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Report No. 154

Chapter XV


1. Increasingly the attention of criminologists, penologists and reformers of criminal justice system has been directed to victimology, control of victimisation and protection of victims of crimes1. Crimes often entail substantive harm to people and not merely symbolic harm to the social order. Consequently, the needs and rights of victims of crime should receive priority attention in the total response to crime. One recognized method of protection of victims is compensation to victims of crime. The needs of victims and their family are extensive and varied.

1. See generally Justice V.R. Krishna Iyer Human Rights-A Judges Miscellany, (1995); V.N. Rajan Victimology in India, (1995); R.I. Mawby and S. Walklate Critical Victimology (1994); Essat A Fattah (Ed.) The Plight of Crime Victims in Modern Society (1989); Andrew Carmen Crime Victims: An Introduction to Victimology, 2nd Edn., (1989); Chokkalingam (Ed.) Readings in Victimology: Towards a Victim Perspective in Criminology (1985); Emilo C Viano Victims and Society, (1976).

2. One school of thought justifies compensation in the criminal process in terms of the aims of sentencing. The Wiggery Committee in Britain has listed several views about the rationale of the concept of compensation, namely, "benefit to the victims, possible deterrent effect on the offender or on the public, the possible educative or preventive effect on public morality, the possible reformative effective on offender, its effect in depriving the offender of ill gotten gains and the view that compensation has an 'intrinsic moral value of its own1" The Law Reform Commission of Canada also was of the same view holding that compensation was consistent with the 'core values' of the community2.

1. Advisory Council on the Penal system (1970)-Reparation by the Offender (London, HMSO) (Widgery Report).

2. Law Reform Commission of Canada (1974)-Restitution and Compensation, Working Paper No. 5.

3. The proponents of state compensation justify it as: (i) another form of public assistance for the disadvantaged, and (ii) a medium of fulfilment of neglected state obligation to its citizens. The state has a humanitarian responsibility to assist crime victims. The assistance is provided because of the social conscience of the citizens and as a symbolic act of compassion.

The state is responsible to maintain law and order, ensure peace, harmony and tranquility in society, to use force to suppress crime and punish offenders, to protect people and their property. If the law and order machinery of the state, police is negligent or unable to prevent crime, the state is responsible to make preparation to the victims. In addition, state compensation is also considered as a matter of social justice to crime victims, as the state system namely, its political, economic and social institutions generate crime by poverty, discrimination, unemployment and insecurity.

4.1. Historically, the ancient Babylonian Code of Hammurabi (about 1775 BC) makes the earliest reference to governmental compensation for crime victims. The Code mandated; territorial governors to replace a robbery victim's lost property if the criminal was not captured. In the case of a murder, the governor was to pay the heirs a specific sum in silver from the treasury. In the succeeding centuries, restitution to the victim by the offender replaced compensation of the victim by the state. But that too disappeared during the middle ages. The victim of crime was left with no remedy except to sue for damages in civil court.

4.2. When movement for prison reform began in Europe during 1800s focussing attention on the plight of convicts interest in compensation surfaced again, calling attention to the plight of crime victims. Jeremy Bentham contended that crime victims should be protected by the society to which they had contributed.

4.3.1. In the Anglo-Saxon legal system it was Margery Fry, an English magistrate who advocated state compensation for crime victims in the late 1950s. Thanks to her efforts, Britain set up its programme in 1964.

4.3.2. The scheme was brought into force through the exercise of the Royal Prerogative and the payments were made ex grotto in the sense that there was no statutory authority for the scheme. The necessary funds, however, were voted by Parliament annually. Compensation was given in the shape of a lumpsum arrived at in the same manner as a civil award of damages for personal injury based on tort, subject to an upper limit on the amount attributable to loss of earnings. The scheme was administered by the Criminal in juries Compensation Board consisting of a Chairman and a panel of Queen's Counsel and solicitors.

4.3.3. With a view to giving statutory form to the scheme, the British Government, acting on the recommendations of an Inter-departmental Working Party, incorporated Part VII to the Criminal Justice Act, 1988 (sections 108 to 117 together with Schedules 6 and 7).

According to these provisions the scheme would be administered by a statutory board, appointed by the Secretary of State subject to certain exceptions and limitations, claims for compensation were to be determined and the amounts payable to be assessed on the basis of principles of tortuous liability. There would be a right of appeal from the Board's determination to the High Court or the Court of Session, as the case may be. The statutory scheme was not brought into force.

4.3.4. In the interim, consequent on a policy change reflected in a White Paper "Compensating Victims of Violent Crime: Changes to the Criminal Injuries Compensation Scheme" presented to Parliament in 1993, the existing scheme was replaced with a new tariff scheme in 1994 by a government order. The tariff scheme broke the link with common law damages. The system is based on a tariff or scale of awards under which injuries of comparable severity will be combined together for which a fixed payment is made. A lump sum award related to the severity of the injury will be paid.

4.3.5. The method of introduction of the new tariff scheme was held unlawful by the Judicial Committee of the House of Lords in Regina v. Secretary of State for the Home Department, ex parte Fire Brigades Union, 1995 2 All ER 244 Consequently, the tariff scheme was withdrawn and the former scheme reinstated. Since the House of Lords' decision related only to the method of introduction of the tariff scheme and not its merits, the government enacted the Criminal Injuries Compensation Act, 1995 which incorporates the tariff based scheme with certain improvements.

The scheme provides that the tariff would be increased in appropriate cases by payment for loss of earnings, special care and dependency. In cases where the victim has lost his life, not only will family members receive a fixed tariff payment but also in cases where they are financially dependant on the victim, they will receive payment for the loss of dependency and support (section 2).

4.3.6. The Act repealed the provisions of the Criminal Justice Act, 1988 relating to the Criminal Injury Compensation scheme (section 12).

4.3.7. The scheme will be administered by Scheme Managers. The Act provides for internal review of the case for compensation by a person other than the one who made the decision (section 4). It also provides for appeal against decision taken on review to a panel of adjudicators. The panel of adjudicators will come under the supervision of the Council on Tribunals. Apart from hearing appeals, the panel of adjudicators has an advice giving role to the Secretary of State (section 5).

5.1. The movement in Britain caught on in the United States of America. In the United States California was the first State to legislate on victim compensation in 1965. Since then many more States set up boards and courts to administer financial aid to victims. In 1984, after a sustained campaign of nearly twenty years the Congress enacted the Victims of Crime Act, 19841 to provide compensation to crime victims.

The Act established a fund described as Crime Victims Fund within the U.S. Treasury, collected from fines, penalties and forfeitures. Attorney-General administers the fund, half of which is earmarked annually for state compensation programmes; the balance goes to help pay for victim assistance programmes and services and victims of federal crimes2.

1. 42 USC 10601, section 1402.

2. K. Peak Crime Victim Reparation: Legislative Revival of the Offended Ones, Federal Probation, September, pp. 36-41 (1986) quoted in Andrew Karmen Crime Victims: An Introduction to Victimology, 307, 2nd Edn., (1989).

5.2. Most of the states in USA have victim compensation programmes administered by compensation boards. Compensation is given only to innocent victims. If the boards find evidence to prove victim's complicity in the crime, compensation is reduced in amount or disallowed entirely. A common feature is that compensation programme deals only with the most serious crimes, those which result in injury or death. Payments include medical expenses and for earnings lost because of missed work.

In case of death of victims, their families are eligible for assistance, reasonable funeral costs and sometimes a death benefit or pension for surviving dependants. All state programmes prohibit double recoveries, namely any money received from insurance policy or other government agencies is deducted from the board's financial determination.

6.1. The need for compensating victims of crime was reiterated by UN Agencies also. The General Assembly of the United Nations in its 96th plenary meeting on 29th November, 1985 made a Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, recognising that millions of people throughout the world suffer harm as a result of crime and the abuse of power and that the rights of these victims have not been adequately recognised and also that frequently their families, witnesses and other who aid them, are unjustly subjected to loss, damage or injury.

The Assembly affirmed the necessity of adopting national and international norms in order to secure universal and effective recognition of and respect for, the rights of victims of crimes and abuse of power. It was also declared that offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to victims, their families or dependants. This Declaration has been described is a kind of Magna Carta of the Rights of the Victims worldwide.1

1. See Essat A Fattah (Ed.) The Plight of Crime Victims in Modern Society, (1989).

6.2. The Declaration defines victims as "persons who individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws prescribing criminal abuse of power".

6.3. The Declaration states:

"12. When compensation is not fully available from the offender or other sources. States should endeavour to provide financial compensation to:

(a) Victims who have sustained bodily injury or impairment of physical or mental health as a result of serious crimes;

(b) The family in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimization."

6.4. "13. The establishment strengthening, and expansion of national funds for compensation to victims should be encouraged. Where appropriate other funds may also be established for the purpose, including those cases where the state of which the victim is a national is not in a position to compensate the victim for the harm."

As regards assistance to victims the Declaration states:

"14. Victims should receive the necessary material, medical, psychological and social assistance through governmental, voluntary, community based and indigenous means."

6.5. The Declaration also refers to the necessity of establishing and strengthening "judicial and administrative mechanisms to enable victims to obtain redress through formal or informal procedure that are expeditious, fair, inexpensive and accessible".

7. Article 15B of the State of the Council of Europe also highlights the ideology of victimology. The Committee of Ministers of the Council of Europe adopted a recommendation on crime victims in the framework of criminal laws and procedure in accordance with this Article. The preamble of the Statute of Council of Europe highlights the principles of victimology as laid down below:1

"Considering that the objectives of the criminal justice system have traditionally been expressed in terms which primarily concern the relationship between the state and the offender;

Considering that consequently the operation of this system has sometimes tended to add to rather than to diminish the problems of the victim;

Considering that it must be a fundamental function of criminal justice to meet the needs and to safeguard the interests of the victim;

Considering that it is also important to enhance the confidence of the victim in criminal justice and to encourage his co-operation, especially in his capacity as a witness;

Considering that, to this end, it is necessary to have more regard in the criminal justice system to the physical, psychological, material and social harm suffered by the victims and to consider that steps are desirable to satisfy his needs in these respects;

Considering that measures to this end need rot necessarily conflict with other objectives of criminal law and procedure, such as the reinforcement of social norms and the rehabilitation of offenders, but may in fact assist in their achievement and in an eventual reconciliation between the victim and the offender;

Considering that the needs and interests of the victim should be taken into account to a greater degree, throughout all stages of the criminal justice process."

The recommendations cover action at the police level and the State:

"1. Police officers should be (rained to deal with victims in a sympathetic constructive and reassuring manner;

2. The police should inform the victim about the possibilities of obtaining assistance, practical and legal advice, compensation from the offender and state compensation;

3. The victim should be able to obtain information on the outcome of the police investigation;

4. In any report of the prosecuting authorities, the police should give as clear and complete a statement as possible on the injuries and" losses suffered by the victim;

In respect of Prosecution:

5. A discretionary decision whether to prosecute the offender should not be taken without clue consideration of the question of compensation of the victim, including any serious effort made to that end by the offender;

6. The victim should be informed of the final decision concerning prosecution, unless he indicates that he does not want this information;

7. The victim should have the right to ask for review by a competent authority of a decision not to prosecute, or the right to institute private proceedings."

1. See Justice V.R. Krishana Iyer A Burgeoning Global Jurisprudence of Victimology in Human Rights-A Judge's Miscellany, 158-215, (1995).

The Code of Criminal Procedure, 1973 Back

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