Our client's 10 year old daughter was abused by her step-grandfather. The paedophile pled guilty to attempted rape and other charges and was sentenced to 8 years in prison.
The principal concern of our clients in these awful circumstances is that the perpetrator is prosecuted and convicted. Further down their list of priorities is their decision to claim compensation. Historically, this has been limited to an application to the Criminal Injuries Compensation Authority (set up by the State) but, in recent time, we have found that clients prefer to take a different route.
They cannot understand why the tax-payer should have to foot the bill when the abuser, in financial terms, gets off scot-free. Our client, therefore, has instructed us to proceed with a claim for damages against his daughter's step-grandfather and go all the way to sequestration if necessary.
Another client has recently adopted a similar approach. Her husband murdered two of her children and is currently serving an 18 year prison sentence. She instructed us to raise an action for damages against him. Her husband initially tried to defend it but obviously had no defence. Decree was granted against him. Our client wanted the perpetrator, not the public, to suffer financially.
Some clients decide to proceed through the Civil Courts when the Crown, for whatever reason, have failed to secure a conviction against the accused and the client feel lets down by the criminal justice system. This notion is not, of course, peculiar to our jurisdiction as observers of the OJ Simpson case in the USA will recall.
We have at least half a dozen other clients who are proceeding along similar lines. We have advised them that an action for damages can be more beneficial than a CICA claim. There are often more heads of claim (services, pension loss, wage loss etc) for which they can receive compensation. Also, the Court is likely to award higher sums for the death of a loved one, in a fatal case, than would be received from the CICA.
An action for damages is, of course, only worthwhile if the Defender has assets. Indeed, the Scottish Legal Aid Board will not grant legal aid to a victim of crime to pursue an action for damages unless this can be proved.
Although there is rarely any point in suing a man of straw, some clients will pay for a Court action just to spoil the Defender's breakfast by having a summons served upon him, even though the resultant Decree is worthless. They also live in hope that he might acquire assets in the future which could be seized. Some are wise enough to raise the action within three years of the crime to avoid any time bar problems and in the hope that they might be able to enforce a Decree at some later date. This can be important. In the English case of Hoare, a rapist was sentenced to life imprisonment. He later won the lottery. The victim sued him but well outside the three year time-limit. The rapist argued that the claim was time-barred. The victim was eventually successful but the Judge indicated that this case was "wholly exceptional" and in Scotland (where time-bar is viewed less sympathetically) the Court may have come to a different decision.
If a client has a claim for Criminal Injuries Compensation, we will ask them to let us know if they would like to consider an action for damages as well. If successful, they would have to repay the compensation they received from the CICA but there would normally be a net financial gain, not to mention a sense of moral victory.
If you have suffered mental or physical injury as the result of a crime and would like advice about whether you can claim compensation, please contact Cameron Fyfe.