Violent crime victims are short-changed, says LRC

In a just-published consultation paper, the Law Reform Commission (LRC) has asked whether Ireland is meeting its international and EU law obligations with regard to compensation for pain and suffering under a State scheme for victims of violent crime.

The current scheme pays special damages, such as for medical bills and lost wages, but only awards general damages in cases of fatal injury.

The LRC has questioned this arrangement in the light of Ireland’s international obligations on victim compensation, and is seeking views on its consultation paper by 19 April, before publishing a final report and reform recommendations.

The body believes a “compelling argument” can be made for a full redesign of the existing scheme.

The paper asks whether the requirement for “fair and appropriate” compensation includes an obligation to provide general damages for all victims, in accordance with the CJEU interpretation of compensation for material and non-material losses.

Clear duty

The commission states that there is a clear duty under EU law to protect victims from secondary victimisation, such as burdensome administrative formalities.

This duty is contained in both the Victims’ Directive and in the EU strategy on victims’ rights.

Clarity in the design and operation of Ireland’s State-funded victim compensation system as to what categories of victim are eligible to receive compensation is also needed, the LRC believes. Predictability and consistency are fundamental aspects of fairness in this context, the LRC has said.

The Irish Criminal Injuries Compensation Scheme sets out what categories of claimant are eligible including:

• Victim of the offence,
• A person responsible for the maintenance of the victim who has suffered monetary loss as a result of the victim’s injury,
• A dependant of the victim where they died as a result of their injuries,
• Any person who has incurred expenses as a result of the death of a victim with no dependants,
• Any dependant of the victim where the victim has died, otherwise than as a result of the injuries caused by the criminal offence.

The crime must be committed in Ireland, and claims must be submitted within three months of the offence.

Currently it is unclear whether psychological injury can be compensated.

Victims injured in road-traffic offences are not eligible, except in cases where there was a deliberate attempt to run down the victim. 

The LRC has said that analysis of past decisions points to a lack of clarity and consistency between applicants.

The current system also fails to take account of the overwhelming consequences of the severe injuries and/or traumatic bereavement that applicants may have experienced, the paper says. 

The LRC says that the tribunal should correspond with victims, acknowledging their experience with empathy and compassion, and expressing solidarity with them on behalf of the people of Ireland.

Any compensation from the offender, whether ordered by the court or voluntarily paid, will be deducted from an award of compensation claimed under the scheme.

Double compensation

This is in line with the principle against double compensation under the scheme.

The LRC questions whether there are valid reasons to await the conclusion of court proceedings before a decision is made on an application for compensation.

Where injuries of a serious nature have been sustained and criminally inflicted, delaying a compensation award while parallel proceedings are ongoing can cause undue hardship, the LRC has said.

Finally, potential reforms provide an opportunity to reduce stress and trauma for victims of crime.

The LRC asks whether a National Victims’ Office is required to provide both compensation and support services in a coordinated and cohesive way.

After the ten-week consultation process, the commission, chaired by former Supreme Court judge Ms Justice Mary Laffoy, will finalise a report on the compensation issue and set out law reform recommendations. 

The publication follows extensive examination and analysis of the way in which the State compensation scheme for victims of violent crime operates in Ireland. 

The  paper examines:

• Nature of awards of criminal injuries compensation,
• Who is eligible to receive compensation,
• How the criminal injuries compensation process operates,
• Who should make decisions on compensation awards, and
• What a reformed statutory scheme should look like.

The scheme is administered by the Department of Justice and decisions on compensation are made by the Criminal Injuries Compensation Tribunal.

The paper traces the development and recognition of victim rights, particularly the binding legal obligations that arise in various EU directives. 

The LRC wants strong participation on a series of questions concerning the key issues under consideration.

The consultation paper focuses on the fact that the scheme is not statute-based.

Permanent fixture

The LRC believes that there are significant benefits to a statutory scheme as a permanent fixture in the victims’ rights landscape.

Guiding principles would seek to minimise the potential for secondary trauma within the victim compensation process.

Such principles could include:

• Reparation,
• Compensation as of right,
• Acknowledgement and solidarity, and
• Minimisation of secondary victimisation.

The paper raises questions about the funding and administration of the scheme, and whether it should be located within an existing body (such as the Personal Injuries Assessment Board or the State Claims Agency), or under a new specialist criminal-injuries compensation body. 

The potential for procedural justice must be maximised, the LRC says.

The existing system is beset with lengthy delays, bureaucratic hurdles and procedural obstacles, the LRC adds.

Compelling

“As such, a compelling argument can be made for a full redesign and a new body,” the paper says.

The Criminal Injuries Compensation Scheme is a cash-limited grant scheme with a limited annual budget, which, if spent before year-end, means applicants must wait until the next annual allocation to receive awards of compensation.

A consistent and adequate funding model is required for the scheme, the LRC has said, such as from assets seized by the Criminal Assets Bureau.

In its 2005 report on the court poor box, the LRC recommended that it be replaced with a statutory reparation fund.

“Even part-funding from such sources would incorporate a symbolic element of compensation and reparation,” the paper has said.

Non-monetary supports

And while monetary compensation cannot solely provide for a crime victim’s needs, the LRC asks whether non-monetary supports, such as counselling or workforce re-training, should also be provided.

Financial needs of victims in the aftermath of a crime could also be assessed, the body says.

The paper sets out both non-binding principles recommended in international legal instruments in respect of victim compensation systems and binding principles of compensation under EU law.

It then assesses the provisions of the Irish scheme against both.