Criminals 'should be allowed to claim damages'

Law Commission calls for rethink and warns that judges' reluctance to permit claims for injury may be breach of human rights
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The Independent Online

Britain's judges have been over enthusiastic in rejecting criminals' claims for compensation and have become too reliant on the doctrine that says crime should not pay, the body which advises ministers on proposals for reforms of the law says today.

Britain's judges have been over enthusiastic in rejecting criminals' claims for compensation and have become too reliant on the doctrine that says crime should not pay, the body which advises ministers on proposals for reforms of the law says today.

In a 130-page report, the Law Commission seeks to explode the traditional jurisprudential thinking that underpins this philosophy. The commissioners make it clear that denying criminals the chance to sue for damages could be a breach of their human rights.

They reject many of the arguments that judges have used over the years to throw out claims from criminals who have been injured while carrying out their crimes or who seek to win damages by blaming society for their offending.

"The argument," say the commissioners, "that it is justifiable to deny a civil claim as a punishment for illegal behaviour has been the subject of criticism, particularly given its arbitrary and potentially disproportionate nature."

It is a criticism with which the commissioners wholeheartedly agree.

The origins of their study are linked to a previous paper the Law Commission published on how crime affects the law of contract. It became apparent from the responses to this first consultation paper that numerous lawyers, judges and policymakers were concerned about the lack of guidance in cases where criminals were claiming damages.

"Since the publication of the consultation paper we have had our own misgivings about this omission," the commissioners say today.

A string of recent cases has helped shape their thinking from which they now conclude there needs to be new legislation to restrict judges to firm principles, which can used to bar compensation claims by criminals.

Last year, the judges in the Court of Appeal, in the most significant case on this subject to date, set out their own thinking. The case involved a hunt saboteur's claim for damages against a farmer who had turned the assault on his assailant.

Lord Justice Judge said the medieval concept of "outlawry" – where a person who lived outside the law had no rights – was no longer acceptable in modern society.

He said: "However abhorrent the crime, whatever the subsequent conviction, the protection of the law extends to the criminal who enjoys rights not only in theory but in practice."

The Law Commission's reasoning has implications for cases such as the one involving Fred Barras, who was shot dead by Tony Martin during an attempted break-in at Martin's farm in Norfolk.

The Barras family is currently preparing a compensation claim and will have a better chance of success if the law is changed to make it clear to judges that they can't throw out cases just because they are brought by criminals who are injured while going about their illegal activities.

The Law Commission says it is a matter of balancing the seriousness of the injury with the alleged negligence of the victim of the crime.

The fault of the criminal, says the report, is not an issue that should have an over- riding influence in determining the case. The report also recommends that damages should not be reduced because a claimant has committed a criminal offence.

The commissioners conclude: "The question is where the boundary is to be drawn between illegal conduct that will have an effect on the offender's rights and where it will not."

They argue that a criminal barred from recovering damages for serious injuries will "fall back on state benefits" because they can't work. "In such a case," says the report, "this would involve a transfer of the financial responsibility from the defendant to the public purse."

The commissioners' findings will now be considered by government ministers, judges, lawyers and legal reform groups. Their final report will be published after they have received these further submissions.