Civil Justice for Victims of Crime in England and Wales

Transcription

1 This booklet was published with the generous support of Warren Collins Birmingham, Bristol, Cardiff, Newcastle, Lancaster, Leeds, London, Manchester, Sheffield and Wimbledon. Telephone: Ann Olivarius London, England Telephone: For referrals to an attorney or more information, please call the National Crime Victim Bar Association at Civil Justice for Victims of Crime in England and Wales 2000 M Street, NW, Suite 480 Washington, DC victimbar@ncvc.org an affiliate of: 2013 National Center for Victims of Crime Printing 05/13, 9M CIVIL JUSTICE FOR VICTIMS OF CRIME IN ENGLAND AND WALES C1

2 Civil Justice for Victims of Crime in England and Wales The National Crime Victim Bar Association 2000 M Street, NW, Suite 480 Washington, DC (202) victimbar@ncvc.org Table of Contents I. The English Jurisdiction... 2 II. Comparing Civil and Criminal Justice in England and Wales... 2 III. State compensation from the Criminal Injuries Compensation Authority... 4 IV. Child Abuse Claims... 4 V. Why file a Civil Claim... 5 VI. Parties in a civil suit... 6 VII. Time limits... 6 VIII. Types of civil claims... 6 IX. Victim Privacy... 6 X. Issuing and serving a civil claim... 7 XI. Disclosure, witness statements and expert evidence... 7 XII. Settlement, mediation and trial... 7 XIII. Damages in civil claims... 8 XIV. Funding of civil claims in the English jurisdiction... 8 XV. About lawyers... 8 The National Crime Victim Bar Association is an affiliate of the National Center for Victims of Crime, a 501(c)(3) not-for-profit corporation. DISCLAIMER The information contained in this booklet is not provided for the purposes of rendering legal advice or authority. The National Center for Victims of Crime and the National Crime Victim Bar Association specifically disclaim any liability, loss, or risk, personal or otherwise, which is incurred as a consequence, directly or indirectly, of the use and application of any of the contents of this publication National Center for Victims of Crime C2 CIVIL JUSTICE FOR VICTIMS OF CRIME IN ENGLAND AND WALES 1

3 I. The English Jurisdiction The geography of the UK can seem confusing. The UK is made up of Great Britain and Northern Ireland. Great Britain is made up of 3 different countries: England, Wales and Scotland. England and Wales share a legal system which differs from the separate legal systems of Scotland and Northern Ireland. To add further potential confusion, some of the islands off the coast of Great Britain (such as the Channel Islands and the Isle of Man) are part of the British Isles but they also have separate legal systems. This guide solely relates to the law in the jurisdiction of England and Wales. England s history, architecture, Royal Family, sports and the arts means that there are many foreign visitors each year. In 2011 (the year before the London Olympics), some 2.8 million Americans visited the UK. Some are inevitably the victims of crime. This booklet will guide you through some of the basic legal principles. II. Comparing Civil and Criminal Justice in England and Wales While it is possible to bring private prosecutions of criminal matters in England and Wales, this is rare. Generally, decisions to prosecute crimes are made by the Crown Prosecution Service who act on evidence obtained by the police on behalf of the Crown. In civil claims, it will be the victim that controls essential decisions shaping the case. It is the victim who decides to sue, accept a settlement offer, or go to trial. The Criminal Justice System If an arrest has been made and charges have been filed, the offender may be prosecuted. The crime is considered a crime against the Crown and the victim is essentially a witness for the prosecution. The police will, where serious crime is involved, provide a family liaison officer who will offer support and guidance to the victim but the prosecutor still primarily represents the interests of the Crown, not the victim. Further support may be available from Victim Support a UK based charity which provides support for victims and witnesses of crime. For more information, contact Victim Support at or call their support line on All criminal cases start in the Magistrates Court. Less serious crimes such as motoring offenses or minor assault cases are heard fully in the Magistrates Court where there is no general entitlement to a jury. More serious crimes such as murder, rape and serious assault are dealt with in the Crown Court where they are heard by a judge and jury. It is open to the Court to impose restitution by way of a Compensation Order. The awards made in the magistrates court are currently up to 5,000 per charge for certain offenses. Victims of violent crime in the UK can also apply to the Criminal Injuries Compensation Authority ( CICA ) for compensation. Please see below for further information. The Civil Justice System The civil justice system does not attempt to determine the innocence or guilt of an offender, nor to put an offender in prison. Rather, civil courts attempt to determine whether an offender or third party is liable to compensate victims for the injuries sustained as a result of crime. Civil Claims in England and Wales are generally brought in the County Court for lower value claims or the High Court for higher value claims. There is no jury in either court and awards of punitive damages are rare. There are other differences from civil cases brought in the USA: claims in England and Wales arising out of inadequate security of shops, hotels and parking lots and for bars serving liquor to intoxicated customers are possible but are rare in this relatively under-developed area of the law. England and Wales has a split legal profession. Members of the public seeking legal advice and represention will, in most cases, initially engage a solicitor. Solicitors are responsible for investigating the case and developing a case strategy. If the matter proceeds to a full trial, the solicitor will usually instruct a barrister (who is a specialist advocate) to undertake the trial advocacy and draft some of the court documents. Solicitors remain the point of contact for clients and witnesses, and continue in their role of developing the case for trial and taking strategic decisions with the barrister. Until relatively recently, barristers were not permitted to accept instructions directly from members of the public. Nowadays, however, some barristers can take instructions directly if they have registered with the Bar Council as Public Access practitioners. 2 THE NATIONAL CRIME VICTIM BAR ASSOCIATION CIVIL JUSTICE FOR VICTIMS OF CRIME IN ENGLAND AND WALES 3

4 Burden of Proof Civil cases, and cases brought to the CICA, must be proved on the balance of probabilities, i.e., that it is more likely than not that the defendant committed the alleged wrong. This standard is far lower than the beyond reasonable doubt threshold which needs to be proved in criminal cases. Therefore, it is possible to succeed in a civil claim where either the Crown has decided not to prosecute a criminal matter, or the Defendant has been found not guilty of the offence charged. III. State compensation from the Criminal Injuries Compensation Authority Victims of crimes of violence (even if the perpetrator is not caught or charged), may apply to the CICA, a government organisation, for an award of compensation that is assessed by reference to a tariff. In addition, applicants can seek loss of earnings and other special damages, however the maximum award that can be made is 500,000. Generally, applications must be filed within two years of the alleged crime. The CICA may refuse any award if there is evidence that the applicant has a criminal record, failed to report the matter to the police, failed to co-operate with the police or is found to have provoked the attack in any way. Unlike civil claims, legal fees and costs are not recoverable in CICA claims. IV. Child abuse claims If a child is being abused, the first step is always to call the police. Even if the abuse took place many years ago and the abuser may have since passed away: calling the police is vital. The police may know of others who have been abused by that person, or if any other reports have been filed. It is probable that if the abuser is still living, the police may want to prosecute. Criminal prosecution When a report of abuse is made to the police, the police will construct a statement of what has occurred from the information provided. This is intended to be a thorough and fulsome account of the abuse and associated events, and so can take some hours to complete. It is very important that it is accurate as it may be used in court later. The police will advise a victim as to whether or not they will be able to prosecute for the crimes reported. Civil proceedings During, or following any investigation and potential trial undertaken by the police, a survivor may have the opportunity to bring a civil claim for compensation. They will generally need to go through the facts in their claim with a solicitor s firm to assess whether or not it would be possible to pursue a successful claim. Not all cases where a child has been abused will translate into a successful civil claim, but the majority of firms who work in this area will offer a free telephone consultation to discuss the potential options. There is a limited time period in which to bring a child abuse compensation claim, though in some cases this timeframe can be flexible. If a civil claim is to be pursued it is vital that the survivor calls a solicitors firm to seek guidance as quickly as possible. V. Why file a civil claim? Some of the benefits of civil actions may include: Control of the case Victims have greater control of the litigation in a civil claim than in a criminal case because they are a party to the civil case and cannot be excluded from the courtroom or negotiations. The claimant instructs their legal team throughout the process. Compensation Civil actions can provide greater compensation for victims for the financial losses incurred, such as medical expenses and loss of earnings as well as damages for the psychiatric, psychological and physical injuries. Justice and accountability Civil claims, focused on the claimant, are designed to return the victim to the position that she or he would have been in but for the act of the perpetrator. Civil actions can hold offenders directly accountable to victims. The victim gets their day in court regardless of whether there was a criminal conviction or any prosecution at all. However, statistically, most civil claims filed in the court system do not end in a trial but are settled during the process before the victim has to attend court. This can provide a more private setting in which to disclose events and seek resolution, without the pressure or public exposure involved in a full trial. 4 THE NATIONAL CRIME VICTIM BAR ASSOCIATION CIVIL JUSTICE FOR VICTIMS OF CRIME IN ENGLAND AND WALES 5

5 VI. Parties in a Civil Action in England and Wales The person bring the claim is called the claimant. The claim is brought against the defendant. The employer may be added as a defendant where the crime is committed in the course of employment. For example, a door supervisor of a nightclub who injures a visitor whilst working; that visitor may have a claim against the nightclub.. VII. Time Limits The time one has to bring a claim is determined by the Limitations Act As a general rule, civil claims for personal injury must be issued (filed) with the court within three years of the injury occurring. The time limit does not start to run until the victim reaches the age of 18 years, however, and special rules apply to those who lack mental capacity (such as claimants suffering from severe brain injury). Special rules apply also to some accidents in the air or at sea. Once proceedings have been issued with the court, they must generally be served on the Defendant within four months. VIII. Types of Civil Actions There are numerous claims under which civil actions may be brought. They include fatal accidents (wrongful death), false imprisonment (holding a victim against his or her will) assault (including sexual assault) and negligence. Damages may be reduced if a Claimant is partly to blame for his/her injuries. This is known as contributory negligence here the damages are reduced according to the apportionment of blame between the claimant and the defendant for the injuries. IX. Victim Privacy A victim will naturally be cautious about maintaining privacy. Various steps can be taken to ensure that names and personal information is kept off public records. Out of court settlements often have a confidentiality component to them, and are not generally published in the same way as cases brought in open court. Court files can be sealed to prevent public/press access. X. Filing a Civil Claim A victim begins a civil case in England and Wales by sending a Letter of Claim. This is a statement of the facts giving rise to the claim being brought, which gives the Defendant an opportunity to answer the allegations before legal proceedings are filed with the court. If a settlement cannot be achieved by these means, then the Claimant will file a claim by lodging a Claim Form (brief details of the claim), Particulars of Claim (detailed allegations and details of injuries), a Schedule of Loss (setting out the financial losses) and a medical report (which sets out details of injuries, treatment and a prognosis for recovery) with the appropriate court. These documents are served on the Defendant who will respond (within a set time limit) with an answer in the form of a document called a Defence. Once the Defence has been filed and served, the Court will allocate the case to a procedural judge (not the same person as the trial judge) who will invite the lawyers to court so that a timetable and directions for the future conduct of the action may be determined. XI. Disclosure, Witness Statements and Expert Evidence The whole of the English civil action procedure is designed to encourage parties to settle cases before they reach trial. The court will impose a cards on the table approach so that all parties know the evidence held by their opponents. For this reason, parties have to give disclosure (discovery) of all relevant documents, exchange written witness statements (which sets out what a witness will say in court) and experts reports (which set out expert opinion evidence). The Court will expect experts, such as psychiatric experts, from both sides to meet one another without the lawyers being present to explore areas of agreement. XII. Settlement, Mediation and Trial Most English civil cases are capable of settlement. This is because trials are expensive and the losing party may be liable to pay the winner s fees and costs. Once the medical evidence is finalised, the parties on each side will often meet to discuss settlement. Sometime, a mediator may be appointed to manage the negotiations. If the matter cannot be resolved, the matter will go to trial and the issue of liability and quantum will be decided by a judge. 6 THE NATIONAL CRIME VICTIM BAR ASSOCIATION CIVIL JUSTICE FOR VICTIMS OF CRIME IN ENGLAND AND WALES 7

6 XIII. Damages Damages will be awarded for the injuries sustained (known as general damages), actual past losses and future financial losses. General damages in the English jurisdiction are often much less than one may expect in the United States. The current (2013) maximum award for the most serious injuries (such as brain injury or spinal cord injury) are unlikely to exceed 275,000 (equivalent to around $412,500) but damages for financial losses are unlimited. The largest cases in the English Courts can be worth in excess of $15,000,000. Damages can be by way of lump sum and/or smaller regular payments. XIV. Funding of Civil Claims in the English Jurisdiction The whole system of funding legal claims in England changed on April 1, The loser pays rule has been modified so that theoretically, a personal injury Claimant never has to pay costs whether he/she wins or loses. However, different rules apply where a Defendant has made an offer to settle in a specific form (specified in Part 36 of the Civil Procedure Rules) which is at least as good as the final award of damages. Contingency fees in the form of Damage Based Agreements are now permissible whereby the lawyer can charge a percentage of damages but the rules on how this is calculated and what can be charged are quite restrictive and it remains to be seen whether these agreements will be taken up. Most cases, it seems, will continue to be pursued by way of a Conditional Fee Agreement, whereby the lawyer waives the fee if the claim fails, but charges the Claimant a success fee (over and above standard fees and costs recovered from the Defendant) in event of a successful claim. XV. About Lawyers Finding a Lawyer The National Center for Victims of Crime established the National Crime Victim Bar Association (NCVBA) to facilitate civil suits by crime victims. The NCVBA is based in Washington, DC and offers victims free referrals to attorneys for consultation. Victims seeking more information or attorney referrals should call the NCVBA at: THE NATIONAL CRIME VICTIM BAR ASSOCIATION