Nadine Fitzpatrick – LL.B. (Law & Business) – Trinity College Dublin
In 2020, the Law Reform Commission of Ireland began work on a project regarding compensation awards for victims of crime.[1] Concerns were raised during the public consultation process regarding the interplay between the Criminal Injuries Compensation Scheme and section 6 of the Criminal Justice Act 1993. Further concerns were raised around the operation of the Criminal Injuries Compensation Scheme in the context of sexual crimes. In April 2021, Minister for Justice Helen McEntee, T.D., announced reforms to the Scheme which incorporate recommendations from the Department of Justice and the Department of Public Expenditure and Reform. The Minister stated that the revised Scheme represented a first step in terms of the reforms needed and announced further reforms to be brought by Government by the end of 2021.[2] The amended Scheme aims to serve vulnerable victims of crime in a more effective manner. This blog post will examine the adequacy of the amendments to the Scheme and discuss remaining gaps in the proposed legislation.
Background to the Scheme
The Criminal Injuries Compensation Scheme was established on a non-statutory, ex gratia basis in 1974 and later incorporated into the Criminal Justice Act 1988. The Scheme allows victims of crime and their dependents to apply for reimbursements for losses incurred following a violent crime. Applicants to the Scheme must either have sustained a personal injury directly linked to a violent crime, be responsible for the maintenance of a victim who has suffered pecuniary loss or be a dependent of a fatally injured victim. Compensation claims may also be considered from applicants who received an injury while aiding a member of An Garda Síochána, attempted to prevent a crime or the escape of a criminal in a public place, or attempted to save a life. Compensation is awarded where appropriate for out-of-pocket expenses, including past and future loss of earnings. In a welcome move, the 2021 reforms placed the Scheme on a statutory footing for the first time.
The Tribunal
The Scheme is the mechanism by which Ireland gives effect to EU Directive 2004/80/EC on compensation to victims of crime and is administered by the Criminal Injuries Compensation Tribunal[3]. It is required that the causal incident was reported to the guards within three months, and that applications are made within three years. The revised Scheme provides that the Tribunal may accept applications on an exceptional basis for up to two years following the incident, mirroring the statute of limitations in personal injury claims.[4] Furthermore, in line with the provisions in the Victims of Crime Act 2017, crimes may now be reported to the Garda Ombudsman in cases involving an alleged crime by a Garda. While this is positive in allowing for wider access to justice, it is submitted that GSOC may seem unapproachable to a victim of this type of crime.
It is argued that the Tribunal wields an excessive amount of power over the distribution of compensation payments. It holds the entire responsibility for deciding whether compensation is payable and the amount. Furthermore, the Scheme does not allow for an appeal or review of the final decision of the Tribunal. In determining whether any act is a crime, the Tribunal unfortunately does not take account of any legal immunity which the perpetrator of the injury may have by reason of mental health, youth or otherwise. The amended Scheme doubled the Tribunal numbers from seven to fourteen in order to aid the efficiency of the Scheme. However, the Minister indicated that the future management of the Scheme is under review and questioned whether one of the expert State bodies in personal injuries should be in charge of it. It is agreed that the Scheme should be administered by an independent body including experts who can adequately assess personal injuries and in turn, the adequacy of compensation payments. At the very least the Tribunal should include non-legal consultant members who specialise in personal injuries.
Section 6 Criminal Justice Act 1993
Section 6 of the Criminal Justice Act allows a court to order an offender to pay compensation to the victim in respect of any personal injuries or loss. Because the Scheme does not allow for duplicate payments, the Tribunal is mandated to reduce a compensation award or order repayment when compensation is subsequently received from another source. It is submitted that this method is unsatisfactory. Victims of violent crimes may be apprehensive about accepting monetary compensation from their attacker for various reasons, including fear of non-payment or delayed payment. In 2019 a case arose out of a failure to pay damages to the families of the 1998 Omagh bombing by Michael McKevitt, who had no assets and was subsequently declared bankrupt.[5] This case demonstrates the burden placed on victims and their families in chasing compensatory payments. Furthermore, it is submitted that the trauma of the original violent crime is exacerbated by Section 6 essentially keeping the victim locked in pecuniary dealings with the perpetrator for an extended amount of time. It is submitted that in many cases court orders under Section 6 are not fit for purpose and instead the Tribunal should distribute payment on behalf of the perpetrator. Thereafter, the Tribunal should be wholly responsible for recouping the funds from the perpetrator on the victim’s behalf. This would ensure that victims are protected from undue stress and their mental health is better safeguarded.
The Scheme does not cover compensation for general damages such as pain and suffering. Neither does it cover stolen or damaged property. The revised Scheme includes a ‘Solatium’ payment in respect of mental distress, which may be awarded to dependants of fatally injured victims of crime.[6] While this is a welcome advancement, non-fatally injured victims remain disadvantaged by the Scheme. In the interest of fairness, it is submitted that the Scheme should include a case-by-case provision for general damages to include stolen property.
Legal Aid for Oral Hearings
Applicants to the Scheme are required to attend an in camera oral hearing. Legal representation is not required but if it is sought, no legal aid is available. The private nature of the oral hearing contributes to the necessity of an amendment to the Scheme which would allow for the possibility of free legal representation. Research has shown that victims of violent crime are more likely to suffer from post-traumatic stress disorder (PTSD).[7] With this in mind, it is ill-considered for the Scheme not to recognise that the availability of legal aid may be constructive for certain applicants in a distressed state. The Free Legal Advice Centre (FLAC) has highlighted how legal aid is an important tool for vulnerable and disadvantaged individuals.[8] Furthermore, it is against the principles of social justice that applicants who believe they would benefit from legal representation are excluded from doing so due to their economic condition. Notwithstanding the non-essential nature of legal representation in oral hearings, it is wholly unjust in a fair and inclusive society that every applicant to the Scheme must completely waive their right to legal aid.
‘Way of Life’ Criteria
Under Article 14, no compensation is payable where the conduct of the victim, their character, or way of life would make the grant of an award inappropriate. In 2016, judicial review proceedings were taken by Paul Doyle, who had prior convictions and links to gangland crime.[9] Refusing relief, Murphy J concluded that no constitutional right existed to compensation for injuries criminally inflicted, and what amounted to ‘fair and appropriate compensation’ was a policy matter. The main grounds of the Appeal were the absence of a provision for legal aid in the Scheme, the ‘way of life’ provision, the absence of a method for access to previous decisions of the Tribunal, and the exclusion of general damages for pain and suffering.[10] The Court ruled that the recent decision of the Court of Justice of the EU in the B.V. case had ramifications for the Appeal.[11] Regarding the inability to access previous ‘way of life’ criteria applications, the Court ruled that the Tribunal was in breach of the constitutional right to fair procedures. The CJEU ruling that a right existed to access fair and appropriate compensation under the Council Directive 2004/40/EC exposed complications of the Scheme and led to the 2021 amendments. Decisions of the Tribunal, redacted to remove personal data, will be made publicly available going forward in order to give effect to the court ruling in the Doyle case.
Cohabitation Criteria
Previously, under Article 10, no compensation was awarded if applicants were cohabiting with the offender as part of the same household when the injury was suffered. This limitation was flagged by the LRC as being likely to exclude victims of domestic violence. The Vonkova v CICT case involved circumstances where a homicide victim’s mother had been refused compensation by the Tribunal.[12] The grounds for judicial review were that the refusal was based on a misconstruction of Article 10, insofar as the perpetrator and the victim were not members of a household in essence. The Court recognised that what was fundamentally being called into question was the compatibility of the Scheme with the State’s obligations for a right to effective remedy under EU law and Article 47 of the Charter of Fundamental Rights.[13] The Court ruled that the victim’s mother was entitled to amend her claim to advance an alternative ground of challenge. Allen J noted that there was a lot to be said from a public policy perspective for allowing the Scheme to be challenged on all grounds.[14] The revised Scheme thereafter removed Article 10 “in the interests of fairness”. While a welcome advancement, victims of domestic violence are still marginalised by Article 13 of the Scheme, which states that no compensation is payable where the Tribunal is satisfied that the victim was responsible for the violent act, by provocation or otherwise. As provocation is a highly contentious defence in general, let alone in the context of domestic violence, it is argued that the revised Scheme should reflect this.
Conclusion
Further amendments to the revised Scheme should include a provision to allow for legal aid in certain circumstances and a provision for general damages. Now that the Scheme will be placed on a statutory footing, it is vital that general damages are adequately addressed. Regarding sexual offences, Article 13 should be revised to ensure an effective remedy under EU law and the Charter of Fundamental Rights to victims of domestic violence. An extraordinary English decision in August 2021 should be heeded by the Minister and the courts in Ireland. In Kim Mitchell v Secretary for State for Justice[15], the claimant succeeded in her legitimate expectation claim against the justice minister that she would carry out a lawful consultation on potential changes to the Criminal Injuries Compensation Scheme. Minister McEntee has promised that further reforms will be informed by the work undertaken by the LRC and that the victim experience in accessing compensation will be of paramount importance. It is hoped that the positive revisions to the Scheme continue in the new year, to ensure that all victims of violent crime may begin the process of rebuilding their lives.
[1] 5th Programme of Law Reform, Project 7. [2] ‘Minister McEntee announces reforms to the Criminal Injuries Compensation Scheme’ (Department of Justice, 20 April 2021) <http://www.justice.ie/en/JELR/Pages/PR21000092> accessed 30 August 2021. [3] Criminal Injuries Compensation Scheme, para 17. [4] See n 2. [5] Allison Morris, ‘Real IRA founder Michael McKevitt critically ill in hospital’ (The Irish News, 6 Nov 2019) < https://www.irishnews.com/news/republicofirelandnews/2019/11/06/news/real-ira-founder-michael-mckevitt-critically-ill-in-hospital-1757647/> accessed 7 Jan 2021. [6] Civil Liberties Act 1961, s. 49. [7] L. F. Lowenstein, ‘Victims of Violent Crime Leading to Post-Traumatic Stress Disorders’ (2000) The Police Journal 73(3) 256-262. [8] Free Legal Advice Center, Accessing Justice in Hard Times (2016). [9] Paul Doyle v CICS [2016] 214 JR. [10] Kelly & Doyle v CIT & ors [2020] IECA 342. [11] Case C-129/19 Presidenza del Consiglio dei Ministri v B.V. [2020] CJEU. [12] [2019] IEHC 13. [13] ibid, at 26 (Allen J). [14] ibid. [15] [2021] EWHC 2248.
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