CONSEQUENTIAL AMENDMENT TO THE BILL (Hansard, 22 July 1988)

§ Lord Morton of Shuna
My Lords, if these amendments were kept separate they would not follow correctly, so I shall speak to them all together. Amendment No. 167 is a considerable improvement 1626 to Clause 107. I should declare an interest as a member of the Criminal Injuries Compensation Board. The difficulty that remains is that Amendment No. 167 begins: It is for the claimant to satisfy the Board, on a balance of probabilities". There follow three items, and then: The Board may also, if they think fit, refuse an award or award less than they would otherwise have awarded because of any of the following". The "following" include the applicant's convictions or, conduct on his part connected with the occasioning of the injury". The purpose of the amendments that I propose is to move conduct at the time of occasioning the injury into the first paragraph—in other words, where it is for the claimant to satisfy the board rather than the other way round. In logic it is virtually impossible for somebody who was not at the scene of the incident to satisfy himself that the applicant's conduct did not contribute to his injury, whereas it is quite possible for the applicant himself to have the onus of proof of that because he usually knows what happened. That is the sole purpose of these four amendments.
The burden of proof is put on the applicant only if the board raises the issue. That gives the applicant warning that his conduct at the time of the incident may be put in question. But the onus of proof is not always an easy aspect to understand. If the police come across a man who is injured having obviously been in some kind of fight outside a public house and there is evidence that he has been required to leave the public house because he has caused some kind of disturbance, the board—with the present onus on the applicant— would tend to be rather suspicious of the applicant's conduct and might consider that he had voluntarily taken part in a fight. An award might be refused.
Under the scheme as drafted in the Bill the board would have no option if the applicant said that somebody just came and hit him. There would be no evidence on which it could pursue its suspicion because the onus of proof would be on it. As a member of the board I consider that entirely wrong. But if the Government insist on their amendment, the best calculation is that £1 or £2 million a year will be paid out to people whom the board considers, under its present scheme, should not have it. If that is what the Government want to happen I do not intend to force a vote. I hope however that the Government will accept the amendments. I beg to move Amendment No. 167A.

§ Lord Renton
My Lords, the noble Lord, Lord Morton of Shuna, is just as lucid and persuasive when he is speaking from the Back Benches as when he is speaking from his position on the Front Bench: I cannot think that there was no room for him to speak from the Opposition Front Bench on this occasion.

§ Lord Morton of Shuna
My Lords, because I have a particular interest it was thought appropriate that I should speak from the Back Benches.

§ Lord Renton
My Lords, that may be so. In my ignorance I fail to understand that. The noble Lord is not criticising the Commons amendment so far as it goes. He is merely trying to add to it but trying in a way that I find rather unusual. The noble Lord says 1627 that the applicant shall not be required to prove that there was no misconduct on his part unless the board raises the issue. I must confess that I do not remember those kinds of conditions being written into a provision dealing with burden of proof. I do not believe that it fits in very well here, but I should have thought that when we are considering Commons amendments—which, in this instance, are an improvement on our own drafting—we should acknowledge that there has been no change of substance in what we suggested to the Commons. We should not be prepared at this very late stage to add to the substance of the matter, even if it were necessary—which I doubt. Quite frankly, the terms of the amendment as it stands are very wide. I cannot believe that the board would consider that the claimant had discharged his burden of proof if it became clear—whether the board asked him to raise the matter or not—that there has been no misconduct on his part. The amendment has the further defect (this is clearly a drafting defect) in that it introduces another negative.

§ Lord Hailsham of Saint Marylebone
My Lords, I agree with my noble friend. I prefer the text of the Commons amendment as it stands. I agree with what my noble friend said. I do not like the phrase "connected with" where it occurs in the first line of the amendment. It is obscure and could be misunderstood. I should have preferred the words "no misconduct" if they were to be used at all, instead of "not misconduct".

Earl Ferrers
My Lords, I appreciate the concern of the noble Lord, Lord Morton of Shuna, that the Criminal Injuries Compensation Board should not have to pay compensation in cases where it is undeserved. Amendments proposed by the Opposition and accepted by the Government have already limited the present discretion of the board to withhold or reduce awards. An attempt to remove altogether the board's power to refuse or reduce awards on account of previous convictions or unlawful conduct, however serious, was defeated only on a Division.
Under the Bill there is already a considerable burden of proof on the claimant. He first has to prove to the board that he sustained a qualifying injury. Then he must prove that he took all reasonable steps to inform the police about it and co-operate with the police in bringing the perpetrator to justice. He must prove that he has co-operated fully with the board and any other relevant authority in connection with the claim. He also has to prove that there is no possibility that a person responsible for causing the injury will benefit from an award. When the claimant has done all that, the board will still have a discretion to refuse or reduce an award, if it thinks fit, because of any criminal convictions or unlawful conduct of the claimant, or his conduct at any time connected with the injury. In considering all these matters the board can take account of hearsay and opinion evidence.
Therefore, the board will have a very wide discretion to refuse or reduce awards. This Bill introduces statutory rights to compensation for criminal injuries. Both this Bill and its predecessor separate the issues of criminal convictions and 1628 conduct and matters on which the claimant must satisfy the board. We have some sympathy with the intention behind the amendment, but I do not believe that it would be right at this stage further to widen the board's discretion as proposed in the amendment of the noble Lord, Lord Morton of Shuna. Nor in our view would it be fair to place that further requirement of proof on the claimant. Therefore, I hope that the noble Lord will be content with the original amendment.

§ Lord Morton of Shuna
My Lords, I am grateful to everyone who has taken part in the debate. Perhaps I may say to the noble and learned Lord, Lord Hailsham, that one has to use some of the words used in the Bill. I took the words "conduct connected with" from the Government's drafting in the Bill as it is. That is where it came from.
I appreciate that the amendment as drafted is perhaps not the best ever piece of drafting. I take total responsibility in this House for that, but I shall convey to those who approved the drafting the views of the noble Lord, Lord Renton, and the noble and learned Lord, Lord Hailsham. That may be interesting to them.
The position to which I am seeking to return with these amendments is the position on which the board has operated for the past 24 years. The Bill is making a change in making the person's conduct at the time of his injury something which he does not have to prove but which the board has to prove. However, as the Government are not prepared to accept the amendment, I do not wish to divide on the issue and I ask leave to withdraw it.