Notwithstanding the obligation that the directive places on member states to have a victims’ compensation scheme in operation, the thrust of the directive is primarily to ensure that there is an EU-wide system in place to facilitate access to compensation in cases where the crime was committed in a member state other than that of the victim’s residence (that is, cross-border situations – the compensation to be paid by the competent authority of the member state on whose territory the crime was committed).
Standardised system
To facilitate this, the directive provides for a standardised system and administrative process for cooperation between national authorities for the transmission of applications for compensation in cross-border situations.
This includes the designation of assisting authorities and deciding authorities (article 3) in each member state to assist applicants in Criminal damages claiming compensation abroad, and in a way that looks to keep to a minimum the administrative formalities required.
The directive also provides for the setting up of a network of central national contact points, to act as a national point of contact in the application of the directive, but also in promoting information sharing and in aiding cooperation between assisting and deciding authorities (article 16).
Standardised forms for use by member states in the transmission of applications and decisions under the directive were subsequently introduced in 2006.
Crime across the union
As a result of these provisions, victims of a crime committed outside their member state of habitual residence should be able to turn to an authority in their own member state to submit the application and get help with practical and administrative formalities in claiming compensation from abroad.
In this way, the directive facilitates access to victims of crime across the union to compensation, regardless of the location of the crime within the union.
Since 1 June 2006, our Criminal Injuries Compensation Tribunal has been designated under the directive as the appropriate body in Ireland for the transmission and receipt of applications for compensation in cross-border cases and, in effect, acts as the Irish assisting and deciding authority, as well as being the national contact point.
To date, Ireland has been deemed to meet its international obligations arising on foot of the directive by virtue of the operation of the Criminal Injuries Compensation Scheme.
National information on each member state’s compensation schemes, details of national contact points, and online forms concerning the directive are available on the European e-Justice Portal site.
The scheme is included in the Fifth Programme of Law Reform of the Law Reform Commission, published on 5 June 2019.
Paragraph 19 of the scheme allows the tribunal to publish such information concerning the scheme and decisions of the tribunal that it considers may assist intending applicants for compensation.
The tribunal and scheme
The Criminal Injuries Compensation Tribunal administers the Criminal Injuries Compensation Scheme. It is an ex gratia scheme (that is, without a statutory framework) of the Minister for Justice, established in 1974 to compensate members of the public and prison officers for losses arising directly from injuries criminally inflicted.
The word ‘injury’ as used in the scheme is expressed to include a fatal injury. Since 1 April 1986, the scheme does not provide for compensation for pain and suffering.
The scheme is only one piece in a much wider array of State supports for victims of crime generally, and section 13 of the Victims Charter provides a comprehensive overview of the scheme (www.victimscharter.ie).
Subject to the limitations and restrictions of the scheme, compensation is assessed on the same basis as by the courts under the Civil Liability Acts. Information regarding an intended application to the scheme, including application forms, can also be found on www.justice.ie.
Balance of probabilities
The stated general intention is that the administration of the scheme and, in particular, proceedings before the tribunal should be informal, and the scheme also sets out that there is no award or reimbursement of legal costs, and that claims shall be established to the tribunal on the balance of probabilities.
There is no prohibition on legal representation. The scheme states that an applicant may be accompanied by his legal adviser or other person, but the tribunal will not pay the costs of legal representation.
Paragraph 28 of the scheme gives the tribunal discretion to pay the necessary and reasonable expenses of witnesses, and it is the practice of the tribunal to refund experts’ report fees as part of an award.
It is unlikely that a substantial future-loss-of-earnings claim, for example, could be established to the tribunal’s satisfaction or properly vouched without at least a medical and/or psychiatric report, a vocational consultant’s report, and an actuary’s report.
Applications are considered in the first instance by a single member of the tribunal. On appeal, they are considered by a panel of three members, not including the member who decided the application at first instance.
The tribunal consists of a chairman and six ordinary members appointed by the minister. Members are practising barristers or solicitors acting on a part-time basis.
Interim award
Decisions at first instance or on appeal may be interim or final pursuant to paragraph 8 of the scheme.
The attraction for applicants of an interim award when a final prognosis is delayed is that they can return to the tribunal for further compensation – for example when a final prognosis or medical or dental expense becomes known or clear – while still retaining the right of appeal to a three-member panel.
It also has the attraction that an applicant may receive compensation earlier than might otherwise apply.
Appeals are heard at the offices of the tribunal but, with the consent of the applicant, may be conducted by teleconference if necessary, for example during the COVID pandemic. An appeals panel may be chaired by an ordinary member of the tribunal.
There is no appeal to the courts from decisions of the tribunal, save that in State (Hayes) v CICT (1982), Finlay P held that the court would review a decision of the tribunal in appropriate cases, such as where the principles of constitutional justice had been violated or where the scheme had been misinterpreted.
Limitations
Paragraph 5 of the General Scheme provides that a person who has suffered criminally inflicted injury who is entitled to claim compensation otherwise than under the scheme – for example, an employee criminally injured while performing the duties of their employment – is not prohibited from also applying under the scheme, provided that no payment under the scheme should result in double compensation, and any compensation otherwise received will be taken into account and deducted from any award of the tribunal.
The tribunal may also recoup an award or part thereof where an applicant receives compensation subsequently from another source, and social protection payments are also deductible.
Paragraph 23 requires that, to qualify for compensation, the tribunal must be satisfied that an applicant has shown that the offence causing injury has been the subject of criminal proceedings or has been reported to An Garda Síochána without delay but, if not, that an applicant has made all reasonable efforts to notify the gardaí and to cooperate with them in the investigation and prosecution of the offences.
Another key limitation of the scheme is that applications should be made as soon as possible, but not later than three months from the date of the injuries, as provided by paragraph 21 of the scheme. This provision allows the tribunal to treat late applications as exceptional, if satisfied that the circumstances of a late application justify its exceptional treatment.
‘Stop the clock’
The application form asks applicants who apply outside the three-month limitation period to explain those circumstances of their late application, which they are asking the tribunal to consider as justifying its exceptional treatment. The scheme makes no provision for the tribunal to extend the time for making applications.
The practice of the tribunal has been to treat notification of an injury and intended application within the three months as sufficient to ‘stop the clock’, even where a completed application is subsequently late.
However, every effort should be made to submit a completed application within three months of injury.
Medical reports and other vouching documents may follow when available, but an incomplete application will not generally be sent forward to a tribunal member for decision at first instance, unless an applicant has requested that his application be considered on an interim basis for a stated reason.
Most applications are notified or made to the tribunal within three months of injury, and a relatively small number are refused as late. Applicants should be aware that only a tribunal member can decide to treat a late application as exceptional, so that some weeks or even months may pass between receipt of a late application and its acceptance or refusal by the tribunal.
Paragraph 10 of the scheme provides that no compensation will be payable where victim and offender shared the same household.
Paragraph 13 of the scheme prohibits compensation where an applicant has provoked an assault or otherwise contributed to his injuries, or an award may be reduced accordingly, and paragraph 14 prohibits compensation where the tribunal is satisfied that the conduct of the victim, his character, or way of life make it inappropriate that he should be compensated.
William Aylmer has recently retired from full-time private practice to focus on practice as a mediator, solicitor-expert witness and notary.