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

Tuesday 23 October 2001

Mr McCarthy (Deputy Chairperson)

Mr Ervine

Mr A Maginness

Mr McHugh

Ms McWilliams

Dr O’Hagan

Mr J Bailie ) The Law Society of

Mr J Caldwell ) Northern Ireland

Mr J Neill )

Mr B Stewart )

356.

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

357.

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

358.

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

359.

The Deputy Chairperson: Thank you.

360.

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

361.

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

362.

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

363.

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

364.

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

365.

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

366.

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

367.

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

368.

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

369.

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

370.

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

371.

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

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

372.

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

373.

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

374.

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

375.

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

376.

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

377.

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

378.

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

379.

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

380.

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

381.

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

382.

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

383.

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

384.

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

385.

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

386.

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

387.

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

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

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

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

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

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

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

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

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

388.

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

389.

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

390.

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

391.

Mr Stewart: That is a tricky subject.

392.

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

393.

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

394.

Mr Stewart: [Inaudible].

395.

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

396.

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

397.

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

398.

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

399.

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

400.

Mr Stewart: [Inaudible].

401.

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

402.

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

403.

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

404.

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

405.

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

406.

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

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

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

407.

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

408.

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

409.

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

410.

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

411.

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

412.

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

413.

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

414.

Mr Stewart: That is correct.

415.

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

416.

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

417.

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

418.

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

419.

Mr Ervine: The doctor would be pleased.

420.

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

421.

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

422.

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

423.

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

424.

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

425.

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

426.

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

427.

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

428.

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

429.

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

430.

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

431.

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

432.

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

433.

Mr Ervine: Yes.

434.

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

435.

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

436.

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

437.

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

438.

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

439.

Mr Stewart: It would be two years.

440.

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

441.

Mr Stewart: That is a year less.

442.

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

443.

Mr Caldwell: Yes.

444.

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

445.

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

446.

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

447.

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

448.

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

449.

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

450.

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

451.

Mr Stewart: That is my understanding.

452.

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

453.

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

454.

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

455.

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

456.

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

457.

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

458.

Mr Stewart: Never mind the psychiatric injuries.

459.

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

460.

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

461.

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

462.

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

463.

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

464.

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

465.

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

466.

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

467.

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

468.

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

469.

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

470.

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

471.

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

472.

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

473.

Mr Stewart: Absolutely. It does not bring justice.

474.

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

475.

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

476.

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

477.

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

478.

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

479.

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

480.

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

481.

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

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

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

482.

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

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Association of Personal Injury Lawyers

Coiste Na n-Iarchimí

Committee of the Centre

Committee on the Administration of Justice

Ex-Prisoners Interpretative Centre

Law Society of Northern Ireland

Northern Ireland Human Rights Commission

Northern Ireland Office

Victim Support Northern Ireland

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

• To promote full and prompt compensation for all types of personal injury;
• To improve access to our legal system by all means including education, the exchange of information and the enhancement of law reform;
• To alert the public to dangers in society such as harmful products and dangerous drugs;
• To provide a communication network exchanging views formally and informally.

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

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

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

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

• The court would assess injuries by reference to the victim rather than by reference to a fixed scale. This could be done by introducing a banding system similar to the Judicial Studies Board Guidelines which provide bands for the assessment of particular injuries and enable an assessment to be made within parameters, but reflecting the circumstances of the individual victim. A flexible tariff or banding system would be far more effective than the fixed tariff. Victims deserve to be treated as individuals rather than slotted into fixed cases.
• The tariff figure could be seen as the starting point with discretion given to the person making the assessment to vary it by plus or minus a percentage figure, to reflect the particular victim’s circumstances.
• Another option would be to use the tariff figures as the norm, with discretion given to the person making the assessment to increase the award to reflect any exceptional or special circumstances affecting the victim within a fixed maximum percentage –for example, if the application was on behalf of a child.
• A more sophisticated matrix-based tariff, reflecting objective criteria, such as the age and sex of the victim and taking into account the effects of the injury on that person.

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

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

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

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

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

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

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

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

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

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

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

15. In calculating future loss of earnings it is stated that the multipliers, discounts and life expectancies contained in the Government Actuary’s Department Actuarial Tables for Personal Injury and Fatal Accident Cases in force at the time of the incident will be applied. Those tables, however, demonstrate appropriate multipliers on the basis of a variety of rates of return. The assumed rate of return can, of course, have a significant effect upon the amount of compensation awarded for future losses. We seek the Northern Ireland Office’s reassurance, therefore, that the rate of return used to calculate future losses will be that prescribed by the Lord Chancellor under the Damages Act 1996, ie 2.5 per cent.

16. We do not agree that all awards payable under the scheme should be subject to a reduction to take account of social security benefits as proposed. If the victim received full compensation under the proposed scheme we would agree that deductions should be made to avoid double or over compensation but as they would not, we do not believe it is fair to make such deductions.

17. We believe that there should be a right of appeal and that it should lie to a court of law rather than an administrative panel, as was recommended by Sir Kenneth Bloomfield. Sir Bloomfield recognised that many criminal injuries compensation applications are determined to a large extent on police evidence, either as to the circumstances in which the offence gave rise to the application occurred, or as to the criminal record, terrorist involvement or other ‘antecedents’ of the applicant or victim, or both. We agree with his conclusion outlined in paragraph 8.132 of his report where he stated:

18. We also believe his observations highlight how important it is that both applications and appeals should be handled by qualified lawyers and that victims of violent crime should have access to paid legal assistance. Directing the right of appeal to a court rather than an administrative panel is not just important because of the likely issues to be determined. To many injured victims of crime it is psychologically important for them to have "their day in court" and to have their injuries and their right to compensation recognised in law. This may be especially important to victims where the person responsible for their injuries has not been formally prosecuted.

19. It is imperative that if a tariff based scheme is introduced that the awards within the tariff are increased annually to account for inflation to ensure that the awards are up to date.

20. In conclusion, whilst we recognise there may be some minor problems within the current common law based system of criminal injuries compensation, we believe that it serves the injured victims of violent crime well in providing them compensation suited to their individual needs and, for this reason, the current system should not be radically reformed. Tariff schemes may appear more financially attractive than the current scheme but we do not believe that economic interests should take precedence over the interests of the injured victims of crime who both deserve and need compensation as it is currently awarded -–on the basis of their individual needs and losses.

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