Irish Criminal Injuries Compensation Scheme

A Commentary on the Limitations of the Irish Criminal  Injuries Compensation Scheme

Liam Moloney
Managing Partner, Moloney & Company Solicitors, Naas.

Saturday 16th April 2011

Address to the Federation for Victim Assistance

This morning I shall be speaking about the Irish Criminal Injuries Compensation Scheme and the limitations contained in this scheme. I will be dealing with how this scheme operates in the first instance, how it compares to other European countries and the pressing need for reform of the scheme to deliver fairer compensation to victims of crime.

General

The Criminal Injuries Compensation Tribunal was established in 1974 by the then Government to administer a compensation scheme designed to alleviate some of the financial difficulties experienced by victims of violent crime and their families. The scheme initially awarded compensation for pain and suffering as well as for vouched out of pocket expenses such as medical expenses and loss of earnings.

Persons Who May Claim Compensation Under This Scheme

The Tribunal operates an administrative scheme that provides for the making of ex gratia payments in respect of personal injuries or death, where they were caused –

• By a crime of violence, or
• In circumstances where the victim was assisting in the prevention of a crime of  violence, or
• In the course of the saving of human life (no criminality need be present in cases of this nature).

The Tribunal also considers claims in respect of injuries received in the following circumstances –

a) Because of, or in the course of, the victim coming to the assistance of a member of An Garda Siochana:

i) Because of an unlawful attack upon the member or
ii) Because the member was attempting to prevent a crime or to take a person into custody or
iii) In the case of a riot,  a disturbance or threatened disturbance of the peace or
iv) In the course of an attempt to rescue a person in custody or
v) Because the  member was engaged in saving a human life

Applications must be made to the Tribunal not later than three months after the incident. The crime must also have been reported to the police. The Tribunal has authority to extend the time limit in circumstances where the applicant can show that the reason for the delay in submitting the application justifies exceptional treatment of the application. There is no time limit for fatal applications.

Nature and Extent of Compensation Payable Under the Scheme

The Tribunal can make awards in respect of actual or prospective losses incurred by an applicant, subject to certain qualifications but principally subject to the exception that compensation will not be payable in respect of pain and suffering for injuries sustained after the 1st April 1986.

Damages for out of pocket expenses, loss of income (including future losses), loss of opportunity and mental distress in fatal cases, as provided for in the Civil Liability Act (currently €25,344.76) are all recoverable by qualifying applicants.

Compensation will not be payable -

a) By way of exemplary, vindictive or aggravated damages, or
b) In respect of the maintenance of any child born to the victim of a sexual offence, or
c) In respect of loss or diminution of expectation of life, or
d) Where the victim has died, for the benefit of the victim’s estate, or
e) In so far as injuries sustained on or after the 1st of April 1986 are concerned in respect of pain and suffering (save for limited exceptions).

Where a victim has died otherwise than as a result of the injury the Tribunal may award compensation in respect of loss of earnings, expenses and liabilities incurred before the death but only to a dependant who would, depending on the Tribunal’s view, otherwise suffer hardship.

Limited Nature of Compensation Scheme

Victims of crime in Ireland can only recover limited compensation under the scheme. The definition of what compensation should be paid out to each victim is left to the individual member states discretion provided that such compensation is “fair and appropriate”. During 2009 the Tribunal awarded €4.2 million to crime victims and their dependants.

Victims were,   prior to 1 April1986 entitled to recover damages for pain and suffering, infringement of personal integrity, long term mental suffering, scarring or disfigurement.
General damages can be awarded in respect of incidents that occurred prior to the 1st April 1986 if certain criteria are found by the Tribunal to have been met. An example would be a recent case where substantial general damages were awarded by the Tribunal in respect of a child sex abuse case that occurred prior to 1986 where the applicant was able to satisfy the Tribunal that they had been suffering from a disability as defined by the statute of limitations which precluded them from lodging a claim before 1986.

European Law

The Council of Europe addressed the issue of compensation for crime victims from public funds in the early 1970’s which eventually led to the establishment of the European Convention on the Compensation of Victims of Violent Crimes in 1983. The Convention has been signed up to by 12 member states of the EC and its aim was to introduce National schemes for compensation for crime victims and to establish minimum provisions for such schemes.

The Convention enshrined the principle of non-discrimination and the right to a fair hearing for crime victims. In a ruling from the European Court of Human Rights regarding state compensation to crime victims, delivered in May 1997, the European Court stated that Article 6(1) of the 1950 European Convention for the Protection of Human Rights which stated “in the determination of his civil rights…everyone is entitled to a fair and public hearing…by an independent and impartial Tribunal established by law” should be applied by member states in delivering compensation.

Tribunal decisions are generally made, in the first instance, by one member of the Tribunal sitting alone and in private. There is no facility for public hearings. While a dissatisfied claimant can appeal a decision of a member sitting alone to an oral hearing of three members this can hardly be considered to be impartial given the fact that one Tribunal member is sitting in judgement on another.  It is important that justice would be seen to be done and there is no justification for these hearings to continue to be held in private. There is no appeal from a final decision of the Tribunal and this clearly does not sit well with Article 6(1).

Immaterial Damages

Apart from material losses such as medical expenses and loss of earnings a crime often causes consequences that cannot be restored and which are difficult to value in terms of money. These are described as pain and suffering (physical and mental) infringement of personal integrity, long term mental suffering and pain. These affects of the crime cannot be restored in the sense of putting the victim in the same position as if the crime had not occurred, but they can be considered as immaterial damages that can be compensated.

Consequently, certain member states have included immaterial damages in their compensation schemes, as a separate item from what may be compensated as immaterial damage for permanent disabilities. It aims at compensating the victim for the suffering (both physical and mental) that the victim experiences because of their injuries and/or for the violation of the personal integrity that (certain) crimes constitute.

Pain and suffering is a concept that is found in several member states. Compensation for pain and suffering is awarded in Belgium, Denmark, Finland, France, United Kingdom, Luxembourg and Sweden. Of these countries, Denmark, Belgium, Finland, France and Sweden offer additional compensation for moral damages or for the violation of one’s personal integrity.

Concerning compensation to relatives of deceased victims, Belgium, Finland, France, United Kingdom, Ireland, Luxembourg and Sweden offer such compensation. It is often referred to as compensation for bereavement having suffering grief or moral damages.

In the United Kingdom awards of up to £300,000 can be made for pain and suffering and other immaterial damages. Regretfully, the Irish Criminal Scheme does not provide damages for pain and suffering. This is a serious limitation on the operation of this scheme and is causing grave injustice to many victims for crime. The function of state compensation schemes is often seen as providing a safety net for victims but in many cases the failure by the State to provide proper compensation is causing grave injustice.

At the very least a general principle should be considered for example that compensation should cover pain and suffering and other immaterial damages. An option would be to reform the scheme and allow the Injuries Board to assess damages in the same way as they assess general damages for injuries sustained in road traffic accidents, accidents at work and public liability accidents. In many cases a victim may recover physically fairly quickly following the injuries he or she has sustained but the psychological affects of the crime may be long term and can cause severe suffering.

THE 2004 EC Directive

The Council adopted a further Directive in 2004 relating to compensation for crime victims. The aim of the 2004 directive is that all member states shall ensure that their national rules provide for the existence of a scheme on compensation to victims of violence and intentional crimes committed in their respective territories, which guarantees fair and appropriate compensation to victims. However the definition as to what compensation should be paid out to each victim are left to member states discretion provided that it is fair and appropriate.

The failure by the Irish state to provide for damages for pain and suffering is not, in my opinion, fair and appropriate compensation. The State has not embraced the aim of the directive. It has forced many victims to become involved in a “barter” situation in the context of criminal proceedings against offenders. In many cases Judges are stepping into the shoes of the State in trying to obtain greater compensation for victims.

While no criticism should be made of the Judiciary for trying to assist victims surely a properly funded compensation scheme would avoid the necessity for Judges to become involved in an ad hoc approach to measuring compensation or trying to force compensation from offenders?  This often leads the public to view this type of conduct as offenders simply “buying justice”. This compensation is then taken into account by the Tribunal in awarding damages.

Supreme Court Awards 80K to Dunnes Shopper who came to aid of Security Guard – Law of Tort recognises need to compensate public for injury when acting in the common good.

In a recent civil case (O’Neill v Dunne Stores Ltd) the Supreme Court upheld a High Court award of €80,000 damages to an innocent bystander who came to the aid of a security guard who was being assaulted by a customer in their Thurles store. The injured victim sued Dunnes Stores for damages for injuries sustained by him when he was assaulted during the incident.  Dunnes contested liability for the man’s injuries.

The Supreme Court stated in their judgement “it would indeed be regrettable if the message delivered by the law of tort to a member of the public faced with a cry for help is that is if they intervene they do so at their own risk and that in all the circumstances it would be wiser to pass by on the other side”. This shows a more liberal interpretation of the laws of negligence where a Judge adopted a common sense approach and to send out a policy signal that the Higher Courts would protect innocent victims who come to the aid of persons in need.

Surely innocent victims of violent crimes are entitled to the same protections?

Conclusions

The Criminal Injuries Compensation Scheme is not delivering fair and appropriate compensation to crime victims. EU law says that crime victims in the European Union should be entitled to fair and appropriate compensation for the injuries they have suffered regardless of where in the EC the crime was committed.

Failure by the State to amend the Criminal Injuries Scheme to allow for the payment of compensation for pain and suffering is doing an injustice to many victims. In many cases victims have absolutely no where to go to obtain proper compensation for injuries sustained.  It is also too restrictive in terms of who can receive compensation.

It remains to be seen whether the Irish Government will really take on board the rights of victims to proper compensation and immediately amend this flawed piece of legislation or will the Irish Courts or indeed the European Courts eventually have to step in to force their hand.