surprising that all kinds of points of confusion have already arisen in our discussion, and that it will probably be impossible to answer many of the detailed questions which have been asked, purely for lack of time. Although the House is in an unsatisfactory situation, and the White Paper is in many ways an unsatisfactory document, I join in welcoming the fact that some scheme is to be started, whatever detailed criticisms there may be of it.
I have never cared much for this rather stuffy and legalistic discussion on whether the State has a liability to the victim in cases of this kind. This sort of discussion seems to put the State in the position of being the defendant in an action, which I think is unreal. I prefer to welcome this scheme in the sense that my right hon. and learned Friend the Member for Newport (Sir F. Soskice) welcomed it when he opened the debate for the Opposition, and said that he saw this as a reasonable extension of our welfare services. I only add that I would be glad to see no scheme of this kind at all if I felt that the community made sufficient provision for those who were sick and disabled. I believe that the Welfare State is only 1182 beginning in these matters for those who are sick and disabled, particularly the long-term sick and the permanently disabled, for the community owes them a much higher duty than it performs at the present time.
So long as these provisions are adequate, I think that we recognise special categories. War pensioners are one, the industrially disabled are another, and I am sure that public opinion is ready, and has been for some years, to recognise victims of violent crime as another special category—a category of people who are injured unexpectedly. This is not one of the risks against life for which people are prepared or insured, or, indeed, could be expected to insure.
These people are injured in cases which usually command wide public sympathy, and a scheme for compensating them is relatively cheap. All the estimates which have been made of the cost of a scheme of this kind show the cost to be a few pence per citizen per year. In other words, it is something which can be done without raising the difficulties which are involved when one talks about a much better deal for the sick and disabled in general.
When I spoke on this subject under the Ten Minute Rule procedure about a year ago I referred to a case which had been quoted by the late Miss Margery Fry in 1957. This case illustrates particularly well the argument for a scheme of this kind. A man was so severely attacked by two criminals that he suffered from blindness and other permanent injuries. He sued the two criminals in court, and was awarded damages of £11,500. The two men concerned were unable to pay. He took them to court for a payment order to be made, and they were ordered to pay 5s. a week each. Miss Margery Fry pointed out that the victim would have to live for 442 years to collect the last instalment of the damages.
Following my reference to that case a year ago, I received a letter from Mrs. Richardson, the wife of the victim. She said that she was glad that the case had beer raised and went on,But may we point out that we do not even get the £1 a month that you mentioned, as we have £240 costs of the court to pay before we can have anything?1183 I believe that that case, as much as any other—and I am sure that hon. Members who are interested in the subject could quote others—illustrates the need for this reform. But the House should criticise the Government for not having made this move some years ago.
The article to which I referred, by Margery Fry, was written in July, 1957, and it sparked off a number of resolutions by various bodies, including the Howard League of Penal Reform, in favour of some scheme. The evening newspaper the Star was for some time interested in the subject, and campaigned for it. Just over four years ago I was fortunate enough in the Ballot for Private Member's Bills to be able to introduce a Bill to provide a scheme of this kind, and in the following session, three years ago, my hon. Friend the Member for Lewisham, South (Mr. C. Johnson) introduced another such Bill—and I had another go a year ago.
The argument brought against us when we tried to legislate on this matter was that the Government needed more time to work out all the complicated issues surrounding the problem. We were told that it would be difficult to decide how to deal with cases in which members of a family were injured, or in which criminals had had an argument about the division of spoils from which injury resulted, and so on. We accepted that argument. I think that my hon. Friend and I both felt, when we introduced our respective Bills, that we would need a complicated Committee Stage in order to thrash out these points and to reach decisions.
The Government said they needed time, and they set up a working party, which reported in June, 1961, nearly three years ago. That White Paper can be summed up by saying that the working party found that certain decisions needed to be arrived at but that there was no fundamental objection to the introduction of such a scheme. The Government, however, have delayed and delayed and delayed, and many people have been injured in the meantime without receiving any compensation.
If, after all that delay, the Government had now come forward with a complex Bill and said, "We have taken all these 1184 years to work out our decisions," we might have conceded that as a reason for the delay, but they have not done that. Instead, they have presented a White Paper saying that all the problems still lie ahead, and proposing the introduction of an experimental scheme in order to see how it works. I should have thought that they could have done that four years ago, or earlier. They would have relieved much hardship if they had done so.
I turn now to the White Paper. I feel that the vagueness of many of its proposals are bound to give rise to practical difficulties. Here I give the reverse of the penny, as it were, of my previous argument. In view of the time that has elapsed it should have been possible to be more specific about some of the points that are involved. It is a grave weakness of the scheme that it lays down no specific list of crimes. Quite clearly there will be a borderline. The hon. Member for Hendon, South (Sir H. Lucas-Tooth) mentioned poisoning cases and other types of case in respect of which it is completely unclear whether they will be included.
That is all the more serious because there is no written in right of appeal. Some people will feel that they have a good case, but they will be turned down, although, from their point of view, their case is as valid as others in respect of which compensation has been paid. There will be no Act of Parliament or terms of reference to which to refer in order to settle cases of this kind.
I want to ask a question concerning one of these points of vagueness to which no reference has yet been made. I refer to cases in which it is held that the victim has contributed to the result. A paragraph in the White Paper says that the Board will have to take into account the share of responsibility. What is expected of the Board? Are we to take as a model the practice that is normally followed in the courts, in cases of contributory negligence? Will it be held that a person who, under full liability, would have been entitled to damages of £1,000 will receive only £500 because he was half responsible for what happened? Is that the proposal? Or will the Board have to work it out as it goes along? This is a fundamental point, and one upon which 1185 clearer guidance should be given to the Board.
I ask the Government to reconsider their attitude about backdating cases. I realise that certain difficulties are involved, and that it is probably impossible for the Government to accept an open-ended liability for all the cases that have ever occurred, but because the scheme has been so long coming I wonder whether they might consider fixing some date in the recent past—perhaps in the last year or two—after which any injuries from crimes of violence would quality for compensation. I believe that in the New Zealand scheme some backdating is provided for, and that might be a precedent for our scheme.
Another point that worries me a little arises out of the references made to the need to exclude cases of minor injury and the yardstick that is suggested, that cases will be excluded where the damages awarded would be less than £50 or where the loss of time from work is less than three weeks. I would have thought that although some such limit is needed the £50 figure could be reconsidered. I am thinking particularly of retired people or other people who are not at work, such as housewives, in whose cases there will be no element in respect of damages for loss of employment, and where the damages will be confined to pain, suffering, shock and elements of that kind.
I would have thought that we might thereby be excluding some injuries that could be quite serious to an elderly person. The sort of case that might merit damages of £35 or some such figure could be very serious for the individual concerned. To a pensioner who had not got much money the sum of £35 might be an important element of compensation. I am not sure that £50 is the right figure in this context.
The Government should also reconsider the question of the maintenance of a child born as a result of rape or some sort of sexual assault. If the scheme is to include compensation for women who have been the victims of assault—and I feel that it should, despite be difficulties which have been referred to—it would seem unreasonable to exclude the most expensive element of all, namely, the subsequent main 1186 tenance of the child. Although it might be difficult to find a formula here, this is surely one of the things which the Government should reconsider.
Although there are many other points that I would have made if there had been more time, I want to refer only to one other aspect of the scheme. I believe that everyone who has spoken on the subject of the type of compensation awarded has expressed a preference for lump-sum compensation rather than the type of benefits awarded under the Industrial Injuries Act. I am not so sure about that. When I introduced the Private Member's Bill to which I have referred I allowed for the type of benefits awarded under the Industrial injuries Act, although I was then up against the difficulty of the Rules of Order, and of introducing a Private Member's Bill that made a demand on the Exchequer. To some extent this dictated the type of scheme proposed. I had no dogmatic preference for that type of compensation.
It seems to me that the arguments are fairly evenly balanced. Lump sum payments would probably be more popular and would probably be chosen by more people, if there were a choice. They provide a parallel to what victims would obtain in a court of law if they could successfully sue the criminals concerned, as they have occasionally been able to do. As other hon. Members have pointed out, lump sum payments allow for more flexibility than does any form of pension and make greater allowances for the circumstances of the case.
On the other hand, a disability pension of some kind is more flexible in another way. It could be reassessed later in life, if there were unexpected developments from the injury or if there were new and unforeseen symptoms of disability. It could be reviewed later in life if the cost of living went up. If a scheme were tied to the industrial injuries scheme, increases in benefit for industrial disability would automatically lead to increases in benefit for the victims of crimes of violence.
There is another important point. Some kind of weekly pension payable could be paid immediately. The assessment of a sum for damages might well depend upon certain medical aspects of the case being sorted out over a period 1187 of months. It might be necessary to see how a patient responded to hospital treatment, and so on. I realise that in the White Paper there is a reference to the possibility of making more than one lump sum payment, but this might not meet the varying circumstances which could arise in one case. The Committee of "Justice" in reporting on this looked at the pros and cons of both kinds of payment and suggested a compromise which it described as a hybrid scheme. It was that there should be power to make some sort of first-aid payment from the beginning. Someone suddenly thrown out of work should not be forced to use up all his savings before turning to National Assistance and he should get some sort of first-aid payment at an early stage.
It was suggested that when the claim had been settled, compensation should be paid in two parts. Compensation for the loss of earning power could take the form of a weekly pension. There might be a lump sum for the loss of faculty and amenity which we are all glad to realise is included in the scheme, although the Home Secretary did not seem sure whether it was included. What was suggested by the Committee of "Justice" combines the better features of both alternative kinds of payment and I should like to see this considered. If and when we move from this temporary scheme to a more permanent scheme in the form of legislation, this point ought to be considered in much more detail.
The House, and I think the country, should welcome this scheme, so far as it goes. Like many other things which the Government are doing now it deserves the description of being too little and too late. Nevertheless, it represents a hesitant step in the right direction and for this reason I am sure that it will be welcomed by hon. Members on both sides of the House and in the country at large.
§ 7.3 p.m.
§ Mr. Charles Curran (Uxbridge)
Like the hon. Member for East Ham, North (Mr. Prentice) I welcome this scheme. It seems to me that the hon. Gentleman did less than justice when he asserted that the Government have been far too late and too dilatory in taking action about 1188 this matter. This debate demonstrates the enormous number of complexities which arise over a scheme of this kind and how easy it is, no matter what scheme is put up, to riddle it with criticism. This afternoon we have had several hours of criticisms and I do not think that we have heard the last of them. Although I wish to make some criticisms, I think it only fair to say first how much my right hon. Friend the Home Secretary is to be congratulated on tackling this extraordinarily complicated matter. Whatever the criticisms may be, my right hon. Friend is entitled to credit for that.
I was glad to hear him make some reference—it is not the first time that he has done so—to the need for making changes in our prison system so that we may make criminals pay. There is no doubt, as the White Paper says, that there exists a considerable public demand for changes that would make the criminal pay in cases of crimes of violence. But there are, of course, difficulties about that. The impediment to it, which makes it necessary for us to have this scheme, at any rate pro tem, is that as our prison system is run at present it is not possible to extract from a criminal an amount of useful labour which would enable us to levy tribute on him for the benefit of his victim.
My right hon. Friend has referred more than once to his desire to make changes in the prison system so that we may get useful work done by prisoners, and I hope that he will not lose sight of that aim. We need to make the gaols of this country places where people can do useful work for money. I wish that the Home Office would be quite unconventional about this. For example, it might make an offer to the Coal Board to take over a coal pit or a group of pits and run them with prison labour.
After all, the Soviet Union have been doing that for a long time. The Soviet Union's Vorkuta coalfield, which is in the Arctic Circle, produces about one-tenth of all the coal in the Soviet Union and it has been run by convict labour for a good many years. It was run by convict labour throughout Stalin's life and it probably still is. Many Westerners who have done time there have told us in print how the convict labour is organised in that coalfield.
1189 I am not suggesting that the Home Office should imitate the way in which Stalin handled that labour, but I suggest that the Home Office might do worse than consider taking over some segment of British industry, such as a coal mine, or a group of coal mines, or a group of firms, and using them as places where people serving prison sentences could be put to work which would justify the payment of wages. Out of those wages they could be required to compensate persons who had suffered from their violence.
The second difficulty about making the criminal pay is that in order to do so it is first necessary to catch him. As we know, the rate of detection of crimes of violence in this country, and of other crimes, has dropped. If we are to say that no one who is assaulted shall receive compensation unless the criminal responsible is arrested we shall exclude a great many people from receiving any benefit at all. Unfortunately, with the present methods of coping with criminals it is not possible to do more than arrest what appears to be quite a small proportion of our lawbreakers. For these two reasons, therefore—the impossibility as things are of making criminals pay even when they are captured and the apparent impossibility, or near impossibility, of arresting more than a small proportion of them—it is necessary that we have a scheme such as the Home Secretary has put before us today, for the purpose of seeing that people who are injured by criminals get some sort of compensation.
I invite the Home Secretary to look again at one conclusion which is embodied in paragraph 5 of the White Paper, where it states:Virtually all the public comment since the appearance of the official working party's report has accepted, on the one hand, that some compensation should be available for the victims of crime and, on the other hand, that compensation can justifiably be restricted to the victims of crimes of violence.That is perfectly true, but I want to suggest that although that statement has been made over and over again, and public comment has accepted that it is only the victims of crimes of violence who should have consideration in the payment of compensation, we are not necessarily required to accept that here.
1190 I invite the House to consider two sets of circumstances. An old woman is attacked by a burglar and beaten up. Under this scheme she will be able to ask for compensation and there is power to make an ex gratia payment. I also invite the House to consider the case of another old woman whose house is burgled. The burglar does not attack her but steals whatever money and valuables she has on the premises, and at the same time does a lot of reckless and wanton damage, as criminals quite often do. As things are, the second victim has no claim at all for compensation under this scheme. I suggest that we ought not to be quite so emphatic in asserting that crimes against property shall never in any circumstances entitle the victim to a claim to any sort of compensation under this scheme.
The discretionary powers of the compensation Board ought to be widened so that it might consider in some circumstances payment of compensation to people whose houses are invaded by criminals but who are not themselves attacked and to whose property much damage is done. The compensation Board might also take account of the fact that there is a sizeable number of old people who keep money and valuables hidden in their houses. Quite a lot of old people do not trust banks. They keep the accumulation of a lifetime under the mattress. It may be carried off by burglars. It seems very hard that in such circumstances it should not be possible for a victim to make any claim for compensation on the ground that it was a crime simply involving property.
The stock answers for making this distinction between compensation for victims of crimes of violence and no compensation for victims of crime against property are two. It is asserted, first, that one can insure against loss of property and, secondly, that the State provides a civil remedy. Both those answers have some substance in them, but when we examine them we find that we should not push them too far. It is true that anyone can insure against robbery. I suppoes that, equally, one can insure against risk of assault. Most insurance companies will insure against anything, but people rarely insure such risks. We have to recognise that many old people, as in the examples I have 1191 quoted, do not insure against robbery. They may be victimised by criminals and find that they have no remedy.
It seems that in this scheme we are accepting that the State has a responsibility to citizens whom it fails to protect against violence. I believe that the State has a responsibility for such citizens and also a responsibility towards citizens whom it fails to protect against burglary and other crimes against property. I do not believe that we can fragment the responsibility of the State quite so easily as the White Paper suggests. The State has responsibility to give every citizen protection by law and order. That is the social contract. The citizen surrenders some freedom and income and, in exchange, the State undertakes to give him protection against lawlessness and disorder. When the State fails to fulfil its side of the bargain, the citizen, at least in some circumstances, has a right to look to the State for compensation.
Under this scheme the State agrees in certain circumstances to make ex gratia payments. In setting up the Board we should give it discretion in certain circumstances to pay rather more generously and more widely than the White Paper contemplates. I am not asserting that the State ought to accept responsibility for reimbursing every citizen who suffers from robbery or burglary. Obviously that would not be reasonable or, indeed, practicable. If a lady chooses to keep a mink coat in her bedroom and it is carried off, there is no reason why she should look to the taxpayer to reimburse her for her loss. In those circumstances she must look to the insurance company, or in a desperate case to her husband or a gentleman friend, or both.
I suggest that the State should take responsibility in some circumstances in which it might be reasonable to do something for people who suffer crimes against property which do not involve violence. I ask whoever is to reply for the Department to tell us if the Government think it necessary to maintain the very narrow limitation set out in the White Paper. I suggest there are various ways in which the frontiers of the White Paper in respect of claims in cases of crimes of violence might be extended to include claims in cases of 1192 crimes against property. Obviously, the claims would have to be limited and no one should be allowed to claim unless he can give proof of having suffered damage, and he should be required to provide evidence.
We should not accept as easily as we do in this White Paper that the distinction between crimes of violence and crimes against property is one which needs to be preserved in this emphatic fashion. I think that the distinction has been drawn too sharply. I hope that when we get the proposal put in the form of a Bill we shall find that it gives the compensation Board a wider range of discretion than is now proposed.
§ 7.16 p.m.
§ Mr. Carol Johnson (Lewisham, South)
The Home Secretary and the hon. Lady the Joint Under-Secretary will, perhaps, not have been altogether surprised at the critical comments made on the Government White Paper.
Despite what was said by the hon. Member for Uxbridge (Mr. Curran), after this long period in which the Home Secretary has been considering the matter, assisted by departmental inquiries, in view of the reasons he has given from time to time for rejecting a number of proposals which have been published in recent years and the general attitude of the Government to Private Members' Bills, to which my hon. Friend the Member for East Ham, North (Mr. Prentice) referred, the House might have expected that when a scheme was eventually put forward it would be a great deal clearer than the one we have been discussing. Certainly, we could have expected that it would not contain some of the inadequately defined proposals to which I propose to refer.
Naturally, many of us, as was said by my right hon. and learned Friend the Member for Newport (Sir F. Soskice), would have preferred a statutory scheme providing benefit as of right payable on proof of injury and that its details would be fully set out in a Bill or a statutory instrument. That would have given Parliament, the public and all interested parties an opportunity to assess specific proposals and to know the precise intentions of the Government. We have to take a great deal on trust.
1193 We have before us a proposal for an experimental scheme which, it is suggested, can be altered and improved in the light of experience. That might appear to the House to be a good reason for accepting the scheme as proof of the Government's good intentions, but the Government do not seem to be very clear even about the basis of the scheme. If we refer to paragraph 6 we find that theyaccept the principle that the victims of crimes of violence should be eligible for some compensation for personal injury at the public expense.…That seems to be a statement clear and precise enough, but two paragraphs later the Government retract. They say:The Government do not accept that the State is liable for injuries caused to people by the acts of others.The Government cannot rely upon two irreconcilable principles in setting up a tribunal to deal with claims for compensation. It almost tempts one to spend one's time arguing again the case for the proposition that the State, in modern times, has a duty to help the victims of crimes of violence. However, this evening we can perhaps more profitably consider what the Government are prepared to do. If the House is to be asked to give its general approval to the experimental scheme in the White Paper, which it is assumed—and this was confirmed by what the Home Secretary said in his opening speech—will lead to some permanent scheme, surely the Government can concede that the principle of compensation is accepted.
In any event, once the scheme is brought into operation the payment will have to come out of general taxation. Whatever the Government may say, that seems to indicate clearly some State liability. I noted that in opening the debate the Home Secretary said specifically that some form of State compensation is desirable. I hope that when the hon. Lady the Under-Secretary replies she will make it clear that that is the basis of the scheme.
As has frequently been said during the debate, the scheme which we are considering is experimental, but it seems to me to leave a number of material points so uncertain that, in practice, it will be difficult for the tribunals to work the scheme properly. The scheme of payment—I will say a little more about that 1194 shortly—is to be administered by a Board, and the decisions of the Board are to be final; they are not reviewable by the Minister nor are they subject to any right of appeal. Does the hon. Lady consider this satisfactory, and is she certain that it can be maintained?
The proceedings before the Board are to be in private, and I understand that no reports will be published, the effect being that the Board's power will be absolute. We must, therefore, assume that the Board's decisions will always be right. Take, for instance, the argument which occurred early in the debate about which elements are to be included in any claim, and particularly the reference to expectation for loss of life or loss of happiness. Let us assume, for the sake of argument, that the Board comes to a conclusion on that element, which may be a major part of the claim, with which everybody disagrees. As I understand, this point cannot even be discussed in the House, if at all, until after the first annual report has been submitted to the House, which, from experience of other such bodies, will be about 18 months after it comes into operation. Even then it is by no means certain that the Report will deal specifically with individual cases.
For those reasons I urge upon the Government that either a means should be found for establishing a right of appeal, or at least an opportunity should be given to raise points of importance about the scheme in the House. My hon. and learned Friend the Member for Derby, North (Mr. MacDermot) put forward a suggestion which I understood the Home Secretary undertook to consider—that reports should be submitted at shorter intervals. That may well cover some of the criticisms which I have made. I have not overlooked the provision in paragraph 25 that an applicant will have a right of appeal from the member of the board to three other members, and perhaps the hon. Lady will explain a little more clearly how this procedure will operate.
I must confess that when I read the White Paper originally I assumed that the applicant would be seen, in the first instance, by a member of the Board, that then he would be notified of the member's decision and that then he would have a right of appeal to three 1195 other members. But, in fact, the Home Secretary said that the original case will be decided solely on correspondence, that the applicant will never be seen by any member of the Board and that the decision will be communicated to him.
In those circumstances, may I ask, when the case is reheard by the three members of the board, whether there will be a written statement by the member who originally heard it, giving clearly his reasons either for refusing the claim or for assessing an award with which the applicant is dissatisfied? Next, if that is to be provided for the Board, will copies be supplied to the applicant, because in the absence of this he will be at a considerable disadvantage when going on appeal to the three members of the Board. These aspects of the matter should be considered by the Government.
When originally reading the White Paper it seemed to me that for an experimental scheme the administrative structure was likely to be rather expensive. The Home Secretary this afternoon minimised that by indicating that perhaps for the time being it would not be necessary to have many offices and that it might not be necessary to recruit many staff, but I think that the hon. Lady will agree that it would be very unfortunate if, at the end of the first year's working, it were found that the cost of administration had exceeded the claims paid.
May I comment on the composition of the Board? Unlike some of my hon. and learned Friends, though I am a lawyer, I consider that it is a profound mistake that in addition to a chairman of wide legal experience, the Board is to include five other members, all of whom are lawyers. Does the Under-Secretary consider that for a scheme of this nature expensive high-powered lawyers are the best people to make the scheme operate? We have not been told the salaries which are to be paid, and they may well be paid on a sessional or daily basis, but as the schemes are not to be legal schemes, and as the compensation afforded by the Government is not to be compensation as of right, I think that a better case for the employment only of lawyers on the scheme must be made by the Government.
1196 However skilful lawyers may be in dealing with the facts of any case, is it not inevitable that many cases will depend on local circumstances, on medical knowledge and on knowledge of everyday life which could more suitably be provided by others? Surely it is most desirable that the Board should include at least one medically-qualified person, and justices of the peace, with their day-to-day experience of the type of case likely to lead to these claims, could suitably be employed. Having regard to the large number of women applicants who will inevitably come forward, surely it is important that at least one woman should be appointed to the Board. That suggestion, at least, might commend itself to the Parliamentary Secretary.
I want to echo a point made by my hon. Friend the Member for East Ham, North—to ask when the lump-sum payments provided for by the scheme will be made. For instance, let us consider two straightforward cases, one in which the injury is of four weeks' duration and another in which it is of 12 months' duration. There can be no payment at all until the claim is made and admitted, and this will take time, although I hope that the Home Secretary will impress on the Board the desirability of dealing with these cases with expedition.
In paragraph 19 of the White Paper it is envisaged that more than one payment will be made in the long-term case. Are the payments to be made only retrospectively? In a case in which a doctor certifies on an admitted claim that it will be of at least six or 12 months' duration, cannot payment be made in advance to cover that period, or must the applicant wait until he is completely restored to health before he gets his complete payment?
Another general point arises which does not seem to be dealt with in the White Paper and which I ask the Joint Under-Secretary to deal with. Are these payments to be subject to tax? This point will arise if serious injury incapacitates a man for longer than 12 months, for, to take the somewhat analogous example of sickness benefits, I understand that these are considered to be a form of income but are not assessable to Income Tax for the first 12 months, after which the Inland Revenue can assess the benefits for Income Tax.
1197 Is the same principle to apply to payments under this scheme, or will the fact that the payments are of a lump sum character create a different situation? In any event, it is clear that, if the payments are not to be assessed for Income Tax purposes, some regulations will be needed to cover the matter.
§ Mr. Emlyn Hooson (Montgomery)
Surely the hon. Gentleman realises that common law damages are never subject to Income Tax, and that, by analogy, these sums certainly would not be?
§ Mr. Doughty
The hon. and learned Member for Montgomery (Mr. Hooson) is right: common law damages are never subject to Income Tax. What are subject to Income Tax are the weekly earnings which have to be taken into account. Once Income Tax on that basis has been dealt with, the damages awarded are nothing to do with tax.
§ Mr. Johnson
I hope that the position is clear. As an essential element in the claim is to be the earnings of the applicant, I do not think that the position is quite so clear as the hon. and learned Member for Surrey, East (Mr. Doughty) suggests. In any event, I ask the Under-Secretary to deal with this point.
I want to raise a few questions about the compensation. Paragraph 22, which deals with the assessment of compensation, contains the general provision thatthe rate of loss of earnings…will not exceed twice the average…of industrial earnings at the time that the injury was sustained.Assuming that the scheme were to come into operation forthwith, we shall, presumably, work on the basis of the latest official figure of £16 14s. 11d. a week. I assume, therefore, that the inference is that in no circumstances can the rate of loss on this part of the claim exceed twice that figure, which is £33 9s. 10d. All questions of overtime and bonus payments are presumably ruled out.
There is also a reference to the sex of the victim. The average industrial earnings for women are at a very much lower level, namely, at present £8 8s. 3d. In this case presumably the ceiling for 1198 women will be roughly half that for men. All this seems fairly clear, but I should like the Under-Secretary to deal with what is said in paragraph 22 about earning capacity. Are we to understand that the assessment in the case of any applicant in employment whose earnings are lower than the average industrial earnings will be on the lower figure?
I want to refer again to the question which my hon. and learned Friend the Member for Derby, North raised, namely, what is meant by "public funds", in the final sentence of paragraph 22, which are to be deducted from the award which is made? Is this intended to cover benefits payable under the National Insurance Act and the Industrial Injuries Act, or is something else visualised?
Paragraph 17, which deals with the position or members of an offender's household, also seems to require some elucidation. Does this mean that lodgers, paying guests and servants are to be excluded from benefiting under the scheme? Presumably anybody coming in to work in the household by the hour or by the clay will be covered, but what about au pair girls, of whom there are now thousands in this counry? Is an au pair girl to be regarded for the purposes of this scheme, as a member of the offender's household?
I apologise to the hon. Lady and to the House for asking so many questions, but the more I read and consider the White Paper the more questions occur to me. I do not envy the members of the Board having to start with what I regard as inadequate guidance.
Lastly, I should like to ask the Under-Secretary what the future position with regard to the scheme is to be. Paragraph 12 slates that the Board, when it comes into existence,will…act in accordance with the principles and procedure outlined in this White Paper, if approved by Parliament.The Home Secretary said that he was taking steps to second staff to the Board, that premises were in mind, and that he was considering the names of members of the Board. All we have this afternoon is a Motion asking the House to take note of the White Paper, so no approval is to be given today to the White Paper.
1199 In any event, as the Home Secretary said, he will wish to reconsider the whole scheme in the light of this debate. It is, therefore, essential that at some stage a further White Paper or a regulation, should be promulgated which will be the basis of the scheme and the terms of reference of the Board. Before they can become effective, it is clear that they will have to be approved by the House.
I therefore ask the hon. Lady to tell us in what form and what time it is proposed to obtain final approval which will enable the Board to embark upon the operation of this experimental scheme.
§ 7.37 p.m.
§ Mr. R. M. Bingham (Liverpool, Garston)
I agree with my hon. Friend the Member for Uxbridge (Mr. Curran) that any scheme for compensation of this nature must bristle with so many difficulties of substance and technique that it is extremely difficult to propound a scheme which cannot be demolished, or almost demolished, by detailed criticisms.
Echoing what my hon. Friend said, I believe that the Home Secretary is to be congratulated on selecting from many alternative schemes suggested and available a scheme which appears to combine the qualities of a bold and fair experiment with the merits of leaving the difficulties which will undoubtedly arise to be dealt with by the common sense of the members of the Board as and when they arise.
Today, we are discussing the scheme and difficulties which it is suggested may emerge. It is possible that, in practice, a whole host of different problems will arise and many of those discussed today will never arise. I do not say this in any way in derogation of this scheme, but there are inevitably many points of detail which strike one on reading through any scheme such as this as possibly needing some measure of further consideration.
The first point that strikes me is that compensation is to be ex gratia. I appreciate that in an experimental scheme of this nature the flexibility would be lost if an elaborate structure of rights were set up. However, I hope that the fact that the compensation is stated to be 1200 ex gratia will not necessarily prejudice the nature of a further scheme as and when it is evolved in the light of experience, because it does not seem right for victims to be told that their only right it not a legal right, but an opportunity to apply for an ex gratia payment. I do not think that such a statement will be appreciated by victims who have to apply for compensation.
There is the further fundamental long-term defect that, if the payment is ex gratia, it is very difficult to erect a satisfacory structure of appeal. It is difficult to appeal in relation to compensation granted on an ex gratia basis. I agree entirely with the right hon. and learned Member for Newport (Sir F. Soskice) that, when the scheme is reduced from its experimental and flexible stage, a move towards the erection of a structure of rights should be undertaken. Paragraph 11 of the White Paper states:The Board will be based on London but may establish offices outside London if the need arises.I hope that that may be altered. It seems to me that this will be a Board which will be peripatetic or which will receive letters. It will either be going round the country, like official referees or other tribunals, or it will be in an office receiving mail, like the National Insurance Commission. In neither case does there seem to be a necessity for these offices to be located in London. This seems to be a golden opportunity for the Government's policy of decentralisation to be undertaken, and if it is, I hope that it may be located on Merseyside.
I want to ask a question on paragraph 14 of the White Paper concerning the conditions, or, to borrow from another context, the "gateways". Subparagraph (a) states thatthe Board will entertain applications only in those cases where there has been…an attempt by the victim, acting as a member of the public, to apprehend a criminal;I should like to know what is meant by "a member of the public"? Does it include a member of a police force? I am not sure that a member of a police force apprehending a criminal is acting as a member of the public, because he has a duty over and above that of a member of the public. If, in fact, for any reason this scheme is intended to exclude police officers, an 1201 alteration of that wording might be considered.
In paragraph 15 the Board has to take into account a share of responsibility attaching to the victimwhether because of provocation or otherwise,…The hon. Member for East Ham, North (Mr. Prentice) raised the question of what he called contributory negligence, although that, possibly, is not a very exact term in this context. It may commend itself to the Home Secretary to define this a little further. In view of the flexibility of the scheme it may not he necessary to do so, but I can see great difficulty. The Board might have a great difficulty in trying to define, or to put into practice, the words, "take account of any share of responsibility". A more exact phrasing might be needed to indicate what is in mind, as to whether negligence as well as deliberate action is to be included and whether blameworthiness as well as causative potency is to be included.
The Member for East Ham, North, in dealing with paragraph 16, put in a plea for compensation to be payable for the maintenance of a child born as a result of a sexual offence. That, in my view, would be a mistake. There are summary proceedings already available, not like High Court proceedings, and I can see great difficulties arising if the plea of the hon. Member for East Ham, North were acceded to.
Paragraph 22, which is a vital paragraph, deals with the basis of assessment of damages. The fundamental rule is that they shall be assessed on the basis of common law damages. If that is to be realistically put into practice, I should think that the right of appeal is absolutely necessary. The members of the Board will presumably be in touch with the scale of damages to be applied currently by the common law judges, but I am not sure that, if they are to hold their meetings in private, they will necessarily keep in touch over the years with the subtle alterations in the scale of values which are applied. Over and above that, there is the provision in sub-paragraph (c), which was mentioned by the right hon. and learned Member for Newport, that there shall be no award for loss of expectation of happiness. I would suggest that that 1202 provision could be deleted as being superfluous.
If this sub-paragraph were to be redrafted so as to distinguish between fatal and non-fatal claims, and non-fatal claims were subject to the limitations of sub-paragraphs (a) and (b) and fatal claims were to be assessed only under the Fatal Accidents Act and not under the Law Reform Act, it seems to me that everything in this paragraph would be achieved with the exception of claims for damages for loss of expectation of life by a living plaintiff. That would not be covered. At the moment, I am not quite clear why a plaintiff who has a common law claim for damages for loss of expectation of life, and who is alive, should not receive damages which he would recover if he sued in court. I can well appreciate that damages for loss of expectation of life should not be awarded because the person concerned is no longer alive to enjoy the benefit and they are largely notional in the sense that a notional sum is deducted from the fatal accidents damages.
If sub-paragraph (c) were entirely deleted and sub-paragraphs (a) and (b) were made qualifying conditions to non-fatal claims and it was simply said that fatal claims would be assessed, subject to the income provisions upon the basis of the Fatal Accidents Act and not Law Reform claims, I think that everything would be clear and the fears which have been expressed about the phrase, "loss of expectation of happiness," would be cleared up. It seems clear from what has happened—and perhaps my hon. Friend the Under-Secretary will clear this up when she replies to the debate—that the phrase "award for loss of expectation of happiness" cannot refer to claims for compensation for personal injuries by a living plaintiff, because loss of expectation of happiness is not an element in such an award, as witness the recent House of Lords decision in the case of West v. Shephard where that was laid down fairly definitely by a majority of the House of Lords.
The next point, which so far has not been made unless I have missed it, is that in paragraph 26 of Cmd 2323 it is provided thatAt the hearing it will be for the applicant to make out his case;"—1203 No one can quarrel with that—he and a member of the Board's staff will be able to call, examine and cross-examine witnesses, and the Board will reach its decision solely in the light of the evidence brought out at the hearing.Here I see some difficulty and discontent arising in practice. The victim who is rejected by the judge of first instance and who appeals will have to undergo a curious sort of appeal.
I am thinking primarily of an elderly lady who has claimed for neurosis, which may or may not be an accurate claim because, being subjective, these claims are difficult. She goes to the appeals tribunal and finds that it is composed of three colleagues of the person who has rejected the claim. That in itself is understandable. There is nothing particularly wrong with it, except that if possible it is better to have appeal judges drawn from a body different from that of the judges of first instance.
The difficulty is that she finds that counsel for the defendant, she being in effect a plaintiff, is a servant of the judges by whom she has been judged and is about to be judged. He is a member of the Board's staff. There may be some, but I cannot think of any tribunal or court where that procedure takes place. One takes the case of a ratepayer appealing against a valuation officer's assessment of the rates. The valuation officer is not employed by the valuation court and there would be quickly a strong protest if that were the case.
At the same time, I see the point of putting the procedure in this way. It is obviously expeditious and economical, because otherwise one would have to set up two bodies, on the administrative and the judicial sides. Nevertheless, I think that somebody, and particularly someone who has a subjective illness such as neurosis, will be discontented with an adverse decision when it is found that the case is presented by somebody who in effect is the employee of the judges.
The last sentence in paragraph 28 says that…a person who has been compensated by the Board will be required to undertake to repay them from any damages he may obtain by suing the offender.1204 This is already a matter of general principle and I have no objection to it, but I can see a practical difficulty arising. By reason of the qualifying conditions, the compensation damages may be significantly less than common law damages, particularly because punitive damages are ruled out—and one finds in this type of case a strong element of punitive damages when it is taken in a common law court. One may have a situation where the compensation awarded by the Board is £2,000 and the victim later sues in a common law court and gets £3,000.
If a person is entitled to £3,000 under common law he will have already received £2,000 of that money. When the victim sues the criminal and begins to obtain money, it will be obtained in almost all cases in small instalments, probably on an order made in a county court. Is it fair in that case that the money should be first applied to a reduction of the £2,000 and not in satisfaction of the excess of £1,000 which goes to make up the common law damages? I think that the second is the right way of doing it, and in practice that is the situation which is likely to arise frequently, assuming that the victim sues the criminal.
Lastly, the duty on the Board, on receiving an application, is to go into a process of sifting. The Board's staff have to sift the application and seek further information. This will not be an easy process. Fundamentally it arises out of the fact that the structure of the scheme is almost an inquisitorial procedure rather than a contest between two parties. A contest between two parties is the best way of seeing that a case is fairly and thoroughly sifted. In many personal injury cases there is often a strong though subconscious element of exaggeration, and patently fraudulent claims are not by any means unknown. The subconsciously exaggerated claim is much better sifted, and much more economically, through the ordinary common law procedure in a contest between the two parties.
How will the Board do the sifting? Will it read the depositions of the criminal trial? What kind of information will it rely on? Will it try to obtain a transcript of the criminal trial if that has already taken place? What weight 1205 will the Board place on the conviction itself? A conviction has no bearing at all in common law. The fact of conviction is virtually irrelevant there. What weight will be put on the crime charged or on the crime of which the criminal has been found guilty? That can significantly affect such questions as corroboration. If he has been acquitted of grievous bodily harm, that may not mean that he is not guilty of common assault. He may not have been charged with that, because frequently a lesser offence is put forward by the prosecution when a greater could have been proved.
The Board must sift not only to satisfy the applicant but to make certain that the funds are economically administered. This seems to me to raise difficulties in practice and to lead to conceptions which strike a lawyer as somewhat novel. If weight is to be attached to depositions in criminal cases as showing the outline of events, and I cannot see another method of expeditiously and economically getting at the facts, it will introduce novel elements. One would not know where they would be likely to lead. With these reservations, I welcome the scheme and add to the congratulations already voiced to my right hon. Friend the Home Secretary and to the Home Office for bringing forward a bold and imaginative project.
§ 7.59 p.m.
§ Mr. Emlyn Hooson (Montgomery)
I entirely agree with the hon. and learned Member for Liverpool, Garston (Mr. Bingham), after his very informed speech, that it is difficult, in practice, to get the kind of scheme to achieve the object which we all have in mind, that is, a fair measure of compensation to victims of crimes of violence. The Home Secretary, whom I commend very much for bringing forward a scheme though I do not entirely agree with it, suggested that it was easy, in theory, to project a system for compensating victims of crimes of violence, but that it might be very difficult to implement that scheme in practice.
I sat for some months as a member of the committee of "Justice" which considered this subject. We found it extremely difficult, in theory, to propound a scheme that would meet the practical difficulties which we sought to anticipate. 1206 I prefer the more precise type of scheme put forward by the "Justice" committee to the Government's scheme. I also prefer the hybrid scheme put forward by "Justice" for the provision of weekly payments as well as for the provision of a lump sum. The reason for my preference on this aspect is twofold. First, if we are to meet or mitigate the hardship resulting from a criminal attack we have to provide for weekly payments while the wage earner is incapacitated from earning.
"Justice", in support of its first-aid scheme of weekly payments, cited that actual example of a man earning £20 a week. He had several children. As a result of an attack he was incapacitated and had to go on National Assistance during the period of his incapacity. His weekly receipts were reduced to £10 a week, he had to incur all kinds of debt while off work, and really never recovered his position, and would not even if a lump-sum payment was to be made later. There will always be real hardship, to an incapacitated wage earner without the payment of a weekly sum, which can be regarded as an interim payment, in addition to the later lump-sum payment.
The second point is that it is objectionable for two tribunals to be considering the same facts at the same time or, possibly, for one tribunal—for example, the Compensation Board—to be considering the assault when the man charged with that assault has not been tried. I feel that if any scheme is to be operative without doing offence to our criminal law it is necessary that the assailant should have been tried and convicted, and the time limit for appeal to have expired, before the Board can properly sit to consider whether compensation should be awarded. That being so, I feel that we need the kind of hybrid scheme put forward by "Justice".
I want now to respond to the Home Secretary's invitation to criticise the present scheme and put forward suggestions for its improvement, because I accept that the view of the Home Secretary and of the Government that we need a flexible and experimental scheme is perfectly understandable. A good deal has been made by non-legal hon. Members of the lawyers pointing out difficulties in this scheme. Some hon. Members have pointed out that no two members of 1207 the legal profession seem to agree on an interpretation of given words either in a Bill or in a scheme. I suppose that that is a justification for the existence of the profession. Nevertheless, when a scheme is to be administered by lawyers, they want to know with a fair degree of precision what they are asked to administer, and the real criticism of the White Paper is that it gives them insufficient guidance.
I should here like to take the point made first by the right hon. and learned Member for Newport (Sir F. Soskice) about the inclusion in paragraph 22 of the words:Compensation will be assessed on the basis of common law damages, except that…When I read those words, I gave them the same kind of interpretation as did the hon. and learned Member for Surrey, East (Mr. Doughty), who intervened earlier to say that he understood them to include loss of amenities.(c) there will be no award for loss of expectation of happiness.
I think that the confusion arises in this way. In common law assessment of damages for personal injury, loss of enjoyment of life is a well-known head of damage, and it is very difficult, even for a lawyer, to distinguish between loss of enjoyment of life in future and loss of expectation of happiness. I am sure that no lawyer in this House thought of the case of Benham v. Gambling, because that decision seems to be quite irrelevant to what has to be considered in this part of the paragraph. I agree with the hon. and learned Member for Garston that these words could be excluded altogether. Although the Attorney-General, in his helpful intervention, told the House about the kind of meaning he ascribed to words, it would still be open to the chairman of the tribunal to give to them the kind of interpretation that first came to my mind and came, quite clearly, to the minds of other hon. Members.
Another point raised by many hon. Members refers to the limitations of the scheme. The White Paper is entitled Compensation for Victims of Crimes of Violence, but I am now not so sure that that is so limited. Is the scheme wider in its scope? Is it intended to be a scheme of compensation for those who 1208 suffer personal injury as a result of crime? Paragraph 5 states:Virtually all the public comment since the appearance of the official working party's report has accepted, on the one hand, that some compensation should be available for the victims of crime and, on the other hand, that compensation can justifiably be restricted to the victims of crimes of violence.The first sentence of paragraph 6 reads:The Government accept the principle that the victims of crimes of violence should be eligible for some compensation for personal injury at the public expense and propose to make arrangements for this purpose as soon as possible.That, I understand, is a clear declaration of intention by the Government to compensate the victims of actual crimes of violence, but paragraph 13—Scope of Compensation Scheme—states:Personal injury may arise from a great variety of offences, including crimes against property as well as crimes against the person. It is not, therefore, proposed to specify a comprehensive list of crimes, the victims of which may apply for compensation.I should have thought from that that the Government is saying that the scope of the scheme will be wider than that included in the normal ambit of the term crimes of violence.
I should like to know whether the scheme is intended to be limited to what we in the legal profession know as crimes of violence, or whether it covers personal injury sustained as the result of another crime. Burglary has already been adverted to by the hon. Member for Uxbridge (Mr. Curran). If an old lady was disturbed in the night by a burglar, came to the top of the stairs and, frightened by the burglar, fell down the stairs and suffered serious personal injury as a result, would she be covered by this scheme? From my reading of the earlier paragraphs she would not be, but I think that by paragraph 13 she could be. With the greatest respect to whoever he may be, how can the legally-qualified chairman possibly interpret the matter without greater guidance from the Home Secretary?
§ Mr. MacDermot
Is not the difficulty made greater when one sees from paragraph 14 (a) that the injury has to be…directly attributable either to a criminal offence involving the use of force or to an attempt…"?Some burglaries may involve the use of force, while others are merely the 1209 opening of a door, and involve no force. Is one to lead to a claim, and the other not?
§ Mr. Hooson
I am grateful to the hon. and learned Member. And if a burglar attacks the man in the house but not the wife, but the wife takes fright and falls down stairs, is that covered? More guidance is needed.
The reason why "Justice"—and I see that the, Conservative Party committee did exactly the same—put forward a schedule of offences was that it thought that there was such great scope for fraud in the kind of scheme now put forward. Unless we limit the kind of injury and the kind of offence, one can very soon enlarge this into a scheme of very wide scope indeed. After considering the difficulties, the committee of "Justice" thought it better, certainly in the initial period, to limit their scheme to scheduled crimes of violence, and to physical injury, and to exclude psychological injury.
From paragraph 14, it seems to be possible for the tribunal in this case to consider not only physical injury, but also a neurotic state resulting from an attack of some kind. The scope for fraud, however, is considerable, and the scope for unconscious fraud is also considerable. There is a good deal to be said in the early stages for not encouraging the kind of litigation neurosis which is so common in our courts by limiting the compensation to direct physical injury. Certainly, that was the conclusion that was reached by the committee of "Justice" when it considered the matter.
I hope that the Under-Secretary will not think that because I am indulging in criticism of the scheme, I do not approve of it generally as an experiment, but I hope that this kind of criticism will be thought to be helpful when the whole matter is considered later. I should have thought it important to give guidance to the Board about what the standard of proof should be. Paragraph 26 states thatAt the hearing it will be for the applicant to make out his case.That is unexceptionable. To what degree, however, must the applicant make out his case?
§ Mr. Hooson
I would say that in my personal view the hon. and learned Member is correct, but, nevertheless, guidance is necessary. If one considers the standard to be a balance of probabilities, we have this matter regarded as a civil matter, which I think is right.
Nevertheless, we have to consider the position of a man who is charged with robbery with violence. He may be acquitted of the offence. Let us assume that the victim of the alleged crime, which is found not to be a crime, then applies to the Board for compensation. The Board comes to a decision on a balance of probabilities that the claimant was the victim of a crime of violence which had been perpetrated and awards the claimant damages. As a result of the decision of the second tribunal, there would be a strong reflection upon the man who had been acquitted in the criminal court. In such a case, there must be hardship to somebody, either to the assailant who is originally charged or to the victim if he or she has sustained injury.
A decision must be taken to specify the standard of proof. My view is that the standard of proof should clearly be laid down by the Home Secretary and not be left to the Board to decide. It is very much a decision for Parliament to take and not for the tribunal which considers the case.
In giving reasons why I preferred the "Justice" scheme, I touched upon the point that guidance should also be given as to when the Board should properly sit to arrive at a decision in a case or when the one member takes his initial decision, in relation to criminal proceedings being taken against the assailant. If, for example, a man is apprehended for an offence of robbery with violence and for some reason his trial is delayed, but his victim applies to the Board for compensation and the Board decides to award compensation without the man having been tried, this could have serious effects upon the possibility of a fair trial for the man.
However private the deliberations of the Board, people are bound to talk. A victim of a crime who has recovered compensation might be in the witness 1211 room of a court and might talk to other witnesses. It could reach the ears of a jury that the alleged victim had received compensation. It is important to lay down guiding lines at least for the Board on this matter.
Another point of criticism arises from paragraph 21, which states thatWhere the injury has proved fatal, the spouse or dependants of the injured person will be eligible for an award of compensation.To a lawyer the use of the disjunctive "or" in those words means that either the spouse or the dependants can claim, but not both. The spouse may not be a dependant, or both the spouse and children might be dependent. I should not have thought that it was intended to make them exclusive claimants in this way. It surely is intended to cover the spouse "and/or" dependants.
Under the Fatal Accidents Acts, which are referred to in paragraph 22 only for the purpose of assessment of the sum, a spouse and children rank as possible dependants. It should be made clear to the tribunal which is to be entrusted with this responsibility that other dependants are not excluded if the spouse is considered to be entitled to some degree of compensation.
I well understand the Government's view, although I do not altogether heartily endorse it, that a flexible scheme of this kind is desirable for an experimental period. It is important that the chairman of the tribunal should be a man of good calibre, because no lawyer in modern times will have as much scope for the development of the law and the creation of new case law as will the chairman of this Board. I agree that eventually we must arrive at a more precise scheme, and to a large extent I endorse the criticisms which were made initially by the right hon. and learned Member for Newport and which, later, were repeated from other parts of the House.
Nevertheless, the proposals which are before us are an important step forward. No one can give a logical justification for compensating victims of crimes of violence and not compensating other victims of crime. On the "Justice" committee, we spent several sessions in trying to work out a logical justification for this, but we failed completely 1212 Suffice it to say that there is a great public demand for measures of this kind and that ordinary and right-thinking members of society overwhelmingly now feel that it is right, proper and necessary for the State to provide compensation of this kind.
§ 8.18 p.m.
§ Mr. Ian Percival (Southport)
The object of the scheme which we are considering is set out in the last sentence of the White Paper that we are debating, and it is perhaps, even at this stage of the debate, worth reading it aloud:These proposals are put forward as a practical method of meeting what is now an acknowledged need simply and quickly, and of ensuring that, in all the consideration which is being given to new and more effective methods of treating offenders, the sufferings of innocent victims of violent crime do not go unregarded.I think everyone in the country would agree with and applaud the sentiment expressed in that sentence and the object set out in it. Indeed, I think it is fair to say that every speaker in this debate has welcomed it.
We have had a most erudite, learned and technical discussion. It seems to me that it may be appropriate, now that we are getting towards the end of the debate, to draw attention back to that object as there set out, and to remind the House that the emphasis is, and must be, upon the necessity of finding a practical way of doing something simply and quickly.
I think, again, that all would agree with what is said in paragraph 8:The public does, however, feel a sense of responsibility for and sympathy with the innocent victim, and it is right that this feeling should find practical expression in the provision of compensation on behalf of the community.What we are all looking for is something practical to do. We all, of course, want to see compensation given to the innocent victims of crimes of violence. We all want to see it done quickly. The sole question is how, in practice, can it be done?
Of course there are immense difficulties. Of course a great many of those difficulties remain unresolved. A great deal of this debate has been on those difficulties and upon the fact that a number of them remain unresolved. Some speakers seemed to be getting very 1213 close to saying that, because there are so many difficulties yet unresolved, it is wrong to do anything till those difficulties have been resolved, while other speakers went to the other extreme and criticised the Government for not having done something sooner. It appears to me, and, I am sure, to many other Members of the House, as it certainly does to a very large number of the people of this country, that the time has come for a little less talking and a little more action.
Over the last few years some very learned and very experienced bodies have spent a good deal of their time considering this very question. There was the working party, there was "Justice", there was the Conservative committee. Between them they have managed to draw attention to an immense number of difficulties. That, of course, is very useful: I do not decry that at all. Between them they have managed to draw attention clearly to a great many difficulties, but between them they have been unable to find any clear answer to those difficulties. It seems to me that it is necessary, and that the public require, that something be done without a lot more talking. It does seem to me that it is the combination of the need for urgency, on the one hand, and, on the other, the fact that there are a number of difficulties which so far have proved intractable that is both the justification and necessity for getting ahead with a pilot scheme, and a pilot scheme which involves a very considerable degree of flexibility.
I agree what what was said by my hon. and learned Friend the Member for Liverpool, Garston (Mr. Bingham) and by other hon. and learned Gentlemen that it is to be hoped that this scheme will be followed by something more permanent and more precise. If I recollect correctly, that was what was said by my right hon. Friend the Home Secretary in opening this debate; that was exactly what he said was the Government's object. This object of the scheme is to get something going in practice, so that experience of the difficulties can be gained in practice, and overcome, and this scheme is simply regarded as the forerunner of something more permanent and more precise.
What we need at the moment and what this scheme gives to us is a pilot 1214 scheme whereby something can be done and done quickly, and a pilot scheme of sufficient flexibility that it will not become completely bogged down in a mass of technicalities before it gets under way. In this debate we have heard a great deal about technicalities and difficulties. They have been most interesting, and I am sure they were all discoursed upon and followed with close interest, but I would respectfully suggest that in some instances there has been rather too much emphasis on the difficulties.
The hon. and learned Member for Derby, North (Mr. MacDermot) and the hon. and learned Member for Montgomery (Mr. Hooson) suggested that there ought to be in this pilot stage more precise guidance on certain matters. That is a matter of opinion, and I merely beg to advance a different opinion, that there is a considerable degree of guidance given in paragraph 14. I accept that it is a matter of opinion, but if one reads the provisions to which they were referring together with paragraph 14, there is a considerable measure of guidance.
My hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth) raised technical difficulties over subrogation and its results. I suggest with respect that they simply do not arise.
Another hon. Member suggested that it was a great weakness of the Bill that there was not a list of offences. Again, this is a matter of opinion, and I merely venture to express a different opinion. It appears to me that it is very questionable whether lists and categories are useful or not. One must appreciate that there are two approaches. If one makes a list and then finds that there is something that one did not think of, which is deserving of compensation but which does not come within the list, one may have done a disservice to the people one wishes to help. It does not always work out to the advantage of the people one is trying to assist to have things too precisely laid down. I suggest that in this case, which is by common consent, and publicly stated, an experiment, one ought to err on the side of flexibility rather than risk tying the Board too closely, more closely than one intended, by having fixed lists.
1215 I make the point in general terms. I suggest that at this experimental stage we should not tie ourselves down in technicalities. I am glad that the Board will not be hedged about with a great many technicalities and rules. I hope it will not hedge itself about by introducing too many technicalities and rules itself. That is the way the law gets into tangles. One often finds that in trying to lay down rules—perhaps this applies even to legislation—one thinks that one has thought everything out and foreseen all the practical situations which will arise and drafts one's rules to cover them, and then one finds within a very short time that a practical situation arises which one would have covered had one thought of it but which is excluded because the rules as drawn exclude it. Consequently, I repeat, I am glad that we are not hedging the Board about with too many rules, and I hope that the Board will not hedge itself about too much with rules and regulations of its making which it then feels obliged to follow.
There are two points on which I should appreciate my right hon. Friend's guidance. One concerns sub-paragraph 22 (c). I do not wish to put forward any technical arguments at the moment, but would make just one point. It appears that those words either do less than the Government intended they should do, or do more than would be generally acceptable to the House. I do not press my right hon. Friend to give any firm interpretation of the words now, because those of us with some experience of the law would regard it not only as unfair but as unwise to press for an off-the-cuff interpretation which would be taken as conclusive and final. It is far better that the sub-paragraph should be reconsidered by those concerned in the light of all that has been said today. I merely ask my right hon. Friend to reconsider the words because it appears at least possible that they either do less than was intended by the draftsman or do more than would be generally acceptable, judging by what has been said in the course of the debate.
As to my second point on the scheme itself, my hon. and learned Friend the Member for Garston raised the question of appeal. I would not go as far as he 1216 did on that, for I think there is force and reason in making the Board's findings final and not subject to Ministerial interference. It seems to me, however, that there is a half-way house. A number of commissions established at the moment—for instance, the Foreign Compensation Commission—have the right and sometimes duty to review their own decisions. If we are not careful in this case, we might get a situation where the Board's decision will be so final that even the Board cannot do anything about it although fresh evidence, which is conclusive, may be presented to it.
I ask my right hon. Friend, therefore, to consider introducing into the scheme a right of review by the Board itself. I think it likely that the Board would only exercise that right of review on the production of fresh evidence, but, following my own argument, I would not want to hedge that right about with a lot of rules. I would prefer to leave it to the Board to make its own rules as to when it should use the right. Such a right of review would avoid the possible danger of the Board finding itself unable to change a decision which it had reached without full knowledge of the facts and which it would like to change on the production of fresh evidence or for any other reason.
Like all other speakers in the debate, I greatly welcome this scheme and wish it well. I also wish well to those who have the working of it in their hands. I am sure that we all hope that they will get on with it quickly and find themselves able within the framework of this scheme to make a good job of it.
§ 8.32 p.m.
§ Mr. John Mackie (Enfield, East)
I hope that the hon. and learned Member for Southport (Mr. Percival) will forgive me if I do not follow his argument as I gather, Mr. Speaker, from the mutterings behind your Chair, that a long speech will not be welcome at this time of night.
Like other hon. Members—including, if I may use the expression—lay Members, I speak a little diffidently in entering a lawyers' paradise like this debate. I was amused by the plea of my hon. and learned Friend the Member for Derby, North (Mr. MacDermot) to get rid of woolliness in the White Paper and by the plea of the hon. and learned 1217 Member for Montgomery (Mr. Hooson) for precision. I always thought that the last thing that lawyers wanted was precision, because they live on woolliness and imprecision. Perhaps I misjudge them.
I think we all agree, as did the hon. and learned Member for Southport in reading the last sentence of the White Paper, with this scheme to help hard cases because of the increase in crimes of violence and that we do not disagree in any way with what the Government are trying to do. But there are other innocent victims of violence about whom I want to speak.
First, however, several hon. Members have raised the question of keeping the Board's decisions private. It would be a very good thing to keep them private, especially if considerable awards were made, because of the number of begging letters, salesmen and other types of people who descend upon one who receives an award that is publicised. We all know what the Press can do in making a thing like that public.
I wish to concentrate on paragraph 18. I raised this question during the debate on the Address last autumn but, to use the Prime Minister's expression, I did not get a rise out of the Government then. I therefore make no apology for raising the matter again tonight. It concerns the fact that motoring offences are to be excluded from the scheme. Paragraph 18 says:injuries caused by identified vehicles are covered by insurance arrangements…I hope that the Home Secretary does not think that that is the case, for it is not. Not all of these cases are covered and that is why I want to raise the subject.
There are many hard cases of violence caused by motoring which are not covered by insurance, and I will give the illustration of a case which occurred in my constituency. Mrs. Brown, a lady of about 60, was walking home from work when a small van drew into the pavement; the passenger opened the door and knocked her down, breaking her thigh. She has been an invalid since for two or three years. She sued the motorist in the normal way, but the judge said that it was not the motorist's fault, for he could not he responsible for his passenger.
1218 The passenger was then sued and an award of about £3,000 was made. However, the passenger was a man of straw—in fact, the passenger was a woman, but I gather that legally one cannot have a woman of straw, but only a man of straw—and Mrs. Brown got nothing. The case was proved in court and damages were assessed. It would be the simplest thing for the Home Secretary to include in the scheme that type of violence, committed by negligence, or carelessness, or as a crime. In these instances, the case would be proved and damages assessed and the Compensation Board would have little to do.
As motoring increases, there will be more of these cases and it would be quite simple to include them. At the moment, only a deliberate attempt to run down a victim is covered. I appeal to the Home Secretary to think again about the type of motoring offence which I have mentioned and which has caused great hardship when there has been no compensation. I will leave it to the legal brains to decide the issues which have been discussed today and how to get the scheme into shape. I content myself with an appeal to the Home Secretary to think again about motoring offences.
§ 8.37 p.m.
§ Mr. Alan Brown (Tottenham)
I begin by expressing my appreciation to you, Mr. Speaker, for the opportunity which you have given me this evening to make a small contribution to the debate, the more so because it happens to be just 18 years ago this week that I began as a voluntary worker in this form of social service, covering delinquency and juvenile and child welfare.
There is no substitute for practical experience of dealing with delinquency, with meeting delinquents young and old, delinquency in the raw. With the greatest respect to the lawyers who are present, I believe that in court they do not reach that acquaintance with delinquents which we workers in the field manage to reach. The measure of the appalling social behaviour displayed by delinquents of all ages has to be seen to be believed.
I mention that because I believe that in any approach to a consideration of this White Paper we must remember that we are dealing with delinquent people, 1219 young and old. I think that it would be silly to approach them with any starry-eyed attitude. If the young delinquent is a he and thinks that he can "pull a fast one" over someone, he will certainly try to do so. If the young delinquent is a she, it is a certainty that she will.
During the 18 years that I have been working on problems connected with delinquency the proposition has been made on several occasions that the State or the public should be made financially responsible for compensating victims of crimes of violence. I suppose that one of the most ardent appeals ever made was made by Miss Margery Fry. She did wonderful work in relation to the prisons, and did a great deal to ease the lot of criminals undergoing penal sanction. I remember her turning her attention to the problem of the criminal's victim. I have a paper which she published on the subject about 12 years ago.
But, contrary to public belief, Miss Fry was not the first social worker to propose such a scheme. I think that it was Mr. Ruggles-Brise who, towards the end of the last century, drew attention to the plight of a victim of robbery with violence and suggested that some form of compensation should be paid to that unfortunate man who, as a result of a heavy blow on the head during the commission of the crime, was rendered incapable of following his calling, and a further result was that his wife and children were reduced to receiving parish relief—not a situation to be compared with present-day National Assistance.
Turning to the proposition in the White Paper that the State should be financially responsible for compensating victims of crimes of violence, the pressure of certain sections of public opinion over the last decade led to the appointment of a working party to consider the practicability of introducing a scheme of this sort. This working party reported in June, 1961, and laid great emphasis on the difficulties of producing a satisfactory plan.
It is interesting to note that the working party suggested two alternatives: either a scheme on the lines of the provisions for compensation for in- 1220 dustrial injuries—which was along the lines that Miss Fry had originally suggested—or a scheme based on direct grant assessed on the basis of common law damages with certain changes in procedure, which, I think, is the suggestion now before us.
It was so complicated and bristling with such difficulties that nothing was done, and, as we were told today, "Justice" appointed its own committee to study the problem. It is self-evident that, brilliant as was the "Justice" report, which was debated in another place in December, 1962, certain difficulties remained, and that that is why this White Paper has been produced. I think that these difficulties still exist.
The right hon. and learned Member for Newport (Sir F. Soskice) brought very powerful arguments to bear on this matter, as did my hon. and learned Friends. They also made what I would call strictly legal criticisms. I have no doubt that they are quite valid criticisms, but I wish to give my views on the White Paper in my rôle as an ordinary layman, and as one who has had some experience of the criminal mind.
In the whole concept of compensation from the public purse for victims of crimes of violence we are faced with an underlying problem. I do not refer to the inadequacy of social insurance benefits, because the Government do not intend to use this method. The underlying question is: is it right for Mr. Smith, or Mr. Jones—yourself or myself—being members of the public, to have to pay the costs which, in a moral sense, have been incurred by the criminal act of a delinquent—call him "Bill" Sikes, if you like?
My right hon. Friend stated that he accepted the principle that the victims of crimes of violence should be eligible for some compensation for personal injury at the public expense, but he qualified this statement by adding that any compensation paid would be ex gratia and that the Government do not accept that the State is liable for injuries caused to people by the acts of others. I agree with my right hon. Friend. What I do not agree with are the sentiments expressed in paragraph 1221 28 of the White Paper, under the heading, "Recovery from the Offender", which states:The view is widely held that a scheme of State compensation for the victims of crimes of violence ought to make provision for a contribution from the offender, where possible. The Government agree that where the offender has the means he ought, in principle, to be required to make restitution to his victim…The second "ought" is not strong enough. In all circumstances where it can be proved that the perpetrator of the crime of violence is in a position to pay the financial costs of his criminal act it should be the duty of Her Majesty's Government to make him pay. I shall be most grateful if my hon. Friend the Joint Under-Secretary will deal with this point when she winds up the debate.
Paragraph 8 of the White Paper says thatCompensation will be paid ex gratia. The Government do not accept that the State is liable for injuries caused to people by the acts of others. The public does, however, feel a sense of responsibility for and sympathy with the innocent victim…I cannot quarrel with those sentiments. I imagine that we are all anxious to protect the interests of the innocent. But paragraph 15 says thatThe Board will also, in assessing the amount of compensation in accordance with the principles set out in paragraph 22 below, take account of any share of responsibility, whether because of provocation or otherwise, which in their opinion attaches to the victim of the crime.Surely the phrasebecause of provocation or otherwisescarcely seems to denote a lack of innocence on the part of the victim. If I provoked another man so that he committed an assault on me which was of such violence that I could qualify for compensation, I think that my innocence in the matter might well be in doubt.
In paragraph 16 there is a reference to a sexual relationship from the existence of which an offence involving a crime of violence is committed. I can visualise circumstances in which, in a case of alleged rape, a victim would be far from innocent. I am sure that I am not alone in my opinion, because there are other social workers in the House. From my own knowledge of adolescent female delinquents I am per- 1222 suaded that the Compensation Board, the members of which are to be lawyers, would be paying out large sums from the public purse unless at least some of the members were experienced and had first-hand knowledge of dealing with these young ladies.
It is my opinion that the terms of this White Paper create what could become a happy hunting ground for a highly undesirable type of young criminal who is prone to carry a knife or a razor. I do not have to remind hon. Members that last week a young man had his face slashed open by his compatriots. I cannot accept the view that the public should pay for such things as that. If public money is to be used, it should be used solely to compensate innocent people.
I should feel a lot happier if the compensation—its scope is defined—was not paid unless the offender had been brought to justice, or paid only in the most exceptional circumstances if the offender has not been brought to trial. I know that the lawyers will disagree with me, but my aim is to eliminate fraud. In principle, I welcome the intention of the Government to provide compensation for victims of crimes of violence. I think that the wording of these paragraphs in the White Paper should be tightened up considerably and the present fraudulent possibilities eliminated.
As one who has spent much of his life assisting in the fight against crime, especially crimes against young persons, the last thing I wish to see is the introduction of any scheme which could possibly result in bigger profits being made than can be made already in the world of crime. To do so would be disastrous. As has already been mentioned, schemes of this kind are full of intricacies and dangers, but the major decision must result from consideration of means and policy.
If my right hon. Friend says, as he has said today, that he desires to operate a scheme of compensation for victims of crimes of violence, I am quite certain that a workable scheme can and will be produced, and that the gaps in the proposals contained in the White Paper will be closed.
§ 8.55 p.m.
§ Mr. Charles Loughlin (Gloucestershire, West)
I appreciate that in a debate of this kind in which we have had speeches by lawyers from both sides of the House, there is an enormous number of questions to which replies will be expected. I had to smile when the hon. and learned Member for Montgomery (Mr. Hooson) said that the fact that two lawyers can never agree with each other is a justification of the profession. I should have thought it was a consequence of the profession rather than a justification.
I wish to put a question which may have been asked already. Whether it has been asked or not I am not sure, but it is a very simple question. I hope that if it has been asked already the Under-Secretary who is to reply to the debate will forgive me. If it has not been asked, I want to draw the attention of the Home Secretary to the position. I refer to paragraph 14(a) which makes reference to the degree of injury that may be incurred:directly attributable either to a criminal offence involving the use of force or to an attempt by the victim, acting as a member of the public, to apprehend a criminal.I link this with paragraph 18, which says:Motoring offences will also be excluded from the scheme, except where the motor vehicle has been used as a weapon—i.e. in a deliberate attempt to run the victim down. Injuries caused by identified vehicles are covered by insurance arrangements…There have been cases of burglary attempts of one kind or another in which criminals have used uninsured vehicles. Let us assume that there is an attack on a Post Office van. The hon. Lady the Under-Secretary puts me in mind of the Post Office because she was for some time Assistant Postmaster-General. Assume that the criminals use an uninsured vehicle in their attack on the Post Office van and a member of the public goes to the assistance of the Post Office van man. In the melée the criminals then get into the uninsured vehicle and drive away. Without any deliberate intention of using the vehicle as a weapon, when driving away they run down the person who went to the assistance of the van man and he receives substantial injuries.
It may be that such a case is not intended to be included in the provision outlined in paragraph 18. I appreciate 1224 the truth of the statement in the last paragraph of the White Paper:There being virtually no previous experience anywhere in the world to draw upon…The White Paper and its drafting will inevitably do something by way of exploration of the problem.
I am not attempting to be carping in advancing this view. Nor am I critical of the Home Secretary in the preparation of the White Paper. I recognise the difficulties attendant upon trying to produce a scheme of this kind, but the fact that we have had experience of the type of accident to which I have referred prompts me to raise the matter, and perhaps the Home Secretary or the Under-Secretary of State will deal with it in reply.
§ 9.0 p.m.
§ Mr. Eric Fletcher (Islington, East)
It must be a long time since a proposal put forward by the Home Secretary or by any other member of the Government has received such a very general welcome in principle coupled with such extensive and devastating, criticism in detail. Like other hon. Members, on both sides of the House, who have taken part in the debate, I welcome the Government's proposals, with such reservations as I will indicate in a moment.
I suppose that our chief criticism is that if the Home Secretary had acted earlier—two or three years earlier—when this matter was first raised by my hon. Friends the Members for Lewisham, South (Mr. C. Johnson) and East Ham, North (Mr. Prentice) we should by now have had the benefit of two or three years' experience of an experiment and would have been able to put this novel and complicated subject on a more satisfactory and, I should have hoped, a more permanent basis. I almost feel sorry for the hon. Lady who is to reply to the debate, because she has already been asked so many questions that I do not want to add to her embarrassment by introducing others. But there are certain cardinal features to which I hope she will address her mind in her reply.
First, the House is entitled to know the procedure which the Government contemplate after we have concluded this debate. We are being asked to 1225 take note of this White Paper, and that Motion will obviously be carried. The House will then have taken note of it. It does not follow that the House will have approved the White Paper. Paragraph 12 of the White Paper suggests that the Government will act in accordance with the principles and procedures outlined in the White Paper "if approved by Parliament". I repeat that tonight we shall not approve the White Paper.
I imagine, therefore, that we shall hear from the Home Secretary or the hon. Lady that after tonight's debate a scheme will be propounded and laid before Parliament. I assume that in that scheme the Home Secretary, as he has promised, will take note of the various criticisms which have been made in the debate, because it must be obvious to him by now that there are a great many ambiguities, to say the least, in the scheme in the White Paper. I think that we all realise that the subject is inevitably fraught with such difficulties that it may never be possible to avoid all inconsistencies in a measure of this kind.
I will deal next with the principles involved in the proposal. I notice that practically every one of the distinguished bodies which have dealt with the subject—for example, "Justice", the Conservative Party pamphlet, in respect of which the hon. Baronet the Member for Hendon, South (Sir H. Lucas-Tooth) was chairman, and the Government White Paper—have thought it necessary to find some principles to justify the State in making payments of compensation to the victims of violence. For myself, I see no great difficulty in finding a principle. One has only to recollect, as a matter of history, that in primitive societies an individual who suffered from an act of violence resorted to vengeance.
In the old days the law was an eye for an eye and a tooth for a tooth. In fact, it was because a civilised society arose out of a primitive society that people were led to surrender their primitive rights of vengeance for the protection both of themselves and their property by the State. It was largely through the readiness of the State to set up graduated scales of compensation for various kinds of injury related to various classes of people that the law 1226 of England was able to evolve. Therefore, it does not strike me as anything historically novel that the State should now recognise an obligation to pay compensation to victims of violence. It seems to me to follow as a corollary of the obligation taken by the State to deal with crime and protect society.
Having said that, I must comment on the apparent contradiction in paragraph 8 of the White Paper. The Government say that they—do not accept that the State is liable to injuries cawed to people by the acts of others"—and for that reason they propose that compensation will be paid ex gratia. The Government cannot have it both ways. They cannot both ask Parliament to include in the Home Office Vote sums which are to be payable under the scheme and at the same time pretend that there is no obligation. The Government themselves rely, I think rightly, on the fact that the public has in the last few years come to realise that there is a sense of responsibility for innocent victims of crimes of violence. I therefore hope that it will not be long before, as a result of the provisions we are considering tonight, what is now to be introduced as an ex gratia payment or series of payments will be transformed into a legal liability.
Even while waiting for that transformation to take place, it seems to me to be thoroughly undesirable, as so many of my hon. Friends and hon. Members opposite have said, that we should in the White Paper apparently condone the intention of the Government to pay out large sums of public money on principles which are so vague, ambiguous and ill-defined.
I echo the proposals made by my hon. and learned Friend the Member for Derby, North (Mr. MacDermot) that this scheme is about as vague, woolly and incoherent as has ever been put before Parliament I do not share the view of the hon. and learned Member for Southport (Mr. Percival), who advocated the extreme opposite, that the scheme should be as flexible and as vague as possible. It seems to me that there will be a very serious risk of considerable injustice and inequality arising as between one claimant and another, unless the principles to be applied by the Board are 1227 laid down with much greater precision than is the case at present.
In his context I want to refer again to paragraph 22 of the White Paper. I urge the Home Secretary before he introduces his scheme to give much greater thought to this matter than he has obviously been able to do as yet and to pay attention to the criticisms which have been addressed to him during the debate. I find it impossible to understand, having heard his speech and the intervention of the Attorney-General, what is meant by the exclusion from compensation of any—award for loss of expectation of happiness".The Attorney-General, who seemed quite satisfied, told us that the intention of the phrase was to exclude any payment for the loss of the chance of living a happy life, whatever that may mean.
The Attorney-General referred to the case of Benham v. Gambling. This was a case in which the representatives of a deceased person brought a claim because the person they represented had died as a result of an accident. I do not know whether the Attorney-General was aware that, since Benham v. Gambling to which he referred as being the last word in explaining paragraph 22, was decided, a recent decision in the House of Lords has thrown considerable doubt upon the applicability of that case.
I would remind the Home Secretary that even now when the courts of common law come to consider what damages are payable at common law as a result of personal injuries there is a wide divergence of opinion among judges as to what is the right criterion to apply. For example, the last case on this subject was that of West v. Shephard, reported in the Law Reports, 1964, in which three law lords reached a decision one way and the other two dissenting law lords reached a decision another way as to whether, in the circumstances of that case, where a lady had suffered injuries, the appropriate damages were as some of them thought £17,500 or as others thought £10,000.
There is obviously the greatest occasion for different views as to what is the appropriate measure of damages. It seems to me absolutely essential that the Board should be told whether it is to apply ordinary common law principles, 1228 or, if it is to exclude something, what it has to exclude. May I give the Home Secretary one illustration? Suppose, as a result of some criminal act of violence a lady loses the sight of an eye and suffers facial disfigurement, as a result of which she loses not only her earning capacity but suffers a great deal of pain and suffering, her enjoyment of life obviously is very considerably reduced. What is to be the principle which the Board should apply in that case?
Is it, as the Attorney-General says, that the tribunal should exclude anything relating to the loss of the chance of living a happy life? Obviously, a person who has suffered an injury of that kind cannot live the same kind of happy life as previously. Might I draw the attention of the Home Secretary to the fact that in the case to which I have just referred him, one of the Law Lords pointed out that…in reference to a judicial process which must so often be undertaken such as that of the assessment of damages for personal injuries I would favour simplicity of expression and an absence to the greatest extent possible of any elaborate or complex formulae.Having said that, I suppose that it is inevitable that when the Board is set up there will be a great deal of hit and miss with regard to the damages it awards. It is regrettable that no costs will be awarded to those who wish to be legally represented before the tribunal. It will make it almost impossible for legal advisers to advise victims of crimes of violence either whether they should apply at all or, if they apply, the kind of award they are entitled to obtain and whether they should be satisfied with the award that they in fact obtain.
It seems to me that that situation can be remedied only, and then only partially, if the Home Secretary insists not only on an annual report being laid before Parliament of the activities of the Board but, I would hope, on a more frequent report, such as a quarterly one. Bearing in mind that these cases can be decided in private, that public money will be spent and that the whole scheme is of an experimental nature, it seems to me essential that Parliament should be supplied, preferably quarterly, with details of all the awards made.
I do not think it necessary to give the names of the parties, but it is essential that we should know the nature of 1229 the crime of violence out of which the claim arose. We should know the nature of the injuries and whether there are any contributory factors by the victim mitigating the amount that he might claim, and we should know the amount of the award. It is essential that Parliament should have full notice of all relevant details, omitting the names if necessary, of all the cases on which the Board has adjudicated. It would be useful also to know whether the claim was the result of an award by a single member or of an appeal to a tribunal of three.
My hon. Friend the Member for Lewisham, South raised the question whether any payments in the awards made by the Board were subject to Income Tax. I should think it quite obvious that they were not in any circumstances subject to Income Tax and I hope that the Joint Under-Secretary will be able to confirm that that is the case.
The hon. baronet the Member for Hendon, South raised the very interesting question whether it was appropriate or sensible that if an award had been made the State should claim to be subrogate to the rights of the victim in order to recover the award from the criminal. I was impressed by his argument that if any such claim were pursued it might have an adverse effect on the chances of recovery and restoration to civil life of the criminal concerned. Apart from that, I should have thought that no question of subrogation could possibly arise in the case of ex gratia payment, it being a voluntary payment and not one made as a legal obligation. Perhaps the Home Secretary will consider that no question of subrogation arises.
I should have thought that if it is intended to recover from the offender the amount of compensation paid to the victim, some far more definite legal machinery will be required than is contemplated in paragraph 28 to enable the State as a matter of law to effect recovery from the offender. Various hon. Members have raised the question whether the Government are right in confining the scheme to personal injuries and excluding injuries to property.
I agree with the hon. Member for Uxbridge (Mr. Curran) in thinking that as a matter of logic it is difficult to draw 1230 any distinction between requiring the State to compensate the victim of the crime if he has suffered some personal injury and refusing to compensate him if he has suffered some damage to his property. While I am convinced that public opinion supports this scheme in relation to personal injuries, I do not think that it would be prepared to see the scheme extended to claims in respect of damage to property, however logical a case one might be able to make out for such an extension.
I apologise for troubling the House with various points of detail, but it is the only way in which one can hope that these matters will be considered by the Home Office between now and the time—not, I hope, far distant—when the scheme is adumbrated. There is the exclusion from the category of claimants members of the household of the criminal. I think that we would all agree that the proposal as it stands is right, but I suggest to the Home Secretary that an exception should be made in the case of fatalities—for example, murder. One knows that very often the victim of the murder is a member of the household of the criminal. In such cases, those who suffer are the children, and I think that there can be no possible ground for excluding those children from compensation, as in that case there would obviously be no question of fraud on the fund.
I would also ask the Home Secretary to bear in mind the point made by the Committee of Justice, and to include in paragraph 14(a) injury to persons trying to avoid, frustrate or prevent a crime as well as those trying to apprehend the offender. That would seem to be not only just in itself but would also be a valuable assistance to those seeking to reduce criminal activity.
Various hon. Members have dealt with the question of whether the board as proposed in the White Paper is properly constituted. For myself, I think that it is. Decision in these matters must be given to a body of lawyers familiar with weighing evidence and applying the principles of common law damages. Questions of quantum will inevitably be very complicated—at least as complicated as those that arise in the law courts—and, like my right hon. and learned Friend 1231 the Member for Newport (Sir F. Soskice), I hope that in due course the responsibility for making these awards will be transferred to one of Her Majesty's judges. My own view is that in the interval it is right that the Board's decision should be final. It would be wrong to subject the decision of the Board to Ministerial approval, and I do not support the suggestion of the hon. and learned Member for Southport that the Board have power from time to time to review awards that it makes. Everything points to the desirability of producing an end to litigation of this kind.
One hon. Member hoped that the Board would not hedge itself around with too many technical rules. I do not share that view. It seems to me to be essential that the scheme should not be regarded as one in which the Board has a quite arbitrary decision in making ex gratia payments. It is obviously in the public interest that the Board should feel itself under an obligation from the outset to formulate rules of general application concerning the awards which it proposes to make. It is essential that full particulars of the awards, with all the relevant details, should be published in quarterly reports to the House of Commons so that we may judge the way in which the scheme is being worked.
I share the view that this is a desirable scheme. It is obviously experimental. It is unprecedented in the sense that apart from the experience in New Zealand, such a scheme does not apply anywhere else in the world. I hope that we regard it as purely experimental, that the experiment will not be of long duration and that all the necessary information will be laid before Parliament to enable us to review it, to criticise it annually and, within a short time, to place the subject on a permanent basis under legislation approved by Parliament.
§ 9.27 p.m.
§ The Joint Under-Secretary of State for the Home Department (Miss Mervyn Pike)
We have had a useful debate and I will do my best to deal with the many points that have been raised. The debate has reminded us once again that one of the great difficulties has been to find a workable and acceptable scheme. As the hon. Member for 1232 Islington, East (Mr. Fletcher) has just said, we are virtually pioneers in this field. Whilst all sections of opinion have endorsed the validity of the underlying purpose of the scheme, there has, at the same time, been a wide diversity of opinion about its practical application.
As the hon. Member has said, two fundamental points of agreement have, however, run through the many proposals and through today's debate. In the first place, we are agreed that claims for compensation should be determined by a judicial or quasi-judicial body, and secondly, that compensation should be paid only in deserving cases. The Government's task has been to produce a scheme that would stand the test of practical experience and ensure that public money is not wasted on undeserving or fraudulent claims or upon undue administrative costs.
In our judgment and, I believe, in the broad judgment of the House, this experimental ex gratia scheme makes adequate provision for the purposes which have been set out. We believe that it will be fair in operation and that it will have the advantage of enabling us to go ahead quickly. We recognise, however, as my right hon. Friend the Home Secretary has said, that there is a great deal to be learnt. We are anxious to incorporate all the ideas that we have heard today and those which may come following today's debate which will serve to strengthen the scheme.
The hon. Member for Islington, East asked about our immediate intentions concerning the scheme. We are anxious to take into consideration all the comments and suggestions that have been made today and which are forthcoming in the debate in another place later this week. Many of the comments have been for clarification, but if there are points of substance on which it seems desirable to modify the plan the House will certainly be informed. My right hon. Friend hopes that this could be done by means of a statement rather than by another White Paper, because we are all anxious—and this was the spirit especially of the latter part of the speech of the hon. Member for Islington, East—to get on with the scheme and that there should be no avoidable delay in enabling us to start this experiment, 1233 which we all consider to be desirable. I would stress that should there be any major modification of the scheme then of course the House would be kept informed.
The other major point which the hon. Gentleman made was with regard to the conditions in paragraph 22(c) of the White Paper. I think that possibly in this context I should take the advice of my hon. and learned Friend the Member for Southport (Mr. Percival), who said that it would be unwise to be—indeed, he was kind enough to say it would be unfair to ask me to be—categorical as to the interpretation which would be put on it. I would say to the hon. Gentleman, not being a lawyer myself, that I found, as my right hon. Friend did, his explanation very clear, particularly reading it in conjunction with the previous White Paper. We do accept the difficulties which hon. and learned Gentlemen have brought forward. It is our intention to make this scheme as clear as possible, and I give the hon. Gentleman the assurance that this point will be very carefully looked at.
As I said a few moments ago, many people are anxious that this scheme should start as quickly as possible, and have been critical that we did not start it sooner. If this debate has shown anything, it is, I think, that the considerable discussion which has gone on outside the House, over the last 10 years, has borne fruit. It is a difficult problem, and one to which it has been wise to give the maximum consideration, and that is why I think that possibly the House will endorse the wisdom of this experimental ex gratia scheme at this time.
If we had introduced legislation, as some hon. Members have suggested, particularly the right hon. and learned Gentleman the Member for Newport (Sir F. Soskice), we should have held up the inception of the scheme. We all recognise that in the future, having learned by experience, complicated legislation will be necessary in this field, but in the meantime I think we have made a very useful start.
The right hon. and learned Gentleman the Member for Newport asked about the compensation awarded after the acquittal of a criminal. I would say to him that if the Board makes an award 1234 it does not, of course, imply that that particular offender committed the assault. It implies only that the victim was assaulted by someone. It is inevitable, unless compensation is to be paid only where there has been a conviction, whether the hearings are in private or not, that suspicion of a particular person's guilt will remain.
§ Sir F. Soskice
The difficulty arises, does it not—and I should like the hon. Lady's view on this—where there is the question whether the victim has been himself responsible in some degree for the injury he has received? In that case we might get the accused person acquitted; then the victim brings a claim, and the claim is considered by the Compensation Board. I suppose that the accused person again has to give evidence, and all other persons give evidence who can throw light on the question whether the claimant was himself implicated in the offence.
That surely means that the whole thing has to be gone into again, that the accused person, although acquitted, has to be recalled, and the matter reconsidered. The claim may then succeed, and that can only be on the basis that the accused person was the person who inflicted the injury.
§ Miss Pike
The right hon. and learned Gentleman has demonstrated one of the difficulties inherent in a scheme of this kind, and I am sure that he would not wish me to comment on this tonight. This is, of course, one of the difficulties which will confront the Board, and I would suggest to hon. Members that it underlines the necessity for having a Board which is constituted of legal personnel with broad experience.
Some hon. Members have suggested that perhaps we do not need a Board composed wholly of the legal profession. However, in spite of prejudices which may be in the minds of some hon. Members I think that the general view would be that the greater wisdom would be to have a Board composed of people with very wide experience in these matters.
My hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth) asked whether a compensation application would be held up pending criminal proceedings. The answer is that it will 1235 if there is a prospect of proceedings being taken in the near future. Payment of an interim award of compensation is not ruled out if it is clear that the applicant deserves and needs it.
The hon. and learned Member for Derby, North (Mr. MacDermot) asked whether we could have published reports of the Board's decisions without the names of applicants. This was also what the hon. Member for Islington, East was asking for. We must recognise that there must be an annual report presented to Parliament—this is obligatory under paragraph 12 of the White Paper—and it will be for the Board to indicate any major decisions that it has taken or processes that it has set out.
Here again, we must look very much to the spirit in which the experiment will take place. Everyone is anxious that the scheme shall work, and I am sure that the Board would wish to build up case law and that it would feel that it was in the best interests of its own work, as well as in the interests of Parliament, that the fullest possible reports should be given to Parliament so that we could review the scheme and see how far we should extend it.
Several hon. Members—the hon. and learned Member for Derby, North, my hon. Friend the Member for Bridgwater (Sir G. Willis), my hon. and learned Friend the Member for Liverpool, Garston (Mr. Bingham) and my hon. and learned Friend the Member for Southport, in particular—asked why there was no right of appeal. I think that it must be demonstrated that this is, in effect, provided by the right to a hearing before three Board members where the applicant is dissatisfied with the decision of the single Board member either because no compensation is offered or because he considers the amount offered to be inadequate. My hon. and learned Friend the Member for Garston said that there was no reason to think that three members would be unable to act in an objective manner, but my hon. Friend the Member for Bridgwater pointed out that they are members of the same Board as a single member who took the initial decision and that there is a possibility that in many cases there would be a doubt in the mind of the unsuccessful applicant. But, here 1236 again, I think that to add any further procedure would be to complicate unduly the scheme that we are setting up at this stage.
§ Mr. C. Johnson
Would the hon. Lady say whether or not the decision of the three members must be unanimous, or whether the finding could be based on a decision of two out of three with one dissentient?
§ Miss Pike
This will be for the discretion of the Board to decide. I do not want to keep on reiterating that this is an experimental scheme, one in which we are giving wide discretionary powers to Board members in the belief that they will build up the most suitable forms in this sphere.
My hon. and learned Friend the Member for Garston was a little worried that the Board members might, with the possible procedures going on, become so much involved in this type of work that they would become out of touch with procedure in the courts. In the initial stages, as my right hon. Friend said, it is thought that a great many of the Board members will be part time, and it may well be that in this way they will be kept completely in touch. We cannot judge at this point how many Board members will be needed and what the scope of the work will be, but I do not think that we need worry that they will be people who will in any way be out of touch with the work that they are called upon to do.
The hon. Member for Lewisham, South (Mr. C. Johnson) asked whether the information available to the Board at the hearing would also be made available to the applicant. In the White Paper he will see that the decision must be taken upon the evidence given at the time of the hearing before the three Board members. It is the intention that all the information before the Board at a hearing shall be made available to the applicant.
§ Mr. MacDermot
Suppose that there is no hearing in that sense and that the decision is given by a single member of the Board. Will the evidence on which he bases his decision—which has been obtained by the Board's staff—be made available to the applicant?
§ Miss Pike
No. In that case the final decision is that of one member. All the information will be available on appeal to the three members of the Board who hear it. They, in effect, will be judging on the evidence before the court and not on the informal evidence upon which the single member will reach his decision.
§ Mr. C. Johnson
This is an important matter. Unless the applicant whose case has been dismissed initially by one member of the Board is told of the reasons for refusal, he will be at a considerable disadvantage in considering whether to appeal, because it may be that the reasons are overwhelming. As I understand, his application will be considered de novo, but his further efforts may be wasted if the reasons against him, which have been unknown to him, are overwhelming. I imagine that, under these conditions, in practice every case which is refused by a single member of the Board will automatically go to appeal to three members.
§ Miss Pike
That is an extremely useful point and we will certainly consider it. The hon. Gentleman also asked about occasional payments made in advance and, as I have said, there is no reason why these should not be made.
The hon. and learned Member for Derby, North (Mr. MacDermot), my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth), the hon. Member for East Ham, North (Mr. Prentice) and the hon. and learned Member for Montgomery (Mr. Hooson) commented on the absence of a list of crimes in the White Paper. We do not consider this to be a defect in the scheme. Indeed, it is one of its merits. It means that any claimant who comes within the spirit of the scheme is not ruled out from consideration. There is no reason to think that anyone seriously injured as a result of a crime will be put off from claiming because there is no list. On the other hand, I think that it will bring into the scheme people who could be ruled out if we had too rigid a list of crimes.
§ Sir H. Lucas-Tooth
Could such technical offences as those under the Food and Drugs Acts or the Factory Acts be entertained by the Board?
§ Miss Pike
No. They must be crimes of violence. My hon. Friend earlier brought up the question of poisoning, and here again the answer is that this must come within the category of crimes of violence. In this context also, the hon. and learned Member for Montgomery asked about the standard of proof, the balance of probability, as in civil actions. It is the intention that that should be the standard of proof. I hope that hon. Members will forgive me for rushing through my speech like this, but I am anxious to answer as many questions as I can.
The hon. and learned Member for Derby, North asked whether there should be a specific time limit prescribed for reporting an offence to the police and making an application for compensation. Here again we think this is for the Board to decide. The White Paper merely outlines the scheme and quite deliberately leaves such details to the Board. We want people to be brought into the spirit of this scheme.
Many hon. Members were worried about safeguards against fraudulent claims. In the first place, the circumstances of the injury must have been reported to the police without delay or have been the subject of criminal proceedings. This is in paragraph 14(b) of the White Paper. In view of the difficulty of establishing the facts in respect of members of an offender's household, people living with him are excluded from the scheme. An applicant must also be prepared to submit to a medical examination. Lastly, it will be the responsibility of the Board and its staff to make any necessary inquiries, particularly of the police, to establish that claims are bona fide and, of course, it will be for the claimant to make out his claim.
The rules may have to be fairly rigid to some extent. The hon. and learned Member for Derby, North was worried about sexual offences in which there might be some difficulties. These are difficult problems because these cases are peculiarly open to fraudulent applications and we must be strict to safeguard public funds in this matter. But I believe that we have left sufficient discretion to the Board to enable it wherever possible to bring in the bona fide case.
1239 The hon. Member for Wigan (Mr. Fitch) and others asked about the member of the public who went to the assistance of the police, particularly, I understand, in the controlling of unruly political demonstrations, and so on. The hon. Member for Gloucestershire, West (Mr. Loughlin) brought up another case, near to my heart because of my recent responsibilities. Other hon. Members have been worried about people helping the authorities in the course of their duty. I can assure the House that those people should come within the scheme if they are injured while helping the authorities in this way. The scheme does not necessarily mean that the violence has to be directed specifically at them. If they are helping in this way, they will come within the orbit of the scheme.
§ Mr. Loughlin
The two paragraphs which I read, relating to persons being injured accidentally or incidental to the result of an armed raid, specifically state that such people come within the scope of the scheme only when the vehicle is used as a weapon and the injury is deiberate.
§ Miss Pike
In the specific case which the hon. Member mentioned, it would depend very much on the circumstances and interpretation. If the offender were trying to batter his way out and so could say that the injury was accidental, or if the injured person had been trying to apprehend the offender, this could well be within the spirit of the general meaning of this part of the scheme. I do not wish to make categorical statements at this moment, but it is intended that the people who are helping the forces of law and order should not be in any way at a disadvantage because of their help. This must depend largely on the circumstances, and it is in this respect that the information from the police will be of advantage to the Board.
Several hon. Members have spoken about members of the police themselves. We have particularly in mind the ordinary member of the public who goes to the aid of the police, but it is not the intention to exclude police or prison officers from compensation in the circumstances. They would be eligible on the same basis as ordinary members of the public, subject to the qualifications, in the last sentence of paragraph 22 of the 1240 White Paper, which seek to ensure that people do not get compensation from two different types of public funds.
The hon. and learned Member for Derby, North and the hon. Member for East Ham, North asked about the allocation of responsibility in paragraph 15 of the White Paper. Clearly, it will be necessary for the Board to make an apportionment of responsibility to arrive at the amount of compensation when compensation is reduced because of the partial responsibility of the victim of the crime. Here again, case law will have a great bearing on the apportionment in these cases.
§ Mr. MacDermot
I am following with great interest the number of occasions on which the hon. Lady says that this will be a matter for the Board to decide, and that it will develop its own case law. If that is so, I urge, once again, that the Board should publish something more frequently than an annual report, because, from a practical point of view, it follows that a member of the legal profession who wants to advise on this scheme will have to say, "I cannot begin to advise you for a year because I do not know what case law has been developed". It will be a secret case law.
§ Miss Pike
I recognise the difficulty to which the hon. and learned Gentleman refers, but the great thing is that we must get this scheme started. We must get these cases going, and in the light of that we must see the type of reports that we want and the type of progress that we make. I am conscious of the fact that I am saying that this is a growing and expanding scheme, but, as we have seen this evening, that is the very essence of the scheme and the very basis for the fact that we have this experimental ex gratia scheme in this way.
Another important point raised by hon. Members referred to members of the offender's household living with him. Perhaps I could elucidate what this means. This part of the scheme was intended primarily to exclude an attack by a husband on a wife, or vice versa, where compensation might benefit the offender, and where the facts would be difficult to ascertain. Sub-tenants in the same house are not necessarily ruled out.
1241 One hon. Member asked about au pair girls. They would not necessarily be ruled out, but it is impossible to foresee the circumstances in which a claim may arise in which different categories of people would be involved. I think that it is important to work within the principle of paragraph 17 so that people will not be encouraged to bring forward fraudulent claims.
The hon. and learned Member for Montgomery asked about the spouse, or dependant, referred to in paragraph 22. It is intended that the class of persons to be compensated under this head are the same as those under the Fatal Accidents Acts, that is to say, spouses, children, including adopted and illegitimate children, and certain other persons provided for under the Fatal Accidents Act, 1959. The total sum to be awarded would fall to be apportioned among the applicants in the same way as under the Fatal Accidents Acts. I hope that that meets the point made by the hon. and learned Gentleman.
The hon. Member for Wigan asked about the New Zealand scheme. We are proud of the fact that we are pioneers in this field, but, as hon. Members know, New Zealand brought in her scheme in January of this year. According to the information that we received from our High Commissioner on 1st May, no claim has arisen for consideration since the New Zealand Criminal Injuries Act came into force, but, as the hon. Gentleman mentioned, there is a certain element of retrospection in their scheme and they had under consideration six claims relating to crimes in 1963.
Three of these have been decided on the basis of informal opinions from the Crime Compensation Court established by the Act, and awards made of £1,000, £450, and £200. I give that information because we have proudly been saying that we are pioneers, and it is as well to give credit to our Commonwealth friends when they go ahead with schemes like this one.
The hon. Member for Wigan also asked me whether applicants for compensation would receive legal aid. The answer is "No". This would not be consistent with the practice of the administration of tribunals, and it would also be liable to make hearings more formal than is intended. The hon. 1242 Member for Islington, East raised the question of Income Tax, as did the hon. Member for Lewisham, South. The answer again is "No". When I was nodding and shaking my head I did not know whether I was giving the right indication, because the questions were framed in different ways by the hon. Members.
The hon. Member for East Ham, North raised the question of the lower limit. It is a relevant point that £50 may be a large sum to some people, as may three weeks' earnings. The only difficulty is that we must have a limit, especially as we wish to make certain that we are not flooded with a great number of cases. My hon. and learned Friend the Member for Southport hoped that a great degree of flexibility could be brought into the scheme. I am sure that that is the spirit with which we all want the scheme to be administered.
I need not go into the reasons why this is to be an ex gratia scheme, as opposed to one based on the insurance principle. Most hon. Members agree that this is the wisest way to go forward at present. I hope that I have shown the Committee why it is necessary that the Board should consist of members of the legal profession, especially in the initial stages.
My hon. and learned Friend the Member for Liverpool, Garston (Mr. Bingham) wanted to see the headquarters established on Merseyside. It is our intention to establish them in London, but as the scheme develops regional offices may be developed throughout the country. We want to keep administrative costs as low as possible.
This has been a most interesting and constructive debate. Its real importance lies in the fact that it has reflected widespread agreement that there should now be some form of compensation for victims of crimes of violence, and that this compensation should be limited to crimes causing personal injury. Tonight's debate has marked the most significant stage in the wide ranging discussions that have taken place on this subject in the past 10 years. Tonight, we are near the culmination of the purely theoretical argument, and the contributions that have been made in 1243 today's debate will colour the practical application of the scheme and illuminate some of the problems that lie ahead.
Now we are at the base line for the practical experience which will flow from the inception of this scheme. Future discussion will be concerned to an increasing degree with practical assessments of the progress of the scheme, and the pitfalls and obstacles to be overcome. This, as the House will agree, is one of the most worth-while experiments that we can make in social responsibility. None can see the final legislative form in which this principle may be embodied, but we should all recognise that the great value of the proposals before us lies in their flexibility. This flexibility is designed to enable sound theory and wide experience to be welded into the most effective expression of justice in this field.
I commend this scheme to the House and hope that we would all wish it well, and wish great success to all those people who will take part in its administration in the future.
§ Question put and agreed to.
That this House takes note of the White Paper on Compensation for Victims of Crimes of Violence, Command Paper No. 2323.