Report on the Proposal for a Draft Criminal Injuries Compensation (NI) Order 2001

REPORT ON THE PROPOSAL FOR A DRAFT CRIMINAL INJURIES COMPENSATION (NI) ORDER 2001

AD HOC COMMITTEE

The Committee was established, in accordance with Assembly Standing Order 49, by resolution of the Assembly on 10 September 2001. The function of the Committee is to consider the proposal for a draft Criminal Injuries Compensation (NI) Order 2001 and the draft Northern Ireland Criminal Injuries Scheme 2002 referred by the Secretary of State for Northern Ireland and to report thereon to the Assembly by 27 November 2001.

The Committee has 11 members, including a Chairperson and Deputy Chairperson and a quorum of 5. The membership of the Committee is as follows:

Mr Roger Hutchinson, Chairperson
Mr Kieran McCarthy, Deputy Chairperson
Mr Alex Attwood
Mr Billy Bell
Mr David Ervine
Mr Alban Maginness
Mr Gerry McHugh
Prof. Monica McWilliams
Dr Dara O'Hagan
Mr Ian Paisley Jnr
Mr Ken Robinson

The Report and Proceedings of the Committee are published by the Stationery Office by order of the Committee. All publications of the Committee are posted on the Assembly's website at http://www.ni-assembly.gov.uk/

All correspondence should be addressed to the Clerk of Ad hoc Committee, Room 371 Parliament Buildings, Stormont, Belfast BT4 3XX.

Contents

Executive Summary
Committee's Recommendations
Background to the Report
Introduction
Remit of the Committee
Proceedings of the Committee
Background to Criminal Injuries Compensation in Northern Ireland
Northern Ireland Victims Commission
Review of Criminal Injuries Compensation in Northern Ireland
Proposed Legislative Arrangements for Paying Compensation to Victims of Violent Crime
Draft Criminal Injuries Compensation (NI) Order 2001
Draft Northern Ireland Criminal Injuries Compensation Scheme
Committee's Consideration of the Proposals
Positive aspects of the proposals
Committee's concerns about the proposals
Conclusions

Appendices

Appendix 1 - Minutes of Proceedings
Appendix 2 - List of Witnesses
Appendix 3 - Minutes of Evidence
Appendix 4 - Written Submissions to the Committee

EXECUTIVE SUMMARY

BACKGROUND TO THE REPORT

The Committee was established by resolution of the Assembly on 10 September 2001 to consider the proposal for a draft Criminal Injuries Compensation (NI) Order 2001 and the draft Northern Ireland Criminal Injuries Compensation Scheme 2002. The Committee met over the period 17 September to 13 November 2001 and heard evidence from the following bodies:

The Compensation Agency;
The Law Society of Northern Ireland.
The Northern Ireland Office; and
Victim Support Northern Ireland.

In addition, the Committee received written submissions from:

Coiste Na n-Iarchimí;
The Association of Personal Injury Lawyers;
The Ex-Prisoners Interpretative Centre;
The Committee of the Centre;
The Committee on the Administration of Justice; and
The Northern Ireland Human Rights Commission.

Background to criminal injuries compensation in Northern Ireland

In October 1997, the then Secretary of State for Northern Ireland, Rt Hon Dr Marjorie Mowlam MP, established the Northern Ireland Victims Commission to consider possible ways to recognise the pain and suffering felt by victims of violence arising out of the troubles.

That Commission, chaired by Sir Kenneth Bloomfield, reported in April 1998 and one of their recommendations was for the Government to establish an objective, independent and wide-ranging review of the fitness for purpose of the compensation system as it operated in Northern Ireland.

The review was established and in July 1999 a report was issued for consultation, prior to submitting their final recommendations to Government. Amongst its recommendations for a fairer and more equitable, open and transparent system were:

Compensation should continue to be decided by the Compensation Agency with a right of appeal to the courts;
There should be a simpler method of deciding how much compensation is paid for less serious injuries;
Victims who suffer more serious injuries should continue to have their claims assessed as at present;
Where a person has died as a result of violent crime an enhanced bereavement support payment should be payable up to a maximum for any one family of £50,000;
Compensation for psychiatric illness should be paid in a wider range of cases;
There should be more flexibility in the time limit for making an application; and
Cases should be capable of being re-opened in particular circumstances.

Proposed legislative arrangements for paying compensation to victims of violent crime

On 28 June 2001, the Minister for Victims, Des Browne, announced the Government's proposals for new legislative arrangements for paying compensation to victims who have suffered personal injury as a result of violent crime. The key features of the proposed new arrangements are:

The introduction of a tariff of injuries setting out the value of specific injuries;
Appeals to be heard by an independent Appeals Panel;
Removal of paid legal assistance from the scheme, to be replaced by support and help from Victim Support (NI);
Wider eligibility criteria and other changes to eradicate anomalies;
Removal of specific terrorist exclusion provisions;
Provision for past victims of child sex abuse, who cannot claim because of the current statutory time limits, to make a fresh claim.

These proposals are included within the draft Criminal Injuries Compensation (NI) Order 2001 and the draft Northern Ireland Criminal Injuries Compensation Scheme 2002.

Committee's consideration of the proposals

Following consideration of the proposals in some detail, the Committee concluded that there were positive aspects as well as a number of areas that gave the Committee concern.

The Committee welcomed the sensitivity and inclusiveness of some of the proposals, notably the bereavement support payment and the wider eligibility for psychological injuries. However, on balance the Committee felt that these proposals were not in the best interests of the victims of violent crime. They felt that the introduction of a Tariff system was simply a cost-saving exercise that would leave many of the more seriously injured victims under-compensated.

The Committee's recommendations are set out overleaf.

COMMITTEE'S RECOMMENDATIONS

Recommendation 1:	That the proposal for a "bereavement support payment" to be made, in recognition of the grief and sorrow caused by the death of a victim of violent crime, to qualifying claimants; should be incorporated into Northern Ireland's compensation system for criminal injuries.
Recommendation 2:	That the proposal for wider-eligibility criteria to apply in cases where a person is claiming compensation for psychological injuries should be incorporated into Northern Ireland's compensation system for criminal injuries.
Recommendation 3:	That representation and the provision of advice to victims should be by the legal profession - not Victim Support Northern Ireland.
Recommendation 4:	That the Secretary of State should examine other areas where Victim Support Northern Ireland may be able to play a more increasingly pro-active role in supporting victims of violent crime.
Recommendation 5:	That the Secretary of State should not, in determining an award, have regard to a person's criminal record, where that person's actions, that may be indicative of that record, cannot be shown to be responsible for the act of criminal violence that resulted in the injuries, for which, compensation is being sought.
Recommendation 6:	That paid legal assistance should continue to be provided to persons who make successful applications for compensation.
Recommendation 7:	That a system of compensation whereby awards are determined by a Tariff should not be introduced in Northern Ireland.
Recommendation 8:	That the Secretary of State should not, in determining an award, have regard to any payments made in respect of private healthcare or those received out of private health insurance.
Recommendation 9:	That the Secretary of State should, where a victim is unable to work, award compensation for loss of earnings and earnings capacity from the date of that injury.
Recommendation 10:	That the proposed legislation should not be introduced to Parliament in its current form.

BACKGROUND TO THE REPORT

INTRODUCTION

1. This is a Report made by the Ad hoc Committee to the Assembly, pursuant to the resolution of the Assembly on Monday, 10 September 2001. The Report describes the work of the Committee over the period 17 September to 13 November 2001.

REMIT OF THE COMMITTEE

2. As agreed by the Assembly, the Committee had the following function:

To consider the proposal for a draft Criminal Injuries Compensation (NI) Order 2001 and the draft Northern Ireland Criminal Injuries Scheme 2002 referred by the Secretary of State for Northern Ireland and to report thereon to the Assembly by 27 November 2001.

3. Copies of both these papers are available from the Northern Ireland Office's website at http://www.nio.gov.uk/

PROCEEDINGS OF THE COMMITTEE

4. During the period covered by this Report, the Committee held six meetings: 17 September; 9, 16 and 23 October; and 6 and 13 November 2001. The Minutes of Proceedings for these meetings are included at Appendix 1.

5. In the course of its proceedings, the Committee heard evidence from the following bodies-

The Compensation Agency;

The Law Society of Northern Ireland;

The Northern Ireland Office; and

Victims Support Northern Ireland.

A complete list of those who gave evidence to the Committee is included at Appendix 2.

6. At its meeting on 16 October the Committee received evidence from the Chief Executive of the Compensation Agency on the operation of the current scheme, and how the Compensation Agency proposed to administer the new tariff scheme. The Chief Executive was accompanied by two senior officials from the Northern Ireland Office's Criminal Justice Services Division, who were in attendance to clarify any points of a factual nature about the draft proposals.

7. At its meeting on 23 October the Committee received evidence from Victim Support Northern Ireland and the Law Society of Northern Ireland. Victim Support Northern Ireland gave evidence on how their new role, provided by the proposals, would be administered. The Law Society outlined their concerns about the proposed introduction of a tariff system for criminal injury compensation. Both Victim Support and the Law Society made written submissions to the Committee in advance of their attendance.

8. The Minutes of Evidence for these meetings are included at Appendix 3. Further to this, the Committee received written submissions from other bodies, including the Assembly's Committee of the Centre who have a remit to report on how victims' issues are promoted within Northern Ireland's devolved administration. The texts of these, and the submissions made by Victim Support and the Law Society are reproduced at Appendix 4.

BACKGROUND TO CRIMINAL INJURIES COMPENSATION IN NORTHERN IRELAND

NORTHERN IRELAND VICTIMS COMMISSION

9. On 24 October 1997, the then Secretary of State for Northern Ireland, Rt Hon Dr Marjorie Mowlam MP, announced the establishment of a Commission to look at the possible ways to recognise the pain and suffering felt by victims of violence arising from the troubles of the previous 30 years.

10. To lead this Commission, Sir Kenneth Bloomfield was appointed as Northern Ireland Victims Commissioner and in April 1998 he produced his report, entitled We will remember them.

11. The report was accepted in full by the Government who subsequently established the Victims Liaison Unit in the Northern Ireland Office, which was tasked with implementing Bloomfield's recommendations.

12. One of the principal recommendations of this report was that the Government should establish an objective, independent, and wide-ranging review of the "Fitness for Purpose" of the compensation system as it is operated in Northern Ireland.

13. On 12 August 1998, the then Minister for Victims, Adam Ingram, announced the Government's intention to establish such a review as part of a package of measures being taken forward by the Victims Liaison Unit.

REVIEW OF CRIMINAL INJURIES COMPENSATION IN NORTHERN IRELAND

14. Chaired again by Sir Kenneth, the review was established in September 1998 with the following terms of reference:

"To advise the Government on the fitness for purpose of criminal injuries compensation arrangements in Northern Ireland in the light of the experiences of victims of terrorist violence; and on how any shortcomings in the arrangements identified in the course of this exercise might be rectified for the future in any new statutory framework providing for a system of criminal injuries compensation in Northern Ireland."

15. The review reported on 3 July 1999 and amongst the recommendations for a fairer and more equitable, open and accountable system were:

Compensation should continue to be decided by the Compensation Agency with a right of appeal to the courts;

There should be a simpler method of deciding how much compensation is paid for less serious injuries;

Victims who suffer more serious injuries should continue to have their claims assessed as at present;

Where a person has died, an enhanced bereavement support payment should be payable up to a maximum for any one family of £50,000;

Compensation for psychiatric illness should be paid in a wider range of cases;

There should be more flexibility in the time limit for making an application; and

Cases should be capable of being re-opened in particular circumstances.

16. In total, the review made 64 recommendations for change to the current compensation system in Northern Ireland and on 26 July 2000, the then Secretary of State, Mr Peter Mandelson MP, announced in Parliament the Government's response to the review highlighting the acceptance of the majority of those recommendations.

17. On 28 June 2001, the Minister for Victims, Des Browne, announced the Government's proposals for new legislative arrangements for paying compensation to victims who have suffered personal injury because of violent crime. The key features of the proposed new arrangements are:

The introduction of a tariff of injuries setting out the value of specific injuries;

Appeals to be heard by an independent Appeals Panel;

Removal of paid legal assistance from the scheme, to be replaced by support and help from Victim Support (NI);

Wider eligibility criteria and other changes to eradicate anomalies;

Removal of specific terrorist exclusion provisions;

Provision for past victims of child sex abuse, who cannot claim because of the current statutory time limits, to make a fresh claim.

These proposals are included within the draft Criminal Injuries Compensation (NI) Order 2001 and the draft Northern Ireland Criminal Injuries Compensation Scheme 2002.

PROPOSED LEGISLATIVE ARRANGEMENTS FOR PAYING
COMPENSATION TO VICTIMS OF VIOLENT CRIME

DRAFT CRIMINAL INJURIES COMPENSATION (NI) ORDER 2001

18. During its proceedings, in addition to written submissions by witnesses, the Committee had before it a copy of the proposal for the draft Order and its accompanying Explanatory Memorandum.

19. To inform debate, both within the Assembly and further afield, the Committee agreed that its Report should detail the provisions of each Article in the draft Order. The draft Order is in three parts: Introduction; Northern Ireland Criminal Injuries Compensation Scheme; and Miscellaneous.

Part I - Introduction

Article 1 - Citation and commencement

20. This Article details the title of the draft Order and makes provision for the Secretary of State to commence the provisions of the Order on such days as he may, by order, appoint.

Article 2 - Interpretation

21. This Article defines certain terms used within the draft proposed Order and also makes provision for the Scheme to define certain terms.

Part II - Northern Ireland Criminal Injuries Compensation Scheme

Article 3 - Compensation for criminal injuries

22. This Article places a duty on the Secretary of State to make arrangements for the payment of compensation to, or in respect of persons who are victims of criminal injury. Such arrangements must include the production of a Scheme detailing both the circumstances in which awards may be made and the categories of persons to whom they may be made.

23. Although this Article places the duty for compensation to be made in respect of criminal injuries sustained in Northern Ireland, there is provision made that the Scheme may provide for arrangements to be put in place to address compensation for an injury which was the result of a violent crime but it is not clear in which jurisdiction, Northern Ireland or the Republic of Ireland, the incident occurred.

24. Provision is made for the Secretary of State to make such transitional arrangements as appear to be necessary or expedient.

Article 4 - Basis on which compensation is to be calculated

25. This Article sets out that any award for compensation must be determined in accordance with the provisions of the Scheme. Those provisions must include-

A standard amount of compensation for a specified injury;
In cases of fatal injury, a bereavement support payment; and
Additional amounts in certain cases for-
Loss of earnings; and
Special expenses.

26. The Standard amount must be determined in accordance with a Tariff, which the Scheme shall specify, and where there is no provision in the Tariff, the Scheme must make other arrangements to allow for payment.

27. The Secretary of State will be able to alter the Tariff by adding or removing an injury, or changing the amount of compensation payable, but such alterations will be subject to Parliamentary approval. The Scheme may also include provision for setting maximum amounts of compensation and other transitional arrangements.

Article 5 - Claims and awards

28. This Article enables the Scheme to include provisions for the payment of awards and the making of claims. It allows the Scheme to include provision for-

Withholding or reducing compensation and for compensation to be subject to conditions;
Awards to be repayable;
Compensation to be held in trusts; and
Time limits to be imposed.

29. It sets the standard of proof, that may be required if it falls to any one person to satisfy another on any matter on which the claim is based, as that applicable in civil proceedings. The Article also determines that any amount to be repaid shall be recoverable as a debt due to the Crown.

30. Provision is made for the Scheme to require the Chief Constable to provide applicants with documents, relevant to their claim, which he supplies to the Secretary of State.

Article 6 - Reviews

31. This Article enables the Scheme to make provision for review of decisions taken in respect of compensation claims under such circumstances as may be specified by the Scheme.

Article 7 - Appeals

32. This Article provides for a right of appeal to adjudicators appointed for the purpose by the Secretary of State. The Scheme shall set up a body to deal with appeals.

33. The Secretary of State can impose terms and conditions on appointment to the body that may be specified in the Scheme, and specifies that persons appointed shall not be regarded as exercising functions of the Secretary of State or acting on his behalf. This Article also provides the Secretary of State with authority to remove a person from office as an adjudicator provided certain conditions have been satisfied.

34. The Scheme shall include provision for the body of adjudicators to give advice to the Secretary of State and allows for a reduction in an amount of compensation in the event of a frivolous or vexatious appeal.

Article 8 - Reports, accounts and financial records

35. This Article provides that the Secretary of State shall make, after the end of each financial year, an annual report on the operation of the Scheme during that year. It also enables the Scheme to make provision for an annual report to be made, by a person chosen by the Secretary of State, on the operation of the appeals system to the Secretary of State. The Secretary of State shall be required to lay a copy of those reports before Parliament.

36. The Article also enables the Scheme to make provision for the accounting arrangements and financial records for the operation of the appeals system. The Secretary of State shall refer such statements of accounts to the Comptroller and Auditor General who shall examine, certify and report thereon to Parliament.

Article 9 - Inalienability of awards

37. This Article provides that awards are inalienable; it determines that no award can be assigned and that any charges on an award will be void. It also provides that in the case of bankruptcy of an applicant, the award shall not pass to any trustee or anyone acting on behalf of his or her creditors.

Article 10 - Approval of the Scheme

38. This Article makes arrangements for the Parliamentary approval of the Scheme by affirmative resolution. The arrangements mirror the requirements for Parliamentary approval of an Order in Council, for certain reserved matters, under section 85 of the Northern Ireland Act 1998. These require the proposed Scheme to be laid before Parliament and referred to the Northern Ireland Assembly for a period of 60 days.

Article 11 - Approval of alterations to the Scheme

39. This Article sets out the arrangements for Parliamentary approval of alterations to the Scheme. It provides for certain provisions of the Scheme that may only be altered, with the approval of Parliament, following consultation with the Assembly under the same basis as set out in Article 10. Those provisions include:

the Tariff;

the calculation of compensation in respect of multiple injuries;

the circumstances in which an award may be withheld or reduced;

any of the provisions which give a right of appeal; and

the circumstances in which an appeal is to be dealt with by a hearing.

40. There is also provision for the Secretary of State to alter other provisions of the Scheme by laying a statement of the alterations before Parliament, which can be disapproved by a resolution of either House before the end of the period of 40 days.

Part III - Miscellaneous

Article 12 - Advice, assistance and support for victims

41. This Article requires the Secretary of State to inform persons seeking compensation for criminal injuries of any body designated by him to provide advice, assistance and support.

Article 13 - Disclosure of information

42. This Article allows the Secretary of State to provide the Department for Social Development with information about awards made to people in receipt of income-related benefits.

Article 14 - Financial provisions

43. This Article provides the Secretary of State with the financial authority to pay the adjudicators and to pay compensation for loss of office to any adjudicator who is removed from office. It also states that any sums, which have been reimbursed to the Secretary of State from an award paid by him under the Scheme, shall be paid by the Secretary of State into the Consolidated Fund of the United Kingdom.

Article 15 - Recovery from offender

44. This Article provides for the recovery from offenders of the whole or part of a compensation award which has been paid or is payable in respect of a criminal injury directly attributable to the offenders conviction for a crime of violence. It allows the County Court to make an order, on application by the Secretary of State, directing an offender to reimburse to the Secretary of State the whole or a specified amount of the award by a lump sum payment or by periodic instalments over a specified period. Before making an order under this Article, the court shall give the offender an opportunity to be heard and have regard to the offenders' circumstances. Such an order shall enforceable in the same manner as a county court decree for a debt is enforceable.

Article 16 - Recovery from victim etc

45. This Article provides for the recovery from victims of the whole or part of a compensation award where damages or other compensation awards have been or are subsequently paid. It allows for the court to direct reimbursement to the Secretary of State out of money paid into court under this order. In addition, this Article permits the Secretary of State to apply to the court for an order for reimbursement if the applicant failed to disclose all relevant facts.

Article 17 - Appeals from the county court

46. This Article allows for an appeal from any order made by a county court in connection with any proceedings under Article 15 or 16.

Article 18 - Offences

47. This Article defines offences of obtaining compensation by deception and maximum penalties, which may be applied. Those penalties are:

on conviction on indictment, to a fine or to imprisonment for a term not exceeding 5 years, or to both; or
on summary conviction, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding one year or to both.

Article 19 - Repeals and transitional provisions

48. This Article and the Schedule repeal the Criminal Injuries (Compensation) (Northern Ireland) Order 1988, and allow transitional provisions to be made in the Scheme.

DRAFT NORTHERN IRELAND CRIMINAL INJURIES COMPENSATION SCHEME

Administration of the Scheme

49. Whilst the responsibility for the operation of the Scheme will be that of the Secretary of State - the Scheme will, in practice, be administered by the Compensation Agency. They will decide in each case what awards, if any, should be made. This decision shall be open to review and, thereafter, to appeal in accordance with the Scheme (The review and appeals procedures are described below). The Secretary of State will keep the operation of these arrangements under review.

Support to applicants

50. At each stage in the process, support will be available to applicants from Victim Support Northern Ireland (VSNI). At the initial stage they will offer assistance to applicants in completing the application and will be able to advise applicants on the likely outcome of the process, including an estimate of how long that process should take before the decision, on the award, is known. At the review and appeals stages, VSNI will offer the assistance of specially trained advisors, who, it is intended, will be able to guide the applicants through these stages, should they feel the need for such assistance.

Eligibility

51. The Scheme provides that compensation may be payable to a person who has sustained a criminal injury or, where that person has since died, to a qualifying applicant. Under the Scheme, a qualifying applicant is:

the partner of the deceased, being only, for these purposes:
a person who was living together with the deceased as husband and wife or as a same sex partner in the same household immediately before the date of death and who, unless formally married to him, had been so living throughout the two years before that date, or
a spouse or former spouse of the deceased who was financially supported by him immediately before the date of death; or
a natural parent of the deceased, or a person who was not the natural parent, provided that he was accepted by the deceased as a parent of his family; or
a natural child of the deceased, or a person who was not the natural child, provided that he was accepted by the deceased as a child of his family or was dependent on him.

A person who was criminally responsible for the death of a victim may not be a qualifying claimant.

52. The Scheme makes provision for the Secretary of State to withhold or reduce an award were he considers that:

the applicant failed to take reasonable steps to inform the proper authorities of the circumstances that gave rise to the injury; or
the applicant failed to co-operate with the relevant authority in attempting to bring the assailant to justice; or
the applicant failed to give reasonable assistance to the relevant body in connection with the application for an award; or
the conduct of the applicant before, during or after the incident; or
the character of the applicant as shown by his criminal convictions of such other evidence available to the Secretary of State.

The Secretary of State will only make an award where he is satisfied that there is no likelihood that an assailant would benefit or, where the applicant is under 18 years of age when the application is being determined, that it would not be in his interests for the award to be made.

Consideration of applications

53. An application for an award under this Scheme must be made in writing on an application form within two years of the date of the incident. The Secretary of State has discretion to waive that time limit where he considers it reasonable and in the interests of justice.

54. The onus for making the case of the application will be on the applicant. This may include, where appropriate:

the case for waiving the time limit; and

that an award should not be reconsidered, withheld or reduced.

55. Where appropriate the Secretary of State will make arrangements for an examination of the victim by a duly qualified medical examiner. The costs of such an examination, and of such reasonable expenses incurred in that connection will be met by the Secretary of State. Under the Scheme, the Secretary of State shall not meet the costs of any legal representation.

Calculation of awards

56. The basis on which awards are to be calculated, as set out in the Scheme, is a Standard Amount, which will be the amount shown in respect of the relevant description of injury in the Tariff. In addition to this, payments may be made to the applicant in respect of loss of earnings, special expenses and, in the case of fatal injuries, a bereavement support payment.

57. The minimum standard amount payable in respect of a single description of an injury shall be Level 1 (£1,000 e.g. concussion lasting at least one week) and the maximum Level 29 (£280,000 e.g. extremely serious brain damage). In accordance with the Scheme, compensation may also be payable for multiple injuries. The Scheme sets out separate arrangements for minor and more serious multiple injuries.

58. For minor multiple injures, an award may only be made were the applicant has sustained at least three separate physical injuries of the type described below:

Grazing, cuts, lacerations (no permanent scarring)
Severe and widespread bruising
Severe soft tissue injury (no permanent disability)
Black eye(s)
Bloody nose
Hair pulled from scalp
Loss of fingernail

In addition, at least one of those injuries must still have a residual effect 6-weeks after the incident and the injuries must also have necessitated at least two visits to, or by, a medical practitioner within that 6-week period.

59. The standard amount for more serious, but separate, multiple injuries will be calculated as:

The Tariff amount for the highest-rated description of injury; plus

30 per cent of the Tariff amount for the second highest-rated description of injury; plus, where there are three or more injuries,

15 per cent of the Tariff amount for the third highest-rated description of injury.

60. For injury which no provision is made in the Tariff but where the Secretary of State considers sufficiently serious to qualify for at least the minimum award payable, the Secretary of State shall consult with the Panel about the possible inclusion of a description of that injury in the Tariff. In such cases the Scheme makes provision for the payment of an interim award of which, no part will be recoverable if the injury is not subsequently included in the Tariff or, if included, qualifies for less compensation than the interim award paid.

61. Awards may also include payments in respect of loss of earnings where the applicant has, a direct consequence of the injury, lost earnings or earning capacity for a period exceeding 28-weeks. Under the provisions of the Scheme, no compensation will be payable for the first 28-weeks, but will begin after 28-weeks and continue for such period as the Secretary of State may determine.

Review of decisions

62. The Scheme provides that the applicant may seek a review of any decision, within a period of 90 days of that decision, made under this Scheme in relation to:

Waiving time-limits attached to both the application for compensation and an application for review; or

The re-opening of case where there has been a material change in the victim's medical condition; or

The withholding of any award made under the Scheme; or

Making an award under this Scheme, including the making of a reduced award.

An applicant may not seek the review of a decision that was made at review.

63. Following review, the applicant will be sent written notification of the outcome of that review and of the reasons for that decision.

Appeals against review decisions

64. Under the Scheme an applicant may, within a period of 90 days of a review decision, apply to an Appeals Panel to appeal against any decision made at review. The Appeals Panel will comprise a Chairperson and adjudicators. The Scheme makes provision for appeals concerning time limits; re-opening of cases; and awards, and for appeals to be determined by an oral hearing.

Committee's consideration of the proposals

65. During the Committee's deliberations on the proposals for a new compensation system members considered a number of aspects of those proposals. The Committee agreed that its report should highlight these areas, drawing on the evidence provided to support their assertions.

Positive aspects of the proposals

Bereavement support payment

66. The Committee welcomed the revision of the payment made to acknowledge the grief and sorrow caused by the death of the victim. It shared the view, expressed by Victim Support Northern Ireland (VSNI), that the introduction of the more sensitive term, "bereavement support payment", will remove the misinterpretation of the purpose of this payment. The Committee also welcomed that the payment proposed will be higher than that would be paid under the existing arrangements.

67. The Committee noted the reservations of the Human Rights Commission that before these payments may be made to a co-habitual applicant, whether same-sex or heterosexual, the applicant would have to show that he or she had lived with the victim for two years before the victims' death. However, the Committee noted that this is an extension of the previous arrangements, which did not recognise unmarried or same-sex partners as qualifying applicants, and considers the two-year period a reasonable condition.

Recommendation 1:

That the proposal for a "bereavement support payment" to be made, in recognition of the grief and sorrow caused by the death of a victim of violent crime, to qualifying claimants; should be incorporated into Northern Ireland's compensation system for criminal injuries.

Psychological injuries

68. The Committee welcomed the proposed amendment to the existing scheme whereby a person claiming compensation for psychological injuries must be present at the scene of the crime; the new legislation will remove this obstacle. The Committee noted that the 1988 Order provides compensation for a mental injury only where that injury is a "serious and disabling mental disorder". The draft Scheme will provide compensation for a mental injury only where that injury is a "disabling mental illness confirmed by psychiatric diagnosis". The Committee welcomed this less restrictive definition.

Recommendation 2:

That the proposal for wider-eligibility criteria to apply in cases where a person is claiming compensation for psychological injuries should be incorporated into Northern Ireland's compensation system for criminal injuries.

COmmittee's concerns about the proposals

Role of Victims Support

69. Whereas the Committee accepted that there is merit in the proposal that Victim Support Northern Ireland (VSNI) should have a greater role to play in providing help and support to victims of violent crime; the Committee did not support the role envisaged under the proposed scheme. In particular, the Committee had deep concern about VSNI's capacity to provide advice and assistance to victims in complex cases. Indeed, in their submission to the Committee, VSNI recognised that this was a major failing of the proposed scheme.

70. Evidence provided supported this assertion, notably from the Human Rights Commission which stated:

"The Commission would have a concern that those who work with Victim Support (NI) are primarily volunteers without specific legal expertise to address what remain complex criteria for an award to be made. The Commission would wish representation and the giving of advice to victims to be by the legal profession."

71. The Committee also had concerns regarding VSNI's capacity to cope with the additional workload that would result from the proposed scheme (It was reported to the Committee that the Compensation Agency currently receive some 14,000 applications for criminal injury compensation per annum). In their evidence to the Committee, VSNI reported that they will appoint an additional 9 members of staff on a full-time basis and are currently training over 100 volunteers to assist with the new scheme. Given the volume of work that is likely to pass to VSNI and their own admission that they will not be able to replace the work of the legal profession in more complex cases, the Committee felt that VSNI should not be afforded this role by the Secretary of State.

72. Further to this, the Committee supported the view of the Human Rights Commission that representation and the provision of advice to victims should be by the legal profession. The Committee added that there is also a matter of accessibility. As was reported to the Committee, VSNI has 8 branches across Northern Ireland each with three core branch staff members, however, there are some 500 solicitors' firms all with experience of dealing with criminal injury claims. Accordingly, the Committee felt that VSNI cannot be considered to be the most effective delivery agent for this proposed service.

Recommendation 3:	That representation and the provision of advice to victims should be by the legal profession - not Victim Support Northern Ireland.
Recommendation 4:	That the Secretary of State should examine other areas where Victim Support Northern Ireland may be able to play a more increasingly pro-active role in supporting victims of violent crime.

Discretion to withhold or reduce awards

73. The Committee had reservations about the Secretary of State's discretion to withhold or reduce awards to persons who have a previous criminal record. In their submission to the Committee, the Human Rights Commission expressed the view that a person's status, as a victim, should not be affected by that person's criminal record whether that record reflects instances of politically motivated crime or otherwise. The Committee also supported this view, however, it must be highlighted that their support does not extend to cases where the actions, or character, of that person were responsible for, or directly contributed to, the act of criminal violence that led to the injuries.

74. In the past, it has been shown that a divergence from the above policy can lead to certain anomalies. For example, in their submission to the Committee, the Ex-Prisoners Interpretative Centre highlighted a case where a person, though previously convicted at age 18, had been rehabilitated and was re-integrated into society. In an event, many years later and unrelated to his past conviction, that person was seriously injured and as a result of that conviction, was denied compensation. The Committee considered this to be double jeopardy for victims, who are in effect, having to pay their debt to society twice.

Recommendation 5:

That the Secretary of State should not, in determining an award, have regard to a person's criminal record, where that person's actions, which may be indicative of that record, cannot be shown to be responsible for the act of criminal violence that resulted in the injuries, for which, compensation is being sought.

Withdrawal of paid legal assistance

75. The Committee recognised that it is vitally important as a matter of public interest and protection, for adequate public funding and professional representation to be available to promote the best interests of victims who apply for compensation. The Committee did not accept the withdrawal of paid legal assistance as a move that would give rise to a fairer and more equitable system of awarding compensation to victims of crime.

Recommendation 6:

That paid legal assistance should continue to be provided to persons who make successful applications for compensation.

Calculation of awards under the proposed Tariff scheme

76. The Committee expressed deep concern over the introduction of a Tariff Scheme, which would, in their view, not provide victims of crime with either an adequate or equitable settlement. The Committee also considered that individual pain and suffering should be compensated on an individual basis. It is very clear that the proposed Tariff Scheme does not adequately provide for the individual needs of victims of crime.

77. For example, where an applicant has suffered more serious multiple injuries, the formula that will be used to determine their award will lead to it being significantly reduced, beyond that available under the existing arrangements. Evidence provided by the Law Society points to a hypothetical case were:

"[S]omeone, who was blinded by a bomb, suffered significant facial scarring and lost an arm. The most serious injury is possibly the blinding. General damages for the blinding are in the region of between £200,000 and £300,000. I am subject to correction, but in the draft compensation scheme the figure is much less - I think that it is £150,000. That is half what you would get in general damages. For extreme facial scarring, a person will get 30% of that, the maximum of which is £10,000. In the "Green Book", the maximum figure is £60,000. For losing an arm, a person will get 15% of that. Individuals lose out on hundreds and thousands of pounds by following a Tariff."

78. The Committee also felt that the qualifying conditions for a minor multiple injury awards will lead to victims losing out. The requirement that a victim should, within a 6-week period, visit a medical practitioner on two occasions is wholly unreasonable and may discriminate against a number of different categories of persons. This problem may be further compounded by the absence of independent legal advice.

79. The Committee supported the assertion that the rigidity of a Tariff-based Scheme has the potential to increase the suffering and trauma of victims. This is particularly apparent when consideration is given to a case where a young, female victim has suffered significant facial scarring. The Tariff will not take into account that this type of injury may have a more significant impact on a woman than a man. This is further compounded, as the Tariff system will not have regard to the age of the victim.

80. The Committee expressed reservations that the values listed in the proposed Tariff Scheme are substantially less than those currently available under the "Green Book". This will clearly lead to a reduction in the amount of compensation paid to the victims of crime.

Recommendation 7:

That a system of compensation whereby awards are determined by a Tariff should not be introduced in Northern Ireland.

81. The Committee disagreed with the proposal to deduct, from compensation for pecuniary loss or the cost of care, payments from private healthcare insurance towards medical expenses or healthcare arrangements.

Recommendation 8:

That the Secretary of State should not, in determining an award, have regard to any payments made in respect of private healthcare or those received out of private health insurance.

82. The Committee objected to the removal of compensation for loss of earnings, for the first 28-weeks following injury. In addition to this, the proposal to remove compensation for "special expenses" for example, the cost of adaptations to applicants accommodation required as a result of the criminal injury will not be paid unless the earnings capacity has been lost for 28-weeks.

Recommendation 9:

That the Secretary of State should, where a victim is unable to work, award compensation for loss of earnings and earnings capacity from the date of that injury.

83. Following consideration of all the evidence submitted, and the Committee's deliberations thereon; the Committee, accordingly, recommended that the proposed legislation should not be taken forward as presented.

Recommendation 10:

That the proposed legislation should not be introduced to Parliament in its current form.

Conclusions

84. The Committee had reservations concerning the proposed legislation. The introduction of a tariff system on the assumption that it is in the best interests of victims of crime is erroneous. All the evidence provided points to a cost saving exercise that will reduce the amount of compensation paid to victims of crime whilst at the same time removing paid legal assistance.

85. The Committee felt that the removal of the right of appeal to the Courts, as part of the due process of law is fundamentally flawed and may be subject to challenge under the Human Rights Act 1998.

86. The Committee recognised the role played by Victim Support Northern Ireland, over a number of years, in supporting and counselling victims of crime. However the proposal to use Victim Support Northern Ireland in a quasi-legal support role is totally inappropriate, given the range of reservations outlined in their submission.

87. The Committee noted the core recommendations set out in the Law Society's supplementary memorandum of evidence. This calls for the establishment of a working party with a general remit to examine the compensation process. The key objective of this remit would be to bring about systematic improvement by addressing the problems of delay and ensuring transparency, communication and closer liaison between agencies within the system. The Committee encouraged the Northern Ireland Office to engage with the Law Society and give due consideration to their proposal.

88. In light of the Committee's reservations about the proposed new arrangements, the Committee recommended that the proposed legislation should not be introduced to Parliament in its current form.

executive summary

Background to the report

The Compensation Agency;

The Law Society of Northern Ireland.

The Northern Ireland Office; and

Victim Support Northern Ireland.

In addition, the Committee received written submissions from:

Coiste Na n-Iarchimí;

The Association of Personal Injury Lawyers;

The Ex-Prisoners Interpretative Centre;

The Committee of the Centre;

The Committee on the Administration of Justice; and

The Northern Ireland Human Rights Commission.

Background to criminal injuries compensation in Northern Ireland

Compensation should continue to be decided by the Compensation Agency with a right of appeal to the courts;

There should be a simpler method of deciding how much compensation is paid for less serious injuries;

Victims who suffer more serious injuries should continue to have their claims assessed as at present;

Where a person has died as a result of violent crime an enhanced bereavement support payment should be payable up to a maximum for any one family of £50,000;

Compensation for psychiatric illness should be paid in a wider range of cases;

There should be more flexibility in the time limit for making an application; and

Cases should be capable of being re-opened in particular circumstances.

Proposed legislative arrangements for paying compensation to victims of violent crime

The introduction of a tariff of injuries setting out the value of specific injuries;

Appeals to be heard by an independent Appeals Panel;

Removal of paid legal assistance from the scheme, to be replaced by support and help from Victim Support (NI);

Wider eligibility criteria and other changes to eradicate anomalies;

Removal of specific terrorist exclusion provisions;

Provision for past victims of child sex abuse, who cannot claim because of the current statutory time limits, to make a fresh claim.

These proposals are included within the draft Criminal Injuries Compensation (NI) Order 2001 and the draft Northern Ireland Criminal Injuries Compensation Scheme 2002.

COMMITTEE'S CONSIDERATION OF THE PROPOSALS

Following consideration of the proposals in some detail, the Committee concluded that there were positive aspects as well as a number of areas that gave the Committee concern.

The Committee's recommendations are set out overleaf.

Committee's recommendations

Recommendation 1:	That the proposal for a "bereavement support payment" to be made, in recognition of the grief and sorrow caused by the death of a victim of violent crime, to qualifying claimants; should be incorporated into Northern Ireland's compensation system for criminal injuries.
Recommendation 2:	That the proposal for wider-eligibility criteria to apply in cases where a person is claiming compensation for psychological injuries should be incorporated into Northern Ireland's compensation system for criminal injuries.
Recommendation 3:	That representation and the provision of advice to victims should be by the legal profession - not Victim Support Northern Ireland.
Recommendation 4:	That the Secretary of State should examine other areas where Victim Support Northern Ireland may be able to play a more increasingly pro-active role in supporting victims of violent crime.
Recommendation 5:	That the Secretary of State should not, in determining an award, have regard to a person's criminal record, where that person's actions, that may be indicative of that record, cannot be shown to be responsible for the act of criminal violence that resulted in the injuries, for which, compensation is being sought.
Recommendation 6:	That paid legal assistance should continue to be provided to persons who make successful applications for compensation.
Recommendation 7:	That a system of compensation whereby awards are determined by a Tariff should not be introduced in Northern Ireland.
Recommendation 8:	That the Secretary of State should not, in determining an award, have regard to any payments made in respect of private healthcare or those received out of private health insurance.
Recommendation 9:	That the Secretary of State should, where a victim is unable to work, award compensation for loss of earnings and earnings capacity from the date of that injury.
Recommendation 10:	That the proposed legislation should not be introduced to Parliament in its current form.

Background to the Report

Introduction

Remit of the Committee

2. As agreed by the Assembly, the Committee had the following function:

3. Copies of both these papers are available from the Northern Ireland Office's website at http://www.nio.gov.uk/

Proceedings of the Committee

5. In the course of its proceedings, the Committee heard evidence from the following bodies-

The Compensation Agency;

The Law Society of Northern Ireland;

The Northern Ireland Office; and

Victims Support Northern Ireland.

A complete list of those who gave evidence to the Committee is included at Appendix 2.

Background to Criminal Injuries Compensation in Northern Ireland

Northern Ireland Victims Commission

10. To lead this Commission, Sir Kenneth Bloomfield was appointed as Northern Ireland Victims Commissioner and in April 1998 he produced his report, entitled We will remember them.

Review of Criminal Injuries Compensation in Northern Ireland

14. Chaired again by Sir Kenneth, the review was established in September 1998 with the following terms of reference:

15. The review reported on 3 July 1999 and amongst the recommendations for a fairer and more equitable, open and accountable system were:

Compensation should continue to be decided by the Compensation Agency with a right of appeal to the courts;

There should be a simpler method of deciding how much compensation is paid for less serious injuries;

Victims who suffer more serious injuries should continue to have their claims assessed as at present;

Where a person has died, an enhanced bereavement support payment should be payable up to a maximum for any one family of £50,000;

Compensation for psychiatric illness should be paid in a wider range of cases;

There should be more flexibility in the time limit for making an application; and

Cases should be capable of being re-opened in particular circumstances.

The introduction of a tariff of injuries setting out the value of specific injuries;

Appeals to be heard by an independent Appeals Panel;

Removal of paid legal assistance from the scheme, to be replaced by support and help from Victim Support (NI);

Wider eligibility criteria and other changes to eradicate anomalies;

Removal of specific terrorist exclusion provisions;

Provision for past victims of child sex abuse, who cannot claim because of the current statutory time limits, to make a fresh claim.

These proposals are included within the draft Criminal Injuries Compensation (NI) Order 2001 and the draft Northern Ireland Criminal Injuries Compensation Scheme 2002.

Proposed legislative arrangements for paying
compensation to victims of violent crime

draft Criminal Injuries Compensation (NI) Order 2001

18. During its proceedings, in addition to written submissions by witnesses, the Committee had before it a copy of the proposal for the draft Order and its accompanying Explanatory Memorandum.

Part I - Introduction

Article 1 - Citation and commencement

20. This Article details the title of the draft Order and makes provision for the Secretary of State to commence the provisions of the Order on such days as he may, by order, appoint.

Article 2 - Interpretation

21. This Article defines certain terms used within the draft proposed Order and also makes provision for the Scheme to define certain terms.

Part II - Northern Ireland Criminal Injuries Compensation Scheme

Article 3 - Compensation for criminal injuries

24. Provision is made for the Secretary of State to make such transitional arrangements as appear to be necessary or expedient.

Article 4 - Basis on which compensation is to be calculated

25. This Article sets out that any award for compensation must be determined in accordance with the provisions of the Scheme. Those provisions must include-

A standard amount of compensation for a specified injury;

In cases of fatal injury, a bereavement support payment; and

Additional amounts in certain cases for-

Loss of earnings; and

Special expenses.

Article 5 - Claims and awards

28. This Article enables the Scheme to include provisions for the payment of awards and the making of claims. It allows the Scheme to include provision for-

Withholding or reducing compensation and for compensation to be subject to conditions;

Awards to be repayable;

Compensation to be held in trusts; and

Time limits to be imposed.

30. Provision is made for the Scheme to require the Chief Constable to provide applicants with documents, relevant to their claim, which he supplies to the Secretary of State.

Article 6 - Reviews

31. This Article enables the Scheme to make provision for review of decisions taken in respect of compensation claims under such circumstances as may be specified by the Scheme.

Article 7 - Appeals

32. This Article provides for a right of appeal to adjudicators appointed for the purpose by the Secretary of State. The Scheme shall set up a body to deal with appeals.

Article 8 - Reports, accounts and financial records

Article 9 - Inalienability of awards

Article 10 - Approval of the Scheme

Article 11 - Approval of alterations to the Scheme

the Tariff;

the calculation of compensation in respect of multiple injuries;

the circumstances in which an award may be withheld or reduced;

any of the provisions which give a right of appeal; and

the circumstances in which an appeal is to be dealt with by a hearing.

Part III - Miscellaneous

Article 12 - Advice, assistance and support for victims

41. This Article requires the Secretary of State to inform persons seeking compensation for criminal injuries of any body designated by him to provide advice, assistance and support.

Article 13 - Disclosure of information

42. This Article allows the Secretary of State to provide the Department for Social Development with information about awards made to people in receipt of income-related benefits.

Article 14 - Financial provisions

Article 15 - Recovery from offender

Article 16 - Recovery from victim etc

Article 17 - Appeals from the county court

46. This Article allows for an appeal from any order made by a county court in connection with any proceedings under Article 15 or 16.

Article 18 - Offences

47. This Article defines offences of obtaining compensation by deception and maximum penalties, which may be applied. Those penalties are:

on conviction on indictment, to a fine or to imprisonment for a term not exceeding 5 years, or to both; or

on summary conviction, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding one year or to both.

Article 19 - Repeals and transitional provisions

48. This Article and the Schedule repeal the Criminal Injuries (Compensation) (Northern Ireland) Order 1988, and allow transitional provisions to be made in the Scheme.

Draft Northern Ireland Criminal Injuries Compensation Scheme

Administration of the Scheme

Support to applicants

Eligibility

the partner of the deceased, being only, for these purposes:

a person who was living together with the deceased as husband and wife or as a same sex partner in the same household immediately before the date of death and who, unless formally married to him, had been so living throughout the two years before that date, or

a spouse or former spouse of the deceased who was financially supported by him immediately before the date of death; or

a natural parent of the deceased, or a person who was not the natural parent, provided that he was accepted by the deceased as a parent of his family; or

a natural child of the deceased, or a person who was not the natural child, provided that he was accepted by the deceased as a child of his family or was dependent on him.

A person who was criminally responsible for the death of a victim may not be a qualifying claimant.

52. The Scheme makes provision for the Secretary of State to withhold or reduce an award were he considers that:

the applicant failed to take reasonable steps to inform the proper authorities of the circumstances that gave rise to the injury; or

the applicant failed to co-operate with the relevant authority in attempting to bring the assailant to justice; or

the applicant failed to give reasonable assistance to the relevant body in connection with the application for an award; or

the conduct of the applicant before, during or after the incident; or

the character of the applicant as shown by his criminal convictions of such other evidence available to the Secretary of State.

Consideration of applications

54. The onus for making the case of the application will be on the applicant. This may include, where appropriate:

the case for waiving the time limit; and

that an award should not be reconsidered, withheld or reduced.

Calculation of awards

58. For minor multiple injures, an award may only be made were the applicant has sustained at least three separate physical injuries of the type described below:

Grazing, cuts, lacerations (no permanent scarring)

Severe and widespread bruising

Severe soft tissue injury (no permanent disability)

Black eye(s)

Bloody nose

Hair pulled from scalp

Loss of fingernail

59. The standard amount for more serious, but separate, multiple injuries will be calculated as:

The Tariff amount for the highest-rated description of injury; plus

30 per cent of the Tariff amount for the second highest-rated description of injury; plus, where there are three or more injuries,

15 per cent of the Tariff amount for the third highest-rated description of injury.

Review of decisions

62. The Scheme provides that the applicant may seek a review of any decision, within a period of 90 days of that decision, made under this Scheme in relation to:

Waiving time-limits attached to both the application for compensation and an application for review; or

The re-opening of case where there has been a material change in the victim's medical condition; or

The withholding of any award made under the Scheme; or

Making an award under this Scheme, including the making of a reduced award.

An applicant may not seek the review of a decision that was made at review.

63. Following review, the applicant will be sent written notification of the outcome of that review and of the reasons for that decision.

Appeals against review decisions

Committee's consideration of the proposals

POSITIVE ASPECTS OF THE PROPOSALS

BEREAVEMENT SUPPORT PAYMENT

Recommendation 1:

Psychological injuries

Recommendation 2:

COMMITTEE'S CONCERNS ABOUT THE PROPOSALS

Role of Victims Support

70. Evidence provided supported this assertion, notably from the Human Rights Commission which stated:

Recommendation 3:	That representation and the provision of advice to victims should be by the legal profession - not Victim Support Northern Ireland.
Recommendation 4:	That the Secretary of State should examine other areas where Victim Support Northern Ireland may be able to play a more increasingly pro-active role in supporting victims of violent crime.

Discretion to withhold or reduce awards

Recommendation 5:

Withdrawal of paid legal assistance

Recommendation 6:

That paid legal assistance should continue to be provided to persons who make successful applications for compensation.

Calculation of awards under the proposed Tariff scheme

Recommendation 7:

That a system of compensation whereby awards are determined by a Tariff should not be introduced in Northern Ireland.

Recommendation 8:

That the Secretary of State should not, in determining an award, have regard to any payments made in respect of private healthcare or those received out of private health insurance.

Recommendation 9:

That the Secretary of State should, where a victim is unable to work, award compensation for loss of earnings and earnings capacity from the date of that injury.

Recommendation 10:

That the proposed legislation should not be introduced to Parliament in its current form.

CONCLUSIONS

88. In light of the Committee's reservations about the proposed new arrangements, the Committee recommended that the proposed legislation should not be introduced to Parliament in its current form.

MONDAY 17 SEPTEMBER 2001
ROOM 152 PARLIAMENT BUILDINGS.

Present: Mr Roger Hutchinson MLA, Chairperson
Mr Kieran McCarthy MLA, Deputy Chairperson
Mr Billy Bell MLA
Mr Ian Paisley Jnr MLA
Mr Ken Robinson MLA

Attendees: Mr Tony Logue, Committee Clerk
Mr Damien McVeigh
Mr Hugh Widdis

Apologies: Dr Dara O'Hagan MLA

11.09am the meeting opened in private session-the Clerk in the Chair.

1. Apologies

The apology was noted.

2. Election of Chairperson and Deputy Chairperson

The Clerk called for nominations for the position of Committee Chairperson. Mr Robinson proposed that: Mr Hutchinson be the Chairperson of this Committee. Mr Bell seconded this and the nomination was accepted.

On there being no further nominations the Clerk put the question without debate.

Resolved, that Mr Hutchinson, being the only candidate proposed, be Chairperson of this Committee.

11.10am Mr Hutchinson in the Chair.

The Chairperson thanked members for their support and sought nominations for the position of Committee Deputy Chairperson. Mr Bell proposed that: Mr McCarthy be the Deputy Chairperson of this Committee. Mr Paisley seconded this and the nomination was accepted.

On there being no further nominations the Chairperson put the question without debate.

Resolved, that Mr McCarthy, being the only candidate proposed, be Deputy Chairperson of this Committee.

3. Declaration of Interests

No interests were declared.

4. Procedures of the Committee

The Chairperson referred members to a memorandum from the Committee Clerk on the procedures of the Committee contained in their briefing papers.

Resolved,

Witnesses-the Committee agreed to take evidence from relevant bodies as part of its proceedings.

Voting-the Committee agreed that in the absence of consensus, simple majority would determine all decisions.

Minutes of Evidence-the Committee agreed that in the event that any members are unable to attend an evidence session, the uncorrected Minutes of Evidence would be copied to those members for their information.

Public meetings-the Committee agreed that it would hold all evidence sessions in public.

Deputies-the Committee agreed not to use deputies.

5. Forward work programme

The Committee noted a memorandum from the Committee Clerk setting out a proposed forward work programme.

The Committee agreed to invite the following bodies to give evidence-

The Committee on the Administration of Justice;

The Compensation Agency;

The General Council of the Bar of Northern Ireland;

The Law Society of Northern Ireland;

The Northern Ireland Human Rights Commission; and

Victims Support Northern Ireland.

Further to these, the Committee also agreed to invite comments from the Committee of the Centre, on the general principles of the proposed Order in Council.

6. Any other business

No other matters were raised.

7. Date and time of next meeting

The Committee agreed that it would adjourn for a two-week period to allow witnesses adequate time to make written submissions and that details of the next meeting would issue from the Committee Clerk.

11.15am the Chairperson adjourned the meeting.

Mr Roger Hutchinson MLA
CHAIRPERSON

9 October 2001

Tuesday 9 october 2001
room 135 parliament buildings.

Present: Mr Roger Hutchinson MLA, Chairperson
Mr Kieran McCarthy MLA, Deputy Chairperson
Mr Alban Maginness MLA
Mr Gerry McHugh MLA
Prof. Monica McWilliams MLA
Dr Dara O'Hagan MLA

Attendees: Mr Tony Logue, Committee Clerk
Mr Liam McLernon, Assistant Committee Clerk
Mr Percy Johnston, Legal Adviser
Mr Hugh Widdis, Research & Library Services

2.04pm the meeting opened in private session-Mr R Hutchinson in the Chair.

1. Apologies

No apologies were received.

2. Draft Minutes of Proceedings

Resolved, that the draft Minutes of Proceedings for Monday, 17 September 2001 be agreed.

3. Matters arising

Members noted a background briefing, prepared by the Assembly's Research and Library Services, on the draft Criminal Injuries Compensation (NI) Order 2001.

4. Criminal Injuries Compensation Order: First Reading

Members conducted an initial Article-by-Article analysis of the proposal for a draft Order in Council with assistance from the Assembly Legal Advisor and Research & Library Services.

5. Any other business

Dr O'Hagan proposed that the Committee should invite evidence from representatives of persons with past convictions for scheduled offences. Following debate, it was agreed that the Committee should write out to representatives from both sections of the community and to the Wave Trauma Centre.

6. Date and time of next meeting

The Committee agreed that it would next meet on Thursday, 11 October 2001 to hear evidence from the Committee on the Administration of Justice.

3.40pm the Chairperson adjourned the meeting.

Mr Roger Hutchinson MLA
CHAIRPERSON

16 October 2001

Tuesday 16 october 2001
room 135 parliament buildings.

Present: Mr Roger Hutchinson MLA, Chairperson
Mr Kieran McCarthy MLA, Deputy Chairperson
Mr Alban Maginness MLA
Mr Gerry McHugh MLA
Prof. Monica McWilliams MLA
Dr Dara O'Hagan MLA
Mr Ken Robinson MLA

Attendees: Mr Tony Logue, Committee Clerk
Mr Damien McVeigh

Apologies: Mr Alex Attwood MLA
Mr Billy Bell MLA
Mr Ian Paisley Jnr MLA

2.05pm the meeting opened in private session-Mr R Hutchinson in the Chair.

1. Apologies

The apologies were noted.

2. Draft Minutes of Proceedings

Dr O'Hagan proposed that under section 5 of the draft Minutes of Proceedings, the word "terrorist" be replaced by the word "scheduled". This amendment was agreed and the Chairperson put the question.

Resolved, that the draft Minutes of Proceedings for Tuesday, 9 October 2001, as amended, be agreed.

3. Matters arising

No matters were raised.

4. Correspondence

Members noted written submissions from Victims Support (Northern Ireland) and the Committee on the Administration of Justice.

The Chairperson advised members that representatives from Victims Support (NI) would attend the Committee's meeting on Tuesday, 23 October 2001 and that representatives from the Committee on the Administration of Justice would attend the Committee's meeting on Thursday, 25 October 2001.

5. Evidence from the Compensation Agency

2.16pm The Chairperson called the witnesses and declared the meeting open to the public.

Members heard evidence from Mr Frank Brannigan; Chief Executive of the Compensation Agency, on the operational running of the current scheme, and how in practice the Compensation Agency will administer the new tariff scheme. Mr Brannigan was accompanied by two senior officials from the Northern Ireland Office's Criminal Justice Services Division who were in attendance to clarify any points of a factual nature about the draft proposals. The officials were Mr Mark McGuckin, Head of the Criminal Services Division and Ms Amanda Patterson, Head of the Compensation Policy Unit.

6. Any other business

No other matters were raised.

7. Date and time of next meeting

The Committee agreed that it would next meet on Thursday, 16 October 2001 to hear evidence from the General Council of the Bar of Northern Ireland.

3.38pm the Chairperson adjourned the meeting.

Mr Kieran McCarthy MLA
DEPUTY CHAIRPERSON

23 October 2001

Tuesday 23 october 2001
room 135 parliament buildings.

Present: Mr Kieran McCarthy MLA, Deputy Chairperson
Mr David Ervine MLA
Mr Alban Maginness MLA
Mr Gerry McHugh MLA
Prof. Monica McWilliams MLA
Dr Dara O'Hagan MLA
Mr Ken Robinson MLA

Attendees: Mr Tony Logue, Committee Clerk
Mr Damien McVeigh

2.04pm the meeting opened in public session-Mr McCarthy in the Chair.

1. Apologies

No apologies were received.

3. Draft Minutes of Proceedings

Mr Maginness proposed that under section 5 of the draft Minutes of Proceedings, the names of two Northern Ireland Office officials should be recorded. This amendment was agreed and the Deputy Chairperson put the question.

Resolved, that the draft Minutes of Proceedings for Tuesday, 16 October 2001, as amended, be agreed.

3. Matters arising

No matters were raised.

4. Correspondence

Members noted written submissions from the Committee of the Centre and the Northern Ireland Human Rights Commission.

5. Evidence session

2.08pm The Deputy Chairperson called Victim Support Northern Ireland to be examined.

Members heard evidence from Victim Support on their role under the proposed new Criminal Injury Compensation Scheme. Representing Victim Support were-

Mr Oliver Wilkinson, Chief Executive;

Ms Joanne McKenna, Area Manager; and

Ms Joy Gray, Project Manager.

3.20pm The Deputy Chairperson called the Law Society of Northern Ireland to be examined.

Members heard evidence from the Law Society on their opposition to the introduction of a tariff system for compensating victims of violent crime. Representing the Law Society were-

Mr John Neill, President of the Law Society;

Mr Brian Stewart, Member of the Governing Council of the Law Society; and

Mr John Bailie, Chief Executive.

Mr John Caldwell, a senior solicitor from SD Crawford & Co., accompanied the Law Society representatives and provided evidence from his experience of the criminal injury compensation system.

6. Any other business

Members sought clarification from the Clerk on the remaining bodies that the Committee had requested submissions from. The Clerk informed members that he had sent invitations to all bodies requested by the Committee had and that he was awaiting formal responses.

7. Date and time of next meeting

The Committee agreed that it would next meet on Tuesday, 6 November 2001 to consider a draft Report on the Committee's proceedings.

4.05pm the Deputy Chairperson adjourned the meeting.

Mr Kieran McCarthy MLA
DEPUTY CHAIRPERSON

6 November 2001

Tuesday 6 November 2001
room 152 parliament buildings.

Present: Mr Roger Hutchinson MLA, Chairperson
Mr Kieran McCarthy MLA, Deputy Chairperson
Mr Alban Maginness MLA
Mr Gerry McHugh MLA
Prof. Monica McWilliams MLA
Dr Dara O'Hagan MLA
Mr Ken Robinson MLA

Attendees: Mr Tony Logue, Committee Clerk
Mr Damien McVeigh

Apologies: Mr Billy Bell MLA
Mr David Ervine MLA

2.15pm the meeting opened in private session-Mr McCarthy in the Chair.

1. Apologies

The apologies were noted.

2. Draft Minutes of Proceedings

Resolved, that the draft Minutes of Proceedings for Tuesday, 23 October 2001 be agreed.

3. Matters arising

No matters were raised.

4. Correspondence

4.1. Northern Ireland Office.

Members noted a written response from the Northern Ireland Office on a number of matters raised during the Committee's evidence session. Those matters were in relation to multiple injuries formula; insurance and pension payments; medical evidence; and loss of earnings.

Resolved, that the relevant responses be appended to the Committee's Report.

On a further point, members discussed the matter regarding the attendance of the officials at that session and the specific parameters of their attendance.

Resolved, that the Clerk make a formal response on behalf of the Committee.

4.2. Ex-Prisoners Interpretative Centre.

Members noted a written submission from the Ex-Prisoners Interpretative Centre on the proposed draft criminal injuries compensation scheme.

Resolved, that the submission be appended to the Committee's Report.

4.3. Coiste na n-Iarchimí

Members noted a written submission from Coiste Na n-Iarchimí on the proposed draft criminal injuries compensation scheme.

Resolved, that the submission be appended to the Committee's Report.

4.4. Northern Ireland Human Rights Commission

Members noted a letter from the Commission, which expressed their thanks for the opportunity to submit evidence to the Committee.

4.5. Association of Personal Injury Lawyers

Members noted a written submission from the Association of Personal Injury Lawyers on the proposed draft criminal injuries compensation scheme.

Resolved, that the submission be appended to the Committee's Report.

4.6. Law Society of Northern Ireland

Members noted a supplementary written submission from the Law Society of Northern Ireland, which outlined their proposals to improve the operation of the existing compensation arrangements.

Resolved, that the supplementary submission be appended to the Committee's Report.

2.26pm Mr Hutchinson joined the meeting and assumed the Chair

5. Draft Report on the Committee's Proceedings

Members considered a draft Report on the proceedings of the Committee.

2.53pm Mr Maginness joined the meeting.

Resolved, that a further draft shall be considered at the next meeting.

6. Any other business

No other matters were raised.

7. Date and time of next meeting

The Committee agreed that it would next meet on Tuesday, 13 November 2001 to consider a further draft Report on the Committee's proceedings.

3.15pm the Chairperson adjourned the meeting.

Mr Kieran McCarthy MLA
DEPUTY CHAIRPERSON

13 November 2001

Tuesday 13 november 2001
room 135 parliament buildings

Present: Mr Kieran McCarthy MLA, Deputy Chairperson
Mr Billy Bell MLA
Mr Alban Maginness MLA
Mr Gerry McHugh MLA
Prof. Monica McWilliams MLA
Dr Dara O'Hagan MLA
Mr Ken Robinson MLA

Attendees: Mr Tony Logue, Committee Clerk
Mr Damien McVeigh
Mr Hugh Widdis

2.15pm the meeting opened in private session-Mr McCarthy in the Chair.

1. Apologies

No apologies were received.

5. Draft Minutes of Proceedings

Resolved, that the draft Minutes of Proceedings for Tuesday, 6 November 2001 be agreed.

3. Matters arising

Members noted a briefing paper, provided by Research & Library Services, on the definition of mental injury under the proposed compensation Scheme. The Committee agreed that the wider definition was welcome and that the Committee's Report should reflect that.

4. Correspondence

Members noted a written response from Victim Support Northern Ireland (VSNI) regarding their position on the proposed formula for compensating minor multiple injuries. The Committee welcomed that VSNI had accepted the Committee's view that the proposed formula was not fair.

Resolved, that the response be appended to the Committee's Report.

6. Draft Report on the Committee's Proceedings

Members noted a draft Report on the proceedings of the Committee tabled at the meeting. Prof. McWilliams proposed that the Committee should focus on the Committee's comments and recommendations, having considered a first draft at the Committee's previous meeting.

Resolved, that the Committee approves sections one through three.

Members considered Section 4 - Committee's consideration of the proposals.

Paragraphs 65 - 67 read and agreed.

Recommendation 1 read and agreed.

Paragraph 68, Prof. McWilliams proposed that the Committee's comments, discussed under matters arising, should be appended to paragraph 68. This amendment was agreed.

Recommendation 2 read and agreed.

Paragraph 69, Mr Maginness proposed that the word 'ability' be replaced by 'capacity'. This amendment was agreed.

Paragraph 70, Prof. McWilliams proposed that the words 'who said' be replaced by 'which stated'. This amendment was agreed.

Paragraph 71, Mr Bell proposed that the word 'ability' be replaced by 'capacity'. This amendment was agreed.

Paragraphs 72 read and agreed.

Recommendation 3 read and agreed.

2.37pm Prof. McWilliams left the meeting.

Recommendation 4, Mr Robinson proposed that the word 'appropriate' be replaced by 'increasingly pro-active'. This amendment was agreed.

Paragraphs 73 read and agreed.

Paragraph 74, Dr O'Hagan proposed that reference should be made to the Sentences Act 1998; the NI Human Rights Commission's comments in their consultation on a Bill of Rights for Northern Ireland; and the Equality Commission for Northern Ireland's comments highlighted in their comments on the Single Equality Bill. Following debate, it was agreed that footnote would be added.

Recommendation 5 read and agreed.

Paragraphs 75 read and agreed.

Recommendation 6 read and agreed.

Paragraphs 76 - 79, Mr Maginness proposed that these paragraphs be broadened to include the following issues:

the principle that individual pain and suffering should be compensated on an individual basis;

the fact that the values listed in the proposed Tariff are at variance with current Northern Ireland averages and the "Green Book" guidelines; and

the uncertainty, complexity, and frustration that may arise from the adoption of the proposed Tariff banding.

Following debate, it was agreed that the Committee's Report should highlight these issues.

Recommendations 7 and 8 read and agreed.

Paragraphs 80 - 84 read and agreed.

Following further deliberations, it was agreed that the Committee's Report should also refer to the views that had been expressed in relation to special expenses and deductions from awards.

Mr Maginness proposed that the Chair should have leave to approve the final amendments to the Committee's Report.

Resolved, that the Chair shall have leave to approve the Committee's Report.

6. Any other business

The Deputy Chairperson proposed that the Chair should have leave of the Committee to approve the Minutes of Evidence for 16 and 23 October and the Minutes of Proceedings for 13 November 2001.

Resolved, that the Chair shall have leave to approve the Minutes of Evidence and Proceedings.

7. Date and time of next meeting

The Committee agreed that it would not hold any further meetings.

3.03pm the Deputy Chairperson adjourned the meeting.

Mr Kieran McCarthy MLA
DEPUTY CHAIRPERSON

15 November 2001

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APPENDIX 2

LIST OF WITNESSES

The Compensation Agency

Mr Frank Brannigan, Chief Executive

The Law Society of Northern Ireland

Mr John Neill, President

Mr Brian Stewart, Governing Council

Mr John Bailie, Chief Executive

Mr John Caldwell, Senior Solicitor, SD Crawford & Co.

The Northern Ireland Office

Mr Mark McGuckin, Head of the Criminal Justice Services Division

Ms Amanda Patterson, Head of the Compensation Policy Unit

Victim Support Northern Ireland

Mr Oliver Wilkinson, Chief Executive

Ms Joanne McKenna, Area Manager

Ms Joy Gray, Project Manager

APPENDIX 3

MINUTES OF EVIDENCE

Tuesday, 16 October 2001 39

Evidence from-

The Compensation Agency; and

The Northen Ireland Office.

Tuesday, 23 October 2001: Session I 49

Evidence from Victim Support Northern Ireland

Tuesday, 23 October 2001: Session II 59

Evidence from the Law Society of Northern Ireland

MINUTES OF EVIDENCE

Tuesday 16 October 2001

Members present:

Mr R Hutchinson (Chairperson)

Mr McCarthy (Deputy Chairperson)

Mr A Maginness

Mr McHugh

Ms McWilliams

Dr O'Hagan

Mr K Robinson

Witnesses:

Mr F Brannigan ) Compensation Agency

Mr M McGuckin ) NIO

Ms A Patterson ) NIO

The Chairperson: I thank you for coming here today. Would you like to introduce yourselves?

Mr McGuckin: I am Mark McGuckin, head of the Criminal Justice Services Division at the Northern Ireland Office (NIO). My division is responsible for policy in that area. Frank Brannigan is the chief executive of the Compensation Agency. Amanda Patterson is the head of the Compensation Policy Unit in my division. Ms Patterson will begin by providing some background information to help put the draft legislation into context. Mr Brannigan will give us some information on the impact that the legislation would have on the Compensation Agency.

Ms Patterson: It might be useful to begin by looking at the draft legislation's origins. It was not originally brought about by the Compensation Agency or the NIO. It began as a recommendation made by Sir Kenneth Bloomfield when he was the Northern Ireland Victims Commissioner. In his report on victims of the troubles, 'We will Remember them', he said that the time had come for an objective, independent and wide-ranging review of the fitness for purpose of the compensation system. He said that because he had heard many criticisms of the compensation process during the review period. Paragraph 5.9 of his report states that

"many of those victims to whom I spoke found the procedures complex, baffling, frustrating and on occasion humiliating."

The report's recommendations were accepted by the Government in April 1998, and, in September 1998, the Government established an independent review of the criminal injuries compensation system in Northern Ireland. Sir Kenneth Bloomfield again chaired that review, and he was joined by Professor Desmond Greer, professor of common law at Queen's University, and Mrs Marion Gibson from the South and East Belfast Health and Social Services Trust.

Paragraph 1.2 of 'Review of Criminal Injuries Compensation' outlines the terms of reference for the review. It was to advise the Government on

"the fitness for purpose of criminal injuries compensation arrangements in Northern Ireland in the light of the experiences of victims of terrorist violence; and on how any shortcomings in the arrangements identified in the course of this exercise might be rectified for the future in any new statutory framework providing for a system of criminal injuries compensation in Northern Ireland. The Review will take account of lessons to be learnt from the way in which other jurisdictions compensate the victims of violent crime and the need for fairness, equity openness and affordability."

The review's report on that complex matter was published in July 1999. It contained 64 recommendations.

The report exposed many major issues. As Sir Kenneth Bloomfield had originally suggested, there was a need to provide a more straightforward, simpler process by which victims could access compensation for their injuries as a result of violent crime, at a time when they needed to be treated with sensitivity.

Sir Kenneth also recommended that a tariff system should be drawn up to pay compensation in place of the common-law based system. The recommendation in the report restricted that tariff to the less serious injuries, and he recommended that the common law system should be maintained for more serious injuries - injuries that would affect the remainder of the victim's life.

He recommended that several changes to the eligibility criteria should be introduced to widen access to compensation for victims and that the system of appeal to the court be retained. The report was then put out for consultation for several months until November 1999. The Government examined the responses to the consultation exercise, and in July 2000 they published their response, in which they accepted almost two thirds of the Bloomfield report's recommendations.

10.

The scheme evolving at that stage was tariff-based; it would not be a hybrid scheme and there would not be two ways to assess compensation. Appeals to the court would be changed so that an individual could appeal to an independent appeals panel set up on the same basis as that in Great Britain. The new scheme would also mean that there would no longer be any need for legal advice to be funded under the scheme, considering its simplicity and straightforwardness. Instead, the Government would provide extra funding to Victim Support Northern Ireland (VSNI) for it to provide the necessary help and assistance to people appealing against a decision made by the Compensation Agency.

11.

That response was published in July 2000, and, in June 2001 the draft legislation was published to allow for a tariff scheme to be introduced in Northern Ireland early next summer. The scheme is similar to what has operated in Great Britain since 1996. A few changes and differences have been made to allow for the ways in which Northern Ireland's compensation system has evolved over the years.

12.

The tariff was formulated using the current Northern Ireland average values as its benchmark. Therefore, no one should be any worse off under the new scheme.

13.

Mr Brannigan: Ms Patterson and Mr McGuckin are involved in the formulation of the policy. However, because the Compensation Agency is a Next Steps agency, it is responsible for the service delivery of the legislation. The Compensation Agency is currently operating under the Criminal Injuries (Compensation) (Northern Ireland) Order 1988, and it endeavours to move to the 2001 tariff scheme. Many of the agency's expectations of how the new scheme will operate have been drawn from the rest of the United Kingdom, in which the tariff scheme has operated for some time.

14.

Under the 1988 Order, the agency relies on the applicant's solicitor to provide it with the bulk of the documentation required to sustain liability. For instance, medical reports and pecuniary loss details are provided to the Compensation Agency by the applicant through his solicitor, which can take a long time. Under the new arrangement, the agency would obtain medical evidence from the hospital or GP, and also the pecuniary loss details. Therefore, the onus would shift to the agency to form the claim.

15.

The common law scheme currently operates in Northern Ireland, which means that applicants have no idea of the value of their injury. However, under the tariff scheme, they will know from the outset or when their condition has stabilised what the approximate value of their claim will be.

16.

The Compensation Agency currently has an extensive paper file system. Thousands of claims are being processed in the office. Under the new arrangements, an opportunity has arisen to introduce an electronic file system, document management and work flow. Those will produce two benefits. One benefit is that it will make it possible for the agency to cut down on its administrative costs. Approximately 94 people are involved in processing criminal injury claims. When we are up and running and have more experience we expect to reduce that number to approximately 21 people.

17.

However, a bigger change, from the applicant's point of view, is that he or she would not have to face the possible further traumatisation of having to appear before the County Court. It would be much more in the applicant's favour - if he or she needed to appeal - to appeal to an informal appeals panel, which would be separate from the County Court.

18.

I have some statistics that may help the Committee to understand the present scheme. The agency believes that it will be a simpler, quicker and a much less bureaucratic method of obtaining compensation for people who have been the innocent victims of violent crime. Operationally, it will be better for the agency because it will have a more hands-on approach with applicants than it does at present. Although the agency processes about 13,000 claims per year, we rarely, if ever, see any of the applicants; all correspondence goes through their legal representatives. For that reason, there can be a delay in claims being resolved.

19.

The agency receives around 14,000 to 15,000 claims per year. Of those claims, it clears around 12,000. This year, the agency expects to spend slightly more than £55 million. The average value of a claim is around £6,500, which includes the applicant's solicitor's costs. Interestingly, 94% of claims are below £10,000. Therefore, serious injury claims are the exception. At present, 23,000 claims are undecided; that excludes 5,000 claims that are under appeal and have yet to be resolved. When the new scheme comes into operation, it will take the agency between three and four years to resolve the current claims. Due to the appeals process, it may take longer for those claims that are under appeal.

20.

The current average time taken to resolve a claim is around 45 weeks. The Compensation Agency expects to be able to clear claims more quickly in future, because it will be responsible for the collection of information. At present, the collection of information lengthens the time taken to resolve a claim. In the attitude surveys that the agency conducts every two years, the perennial complaints are that it either takes too long to make a claim or people do not know what is going on. We hope that the introduction of the new scheme will overcome those difficulties.

21.

The Chairperson: Thank you very much.

22.

Mr A Maginness: The Compensation Agency's objective is to produce a fairer, more equitable and more affordable system. I can see how the new scheme would be more affordable for the Northern Ireland Office, but how is it fairer and more equitable?

23.

Mr McGuckin: To assess the equity and fairness of the system, we must look at Sir Kenneth Bloomfield's report. Equity and fairness relate to how a victim is treated by the system that seeks to compensate that person for the trauma that was experienced. The tariff scheme should result in a better experience for the victim, both in how he or she is treated by the system and how the process of being appropriately compensated for his or her loss actually happens.

24.

Ms Patterson: Sir Kenneth Bloomfield's view, and that that he received from many victims, was that a vast misunderstanding of the basic principles of common law existed. Therefore, those people felt that there was disparity and inequity, because people with similar injuries to theirs had received different amounts of compensation. They could not understand how someone who had lost an arm in similar circumstances received more compensation. They could not understand that under common law, quantum was assessed on the basis of the loss to the individual. Sir Kenneth saw his recommendations as ways to even out the perception of unfairness and inequity.

25.

Mr A Maginness: Why did you not accept the Bloomfield report's recommendations that compensation should not be tariff-based for more serious injuries?

26.

Ms Patterson: Ministers decided not to accept those recommendations, so they should answer that question.

27.

Mr A Maginness: How is that more equitable and fair?

28.

Ms Patterson: Again, to a large extent, that is a question of perception. A small number of people would fall into the band of those who would continue to receive an award if the common law element were retained. Although the system is tariff-based, under that system the claims of those with more serious injuries would still effectively be assessed on the basis of not only damages for pain, suffering and loss of faculties, but for pecuniary loss and special expenses. For those with serious injuries, everything that was assessed under common law would be assessed under tariff. Therefore, there is not much difference.

29.

Mr A Maginness: Did the Bloomfield report recommend a total abolition of the right to appeal to a County Court?

30.

Ms Patterson: Yes, with the tariff cases.

31.

Mr A Maginness: Did he not recommend an internal appeals system?

32.

Ms Patterson: He recommended an internal review system.

33.

Mr A Maginness: Therefore, he offered an internal review system within the Compensation Agency. If people were dissatisfied, they could refer to the County Court. With the new system, the courts are excluded. Additionally, people are deprived of the right to legal assistance.

34.

Ms Patterson: We looked at the scheme that has been in operation in Great Britain for approximately five years. Under a tariff scheme that was more straightforward and easier to access, it appeared that there was no significant problem with people making a claim without legal assistance. Given the historical differences in the arrangements here and in Great Britain, the only way that that could be done here was to ensure that advice was available from some source. That source would be VSNI. The same operation exists in Britain, but we felt that VSNI would provide a better service than that provided by Victim Support in Great Britain, where the scheme is bigger.

35.

Mr A Maginness: Do you agree that this is a complex area of statute-based law?

36.

Ms Patterson: It is common law.

37.

Mr A Maginness: No, it is statute law. Criminal injuries legislation is based on statute.

38.

Ms Patterson: Yes, but it was based on common law, and that is where the difficulties and the negotiation -

39.

Mr A Maginness: The determination of an award is based on common law, but the actual source of decision making is criminal injury legislation, which is totally statute-based. It is not common law at all. In view of its complexity, should people not have a right to legal assistance in that area of law? They appear before a tribunal rather than a court. Should they not receive legal advice?

40.

Ms Patterson: That is a question for Ministers.

41.

Mr A Maginness: You are here on the Minister's behalf.

42.

Ms Patterson: Indeed. However, the new criminal injuries compensation scheme based on the tariff rather than common law makes the whole procedure clearer and simpler.

43.

Mr A Maginness: With respect, the law that determines whether a person receives compensation is complex and governed by statute. I am sure that Mr Brannigan has plenty of experience in that regard. Many issues arise before compensation is even granted, yet you tell the Committee that it is much better if people do not have access to lawyers and that the state should not assist them in seeking compensation by ensuring legal advice or representation before the panel.

44.

Ms Patterson: In our view, the new scheme is simpler and more transparent. It means that people would no longer require legal advice. If they still felt that they wanted such advice, they would have every right to seek it, but they would have to fund it themselves. The difference is that the public money that funded legal advice under the existing compensation scheme is now being used to widen access to cover more victims.

45.

Mr A Maginness: Ms Patterson refers to the tariff system as simpler, and one can see that. However, I do not accept that it is equitable. The law on the matter is not simpler; it remains complex, and there are all sorts of hurdles to surmount. To reach the point of compensation, good legal advice is needed. Have the Government not taken that into consideration?

46.

Mr McGuckin: The draft legislation is based almost entirely on the recommendations made by Sir Kenneth Bloomfield after detailed examination and consultation with a wide variety of interests, including victims' representatives. He concluded that, in the vast majority of cases, it was much more appropriate to have a tariff scheme operating on the basis outlined by Ms Patterson. Although Ministers have made a judgement on extending the scheme, the issues involved in concluding liability are the same as those that will apply to the tariff scheme.

47.

Mr A Maginness: How is that possible? How do you come to that conclusion?

48.

Mr McGuckin: It is the same process in law as under the tariff scheme. You make the point that the process of agreeing liability is legally more complex.

49.

Mr A Maginness: You do not eliminate that process. It is still there whether a tariff scheme, or any other scheme is in place.

50.

Mr McGuckin: Sir Kenneth Bloomfield and his team recommended that a tariff scheme was appropriate in the vast majority of cases.

51.

Dr O'Hagan: Did Sir Kenneth Bloomfield not recommend that a tariff scheme be put in place for claims up to £5,000?

52.

Ms Patterson: No. He recommended that a tariff scheme be put in place for claims up to level 10 on the Great Britain tariff, which is £5,000. In Northern Ireland, those claims would be liable to be settled for a much higher amount than £5,000, probably at around £10,000.

53.

Mr Brannigan: Only 6% of the claims are above £10,000.

54.

Ms McWilliams: Mr McGuckin said that, in taking evidence, Sir Kenneth Bloomfield concluded that the vast majority of victims would have recommended, or would have favoured, a tariff scheme. My understanding was that the vast majority of victims were in favour of changes, rather than of a tariff scheme. Having given evidence to Sir Kenneth Bloomfield's committee, and talked to him at the time, I am not sure that any of the victims' organisations knew what a tariff scheme was.

55.

Mr McGuckin: After his consultation, Sir Kenneth Bloomfield and his team concluded that a tariff scheme would be the most appropriate system. Whether that represents the views of everyone to whom they spoke, including the victims, I cannot say. I am grateful that you picked me up on that.

56.

Ms Patterson: The victims were not happy with the present scheme. Many people did not know what a tariff scheme was. Sir Kenneth, in looking at the alternatives, saw the tariff scheme as the only way to address the problems expressed to him by many of the victims. VSNI supported a tariff scheme, as it was familiar with the GB model.

57.

Ms McWilliams: Thank you for that clarification. There is a distinction between wanting changes and knowing what those changes would be. If you had another consultation, which outlined potential changes, you might receive a different response.

58.

I wish to take up Mr Maginness's point that people cried out for transparency, although they did not necessarily argue that the current system created more equity and fairness. There is a difference between the two. Changes to the older system could have made it more transparent, and, in turn, the missing information could have been put in place.

59.

Mr Brannigan referred to the benchmarks of the current system. Do you agree that some of the problems lie in the current benchmarks system, and that there could have been greater clarity, without throwing out the baby with the bath water?

60.

I am interested in the pre-1996/post-1996 English situation. Are there any research papers on pre-1996 English situation, which is similar to our own? It changed over to a tariff system post-1996.

61.

Ms Patterson: Yes.

62.

Ms McWilliams: How has that been monitored? You said that it was monitored in relation to legal advice, but has it been monitored in relation to satisfaction with the system?

63.

Ms Patterson: I cannot answer that completely. The Home Office reviewed the GB system last spring, and people were consulted. In general, respondents expressed satisfaction with the operation. There has also been some academic research, but I cannot give any detail on that.

64.

Ms McWilliams: I was concerned at your statement that the applicant would know the value of the injury, when the situation had stabilised. Even cases involving similar injuries can have different outcomes.

65.

Mr Brannigan: When we talk about stabilisation, we are talking about very serious injuries. Most claims that we receive are for around £6,500; they do not involve the most serious injuries. Someone who sustains a broken arm will understand his condition immediately, but there are different things to be considered with, for example, a scar. In that case, the effect of that injury on, say, a 21-year-old girl who frequently appears on television would be much greater. There would be a tremendous difference in the cost of that injury to that individual. In such cases, it would not have been possible to fix a tariff or guidance on how much compensation a claimant might expect to receive.

66.

Ms McWilliams: In other words, it is difficult to make an assessment in cases in which there is, for instance, a risk of the onset of arthritis. Similar injuries can have different outcomes. How would the new system be more equitable?

67.

Mr Brannigan: It will be more transparent.

68.

Mr McHugh: I am not sure whether your answers have clarified things. Bloomfield's review said that claimants found the present system baffling and humiliating: I cannot see how the new system will be any different. Similar tribunals involving the Social Security Agency are much simpler, but, even at those, claimants might need to be accompanied by a barrister. I do not understand how you could describe as informal a situation in which an individual must deal with a panel, as opposed to his local solicitor. I cannot see how an individual will be able to defend himself, given that he will be presented with points of law in which those sitting on the panel will be expert. How would that system be fairer, simpler, or more helpful to a claimant?

69.

You said that an attempt was being made to reduce the variation in compensation awards, but each claimant will see his case differently. For instance, one individual who nearly gets blown up might consider himself lucky to have escaped, whereas another might be so traumatised by the event that his life will be changed. Vast differences exist, but they cannot be quantified financially.

70.

Under the old system, if the victim of, for instance, a rape was unable to continue her career, she would be compensated for the loss of earnings, which could total £1 million or more. Under the new system, that victim could receive just £7,500. I do not see how the new system will benefit anyone, especially in cases where the decisions will be made not by a solicitor, but by a panel that is trying to save the Government's money.

71.

Ms Patterson: The proposal to have an independent appeals panel, as opposed to using the County Court, was an attempt to respond to victims' concerns, as expressed in evidence taken during the Bloomfield review and during the subsequent consultation exercise. One of the experiences that victims identified as most traumatic was the appearance in the County Court, where they might have had to appear alongside people who had committed criminal offences. People complained about having to sit in a public place. They saw themselves being labelled as having committed the crime rather than being recognised as the victim. Those views were expressed at the evidence sessions during the review. The establishment of an independent criminal injuries compensation appeals panel along the lines of the long-standing Great Britain model was an attempt to get away from that, so that they would not have to appear in a court, and would not see themselves as being labelled as a criminal.

72.

Mr McHugh: People wanted change, and they put that across to Bloomfield. The problem is that we have thrown the baby out with the bath water. The tribunal might mean that victims no longer need to go into a court, but if they have no legal representation, they are still on their own. They will still end up worse off.

73.

Ms Patterson: We also wanted to remove the victim from the adversarial process. That process would not be as apparent in an independent panel as it would be in a County Court. The victim will not have to attend the appeals panel without any support; they have the right to be legally represented, or they can be assisted by specially trained staff from Victim Support, who will help victims attend the appeals panel and go through the case with them.

74.

Mr McHugh: Is not Victim Support the wrong organisation to do that? In the past, it was not normal practice for someone to be referred to Victim Support. In rape cases, victims were referred to women's centres for help.

75.

Ms Patterson: Victim Support carries out that function in Great Britain. Victim Support Northern Ireland can draw on the methods of its counterpart organisation in Great Britain and build on that to provide a service here.

76.

Mr McGuckin: Victim Support can provide expertise in the processing of claims. The support offered by other organisations such as Women's Aid for specific issues and specific types of claimant will still be available. Those organisations would argue that theirs is a different form of support.

77.

Mr K Robinson: We have a complicated task. I was cheered to hear that we might be able to reduce the number of legal eagles and civil servants from 94 to 21. That was a big plus.

78.

I am interested in the role of Victim Support. The new system may be transparent, but I am not convinced that it is fair. Under the new system, the victim goes to a tribunal and is spared the rigours of the court; that is a plus. What quality of support can Victim Support give the client? Is there not still a danger that the client will leave the process feeling like a spectator and that the dice were loaded against him?

79.

Ms Patterson: The new system is an attempt to overcome the feeling that the negotiation process took place over the head of the victim and left him without a say. Most claims are straightforward and do not involve huge amounts of money; we have figures on the number of claims involving sums below £10,000. At that level, Victim Support will contact someone who has been the victim of a violent crime and ask whether they want any help with the application for compensation. Many people may refuse; others may accept the assistance, in which case VSNI will help them to complete the relevant form and make the application to the Compensation Agency. If requested, Victim Support will continue to offer assistance with further correspondence from the Compensation Agency. The third stage of assistance involves cases that go to appeal.

80.

Mr Brannigan: Around 65% of our decisions are the subject of appeals.

81.

Ms Patterson: That will decrease because of two factors. First, there is now an internal review system in the Compensation Agency, which will review the first decision and reduce the need for appeals. Secondly, with a tariff system, there will be less need to negotiate the quantum, because the level of compensation will be set from the start. Appeals will be concerned only with eligibility. By appeal stage, VSNI will provide people trained to represent the victim before the tribunal.

82.

Mr K Robinson: Given the number of cases, will there be enough trained people?

83.

Mr McGuckin: I understand the point. We draw on experience in Great Britain, so we can consider the effectiveness of that scheme, the numbers involved and the level of expertise and experience required. We have discussed the scheme with VSNI and have identified the number of people required. Training for the scheme is in preparation.

84.

The system is new, and we shall keep a close eye on it, monitoring the performance of VSNI and the number of claims going through each stage of the process. However, there will be a gradual build-up once the scheme is implemented. There will be a number of claims at the start; in time, some will be settled, while others may go through the review and appeal stages. That gradual build-up will give us enough flexibility to monitor performance and consider whether we have the right number of people available to provide support.

85.

Mr K Robinson: How can we ensure that those people are up to the job? If a client is halfway through the process and realises that his adviser is a trainee, can he stop the system and change tack?

86.

Ms Patterson: The claimant has a right to legal representation at any stage.

87.

Mr K Robinson: Can a claimant blow the whistle and say, "Stop"?

88.

Ms Patterson: Yes. However, the scheme will not fund legal advice. The claimant would have to apply for legal aid.

89.

Mr K Robinson: Would not that create an equality problem? Some people would be able to fund their legal advice, but others might not, despite legal aid, and they might decide that they do not want - or cannot afford - to follow that tack.

90.

Ms Patterson: That is why we must ensure that the service provided by Victim Support deals with that problem.

91.

Mr K Robinson: If, for whatever reason, Victim Support's assistance fails, the client will be left in an invidious position.

92.

Ms Patterson: If the client engages legal assistance without legal aid, the legal fees would have to be settled out of the compensation award.

93.

Mr K Robinson: That puts the client at a disadvantage.

94.

Ms Patterson: There would be a financial disadvantage.

95.

Mr McCarthy: What financial support and staff will Victim Support Northern Ireland have to allow it to fulfil its new role? Who will indemnify Victim Support Northern Ireland against a claim for negligence?

96.

Mr McGuckin: We have been working closely - "negotiating" is probably the wrong word - with Victim Support to identify the resources that it needs to deliver its function. We have reached an agreement with them about resources. We will need to monitor that matter as we get more experienced, so that we can respond to any changes. We need to discuss the issue of indemnity with Victim Support.

97.

Dr O'Hagan: We are all agreed that crime - violent crime especially - generally, though not always, occurs in particular areas. Certain sections of the population suffer disproportionately from crime, and areas of high incidence of crime correspond to areas of disadvantage. If legal aid is being taken away, would not that have an adverse impact on people on low income? Has the new scheme been equality-proofed? Has it also been human rights-proofed? I am thinking here of the right of victims to legal representation?

98.

Ms Patterson: Legal aid is not being withdrawn; the difference is that, under the compensation scheme, there will no longer be funding for legal assistance. Under the new arrangements, people will not need legal assistance, because of the straightforward nature of the new tariff scheme.

99.

The scheme has been put out for consultation and Assembly Members and others have been consulted. We will consider the equality issues when those responses are returned.

100.

Dr O'Hagan: Has the scheme been equality-proofed?

101.

Ms Patterson: That is happening.

102.

Dr O'Hagan: The position of ex-prisoners was a big issue in the Bloomfield report. It seems that there is little in this scheme that differs from the previous one; ultimately, the Secretary of State will decide whether someone who has a previous conviction will be given compensation. How will that work? What evidence will be given to the Secretary of State? Will it be hearsay, speculation or hard evidence? Will people who have been disallowed from the scheme have access to the evidence? Are there any examples from the old scheme of the Secretary of State's using his or her discretion to decide that compensation should be paid? How many times was that discretion exercised and why was it exercised?

103.

Ms Patterson: Under the current scheme, people with terrorist convictions are banned from claiming compensation. Under the new arrangements, all convictions will be treated in the same way, and a penalty points system will be introduced, which will be the same as the system in Great Britain. The Secretary of State will refuse or reduce compensation, depending on the length of the sentence and how long it has been since the sentence was passed. That will be the case, regardless of what the conviction was for.

104.

Dr O'Hagan: We are emerging from a political conflict. Will any distinction be made between people who were in jail for political reasons and people who were in jail for non-political reasons?

105.

Ms Patterson: No, the scheme does not recognise anything like that.

106.

Dr O'Hagan: How will the scheme work? What evidence will be given to the Secretary of State?

107.

Ms Patterson: There is no discretionary provision, as there is under the current scheme; it has been removed. People cannot appeal to the Secretary of State, because there is no outright ban on anyone with a terrorist conviction. There is a normal right of appeal to the appeals panel.

108.

Dr O'Hagan: Is it not correct to say that, ultimately, the decision is still at the discretion at the Secretary of State?

109.

Ms Patterson: The penalty points system will apply to people with a criminal record, regardless of what that record contains.

110.

Dr O'Hagan: Is it not correct to say that, ultimately, the decision is still at the discretion of the Secretary of State? Paragraph 14 of the scheme suggests that.

111.

Ms Patterson: The Secretary of State can refuse compensation. However, that could be done for one of several reasons; it does not relate only to a specific group of people. Anyone has the right of appeal to the appeals panel. It would be up to the Secretary of State - that is to say, the Compensation Agency - to make the case for refusal to the appeals panel in exactly the same way as the appellant must make his case.

112.

Dr O'Hagan: Paragraph 14 refers to the discretionary power of the Secretary of State. That is, in effect, the same as in the old scheme.

113.

Ms Patterson: It is not.

114.

Dr O'Hagan: We must be reading from different texts.

115.

Ms Patterson: The new scheme is not the same as the current one.

116.

Mr Brannigan: Under the existing scheme, there is an absolute bar on anyone who, at any time, has been engaged in any terrorist activity. When the agency considers a case, it asks for the applicant's criminal record. If the record shows a terrorist conviction, the agency automatically disallows the claim. The legislation allows an applicant who has had a claim refused on the grounds that he is a former member of a terrorist organisation to ask the Secretary of State to exercise his discretion. In practice, that decision is devolved to the Minister of State. If the Minister decides that it is in the public interest to pay the compensation that would have been paid, had it not been for the disbarment, it will be paid. The Minister does not exercise that discretion often, but it has been exercised in the applicant's favour on several occasions.

117.

Similar provisions exist under the criminal damage legislation and in the criminal injuries legislation. I cannot say, off the top of my head, how many times that discretion has been exercised, but it will be a small number. Only a small number of applications are made; I guess that we have no more than four or five applications a year under that provision.

118.

Dr O'Hagan: How will the new scheme operate any differently? It is my understanding that the discretion rests, ultimately, with the Secretary of State.

119.

Ms Patterson: No. Discretion is on the basis of the statute. Under the new scheme, the Secretary of State may withhold or reduce an award in a variety of circumstances. No particular group is excluded, and there is no outright ban. If a compensation claim is refused, that will be because of the statutory provisions; it will have nothing to do with the discretion of the Secretary of State. The person will have criminal convictions that fall within the penalty points system. That will be included in the guidelines to the scheme. People will be able to see what the relevant length of sentence is, and how long it will be before that individual will be eligible for compensation again. If the person wishes to appeal, he can take the case to the independent appeals panel, and their decision is final.

120.

Dr O'Hagan: Thank you for illuminating that point. Does that situation also obtain in England, Scotland and Wales?

121.

Ms Patterson: Yes.

122.

Dr O'Hagan: Who will be on the appeals panel? I have figures that show that, in Britain, the independent appeals panel upholds 75% of the appeals. Does not that show how flawed the original process is?

123.

Ms Patterson: The appeals panel in Northern Ireland will be appointed according to the principles laid down by the Commissioner for Public Appointments. We will soon reach the stage of advertising for membership. The appointments will be made on the basis of professional knowledge, experience and any other skills that are deemed suitable.

124.

Northern Ireland's appeals system must be judged on its merits when the time comes. I cannot comment on the figure that you quoted, because I do not have the relevant information in front of me.

125.

Mr A Maginness: My questions are technical. Are the tariff plans index-linked? If not, why not?

126.

Ms Patterson: No, they are not. They will be reviewed every three years.

127.

Mr A Maginness: Why are they not linked between reviews?

128.

Ms Patterson: It is exactly the same system as that in Great Britain.

129.

Mr A Maginness: Would it not be fairer to have the tariff system index-linked between reviews so that they at least retain their original value?

130.

Mr McGuckin: There are several methods. One way is to index-link it, another is to link it closely to common law settlements, which will continue in other areas in Northern Ireland. Another is to have an annual, biennial or triennial review. Ministers balanced the arguments for each of those, and decided on a triennial review.

131.

Mr A Maginness: Will back payments be made to victims?

132.

Mr McGuckin: There is no provision for that in the legislation.

133.

Mr A Maginness: I thought that there might be no provision. Paragraph 27 of the draft of 'The Northern Ireland Criminal Injuries Compensation Scheme 2002' deals with multiple injuries. Do you not accept that, in some cases, the application of that formula would leave victims under-compensated? I do not refer to victims with such clear-cut injuries as a broken arm or leg.

134.

Ms Patterson: Perhaps, I should have made it clear that it was decided that the tariff scheme introduced as a result of the Bloomfield review should be, as far as is possible, on a par with the scheme in Great Britain. A substantial amount of the draft legislation already applies to claimants in the rest of the United Kingdom.

135.

Mr A Maginness: That formula has no reference to the Bloomfield review?

136.

Ms Patterson: Yes, the Bloomfield review did have a formula.

137.

Mr A Maginness: Does it reflect that?

138.

Ms Patterson: I cannot answer that now.

139.

Mr A Maginness: You could perhaps come back to us on that. Concern has been expressed, both around this table and by VSNI.

140.

Ms Patterson: Sir Kenneth Bloomfield's view was that any reasons peculiar to Northern Ireland for it to be considered different to the system in Great Britain should be taken into account.

141.

Mr A Maginness: Under the scheme, insurance and pension payments made by applicants in the course of their lives and work would be deductible from pecuniary loss. Do you believe that it is equitable and fair that such reductions would be made in pecuniary compensation?

142.

Mr Brannigan: That is not the case under the current system.

143.

Mr A Maginness: Why then do the Government choose to put it under the proposed system?

144.

Mr Brannigan: State benefits are deductible under the current scheme.

145.

Mr A Maginness: What about insurance and pension payments?

146.

Ms Patterson: Again, that was to achieve parity with Great Britain.

147.

Mr A Maginness: It may achieve parity, but does it achieve equity and fairness, which was your premise in the first place?

148.

Ms Patterson: It achieves parity with Great Britain.

149.

Mr A Maginness: Does it achieve fairness and equity?

150.

Ms Patterson: I cannot answer that question.

151.

Mr A Maginness: Perhaps you choose not to answer it. Does it achieve equity, Mr Brannigan?

152.

Mr Brannigan: I must confess that I did not think that it would be dissimilar to the present arrangements. I see the logic behind deducting state benefits, which is what happens at present.

153.

Mr A Maginness: The present system does not pay out twice.

154.

Mr Brannigan: My knowledge of the intent of the scheme does not allow me to comment on that.

155.

Mr A Maginness: How does the proposed reduction in the limitation period from three to two years achieve fairness and equity?

156.

Ms Patterson: It achieves parity with Great Britain. There is no flexible statutory time limit under the current arrangements. After three years have passed, that is it, or in the case of a minor it is three years from the age of 18. Although the statutory time limit will be reduced to two years under the new arrangements, it will be flexible, and it could be waived in the interests of justice.

157.

Mr A Maginness: Is that when a minor reaches 20 or 21?

158.

Ms Patterson: There is no difference. The two-year limit is flexible, so a minor who was injured can make a claim at any age. That claim will be assessed, and, provided it is in the interests of justice, the time limit will be waived. That was recommended by Sir Kenneth's review.

159.

Mr A Maginness: What criteria are used to determine the exercise of discretion, and who exercises that discretion?

160.

Ms Patterson: The Compensation Agency's officers.

161.

Mr A Maginness: It would not be an independent panel?

162.

Ms Patterson: It is possible to appeal to an independent panel.

163.

Mr A Maginness: Will the agency provide medical evidence, and evidence of pecuniary loss?

164.

Mr Brannigan: Yes.

165.

Mr A Maginness: Is that medical evidence disclosed to the applicant?

166.

Mr Brannigan: Yes.

167.

Mr A Maginness: Is the pecuniary loss information also disclosed to the applicant?

168.

Mr Brannigan: Sometimes we must ask the applicant to provide evidence of pecuniary loss, because no agency would be able to provide wage details. We can only obtain those details from the applicant.

169.

Mr A Maginness: Is a victim able to choose a certain doctor for certain reasons, or does the agency make that decision?

170.

Mr Brannigan: We would seek the information from the doctor who treated the injury.

171.

Mr A Maginness: That is not correct. In most circumstances, a specialist will look at the injury in order to provide information, not only the doctor who treated the injury.

172.

Mr Brannigan: Most claims are dealt with as a result of information provided by a hospital or a GP.

173.

Mr A Maginness: It is impossible to rely on hospital notes. You are the gatherer of the information as well as the judge, so why do you rely on hospital notes?

174.

Mr Brannigan: We are the gatherer of the information in the first instance. When the agency decides on the appropriate tariff payment, the applicant is informed of that decision, which is based on the medical evidence that is available. Presumably, the best way to contest that decision is to obtain medical evidence.

175.

Mr A Maginness: Yes, but you have no opportunity to provide any extraneous or independent medical evidence. You must rely on the medical evidence that you have gathered.

176.

Mr Brannigan: You must do that in the first instance, but after that it is possible.

177.

Mr A Maginness: Is there an opportunity to submit medical evidence after?

178.

Mr Brannigan: If on first review a person disagrees with what the agency has said, and disagrees again at appeal, additional evidence could be provided.

179.

Mr A Maginness: Where is that stated in the scheme or in the Order? You do not have to answer now; you can write to me later.

180.

Mr Brannigan: I understand that that is how the review will take such evidence into account.

181.

The Chairperson: In the interest of fairness and equity, if anyone else has anything they want to ask, they may do so.

182.

Mr K Robinson: If someone needs to acquire further medical evidence, perhaps of a specialist nature, who foots that bill?

183.

Mr Brannigan: If independent medical evidence is needed, the Compensation Agency will obtain that and pay for it.

184.

Mr Robinson: Does that apply even if the applicant believes that they have more medical information than the agency may need?

185.

Mr Brannigan: If claimants have obtained the evidence on their own behalf they would pay the costs themselves, but if they come back to us and say that we put them in the wrong category and that they are in the one above that; we would have to pay.

186.

Mr Robinson: They are out of pocket at that stage. Where is the recompense for them in that situation?

187.

Mr Brannigan: They should not be out of pocket at that stage. However, should there be an error or a dispute, we would endeavour to find the evidence, because we would not want to go to the appeals panel without that being resolved. We would want to resolve those problems as far as possible.

188.

Mr McHugh: Can the agency demand confidential medical files from a GP that could be used against the claimant and his or her character? Can it request files that may not relate to the injury?

189.

Mr Brannigan: In some circumstances, we ask for a report on the injury. If the doctor supplies us with the medical notes, it is possible for us to get that information. However, I cannot see how we would use that information. What might be to the applicant's detriment is if it is shown that the illness for which a claim has been made is found to be an exacerbation of that injury.

190.

Mr McHugh: Depending on someone's past, could medical notes be used? I refer to rape cases et cetera. Such information is often used in court by the defence.

191.

Mr Brannigan: I hope that that would not be the case. We do not currently use that type of information.

192.

Mr McHugh: I thought that the agency may not be in a position to demand medical files. I am sure that a doctor would hand over those files if the NIO asked for them.

193.

Mr Brannigan: When the applicant makes a claim, he or she signs a declaration that enables us to obtain the evidence.

194.

Ms McWIlliams: Who currently pays for the medical evidence?

195.

Mr Brannigan: In a successful claim, the agency pays all reasonable costs in making out and verifying the claim. Those include the medical expenses that are paid to the applicant. The applicant's solicitor will normally obtain the medical evidence on his or her behalf and will then obtain that part of the costs that we pay to the applicant's solicitor at the end of a successful claim.

196.

The Chairperson: Remind me never to take a job with the Compensation Agency. Thank you for coming this afternoon. It has been interesting and worthwhile.

MINUTES OF EVIDENCE

23 October 2001

Members present:

Mr McCarthy (Deputy Chairperson)

Mr Ervine

Mr A Maginness

Mr McHugh

Ms McWilliams

Dr O'Hagan

Mr K Robinson

Witnesses:

Mr O Wilkinson ) Victim Support

Ms J Gray ) Northern Ireland

Ms J McKenna )

197.

The Deputy Chairperson: The Committee is grateful for the comprehensive submission from Victim Support Northern Ireland.

198.

Mr Wilkinson: Our interest in victims' compensation dates back to about 1993, when, with colleagues in England and Wales, we prepared a publication called 'Compensating the Victim of Crime: Report of an Independent Working Party'. Our starting point in that report was consideration of the requirements of the victim of the crime. The main requirements were that, in addition to medical care following a violent crime, victims should receive any necessary emotional, practical or other support. They should also receive recognition of the seriousness of what has happened to them - psychologically, physically and in any other way - and everything should be done with the minimum of frustration and delay.

199.

Compensation is useful, helpful and appropriate to victims of crime only when they can get other support. Compensation must be set in the context of the social and other support necessary to help a person to move on from the experience of being the victim of a crime. In that sense, compensation will not be helpful if considered separately. That has informed our view on how we should compensate victims of crime. It is a difficult issue.

200.

I hope that Members will have had the opportunity to read our submission. We are happy to give informed comment on any matter raised in it.

201.

Mr K Robinson: I value the work that Victim Support Northern Ireland has done, but I must ask whether the organisation can take on the increased workload.

202.

Mr Wilkinson: It will be a significant challenge, but we are up to it. We would not take the work on recklessly, and our organisation has, in a sense, been preparing for it for several years, taking on volunteers and paid staff. There have been serious discussions about the implementation of the scheme, but our organisation will not change its character to take on the work of providing advice and representation to the victims of crime.

203.

The new work should complement and fit in with our current work. We pride ourselves on providing emotional support, practical help and information to any person who knocks on our door or with whom we make contact. We will continue to do that and, in that context, we will also provide any other information and advice that may be required. We may not be able to carry out all of the work, and there will be complex cases, in which we may recommend that a solicitor's advice be sought. We recognise that we may not be competent to deal with such complex cases or feel safe about doing so. However, under the new scheme, most cases will not be beyond our competence.

204.

Mr K Robinson: I am not totally reassured. I value the support that the organisation has given to victims, but it is being asked to undertake a large and complex task. Victim Support relies on volunteers - you say that you will bring in more professional staff - but the volume and complexity of the task is such that victims cannot afford to have to deal with people who are learning on the job. Until now, Victim Support has not had dissatisfied customers: there is a danger that it will have, if the new system goes awry.

205.

Mr Wilkinson: That is realistic, but if the new system is to work as I wish, it will be different to the current one. If accepted, the value of the new system will be that people will be able to complete the pro forma themselves. I expect that, subject to the provision of a good, user-friendly pro forma, a significant percentage of people will be able to complete the forms without any help. In that sense, it will be different to the current system. If that is not the case, we will have serious problems.

206.

If the procedures are relatively clear from the outset, most people should be able to complete the forms with only a little help. Others may need more help because they lack the educational ability or do not feel competent to complete them. In all but a small number of cases, the system will be relatively simple, straightforward and speedy, but, like any other voluntary organisation, we could provide an advice service. There is no reason why we should not.

207.

Mr McHugh: Given your previous role, I would not have thought that you would be able to provide representation in difficult cases. You said that the system would be simple and straightforward and that people could fill in the form themselves. However, someone who has, for example, been the victim of rape may find it difficult to go in front of a panel; things may come up that might make the victim feel like the defendant, and that could be difficult to handle. Legal advisors - usually from the same area as the victim - have always played a proactive role on behalf on such victims.

208.

Mr Wilkinson: We certainly could not, in any way, provide that service under the current system. We are talking about a new system of compensation. There will be victims who want to represent themselves. There will be people who feel threatened, frightened and anxious about going before an appeal to argue their case, but others will handle it well. In some cases in England and Wales, people have done that and have felt very positive about the experience. It keeps the experience close to the individual, who is more in control not only of the process but - we would argue - of their own recovery.

209.

The current system takes the process away from the victim, works some magic on the case and brings it back to the victim completed. The victim is expected to pick up the pieces and move on from their experience. That is not always possible under the current system, but under the new format, a trained, paid member of staff acting in an advisory capacity will be perfectly able to represent someone in those circumstances. It happens in other circumstances; people from the voluntary sector represent people at tribunals every day.

210.

Mr McHugh: Is it correct that, under the tariff system, someone who, originally, would have been entitled to a large sum - for example, in a case similar to the one that I mentioned - would get only a small amount?

211.

Ms McKenna: The medium awards that have been made in Northern Ireland have been used. We recognise that there is a cost-cutting element involved here, but we saw a very good appeals panel at work. I was not sure whether we would be up to the task and whether volunteers and paid staff could be trained to such a level. However, it is not a court of law; it is a tribunal.

212.

The panel, the Criminal Injuries Compensation Authority and the Criminal Injuries Compensation Appeals Panel in London are sympathetic to applicants. Even those at the appeal who did not get the award that they had wished for felt that they had been heard, that important people understood the impact of the crime and that that was helpful in their recovery. What struck us was that people did not need highly technical expertise, either to represent themselves or to be represented by others.

213.

Mr McHugh: I have experience of Department of Health and Social Services tribunals, and expertise is needed for those. It is all about ensuring that the applicant does not get the money. If the panel sticks to Government policy, it will go in the same direction or get to that point at some stage.

214.

If a victim were unable to pursue, or had to give up, a career - as a doctor or whatever - a sum of £7,500, or whatever the tariff is, would not compensate someone for not being able to pursue their career.

215.

Mr Wilkinson: First, the awards under the proposed tariff will be clearly defined and based on the median of what is currently paid by the courts. Some people might do slightly better, some slightly worse. Over the next few years, I will be less concerned about the level of award that is paid to any applicant than I will be about the fact that the tariff system is not to be index-linked to keep pace with inflation, but will be reviewed every three years. That will be of more concern than the fact that someone will get significantly less on 31 March than on 2 April.

216.

Dr O'Hagan: Can you give me details of your organisation's network throughout the North of Ireland? How many offices are there? Where are they? How many personnel, paid and voluntary, are there? What are their qualifications?

217.

Ms McKenna: Victim Support has eight branches throughout Northern Ireland. In each of those branches, there is a main regional office. The north-eastern area, for example, covers Antrim, Coleraine, Ballymoney and Larne. The regional headquarters is in Ballymena, next to the Fairhill Shopping Centre. That is an important point. Victim Support was restructured several years ago, and high profile offices in central locations were established. There are three full-time members of staff in each branch.

218.

Dr O'Hagan: Are there eight branches or eight offices?

219.

Ms McKenna: There are eight offices and three core branch staff members. There is a branch manager, whose job is to develop services in that area. Services are offered through Citizens Advice Bureaux and networks with community groups. The key to the development of the proposed service is that services will be easily accessible to the public in branch areas. Branch managers have been charged with doing that.

220.

The branch co-ordinator is reponsible for referrals, which are received from three sources, including the police. Victim Support has a long-standing relationship with the police and has unique access to victims of violent crime. Last year, there were over 40,000 referrals - that is not the number of victims: it is the number of referrals. Referrals also come from other agencies and from victims themselves. There has been a significant increase in self-referrals to Victim Support.

221.

In addition, nine advice workers will be appointed to undertake the more technical aspects of the tariff scheme. There has been close consultation with our sister organisation in GB, which has been running with the scheme for six years. Victim Support in GB does not provide a standard level of service in England and Wales, because it is not funded to the level proposed for Victim Support in Northern Ireland. We must hit the ground running, but it has been useful to tallk to Victim Support in GB.

222.

We have decided to follow the model of Victim Support in GB, and we will offer three levels of service on the tariff. First, we will provide information about the tariff, to help someone fill in the form, and every member of staff must be able to do that. Next, there is the submission of the application to the Compensation Agency, the initial decision, and review and appeal. From the moment that the application is sent to the Compensation Agency, it becomes the responsibility of the advice worker.

223.

We have excellent volunteers working in accident and emergency departments, courts and the Witness Service, and we have started consulting the volunteers to find out how they feel about that; their reaction was positive. Volunteers have provided emotional and practical support for 20 years. Some of them have been involved in helping people apply for compensation, and the new service as a positive development. They will visit someone who has been injured and tell them to see a solicitor, but they are often left wondering whether that person ever went to see the solicitor and whether there was a successful outcome. Some volunteers will be glad to be in a position to help people financially.

224.

We have over 200 volunteers, and we are training over 100 more in anticipation of the new service. We will have another recruitment drive in January.

225.

Dr O'Hagan: How many hours can the volunteers give?

226.

Ms McKenna: It varies. Our volunteers come from all backgrounds. Some are in full-time work, others work night shift or part-time. We also have students and retired people. Former members of the security forces and the Prison Service who have worked closely with us and are interested in our work come to us when they can give us more time. It is difficult to say how many hours they work, but the minimum is about three visits a week. Some volunteers do more than that and work in our offices, the victims' homes, and the community.

227.

Dr O'Hagan: You plan to recruit an additional nine advice workers and over 100 volunteers to enable you to transfer to the new tariff scheme.

228.

Ms McKenna: That is the initial development. We do not expect people to bang down our door on 1 April. No matter how good public relations are, people do not think that they will be the victim of crime, so they are not really listening. In Great Britain, it took a long time for the public - and some solicitors - to understand that there was a new scheme. We know from our work in courts and casualty departments that the high quality services provided by Victim Support will sell the service. People come to us through word of mouth.

229.

Dr O'Hagan: How many of the personnel - volunteers and paid staff - have legal qualifications?

230.

Ms McKenna: None of them has legal qualifications; we are interviewing for advice workers. On the basis of experience of the tariff system in England, we have asked for advocacy experience. We feel that that is what people need.

231.

Dr O'Hagan: I am not convinced. I am not knocking the work that your organisation does, everyone recognises that good work. However, will an extra nine advice workers, eight offices with three full-time workers, and a certain number of volunteers, be able to do the work currently done by solicitors?

232.

Mr Wilkinson: No.

233.

Ms McKenna: We are not doing a solicitor's job.

234.

Dr O'Hagan: What is going to happen with the new scheme? The legal work will go to people who do not have a legal background. I am not convinced that your organisation will be able to take on that extra work.

235.

Mr Wilkinson: We will not replace the legal profession; there will be a tariff-based system, and we will work within it. It would be naïve for us to suggest that we could replace the legal profession. We can work within the tariff-based system; we could not work outside it.

236.

Dr O'Hagan: Has there been enough research into the success of the British system? My understanding is that, in England, 75% of appeals are upheld. Does that not show how flawed the original adjudication system is? Should not that be our point of reference?

237.

Mr Wilkinson: It is not a good point of reference for considering the GB system. That system was brought in some years ago and had more to do with saving money than providing a service to the client. It was poorly resourced and just left for people to make the best job of it that they could. I would not suggest that the tariff-based system in England and Wales was appropriate. Parts of it demonstrated good practice, and we considered what we could learn from them, in building our system.

238.

If substantive research were to be carried out on the operation of the tariff-based system in England and Wales, the system would not look particularly good. I would be reluctant to copy everything that is happening in England and Wales. What we are trying to consider the parts that work well and see whether we can replicate them.

239.

One of the biggest criticisms of the English system was the level of award, which lost it credibility from the start. The levels were low and, in some cases, caused offence. It would be much better and fairer to set the awards at an appropriate level, or one similar to that which is paid in our courts, for the new system. Parts of the English system can be used, but not all.

240.

Dr O'Hagan: I have a question about paragraph 3G2 of the submission, about transparency. It cites a judicial review from July 2000 that ordered specific evidence to be given regarding decisions on awards. Would that not be presumptuous at this stage, given that we have no experience of the new scheme? I would like clarification of that.

241.

Ms Gray: We are working with the implementation team for the tariff system in the compensation agency and the Northern Ireland Office. In England, we learned about that judicial review. I brought it back to the team and asked whether people would know if they had been denied an award or given a reduced one and, if so, why. They said that that would be taken on board for Northern Ireland. Although it has not been finalised, they are working on the assumption that it will be part of the process.

242.

Ms McKenna: An explanation will be given as to why awards have been reduced or refused.

243.

Ms Gray: Instead of people being told that they were denied because of 13(G), they will be told that they were denied because they did not co-operate with the investigation. Therefore, people will have that knowledge to work with if they want to review or appeal the decision.

244.

Dr O'Hagan: What about cases in which the Secretary of State has discovery? Will such people have discovery of the documents relating to their case?

245.

Ms Gray: Yes.

246.

Mr Wilkinson: Victim Support has difficulty with the idea of double jeopardy - if a person has been punished once, he or she can be punished again. If that is used as a means of denying or reducing compensation, a proper explanation should be given. Rather than receiving a simple statement quoting the terms of a particular paragraph as the reason for an unsuccessful claim, the claimant should receive a proper explanation in simple language of the reasons why the claimant was denied compensation or why he or she received a reduced award. That makes the decision open to challenge.

247.

Mr Ervine: Volunteers are cheaper than any other form of labour. Someone who is prepared to work for nothing will always get employment. There is a financial benefit to someone, and it is not the victim. Who sets the tariffs? Victims do not set tariffs. Solicitors have set or assisted in the setting of tariffs based on the adversarial system. In the new tariff system, Victim Support will take over the role played by legal teams in the adversarial system, and victims will not be questioned at a debate or be entitled to make a proper input. If I had as many concerns as you have about this system, I would not work it. However, you are prepared to work it.

248.

That brings me to the question of independence. Has Victim Support more than one source of funding?

249.

Mr Wilkinson: Yes.

250.

Mr Ervine: Will Victim Support get direct funding for the operation of the system?

251.

Mr Wilkinson: This year, Victim Support received approximately £217,000, and I reckon that it will cost £500,000 or more from 1 April 2002.

252.

Mr Ervine: Who will pay for that?

253.

Mr Wilkinson: The Government will pay for that.

254.

Mr Ervine: Will that make Victim Support independent?

255.

Mr Wilkinson: Since 1993, Victim Support has said that a tariff-based system for compensation must be introduced. Victim Support had concerns about the common law approach to compensation, but not because of Sir Ken Bloomfield's report.

256.

Mr Ervine: Are you acquainted with the Australian and Swedish systems of compensation, in which there is no requirement for an onus of guilt or responsibility? Did you ever consider advocating that on behalf of victims?

257.

Ms McKenna: Sir Ken Bloomfield considered that.

258.

Mr Ervine: I am asking you.

259.

Mr Wilkinson: I am vaguely aware of the procedure that operates in Australia and Sweden.

260.

Mr Ervine: I know that you are here to give your views, but I will give mine. The adversarial system is not a good system, and neither is its replacement. The replacement system is meant to save money, whether it be by using tariffs as opposed to the adversarial system, or simply by cutting out the legal profession from the deliberations.

261.

I remain to be convinced, and I do not dispute that the altruism of your volunteers, but I am concerned that you are prepared to operate something about which you have serious misgivings.

262.

Mr Wilkinson: At no stage did we express the wish to see the development of a tariff-based system for the payment of compensation in which we would have a say. We believed, quite simply, that a tariff-based system was better than one based on common law. People might think that we had some secret idea that changing the system to one based on tariffs would provide us with extra work. We were not arguing for it on that basis; we said that it was a better system and should be introduced for the reasons that we stated, whoever provided the information.

263.

Frankly, if someone were to argue that the tariff-based system was a good one and that advice and information should be provided by the legal profession, I should not argue against that. The issue is one of principle, and there I make the distinction. Having said that, I see no reason why organisations such as VSNI, CAB or any other could not provide the service.

264.

Mr Ervine: The name "Victim Support" suggests that the organisation assists and supports the victim. The victims that you will support have not yet been created, but you have already agreed to operate the system, including tariffs set without your agreement - perhaps without any input from you at all. How well can people represent victims who have not yet been created? The system is seriously flawed. You admit that, but you are prepared to run it. If no one were prepared to do so, it would have to be given back to the solicitors. You are a replacement for solicitors.

265.

Mr Wilkinson: We are not.

266.

Mr Ervine: In many cases, you will. The tariff system does not require a solicitor. The victim might not need any help: all he needs is a letter asking whether he has lost a leg, telling him what he is entitled to and inviting him to claim the money.

267.

Mr Wilkinson: In the tariff-based system, that is, at least, clear from the outset. The procedures are much simpler, and any competent person could see that. If someone needs advice or support to proceed with a claim, that is fine; we or some other party can help him to deal with it.

268.

Mr Ervine: That may be true in most cases, but there will, occasionally, be cases that would fare better under an adversarial system. There are arguments on both sides. Essentially, the new system will be operated by different people. The plan is simply to save money. Victim Support can all that it can to get between the Government and the victim, but you will accept what the Government decree and help the victim within the guidelines set out by the Government, without challenging them. An adversarial system, regardless of whether we like it, at least offers the chance to challenge the value put on the damage that the victim is perceived to have suffered.

269.

Mr Wilkinson: In reports such as that produced by Sir Kenneth Bloomfield, Members will have read about the concerns regarding the adversarial process. It takes too long, and the case is taken out of the hands of the person most intimately affected. People who are not involved with the victim work on the case, which is brought back to the victim in a completed form. In such circumstances, people have said that they are not sure whether to accept or reject the offer. The current adversarial system is far from perfect.

270.

Mr Ervine: I accept that.

271.

Mr Wilkinson: You said that Victim Support was prepared to use a system without criticising it. However, you have also said that Victim Support had identified several areas of concern.

272.

Mr Ervine: Yes, but is it not correct to say that Victim Support will operate the system?

273.

Mr Wilkinson: Yes.

274.

Mr Ervine: Perhaps, I am nit-picking and being unfair, but, among other things, that is our job. Did Victim Support say to the Government, "If you are looking for cheap labour, and if you will make the changes that we want and that victims require, we will run with the system"? Did that happen?

275.

Mr Wilkinson: At no point has Victim Support said that the system must change in order for it to do the work.

276.

Mr Ervine: I accept that, but is it not correct to say that Victim Support will do the work?

277.

Mr Wilkinson: Yes.

278.

Mr Ervine: Should not Victim Support have said to the Government that it would be happy to play a role, if the Government dealt with its concerns that, in some respects, the system could be unfair to some victims? However, Victim Support did not say that. Why do you not walk out - like the DUP?

279.

Mr Wilkinson: Do I have to answer that?

280.

Mr Ervine: I do not really mean that.

281.

Mr Wilkinson: It is a reasonable point. Victim Support considered whether it was a better system and whether we could work with it, rather than whether the system contained everything that we wanted. There is an argument that Victim Support misjudged that situation; perhaps we should have said that, unless all concerns were addressed, we would not operate the system.

282.

Mr Ervine: Perhaps Victim Support and Members of the Assembly might have built up a big enough head of steam to get changes from the Government.

283.

Mr Wilkinson: The system contains enough that is good and workable.

284.

Ms McWilliams: The current system clearly has difficulties, or the Committee would not have received as many recommendations from Bloomfield. However, the system that might be put in its place may not be the best alternative. I share Victim Support's worries and wonder whether, if those worries have not been addressed, is it still a better system?

285.

Mr Wilkinson: Yes. Since 1993, Victim Support has said that the common law-based system does not serve victims well. That system meets certain financial needs but, overall, it does not serve victims well. Therefore, the new system - flawed though it is - is a better system.

286.

Ms McWilliams: If Victim Support had had an opportunity to amend the current system, would it have introduced tariffs and changed a few other things, while leaving the system mostly intact, with a role for practical and emotional victim support, which is Victim Support's main role at the moment? Does the current system lack information, transparency, accountability and advocacy? As an alternative to the current system, would Victim Support consider an arrangement in which victims knew what compensation was common for certain injuries, so that that figure could be negotiated?

287.

Mr Wilkinson: There is merit in what you have said, but those are not the things that grate with me. It is not especially important to me who provides the service to victims of crime in a tariff-based system - us or anyone else. If it is the legal profession, that is fine. But the principles underlying the tariff system are better than those underlying the common law scheme. Does that answer your question?

288.

Ms McWilliams: I asked that if some of those concerns had been noted, and the knowledge level increased because injuries levels would be accorded a particular amount, would you have been happier with the current system?

289.

Mr Wilkinson: I have a fundamental problem with the current system being common law-based. Therefore, any improvement to it would have been better than the previous or existing system. At what point would I have been totally satisfied with it? I would say that the common law-based system is not the preferred one. A tariff-based system is essentially better.

290.

Ms McWilliams: Would it not do an enormous disservice to victims to decide their outcomes on paper?

291.

Mr Wilkinson: The disservice occurs when people who have been victims of a violent crime have no idea of the financial award that they will receive. That causes considerable distress and grief, especially when it gets to the stage at which people say that they are not sure whether to accept the payment. It is fairer to say to people from the outset, "This is what courts have paid over the past number of years in similar cases, and this is what you can expect". Therefore, the individual knows the procedure from the outset and the likely awards that - [Interruption].

292.

Ms McWilliams: You are one step ahead of me. I am not talking about outcomes; I am talking about inputs. I refer to cases that are not even likely to get past first base because decisions will to be made on paper.

293.

Mr Wilkinson: I am sorry.

294.

Ms Gray: Do you refer to a particular type of case or to cases in general?

295.

Ms McWilliams: I am talking about areas in which Victim Support has concerns.

296.

Ms Gray: Yes. We have concerns about certain types of cases, such as historical child abuse and sexual assault cases. We have seen, through speaking to people who work in the tariff scheme in England and Scotland, that sometimes cases are turned down initially because there is no evidence to support them. They must go to appeals hearings, which can be a traumatic experience. That is a concern; we feel that it is unfair to automatically deny someone compensation because a case is vague or difficult to prove.

297.

Ms McWilliams: Given those concerns, do toy still think that the tariff-based system is a viable alternative?

298.

Mr Wilkinson: We say, as do our colleagues in England and Wales, that those are flaws in the system as it is being proposed. However, can those flaws be addressed to either remove or at least minimise their impact?

299.

Ms McWilliams: That is such a huge flaw. It is an enormous derogation of someone's rights because the evidence that it takes to prove someone's guilt in a court of law is different from the evidence it takes to determine whether a person should receive compensation for injuries sustained. Yet it seems one is following the other, and that is a major concern.

300.

My next question relates to evidence that the Committee took last week: do you agree that, when two stabilised cases that involve claimants with similar injuries go forward for compensation, the outcomes may be different? That brings us back to the fact that it is a complex area of the law.

301.

Ms Gray: If you were talking about a broken arm, I would not agree. We do not say that we agree with this, but if there is evidence of a conviction, such as penalty points, that could be used to reduce an award. That could affect - [Interruption].

302.

Ms McWilliams: No. I am talking about injuries - the introduction of psychological injury and the identification of medical injury. The outcomes can be different in different cases. If you were to break an arm, that may be different than if Mr Ervine were to break an arm, for reasons such as the onset of arthritis, the medical evidence, when the case is stabilised and whether a variation in stabilisation occurs. Those issues are often argued vociferously - albeit in the adversarial system to which we constantly refer - and, when the arguments are put in that context, the individual can feel that he or she is facing a hearing. Victim Support is simply arguing that a broken arm is a broken arm.

303.

Ms McKenna: Your comments about the tariff system are correct. However, the system contains a provision that allows for a claim to be looked at again, if the situation deteriorates.

304.

Ms McWilliams: I am aware of that. However, individuals might argue that deterioration could vary so much that that would open a whole can of worms - where does it end?

305.

How can Victim Support NI speed up the system? Is it aware of the length of time that it takes to process an average claim?

306.

Ms Gray: It takes from nine months to a year.

307.

Ms McWilliams: That is correct. How long would Victim Support NI take to process a claim?

308.

Ms McKenna: Victim Support NI works in partnership with others. There are three initial reports that must show similarity: the application that the injured party makes; the police report; and the medical report. If the case is straightforward, the injured party will be offered compensation immediately. The initial documentation showed that people hoped that cases could be wrapped up in 26 weeks. Victim Support NI is not sure about that, because it relies on information from other agencies.

309.

Ms McWilliams: Do you agree that that is where the delay lies?

310.

Mr Wilkinson: Yes.

311.

Ms McWilliams: How might Victim Support NI change the approach of other agencies, given that it currently takes 45 weeks, on average, to process a claim?

312.

Mr Wilkinson: The system will not work unless proper objectives are set for those cases that should be dealt with at stage one and, subsequently, at stage two and stage three. An independent evaluation of the operation of the tariff-based scheme needs to be carried out to see whether it meets the targets and, if not, where the flaws and the problems lie. Are they the result of a delay in a medical report or a police report, or the result of a delay from another source? No matter how that works out, Victim Support NI can set its own objectives for getting its work done as quickly as possible, and others can do likewise. However, the only way that we can deal with the hiccups that will inevitably arise is to initiate an independent evaluation of the entire procedure. As a result of its administrative nature, I hope that it would be done considerably quicker than the present system.

313.

Ms McWilliams: Who will pay for the medical reports?

314.

Mr Wilkinson: I understand that the Compensation Agency will pay for them.

315.

Mr A Maginness: You accept in principle the idea of a tariff system. However, several defects in its application have been highlighted. You did not attempt to disguise those defects in your submission. How can Victim Support NI seriously tell victims that it is prepared to operate a system that is defective from the outset?

316.

Mr Wilkinson: We consider the current system to be defective. I do not believe the tariff system to be perfect; we would also like to see changes made to it. We must decide if, in the round, it is a better system than the current one. Is it a system that can be worked on, and can the changes suggested by Victim Support NI and others be implemented?

317.

Our position is that the new system is better than the old one. We could argue whether it is the right position, but, essentially, we believe that the new system is better than the common law-based one. However, it has its problems, which we must continue to address.

318.

Mr A Maginness: I understand what you are saying. However, Victim Support NI should tell the Government that it has found defects in the system, and, accordingly, is not prepared to put it into operation. Is that not a reasonable position for you to adopt?

319.

Mr Wilkinson: It is not an unreasonable position. However, in our judgement, the system's problems are not so enormous as to cause us to take that position. They are not the kind of defects that would cause us to walk away.

320.

Mr A Maginness: It is arguable whether the present system is defective. Victim Support NI does not have an active, functional role in the present system. It will have such a role in the new system, which makes the difference. Do you accept that Victim Support proactively supports the new system?

321.

Mr Wilkinson: Yes. However, at present, we encourage people to use the current system. It is not the case that Victim Support NI merely observes from the sidelines and does not participate in the process.

322.

Mr A Maginness: You have been forthright about your preference for the tariff-based system and have favoured it for some time. The proposed tariff system has its merit insofar as it is simple and allegedly straightforward - although I would argue that point. Is it not fair to say that there can be no correct or exact figure for injury cases, as no two victims suffer in the same way?

323.

Mr Wilkinson: Yes.

324.

Mr A Maginness: If that is true, how can you endorse a "bar-coded" injury compensation system if the suffering of a victim differs from individual to individual? I do not understand how you can support a tariff system in the light of the differences between victims' circumstances. You must be aware of those differences, given your field of work.

325.

Mr Wilkinson: It is similar to the current system, under which a victim may feel that he or she is worth less than his or her neighbour because one is awarded a considerably higher level of compensation than another. Under the tariff system, the amounts awarded still vary, but to a lesser degree. The strength of the tariff system is that a victim will be relatively clear about how much he or she can expect to receive, therefore from the outset he will be able to prepare himself emotionally for that, rather than remain uncertain for months. I agree that variation still exists under the tariff system.

326.

Mr A Maginness: I do not suggest that there will be variation. The opposite is the case; a victim with a broken arm, for example, will be compensated according to a tariff. However, the merit of the present system is that it is variable; it addresses the individual suffering of victims. Not everyone who breaks an arm will suffer to the same extent. There must be merit in any system. Compensation for criminal injuries is not comparable to going to the supermarket, where customers' bar-coded goods are scanned and an amount is paid. Compensation should not be awarded according to a tariff, because the individual circumstances of the victim, such as sex, age and occupation, are not taken into account. How, then, can you claim that the tariff system is better than the present system, which allows for variation?

327.

Mr Wilkinson: If compensation were used as the only means of support to victims of crime, that would be a different matter. However, compensation must be part of a wide range of victim support; the whole network of support will help a victim to recover, rather than one aspect of it.

328.

Under the current system, many victims are worn down on account of the time and effort that is spent on calculating the individual differences of each case. Much of victims' criticism relates to the time that it takes to calculate those differences, and I would question whether such calculations matter a great deal to them. In our experience, clarity, transparency and speed are better ways of dealing with an otherwise complex procedure, so victims can get on with their lives as quickly as possible.

329.

Mr A Maginness: To illustrate my point, page 32 of the draft scheme details amounts of compensation for victims of head and facial scarring. For example, under facial scarring, £2,000 is awarded for minor disfigurement, £8,500 for moderate disfigurement, £14,500 for significant disfigurement, and £30,000 for serious disfigurement. No mention is made of a victim's gender. Usually, depending on the circumstances, a woman will suffer more as a result of a facial scar than a man will. There is no mention of sex or age. Who decides what is minor, moderate, significant or serious?

330.

Ms Gray: I shall begin with your last question. We observed a hearing at which the scars on a young man's torso were measured. Although not included here, such measurements are an example of a guideline on what would qualify as minor, significant, moderate or serious lengths of scars. You are correct that it makes no extra allowance for gender, age or occupation.

331.

Mr A Maginness: Does that not create what you have talked about eliminating, namely uncertainty? If you deal with various bands in the assessment of scarring to the face, for example, you create uncertainty. What I might consider serious disfigurement might be moderate disfigurement to Mr Ervine. The very things that you have talked about - certainty, simplicity and straightforwardness - do not come into play at all; the new system would create more uncertainty and difficulty for the victim. Is that a self-evident proposition?

332.

Ms Gray: The system is not in place yet, so I cannot say whether you could obtain a description for each. The new system must offer some help to people, regardless of an injury's exact form.

333.

Mr A Maginness: Victim Support NI carries out tremendous work, giving practical and emotional support to victims, and I do not in any way detract from that. However, that is your organisation's function - not to get involved in the tariff-based system. Will you be indemnified for the advice that you give?

334.

Mr Wilkinson: We are currently being advised on the issue.

335.

Mr A Maginness: Have you costed that?

336.

Mr Wilkinson: We are currently engaged in that exercise to clarify matters.

337.

Mr A Maginness: The additional money that you receive is in the region of £400,000, according to figures I have seen.

338.

Mr Wilkinson: We have received approximately £217,000 for this year to get us to our baseline by 1 April 2002. Thereafter, we believe the sum will be about £0.5 million.

339.

Mr A Maginness: Does that include the insurance liability?

340.

Mr Wilkinson: That is currently an estimate that will be subject to clarification.

341.

Mr A Maginness: Therefore, insurance liability will be additional to the £0.5 million that Victim Support NI will receive.

342.

Mr Wilkinson: Yes, it may well be.

343.

Mr A Maginness: The threshold for minor injuries is £1,000. The claim requires three separate physical injuries, at least one of which must have significant residual effects six weeks after the incident. The injuries must also have necessitated at least two visits to or by a medical practitioner in those six weeks. Is that a fair hurdle for the victim to surmount?

344.

Ms McKenna: I do not understand what you mean.

345.

Mr A Maginness: The draft compensation scheme states that:

"Minor multiple physical injuries would qualify for compensation only where the applicant has sustained at least three separate physical injuries of the type illustrated below, at least one of which must still have a significant residual effect six weeks after the incident. The injuries must also have necessitated at least two visits to or by a medical practitioner within that six-week period."

Those injuries, from grazing, right down to loss of finger nails, hair pulled from scalp, bloody nose, black eyes et cetera, are mentioned in the draft. Those multiple minor injuries would accumulate to a quantum of £1,000. Is that a fair hurdle for a victim of violent crime to have to surmount before he or she gets the minimal sum of £1,000?

346.

Mr Wilkinson: I have not looked at that point in any specific detail.

347.

Mr A Maginness: Perhaps you and your colleagues could respond in writing to that.

348.

Mr McHugh: A person could suffer a serious beating yet have no enduring effects after six weeks. There is also the matter of corresponding injuries to consider - one person involved in a blast bomb may feel that they had a lucky escape, whereas someone else may be traumatised by it.

349.

Ms Gray: They would be eligible for compensation because they had suffered psychological injuries.

350.

Mr Ervine: There is a caveat in that part of the draft. You may be aware that there is a drive to improve men's health because they do not visit doctors. That category in the draft scheme requires that people visit the doctor twice, but men are renowned for not following through on their illnesses.

351.

Ms McWilliams: Your evidence said that, in those more serious cases, you would encourage applicants to seek legal advice. However, you did not mention the words "legal aid" in your evidence. Would you encourage applicants to seek legal advice, where appropriate, with legal aid?

352.

Mr Wilkinson: Yes.

353.

Ms McWilliams: Therefore, the withdrawal of legal aid in those cases would concern you?

354.

Mr Wilkinson: Yes.

355.

The Deputy Chairperson: Thank you very much for coming here today.

MINUTES OF EVIDENCE

Tuesday 23 October 2001

Members present:

Mr McCarthy (Deputy Chairperson)

Mr Ervine

Mr A Maginness

Mr McHugh

Ms McWilliams

Dr O'Hagan

Witnesses:

Mr J Bailie ) The Law Society of

Mr J Caldwell ) Northern Ireland

Mr J Neill )

Mr B Stewart )

356.

The Deputy Chairperson: You are welcome. The Committee is grateful for your comprehensive submission. You may provide some background to the Law Society's work, outlining your interest in criminal injury compensation.

357.

Will any members who belong to the Law Society declare their interest? It is doubtful that any declaration would have repercussions in future. However, I must provide members with an opportunity to declare.

358.

Mr A Maginness: I am not a member of the Law Society, but I am a member of the Bar.

359.

The Deputy Chairperson: Thank you.

360.

Mr Neill: I thank you for the opportunity to address the Committee on this important topic. I am John Neill, president of the Law Society of Northern Ireland. I am accompanied by Brian Stewart, a member of the governing council of the Law Society, and a partner in the firm of O'Reilly Stewart. He is a senior solicitor with extensive experience of civil litigation. Also with me is John Caldwell, a partner in the firm of SD Crawford & Co. He is also a senior solicitor with extensive litigation experience. Finally, I introduce John Bailie, chief executive and secretary of the Law Society and a qualified solicitor.

361.

I invite my colleague Brian Stewart to make a brief opening statement, which will highlight our main points of concern about the proposals. I ask the Committee to reflect carefully on the more detailed position paper that we submitted in advance. Following the presentation, we shall deal with any questions.

362.

Mr Stewart: We are dealing with an issue of immense importance to each one of you, to your families and friends, and, indeed, to anyone who may be the innocent victim of a criminal act. We have thought hard about how to approach this evidence session. We have deliberated on how best to convey to you our most profound disquiet concerning the main plank of the Government reforms. Those include the introduction of a tariff system to assess compensation, with the consequence that compensation assessment will be moved out of the hands of the judiciary and into the hands of Government. We have concluded that the way to convey our position responsibly is to put the matter to you bluntly and concisely.

363.

The introduction of this tariff system is a confidence trick on the part of the Government. It is an exercise in deception because it is part of their planned and long-term strategy to cut and control compensation to victims, and in a way that has been discredited elsewhere. The most cynical aspect of the proposal is that it has been dressed up by the Government and spun repeatedly as being in the interests of victims.

364.

Those are serious assertions, which we do not make lightly. On what do we base our suspicions? We draw these factors to the Committee's attention to allow it to make its own judgement. First, this is not the first time that that the Government have mooted that type of proposal. It is a long-cherished and well known ambition of the Executive in general, and the Treasury in particular, to wrest the assessment of criminal injuries compensation away from the independent judiciary. We are aware of at least one previous occasion on which a Government retreated at the last moment from proposing a tariff system for Northern Ireland. Ironically, that was a Tory Government.

365.

Secondly, I draw your attention to the Government's treatment of the Bloomfield report. I met with Sir Kenneth Bloomfield and his team on two occasions. No doubt he and his review team acted in good faith in examining the present system at the Government's request. However, we believe that the review team's work suffered not one of its members had practical experience of the operation of the current system.

366.

Our position paper explains in more detail why we believe that the Bloomfield Report was misconceived in respect of its limited recommendation that the tariff system should be introduced, but only for lower-value cases. For immediate purposes, the Bloomfield Report was significant in that it acted as a Trojan horse that, by conceding a breach of the principle that compensation assessment should be under the ultimate control of the judiciary, opened the way for the complete removal of judicial input. A main reason why the Government could not accept even the Bloomfield recommendations was that their retention of the current system for the higher-value cases would expose in due course the inadequacy of the Government-determined tariff in the lower-value cases.

367.

Thirdly, we point to the absence of support for the Government's proposals from victims with experience of the present system. We draw your attention to the hard evidence of victims' experience gathered by the Bloomfield review team. When I met the Bloomfield team, it was clear that the majority of respondents wanted no change. The minority who did want change wanted a better process. As far as we can see, no one wanted less compensation, the withdrawal of the right of access to legal advice or the right of appeal to the courts.

368.

The Government are obviously keen to sell the English tariff system. If we are constantly told the myth that the grass is greener there, and that the English system delivers compensation quickly, simply, and in a way that everyone understands and has confidence in, the proposals may seem attractive. What we are not told is that, under the English system, the determination of compensation tariffs is removed from independent control; compensation will be significantly lower; and even the promise of speed and simplicity is far from true. In particular, no mention is made of the significant amount of simmering public dissatisfaction with the English compensation arrangements, which regularly boils over in the media. The Committee will note that our papers refer to some English cases.

369.

Fourthly, what gives the lie to the Government's pretence to be motivated by concerns to streamline the process in the interests of victims is that, since the inception of the process, the Law Society has been on record as offering to engage in constructive dialogue with the Government and the many agencies whose performance affect the victims' experiences of the claims process. The purpose of that dialogue would be to examine practical problems with the current system, to solve those problems and to examine ways to improve victims' experiences. The Government's silence has been deafening. No approach has been made to the Law Society to discuss those matters. The Government have made no response to our submissions.

370.

Two years after the publication of the Bloomfield report, proposals emerged out of the silence that confirmed rejection of even its tariff proposals. Why are the Government uninterested in engaging in genuine dialogue about streamlining the present process? The hidden agenda has nothing to do with process improvement, but it has everything to do with the Government taking control of compensation levels with the aim of cutting cost.

371.

Finally, and most damning of all, is the real Government agenda. In their dealings with Sir Kenneth Bloomfield, the Government were far more frank about their true objectives than they have been in presenting the draft legislation. Paragraph 8.19 of the Bloomfield review states that

"In recent times Government has been most refreshingly candid and honest about the motives which led the Government of the day to move from common law to a tariff basis, and the current Government to make it clear that this basis will continue. While other benefits have been argued in terms of speed, simpleness of procedure, transparency and other advantages for victims, it has been recognised and acknowledged that the broad thrust has been to keep the total cost of the GB scheme within determined limits, by abandoning any continuing link with common law awards, by capping the overall sum awardable in any case, by declining to compensate for loss of earnings until 28 weeks have expired, by refusing a regular uprating of tariff levels, thus bringing about a progressive reduction in real terms, and by continuing to decline to meet the legal costs of applicants."

372.

Our concerns will be misrepresented as the protests of lawyers who are interested only in lining their own pockets. That is a cheap shot, and, in a sense, we are easy targets. It will suit the Government's agenda to have you buy into that misrepresentation and into the demeaning of the value of the safeguards for the protection of victims' rights, which is built into the current Northern Ireland system.

373.

We wish to be candid. Criminal injuries compensation work is not lucrative for lawyers. We can provide the Committee with facts and figures. In consulting our solicitor colleagues, it is fair to say that not one person has protested about the loss of criminal injuries business. However, many have expressed concern about the removal of the victim's right of access to a full and independent assessment process. That is a recipe for inequality among victims. Experience in England has shown that some victims will continue to employ lawyers, because they find it worthwhile and necessary. Those who cannot afford to do that are penalised.

374.

Furthermore, I refer to a question that was raised during the Victim Support Northern Ireland (VSNI) evidence session. Legal aid will not be available for those matters as of April 2003. The Government are withdrawing legal aid from all personal injury work. We have been doing our damnedest to keep it, but that is another matter. Lawyers will survive the implementation of the proposals without any major difficulty. The victims of the proposals are not the lawyers; the victims of crime will become the victims of the tariff scheme.

375.

Our recommendation as to how the Assembly should respond to the proposal is simple. First, do not be deceived - recognise it for what it is. Secondly, do not buy into the Government agenda. Do not compromise - just say "no" to the tariff system. Thirdly, respond to the Government with a clear message that the proposal will not command the confidence of Northern Ireland's elected representatives. Fourthly, urge the Government, in the plainest terms, to rethink the tariff aspect of the proposals. In particular, urge the Government to enter into serious and constructive dialogue with the Law Society and others to examine ways to improve the current Northern Ireland system.

376.

In conclusion, we warn unequivocally that the proposals will not serve the interests of victims of crime in this jurisdiction, either in the short-term or longer-term. Victims will not know the value of the system that they have until it is gone. We ask the Committee, as elected representatives, to recognise the value of the system that we have and not to be complicit in its removal.

377.

The Deputy Chairperson: Thank you very much, Mr Stewart. That gives us some food for thought.

378.

Ms McWilliams: I love the idea of just saying "no", given that our DUP Colleagues are doing exactly that by not joining us following yesterday's statement. I have learnt much from your submission. However, what proposals would you support?

379.

Mr Stewart: I propose that the Government properly fund the existing system. It is currently undermanned, yet it still meets its targets. It has hit its targets for the past two years, with the average delay being 45 weeks. I do not consider that to be a huge delay, although it could be reduced slightly.

380.

A person who has a criminal injury needs a medial report, which can take up to four months to obtain from an orthopaedic surgeon. There is no chance of getting a psychiatric report until six months after an injury. A psychiatrist has to see how the injury affects the individual concerned. There is some delay, but that is deliberate and, more often than not, helpful.

381.

Ms McWilliams: Do you believe that VSNI's proposal will not have any effect in reducing that wait to 26 weeks? How does VSNI think that it will influence medical evidence?

382.

Mr Stewart: One of the biggest faults that I see in my colleagues is that they rush into making decisions. I do not advocate delay by any means, but I do advocate that more than one medical report be looked at before any action is taken. I know that one member of the Committee is well experienced in that matter. A second medical report often adds a great deal to a case. The delay in the present system is not substantial, therefore it does not require many changes.

383.

Ms McWilliams: At earlier evidence sessions, we raised the issues of variation and who considers the case to be stabilised. The Compensation Agency made the point about a case stabilising. but you say that further reports can highlight matters not highlighted at an earlier stage. Indeed, the delay may be worthy.

384.

Mr Stewart: I also heard VSNI say that one of the great concerns that victims have is that they need to know what their case is worth. Lawyers do not tell them what their case is worth because they do not know. They require all the medical evidence before they can give such details.

385.

Ms McWilliams: Is that one of the problems in the current system that will remain a problem unless lawyers begin to address the issue?

386.

Mr Stewart: I accept some criticism there. I have before me the first edition of 'Guidelines for the Assessment of General Damages in Personal Injury Cases in Northern Ireland', known as the "green book". I was on the panel that compiled the book. It has been a useful tariff, if you want to call it that. I have a tariff - this book is the tariff. The idea of a tariff system came about in the late 1980s and early 1990s when there was no "green book" in Northern Ireland. This edition, from 1996, is the only book that there has been. It is about to be replaced by a second edition to bring things up to date.

387.

Every practising solicitor in Northern Ireland keeps the "green book" at his side. He consults it to get a general idea of what the case is worth. You referred earlier to scarring. I am amazed at the figures for scarring. For females, the "green book" sets a figure of up to £20,000 for

"Some scarring, but not of great significance, either because there is but one scar which can be camouflaged".

That is a fairly broad range. The next most serious category is

"Significant scarring where the worst defects have been or will be reduced by plastic surgery leaving some cosmetic disability".

For that, the figure set is £15,000 to £50,000. The second highest category is

"Less severe scarring where the disfigurement is still substantial and where there is a significant psychological reaction."

For that, the figure is set at £20,000 to £50,000, which is not a wide variation. The top category is

"Very severe facial scarring in a relatively young girl (teens to early thirties) where the cosmetic defect is very disfiguring and the psychological reaction severe."

The damages in that instance should be £50,000 to £150,000.

388.

I shall explain how the Government prepared the tariff system. It does not comply with a request sent by Mr Bailie that asked for details. We have not received a response. The Government have taken all the figures for the past twelve months, fed them into a computer and got an answer out of the other end. That answer does not take into account provocative and negligent behaviour, or previous history of criminal offences. The Government have not looked at any single injury in isolation yet they have come up with an average and declared it to be the tariff.

389.

Anybody would be rightly outraged if his or her daughter - with no history of provocative behaviour - learnt that, instead of getting what she should have received for her injury, she gets a blend of lesser figures.

390.

Ms McWilliams: What would you be in favour of? What is your opinion of the proposal to increase eligibility for psychiatric injury?

391.

Mr Stewart: That is a tricky subject.

392.

Mr Neill: We cannot talk about what we would propose in the way of figures, because we are against the tariff scheme, but there are procedural reforms that would meet some of the criticisms to which reference has been made. This is a matter of detail in different areas of the work of the courts and the judicial system. Many more efficiencies have been introduced. For example, rules would be introduced to compel an earlier exchange of information between the two sides. The judges might take more of a hand in "driving the business". In other words, once a case has been issued, it comes before the court after a certain period. The judges in this jurisdiction are rightly proud of the efficiency of the County Court system. That has been acknowledged by Lord Woolf, who has been involved in the reform of civil justice in England and Wales. There are ways and means in the existing system to introduce much greater efficiencies, which will rescindthe acknowledged criticisms of delays.

393.

Ms McWilliams: Can it still come back to the question I asked - [Inaudible].

394.

Mr Stewart: [Inaudible].

395.

Ms McWilliams: [Inaudible] - issue of psychiatric injury and mental illness, not being at the scene of the crime. He made recommendations on a great deal of that. What are your views on that?

396.

Mr Stewart: There is no doubt that that is tricky. It is easy to manipulate the system in that area. There has to be a recognisable illness of some sort, according to the existing system. Anything under the value of £2,500 gets nothing. That system works reasonably well, provided the lawyer pursues the issue and uses the right psychiatrist.

397.

Some psychiatrists are hostile to people seeking compensation, which is a problem. Should someone who experiences normal fear as a result of his or her injury, but that fear subsides after two or three weeks, be compensated? I do not think so. There must be a proper start-off point. People must be told to get to grips with those reactions. People cannot claim that normal fear is a psychiatric injury and seek compensation for it. That attitude is wrong.

398.

If a person has a psychiatric injury, he or she is entitled to be compensated. However, the amounts of damages are wrong in the tariff system. The "green book" refers to moderately severe and severe psychiatric injuries that can amount to damages of up to £60,000 pounds.

399.

Ms McWilliams: Your evidence is remarkable. It tells its own story of the English system, which should immediately alert anyone to the more public criticisms about what has happened there. Will you explain criminal injuries compensation for children, the difficulties with the current system and the proposals?

400.

Mr Stewart: [Inaudible].

401.

Ms McWilliams: [Inaudible] - criticism of the current system. There are children involved in those case studies.

402.

Mr Stewart: Judges who hear my minor cases are concerned that the damages that children receive are more than adequate for their injuries. I use it as a device in my negotiations regarding children's cases. A figure at the top of the scale must be proposed.

403.

Ms McWilliams: You have misunderstood my question. I was referring to compensation for children who have been bereaved or whose parent has had psychiatric injuries.

404.

Mr Stewart: Several issues can be dealt with through the existing legislation. The Law Society wants to thrash out those issues with the Government. I have been doing criminal injury cases for 25 years. The original Criminal Injuries to Persons (Compensation) Act (Northern Ireland) 1968 was followed by the Criminal Injuries (Compensation) (Northern Ireland) Order 1977 and the Criminal Injuries (Compensation) (Northern Ireland) Order 1988. One of the changes brought about by the 1988 Order was that solicitors must reveal all medical evidence in a criminal injury case. However, if the Compensation Agency obtain a medical report, it is not obliged to show that report to the solicitor. That is the law, but it is unreasonable.

405.

Ms McWilliams: I am aware of those criticisms. I want to know what proposals you think are useful.

406.

Dr O'Hagan: In the summary and conclusions to the Law Society's written submission, it states that

"the proper focus of attention should be on procedural improvements (streamlining the current process)".

Does the Law Society have any proposals in relation to that? If you do not like a system you must find an alternative. Will you explain the Law Society's position? What is your view on people who have previous convictions? The Secretary of State currently exercises discretion in their compensation cases. How do you view the new system? Does it improve on the old system?

407.

Mr Caldwell: It is an improvement. Some years ago, I took a case in which a client's factory was burnt out. When he was 17, that client had been involved in paramilitary activity. However, 25 years later, he was a model citizen yet he was refused an award. His business was burnt out and he stood to lose a great deal of money because of insurance problems. I had to bring political pressure to get the Secretary of State to make an ex gratia payment. It was outrageous that someone who had managed to turn around his life completely was being offered nothing.

408.

Mr Ervine: Last year, my office on the Shankill Road was attacked, and because of association, no compensation is forthcoming. There are other examples, including the celebrated case of Ralph Creighton. As a boy, he was involved in a petrol bombing. Many years later, he was shot and paralysed in an indiscriminate attack - in other words, the gunman did not know that he was shooting Ralph Creighton. However, the incident from the past was held against him, which seems ludicrous and shameful.

409.

Mr Stewart: That may relate to the question asked by Ms McWilliams. I have dealt with the families of murdered people who received no compensation because of a previous conviction. I did everything I could to get around that, but that is not possible at present. That is iniquitous and should be changed. Over the years, we have learnt to accept that such things have happened and that we should put them behind us. I cannot speak for the Law Society, but, in talking to lawyers, I have learnt that they would like to see the judge exercise discretion. The decision should lie with the judge, not with the Executive.

410.

Dr O'Hagan: Apart from other serious concerns, do you see an improvement in that aspect of the new system, or is it much different from the old system?

411.

Mr Caldwell: It is an improvement. Another improvement is that bereavement damages would be increased. At present, they stand at £7,500 and I understand that they would be increased to £12,000. However, proper legal backing should be made available to increase compensation unilaterally, whether the person is the victim of a road traffic accident or a criminal assault.

412.

Mr Stewart: Do you think, Dr O'Hagan, that someone who committed a heinous crime last year should be entitled to damages? Compare that person with someone who committed a crime as a 15 year old or as a 16 year old and who has had a completely unblemished record since. How should that be dealt with? If a tariff is set down it is rigid and unchangeable, and it is not subject to discretion. Those matters should be handed back to the judiciary in order that it might exercise discretion to reduce or increase damages. They should not be dealt with by a tariff system.

413.

Dr O'Hagan: If the scheme were to come into operation, would a person who had been injured in a road traffic accident be entitled to legal aid? The issues surrounding criminal injuries are more complex. Is it correct that the victim of a criminal injury would not be so entitled?

414.

Mr Stewart: That is correct.

415.

Dr O'Hagan: Most of us are concerned about the removal of legal aid and the introduction of the tariff-based system. Do you believe that the new system breaches both equality and human rights provisions?

416.

Mr Stewart: I have read the human rights paper in which several issues were raised. I presume that the Committee has had access to the human rights submission. What confuses me about the introduction of the tariff system is that Sir Kenneth Bloomfield met with the Law Society and said that he did not want a tariff. He said that a tariff system could be introduced for lower-value cases, because the individual would not spend a lifetime thinking about lost damages. He recommended that the courts deal with bigger cases. Sir Kenneth Bloomfield was chosen by the Government to conduct the review of criminal injuries compensation in Northern Ireland. It is the Government's paper. With progress possibly being made in this jurisdiction, the Government have slipped the tariff system in on the back of that, despite Sir Kenneth Bloomfield's recommendations.

417.

Dr O'Hagan: Are the Bloomfield review's recommendations on tariffs in lower-value cases a suitable compromise?

418.

Mr Stewart: The whole point of our written submission is not to have a tariff system at all. I take Mr Maginness's point that to have a minor claim, a person could have a black eye, a scrape on the face, psychiatric problems or headaches, yet he or she may recover within six weeks. However, the symptoms could persist for a year. My understanding is that if a person does not go to the doctor a second time, no damages are awarded. Who thought that up? However, if lawyers were involved in a case, you can bet your bottom dollar that every lawyer in Northern Ireland would tell people to go to the doctor a second time. In fact, a lawyer would probably ring them up to tell them to do so.

419.

Mr Ervine: The doctor would be pleased.

420.

Mr McHugh: The Law Society heard the evidence from VSNI. I am concerned about that organisation's ability to act as a delivery agent. I listened to VSNI's attempts to answer our questions, and the differences and blockages that it has encountered. In relation to psychological injuries, one person's accident is another's lifelong nightmare. There have been rape cases in which victims have been unable to continue with their careers. Such cases are awarded low compensation. The amount of money that would be lost through not being able to pursue a career would be substantial. It may amount to hundreds of thousands of pounds. I am not sure that VSNI has grasped all that or whether the organisation is in a position to do that.

421.

Given the Law Society's experience of tribunals, surely the Committee is right to say that tribunals will become tougher, in line with Government policy. People will find it more difficult, rather than easier, to obtain compensation. That matter will be important to ordinary people trying to defend themselves. I find it difficult to accept the Secretary of State as the arbiter of the tariff, given that previous Secretaries of State have been unable to intervene to any great extent in the cases that Dr O'Hagan mentioned. I cannot see how that would be much of an improvement.

422.

Mr Stewart: That is one of the human rights points that you made earlier. The Secretary of State does not have to change a tariff if he does not want to. That is contained in the draft legislation. Tariffs could be set in stone for the next 30 years.

423.

Mr McHugh: I read that the savings from legal aid costs will go towards funding VSNI. Is that correct?

424.

Mr Stewart: I listened with some amusement to that. At present, there are 14,000 criminal injury claims per year. How on earth will VSNI handle those? There are 500 solicitors' firms in Northern Ireland. Every one of those, no matter how large, will have dealt with criminal injury claims. More importantly, solicitors have 30 years' experience in dealing with such cases. I cannot see how VSNI could possibly cope.

425.

Mr McHugh: The idea that VSNI could be a delivery agent is extremely weak.

426.

Mr Stewart: VSNI has bought into it and wants to do it - [Inaudible].

427.

Mr Ervine: I have no doubt that the old tariff system is a form of cartel because someone pays out. The "green book" not only addresses the Government's attitude, but essentially all insurers. That is a form of cartel that is technically illegal under European law. I do not like many things about the old system. The PUP absolutely opposes the draft legislation. As you know, the Committee can only make recommendations. Nevertheless it is a shameful piece of legislation, not that I am an advocate of the advocates who operate the adversarial system.

428.

Mr Stewart: One of the benefits of the new system is that the more damages the claimant receives, the more costs they receive. Granted, costs in Northern Ireland are not good - they are poor - but the more money you get for the client, the more money you get. That is an important factor.

429.

Mr Caldwell: The system's major weakness is that it is not transparent.

430.

Mr Ervine: The system that the Law Society operates is not transparent either. How many victims assisted by the Law Society have been shown what it says in the "green book"? If a single solicitor has shown a victim the "green book", I shall eat my hat.

431.

The Committee accepts, and I think that the Law Society accepts, that the system is not as good as it should be. It is a shameful opportunity being taken on the back of what is happening in Northern Ireland. We are coming out of the wilderness into better circumstances and the new system is feeding off the attitudes of victims. One must remember that the victims that the new legislation will deal with have not yet been created.

432.

The Deputy Chairperson: Are we still dealing with the Tory Government?

433.

Mr Ervine: Yes.

434.

Mr A Maginness: I refer you to some aspects of the proposed scheme and legislation. I note that the limitation period will be two years under the scheme. Have you any comment to make on that? I accept that the Secretary of State may waive that time limit where he considers it reasonable and in the interests of justice to do so.

435.

Mr Caldwell: I see that as an attempt to differentiate the new system from the present system. By reducing the limitation period from three years to two years, the legislators are simply saying that it is a different process. Not only would the new system cut the time limit, but it would mean that the client would be in a different process and he or she would be judged or tribunalised in that process.

436.

Mr A Maginness: With regard to a minor, does time run within the period of the minority or is it at the end of the minority?

437.

Mr Caldwell: It runs up to the twenty-first birthday.

438.

Mr A Maginness: That is under the present system. Under the new system, what would be the limitation period for a minor who reaches adulthood?

439.

Mr Stewart: It would be two years.

440.

Mr A Maginness: So that would be up to 20 years of age.

441.

Mr Stewart: That is a year less.

442.

Mr A Maginness: The draft legislation does not distinguish between a minor and an adult. Therefore a 12-year-old child who suffers a violent attack and decides to bring a claim when he or she is 15 would have run out of time. Is that correct?

443.

Mr Caldwell: Yes.

444.

Mr A Maginness: Is that a departure from normal procedures?

445.

Mr Caldwell: Yes. At present, a child can bring a claim up to his or her twenty-first birthday.

446.

Mr A Maginness: Would that be a breach of the child's human rights?

447.

Mr Stewart: It might well be. One must wonder about some of the legislation, as it was drafted before human rights laws came into force.

448.

Mr A Maginness: It does not appear to have been human rights-proofed, to put it mildly. The legislation proposes to deduct pension and insurance awards. Will you comment on that?

449.

Mr Stewart: That goes back to basic law. If people have already contributed to a pension, why should they suffer a loss simply because they went out of their way to look after themselves? That has been my view, but the House of Lords has discussed that issue many times, as you know. The most recent view is that decisions should not be prejudiced.

450.

Mr A Maginness: Under common law, can a person retain the benefit of any insurance or pension money paid out for an injury that has been sustained?

451.

Mr Stewart: That is my understanding.

452.

Mr A Maginness: People can be disbarred from obtaining compensation for 28 weeks unless they are out of work beyond that period. Do you have any comment to make on that?

453.

Mr Stewart: How can that possibly be in accordance with human rights? The majority of those cases are people who have been out of work for less than 28 weeks. Very few of those people will have been out of work for more than 28 weeks. Does a widow also lose out on damages for the first 28 weeks? I am not sure. The draft legislation seems to imply that, and to be consistent it would have to say that. Those 28 weeks are the worst time for any victim, particularly a widow.

454.

Mr A Maginness: Can you comment on the formula that is used to determine compensation for multiple serious injuries?

455.

Mr Stewart: I am glad that you have raised that point. It flabbergasts me. It follows on from the English system. For example, take someone who was blinded by the a bomb, suffered significant facial scarring and lost an arm. The most serious injury is possibly the blinding. General damages for blinding are in the region of between £200,000 and £300,000. I am subject to correction, but in the draft compensation scheme the figure is much less - I think that it is £150,000. That is half what you would get in general damages. For extreme facial scarring, a person will get 30% of that, the maximum of which is £10,000. In the "green book", the maximum is £60,000. For losing an arm, a person will get 15% of that. Individuals lose out on hundreds and thousands of pounds by following a tariff.

456.

Mr A Maginness: Moreover, a person would not get any compensation if he or she lost a foot as well as an arm.

457.

Mr Caldwell: A person is bound to have tinnitus as a result of an explosion, and that does not feature.

458.

Mr Stewart: Never mind the psychiatric injuries.

459.

Mr A Maginness: Is the formula that is used to reach the threshold for multiple minor injuries fair?

460.

Mr Stewart: It could not possibly be. Some injuries heal after six weeks, but the individual could be in a lot of pain during those weeks. Mr Ervine said that men do not go near doctors. They go once but would not dream of bothering doctors again.

461.

Mr Ervine: If people go to the doctor, and they know why they feel as they do, why would they return to be told the same thing again?

462.

Mr Stewart: I repeatedly see people with significant injuries who do not go near doctors - they take painkillers from the cupboard.

463.

Ms McWilliams: Anyone who has dealt with domestic violence, rape or sex abuse issues will know that to be the case.

464.

Mr Caldwell: A fractured rib is an injury that falls within the six-week time limit. That can cause excruciating pain, especially when breathing, should the fractured rib be below the lungs. However, the rib can heal within the six-week period, without any ongoing pain.

465.

Mr Ervine: Medical professionals deal with that injury differently now. They do not treat it, other than to administer painkillers.

466.

Mr Caldwell: Yet that injury is excruciatingly painful for the sufferer.

467.

Mr A Maginness: Can you comment on the proposed system whereby the Compensation Agency will obtain medical and pecuniary loss evidence?

468.

Mr Stewart: I smiled when you asked a question about that earlier.

469.

Inevitably, there will be a panel of chosen doctors who will favour a tariff system. That already happens in social security cases. Certain doctors are extremely difficult to deal with because they know where their bread is coming from. An advantage of our system is that freedom of choice exists. A solicitor chooses which doctor he wants to use because he knows that that doctor will give the applicant full value for his injuries. Likewise, the Compensation Agency can choose its own doctor to come up against that person. However, as I said earlier, one cannot see the Compensation Agency's medical report. That provision should be abolished immediately and the agency should disclose its medical evidence.

470.

Mr A Maginness: Is it fair to say that the value of the common law system - albeit that it is adversarial - is that each claimant's suffering is assessed individually, and that compensation is given in accordance with that person's level of suffering?

471.

Mr Stewart: That is what we were taught in law, and that is what we hold dearest. Were I to lose my finger, I could still do my work. However, that is not the case for a surgeon, a carpenter or a pianist. Different damages should be awarded to different people.

472.

Mr A Maginness: Do you reject the concept of that "bar code" approach to compensation?

473.

Mr Stewart: Absolutely. It does not bring justice.

474.

Mr A Maginness: I would distinguish the "green book" guidelines from the tariff system. The "green book" contains guidelines to assist barristers and solicitors. Those guidelines do not amount to a tariff system in the sense of the Government's proposed tariff system.

475.

Mr Stewart: I was trying to put the tariff into its historical context. It was introduced at a time when people had no guidelines or information from which to work.

476.

Mr Ervine: Compensation for asbestosis and pneumoconiosis cases has been drastically reduced, when the figures in the "green book" are compared with what they used to be. It is inherently wrong that someone, somewhere decides what those figures should be.

477.

Mr Stewart: I must correct you. I received a letter from Lord Justice McCollom, who is preparing the amendment to the "green book". He asked me to give him my values on chest injury compensation. I think that I doubled the old values. That is merely my suggestion, and other members of the committee may have made other suggestions.

478.

Mr Ervine: The current system has lowered the value of compensation for asbestosis and pneumoconiosis.

479.

Mr Stewart: You refer to the abolition of juries in injury cases in 1985, which did lead to some reduction in damages. Everyone present from the Law Society today was totally against that.

480.

Mr A Maginness: Do you suggest that judges do not award compensation moneys that exceed the range given in the "green book"? The figures in the book are merely guidelines, and, in fact, a judge can go above the range and award whatever compensation moneys he or she wishes.

481.

Mr Stewart: Lord Justice McDermott's states in the "green book", dated 25 October 1996, that

"The suggested valuations are guidelines and will best be used as a check upon a tentative valuation reached after a careful consideration of how particular injuries affect a particular individual."

The tariff completely does away with the need for those valuations.

482.

The Chairperson: I thank everyone for coming here today. It has been a useful session.

APPENDIX 4

WRITTEN SUBMISSIONS TO THE COMMITTEE

Association of Personal Injury Lawyers

Coiste Na n-Iarchimí

Committee of the Centre

Committee on the Administration of Justice

Ex-Prisoners Interpretative Centre

Law Society of Northern Ireland

Northern Ireland Human Rights Commission

Northern Ireland Office

Victim Support Northern Ireland

WRITTEN SUBMISSION BY
THE ASSOCIATION OF PERSONAL INJURY LAWYERS

1. The Association of Personal Injury Lawyers (APIL) was formed in 1990 and represents more than 4800 solicitors, barristers, legal executives and academics whose interest in personal injury work is predominantly on behalf of injured claimants. We have 110 members in Northern Ireland, many of which are experienced in representing the victims of violent crimes in their claims for compensation under the current common law based scheme. The aims of the association are:

To promote full and prompt compensation for all types of personal injury;

To improve access to our legal system by all means including education, the exchange of information and the enhancement of law reform;

To alert the public to dangers in society such as harmful products and dangerous drugs;

To provide a communication network exchanging views formally and informally.

2. APIL strongly objects to the proposed introduction of a fixed tariff scheme which we suspect has been proposed on the basis of costs rather than in the interests of injured victims. A fixed tariff scheme would be both unfair and inflexible. Injuries are listed against specific and inflexible figures and no distinction is made between individuals - each victim of crime with the same injury is treated in the same way as another. This inevitably leads to anomalies and unfairness. For example, a pilot who loses an eye would receive the same compensation as an elderly person despite the fact that the pilot's resulting handicap would last longer and have more significant effects on, for example, his employment prospects. Every victim is different and deserves an individual assessment to take account of the effect of the injury on that person.

3. The provision of a sum of money that does not reflect the needs of an injured victim misunderstands the purpose of compensation. People do not obtain compensation as a 'bonus', nor is it a replacement for winning the lottery. Compensation is awarded in an attempt to put the person in the position they would have been in before the injury occurred as far as money can do so. Whilst it may be asserted that compensation is available to the victims of violent crime as a practical expression of sympathy on behalf of the community, we assert that the purpose of awards should be to make some attempt to recognise the failures of society in protecting the victims of crime.

4. We fear that under the proposed fixed tariff scheme injured victims will be under-compensated for their injuries. It is APIL's contention that if victims feel aggrieved at the level of compensation they have been awarded, they will consider pursuing other avenues for monetary compensation. For instance, hospitals, health authorities, schools, education authorities, local councils and police forces. An example of this would be in a case where an individual was attacked by a psychiatric patient that had recently been released from a secure psychiatric unit. If the victim, or his family, were not satisfied by the level of damages awarded through the tariff, he/they may well consider the possibility of pursuing an action against the psychiatric hospital or NHS Trust responsible for releasing the patient into the community. It is APIL's view that this is likely to be more expensive in the long run.

5. We do not only object to the introduction of a fixed tariff but to the introduction of all tariff based schemes, as they all preclude the assessment of an injured victim's needs to varying degrees. Having said that, some tariff based schemes have more in-built flexibility than the fixed tariff. If, therefore, despite strong objections, the Northern Ireland Office insists on introducing a tariff-based scheme, we submit that a more flexible model should be adopted. This would reduce, though not eliminate, the adverse impact of a tariff-based scheme on the victims of criminal injuries. Some examples follow of more flexible tariff-based schemes. We should stress that we not refer to these as positive suggestions for reform but as the "lesser of two evils" in comparison with a fixed tariff.

The court would assess injuries by reference to the victim rather than by reference to a fixed scale. This could be done by introducing a banding system similar to the Judicial Studies Board Guidelines which provide bands for the assessment of particular injuries and enable an assessment to be made within parameters, but reflecting the circumstances of the individual victim. A flexible tariff or banding system would be far more effective than the fixed tariff. Victims deserve to be treated as individuals rather than slotted into fixed cases.

The tariff figure could be seen as the starting point with discretion given to the person making the assessment to vary it by plus or minus a percentage figure, to reflect the particular victim's circumstances.

Another option would be to use the tariff figures as the norm, with discretion given to the person making the assessment to increase the award to reflect any exceptional or special circumstances affecting the victim within a fixed maximum percentage -for example, if the application was on behalf of a child.

A more sophisticated matrix-based tariff, reflecting objective criteria, such as the age and sex of the victim and taking into account the effects of the injury on that person.

6. Whilst we object to the proposed fixed-tariff scheme in principle we feel compelled to address the practical inadequacies within the scheme as currently proposed. Again, in doing so, we do not intend to support the scheme in principle.

Eligibility Criteria

7. It is proposed in paragraph 18 of the draft scheme that "[w]here at the time when the injury was sustained, the victim and any assailant (whether or not that assailant actually inflicted the injury) were living in the same household as members of the same family, an award will be withheld" unless certain conditions are satisfied. We strongly object to this discriminatory provision as it will operate to exclude many deserving victims. Living in the same household as an assailant is not an indication that the victim consented to the crime or is involved in a lifestyle in which violent crimes can be expected to occur - a crime is a crime and should be treated as such.

Statutory Time Limit

8. We are concerned that applications under the proposed scheme would have to be made within two years of the date of the relevant incident. We do not believe that this provides sufficient time for an application to be lodged and believe that the limitation period should be maintained at three years so that it is the same as the limitation period for civil claims. The longer three-year time limit is extremely important for many victims, particularly those who are suffering from psychological injury, or are the victims of sexual violence (especially children) as many claimants do not feel able to make a claim in the immediate period after the incident in which they suffered injury. This is particularly significant since the time limit runs from the date of the incident irrespective of the age of the victim, nature of the injury or extent of the victim's knowledge. Whilst we are pleased to see that the two year time limit may be waived where it would be reasonable and in the interests of justice, this cannot replace the need for a sufficiently lengthy basic limitation period. In addition, we believe that the limitation period should run from the age of maturity in relation to children.

9. We should stress that if the scheme is to have tight time limits the scheme must be well publicised within the community to ensure that all those who may be in need of compensation are aware of its existence and the point of contact for initiating an application.

Removal of Paid Legal Assistance

10. We strongly oppose the removal of paid legal assistance to the victims of violent crime wishing to make an application for compensation. The operation of the tariff scheme and the application procedures for compensation under it will be extremely confusing to those unfamiliar with such matters and will be especially difficult for those traumatised as a result of a crime. Many injured victims of crime may be unable to read and write and, therefore, unable to complete forms or following written instructions from the Northern Ireland Office on how to apply for compensation.

11. We believe the victims of crime need legal assistance from lawyers who are qualified and trained to deal with such matters. Under the current proposals a claimant would have to pay for that legal assistance. In fact, most victims would have to pay for it out of the compensation awarded to them for the injuries resulting from the violent crime. Alternatively, a victim could consult an organisation such as Victim Support. Whilst we are full of admiration for the work conducted by such organisations we fear that their personnel will lack the required expertise and skills to provide the necessary legal assistance to victims. We fully support, however, the provision of further financing to organisations such as Victim Support to enable them to continue their work in assisting victims to cope with life after a violent crime.

Multiple Injuries

12. We are concerned that awards for multiple injuries under the proposed scheme would be too low. We believe that if a tariff based scheme is adopted, multiple injuries should be compensated on the following basis:

100 per cent of the tariff amount for the highest-rated description of injury; plus

50 per cent of the tariff amount for the second highest-rated description of injury; plus where there are three or more injuries,

25 per cent of the tariff amount for the third highest-rated description of injury.

We believe that the panel should then reconsider the final figure, taking into account the circumstances of the case, and consider whether the total is fair, and if not, be empowered to adjust it (within limits) accordingly.

Sexual Abuse

13. The way in which awards are determined in sexual abuse/child abuse cases involves an analysis of the offending act and does not consider the residual effects of the injury or the suffering/anxiety experienced by the victim as it should.

Future Loss of Earnings

14. We do not agree that compensation for loss of earnings should be limited to one and a half times the gross average industrial earnings at the time of assessment. At the moment a victim of crime would receive full compensation for his loss of earnings and we believe that he should continue to do so regardless of whether a tariff scheme is introduced or not.

15. In calculating future loss of earnings it is stated that the multipliers, discounts and life expectancies contained in the Government Actuary's Department Actuarial Tables for Personal Injury and Fatal Accident Cases in force at the time of the incident will be applied. Those tables, however, demonstrate appropriate multipliers on the basis of a variety of rates of return. The assumed rate of return can, of course, have a significant effect upon the amount of compensation awarded for future losses. We seek the Northern Ireland Office's reassurance, therefore, that the rate of return used to calculate future losses will be that prescribed by the Lord Chancellor under the Damages Act 1996, ie 2.5 per cent.

Deductions

16. We do not agree that all awards payable under the scheme should be subject to a reduction to take account of social security benefits as proposed. If the victim received full compensation under the proposed scheme we would agree that deductions should be made to avoid double or over compensation but as they would not, we do not believe it is fair to make such deductions.

Appeals

17. We believe that there should be a right of appeal and that it should lie to a court of law rather than an administrative panel, as was recommended by Sir Kenneth Bloomfield. Sir Bloomfield recognised that many criminal injuries compensation applications are determined to a large extent on police evidence, either as to the circumstances in which the offence gave rise to the application occurred, or as to the criminal record, terrorist involvement or other 'antecedents' of the applicant or victim, or both. We agree with his conclusion outlined in paragraph 8.132 of his report where he stated:

"We were advised in strong terms by the Law Society, Bar Council and others that it was eligibility issues such as these which formed the basis of most County Court appeals and that it was highly desirable in the particular circumstances of Northern Ireland that contentious issues of this kind should ultimately be capable of being determined by the ordinary courts. They suggested that it would not suffice in the present climate to have the final decision on such issues determined by a special tribunal, even if that tribunal was presided over by a senior and independent barrister or solicitor. We accept that this, unfortunately, is the case at present and may remain for some time. Accordingly, we recommend that there should continue to be a right of appeal from the determination of the Agency to the County Court."

18. We also believe his observations highlight how important it is that both applications and appeals should be handled by qualified lawyers and that victims of violent crime should have access to paid legal assistance. Directing the right of appeal to a court rather than an administrative panel is not just important because of the likely issues to be determined. To many injured victims of crime it is psychologically important for them to have "their day in court" and to have their injuries and their right to compensation recognised in law. This may be especially important to victims where the person responsible for their injuries has not been formally prosecuted.

Inflationary Increases

19. It is imperative that if a tariff based scheme is introduced that the awards within the tariff are increased annually to account for inflation to ensure that the awards are up to date.

20. In conclusion, whilst we recognise there may be some minor problems within the current common law based system of criminal injuries compensation, we believe that it serves the injured victims of violent crime well in providing them compensation suited to their individual needs and, for this reason, the current system should not be radically reformed. Tariff schemes may appear more financially attractive than the current scheme but we do not believe that economic interests should take precedence over the interests of the injured victims of crime who both deserve and need compensation as it is currently awarded --on the basis of their individual needs and losses.

THE ASSOCIATION OF PERSONAL INJURY LAWYERS
November 2001

WRITTEN SUBMISSION BY
Coiste na n-Iarchimí

Thank you for the opportunity to comment on the proposed new legislation. We would certainly welcome the opportunity to give evidence to the Committee on the adverse impact of the past regime and the continuing dangers in the new proposals for political ex-prisoners.

First of all, we welcome the improvements in the draft legislation removing the explicit and discriminatory block to compensation for those convicted under the provisions of emergency law.

However, the proposals contain continuing difficulties. Specifically, these relate to the Secretary of State's discretionary powers outlined in paragraph 14(e) on page 4 of the draft Compensation Scheme. Under these provisions, spent convictions are not considered. However, only sentences of two and a half years or less ever become spent. Considering that convictions under emergency law were very seldom for less than two and a half years, this indicates that the new scheme will hardly make any difference at all to political ex-prisoners.

In addition, the Secretary of State may also make a decision on the basis of other "evidence available to" her/him. This raises the prospects of intelligence accounts which cannot be challenged.

These two points in particular indicate that the regime will in fact make no appreciable difference to the vast majority of political ex-prisoners.

One positive point is that it appears that the negative aspects may impact less on an applicant who is a close relative of a deceased victim. This appears to raise the prospect that relatives of those injured may not be disqualified automatically from compensation even if the victim him/herself has an unspent conviction. If this is the case, this will be welcome.

However, a close reading of paragraph 38 (on page 10 of the draft Compensation Scheme) which deals with compensation in fatal cases, shows that the relative will be subject to the same "character check". This of course includes the reference to "other" evidence apart from convictions.

In appears, therefore, that while the explicit disqualification has been removed, implicit disqualifications will remain. The question for the Committee to address is whether those who have conflict-related convictions are entitled as of right to compensation where they are victims of injury.

There are many who feel that there should be an hierarchy of victims and the only victims who should be entitled to compensation are "innocent" according to their own definitions. From our point of view, the search for a new inclusive society will be elusive unless all are treated as equal. This is particularly so in relation to those whose only involvement with the criminal justice system arose because our society was in conflict.

We note a number of developments throughout Ireland which indicate a growing awareness of this. For example:

the 6 county Human Rights Commission, in its consultation document on a Bill of Rights has proposed that the possession of past convictions should be prohibited as a ground for discrimination;

the Equality Authority in the 26 counties has recommended to the Irish government that possession of a conviction should be included in the Employment Equality Act as a prohibited ground for discrimination;

the National Economic and Social Forum working group on integration of ex-prisoners and ex-offenders has recommended the introduction of a mechanism to expunge convictions; and

the Equality Commission in the 6 counties is considering the question of past convictions in relation to its proposals on a Single Equality Act.

We urge the ad hoc Committee therefore to consider how the draft legislation on criminal injuries compensation can ensure that former political prisoners are protected from discrimination in situations where they or their relatives are victimised in future.

I enclose for your information a submission we made to the Bloomfield Review. This deals in more detail with the issues raised and includes some case studies.

I look forward to the opportunity to give oral evidence to the Committee and wish the Committee well in it deliberations.

COISTE NA N-IARCHIMÍ
October 2001

Annex

written submission to
the review of criminal injuries compensation

1. Introduction

Coiste na n-Iarchimí is the co-ordinating body for 20 groups and projects working with republican ex-prisoners and their families throughout Ireland. Members' groups are located throughout the northern half of the island and our client base includes the estimated 15,000 republican ex-prisoners and their families who have experienced imprisonment as a result of the conflict.

We wish to raise with you the bar on criminal injuries compensation to those victimised as a result of the conflict or through other sectarian incidents if they have a previous political conviction imposed through the system of emergency law. The relevant section of the legislation is section 5.9. As we understand it this is an absolute bar against those who have been convicted for political "offences". While section 10.2 of the legislation allows a discretion to the Secretary of State to grant compensation notwithstanding a previous conviction, to our knowledge it appears that this route is an unfruitful one.

It is important to note that there are many cases which have not been brought to the attention of the authorities because legal advice has been - correctly - that there is no point in lodging cases as compensation would be denied. We are currently seeking to document cases through our member groups and projects so as to get a sense of the scale of the disadvantage which former political prisoners and their families have faced in relation to this issue.

We should like to bring to your attention, however, a number of cases which indicate the unfairness of this provision and which show the burden which is placed on individuals and families because of it.

2. Case Studies

2.1. In June 1996, Mr Joseph Quin was attacked by 4 men when he was going to buy something from the garage. Four weeks later he was diagnosed as having MS, the doctors indicating that this was likely to have been brought on as a direct result of the attack. Three years later, he can no longer work; he needs assistance with walking, dressing, washing, eating and may now be losing his sight.

He has a wife and three children under 10 years of age.

He is ineligible for criminal injuries compensation as he received a conviction in 1977 for membership of a republican youth organisation and training with a wooden gun. He was a member for two weeks in 1975 when he was 15 years old. After being on remand for 6 months, he was sentenced to two years, suspended for two years.

2.2. In January 1999, just after New Year, Mr McCallion was returning home after a night out. He came across an altercation outside a restaurant and sought to intervene to assist in calming down the situation. One of the disputants took exception to his intervention and attacked him. He died of his injuries. Because Mr McCallion was convicted under the Diplock system and served a sentence, his family is not entitled to compensation. An application has been made to the Secretary of State to exercise her discretion under section 10.2.

2.3. Mr Cummins was a doorman at the Glengannon Hotel, Dungannon, the night Billy Wright was killed in Long Kesh in December 1997. An attempt was made by loyalists to get into a function - which was a routine event for a mixed clientele - and carry out an indiscriminate attack. Mr Cummins and a colleague, Mr Seamus Dillon - with astounding courage but fulfilling the task for which they were being paid - prevented the gunmen from entering and were fired on. Mr Dillon was killed, Mr Cummins was injured resulting in his being paralysed from above the waist down. He is unable to work and is dependent on his family for nursing. Mr Cummins has three children. He is rendered ineligible for criminal injuries compensation because he has a conviction imposed under emergency legislation.

2.4. Mr Paddy O'Hagan has 4 young children. In August 1994 his pregnant wife was shot by loyalists in the children's bedroom of their home. The children witnessed the killing. Mr O'Hagan was out at the time and returned home to find his distraught children in the room with his wife's body. Mr O'Hagan served a sentence for IRA activities. He is, accordingly, ineligible for compensation to assist with the bringing up of the children and to cope with the after effects of the trauma which they have experienced.

3. Argument

3.1 Impact on children

Even if we were to accept the apparent logic behind section 5.9 that those with Diplock convictions are undeserving of compensation, there is a clear impact through the legislation on the relatives of the "offender". They have not been convicted in any courts whether Diplock or otherwise and yet are punished because of their relationship to the person who has. We should also point out that the impact is on children as well as adults. The financial effects of the attack which gives rise to the need for compensation makes no distinction in relation to age. We would remind you that the Children ~I) Order is clear that, in relation to legislative and administrative decisions, the interests of children should be the paramount concern. We would also point out that the UN Convention on the Rights of the Child make clear that children should not be discriminated against because of the political affiliation of their parents.

In relation to the cases which we have outlined, it is clear that there is an impact on children. Making a distinction between these children and others where their parent has not been directly involved in the conflict is, in our submission, unfair.

3.2 Hierarchy of victims

Another effect of this legislation is that it creates an hierarchy of victimhood. This has been a phenomenon which has been apparent in the last year where opponents of the Good Friday Agreement have sought to create distinctions between non-participant and participant victims of the conflict. Quite apart from our previous point that the denial of compensation hits those who have not been convicted through the use of special legislation, it is, in our submission, unlikely to promote reconciliation for legislative distinctions to be made. Too many people are affected. If an overall estimate is that there may be as many as 25,000 ex-prisoners throughout Ireland, then we should increase this by a factor of 5 to include close family members. We are, therefore, talking conservatively about 125,000 individuals who are affected by this issue. This is too large a number of people to be consigned to undeserving victimhood as we - it is hoped - move forward into a period of reconciliation and community building. The north has too long a history of discrimination and hierarchies of access to repeat the mistake in the future.

3.3 Political distinction

The legislation creates a distinction between those convicted of political and other "offences". A large part of the conflict has related to the question of the difference between these with the government claiming there should be no distinction. It is hypocritical therefore to establish a distinction where there is a financial cost involved. While we of course accept the distinction and have always opposed the attempt to criminalise the conflict through the use of ever more draconian emergency legislation - indeed many of our members suffered during imprisonment to establish the distinction through political status - it is disingenuous to bring it into the state's obligation to provide support to those victimised through no fault of their own, as the case studies above make clear.

The other point of course is that, should a former political prisoner have been seriously injured in a car crash or other non-conflict related incident, there would be no bar to them receiving compensation for post-injury needs. The needs are no less vital and urgent in these cases.

3.4 Retrospective punishment

In our view the section imposes a retrospective punishment on individuals, quite apart from the political discrimination which it involves through being targeted only at those convicted under emergency legislation. Once prisoners have been released through the usual release mechanisms, the punitive measures imposed by the courts should be viewed as having taken their course. Cases such as those we have briefly outlined above show that many years later, the effect of the conviction is brought to bear. Even in the case of those whose conviction is spent according to the effect of the Rehabilitation of Offenders legislation.

We would therefore wish to see the provision scrapped so that those, like the cases we have highlighted above can avail of vital financial support.

3.5 A barrier to successful re-integration of prisoners

Many prisoners have suffered for their involvement both in terms of the period of imprisonment itself and also in relation to missing out of the usual route into employment, career and salary with which to support their dependants. Research among ex-prisoners in the Upper Springfield and New Lodge areas of Belfast show that ex-prisoners suffer extremely high levels of long-term unemployment (87.5% and 75% respectively). The safety net of support is therefore fragile in terms of many ex-prisoners. To add the burden which is imposed by criminal injuries outlined in the cases above creates further difficulties over which the individuals themselves have no control. Continuing to make convictions - imposed under special powers - which arose from a social conflict the distinguishing marks of ex-prisoners as distinct from the rest of society can only maintain barriers to successful re-integration and reconciliation.

4. Conclusion: a contribution to reconciliation

In conclusion, we contend that section 5.9 of the criminal injuries compensation legislation is discriminatory and vindictive and affords no recognition of the use of special powers in attempting to criminalise those imprisoned as a result of the conflict. It also places an unfair burden on relatives. It is, finally, an obstacle to re-integration of ex-prisoners who have already paid a high price for their involvement in the conflict through - usually - long periods of imprisonment. The Good Friday Agreement recognised the positive role which prisoners have played in the development of the peace process and the importance of both early release and successful integration of ex-prisoners back into society. It also recognised the need for a fundamental overhaul of policing, the criminal justice system and the use of emergency legislation as part of a movement away from conflict and into peace with justice. We all need to put behind us the use of emergency legislation, Diplock courts and the other paraphernalia of repression which as been used to distort the legal process and hide the political character of the conflict.

Both for the sake of ex-prisoners, their families and especially their children, the unfair and vindictive provisions of section 5.9 should be consigned to the past. In building peace and justice in Ireland, continuing barriers to full participation in society by ex-prisoners and distinctions between them and the rest of the population will have to be acted upon. We ask that your review take this step in relation to criminal injuries compensation.

COISTE NA N-IARCHIMÍ
May 1999

[EXTRACT]

Written Submission by
the Committee of the Centre

Thank you for the letter that the Chairperson, Mr Hutchinson, sent to Mr Poots, Chairperson of the Committee of the Centre on 20 September seeking the Committee's views on the proposals for new legislative arrangements for paying compensation to victims of violent crime.

The Committee considered the proposals at the meeting on 10 October and have asked me to let you have the Committee's comments on a number of issues. These are set out below.

The Committee does not support the proposal to move from the current common law principle to a tariff scheme as it is concerned that victims may be worse off financially under a tariff scheme. In addition, the Committee is not in favour of the proposals in relation to payment of compensation for multiple injuries, as this may result in a claimant with multiple serious injuries being worse off financially.

The Committee noted that the withdrawal of legal aid is estimated to save £7m and that additional funding, amounting to only £0.4m will be provided to Victims Support (NI). The Committee is concerned that this limited funding, and the proposal that legal costs incurred by the applicant in his application, or appeal, must be met from his own pocket, could mean that justifiable claims may not be pursued due to lack of representation or availability of funding.

The Committee also has some concerns about the proposals in relation to the removal of specific terrorist exclusions. The Committee's concerns relate to the proposal that 'evidence available to the Secretary of State' may be taken in to consideration. The Committee is concerned about the amount of discretion that this may give to the Secretary of State and his officials.

The Committee also understands that under the proposed arrangements individuals may not be able to claim for loss of earnings until after 28 weeks, whereas under the current arrangements compensation for loss of earnings can be claimed from the first week. The Committee considers that the proposal is not acceptable.

The Committee is content with the following proposals in the draft Scheme -

Bereavement support awards;

Increased eligibility for psychiatric injury;

The change in the definition of criminal injury;

The proposed definition of mental illness;

The removal of the strict time limits for informing the police of an injury; and

The facility to re-open cases where the victim's condition deteriorates.

I hope this is helpful.

COMMITTEE OF THE CENTRE
October 2001

Written Submission by
the Committee on the Administration of Justice

Introduction

1. The Committee on the Administration of Justice (CAJ) welcomes the opportunity to comments on the draft Criminal Injuries Compensation (Northern Ireland) Order and Scheme. We do not have detailed comments on every section of the draft Order but concentrate on a number of specific areas with relevance to our human rights mandate. We hope our comments will prove useful to the Committee.

Administration of the Scheme

2. While we welcome efforts to streamline the compensation system, we are concerned at the removal of the right of applicants to appeal decisions of the Secretary of State to the County Court. It may well be that adjudicators appointed by the Secretary of State under article 7 of the draft Order will discharge their duties effectively and independently, but access to the courts is an important principle, particularly in light of the duties imposed on public authorities by the Human Rights Act and article 6 of the European Convention on Human Rights.

3. In this connection while we recognise that in many straightforward cases, legal aid will no longer be necessary, we believe it should still be available in more complex cases. Indeed Sir Kenneth Bloomfield recommended in his report that the Compensation Agency should continue to pay reasonable costs and expenses to applicants who seek legal advice in complex cases.

4. The introduction of the tariff scheme will of course bring the system in Northern Ireland into line with the compensation system operating in Britain. We understand that it is supported by victims groups, in part on the basis that it will reduce the occasions on which different levels of compensation are awarded for similar injuries. While we have no specific comments on the merits or demerits of the tariff scheme we would urge MLAs to explore whether the overall effect of the introduction of this system will reduce the level of compensation likely to be paid to applicants in Northern Ireland and how this is to be avoided. One practical suggestion would be to index link the tariff system to ensure that applicants are not disadvantaged.

5. We also disagree with the reduction of compensation awards in cases where an applicant is receiving state benefits (paragraph 45). Compensation awards are a reflection of society's concern at what has happened to a victim and should not be reduced because that person is receiving a state benefit.

Eligibility to apply for compensation

6. One of the major concerns which CAJ had in relation to the Criminal Injuries (Compensation) (NI) Order 1988 was the blanket exclusion from compensation under article 5(9) for those who had been at any stage "engaged in the commission, preparation or instigation of acts of terrorism at any time whatsoever". We had long argued that this exclusion was too wide. It was not confined to cases where the applicant for compensation had been previously convicted of paramilitary offences and it completely ignored what may have happened to the applicant between the acts in question and his/her subsequent application for compensation. The person may for instance have served a prison sentence for the offence for which they were convicted and therefore be entitled to reintegration. To apply the exclusion from compensation automatically to an applicant years after an episode in his/her past would be contrary to natural justice and the rule of law.

7. We therefore welcome the proposal under the draft Order and Scheme to make any reduction or refusal of compensation a discretionary matter for the Secretary of State (paragraph 14 of the Scheme). We believe however it should be made clear that the Secretary of State must give reasons to an applicant as to why compensation is being reduced or refused.

8. Support is given to this view by a recent judgement from Mr Justice Kerr in the High Court in the case of McCallion and Others. In this case which concerned a refusal by the Secretary of State to exercise his very limited discretion under the old system of criminal injuries compensation, the court ruled that applicants should be provided with details of factors which influenced the decision of the Secretary of State. It is likely this judgement will have implications for the draft Scheme. Consideration should therefore be given to including language which ensures that applicants are given an opportunity to comment on "evidence available to the Secretary of State" (paragraph 14(e)) which will influence his decision.

9. McCallion related to a situation where dependants of a person who was killed as a result of an attack were refused compensation because of the criminal convictions or alleged character of the victim. It seemed to us unacceptable that there should be an automatic denial of compensation to dependants in these circumstances merely because of the deceased's previous involvement in paramilitary activity. Whatever the crimes or alleged crimes of someone their dependants should not be punished. We believed that the dependants should not be disadvantaged in this manner since their loss was just as real regardless of the previous activities of the person who had died.

10. Once again we are therefore glad to see that at least this matter has been left to the discretion of the Secretary of State who presumably will be able to consider matters such as the hardship the refusal of compensation may cause to children. However, we are disappointed that the linkage between the previous conduct of a parent and the loss to his/her children has been maintained. We believe it is difficult to envisage any circumstances in which it would be fair to deny compensation to children on the grounds that the parent who has been killed had previous convictions for paramilitary offences.

11. This clearly flies in the face of the UK's international commitments in the Convention on the Rights of the Child that the interests of the child should be a "primary consideration" in all actions concerning the child.

Recovery from Offenders

12. We are concerned that the provisions regarding recovery from offenders remain largely unchanged from the old system. While of course there is a strong argument in favour of reimbursement from the offender, the provisions appear to mean that, years after an award of compensation has been made to a victim, the perpetrator of the crime can be made to reimburse the state if he or she receives any form of state benefit at all. Indeed in the past this has been interpreted by the courts as meaning to include exemplary damages for a tort committed against the perpetrator by prison officers (Hamilton and Kerr v Secretary of State [1994] 6 BNIL 29]. Where the state is not involved, there is of course a strict statute of limitations in relation to taking legal action. It would appear to be more just if this right to reimbursement were made to apply only during a fixed period subsequent to the perpetration of the crime in question (say three years, the standard limitation period in actions for personal injuries). It also appears unfair that several joint offenders can be made to reimburse the full amount paid out by the state to a victim. It would seem equitable, certainly where others amongst the offenders have the means available, to require joint offenders to share the duty to make reimbursement payments.

Sexual Offences

13. A major concern expressed about the old system was that the strict time limits for lodging applications excluded child victims of sexual abuse who for understandable reasons, may be reluctant or indeed unable to complain about abuse until they are much older. This had led to situations where an offender had been prosecuted and convicted but compensation was refused to his/her victims on the basis that the applications were not lodged within time. We and others argued that a much longer time limit was therefore appropriate with provision made for the time limit not to begin to run in the case of an abused minor, until that minor reaches the age of 18. While we welcome the extension of the time limit to two years, this does not resolve this particular problem. The increased discretion afforded to the Secretary of State may assist in lessening injustice in particular cases but we remain of the view that active consideration should be given to this problem, particularly in light of the fact that in Britain, it appears that the system has operated in such a way as to grant victims compensation in these circumstances.

THE COMMITTEE ON THE ADMINISTRATION OF JUSTICE
October 2001

WRITTEN SUBMISSION BY
The ex-prisoners interpretative centre (EPIC)

EPIC has a specific interest in the N.I. Compensation Scheme from the perspective that for many years now ex-prisoners have been discriminated against and have had claims denied solely on the basis that they were ex-prisoners.

The Scheme provides for the payment of compensation to or in respect of persons who have sustained criminal injury. That compensation claim should apply to all people regardless of their background or previous convictions.

If a person is a victim of a criminal injury then the fact that they have a previous conviction should not be taken into consideration when assessing their claim. There are many instances in the past where people who have been leading constructive lives and ended up victims of criminal injury yet had their claims denied because of convictions in the past. The law in fact was used against them rather than for them.

Society will tell you that when a person serves a sentence of imprisonment that they have paid their debt to society. Ex-prisoners will tell you that from their experience society forces ex-prisoners to pay their "dues" till they go to their grave.

Ex-prisoners are discriminated along a wide front of institutional barriers that prevent them and their families from leading normal and constructive lives.

Among these are:

Denial of Criminal Injury

Denial of Criminal Damage

Pension Restrictions

Access of themselves and family members to employment in Security Forces, Civil Service and other Industries

Restrictions on Loans from Banks, Mortgages & Insurance

Restrictions on International Travel

Accessing PSV Licenses

Constraints as a consequence of NI Rehabilitation of Offenders Act

Employment Opportunities in General.

EPIC seeks a level playing field for ex-prisoners and their families in all aspects of life and Criminal Injuries is one of those fields.

Under the Good Friday Agreement the Governments and participants recognised the significance of ex-prisoners future role in Society.

"The Government continue to recognise the importance of measures to facilitate the reintegration of prisoners into the community providing support both prior to and after release, including assistance directed towards availing employment opportunities, re-training, and further education."

Institutional Discrimination by Government, Industry and Legislation prevent the full reintegration of prisoners and their families into Society.

The premise of any Scheme should not have an inbuilt discrimination on anyone, allowing them to pursue a claim and have an award offered where justified. The onus should then be on the Secretary of State to show good reason as to why anyone should be denied a claim.

Probably one of the most profound cases of discrimination against ex-prisoners in a Criminal Injuries claim was that of Ralph Creighton, 44 years old from Belfast. In April this year Ralph was denied a Criminal Injuries Claim solely on the basis that he had a past conviction.

Mr Creighton was 18 years old when he was convicted in 1977 for throwing a petrol bomb. Upon his release he successfully reintegrated into society, got married and was in steady employment.

In 1993 he was an innocent bystander outside The Drury Lane Bar in Amelia Street Belfast, when it was sprayed with gunfire from a passing car. Mr Creighton was hit in the back causing damage to his spinal cord. Mr Creighton was paralysed but was denied Criminal Injuries due to the legislation concerning ex-prisoners.

The case epitomises the injustice ex-prisoners find themselves in upon return to society. Mr Creighton upon his release from prison attempted to lead a constructive life. He settled down, got married, and was in steady employment and fulfilling the demands that society required of him. Through no fault or contributory negligence of himself he is a victim of a Criminal Injury yet he is punished twice. Society claims that when a person serves the sentence imposed on them that they have paid their debt to society. In Mr Creighton's case he continues to pay his debt to society.

The leading role in the Scheme is fronted by the Secretary of State or his Office. We feel that this is wrong because any Panel will feel intimidated by this. We feel that the Panel should be the decision makers and the Secretary of States' Office should be the medium for Appeals.

The Compensation Scheme should be Fair and Just. The singling out of people with convictions for special treatment is unfair, unjust and a denial of basic human rights.

We therefore call for the removal of any disbarment of people from compensation claims solely on the basis that they have previous convictions.

EX-PRISONERS INTERPRETATIVE CENTRE
October 2001

written submission BY
THE LAW Society OF NORTHERN IRELAND

1. This paper sets out the position of the Law Society of Northern Ireland ("the Society") in respect of proposals by the Government to reform fundamentally the established arrangements for compensating the victims of crime in Northern Ireland.

2. The Government proposals are set out in draft legislation, and associated explanatory material, (the Draft Criminal Injuries Compensation (Northern Ireland) Order 2001) which have been made available to the Assembly as part of the public consultative process which will end on 30^th November. While the Society may make further observations to the Secretary of State on matters of detail arising from the draft Order in due course, the primary purpose of this paper is to highlight for the benefit of the Assembly the opposition of the Society to the most fundamental change proposed by the Government: namely, the introduction of a tariff of compensation awards together with the removal of the rights of victims to have access to independent legal advice and to the independent judicial process in the assessment of entitlement to, and the amount of, compensation.

Overview and Origins

3. The stated origins of the Government proposals are these. The Government published these proposals in June 2001. These proposals were preceded by a report by a review team led by Sir Kenneth Bloomfield ("the Bloomfield Report") made to the Secretary of State in June 1999. This in turn stemmed from the work of Sir Kenneth as the Victims Commissioner.

4. There is good reason to suspect that the tariff proposal now made the Government has its true origins in the well-known and cherished ambition of the Government, driven by Treasury considerations, to remove the assessment of compensation in individual cases from the control and influence of the independent judiciary and legal profession with the objective of reducing compensation paid to victims.

5. The Bloomfield Report made some recommendations which are self-evidently in the interest of victims. In other respects the Society believes that this initial analysis is flawed or based upon a misunderstanding of the present system. This led the Bloomfield Review Team to make what we believe to be a critical error in commending to the Government that the basis of assessing compensation should be modified by introduction of a tariff for awards for lower-value cases, albeit while maintaining the rights of access to legal advice and the courts in higher value cases.

6. The Society considers that this half-way concession to the Government was misconceived for several key reasons, as follows:

(a) the Bloomfield Report presented the Government with the opportunity to achieve its long-held aspiration to introduce the discredited "English" tariff-system in full. This is the real explanation of why the Government has rejected the Bloomfield Report recommendation that the present system should be retained for higher-value cases;

(b) in particular, introduction of a tariff system will achieve the Government objective of transferring control, and assessment of what is fair and reasonable compensation, away from the judiciary to the executive;

(c) within the research on the views of victims, and not surprisingly, there is evidence of a desire for greater speed of process and a clearer understanding of the basis on which compensation is assessed. There is no evidence whatsoever of a desire on the part of victims to receive less compensation in return for a system which promises to be quicker and easier to understand, but which denies them the right to professional advice;

(d) the premise that the English tariff system is better in terms of simplicity, transparency or speed is highly questionable. There is a complete absence of evidence to support this proposition, bearing in mind that no attempt has been made to compare the English tariff system with what might be achieved by means of the process of improvements to the Northern Ireland system which the Society would commend;

(e) similarly the assumption that the English tariff system will command greater confidence from victims is highly questionable bearing in mind the expressions of dissatisfaction and sense of injustice which are a regular feature of the operation of the English system;

(f) the Government proposals may be designed, and certainly will have the effect, of creating an imbalance of interest between the executive and the claimant. As we understand it, legal expertise will be available to the adjudicators both in the context of the initial decision under the tariff-scheme, and also at the review stage before the proposed Commission. Even a cursory examination of the draft legislation indicates those questions on which claimants will be severely prejudiced and disadvantaged by the absence of independent legal advice. This will also have the effect (positive only in the perspective of the Government) of encouraging applicants to accept compensation which is not fair or adequate, rather than face the review process without the benefit of professional legal assistance;

(g) where there are problems of transparency or a speed of process within the NI system, these can be addressed effectively without introduction of a tariff scheme and without sacrificing the interests of victims in having access to legal advice and equal treatment before the courts;

(h) control of compensation levels is the prize which the Government covets. For this prize the intention is to offer, in the short-term, a tariff which is asserted to be based on Northern Ireland compensation levels. The Society considers that in the immediate and short-term the NI tariff levels are likely in fact to result in the reduction of compensation levels. We await information from the Northern Ireland Office (not disclosed in the Explanatory Document) of the mechanism used to calculate the proposed Northern Ireland tariff levels. To date there has been no consultation with practitioners about these compensation levels, and at first blush there appear to be significant discrepancies between the values on the proposed NI tariff and awards made by the courts under the present system;

(i) apart from these short-term considerations, it is absolutely clear that the Government's objective is to allow the Government to take longer-term control over compensation levels. Under the Order, decisions about whether, and if so when, the NI tariff levels will be increased or decreased will lie exclusively within the discretion, and on the initiative of, the executive rather than the judiciary.

7. By way of contrast, the Society position might be summarised as follows:

(a) The developed and well-established principles on which compensation for criminal injuries is assessed in Northern Ireland are correct. At a minimum the amount of compensation payable should represent full restitution tailored to the circumstances and needs of the individual victim. We are opposed to any change which has the effect of diminishing the individual rights and entitlements of claimants. We are not persuaded that any form of tariff system will serve the best interests of victims;

(b) We consider that the present structures and mechanisms for the assessment of compensation are correct in principle and essentially sound in practice. The mechanism by which compensation is assessed on a full-disclosure basis by a Government Agency but with the ultimate safeguard of access to independent legal advice and independent judicial determination provides a proper balance of interests and equality of arms;

(c) Provided the core principles and structures of the current Northern Ireland scheme are maintained the Society will support, and will contribute constructively to, any changes which will improve the experience of victims in securing proper compensation with a minimum of delay and inconvenience.

8. We remain unconvinced that the introduction of a tariff system will operate to the benefit of victims or in the overall public interest, for the reasons set out more fully below. On the contrary, we have the most serious reservations, which we urge the Assembly to treat seriously, that a fundamental shift in the basis of assessment will undermine public confidence in the present system.

9. The Society recognises immediately, of course, that our opposition can be misrepresented or misunderstood to be affected by self-interest. While we consider that such criticism would be unfair for reasons which are set out in more detail in this paper, this potential for misrepresentation of the Society's motivation is a particular reason why we would urge local representatives within the Assembly to pay particular regard to the merits of the arguments against the proposals, and have regard also to concerns about these matters which may be voiced by other disinterested commentators.

Detailed Submissions

10. For the further purposes of this paper, the Society proposes to concentrate on those aspects of the Government proposals of which members of the Society have most direct experience, and on which the Society can comment accordingly with some authority.

11. The Government proposals need to be understood in the context of the evolved system of criminal injuries compensation which has been established and operated for many years in Northern Ireland. The Society does not consider that sufficient weight has been given to the distinctive strengths of the Northern Ireland system. This applies both in terms of the attention which is given by the present system to the needs and circumstances of individual victims, and to the actual and potential efficiencies of the present system for the handling and disposal of criminal injury claims. We refer below in more detail to the absence of a sufficient factual underpinning for some of the conclusions both the Bloomfield Report, and by extension, the Government proposals. The most critical of these is the fact that the present Scheme has given rise to no fundamental or widespread disquiet on the part of victims as regards the level of compensation. Where there are articulated and substantiated concerns on the part of the victims these are focussed on issues such as the length of time taken, the need for a better understanding of the process and the methods by which compensation is calculated, and more sensitivity to the needs of victims.

12. In this connection, the Society wishes to draw attention to a number of matters of vital importance in determining the way forward in connection with Government proposals.

The Northern Ireland Context

13. The communal trauma to which Northern Ireland Society has been subjected for some thirty years has been arguably unprecedented in recent times in terms of its scale, longevity and far-reaching social effects. This has been well-documented in the Bloomfield Report and elsewhere. It is clear from the research work undertaken by Bloomfield that the system of criminal injuries compensation which has evolved to meet the needs of Northern Ireland enjoys a wide measure of support. Therefore there is every reason to think that the present system has become, by way of this process of evolution and experience, well-adapted and suitable for the purpose of recognising in an appropriate way the needs of victims in this jurisdiction. Where there is little evidence of public dissatisfaction, we believe the onus lies on those advocating fundamental change to put forward a compelling case. There is a substantial risk and reason to suspect that the benefits of the present system have been underestimated and undervalued, and the Society remains to be persuaded that an adequate case for fundamental change to a tariff-system has been made out.

The Victims Perspective

14. The point made above is reinforced by an examination of the hard evidence gathered by the Bloomfield review team in the course of their research. The main findings arising from that research can be summarised as follows;

(i.) There has been little or no criticism by victims/claimants of the amounts of compensation payable under the scheme;

(ii.) The level of satisfaction with the amount of the award ranges between 70% and 82%;

(iii.) The level of satisfaction that the overall claim was dealt with sensitively and fairly ranges between 69% and 88% (disregarding those whose dissatisfaction may be linked to the fact that their claim was ultimately unsuccessful);

(iv.) The level of satisfaction with solicitors' performance as regards keeping the client informed was 90% of the total sample, with an 85% satisfaction rate among the same sample with the manner in which the case was handled overall by the solicitor;

(v.) Where dissatisfaction with the solicitor was expressed, this confirmed the source of dissatisfaction as being primarily lack of communication or perceived lack of effort, not dissatisfaction with the ultimate outcome achieved.

15. Similarly a high-satisfaction level (81%) was expressed about the degree of consultation by the lawyer. Another striking finding is that a majority of all respondents expressed no wish to see the Criminal Injuries Compensation Scheme changed in any respect. More significantly, the main changes advocated by the minority (itself inflated by the degree of dissatisfaction expressed by those whose claims were unsuccessful) who wished to see any alteration to the present Scheme focussed on procedural matters (length of process, better consideration/counselling for victims, provision for better information to victims) and with only 3% suggesting that solicitors and barristers need to provide better or cheaper services.

16. We believe that these results demonstrate in a reliable way the overall strengths of the present system; satisfaction from the victims perspective based upon the actual experience of a wide range of victims; and confirm the Society submission that the principles governing the assessment of compensation at present enjoy a significant measure of public confidence. However, the results do support and highlight the need, recognised by the Society, for procedural and other improvements to be made to further reduce delay; to facilitate early and equitable settlement on the basis of proper professional advice; to improve the victims sense of involvement in and understanding of the process; and generally to ensure that the victims experience of the process is as stress-free as possible. There is no justification in these first-hand research findings, (as opposed to anecdotal evidence or second-hand accounts of the victims experience) for the adoption of a tariff system which, as a method of providing adequate means of addressing the individual and particular needs of victims, has been thoroughly discredited elsewhere.

17. In the view of the Society it would be possible to achieve significant improvements to the present system, in a way which meets the genuine needs of victims, without the introduction of a tariff system.

The Strengths of the Present System

18. As already noted, one of the criticisms which is made by victim/claimants under the present system is the length of time taken to arrive at a settlement or final disposal of the claim. The Bloomfield Report acknowledges some of the reasons for this and, so far as the Society can encourage and support any simplification and expedition within the process, we are prepared to be constructive and innovative.

19. However in the submission of the Society it is wholly inaccurate to regard the present system, whether explicitly or by implication, as expensive or wasteful in terms of administrative unit costs, and specifically legal costs associated with the proper advisory and representational functions of solicitors and Counsel.

20. One of the widely commended positive facets of legal practice in Northern Ireland is the general efficiency of the civil litigation process. In the county court this is achieved through a combination of effective court procedures together with a scale costs system which promotes efficiency. The principles and practice of the county court system generally inure for the benefit of criminal injury appeals. Where these benefits have yet to be realised in the areas highlighted by the Review Report, the Society recognises that steps can be taken to improve the process - for example, to ensure the early listing of cases.

21. The benefits of these practices have been widely recognised, specifically in the report of the Civil Justice Review Group chaired by Campbell LJ, and more widely in the course of recent civil justice reforms in England Wales (Lord Woolf has personally commended our efficient and client orientated systems).

22. The same principles and efficiencies are applied to the criminal injuries compensation scheme, not only in terms of appeals to the county court, but also at the pre-determination stage where again the costs payable to solicitors are regulated by scale fees. Whether in absolute or relative terms, it is clear that these scales are modest. The Society notes in particular that no detailed analysis appears in the Government proposals as to the expense of legal advice and representation provided under the present Scheme. In particular, no distinction is made between professional legal costs (which, as already noted, are already pre-determined and fixed by agreement) and other disbursements which would, presumably, be replicated in any event for purposes of the proposed tariff scheme.

Access to Independent Advice

23. A further strength of the Northern Ireland system which appears to have gone almost wholly unrecognised in the Government proposals is the extent to which the network of solicitors practices throughout Northern Ireland has been, and is, in a premium position to offer ready access at the point of need to the compensation system. The profile of the solicitors branch of the profession in Northern Ireland remains predominantly that of small-firms (one or two practitioners) located throughout Northern Ireland offering a wide range of generalised legal services including, as and where appropriate, access to a more specialist bar. Again it is notable that no cost-benefit analysis of the present system appears to have been undertaken.

24. The benefit of this type of advice resource, already widely available and centred in local communities, should be recognised, and the Society would urge the Assembly to consider particularly carefully whether the Government proposal to remove (in effect) this facility is either in the interest of victims or appropriate in societal or costs terms. The Society would urge that the benefit of solicitors experience built up over many years in dealing with the financial recompense of victims, should not be lightly abandoned or diminished.

25. The Society has a creditable and constructive track-record in finding Northern Ireland solutions to Northern Ireland problems. In this instance, provided the problems with the Northern Ireland system are properly identified and not disproportionately and ultimately determined exclusively by considerations of cost, the Society is confident that acceptable and effective means can be found to effect improvements for the genuine benefit of victims.

Summary and Conclusions

26. The Society acknowledges the efforts made by Sir Kenneth Bloomfield and his team to conduct a review conscientiously in accordance with their terms of reference. Equally we recognise and welcome all proposals directed to the better operation of the present system and enhancing the understanding and experience of victims. For the reasons given in this paper, however, we consider:

(a) that the Government proposals fail to give sufficient weight to some basic facts about the system of compensation in Northern Ireland, particularly the degree to which it has served the interests of victims and Society well over a protracted period of time, during which considerable experience has been built up in developing an accessible system in which there is a broad measure of public confidence;

(b) that there is no significant evidence of wide spread dissatisfaction with the present system. Such evidence of dissatisfaction as there is supports the Society position that the proper focus of attention should be on procedural improvements (streamlining the current process) rather than prejudicing the interests of victims by altering the well-established and respected principles of compensation assessment;

(c) that, in terms of the administrative and legal costs associated with the operation of the present system, there has been a significant failure to understand or research this matter thoroughly;

(d) that there is no proper justification for such a fundamental alteration as the introduction of a tariff-based system, other than the Government imperative to reduce the cost of the Scheme overall, to the detriment of victims;

(e) that the most productive way forward from this point would be to recognise the extent to which the victims experience of the present system can be improved by more effective liaison and co-operation between all those involved in the present system including the Compensation Agency, both branches of the legal profession, the judiciary, the Court Service and victims organisations. The objective would be to determine how the present arrangements might be made to operate better to meet the expectations of victims, without imposing on victims a crude, undiscriminating, unfair and discredited method of assessing compensation.

LAW SOCIETY OF NORTHERN IRELAND
October 2001

Annex

supplementary memorandum of evidence

1. A delegation from the Law Society of Northern Ireland gave evidence before the Assembly Ad Hoc Committee appointed to consider these proposed reforms. In the course of that evidence (on 23^rd October) the Society made a vigorous critique of the Government proposals to introduce a tariff-based system of assessment. The Society suggested also to the Committee that a better and more positive way forward was available to the Government namely, to engage with the Society and other relevant agencies to improve the present system and thereby to meet the real needs of victims of crime.

2. On this latter point several Committee members expressed an interest in having further information about what could be done to improve the present system. Accordingly the Committee may find it helpful for us to expand on our positive proposals. The points set out below reflect, incidentally, the points we had made to the Government at the time of publication of the Bloomfield Report, without evoking any response or indication of a willingness to enter into serious dialogue with the Society and others on the part of the Government.

3. The Society would make the following points by way of observation on, and recommendations in respect of, the present system:

(a.) the clear and incontrovertible message arising from the Bloomfield investigation is that the negative experience of some victims arises from problems of delay, transparency (lack of understanding of the present system) and a sense of alienation from the process and the "professionals" engaged within the compensation recovery process;

(b.) this being so, it behoves all those with responsibilities within the present system, including solicitors, to pay close attention to victims perceptions and actual experience of the process so as to ensure an improvement in that experience without penalising victims by a reduction in compensation levels;

(c.) our core recommendation is that the Government should be prepared to establish a Working Party, under the independent chairmanship of a senior member of the judiciary, with the general remit of examining the compensation process (as opposed to the principles of compensation assessment and the established structures, both of which are correct in principle). The objectives of the review should be specified as being systemic improvement by addressing problems of delay, transparency, communication, and liaison between agencies within the system;

(d.) apart from judicial chairmanship, the Working Party should include professionals and agencies from various disciplines with practical experience of operation of the current system, together with victims representatives;

(e.) we are in an era of reform of the processes of the administration of justice, and there is firm evidence of what can be achieved through a practice-focussed approach, particularly in terms of delay, and improved communication;

(f.) although we consider that all of these issues would need careful evaluation within the context of the proposed Working Party, the Society would identify the following system improvements which would produce obvious and tangible benefits;

(i.) administrative protocols, between agencies (principally solicitors and the compensation agency) to set out agreed standards and expectations, and between solicitors and clients. The latter may be of particular value in meeting and managing the reasonable expectations of victims, demystifying the process and ensuring that victims do not feel alienated from the process;

(ii.) administrative improvements within the Compensation Agency. We understand that the Agency at present is under resourced and under complement. The adequacy of the resource, training and in-office policies of the Agency (for example, as regards offers in settlement and disclosure of information) would benefit from in-depth review;

(iii.) reform of the listing system to ensure that the handling of appeals by the courts is as expeditious as possible. Listing of cases at present depends heavily on the initiative of the Compensation Agency. Much has been learned in recent years in the other work of the county courts about the proportionate use of case management techniques by the court, whereby the judge assumes a responsibility for securing that a case is brought forward within a reasonable time-scale, and the court intervenes proactively to prevent unnecessary delay.

4. Representatives of the Society are available to expand of any of these points as required by the Committee. Otherwise we hope that this additional information will be of some assistance.

LAW SOCIETY OF NORTHERN IRELAND
November 2001

Written Submission by
The Northern Ireland Human Rights Commission

1 The Role of the Human Rights Commission

The Northern Ireland Human Rights Commission (hereinafter referred to as "the Commission") was established under the Northern Ireland Act 1998. Section 69 confers upon the Commission a duty to advise the government whether proposed legislation is compatible with human rights.

The Commission works vigorously and independently to ensure that the human rights of everyone in Northern Ireland are fully and firmly protected in law, policy and practice. To that end the Commission measures law, policy and practice in Northern Ireland against internationally accepted rules and principles for the protection of human rights and seeks to ensure that those rules and principles are promoted, adopted and applied throughout Northern Ireland. It is in this light that the Commission offers this critique of the Draft Criminal Injuries (Compensation) (Northern Ireland) Order 2001 and the Draft Criminal Injuries Compensation Scheme 2002.

2 Background to Criminal Injuries Compensation

Since the introduction of the statutory scheme for compensating victims of crime in 1964 there has been much debate over its justification. David Miers has expounded the numerous theories underlying the scheme, which range from a contractarian theory or reliance on the negligence of the state through to a social welfare theory. Regardless of the justification for such state involvement in compensation of victims, a government White Paper asserts:

"It is right for the State to assume responsibility for and feel sympathy with the innocent victims of crime and give practical expression to that by the provision of a monetary award on behalf of the community."

3 International Documents

The importance of victims and of victims' rights continues to be a major subject of discussion. In Northern Ireland "victims" were recently considered by the Criminal Justice Review and specifically their role in restorative justice initiatives was examined.

Victims are the central subjects of the Draft Criminal Injuries (Compensation) (NI) Order and Draft Scheme and whether those Drafts reflect and uphold victims' rights entails looking at the relevant internationally accepted standards for treatment of victims.

The United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985) affirms in Article 1:

"the necessity of adopting national and international measures in order to secure the universal and effective recognition of and respect for the rights of victims of crime and of abuse of power."

Article 12 of the annex to that declaration provides that "States should endeavour to provide financial compensation."

The Council of Europe's European Convention on the Compensation of Victims of Violent Crimes provides in Article 2:

"when compensation is not fully available from other sources the State shall contribute to compensate
(a) those who have sustained serious bodily injury or impairment of health directly attributable to an intentional crime of violence; and
(b) the dependents of persons who have died as a result of such crime."

In its critique of the proposed legislation the Commission will refer to these international standards and to other fundamental human rights provisions which arise for consideration, specifically the European Convention on Human Rights.

4 The Definition of Victims

Article 1 of the United Nations Declaration of Basic Principles of Justice for the Victims of Crime and Abuse of Power provides:

'"victims' means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within member states, including those laws proscribing criminal abuse of power."

Paragraph 8 of the Draft Criminal Injuries Compensation Scheme (hereinafter referred to as the Draft Scheme) limits payment of compensation to injuries sustained by "crimes of violence". In effect the Draft Scheme, in the same way as previous schemes, operates to differentiate victims of crime from victims of violence.

The Home Office Working Party in 1986, analysing this distinction in light of the cases of R v Criminal Injuries Compensation Board, Ex Parte Clowes, R v Criminal Injuries Compensation Board, Ex Parte Parsons and R v Criminal Injuries Board, Ex Parte Webb, determined that any scheme of compensation "should not be regarded as underwriting any injury loosely connected with a breach of the criminal law."

The Human Rights Commission is of the view that this approach is not consistent with Article 1 of the UN declaration. The Commission believes that paragraph 8 of the Draft Scheme will have the effect of precluding many meritorious applications by victims of crime.

Section 75 of the Northern Ireland Act 1998 confers a statutory duty on public authorities to promote equality of opportunity. The Commission is of the view that the restrictive definition of "victims" within the Draft Scheme may adversely effect certain victims of serious but non-violent crime. In so far as these victims are more likely to be members of specific groups (e.g. women, older persons or people who are gay or lesbian) the Scheme may not fully comply with section 75.

5 The Tariff System

The Draft Order and Scheme propose to introduce a tariff system of compensation. The reasoning behind this was expounded by the Minister for Victims, Mr Des Browne MP:

"the aim of the proposal is to provide victims of violent crime with a simpler, quicker, more open.way to access the compensation they need and deserve.[T]he tariff based scheme will remove the lengthy negotiations required under the common law system and reduce the trauma for victims of reliving distressing experiences."

When a similar tariff-based scheme was introduced in England the Home Office was of the view that:

" a scheme based on common law damages is inherently incapable of delivering the standard of service claimants now reasonably expect - that is a service which produced awards reasonably quickly and in an understandable and predictable manner."

The Report of the Review of Criminal Injuries Compensation in Northern Ireland states:

"Calculation of awards on the common law basis necessitates finely judged assessments of the degree of financial loss and suffering experienced by each individual victim; a less complex and time consuming basis of assessment is necessary to provide more speedy, consistent and predictable compensation to crime victims."

Although the reasoning for the new tariff scheme appears to be sound, the Human Rights Commission is concerned that the provision of a simple, quicker and open service is at the expense of providing fair remuneration and compensation to victims of crime.

The tariff-based system envisaged at paragraph 26 of the Draft Scheme, which has a list of tariff levels appended, is a scale of fixed levels of compensation. The Commission is concerned that there is no proposal for any of the adjudicators or decision-makers to move outside the fixed bands. The tariff does not provide ranges of quantum or awards, which could seek to take into account the impact of the crime on the individual applicant. The new tariff scheme is based upon uniformity of quantum with no regard to the uniformity of the impact of the same type of crime on different victim applicants.

The Bloomfield Report states:

"there is no objectively right sum of money that can compensate an individual for the pain and suffering a victim has endured as a result of an injury."

The Commission is of the view, however, that the right sum of money is one which provides a fair restitution to the victim. This is accepted in Article 8 of the United Nations Declaration of Basic Principles of Justice For Victims of Crime and Abuse of Power.

The Commission believes that the rigidity of the tariff-based scheme has the potential to increase the suffering and trauma victims suffer. The Bloomfield Report states that victims "saw the amounts which they were awarded as an indicator of the price at which society valued the loss of their loved one or their degree of injury sustained. They felt anger that such payments did not take into account the longer term effects on their lives."

Given this perspective, the Commission is deeply concerned that the tariff system will not provide victims with a fair award of compensation. The Draft Scheme seeks to take the individual identities of victims and their personal traumas out of the calculation of awards. The Draft Scheme provides instead a cold and clinical analysis of the fact of an injury and bypasses the effect of that injury on the victim. The Commission considers that a speedy disposal of applications is not in all circumstances in the best interests of victims.

Although paragraph 65 of the Draft Scheme allows the Panel of Adjudicators to make arrangements for the inspection of the injury, the Commission is concerned that this comes only after there has been an initial determination of the application and after that decision has been reviewed and subsequently appealed. In any event the Panel, on seeing the injury, cannot act outside the tariff levels and it has no power to take into account or quantify unique and diverse reactions of victims to crimes.

The Judicial Studies Board, in the preparation of guidelines for the assessment of damages at common law states:

"there is no right or exact figure for all cases involving the same injury because no two victims suffer in exactly the same way."

It goes on to say that figures may be increased or decreased according to the medical evidence, the victim's sex, age and any other factors which appear to be relevant in any case.

The Commission therefore wonders how the tariff-based scheme can meet the aim identified by Minister Des Browne of providing victims with compensation they deserve and questions the extent to which the Draft Scheme, in not having regard to the impact of a violent crime on the individual, demonstrates an effective recognition for victims as is required by Article 1 of the UN Declaration.

The European Convention on the Compensation of Victims of Violent Crimes provides in Article 2 that States shall "contribute" to compensate victims. The word "contribute" may suggest that there is no state obligation to provide the same amounts of compensation as are available at common law. Article 5 of the Convention affirms that the State may impose maximum and minimum threshold criteria above and below which compensation shall not be payable. The Commission nevertheless believes that the more individualised approach favoured by the UN Declaration is preferable.

6 Multiple Injuries

The Draft Scheme at paragraph 27 sets out how the decision-makers and adjudicators will assess multiple minor and serious injuries. In respect of victims who have suffered minor injuries, they will qualify for compensation only if the additional criteria at Note 7 of the tariff are fulfilled. Pursuant to Note 7, they must have at least three separate physical injuries, one of which must still have residual effects six weeks after the violent crime, and they must have attended a medical practitioner at least twice. The Commission is of the view that these additional criteria are contrary to the aim of simplifying and making the system more open and accessible.

Article 5 of the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power provides:

"Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible."

In relation to multiple serious injuries the Draft Scheme provides that the award will be calculated by taking the three most serious injuries. The first will attract the fixed scale award; the second 30% of the fixed award and the third 15% of the fixed scale. The Commission is concerned that victims who have sustained significant bodily injuries and impairment of mental health as a result of serious crimes may be further traumatised by their multiple injuries not being fairly or adequately compensated.

It is especially difficult to assess the long-term effects of mental and physical health impairments and the Commission therefore welcomes paragraph 56 of the Draft Scheme which provides that cases may be re-opened where there is a material change in the victim's medical condition.

7 Compensation for Loss of Earning and Expenses

The Draft Scheme proposes that an applicant will qualify for compensation to cover loss of earnings only after 28 weeks incapacity for work. Paragraph 35 of the Draft Scheme goes on to provide that other special expenses, including loss or damage to property which was a physical aid or the costs of treatment for the injury, will be awarded only if the victim has been incapacitated for longer than 28 weeks and even then the award is discretionary.

The European Convention on the Compensation of Victims of Violent Crimes sets out as a basic principle a positive obligation on states to provide certain compensation. Article 4 states:

"Compensation shall cover, according to the case under consideration, at least the following items: loss of earnings, medical and hospitalisation expenses and funeral expenses and as regards dependants, loss of maintenance."

The Commission believes that the Draft Scheme violates this European Convention in that it refuses to compensate all victims of crime for loss of earnings and for special expenses.

The Commission is dismayed that the new scheme does not replicate Article 3(2) of the Criminal Injuries (Compensation) (Northern Ireland) Order 1988, according to which victims are entitled to receive:

(i.) expenses actually and reasonably incurred as a result of an injury and any other expenses resulting directly from an injury which it is reasonable and proper to make good to him out of public funds;

(ii.) pecuniary loss to him as a result of total or partial incapacity for work;

(iii.) other pecuniary loss resulting from his injury.

The Commission would strongly advise that all applicants who satisfy the criteria for an award to be made should be entitled to at least loss of earnings and other expenses without having to satisfy the additional criteria of being off work for more than 28 weeks.

8 Compensation in Fatal Cases

Article 4 of the European Convention on the Compensation of Victims of Violent Crime provides that compensation should at least cover funeral expenses and, for dependants, loss of maintenance. Paragraphs 37 - 44 of the Draft Scheme do provide that funeral expenses and additional loss of maintenance for qualifying dependants are payable.

The Commission notes paragraphs 38 - 39 of the Draft Scheme, which introduce a "Bereavement Support Payment". Whereas the Commission welcomes this payment it would appear that same-sex couples and heterosexual co-habitees who apply for such payments have to show that they have lived with the victim who died for two years before his or her death. Spouses of the victim do not have this hurdle to overcome.

The United Nations Declaration of Basic Principles includes the family and dependants of the direct victim as victims also. Article 3 provides that the provisions of the Declaration:

"shall be applicable to all, without distinction of any kind, such as race, colour, sex, age, language, religion, nationality, political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or social origin and disability."

The Draft Scheme distinguishes spouses from co-habitees and same-sex partners. This less favourable treatment is contrary to the UN Declaration. The Commission also believes that the Draft Scheme may be the subject of challenge under section 6 of the Human Rights Act 1998 in that the distinction is not compatible with Articles 8 and 14 of the European Convention on Human Rights. The distinction may in addition constitute a breach of section 75 of the Northern Ireland Act 1998 in that it fails to promote equality of opportunity between persons of different marital status or sexual orientation, between men and women generally and between persons with and without dependants.

9 Fairness and Human Rights

It has to be remembered that those who make decisions about applications, whether initially, by way of review or on appeal, are exercising a judicial function in determining an applicant's civil right to be considered for compensation arising from a crime of violence.

In recent years there has been a move away from the European Court's view that a discretionary benefit is not a civil right. According to Wadham and Mountfield, "Strasbourg institutions are increasingly willing to find a civil right within or alongside a public law right."

However Kerr J. in The Matter of an Application by Ralph Creighton for Judicial Review referred to Machatova v Slovak Republic, where it was held that an applicant's claim for education allowance to which she had no formal entitlement did not engage Article 6 of the European Convention on Human Rights. Whether the applicant should receive such allowances lay with the discretionary power of the administrative authorities. No civil right was vested in the applicant and the claim that the denial of the education allowance was in breach of Article 6 failed.

At present the Commission is of the view that the proposed criminal injuries scheme does not engage Article 6, but the jurisprudence of the European Court needs to be kept under review in this regard.

10 Decision Makers

The Draft Scheme envisages that the Secretary of State will appoint administrators of the Scheme. It would be anticipated that the majority of the staff would be taken from the existing Compensation Agency. The Commission hopes that all individuals who are employed to administer the Scheme will receive training to sensitise them to the needs of victims. Perhaps the guidelines, which are required to be drawn up pursuant to paragraph 23 of the Draft Scheme, will address how the administrators can provide prompt and proper assistance to victims? This would be in line with Article 16 of the UN Declaration.

The Commission is concerned about decisions being taken based only on the application form submitted. We consider that the form used should provide the applicant with an opportunity to make written representations concerning each aspect of the determining criteria.

In relation to the review of decisions, the Commission notes that the Scheme does not clarify or provide who should undertake the review. The Commission would deem it to be inappropriate for the same administrator of the Scheme who took the original decision to review the decision.

The Draft Scheme provides for the establishment of a Criminal Injuries Compensation Appeals Panel, for which Adjudicators and a Chairperson will be appointed by the Secretary of State. The Commission suggests that this Panel's independence and impartiality would best be served if a Judicial Appointments Commission, recommended to be established by the Criminal Justice Review, were to appoint the Adjudicators and Chairperson.

11 Assistance to Victims

Article 5 of the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power accepts that the judicial and administrative mechanisms can be informal. The Draft Scheme aims to provide an informal procedure.

Article 5 adds that such mechanisms must be inexpensive and accessible. The Commission is concerned that paragraph 74 of the Draft Scheme provides that the costs of a victim being represented by a legal adviser will not be met by the Secretary of State or Panel. This provision may have the effect of making the Draft Scheme less accessible to victims of crime who cannot bear the cost of representation or advice.

The Commission is particularly concerned that where issues arise regarding allegations or suggestions of criminal conduct on the part of the applicant, such assistance is not available. This may violate Article 6(3)(c) of the European Convention on Human Rights, which expressly provides that in the determination of a criminal offence a person should, if he or she has no means to pay for representation, be given assistance free when the interests of justice so require.

The Commission is of the view that, if the State wishes to recognise and respect the rights of victims of crime as a matter of public interest and protection, public funding should be available to represent the best interests of victims who make applications.

The Press Release for the Draft Order indicates that the Secretary of the State will inform any applicant that Victim Support (NI) will provide advice, assistance and support. Although the Commission considers that Victim Support (NI) has expertise and commitment to work with victims, we are concerned that the number of claimants will place substantial time and financial burdens on that organisation. Although Victim Support (NI) will be given funding to assist it, the Commission is of the view that funding victims would more appropriately be met by the Scheme itself or through legal aid assistance.

The Commission would have a concern that those who work with Victim Support (NI) are primarily volunteers without specific legal expertise to address what remain complex criteria for an award to be made. The Commission would wish representation and the giving of advice to victims to be by the legal profession.

12 Discovery of Documents

Paragraph 73 of the Draft Scheme provides that the Secretary of State must make available to the applicant any documents which the Appeal Panel or Adjudicators will have regard to when determining the appeal. Documents provided by the Chief Constable which are not relevant to a matter in question in the application or which are privileged on the grounds that production would be injurious to the public interest are not required to be disclosed.

The recent decision of Kerr J. in The Matter of an Application by Ann Marie McCallion, Lorraine McColgan and Anne McNeill for Judicial Review illustrates the dangers of decisions being taken based on documents which the applicant victim did not have an opportunity to make comments on. Kerr J. stated:

"the applicants complain that the contribution that they could make to the decision making process was severely curtailed as a result of the Compensation Agency's failure either to invite representations on the matters that were likely to influence the Minister of State or to alert them to the matters that were adverse to their cause."

Kerr J. continued:

"the applicants were entitled to make representations on any of the matters that were likely to affect the Minister's decision..one factor was the pattern of behaviour of the person who suffered the criminal injury as suggested by his criminal record and information supplied by the Police."

The judge went on to hold that:

"if the applicants were entitled to make representations (which I consider they were) on this point the representations that could be made would only be meaningful if the applicants were aware of the adverse evidence on the issue presented to the Minister by the Police.[W]here the decision is influenced by a particular consideration that is unknown to the applicant and there is no public interest requirement that this should be withheld, then it appears to me that this should be explained to an individual applicant."

The Commission is concerned that the Draft Scheme requires discovery of information to the applicant victim only where an oral hearing is to take place (bearing in mind that there is no requirement to have an oral hearing at all.) The Commission is of the view that all relevant documentation should be disclosed to the applicant when an application is made for compensation and before the first decision about an award is taken.

13 Discretion to Withhold or Reduce Awards

The report of the Review of Criminal Injuries Compensation in Northern Ireland states:

"the philosophy of the scheme has been that victims' criminal records, victims whose own misconduct contributed to their injuries and victims who fail to act as responsible citizens to assist the authorities to apprehend and convict the offender do not deserve the same compensation from public funds as completely blameless victims."

Although the United Nations Declaration on the Basic Principles of Justice for Victims of Crime and Abuse of Power requires under Article 1 that all victims be treated with respect, Article 8 of the European Convention on the Compensation of Victims states:

"Compensation may be reduced or refused on account of the victim's or the applicant's conduct before, during or after the crime, or in relation to the injury or death.compensation may also be reduced or refused on account of the victim's or the applicant's involvement in organised crime or his membership of an organisation which engages in crimes of violence; compensation may also be reduced or refused if an award would be contrary to a sense of justice or to public policy."

The Draft Scheme at paragraph 14 provides that the Secretary of State can withhold or reduce an award where he or she considers that the conduct of the applicant before, during or after the incident makes it inappropriate that a full award or any at all be made. Paragraph 14(e) provides that the Secretary of State may withhold or reduce any award if:

(i.) the applicant has a criminal record; or

(ii.) if he is shown evidence which makes it inappropriate for a full or any award to be made.

The Commission is of the view that whether an applicant has a previous criminal record does not alter his or her status as a victim. The Commission wishes applicants to be assessed as victims and not as criminals. In accordance with paragraph 23 of the Draft Scheme, guidelines require to be drawn up which clarify exactly how decisions are to be made about the effect of a criminal record on any award. In England a penalty points system operates, whereby points are calculated having regard to the sentence of the court and the time between sentence and the claim for compensation being made. Paragraph 24 of the Draft Scheme requires that there be an assessment of the character of the applicant. The Commission has reservations about a penalty points scheme which may fail to take account of the true character of the applicant.

The Commission is very concerned that the Secretary of State can have regard to other "evidence" to determine the applicant's character. In The Matter of an Application by Ann Marie McCallion, Lorraine McColgan and Anne McNeill for Judicial Review the Secretary of State was allowed to take into account that the victim had been targeted "probably because he had INLA traces" and that the victim "was a sympathiser and that his death was probably due to a feud amongst Republican terrorists."

The Commission would oppose the notion that the probabilities mentioned in the above case constitute "evidence." The Commission would rather suggest that they are representations which are made without a strong basis in fact and without the applicant having an opportunity to challenge their veracity.

If there is any factual basis for making comments about an applicant's potential involvement in criminal activity those facts should be placed before a criminal court and made subject to the criminal standard of proof. Paragraph 64 of the Draft Scheme provides, on the contrary, that the standard of proof for applications is the balance of probabilities. The Commission is of the view that the Secretary of State should not have regard to such "evidence" without hearing representations from the applicant. To do otherwise is entirely prejudicial to the applicant in that the decision to make or refuse an award is based upon assumptions, suggestions and conjecture.

Very relevant in this context is Article 6 of the European Convention on Human Rights, specifically Article 6(2), which reads "everyone charged with a criminal offence shall be presumed innocent until proved guilty according to the law." Also relevant are Article 8 (right to respect for private and family life), Article 9 (freedom of thought, conscience and religion), Article 10 (freedom of expression) and Article 11 (freedom of assembly and association).

14 Equal Treatment

Article 3 of the United Nations Basic Principles of Justice for Victims of Crime and Abuse of Power provides:

"the provisions contained herein shall be applicable to all, without distinction of any kind, such as race, colour, sex, age, language, religion, nationality, political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or social origin and disability."

The Commission considers that the Draft Scheme distinguishes those who have a criminal record and treats them less favourably than "blameless victims".

Furthermore, families, dependants or partners who apply where the victim has died are treated not as victims' families but rather as convicted criminals' families. The Commission is of the view that this difference in treatment constitutes a violation of Article 14 of the European Convention on Human Rights (in particular the "other status" provision). This argument was suggested in The Matter of an Application by Ann Marie McCallion, Lorraine McColgan and Anne McNeill for Judicial Review but no opinion was expressed by Kerr J. as to the possible impact of the Convention.

Paragraph 14(d) and (e) of the Draft Scheme could be challenged as incompatible with the European Convention on Human Rights under section 6 and 7 of the Human Right Act. A court would then have to determine whether the less favourable treatment is proportionate to the aim of the Scheme to protect victims and whether it is objectively justifiable.

The Commission is of the view that, although Article 14 is not a general "equal treatment guarantee", the Draft Scheme violates Article 26 of the UN's International Covenant on Civil and Political Rights, which provides:

"all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

15 Section 75 of the Northern Ireland Act 1998

Section 75(1) of the Northern Ireland Act 1998 imposes a statutory duty on all public authorities to have due regard to the need to promote equality of opportunity between classes of persons.

The Commission has highlighted within the course of this critique certain people who are treated less favourably under the Scheme. They include:

those who have a criminal record;

families and dependants of those who have a criminal record;

victims of crime as opposed to victims of violence;

those who hold certain political or atypical views;

families and dependants of those who hold political or atypical views;

same-sex partners and co-habitees who are treated less favourably than spouses;

men and women generally in the rigidity of the tariff scheme;

all victim applicants in not having public funding to assist them in bringing applications.

16 Conclusion

The Northern Ireland Human Rights Commission considers that the Draft Criminal Injuries Compensation (Northern Ireland) Order 2001 and the Draft Criminal Injuries Compensation Scheme 2002 may be the subject of challenges under section 6 and 7 of the Human Rights Act on the basis that the Scheme is in some respects incompatible with the European Convention on Human Right. The Scheme may also be in breach of other internationally accepted standards on human rights, including those on compensating victims of crime.

NORTHERN IRELAND HUMAN RIGHTS COMMISSION
October 2001

WRITTEN SUBMISSION BY
THE NORTHERN ireland OFFICE

Multiple Injuries Formula

Sir Kenneth Bloomfield recommended that, if the tariff exercise revealed common patterns of multiple injuries then they should be included in the staff, otherwise the principle adopted in Great Britain should be followed, and that the percentage allowed for the second and third injuries should be determined empirically; with a view to determining what formula most nearly corresponds to the practice currently adopted in assessing the pain and suffering element of an award.

The recommendation was accepted but modified to adopt the revised GB percentages which were brought into effect earlier this year. It was found to be impracticable to determine Northern Ireland percentages empirically; to adopt the GB percentages achieved consistency and parity between the two schemes.

Insurance and Pension Payments

The only change to current arrangements will be that private health insurance awards towards medical expenses or health care arrangements will be deducted from any pecuniary loss/cost of care awards. In other words the scheme will not pay for something twice - if medical/health care requirements, outside what is provided for through the NHS, are funded by private health insurance, then the scheme will take that into account and deduct the relevant amount from the total award.

As with the current scheme, all personally funded insurance or pension arrangements will be ignored. Employer funded payments are taken into account, as they are currently.

Medical Evidence

Paragraph 59 of the Scheme provides for the review of any decision made by the Agency. An application must be supported by reasons together with any relevant additional information. Paragraph 61 of the Scheme provides that an applicant may appeal against a decision of the Agency. Such notice of appeal (to the independent appeals panel) "must be supported by reasons for the appeal together with any relevant additional material which the appellant wishes to submit ..". This provides the applicant with an opportunity to submit further medical evidence to support their case, both at review and appeal stage.

Loss of earnings under tariff

Perhaps I could clarify the situation regarding loss of earnings or earning capacity under the new tariff scheme. This was raised by Mr McHugh when he said that a victim of rape would only receive £7,500 under the new system whereas under the current arrangements she would be compensated for loss of earnings, up to £1 million or more, if she was unable to continue her career.

The new scheme will permit payment on exactly the same basis. If a victim is unable to continue working as a result of their injury, pecuniary loss will be payable, except for the first 28 weeks. Only if an injured party is fit to return to employment within 28 weeks is an award confined to the tariff payment. In addition, there is no upper limit on the amount of compensation payable. In GB the upper limit is £500k.

NORTHERN IRELAND OFFICE
October 2001

[EXTRACT]

Written Submission by
Victim Support Northern Ireland

1. Introduction

Victim Support Northern Ireland (VSNI) is an independent voluntary organisation which helps people come to terms with the experience of being a victim of crime. Victim Support's trained volunteers and staff give free and confidential support to victims across the community, in their homes, in courts, in outreach centres, and in local VSNI offices. This support includes information on court procedures, home security, compensation and insurance, and referrals to other services as needed. In April 2002, Victim Support will expand its current services to offer direct support to victims making claims under the new Criminal Injuries Compensation Scheme, pending parliamentary approval. This expansion fits naturally into the continuum of Victim Support's services of emotional and practical support.

This addition to our services is pre-empted by our prior involvement in Criminal Injuries Compensation. In 1993, Victim Support convened an independent working party to "consider the arrangements for the payment of compensation for victims of crime." The working party determined that the key purpose of state compensation is "to recognise on behalf of society the experience which victims of crime have suffered; and to help the victim to recover from it and to live as normal a life as is possible in the circumstances.. insofar as is possible. to place the victim in the position which he would have occupied if he had not suffered the wrong." The working party emphasised that financial compensation is only one aspect of a recovery process that should also include emotional and practical support.

VSNI's role developed further in 1999 when Sir Kenneth Bloomfield recommended in his review of Criminal Injuries Compensation that VSNI be funded to assist victims in a new tariff based scheme. Sir Kenneth Bloomfield stated, "Although it is impossible to compensate for some of the losses suffered. victims of criminal violence should in the future get the best service we can provide. within an efficient, humane and sensitive legal and administrative framework."

As VSNI develops its Criminal Injuries Compensation Scheme services, it has the support and expertise of its colleagues in Great Britain. These colleagues currently support applicants at the time of application, initial decision, reviews, and appeals. They provide emotional support, practical help with the application(s), and clear information about the application process. Our colleagues correspond with CICA and CICAP for applicants as needed and help applicants as they formulate arguments for reviews and appeals. They inform the applicants of potential issues that may arise at an appeal hearing and what kind of information the applicant should have prepared for an appeal hearing.

VSNI is positive about the implementation of the new tariff based scheme. VSNI believes that the new scheme is simpler and more empowering, inclusive, transparent, and equitable than the current common law scheme in Northern Ireland. VSNI looks forward to developing an excellent standard of service for applicants as part of this positive social change.

2. Summary of Main Points

Positive Aspects of the Tariff-based Scheme

The straightforwardness and simplicity of the tariff make it a user-friendly scheme and empowers applicants to have responsibility for their application at each stage of the process.

Tariff bandings generally promote equity among applicants.

The value of tariff bandings will reflect the current median awards for injuries under the Northern Ireland common law system.

The administrative nature of the tariff based scheme should reduce the amount of time needed for decisions and assist in bringing emotional closure to victims sooner.

Decisions will be transparent to applicants.

The language "bereavement payment" is more sensitive than "bereavement award."

The proposed scheme is more inclusive:

it gives greater recognition to the causes of psychological injuries;

it provided a wider circle of bereavement payments,

and it provides compensation for people with spent convictions.

The appeals process is positive and non-threatening for applicants.

The appeals panel can use discretion when considering factors affecting an applicant's claim.

Concerns

A high proportion of sexual violence cases will be turned down at the initial decision and review stages because they cannot be decided on papers. Cases which cannot be decided on papers should be granted a hearing at the initial stage of the application process.

The tariff bands are not index-linked.

The fixed formula for calculating multiple injuries will leave some of the most seriously injured victims under compensated.

Compensation should not be reduced by social security and state benefits, insurance payments, and pensions.

The 28 week qualifying periods for compensation for loss of earnings and compensation for special expenses may cause hardship to victims.

The consideration of unspent convictions in reducing or denying an award leads to double jeopardy for applicants.

The proposed scheme takes into account the deceased's character and conduct when providing compensation to bereaved persons.

3. Comments

3A. Preface

VSNI has been following with interest all aspects of the current tariff based system operational in England, Scotland, and Wales through ongoing contact with VSNI colleagues there. More recently, VSNI has observed the entire process firsthand through visiting the Criminal Injuries Compensation Authority (CICA), the Criminal Injuries Compensation Appeals Panel (CICAP), and several Victim Support schemes in England and Scotland who provide support to victims at all stages of the Criminal Injuries Compensation process. Victim Support believes it has now gained an invaluable insight into the practice of the tariff based scheme.

Therefore, as an organisation that will provide direct support to people seeking compensation under this scheme, if approved, VSNI has a keen interest in the effects of the scheme's policies on victims of violent crime. To this end, we identify and comment on key components of the new scheme:

3B. User-Friendly Scheme

It is expected that the tariff will simplify the scheme and make it more straightforward for victims. This clarity should enable victims to better understand and have ownership of their application.

3C. Tariff bandings

3C1. Equity

The set tariffs generally result in claimants being treated more equitably.

3C2. Value

The establishment of tariff bandings equivalent to the current median value of individual injuries under the Northern Ireland common law system is an important step for two reasons:

First, it means that in the future, the tariff bands will be comparable with the judicial decisions made under the common law scheme.

Secondly, the tariff bands in Great Britain have been widely criticised from organisations including Victim Support for offering compensation payments that in many cases were seen as derisory.

The fixed formula (paragraph 27) used for calculating awards for multiple injuries leaves some of the most seriously injured victims under-compensated. Where the injuries are very serious, the amount 'lost out on' can be substantial. For example, if a victim lost one arm (above the elbow) and one leg (above the knee), the amounts £75,000 + £100,000 = £175,000. However, the victim would only receive £122,500 with the multiple minor injuries formula, which provides 100%, 30% and 15% compensation respectively for multiple injuries.

Victim Support welcomes the intention of the government to keep under review, over time, the tariff bands; however, VSNI would much prefer that the tariff bands were index-linked in order to ensure the value of payments in real terms does not fall over time.

3D. Loss of earnings

The proposed scheme (paragraph 30) has a 28 week qualifying period for compensation for loss of earnings. Severe hardship can be experienced when a victim is unable to work for periods of less than 28 weeks, particularly when s/he is the family's main breadwinner and is ineligible for statutory sick pay. In particular, this affects those in part-time, low-paid or temporary work and the self-employed.

3E. Special expenses

The proposed scheme (paragraph 35) has a 28 week qualifying period for compensation for special expenses. This provision causes hardship where, for example, the victim's spectacles have been damaged or s/he requires extensive dental treatment, but the victim in not incapacitated for the injuries for 28 weeks. These items can be very expensive.

3F. Effect on other payments (paragraphs 45, 37)

VSNI strongly disagrees with reduction of compensation awards by social security and state benefits, insurance payments, and pensions (received for the injury or upon death). Compensation should stand alone as recognition by society of suffering. Benefits, insurance payments, and pensions are practical sources of income that are financial necessities, especially in time of hardship, for their recipients. It is insensitive and inhumane to punish the most financially vulnerable people in this manner.

3G. Decisions

3G1. Quicker decisions

The administrative nature of the tariff should reduce the amount of time involved in the application process, therefore bringing closure to the incidents sooner for victims. This is a crucial issue in helping people to move on from traumatic experiences and resuming as normal a life as possible in their circumstances.

3G2. Transparency

In the judicial review R v CICA, Ex Parte Leatherland, July 2000, the court ordered CICA to cite specific evidence in their decisions in order to inform the applicant of the exact reason for a reduced or denied award. This process also ensures the accountability of caseworkers. Therefore, the evidence used in the decision making process must be clear and objective. One important implication of this ruling is that police reports do not include opinions or hearsay about an applicant's lifestyle and activities; instead, they focus on information that can be supported with direct evidence.

3G3. Cases which cannot be decided on papers

VSNI notes that a high proportion of sexual violence cases in England and Wales are turned down at the initial decision and review stages because they cannot be decided on papers. Examples include cases in which there has been a successful defence of consent leading to acquittal and there is consequently a conflict of evidence between the applicant and the offender which can only be settled at a hearing. Under the terms of the proposed scheme, the Compensation Agency will only be able to decide applications on the basis of the papers. The only way in which such claims can at present be fairly decided is if the applicant appeals. We consider that this problem might be solved if the terms of the scheme were amended to enable the Compensation Agency to hold a hearing at either the initial or review decision-making stage for cases which could not be decided on paper.

3H. Language

VSNI appreciates the sensitivity of the term "bereavement payment" used in paragraphs 38 and 39. The term used in the common law scheme - "bereavement award" - sometimes caused guilt and confusion to applicants who had difficultly with the perception of receiving an "award" for a death of a loved one.

3I. Inclusiveness

3I1. Psychological injuries

VSNI is pleased to see that the proposed scheme acknowledges the psychological injuries suffered by people who have a "close and loving relationship" with a victim of a physical or mental injury (paragraph 10). Recognition that such injuries to close family members can develop in the aftermath of a violent crime to a loved one is a welcome inclusion here and will address a crucial failing in the common law scheme, whereby victims are denied compensation unless they witnessed the crime. Sir Ken Bloomfield gave the following example of this denial in his review of Criminal Injuries Compensation:

"A police car was ambushed by terrorists close to the foot of the 20 yard lane leading to Mrs C's house. At the time of the attack Mrs C was watching television. She heard a bang like a car crash, but did not hear any shooting. When told by one of her sons that there had been a lot of shooting which had now stopped, Mrs C and her husband immediately went out to see what happened. She could hear screaming. She phoned for an ambulance, and then went to help two police officers who had been very badly injured. She nursed and comforted them for half an hour until an ambulance arrived (one of them died in her arms). The experience caused her to suffer a serious and disabling mental disorder. But compensation was refused; the court held that she had not been 'present' when the crime was committed."

3I2. Bereavement payments

The common law scheme only provided compensation to married partners of the deceased or to legitimate parents of a minor who was never married. No compensation was available to unmarried or same sex partners, to children of murder victims, or to parents of children over 18. The tariff (paragraphs 38, 39) scheme is much more inclusive and includes compensation for parents (or persons accepted as parents) spouses, co-habitants, same sex partners, and children of any age (or persons accepted as children).

Paragraphs 14d and 14e allow awards to be reduced or denied due to an applicant's conduct or character. In cases of murder, when the qualifying claimant(s) seeks compensation, VSNI strongly believes that the conduct or character of the deceased should not affect compensation for the qualifying claimant(s). As it would be wholly wrong for the NHS to distinguish between providing psychiatric services to bereaved family members, for example, where the deceased provoked his own death or where the deceased had a criminal background, and services to bereaved family members where the deceased was deemed to be free of convictions or criminal behaviour, it would be wholly wrong for the Compensation Agency to distinguish between "deserving" bereaved persons and "non-deserving" bereaved persons.

3I3. Spent convictions (paragraph 14e)

VSNI believes that eliminating spent convictions from the assessment process is a positive step, and Victim Support acknowledges that the penalty points system is a fairer and clearer method of assessing non-spent convictions. In his review of Criminal Injuries Compensation, Sir Kenneth Bloomfield described a case under the common law scheme, which penalised applicants for any convictions:

"A man was convicted in 1975 for a serious explosives offence for which he was sentenced to 15 years imprisonment. He had served his sentence and been released from prison, and was a 'model' citizen, when he was shot and seriously injured in 1989. He argued that his conviction occurred before the 'terrorism' provision was first introduced in 1977, and that it would therefore be wrong to take it into account. The court disagreed; the words of the Order are clear and unambiguous, and refer to a conviction "at any time whatsoever". Compensation was refused."

However, VSNI believes that the consideration of unspent convictions is double jeopardy, as people with convictions have already been penalised by society and have "paid" a social debt.

3J. Appeals Panel

3J1. Observations

From our contact with CICAP, we found the Appeals Panel to be sensitive, considerate, and sympathetic to applicants who attend without any legal or academic background. More specifically:

The Chair of the panel clearly explained that the panel was an independent body whose task it was to review each case afresh, independently of the Compensation Authority.

The Chair carefully explained the hearings procedures in a manner that showed respect and consideration for the applicants. The Chair ensured throughout the hearings that the applicants understood all questions and always had the last opportunity to speak. The Chair was humane in his approach to applicants' potentially sensitive personal and medical issues.

The Chair showed sympathy to applicants, particularly when he understood their difficulties but could not give an award due to the guidelines of the scheme.

The hearings operated according to tribunal rules. This informal format enabled appellants to competently present their own cases. However, appellants had the option of obtaining representation via a solicitor or a Victim Support representative. VSNI anticipates providing practical support prior to the hearings and emotional support at the hearings unless an appellant is unable or uncomfortable with self-representation, in which case VSNI will represent the appellant.

Overall, VSNI found the hearings to be a positive and non-threatening experience for victims. VSNI observed that even when awards were reduced or denied, the applicants expressed their appreciation for the opportunity they had been afforded to be heard in person.

3J2. Discretion

The panel was not bound by the same strict guidelines in the scheme and could use discretion to consider all factors affecting an applicant's claim. Victim Support observed one case in which a young man with a conviction appealed a 25% reduced award. The young man explained that he was young at the time of the incident and he had "gone off the rails" because his mother had been diagnosed with a terminal illness. The young man showed remorse and explained the positive changes he had made since the incident. The panel minimised the reduction to 10% of the award.

3K. Legal aid for complex cases

In the proposed scheme, the payment of legal aid to assist applicants in making claims will no longer be available. In our view, the administrative nature of the tariff based scheme supported by a user-friendly application and appeals process should result in little disadvantage to the majority of claimants. However, VSNI notes that Sir Kenneth Bloomfield recommended in his report on Criminal Injuries Compensation that serious injuries (above level 10) should be assessed under the common law system and that the Compensation Agency should pay reasonable costs and expenses to applicants who seek legal advice in complex cases. VSNI recognises the complexity of certain cases, in particular fatal injury cases. In our opinion, it will be advisable to encourage applicants to seek legal advice to determine the appropriate calculations required for the application. However, VSNI will continue to provide other practical and emotional assistance as possible in these situations.

4. Conclusion

VSNI supports the positive changes in the proposed tariff based scheme and welcomes its implementation. VSNI looks forward to complementing these changes with a comprehensive Criminal Injuries Compensation Service of practical and emotional support. VSNI would be amenable to speak with committee members and provide any further information that may be required.

VICTIMS SUPPORT NORTHERN IRELAND
October 2001

Annex

Supplementary Memorandum of Evidence

Victim Support would like to thank the committee for its time on Tuesday, 23 October. During this hearing, Mr Maginness asked Victim Support to respond in writing to his query about whether the organisation thought the minor multiple injuries formula was "fair." We have included our response below, and we would appreciate it if you would kindly forward it to the committee members.

Victim Support has since reviewed the minor multiple injuries formula. We are concerned about the stringent requirements of the formula, e.g., the requirement for 3 separate injuries, 2 visits with a GP, and at least 1 injury with residual effects 6 weeks after the incident. It is our belief that it would be fairer to consider a GP's professional opinion about the effect of the injury on the victim, without any of the above numerical requirements.

VICTIM SUPPORT NORTHERN IRELAND
November 2001

[EXTRACT]

Under the proposed Scheme, no distinction has been made between ordinary criminal sentences and sentences that qualified a person to apply for release under the Northern Ireland (Sentences) Act 1998 (c.35).

Guidelines for the Assessment of General Damages in Personal Injury Cases in Northern Ireland. The first edition of Guidelines for the Assessment of General Damages in Personal Injury Cases was published for the Judicial Studies Board for England and Wales in 1992. The Judicial Studies Board for Northern Ireland felt that it would be helpful to practitioners and others concerned with the assessment of damages if a Northern Ireland edition were produced. The Northern Ireland edition was published in 1996 and has become widely referred to as the "Green Book"; a second edition is due to be published.

Under the proposed Scheme, no distinction has been made between ordinary criminal sentences and sentences that qualified a person to apply for release under the Northern Ireland (Sentences) Act 1998 (c.35).

Guidelines for the Assessment of General Damages in Personal Injury Cases in Northern Ireland. The first edition of Guidelines for the Assessment of General Damages in Personal Injury Cases was published for the Judicial Studies Board for England and Wales in 1992. The Judicial Studies Board for Northern Ireland felt that it would be helpful to practitioners and others concerned with the assessment of damages if a Northern Ireland edition were produced. The Northern Ireland edition was published in 1996 and has become widely referred to as the "Green Book"; a second edition is due to be published.

NIHRC Strategic Plan 2000 - 2002: "Our Mission Statement" at page 11

David Miers "Compensation for Criminal Injuries" Chapter 1 pages 1 -13.

Home Office White Paper (CM 2434) 1993 at paragraph 4; and per Secretary of State in HC Debs. Vol. 260. Col. 734 on 23rd May 1995.

[1977] 1 WLR 1353.

The Times 22nd May 1981 (District Court) and 25th November 1982 (Court of Appeal).

[1987] QB 74 (CA).

Home Office, Criminal Injuries Compensation: A Statutory Scheme. London, HMSO, 1986, paragraphs 4.4 - 4.6. Press Release: NI Information Service, 28th June 2001.

Home Office, Compensating Victims of Crime; Changes to the Criminal Injuries Compensation Scheme, Cm 2434, London, HMSO, 1993, paragraph 9.

Bloomfield Report, Chapter 5, paragraph 5.8, at page 100.

Bloomfield Report, Chapter 5, paragraph 5.8 B(i), at page 100.

Bloomfield Review Chapter 7 paragraph 7.6 at page 177.

Guidelines for the Assessment of General Damages in Personal Injury Cases, 3rd ed, 1996, at page 195.

Blackstone's Guide to the Human Rights Act 1998, 2nd ed, 2000, at page 86.

See Gaygazuz v Austria (1996) 23 EHRR 365.

High Court of Justice (NI), 23rdApril 2001.

24 EHRR CD 24.

Order 24 Rules of the Supreme Court.

High Court of Justice (NI), 19th July 2001.

Ibid. at page 12.

Ibid. at page 23.

Bloomfield Review, Chapter 5, paragraph 5.17, at page 106.

Note 19 above.

Per Wadham and Mountfield: Blackstone's Guide to the Human Rights Act 1998, 2nd ed, page 124.

Report on the Proposal for a Draft Criminal Injuries Compensation (NI) Order 2001

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