In Budget 2023, the Government announced an additional €2 million in funding for the Criminal Injuries Compensationtribunal. This additional allocation is to be welcomed, as it will contribute to more efficient decision-making at the tribunal, along with improving victims’ experiences of the application process.
The Government’s announcement is in keeping with their recent commitment to improving service provision for victims of crime at the tribunal. In 2021, the number of decision-makers at the tribunal doubled from seven to 14, allowing decisions to be taken in a more efficient manner.
Furthermore, the text of written decisions has generally become more detailed, with the reasons for refusals or reductions in awards being set out in a clearer manner in recent years. Despite these much needed improvements, the two recent High Court judgments highlight the need for further and more comprehensive reform.
Bowes and Brophy
Bowes and Brophy concerned two applicants to the tribunal who were subjected to separate violent assaults and suffered serious injuries as a result. In these proceedings, Bowes and Brophy challenged the legality of a change made to the scheme, which restricted the tribunal’s discretion to consider applications submitted after the three-month time limitation from the commission of the violent offence giving rise to the injuries.
Under a rule introduced in 2021, the tribunal’s discretion to consider late applications was limited to a two-year timeframe from the commission of the offence. Up until this point, the tribunal had had an unlimited discretion to admit such applications where ‘exceptional treatment’ was deemed appropriate.
The introduction of this change removed the possibility of Bowes submitting an application and it being admitted by the tribunal under their ‘exceptional treatment’ discretion. Indeed, Bowes did submit an application, but the tribunal declined to consider it as it was received outside the new two-year timeframe.
The tribunal also refused Brophy’s application for the same reason. While he had five days to submit his application within the two-year timeframe once the change was introduced in 2021, Holland J held that this fact did not materially make a difference for the purposes of the proceedings.
EU law breached?
Both Bowes and Brophy challenged the tribunal’s refusal to consider their applications as a result of the new two-year timeframe. They challenged the refusals on the basis that the scheme, in implementing the EU law right to compensation under Directive 2004/80/EC, breached the EU-law principles of effectiveness and equivalence by putting in place the two-year timeframe in a retrospective manner and without an appropriate transition period.
On the principle of effectiveness, based on a number of Court of Justice authorities, Holland J held that, when new legal rules are introduced that, in this instance, shorten the relevant limitation period, the relevant applicants must be given an “opportunity, via transitional provisions, to adapt to new legal circumstances” in order for their EU right to compensation to be practically realised.
As the change made to the scheme in 2021 did not allow Bowes and Brophy to do so, Holland J concluded that the new two-year timeframe breached the principle of effectiveness.
In relation to the principle of equivalence, Bowes and Brophy argued that, as the two-year timeframe in respect of the scheme provides applicants with a significantly reduced limitation period in comparison with the six-year timeframe available in respect of tort claims for assault and battery, the principle of equivalence was breached, as similar domestic actions had “less favourable” procedural rules.
This argument failed to persuade the High Court, and Holland J dismissed this element of the proceedings, since claims for criminal-injuries compensation at the tribunal and claims in respect of tort and battery in the courts are significantly different types of action in both purpose and form, as confirmed by the Court of Justice.
Correcting the position
Separately, Holland J also commented that the State was wrong to wholly characterise the holding by the Court of Justice that member states of the EU must ensure the financial viability of national compensation schemes as meaning that the financial burden on the State must be limited by virtue of strict procedural rules, such as the two-year timeframe.
Instead, Holland J corrected the position and stated that the holding of the Court of Justice in relation to the financial viability of schemes meant also that member states must properly fund the schemes to ensure that “fair and appropriate compensation” for victims of violent crime is available.
Holland J further stated that, despite his finding in relation to the principle of effectiveness, “relatively short time limits” are permissible in the context of the scheme. While Holland J did not offer guidance on the meaning of the term ‘relatively short time limits’, he did state that the ‘exceptional treatment’ discretion under the scheme’s time limit must be “interpreted in a broad, liberal and generous manner responsive to the particular circumstances of the victim of crime in each case”.
Holland J’s comments are interesting in this respect, as it is clear that such a standard is in place concerning some tribunal decisions, but is not in place in respect of others.
Ignorance of the scheme
Finally, Holland J stated that, while “ignorance of the scheme will not automatically constitute exceptional circumstances, it cannot be excluded that it may do, depending on the circumstances”. This is despite the fact that it is clear that ignorance of the scheme has regularly been said not to be an excuse amounting to applications warranting ‘exceptional treatment’.
This is particularly problematic in light of the fact that victims of violent crime have a right to information in relation to how to apply for compensation from the State under both Directive 2004/80/EC and the Victims’ Rights Directive 2012, along with the Criminal Justice (Victims of Crime) Act 2017.
Holland J’s findings and comments highlight a number of problems present at the tribunal, primarily the presence of an unfair two-year time limit. Additionally, from reading the judgment, it is reasonable to conclude that such a restrictive time limit was put in place with the express purpose of excluding vast numbers of potential claimants who otherwise would have benefited from compensation under the scheme.
This conclusion calls into question the State’s commitment to supporting victims in the aftermath of violent crime.
Earls and ‘crime of violence’
Similar conclusions can be drawn in the context of separate judicial review proceedings in Earls v Criminal Injuries Compensation Tribunal. This case concerned the scope of the tribunal’s definition of a crime of violence under the scheme.
Here, the relevant incident occurred in 1995, where a firework (set off down a public road by an 11-year-old boy) exploded in the face of a 13-year-old girl, causing significant injuries, including sight loss.
The tribunal application was submitted in 1996, but the first-instance decision was not made until 2015, with the appeal decision taken in 2021. The delay in this case was caused partly by a decision taken by the girl’s legal advisers not to progress the application until she was an adult, and also because the tribunal refused to make a preliminary decision on whether the incident itself constituted a crime of violence for the purposes of the scheme.
At both first instance and appeal, the tribunal held that the incident did not constitute a crime of violence under section 20 of the Offences Against the Person Act 1861 and sections 79 and 80 of the Explosives Act 1875.
The crux of the applicant’s argument in these proceedings was that the tribunal incorrectly applied a subjective – not objective – test in respect of section 79, which provided that the throwing of a firework in a public place was an offence if “reasonably calculated to endanger” the public’s safety and “was committed wilfully” by the accused person.
Subjective versus objective
As a subjective test was applied, the applicant contended that the tribunal’s decision was too focused on the actions of the perpetrator, which did not suggest, in and of itself, that the requirements of the offence under section 79 was met.
The applicant further contended that, if an objective test were applied, the statements of several witnesses present at the time of the incident would have been taken into account, leading to the incident clearly coming within the scope of section 79 and, therefore, being within the definition of a ‘crime of violence’.
These witness statements describe that the perpetrator saw the applicant when the firework was launched and therefore, under an objective standard, the launching of the firework could reasonably be calculated to put the public in danger.
Overall, Ferriter J agreed with the arguments of the applicant and held that the tribunal erred in applying a subjective test. Furthermore, Ferriter J stated that the six-year delay as between the first-instance decision and the appeal decision was a breach of the tribunal’s obligation, under the principles of constitutional justice and article 6 of the European Convention on Human Rights, to make decisions with ‘reasonable expedition’.
Unfortunately, Ferriter J did not make any declarations in this regard, but warned that the courts in future proceedings would have very good grounds to do so if such delays continued.
Decision-maker guidance
In stating that an objective test would lead the tribunal to properly include the other witness statements in their determination, Ferriter J held that, if a decision-maker is relying on particular material in support of their decision in a given case, this must be expressly set out in the decision itself – it cannot be presumed that the decision-maker is doing so.
Ferriter J’s comments point to a significant issue at the tribunal in that, in the past, the text of tribunal decisions did not always set out in sufficient detail the reasons for decisions in particular cases.
As stated above, improvements have been made in this regard and, indeed, Earls demonstrates the benefit of the tribunal now providing such comprehensive reasons – that is, so that the courts can examine the tribunal’s reasoning and determine whether such reasons for refusal are correct or not in law.
Overall, however, while Earls demonstrates improvements in the decision-making process, it also reveals the strictness of the procedural and eligibility rules present in the scheme.
If launching a firework and causing severe injuries to a person does not constitute a crime of violence, is it to be presumed that modern crimes that cause injury to persons, but that do not strictly meet a predefined and limited definition of violence – such as online grooming of children or cyberstalking – are excluded from the scope of the scheme?
The voice of victims
It is clear, therefore, that more comprehensive reform of the scheme is needed. Last year, the Law Reform Commission published their consultation paper on the issue and made very welcome preliminary recommendations on how the scheme could be improved.
As part of this reform process, it is vital that the voices of victims and those who have experienced the tribunal process are listened to in terms of how best to improve the scheme. Furthermore, it is critically important that victim-support workers and legal professionals with experience of the tribunal process set out their experiences of assisting victims in making applications under the scheme.
If such voices can be heard, there is hope that future reform measures taken by Government will result in better experiences and outcomes for all victims of violent crime.
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