The UK government launched a consultation on revising the scheme’s unspent convictions eligibility rule in the wake of a High Court finding that it had not met a legitimate expectation to consult on the reform of the rule.

The exclusion was introduced in 2012 and makes an applicant with an unspent criminal conviction that results in a custodial or community sentence completely ineligible for an award from the Criminal Injuries Compensation Authority.

This requirement has been justified by the government on the basis of “public sentiment” that criminals should not receive compensation. Yet in two recent Inner House cases, the government failed to indicate how such sentiment had been assessed.

Furthermore, human rights lawyers have said individual circumstances must be taken into account. For example, one victim suffering from profound mental health disorders, caused by severe sexual abuse as a child, struggled with social situations and volatility, leading her to commit a comparatively minor offence. She received a community order as a consequence, and this made her ineligible for compensation.

In another case, a man who received a community order after throwing an egg at someone, submitted a compensation application for the HIV infection that he had sustained as a consequence of a sexual attack. He was not eligible for compensation.

Paul Brown, principal solicitor at LSA, said: “I am deeply concerned about the unfairness caused by the way unspent convictions are treated by the 2012 Criminal Injuries Compensation Scheme. Many people with very severe injuries caused by crimes of violence end up with nothing, because of minor unspent convictions. In some cases there is no discretion and there is nothing that can be done about it. This was introduced by the 2012 Scheme and, to be frank, without any debate or justification.

“The worst cases are people suffering severe brain injuries, and commit minor offences as a result of their injury. The arrangements before 2012 have built in discretion so the individual circumstances could be taken into account. We are calling on the UK government to return to the approach taken before then, and on the Scottish government to state their position, as this is a cross border issue.”

LSA has submitted a response to the consultation and supports the removal of any automatic exclusion of victims who have unspent convictions.