Compensation as a Sentence

In one line

A criminal court must apply its mind in every case to compensating the victim, may order compensation out of a fine or independently of any fine, and where the offender cannot pay or is never traced, a State funded scheme administered by the legal services authorities takes over.

Section 395: compensation ordered by the court

Where a fine is imposed, sub-section (1). When a court imposes a sentence of fine, or a sentence of which fine forms a part, including a sentence of death, it may when passing judgment order the whole or any part of the fine recovered to be applied

• (a) in defraying the expenses properly incurred in the prosecution;
• (b) in paying compensation for any loss or injury caused by the offence, where the compensation is in the court's opinion recoverable by that person in a Civil Court;
• (c) where a person is convicted of causing the death of another, or of abetting it, in paying compensation to those entitled to recover damages under the Fatal Accidents Act 1855 for the loss resulting to them from the death;
• (d) where a person is convicted of an offence including theft, criminal misappropriation, criminal breach of trust or cheating, or of dishonestly receiving or retaining or assisting in the disposal of stolen property, in compensating a bona fide purchaser of that property for its loss where the property is restored to the person entitled to it.

Where no fine is imposed, sub-section (3). When a court imposes a sentence of which fine does not form a part, it may when passing judgment order the accused to pay, by way of compensation, such amount as it specifies to the person who has suffered any loss or injury by reason of the act for which he has been sentenced.

Sub-section (3) is the important one for this topic, because it detaches compensation from the fine altogether. A person sentenced only to imprisonment may still be ordered to compensate his victim.

Timing, sub-section (2). Where the case is subject to appeal, no payment is made before the appeal period has elapsed, or if an appeal is presented, before it is decided.

Who may order it, sub-section (4). An Appellate Court, and the High Court or Court of Session in revision, as well as the trial court.

And the civil suit, sub-section (5). In any subsequent civil suit about the same matter, the court shall take into account any sum paid or recovered as compensation under this section. So the criminal order is not a windfall; it is set off.

Section 396: the victim compensation scheme

This is the provision that answers the case where the offender has nothing, or is never found.