CICA is an independent, government-funded authority which provides compensation to victims of violent crime. It makes decision based on the Criminal Injuries Compensation Scheme 2012. The scheme has been in place since 27 November 2012.
A person who has been conclusively identified as a victim of trafficking by the Home Office may be eligible for an award by virtue of paragraphs 10(c), 13(a), 15(a) and 16 of the scheme. Paragraph 4 states that a victim has to demonstrate that they have sustained a criminal injury, as a direct result of their being a victim of a crime of violence.
Alternatively, if the victim has made an application for asylum under s3(2) of the Immigration Act 1971 then they are similarly eligible for an award of compensation.
The way that the scheme is worded means that a victim of trafficking for the purposes of domestic servitude and/or forced labour is not entitled to compensation unless they have suffered physical violence or have been threatened with physical violence. A victim of trafficking for the purposes of sexual exploitation and/or prostitution would be entitled to compensation because they could also claim to be a victim of a sexual assault.
How the CICA scheme works
An application is made to the CICA. The application requires the applicant to set out the dates on which the criminal injury occurred, the injury suffered and the treatment obtained.
CICA will then obtain documentation from the police or any medical practitioner that the applicant has visited in order to find out whether they have suffered injury within the meaning of the scheme and where within the tariff the applicant should be placed.
Having reviewed any documentation the CICA will either make an award of compensation or refuse the application setting out the grounds for doing so.
Where an application is refused, an internal review can be sought and thereafter appeal is to the First Tier Tribunal (social entitlement) (CICA). Any further appeal is by way of application for judicial review to the Upper Tribunal and then Court of Appeal.
An application should be made to CICA within two years of the injury complained of. However, CICA have the discretion to extend time, so if there is a good reason for the application being made late then an award of compensation can be made.
The general position is that CICA will obtain documents from the police. When determining an award, they will also send a letter to the victims’ GP, seeking records or confirmation of injury. Anything beyond this CICA considers an ‘extensive enquiry’ that they are not required to undertake. This means that where an applicant has relevant documents that they can provide to CICA, it is a good idea to do so.
What kind of evidence:
- NRM decision. A copy should be provided to CICA, they will not, as a matter of course, contact the Competent Authority
- Statements prepared for other matters, but cover the period of exploitation and injury, i.e. statements for immigration matters
- Medical legal reports prepared for other matters.
If it is not possible to help the victim to make subject access requests to obtain documents, then CICA should be asked to obtain them, with an explanation as to why the documents are relevant and why no one else can assist, or obtain the documents on the victims’ behalf. While CICA may opt not to seek the documents, having made representations means that the victim might have successful review or appeal grounds.
Reporting to the police
CICA expects applicants to have reported their treatment to the police again within two years of the injury complained of. Many victims are wary of the police and so do not make an immediate complaint, so on the face of it are not eligible for an award of compensation.
However, where the victim has been referred into the NRM, information will have been passed to the Competent Authority who has the power to investigate. CICA have recently accepted in one case that a report to the UK Human Trafficking Centre amounted to a complaint to the police, and so an award of compensation should be made. It is therefore still worth submitting an application even where there has not been a direct report to the police.
Co-operating with the police
An award under this scheme will be withheld unless the incident giving rise to the criminal injury has been reported to the police as soon as reasonably practicable.
In deciding whether this requirement is met, particular account will be taken of:
- The age and capacity of the applicant at the date of the incident
- Whether the effect of the incident on the applicant was such that it could not reasonably have been reported earlier.
The general position is that a complaint must be made to the police as soon as possible. It is important to remember that CICA’s knowledge and experience of trafficking situations is limited. So you must explain, no matter how obvious the reason appears, why an immediate report was not made. Some matters to address could include a victim’s:
- Ability to contact and report to the police.
- Fear and understanding of the actions the police might take, both in the UK and source country. Many victims are from countries where there is no trust and confidence in the police or believe that they cannot access assistance from the police because of their social or financial position.
- Physical or mental injury that impacts on their ability/willingness to report to the police.
- Ability to communicate in English.
It is worth reminding CICA that the need for recovery and reflection for victims is recognised in the Single Competent Authority Guidance. As such, what is ‘reasonably practicable’ might be different for a victim of trafficking than for a victim of another crime.
An award will be withheld unless the applicant has cooperated as far as reasonably practicable in bringing the assailant to justice.
If a victim has ceased to cooperate with the police due to the fear of their traffickers or having to attend court, then this will need to be explained to CICA, and an explanation provided of what steps they have taken, e.g. making a statement, complying with an NRM referral and interview. An award should only be withheld if, on the facts of the particular application, it could be said that the victim had not cooperated.
CICA can withhold or reduce an award if they feel that the victims conduct led to the injury being incurred. However, it is important to remember that a victim cannot consent to their own trafficking and exploitation, so in practice there should be few instances in which conduct should be an issue for a victim of trafficking
Unspent criminal convictions
Under paragraph 26 of the CICA scheme rules, an award can be withheld or reduced on the basis of unspent criminal convictions. Annex D of the scheme rules sets out the circumstances in which this will occur:
3. An award will not be made to an applicant who on the date of their application has a conviction for an offence which resulted in:
(a) A sentence excluded from rehabilitation
(b) A custodial sentence
(c) A sentence of service detention
(d) Removal from Her Majesty’s service
(e) A community order
(f) A youth rehabilitation order
(g) A sentence equivalent to a sentence under sub-paragraphs (a) to (f) imposed under the law of Northern Ireland or a member state of the European Union, or such a sentence properly imposed in a country outside the European Union.
4. An award will be withheld or reduced where, on the date of their application, the applicant has a conviction for an offence in respect of which a sentence other than a sentence specified in paragraph 3 was imposed unless there are exceptional reasons not to withhold or reduce it.
In November 2020, the Supreme Court is to hear an appeal as to the lawfulness of paragraph 26 and annex D when applied to victims of trafficking. The appeal, if successful, could result in CICA having the discretion to make an award where the victim has an unspent conviction.
In view of the appeal to the Supreme Court, where an application is refused on the basis of unspent convictions, then a letter should be sent to CICA (if the claim is at initial application or review stage) or the First tier Tribunal (if on appeal) advising that the victim wishes to make an application/seek review/appeal and ask that no action is taken until the outcome of the appeal to the Supreme Court is known.
A copy of the letter from the Supreme Court, confirming the appeal in A & B is taking place should be provided. It is then only necessary to provide detailed representations and supporting evidence if A & B is successful and the mandatory bar on awards to victims with unspent convictions is held unlawful.
Compensation is made with reference to a tariff which sets out the sum that will be received for a specific injury, e.g. mental injury 6-28 weeks = £1000, five years or more but not permanent £13,500.
Where a victim has three or more criminal injuries appearing on the tariff, they will receive the full amount for the most severe injury, 30 percent of the second highest value injury and 15 per cent of the third highest value injury.
It may be possible to obtain a loss of earnings payment if it could be said that they were in employment at the time the injury occurred e.g. someone trafficking for labour exploitation in a factory, or someone subjected to domestic servitude and had been in employment in the three years prior to the application OR has good reason why they were not in employment. It is worth making representations about the nature of trafficking and exploitation to see if discretion can be exercised to make an award in respect of a victim of trafficking.
It may also be possible to obtain a special expenses payment, if as a direct result of the injuries suffered the victim has lost earnings or earning capacity. Such payments will only be made in respect of:
- Property or equipment relied on as a physical aid, which was lost or damaged as a result of the incident
- Medical costs e.g. dental treatment
- Costs of care/adaptations to property.
Advice and assistance with making an application
CICA applications are outside of the scope of legal aid, so funding can only be obtained via an Exceptional Case Funding application. This is where legal aid is granted to ensure that the applicant’s rights under EU and Human Rights legislation is not breached by the inability to access legal advice and assistance.
The right of a victim of trafficking to obtain compensation for their treatment is enshrined in both the trafficking directive and the trafficking convention. Similarly, the right to access free legal advice and assistance and submit an application to CICA is set out in the directive. Despite this the Legal Aid Agency regularly refuse applications to conduct CICA matters, only granting funding after formal challenge is raised. ATLEU will make these applications on clients’ behalf but are limited in the number that they can take on.
Hogan Lovells law firm is also able to free provide legal advice and assistance in submitting an application to CICA. Hogan Lovells are based in London but able to assist clients nationally. A referral form will need to be completed and sent to the Pro Bono Officer at firstname.lastname@example.org
Making a CICA application
An application can be made via telephone on 0300 003 3601 but interpreters are not normally provided. If your client requires an interpreter to complete the application form then a formal request will need to be made in advance.
Alternatively, an application can be made online:
If the application is rejected and assistance is needed with a review, if the victim is London or Nottingham based then the Free Representation Unit might be able to assist: