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

Thank you for the opportunity to comment on the proposed new legislation. We would certainly welcome the opportunity to give evidence to the Committee on the adverse impact of the past regime and the continuing dangers in the new proposals for political ex-prisoners.

First of all, we welcome the improvements in the draft legislation removing the explicit and discriminatory block to compensation for those convicted under the provisions of emergency law.

However, the proposals contain continuing difficulties. Specifically, these relate to the Secretary of State’s discretionary powers outlined in paragraph 14(e) on page 4 of the draft Compensation Scheme. Under these provisions, spent convictions are not considered. However, only sentences of two and a half years or less ever become spent. Considering that convictions under emergency law were very seldom for less than two and a half years, this indicates that the new scheme will hardly make any difference at all to political ex-prisoners.

In addition, the Secretary of State may also make a decision on the basis of other "evidence available to" her/him. This raises the prospects of intelligence accounts which cannot be challenged.

These two points in particular indicate that the regime will in fact make no appreciable difference to the vast majority of political ex-prisoners.

One positive point is that it appears that the negative aspects may impact less on an applicant who is a close relative of a deceased victim. This appears to raise the prospect that relatives of those injured may not be disqualified automatically from compensation even if the victim him/herself has an unspent conviction. If this is the case, this will be welcome.

However, a close reading of paragraph 38 (on page 10 of the draft Compensation Scheme) which deals with compensation in fatal cases, shows that the relative will be subject to the same "character check". This of course includes the reference to "other" evidence apart from convictions.

In appears, therefore, that while the explicit disqualification has been removed, implicit disqualifications will remain. The question for the Committee to address is whether those who have conflict-related convictions are entitled as of right to compensation where they are victims of injury.

There are many who feel that there should be an hierarchy of victims and the only victims who should be entitled to compensation are "innocent" according to their own definitions. From our point of view, the search for a new inclusive society will be elusive unless all are treated as equal. This is particularly so in relation to those whose only involvement with the criminal justice system arose because our society was in conflict.

We note a number of developments throughout Ireland which indicate a growing awareness of this. For example:

• the 6 county Human Rights Commission, in its consultation document on a Bill of Rights has proposed that the possession of past convictions should be prohibited as a ground for discrimination;
• the Equality Authority in the 26 counties has recommended to the Irish government that possession of a conviction should be included in the Employment Equality Act as a prohibited ground for discrimination;
• the National Economic and Social Forum working group on integration of ex-prisoners and ex-offenders has recommended the introduction of a mechanism to expunge convictions; and
• the Equality Commission in the 6 counties is considering the question of past convictions in relation to its proposals on a Single Equality Act.

We urge the ad hoc Committee therefore to consider how the draft legislation on criminal injuries compensation can ensure that former political prisoners are protected from discrimination in situations where they or their relatives are victimised in future.

I enclose for your information a submission we made to the Bloomfield Review. This deals in more detail with the issues raised and includes some case studies.

I look forward to the opportunity to give oral evidence to the Committee and wish the Committee well in it deliberations.

Coiste na n-Iarchimí is the co-ordinating body for 20 groups and projects working with republican ex-prisoners and their families throughout Ireland. Members' groups are located throughout the northern half of the island and our client base includes the estimated 15,000 republican ex-prisoners and their families who have experienced imprisonment as a result of the conflict.

We wish to raise with you the bar on criminal injuries compensation to those victimised as a result of the conflict or through other sectarian incidents if they have a previous political conviction imposed through the system of emergency law. The relevant section of the legislation is section 5.9. As we understand it this is an absolute bar against those who have been convicted for political "offences". While section 10.2 of the legislation allows a discretion to the Secretary of State to grant compensation notwithstanding a previous conviction, to our knowledge it appears that this route is an unfruitful one.

It is important to note that there are many cases which have not been brought to the attention of the authorities because legal advice has been - correctly - that there is no point in lodging cases as compensation would be denied. We are currently seeking to document cases through our member groups and projects so as to get a sense of the scale of the disadvantage which former political prisoners and their families have faced in relation to this issue.

We should like to bring to your attention, however, a number of cases which indicate the unfairness of this provision and which show the burden which is placed on individuals and families because of it.

2.1. In June 1996, Mr Joseph Quin was attacked by 4 men when he was going to buy something from the garage. Four weeks later he was diagnosed as having MS, the doctors indicating that this was likely to have been brought on as a direct result of the attack. Three years later, he can no longer work; he needs assistance with walking, dressing, washing, eating and may now be losing his sight.

He has a wife and three children under 10 years of age.

He is ineligible for criminal injuries compensation as he received a conviction in 1977 for membership of a republican youth organisation and training with a wooden gun. He was a member for two weeks in 1975 when he was 15 years old. After being on remand for 6 months, he was sentenced to two years, suspended for two years.

2.2. In January 1999, just after New Year, Mr McCallion was returning home after a night out. He came across an altercation outside a restaurant and sought to intervene to assist in calming down the situation. One of the disputants took exception to his intervention and attacked him. He died of his injuries. Because Mr McCallion was convicted under the Diplock system and served a sentence, his family is not entitled to compensation. An application has been made to the Secretary of State to exercise her discretion under section 10.2.

2.3. Mr Cummins was a doorman at the Glengannon Hotel, Dungannon, the night Billy Wright was killed in Long Kesh in December 1997. An attempt was made by loyalists to get into a function - which was a routine event for a mixed clientele - and carry out an indiscriminate attack. Mr Cummins and a colleague, Mr Seamus Dillon - with astounding courage but fulfilling the task for which they were being paid - prevented the gunmen from entering and were fired on. Mr Dillon was killed, Mr Cummins was injured resulting in his being paralysed from above the waist down. He is unable to work and is dependent on his family for nursing. Mr Cummins has three children. He is rendered ineligible for criminal injuries compensation because he has a conviction imposed under emergency legislation.

2.4. Mr Paddy O'Hagan has 4 young children. In August 1994 his pregnant wife was shot by loyalists in the children's bedroom of their home. The children witnessed the killing. Mr O'Hagan was out at the time and returned home to find his distraught children in the room with his wife's body. Mr O'Hagan served a sentence for IRA activities. He is, accordingly, ineligible for compensation to assist with the bringing up of the children and to cope with the after effects of the trauma which they have experienced.

3.1 Impact on children

Even if we were to accept the apparent logic behind section 5.9 that those with Diplock convictions are undeserving of compensation, there is a clear impact through the legislation on the relatives of the "offender". They have not been convicted in any courts whether Diplock or otherwise and yet are punished because of their relationship to the person who has. We should also point out that the impact is on children as well as adults. The financial effects of the attack which gives rise to the need for compensation makes no distinction in relation to age. We would remind you that the Children ~I) Order is clear that, in relation to legislative and administrative decisions, the interests of children should be the paramount concern. We would also point out that the UN Convention on the Rights of the Child make clear that children should not be discriminated against because of the political affiliation of their parents.

In relation to the cases which we have outlined, it is clear that there is an impact on children. Making a distinction between these children and others where their parent has not been directly involved in the conflict is, in our submission, unfair.

3.2 Hierarchy of victims

Another effect of this legislation is that it creates an hierarchy of victimhood. This has been a phenomenon which has been apparent in the last year where opponents of the Good Friday Agreement have sought to create distinctions between non-participant and participant victims of the conflict. Quite apart from our previous point that the denial of compensation hits those who have not been convicted through the use of special legislation, it is, in our submission, unlikely to promote reconciliation for legislative distinctions to be made. Too many people are affected. If an overall estimate is that there may be as many as 25,000 ex-prisoners throughout Ireland, then we should increase this by a factor of 5 to include close family members. We are, therefore, talking conservatively about 125,000 individuals who are affected by this issue. This is too large a number of people to be consigned to undeserving victimhood as we - it is hoped - move forward into a period of reconciliation and community building. The north has too long a history of discrimination and hierarchies of access to repeat the mistake in the future.

3.3 Political distinction

The legislation creates a distinction between those convicted of political and other "offences". A large part of the conflict has related to the question of the difference between these with the government claiming there should be no distinction. It is hypocritical therefore to establish a distinction where there is a financial cost involved. While we of course accept the distinction and have always opposed the attempt to criminalise the conflict through the use of ever more draconian emergency legislation - indeed many of our members suffered during imprisonment to establish the distinction through political status - it is disingenuous to bring it into the state's obligation to provide support to those victimised through no fault of their own, as the case studies above make clear.

The other point of course is that, should a former political prisoner have been seriously injured in a car crash or other non-conflict related incident, there would be no bar to them receiving compensation for post-injury needs. The needs are no less vital and urgent in these cases.

3.4 Retrospective punishment

In our view the section imposes a retrospective punishment on individuals, quite apart from the political discrimination which it involves through being targeted only at those convicted under emergency legislation. Once prisoners have been released through the usual release mechanisms, the punitive measures imposed by the courts should be viewed as having taken their course. Cases such as those we have briefly outlined above show that many years later, the effect of the conviction is brought to bear. Even in the case of those whose conviction is spent according to the effect of the Rehabilitation of Offenders legislation.

We would therefore wish to see the provision scrapped so that those, like the cases we have highlighted above can avail of vital financial support.

3.5 A barrier to successful re-integration of prisoners

Many prisoners have suffered for their involvement both in terms of the period of imprisonment itself and also in relation to missing out of the usual route into employment, career and salary with which to support their dependants. Research among ex-prisoners in the Upper Springfield and New Lodge areas of Belfast show that ex-prisoners suffer extremely high levels of long-term unemployment (87.5% and 75% respectively). The safety net of support is therefore fragile in terms of many ex-prisoners. To add the burden which is imposed by criminal injuries outlined in the cases above creates further difficulties over which the individuals themselves have no control. Continuing to make convictions - imposed under special powers - which arose from a social conflict the distinguishing marks of ex-prisoners as distinct from the rest of society can only maintain barriers to successful re-integration and reconciliation.

In conclusion, we contend that section 5.9 of the criminal injuries compensation legislation is discriminatory and vindictive and affords no recognition of the use of special powers in attempting to criminalise those imprisoned as a result of the conflict. It also places an unfair burden on relatives. It is, finally, an obstacle to re-integration of ex-prisoners who have already paid a high price for their involvement in the conflict through - usually - long periods of imprisonment. The Good Friday Agreement recognised the positive role which prisoners have played in the development of the peace process and the importance of both early release and successful integration of ex-prisoners back into society. It also recognised the need for a fundamental overhaul of policing, the criminal justice system and the use of emergency legislation as part of a movement away from conflict and into peace with justice. We all need to put behind us the use of emergency legislation, Diplock courts and the other paraphernalia of repression which as been used to distort the legal process and hide the political character of the conflict.

Both for the sake of ex-prisoners, their families and especially their children, the unfair and vindictive provisions of section 5.9 should be consigned to the past. In building peace and justice in Ireland, continuing barriers to full participation in society by ex-prisoners and distinctions between them and the rest of the population will have to be acted upon. We ask that your review take this step in relation to criminal injuries compensation.

Thank you for the letter that the Chairperson, Mr Hutchinson, sent to Mr Poots, Chairperson of the Committee of the Centre on 20 September seeking the Committee's views on the proposals for new legislative arrangements for paying compensation to victims of violent crime.

The Committee considered the proposals at the meeting on 10 October and have asked me to let you have the Committee's comments on a number of issues. These are set out below.

The Committee does not support the proposal to move from the current common law principle to a tariff scheme as it is concerned that victims may be worse off financially under a tariff scheme. In addition, the Committee is not in favour of the proposals in relation to payment of compensation for multiple injuries, as this may result in a claimant with multiple serious injuries being worse off financially.

The Committee noted that the withdrawal of legal aid is estimated to save £7m and that additional funding, amounting to only £0.4m will be provided to Victims Support (NI). The Committee is concerned that this limited funding, and the proposal that legal costs incurred by the applicant in his application, or appeal, must be met from his own pocket, could mean that justifiable claims may not be pursued due to lack of representation or availability of funding.

The Committee also has some concerns about the proposals in relation to the removal of specific terrorist exclusions. The Committee's concerns relate to the proposal that 'evidence available to the Secretary of State' may be taken in to consideration. The Committee is concerned about the amount of discretion that this may give to the Secretary of State and his officials.

The Committee also understands that under the proposed arrangements individuals may not be able to claim for loss of earnings until after 28 weeks, whereas under the current arrangements compensation for loss of earnings can be claimed from the first week. The Committee considers that the proposal is not acceptable.

The Committee is content with the following proposals in the draft Scheme -

• Bereavement support awards;
• Increased eligibility for psychiatric injury;
• The change in the definition of criminal injury;
• The proposed definition of mental illness;
• The removal of the strict time limits for informing the police of an injury; and
• The facility to re-open cases where the victim's condition deteriorates.

I hope this is helpful.

1. The Committee on the Administration of Justice (CAJ) welcomes the opportunity to comments on the draft Criminal Injuries Compensation (Northern Ireland) Order and Scheme. We do not have detailed comments on every section of the draft Order but concentrate on a number of specific areas with relevance to our human rights mandate. We hope our comments will prove useful to the Committee.

2. While we welcome efforts to streamline the compensation system, we are concerned at the removal of the right of applicants to appeal decisions of the Secretary of State to the County Court. It may well be that adjudicators appointed by the Secretary of State under article 7 of the draft Order will discharge their duties effectively and independently, but access to the courts is an important principle, particularly in light of the duties imposed on public authorities by the Human Rights Act and article 6 of the European Convention on Human Rights.

3. In this connection while we recognise that in many straightforward cases, legal aid will no longer be necessary, we believe it should still be available in more complex cases. Indeed Sir Kenneth Bloomfield recommended in his report that the Compensation Agency should continue to pay reasonable costs and expenses to applicants who seek legal advice in complex cases.

4. The introduction of the tariff scheme will of course bring the system in Northern Ireland into line with the compensation system operating in Britain. We understand that it is supported by victims groups, in part on the basis that it will reduce the occasions on which different levels of compensation are awarded for similar injuries. While we have no specific comments on the merits or demerits of the tariff scheme we would urge MLAs to explore whether the overall effect of the introduction of this system will reduce the level of compensation likely to be paid to applicants in Northern Ireland and how this is to be avoided. One practical suggestion would be to index link the tariff system to ensure that applicants are not disadvantaged.

5. We also disagree with the reduction of compensation awards in cases where an applicant is receiving state benefits (paragraph 45). Compensation awards are a reflection of society's concern at what has happened to a victim and should not be reduced because that person is receiving a state benefit.

6. One of the major concerns which CAJ had in relation to the Criminal Injuries (Compensation) (NI) Order 1988 was the blanket exclusion from compensation under article 5(9) for those who had been at any stage "engaged in the commission, preparation or instigation of acts of terrorism at any time whatsoever". We had long argued that this exclusion was too wide. It was not confined to cases where the applicant for compensation had been previously convicted of paramilitary offences and it completely ignored what may have happened to the applicant between the acts in question and his/her subsequent application for compensation. The person may for instance have served a prison sentence for the offence for which they were convicted and therefore be entitled to reintegration. To apply the exclusion from compensation automatically to an applicant years after an episode in his/her past would be contrary to natural justice and the rule of law.

7. We therefore welcome the proposal under the draft Order and Scheme to make any reduction or refusal of compensation a discretionary matter for the Secretary of State (paragraph 14 of the Scheme). We believe however it should be made clear that the Secretary of State must give reasons to an applicant as to why compensation is being reduced or refused.

8. Support is given to this view by a recent judgement from Mr Justice Kerr in the High Court in the case of McCallion and Others. In this case which concerned a refusal by the Secretary of State to exercise his very limited discretion under the old system of criminal injuries compensation, the court ruled that applicants should be provided with details of factors which influenced the decision of the Secretary of State. It is likely this judgement will have implications for the draft Scheme. Consideration should therefore be given to including language which ensures that applicants are given an opportunity to comment on "evidence available to the Secretary of State" (paragraph 14(e)) which will influence his decision.

9. McCallion related to a situation where dependants of a person who was killed as a result of an attack were refused compensation because of the criminal convictions or alleged character of the victim. It seemed to us unacceptable that there should be an automatic denial of compensation to dependants in these circumstances merely because of the deceased's previous involvement in paramilitary activity. Whatever the crimes or alleged crimes of someone their dependants should not be punished. We believed that the dependants should not be disadvantaged in this manner since their loss was just as real regardless of the previous activities of the person who had died.

10. Once again we are therefore glad to see that at least this matter has been left to the discretion of the Secretary of State who presumably will be able to consider matters such as the hardship the refusal of compensation may cause to children. However, we are disappointed that the linkage between the previous conduct of a parent and the loss to his/her children has been maintained. We believe it is difficult to envisage any circumstances in which it would be fair to deny compensation to children on the grounds that the parent who has been killed had previous convictions for paramilitary offences.

11. This clearly flies in the face of the UK's international commitments in the Convention on the Rights of the Child that the interests of the child should be a "primary consideration" in all actions concerning the child.

12. We are concerned that the provisions regarding recovery from offenders remain largely unchanged from the old system. While of course there is a strong argument in favour of reimbursement from the offender, the provisions appear to mean that, years after an award of compensation has been made to a victim, the perpetrator of the crime can be made to reimburse the state if he or she receives any form of state benefit at all. Indeed in the past this has been interpreted by the courts as meaning to include exemplary damages for a tort committed against the perpetrator by prison officers (Hamilton and Kerr v Secretary of State [1994] 6 BNIL 29]. Where the state is not involved, there is of course a strict statute of limitations in relation to taking legal action. It would appear to be more just if this right to reimbursement were made to apply only during a fixed period subsequent to the perpetration of the crime in question (say three years, the standard limitation period in actions for personal injuries). It also appears unfair that several joint offenders can be made to reimburse the full amount paid out by the state to a victim. It would seem equitable, certainly where others amongst the offenders have the means available, to require joint offenders to share the duty to make reimbursement payments.

13. A major concern expressed about the old system was that the strict time limits for lodging applications excluded child victims of sexual abuse who for understandable reasons, may be reluctant or indeed unable to complain about abuse until they are much older. This had led to situations where an offender had been prosecuted and convicted but compensation was refused to his/her victims on the basis that the applications were not lodged within time. We and others argued that a much longer time limit was therefore appropriate with provision made for the time limit not to begin to run in the case of an abused minor, until that minor reaches the age of 18. While we welcome the extension of the time limit to two years, this does not resolve this particular problem. The increased discretion afforded to the Secretary of State may assist in lessening injustice in particular cases but we remain of the view that active consideration should be given to this problem, particularly in light of the fact that in Britain, it appears that the system has operated in such a way as to grant victims compensation in these circumstances.

EPIC has a specific interest in the N.I. Compensation Scheme from the perspective that for many years now ex-prisoners have been discriminated against and have had claims denied solely on the basis that they were ex-prisoners.

The Scheme provides for the payment of compensation to or in respect of persons who have sustained criminal injury. That compensation claim should apply to all people regardless of their background or previous convictions.

If a person is a victim of a criminal injury then the fact that they have a previous conviction should not be taken into consideration when assessing their claim. There are many instances in the past where people who have been leading constructive lives and ended up victims of criminal injury yet had their claims denied because of convictions in the past. The law in fact was used against them rather than for them.

Society will tell you that when a person serves a sentence of imprisonment that they have paid their debt to society. Ex-prisoners will tell you that from their experience society forces ex-prisoners to pay their "dues" till they go to their grave.

Ex-prisoners are discriminated along a wide front of institutional barriers that prevent them and their families from leading normal and constructive lives.

Among these are:

• Denial of Criminal Injury
• Denial of Criminal Damage
• Pension Restrictions
• Access of themselves and family members to employment in Security Forces, Civil Service and other Industries
• Restrictions on Loans from Banks, Mortgages & Insurance
• Restrictions on International Travel
• Accessing PSV Licenses
• Constraints as a consequence of NI Rehabilitation of Offenders Act
• Employment Opportunities in General.

EPIC seeks a level playing field for ex-prisoners and their families in all aspects of life and Criminal Injuries is one of those fields.

Under the Good Friday Agreement the Governments and participants recognised the significance of ex-prisoners future role in Society.

"The Government continue to recognise the importance of measures to facilitate the reintegration of prisoners into the community providing support both prior to and after release, including assistance directed towards availing employment opportunities, re-training, and further education."

Institutional Discrimination by Government, Industry and Legislation prevent the full reintegration of prisoners and their families into Society.

The premise of any Scheme should not have an inbuilt discrimination on anyone, allowing them to pursue a claim and have an award offered where justified. The onus should then be on the Secretary of State to show good reason as to why anyone should be denied a claim.

Probably one of the most profound cases of discrimination against ex-prisoners in a Criminal Injuries claim was that of Ralph Creighton, 44 years old from Belfast. In April this year Ralph was denied a Criminal Injuries Claim solely on the basis that he had a past conviction.

Mr Creighton was 18 years old when he was convicted in 1977 for throwing a petrol bomb. Upon his release he successfully reintegrated into society, got married and was in steady employment.

In 1993 he was an innocent bystander outside The Drury Lane Bar in Amelia Street Belfast, when it was sprayed with gunfire from a passing car. Mr Creighton was hit in the back causing damage to his spinal cord. Mr Creighton was paralysed but was denied Criminal Injuries due to the legislation concerning ex-prisoners.

The case epitomises the injustice ex-prisoners find themselves in upon return to society. Mr Creighton upon his release from prison attempted to lead a constructive life. He settled down, got married, and was in steady employment and fulfilling the demands that society required of him. Through no fault or contributory negligence of himself he is a victim of a Criminal Injury yet he is punished twice. Society claims that when a person serves the sentence imposed on them that they have paid their debt to society. In Mr Creighton's case he continues to pay his debt to society.

The leading role in the Scheme is fronted by the Secretary of State or his Office. We feel that this is wrong because any Panel will feel intimidated by this. We feel that the Panel should be the decision makers and the Secretary of States' Office should be the medium for Appeals.

The Compensation Scheme should be Fair and Just. The singling out of people with convictions for special treatment is unfair, unjust and a denial of basic human rights.

We therefore call for the removal of any disbarment of people from compensation claims solely on the basis that they have previous convictions.

1. This paper sets out the position of the Law Society of Northern Ireland ("the Society") in respect of proposals by the Government to reform fundamentally the established arrangements for compensating the victims of crime in Northern Ireland.

2. The Government proposals are set out in draft legislation, and associated explanatory material, (the Draft Criminal Injuries Compensation (Northern Ireland) Order 2001) which have been made available to the Assembly as part of the public consultative process which will end on 30^th November. While the Society may make further observations to the Secretary of State on matters of detail arising from the draft Order in due course, the primary purpose of this paper is to highlight for the benefit of the Assembly the opposition of the Society to the most fundamental change proposed by the Government: namely, the introduction of a tariff of compensation awards together with the removal of the rights of victims to have access to independent legal advice and to the independent judicial process in the assessment of entitlement to, and the amount of, compensation.

3. The stated origins of the Government proposals are these. The Government published these proposals in June 2001. These proposals were preceded by a report by a review team led by Sir Kenneth Bloomfield ("the Bloomfield Report") made to the Secretary of State in June 1999. This in turn stemmed from the work of Sir Kenneth as the Victims Commissioner.

4. There is good reason to suspect that the tariff proposal now made the Government has its true origins in the well-known and cherished ambition of the Government, driven by Treasury considerations, to remove the assessment of compensation in individual cases from the control and influence of the independent judiciary and legal profession with the objective of reducing compensation paid to victims.

5. The Bloomfield Report made some recommendations which are self-evidently in the interest of victims. In other respects the Society believes that this initial analysis is flawed or based upon a misunderstanding of the present system. This led the Bloomfield Review Team to make what we believe to be a critical error in commending to the Government that the basis of assessing compensation should be modified by introduction of a tariff for awards for lower-value cases, albeit while maintaining the rights of access to legal advice and the courts in higher value cases.

6. The Society considers that this half-way concession to the Government was misconceived for several key reasons, as follows:

(a) the Bloomfield Report presented the Government with the opportunity to achieve its long-held aspiration to introduce the discredited "English" tariff-system in full. This is the real explanation of why the Government has rejected the Bloomfield Report recommendation that the present system should be retained for higher-value cases;

(b) in particular, introduction of a tariff system will achieve the Government objective of transferring control, and assessment of what is fair and reasonable compensation, away from the judiciary to the executive;

(c) within the research on the views of victims, and not surprisingly, there is evidence of a desire for greater speed of process and a clearer understanding of the basis on which compensation is assessed. There is no evidence whatsoever of a desire on the part of victims to receive less compensation in return for a system which promises to be quicker and easier to understand, but which denies them the right to professional advice;

(d) the premise that the English tariff system is better in terms of simplicity, transparency or speed is highly questionable. There is a complete absence of evidence to support this proposition, bearing in mind that no attempt has been made to compare the English tariff system with what might be achieved by means of the process of improvements to the Northern Ireland system which the Society would commend;

(e) similarly the assumption that the English tariff system will command greater confidence from victims is highly questionable bearing in mind the expressions of dissatisfaction and sense of injustice which are a regular feature of the operation of the English system;

(f) the Government proposals may be designed, and certainly will have the effect, of creating an imbalance of interest between the executive and the claimant. As we understand it, legal expertise will be available to the adjudicators both in the context of the initial decision under the tariff-scheme, and also at the review stage before the proposed Commission. Even a cursory examination of the draft legislation indicates those questions on which claimants will be severely prejudiced and disadvantaged by the absence of independent legal advice. This will also have the effect (positive only in the perspective of the Government) of encouraging applicants to accept compensation which is not fair or adequate, rather than face the review process without the benefit of professional legal assistance;

(g) where there are problems of transparency or a speed of process within the NI system, these can be addressed effectively without introduction of a tariff scheme and without sacrificing the interests of victims in having access to legal advice and equal treatment before the courts;

(h) control of compensation levels is the prize which the Government covets. For this prize the intention is to offer, in the short-term, a tariff which is asserted to be based on Northern Ireland compensation levels. The Society considers that in the immediate and short-term the NI tariff levels are likely in fact to result in the reduction of compensation levels. We await information from the Northern Ireland Office (not disclosed in the Explanatory Document) of the mechanism used to calculate the proposed Northern Ireland tariff levels. To date there has been no consultation with practitioners about these compensation levels, and at first blush there appear to be significant discrepancies between the values on the proposed NI tariff and awards made by the courts under the present system;

(i) apart from these short-term considerations, it is absolutely clear that the Government's objective is to allow the Government to take longer-term control over compensation levels. Under the Order, decisions about whether, and if so when, the NI tariff levels will be increased or decreased will lie exclusively within the discretion, and on the initiative of, the executive rather than the judiciary.

7. By way of contrast, the Society position might be summarised as follows:

(a) The developed and well-established principles on which compensation for criminal injuries is assessed in Northern Ireland are correct. At a minimum the amount of compensation payable should represent full restitution tailored to the circumstances and needs of the individual victim. We are opposed to any change which has the effect of diminishing the individual rights and entitlements of claimants. We are not persuaded that any form of tariff system will serve the best interests of victims;

(b) We consider that the present structures and mechanisms for the assessment of compensation are correct in principle and essentially sound in practice. The mechanism by which compensation is assessed on a full-disclosure basis by a Government Agency but with the ultimate safeguard of access to independent legal advice and independent judicial determination provides a proper balance of interests and equality of arms;

(c) Provided the core principles and structures of the current Northern Ireland scheme are maintained the Society will support, and will contribute constructively to, any changes which will improve the experience of victims in securing proper compensation with a minimum of delay and inconvenience.

8. We remain unconvinced that the introduction of a tariff system will operate to the benefit of victims or in the overall public interest, for the reasons set out more fully below. On the contrary, we have the most serious reservations, which we urge the Assembly to treat seriously, that a fundamental shift in the basis of assessment will undermine public confidence in the present system.

9. The Society recognises immediately, of course, that our opposition can be misrepresented or misunderstood to be affected by self-interest. While we consider that such criticism would be unfair for reasons which are set out in more detail in this paper, this potential for misrepresentation of the Society's motivation is a particular reason why we would urge local representatives within the Assembly to pay particular regard to the merits of the arguments against the proposals, and have regard also to concerns about these matters which may be voiced by other disinterested commentators.

10. For the further purposes of this paper, the Society proposes to concentrate on those aspects of the Government proposals of which members of the Society have most direct experience, and on which the Society can comment accordingly with some authority.

11. The Government proposals need to be understood in the context of the evolved system of criminal injuries compensation which has been established and operated for many years in Northern Ireland. The Society does not consider that sufficient weight has been given to the distinctive strengths of the Northern Ireland system. This applies both in terms of the attention which is given by the present system to the needs and circumstances of individual victims, and to the actual and potential efficiencies of the present system for the handling and disposal of criminal injury claims. We refer below in more detail to the absence of a sufficient factual underpinning for some of the conclusions both the Bloomfield Report, and by extension, the Government proposals. The most critical of these is the fact that the present Scheme has given rise to no fundamental or widespread disquiet on the part of victims as regards the level of compensation. Where there are articulated and substantiated concerns on the part of the victims these are focussed on issues such as the length of time taken, the need for a better understanding of the process and the methods by which compensation is calculated, and more sensitivity to the needs of victims.

12. In this connection, the Society wishes to draw attention to a number of matters of vital importance in determining the way forward in connection with Government proposals.

13. The communal trauma to which Northern Ireland Society has been subjected for some thirty years has been arguably unprecedented in recent times in terms of its scale, longevity and far-reaching social effects. This has been well-documented in the Bloomfield Report and elsewhere. It is clear from the research work undertaken by Bloomfield that the system of criminal injuries compensation which has evolved to meet the needs of Northern Ireland enjoys a wide measure of support. Therefore there is every reason to think that the present system has become, by way of this process of evolution and experience, well-adapted and suitable for the purpose of recognising in an appropriate way the needs of victims in this jurisdiction. Where there is little evidence of public dissatisfaction, we believe the onus lies on those advocating fundamental change to put forward a compelling case. There is a substantial risk and reason to suspect that the benefits of the present system have been underestimated and undervalued, and the Society remains to be persuaded that an adequate case for fundamental change to a tariff-system has been made out.

14. The point made above is reinforced by an examination of the hard evidence gathered by the Bloomfield review team in the course of their research. The main findings arising from that research can be summarised as follows;

(i.) There has been little or no criticism by victims/claimants of the amounts of compensation payable under the scheme;

(ii.) The level of satisfaction with the amount of the award ranges between 70% and 82%;

(iii.) The level of satisfaction that the overall claim was dealt with sensitively and fairly ranges between 69% and 88% (disregarding those whose dissatisfaction may be linked to the fact that their claim was ultimately unsuccessful);

(iv.) The level of satisfaction with solicitors' performance as regards keeping the client informed was 90% of the total sample, with an 85% satisfaction rate among the same sample with the manner in which the case was handled overall by the solicitor;

(v.) Where dissatisfaction with the solicitor was expressed, this confirmed the source of dissatisfaction as being primarily lack of communication or perceived lack of effort, not dissatisfaction with the ultimate outcome achieved.

15. Similarly a high-satisfaction level (81%) was expressed about the degree of consultation by the lawyer. Another striking finding is that a majority of all respondents expressed no wish to see the Criminal Injuries Compensation Scheme changed in any respect. More significantly, the main changes advocated by the minority (itself inflated by the degree of dissatisfaction expressed by those whose claims were unsuccessful) who wished to see any alteration to the present Scheme focussed on procedural matters (length of process, better consideration/counselling for victims, provision for better information to victims) and with only 3% suggesting that solicitors and barristers need to provide better or cheaper services.

16. We believe that these results demonstrate in a reliable way the overall strengths of the present system; satisfaction from the victims perspective based upon the actual experience of a wide range of victims; and confirm the Society submission that the principles governing the assessment of compensation at present enjoy a significant measure of public confidence. However, the results do support and highlight the need, recognised by the Society, for procedural and other improvements to be made to further reduce delay; to facilitate early and equitable settlement on the basis of proper professional advice; to improve the victims sense of involvement in and understanding of the process; and generally to ensure that the victims experience of the process is as stress-free as possible. There is no justification in these first-hand research findings, (as opposed to anecdotal evidence or second-hand accounts of the victims experience) for the adoption of a tariff system which, as a method of providing adequate means of addressing the individual and particular needs of victims, has been thoroughly discredited elsewhere.

17. In the view of the Society it would be possible to achieve significant improvements to the present system, in a way which meets the genuine needs of victims, without the introduction of a tariff system.

18. As already noted, one of the criticisms which is made by victim/claimants under the present system is the length of time taken to arrive at a settlement or final disposal of the claim. The Bloomfield Report acknowledges some of the reasons for this and, so far as the Society can encourage and support any simplification and expedition within the process, we are prepared to be constructive and innovative.

19. However in the submission of the Society it is wholly inaccurate to regard the present system, whether explicitly or by implication, as expensive or wasteful in terms of administrative unit costs, and specifically legal costs associated with the proper advisory and representational functions of solicitors and Counsel.

20. One of the widely commended positive facets of legal practice in Northern Ireland is the general efficiency of the civil litigation process. In the county court this is achieved through a combination of effective court procedures together with a scale costs system which promotes efficiency. The principles and practice of the county court system generally inure for the benefit of criminal injury appeals. Where these benefits have yet to be realised in the areas highlighted by the Review Report, the Society recognises that steps can be taken to improve the process - for example, to ensure the early listing of cases.

21. The benefits of these practices have been widely recognised, specifically in the report of the Civil Justice Review Group chaired by Campbell LJ, and more widely in the course of recent civil justice reforms in England Wales (Lord Woolf has personally commended our efficient and client orientated systems).

22. The same principles and efficiencies are applied to the criminal injuries compensation scheme, not only in terms of appeals to the county court, but also at the pre-determination stage where again the costs payable to solicitors are regulated by scale fees. Whether in absolute or relative terms, it is clear that these scales are modest. The Society notes in particular that no detailed analysis appears in the Government proposals as to the expense of legal advice and representation provided under the present Scheme. In particular, no distinction is made between professional legal costs (which, as already noted, are already pre-determined and fixed by agreement) and other disbursements which would, presumably, be replicated in any event for purposes of the proposed tariff scheme.

23. A further strength of the Northern Ireland system which appears to have gone almost wholly unrecognised in the Government proposals is the extent to which the network of solicitors practices throughout Northern Ireland has been, and is, in a premium position to offer ready access at the point of need to the compensation system. The profile of the solicitors branch of the profession in Northern Ireland remains predominantly that of small-firms (one or two practitioners) located throughout Northern Ireland offering a wide range of generalised legal services including, as and where appropriate, access to a more specialist bar. Again it is notable that no cost-benefit analysis of the present system appears to have been undertaken.

24. The benefit of this type of advice resource, already widely available and centred in local communities, should be recognised, and the Society would urge the Assembly to consider particularly carefully whether the Government proposal to remove (in effect) this facility is either in the interest of victims or appropriate in societal or costs terms. The Society would urge that the benefit of solicitors experience built up over many years in dealing with the financial recompense of victims, should not be lightly abandoned or diminished.

25. The Society has a creditable and constructive track-record in finding Northern Ireland solutions to Northern Ireland problems. In this instance, provided the problems with the Northern Ireland system are properly identified and not disproportionately and ultimately determined exclusively by considerations of cost, the Society is confident that acceptable and effective means can be found to effect improvements for the genuine benefit of victims.

26. The Society acknowledges the efforts made by Sir Kenneth Bloomfield and his team to conduct a review conscientiously in accordance with their terms of reference. Equally we recognise and welcome all proposals directed to the better operation of the present system and enhancing the understanding and experience of victims. For the reasons given in this paper, however, we consider:

(a) that the Government proposals fail to give sufficient weight to some basic facts about the system of compensation in Northern Ireland, particularly the degree to which it has served the interests of victims and Society well over a protracted period of time, during which considerable experience has been built up in developing an accessible system in which there is a broad measure of public confidence;

(b) that there is no significant evidence of wide spread dissatisfaction with the present system. Such evidence of dissatisfaction as there is supports the Society position that the proper focus of attention should be on procedural improvements (streamlining the current process) rather than prejudicing the interests of victims by altering the well-established and respected principles of compensation assessment;

(c) that, in terms of the administrative and legal costs associated with the operation of the present system, there has been a significant failure to understand or research this matter thoroughly;

(d) that there is no proper justification for such a fundamental alteration as the introduction of a tariff-based system, other than the Government imperative to reduce the cost of the Scheme overall, to the detriment of victims;

(e) that the most productive way forward from this point would be to recognise the extent to which the victims experience of the present system can be improved by more effective liaison and co-operation between all those involved in the present system including the Compensation Agency, both branches of the legal profession, the judiciary, the Court Service and victims organisations. The objective would be to determine how the present arrangements might be made to operate better to meet the expectations of victims, without imposing on victims a crude, undiscriminating, unfair and discredited method of assessing compensation.

1. A delegation from the Law Society of Northern Ireland gave evidence before the Assembly Ad Hoc Committee appointed to consider these proposed reforms. In the course of that evidence (on 23^rd October) the Society made a vigorous critique of the Government proposals to introduce a tariff-based system of assessment. The Society suggested also to the Committee that a better and more positive way forward was available to the Government namely, to engage with the Society and other relevant agencies to improve the present system and thereby to meet the real needs of victims of crime.

2. On this latter point several Committee members expressed an interest in having further information about what could be done to improve the present system. Accordingly the Committee may find it helpful for us to expand on our positive proposals. The points set out below reflect, incidentally, the points we had made to the Government at the time of publication of the Bloomfield Report, without evoking any response or indication of a willingness to enter into serious dialogue with the Society and others on the part of the Government.

3. The Society would make the following points by way of observation on, and recommendations in respect of, the present system:

(a.) the clear and incontrovertible message arising from the Bloomfield investigation is that the negative experience of some victims arises from problems of delay, transparency (lack of understanding of the present system) and a sense of alienation from the process and the "professionals" engaged within the compensation recovery process;

(b.) this being so, it behoves all those with responsibilities within the present system, including solicitors, to pay close attention to victims perceptions and actual experience of the process so as to ensure an improvement in that experience without penalising victims by a reduction in compensation levels;

(c.) our core recommendation is that the Government should be prepared to establish a Working Party, under the independent chairmanship of a senior member of the judiciary, with the general remit of examining the compensation process (as opposed to the principles of compensation assessment and the established structures, both of which are correct in principle). The objectives of the review should be specified as being systemic improvement by addressing problems of delay, transparency, communication, and liaison between agencies within the system;

(d.) apart from judicial chairmanship, the Working Party should include professionals and agencies from various disciplines with practical experience of operation of the current system, together with victims representatives;

(e.) we are in an era of reform of the processes of the administration of justice, and there is firm evidence of what can be achieved through a practice-focussed approach, particularly in terms of delay, and improved communication;

(f.) although we consider that all of these issues would need careful evaluation within the context of the proposed Working Party, the Society would identify the following system improvements which would produce obvious and tangible benefits;

(i.) administrative protocols, between agencies (principally solicitors and the compensation agency) to set out agreed standards and expectations, and between solicitors and clients. The latter may be of particular value in meeting and managing the reasonable expectations of victims, demystifying the process and ensuring that victims do not feel alienated from the process;

(ii.) administrative improvements within the Compensation Agency. We understand that the Agency at present is under resourced and under complement. The adequacy of the resource, training and in-office policies of the Agency (for example, as regards offers in settlement and disclosure of information) would benefit from in-depth review;

(iii.) reform of the listing system to ensure that the handling of appeals by the courts is as expeditious as possible. Listing of cases at present depends heavily on the initiative of the Compensation Agency. Much has been learned in recent years in the other work of the county courts about the proportionate use of case management techniques by the court, whereby the judge assumes a responsibility for securing that a case is brought forward within a reasonable time-scale, and the court intervenes proactively to prevent unnecessary delay.

4. Representatives of the Society are available to expand of any of these points as required by the Committee. Otherwise we hope that this additional information will be of some assistance.

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