The other option, which is clear to me from the statement of the judge in question, is that if it doesn't get decided in a court now(and English law is all based on precedent, remember), it will have to get decided at some point in the future.

Why not use this case to set the case law? I'll reserve judgement on the assness of the law until I see the outcome. Because it could just as easily be "No, you do not get damages because you were damaged while you were committing a crime."

Let's not cry foul about the result until we've actually heard it?