Payment of Reparation by Third Parties – Changing the Prosecution and Sentencing Landscape

Abstract

Under the Sentencing Act 2002, a court may impose a sentence of reparation if an offender has, “through or by means of an offence of which the offender is convicted, caused a victim to suffer loss of or damage to property, emotional harm or loss or damage consequential on any emotional or physical harm or loss of, or damage to, property.” When reparation was first introduced as a sentence in its own right in the 1983 Criminal Justice Bill, it was promoted as being “consistent with both reformative and deterrent theories of the purpose of punishment”, compensating victims and holding offenders to account. Reparation is determined by reference to the loss or harm suffered by the victim and the offender’s financial means. Over time, this has developed to include the capacity for third parties (including insurers and family members) to pay. In such cases reparation is not dependent on the offender’s personal financial circumstances, the offender does not personally pay, and the victim receives compensation where they may otherwise not do so. However, it is arguable that by shifting the cost of reparation from the offender to a third party, the original policy reasons for the sentence of reparation are undermined. The purpose of this paper is to consider the impact of third party payment of reparation on prosecution decisions and sentencing.