I was at a conference yesterday, which is why I didn’t blog about yesterday’s Lords judgment in A v Hoare and related appeals, in which they ruled that civil claims for damages can be made out of time in some circumstances in cases of rape and sexual assault.
But being stuck in traffic listening to Radio 5 Live, I was astonished by some of the reactions to the judgment. At one point it seemed everyone thought the ruling unfair. Jill Saward, who bravely spoke out having been raped in the 1980s, said (and I think I heard right!) she was disappointed by the ruling and that the state, not rapists, ought to compensate rape victims. Others suggested somehow it was unfair to convicted rapists who’d “paid their price” in prison.
I find these attitudes difficult to believe. The Hoare case seemed to me a paradigm of what you might call circumstantial unfairness: someone who owes society a lot, and who owes one person in particular more than any debt analogy can bear, lucks out completely, and becomes filthy rich. While it was rational within the limitation period for Mrs. A not to sue (Hoare presumably having had little money then), now it’s very rational indeed. The idea that the law should not allow her to get her hands on it, so as to redress some of the incredible unfairness of the situation, seems to me… well, isn’t that almost a definition of injustice?
Two more points. If absent fathers, not the community as a whole, should pay to raise children (and I agree they should); and if polluters, not the community as a whole, should pay for cleaning up environmental damage (I agree they should) then it seems to me obvious that criminals, not the community as a whole, should pay compensation to their victims. Anythiung else is unfair to the community. Where criminals cannot compensate, then yes, that’s where state compensation comes in.
Finally, solicitors representing various parties yesterday were at pains to stress this was not about the money. Why? Mrs. A may not want Hoare’s money (although I’m not madly sympathetic to that attitude: if not, then isn’t suing for damages an abuse of the court?) but it seems to me there’d be nothing wrong at all if she did – and it’s right she should get it. It seems to me quite wrong for anyone to imply there’s anything immoral or shameful in her wanting it from him.
The money is the principle.
But this is wildly unfair to him – he’s been left alone in the limitation period, and is entitled to gamble and profit from his gambling. If his victim had wanted to get money from him later, she could as well have sued him. Then she would have had the opportunity of randomly executing against him whenever feeling vindictive or bankrupting him if his life became too good, or if he lucked out, depriving him of his luck. But she didn’t, and that is her fault.
If it’s unfair that she can’t get compensation after the limitation period has expired, then all limitation periods are unfair.
I’m not with you, Marcin. I’m no expert on civil legal aid, no-win-no-fee arrangements and so on, but I think it’s unreasonable to expect her to have sued when he had nothing – she’d probably have lost lots of money even if she’d won her claim.
I don’t think I’m arguing that all limitation periods are unfair: had he been rich before the 6 years ran out, I wouldn’t have sympathised with her so much. But in circumstances like these I think it is unfair for a limitation rule in effect to protect a wrongdoer’s windfall.
Very dangerous territory here.
At what point does and individual who has served sentence etc etc no longer find themselves at risk of such action? Would you, for example, consider the model for ‘reparations’ as in Germany to apply?
Protections of wrongdoers ‘windfalls’? I think not. This strikes me a a licence to pursue offenders in perpetuity – and how long before it may be applied to other, different, cases?
This makes a nonsense of the concept of redemption. What might your view have been if this individual had given (say) 75% of his winnings to (e.g.) a children’s charity, but still retained a substantial sum?
“The idea that the law should not allow her to get her hands on it,“
Hi HoL
You’re jumping the gun. The ruling allows ‘A’ to jump from s11(1) Limitation Act 1980 to s33 of said act. She’s there at the moment; ie, a court is determining whether or not it would be equitable to make a claim.
I think that the way the media has reported this case has been extraordinarily misleading. The only way that I could make sense of it all was by reading the 2006 Court of Appeal ruling and then the recent 2008 ruling to which you link. No mention in the media of statutory interpretation and how the way s11 was interpreted in Stubbings v Webb [1993] and how this is no longer law.
Lastly, will ‘A’ get past the s33 LA 1980 criteria of whether or not it would be ‘equitable’ to allow her to claim? Anyone got a feel for this? Bear in mind that Bryn whatever-it-was wasn’t a cake walk.
Anyone know where the costs are going to fall; last I heard they were GBP 100 k.
Also, compare ‘A’s claim to the other parties in the case. Is she more deserving now? (At the time, without a doubt she was very deserving, but, now?).
The case of A v Hoare has merely substituted one limitation rule for another. The 6 years (with no discretion) is replaced by 3 years (with discretion). Claimants now have to persuade the courts to allow claims out of time.
English law has long had an overlap between crime and tort and it is entirely right that people like Hoare should be made to pay compensation.
I think it’s an excellent idea that criminals should be forced to reimburse their victims. Perhaps it could be written into law as an alternative to a (full) sentence.
At the lowest level, if Kid Agro scratches my car and kicks my fence down, why shouldn’t a magistrate have the right to order him to recompense me – either financially or by fixing it himself (under my close supervision, of course!). It would surely be more successful – and fun to watch, video, and then post on YouTube – than a crappy community sentence that amounts to little more than picking up litter in the park for a couple of days ( some big deterrent!)
Strikes me that, the way Kid Agro and his chums work, the reward for your standing over him while he fixed (badly) your fence and car, would be another visit in the dead of night. If not from him, from his mates.
It’s about rispeck’, innit? {sniff} That and revenge.
At least moving Kid Agro’s punishment into the realms of a semi-anonymous system fairly far removed from his victim has a chance of sparing the victim further abuse. Can you imagine the weeks of intimidation and attacks that the late Gary Newlove would have endured, to himself, family and property, had he succeeded in defending himself against Swelling and Co?
I’ve come to think there are times when some of Orwells’ “rough men standing ready to do violence on our behalf” would be a very satisfying answer for some of these people; repeated as necessary until the message gets through their skull.
Hello. I am going through my mum’s articles and came across your blog. I would just like to say thank you for a measured read. For those people who think she does not deserve compensation (which incidentally usually comes out of our taxes and so we end up paying) they have not lived to see the torment she has endured over the last 20 years. It is still going on and, in fact, I made a point of visiting her yesterday because she is not at her best due to what is still going on. That said we both understand why people are sceptical and this is something we can live with quite comfortably given what mum went through 20 years ago. Had he served the recommended tarrif he was supposed to then he would still be in prison so none of this would have happened anyway. The legal system let her down when they released him without telling her. Thanks for listening.
Well it was quite chilling to read Mrs A’s daughter’s entry. I was shocked to hear that the Attacker was allowed to be released from a sentence of life imprisonment. I believe that he does have responsibilities to compensate a victim of his own crime. If a victim continues to suffer the rest of her life, why should the actions of a criminal not have to compensate the victim for the rest of their life? On the one hand we convict such that the attacker has life imprisonment, which is I assume in some shape or form comensurate to the harm done to another’s life, and then say he has a right to enjoy his life now on release to the full extent of his winnings? We do need reasonable compensation, though I ubderstand Mrs A’s life will never be so enjoyable even if she had won £7 million.