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