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REPORT ON THE PROPOSAL FOR A DRAFT CRIMINAL INJURIES COMPENSATION (NI) ORDER 2001 (Continued) 16 October 2001 Tuesday 16 october 2001 Present: Mr Roger Hutchinson MLA, Chairperson Attendees: Mr Tony Logue, Committee Clerk Apologies: Mr Alex Attwood 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 23 October 2001 Tuesday 23 october 2001 Present: Mr Kieran McCarthy MLA, Deputy Chairperson Attendees: Mr Tony Logue, Committee Clerk 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—
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 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 6 November 2001 Tuesday 6 November 2001 Present: Mr Roger Hutchinson MLA, Chairperson Attendees: Mr Tony Logue, Committee Clerk Apologies: Mr Billy Bell 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 13 November 2001 Tuesday 13 november 2001 Present: Mr Kieran McCarthy MLA, Deputy Chairperson Attendees: Mr Tony Logue, Committee Clerk 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:
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 15 November 2001 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 MINUTES OF EVIDENCE Tuesday, 16 October 2001 39 Evidence from—
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 1. The Chairperson: I thank you for coming here today. Would you like to introduce yourselves? 2. 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. 3. 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." 4. 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. 5. 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." 6. The review’s report on that complex matter was published in July 1999. It contained 64 recommendations. 7. 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. 8. 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. 9. 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? |