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

The Northern Ireland Human Rights Commission (hereinafter referred to as "the Commission") was established under the Northern Ireland Act 1998. Section 69 confers upon the Commission a duty to advise the government whether proposed legislation is compatible with human rights.

The Commission works vigorously and independently to ensure that the human rights of everyone in Northern Ireland are fully and firmly protected in law, policy and practice. To that end the Commission measures law, policy and practice in Northern Ireland against internationally accepted rules and principles for the protection of human rights and seeks to ensure that those rules and principles are promoted, adopted and applied throughout Northern Ireland. It is in this light that the Commission offers this critique of the Draft Criminal Injuries (Compensation) (Northern Ireland) Order 2001 and the Draft Criminal Injuries Compensation Scheme 2002.

Since the introduction of the statutory scheme for compensating victims of crime in 1964 there has been much debate over its justification. David Miers has expounded the numerous theories underlying the scheme, which range from a contractarian theory or reliance on the negligence of the state through to a social welfare theory. Regardless of the justification for such state involvement in compensation of victims, a government White Paper asserts:

"It is right for the State to assume responsibility for and feel sympathy with the innocent victims of crime and give practical expression to that by the provision of a monetary award on behalf of the community."

The importance of victims and of victims' rights continues to be a major subject of discussion. In Northern Ireland "victims" were recently considered by the Criminal Justice Review and specifically their role in restorative justice initiatives was examined.

Victims are the central subjects of the Draft Criminal Injuries (Compensation) (NI) Order and Draft Scheme and whether those Drafts reflect and uphold victims' rights entails looking at the relevant internationally accepted standards for treatment of victims.

The United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985) affirms in Article 1:

Article 12 of the annex to that declaration provides that "States should endeavour to provide financial compensation."

The Council of Europe's European Convention on the Compensation of Victims of Violent Crimes provides in Article 2:

In its critique of the proposed legislation the Commission will refer to these international standards and to other fundamental human rights provisions which arise for consideration, specifically the European Convention on Human Rights.

Article 1 of the United Nations Declaration of Basic Principles of Justice for the Victims of Crime and Abuse of Power provides:

Paragraph 8 of the Draft Criminal Injuries Compensation Scheme (hereinafter referred to as the Draft Scheme) limits payment of compensation to injuries sustained by "crimes of violence". In effect the Draft Scheme, in the same way as previous schemes, operates to differentiate victims of crime from victims of violence.

The Home Office Working Party in 1986, analysing this distinction in light of the cases of R v Criminal Injuries Compensation Board, Ex Parte Clowes, R v Criminal Injuries Compensation Board, Ex Parte Parsons and R v Criminal Injuries Board, Ex Parte Webb, determined that any scheme of compensation "should not be regarded as underwriting any injury loosely connected with a breach of the criminal law."

The Human Rights Commission is of the view that this approach is not consistent with Article 1 of the UN declaration. The Commission believes that paragraph 8 of the Draft Scheme will have the effect of precluding many meritorious applications by victims of crime.

Section 75 of the Northern Ireland Act 1998 confers a statutory duty on public authorities to promote equality of opportunity. The Commission is of the view that the restrictive definition of "victims" within the Draft Scheme may adversely effect certain victims of serious but non-violent crime. In so far as these victims are more likely to be members of specific groups (e.g. women, older persons or people who are gay or lesbian) the Scheme may not fully comply with section 75.

The Draft Order and Scheme propose to introduce a tariff system of compensation. The reasoning behind this was expounded by the Minister for Victims, Mr Des Browne MP:

When a similar tariff-based scheme was introduced in England the Home Office was of the view that:

The Report of the Review of Criminal Injuries Compensation in Northern Ireland states:

Although the reasoning for the new tariff scheme appears to be sound, the Human Rights Commission is concerned that the provision of a simple, quicker and open service is at the expense of providing fair remuneration and compensation to victims of crime.

The tariff-based system envisaged at paragraph 26 of the Draft Scheme, which has a list of tariff levels appended, is a scale of fixed levels of compensation. The Commission is concerned that there is no proposal for any of the adjudicators or decision-makers to move outside the fixed bands. The tariff does not provide ranges of quantum or awards, which could seek to take into account the impact of the crime on the individual applicant. The new tariff scheme is based upon uniformity of quantum with no regard to the uniformity of the impact of the same type of crime on different victim applicants.

The Bloomfield Report states:

The Commission is of the view, however, that the right sum of money is one which provides a fair restitution to the victim. This is accepted in Article 8 of the United Nations Declaration of Basic Principles of Justice For Victims of Crime and Abuse of Power.

The Commission believes that the rigidity of the tariff-based scheme has the potential to increase the suffering and trauma victims suffer. The Bloomfield Report states that victims "saw the amounts which they were awarded as an indicator of the price at which society valued the loss of their loved one or their degree of injury sustained. They felt anger that such payments did not take into account the longer term effects on their lives."

Given this perspective, the Commission is deeply concerned that the tariff system will not provide victims with a fair award of compensation. The Draft Scheme seeks to take the individual identities of victims and their personal traumas out of the calculation of awards. The Draft Scheme provides instead a cold and clinical analysis of the fact of an injury and bypasses the effect of that injury on the victim. The Commission considers that a speedy disposal of applications is not in all circumstances in the best interests of victims.

Although paragraph 65 of the Draft Scheme allows the Panel of Adjudicators to make arrangements for the inspection of the injury, the Commission is concerned that this comes only after there has been an initial determination of the application and after that decision has been reviewed and subsequently appealed. In any event the Panel, on seeing the injury, cannot act outside the tariff levels and it has no power to take into account or quantify unique and diverse reactions of victims to crimes.

The Judicial Studies Board, in the preparation of guidelines for the assessment of damages at common law states:

It goes on to say that figures may be increased or decreased according to the medical evidence, the victim's sex, age and any other factors which appear to be relevant in any case.

The Commission therefore wonders how the tariff-based scheme can meet the aim identified by Minister Des Browne of providing victims with compensation they deserve and questions the extent to which the Draft Scheme, in not having regard to the impact of a violent crime on the individual, demonstrates an effective recognition for victims as is required by Article 1 of the UN Declaration.

The European Convention on the Compensation of Victims of Violent Crimes provides in Article 2 that States shall "contribute" to compensate victims. The word "contribute" may suggest that there is no state obligation to provide the same amounts of compensation as are available at common law. Article 5 of the Convention affirms that the State may impose maximum and minimum threshold criteria above and below which compensation shall not be payable. The Commission nevertheless believes that the more individualised approach favoured by the UN Declaration is preferable.

The Draft Scheme at paragraph 27 sets out how the decision-makers and adjudicators will assess multiple minor and serious injuries. In respect of victims who have suffered minor injuries, they will qualify for compensation only if the additional criteria at Note 7 of the tariff are fulfilled. Pursuant to Note 7, they must have at least three separate physical injuries, one of which must still have residual effects six weeks after the violent crime, and they must have attended a medical practitioner at least twice. The Commission is of the view that these additional criteria are contrary to the aim of simplifying and making the system more open and accessible.

Article 5 of the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power provides:

In relation to multiple serious injuries the Draft Scheme provides that the award will be calculated by taking the three most serious injuries. The first will attract the fixed scale award; the second 30% of the fixed award and the third 15% of the fixed scale. The Commission is concerned that victims who have sustained significant bodily injuries and impairment of mental health as a result of serious crimes may be further traumatised by their multiple injuries not being fairly or adequately compensated.

It is especially difficult to assess the long-term effects of mental and physical health impairments and the Commission therefore welcomes paragraph 56 of the Draft Scheme which provides that cases may be re-opened where there is a material change in the victim's medical condition.

The Draft Scheme proposes that an applicant will qualify for compensation to cover loss of earnings only after 28 weeks incapacity for work. Paragraph 35 of the Draft Scheme goes on to provide that other special expenses, including loss or damage to property which was a physical aid or the costs of treatment for the injury, will be awarded only if the victim has been incapacitated for longer than 28 weeks and even then the award is discretionary.

The European Convention on the Compensation of Victims of Violent Crimes sets out as a basic principle a positive obligation on states to provide certain compensation. Article 4 states:

The Commission believes that the Draft Scheme violates this European Convention in that it refuses to compensate all victims of crime for loss of earnings and for special expenses.

The Commission is dismayed that the new scheme does not replicate Article 3(2) of the Criminal Injuries (Compensation) (Northern Ireland) Order 1988, according to which victims are entitled to receive:

(i.) expenses actually and reasonably incurred as a result of an injury and any other expenses resulting directly from an injury which it is reasonable and proper to make good to him out of public funds;

(ii.) pecuniary loss to him as a result of total or partial incapacity for work;

(iii.) other pecuniary loss resulting from his injury.

The Commission would strongly advise that all applicants who satisfy the criteria for an award to be made should be entitled to at least loss of earnings and other expenses without having to satisfy the additional criteria of being off work for more than 28 weeks.

Article 4 of the European Convention on the Compensation of Victims of Violent Crime provides that compensation should at least cover funeral expenses and, for dependants, loss of maintenance. Paragraphs 37 - 44 of the Draft Scheme do provide that funeral expenses and additional loss of maintenance for qualifying dependants are payable.

The Commission notes paragraphs 38 - 39 of the Draft Scheme, which introduce a "Bereavement Support Payment". Whereas the Commission welcomes this payment it would appear that same-sex couples and heterosexual co-habitees who apply for such payments have to show that they have lived with the victim who died for two years before his or her death. Spouses of the victim do not have this hurdle to overcome.

The United Nations Declaration of Basic Principles includes the family and dependants of the direct victim as victims also. Article 3 provides that the provisions of the Declaration:

The Draft Scheme distinguishes spouses from co-habitees and same-sex partners. This less favourable treatment is contrary to the UN Declaration. The Commission also believes that the Draft Scheme may be the subject of challenge under section 6 of the Human Rights Act 1998 in that the distinction is not compatible with Articles 8 and 14 of the European Convention on Human Rights. The distinction may in addition constitute a breach of section 75 of the Northern Ireland Act 1998 in that it fails to promote equality of opportunity between persons of different marital status or sexual orientation, between men and women generally and between persons with and without dependants.

It has to be remembered that those who make decisions about applications, whether initially, by way of review or on appeal, are exercising a judicial function in determining an applicant's civil right to be considered for compensation arising from a crime of violence.

In recent years there has been a move away from the European Court's view that a discretionary benefit is not a civil right. According to Wadham and Mountfield, "Strasbourg institutions are increasingly willing to find a civil right within or alongside a public law right."

However Kerr J. in The Matter of an Application by Ralph Creighton for Judicial Review referred to Machatova v Slovak Republic, where it was held that an applicant's claim for education allowance to which she had no formal entitlement did not engage Article 6 of the European Convention on Human Rights. Whether the applicant should receive such allowances lay with the discretionary power of the administrative authorities. No civil right was vested in the applicant and the claim that the denial of the education allowance was in breach of Article 6 failed.

At present the Commission is of the view that the proposed criminal injuries scheme does not engage Article 6, but the jurisprudence of the European Court needs to be kept under review in this regard.

The Draft Scheme envisages that the Secretary of State will appoint administrators of the Scheme. It would be anticipated that the majority of the staff would be taken from the existing Compensation Agency. The Commission hopes that all individuals who are employed to administer the Scheme will receive training to sensitise them to the needs of victims. Perhaps the guidelines, which are required to be drawn up pursuant to paragraph 23 of the Draft Scheme, will address how the administrators can provide prompt and proper assistance to victims? This would be in line with Article 16 of the UN Declaration.

The Commission is concerned about decisions being taken based only on the application form submitted. We consider that the form used should provide the applicant with an opportunity to make written representations concerning each aspect of the determining criteria.

In relation to the review of decisions, the Commission notes that the Scheme does not clarify or provide who should undertake the review. The Commission would deem it to be inappropriate for the same administrator of the Scheme who took the original decision to review the decision.

The Draft Scheme provides for the establishment of a Criminal Injuries Compensation Appeals Panel, for which Adjudicators and a Chairperson will be appointed by the Secretary of State. The Commission suggests that this Panel's independence and impartiality would best be served if a Judicial Appointments Commission, recommended to be established by the Criminal Justice Review, were to appoint the Adjudicators and Chairperson.

Article 5 of the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power accepts that the judicial and administrative mechanisms can be informal. The Draft Scheme aims to provide an informal procedure.

Article 5 adds that such mechanisms must be inexpensive and accessible. The Commission is concerned that paragraph 74 of the Draft Scheme provides that the costs of a victim being represented by a legal adviser will not be met by the Secretary of State or Panel. This provision may have the effect of making the Draft Scheme less accessible to victims of crime who cannot bear the cost of representation or advice.

The Commission is particularly concerned that where issues arise regarding allegations or suggestions of criminal conduct on the part of the applicant, such assistance is not available. This may violate Article 6(3)(c) of the European Convention on Human Rights, which expressly provides that in the determination of a criminal offence a person should, if he or she has no means to pay for representation, be given assistance free when the interests of justice so require.

The Commission is of the view that, if the State wishes to recognise and respect the rights of victims of crime as a matter of public interest and protection, public funding should be available to represent the best interests of victims who make applications.

The Press Release for the Draft Order indicates that the Secretary of the State will inform any applicant that Victim Support (NI) will provide advice, assistance and support. Although the Commission considers that Victim Support (NI) has expertise and commitment to work with victims, we are concerned that the number of claimants will place substantial time and financial burdens on that organisation. Although Victim Support (NI) will be given funding to assist it, the Commission is of the view that funding victims would more appropriately be met by the Scheme itself or through legal aid assistance.

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

Paragraph 73 of the Draft Scheme provides that the Secretary of State must make available to the applicant any documents which the Appeal Panel or Adjudicators will have regard to when determining the appeal. Documents provided by the Chief Constable which are not relevant to a matter in question in the application or which are privileged on the grounds that production would be injurious to the public interest are not required to be disclosed.

The recent decision of Kerr J. in The Matter of an Application by Ann Marie McCallion, Lorraine McColgan and Anne McNeill for Judicial Review illustrates the dangers of decisions being taken based on documents which the applicant victim did not have an opportunity to make comments on. Kerr J. stated:

"the applicants complain that the contribution that they could make to the decision making process was severely curtailed as a result of the Compensation Agency's failure either to invite representations on the matters that were likely to influence the Minister of State or to alert them to the matters that were adverse to their cause."

Kerr J. continued:

The judge went on to hold that:

The Commission is concerned that the Draft Scheme requires discovery of information to the applicant victim only where an oral hearing is to take place (bearing in mind that there is no requirement to have an oral hearing at all.) The Commission is of the view that all relevant documentation should be disclosed to the applicant when an application is made for compensation and before the first decision about an award is taken.

The report of the Review of Criminal Injuries Compensation in Northern Ireland states:

Although the United Nations Declaration on the Basic Principles of Justice for Victims of Crime and Abuse of Power requires under Article 1 that all victims be treated with respect, Article 8 of the European Convention on the Compensation of Victims states:

The Draft Scheme at paragraph 14 provides that the Secretary of State can withhold or reduce an award where he or she considers that the conduct of the applicant before, during or after the incident makes it inappropriate that a full award or any at all be made. Paragraph 14(e) provides that the Secretary of State may withhold or reduce any award if:

(i.) the applicant has a criminal record; or

(ii.) if he is shown evidence which makes it inappropriate for a full or any award to be made.

The Commission is of the view that whether an applicant has a previous criminal record does not alter his or her status as a victim. The Commission wishes applicants to be assessed as victims and not as criminals. In accordance with paragraph 23 of the Draft Scheme, guidelines require to be drawn up which clarify exactly how decisions are to be made about the effect of a criminal record on any award. In England a penalty points system operates, whereby points are calculated having regard to the sentence of the court and the time between sentence and the claim for compensation being made. Paragraph 24 of the Draft Scheme requires that there be an assessment of the character of the applicant. The Commission has reservations about a penalty points scheme which may fail to take account of the true character of the applicant.

The Commission is very concerned that the Secretary of State can have regard to other "evidence" to determine the applicant's character. In The Matter of an Application by Ann Marie McCallion, Lorraine McColgan and Anne McNeill for Judicial Review the Secretary of State was allowed to take into account that the victim had been targeted "probably because he had INLA traces" and that the victim "was a sympathiser and that his death was probably due to a feud amongst Republican terrorists."

The Commission would oppose the notion that the probabilities mentioned in the above case constitute "evidence." The Commission would rather suggest that they are representations which are made without a strong basis in fact and without the applicant having an opportunity to challenge their veracity.

If there is any factual basis for making comments about an applicant's potential involvement in criminal activity those facts should be placed before a criminal court and made subject to the criminal standard of proof. Paragraph 64 of the Draft Scheme provides, on the contrary, that the standard of proof for applications is the balance of probabilities. The Commission is of the view that the Secretary of State should not have regard to such "evidence" without hearing representations from the applicant. To do otherwise is entirely prejudicial to the applicant in that the decision to make or refuse an award is based upon assumptions, suggestions and conjecture.

Very relevant in this context is Article 6 of the European Convention on Human Rights, specifically Article 6(2), which reads "everyone charged with a criminal offence shall be presumed innocent until proved guilty according to the law." Also relevant are Article 8 (right to respect for private and family life), Article 9 (freedom of thought, conscience and religion), Article 10 (freedom of expression) and Article 11 (freedom of assembly and association).

Article 3 of the United Nations Basic Principles of Justice for Victims of Crime and Abuse of Power provides:

The Commission considers that the Draft Scheme distinguishes those who have a criminal record and treats them less favourably than "blameless victims".

Furthermore, families, dependants or partners who apply where the victim has died are treated not as victims' families but rather as convicted criminals' families. The Commission is of the view that this difference in treatment constitutes a violation of Article 14 of the European Convention on Human Rights (in particular the "other status" provision). This argument was suggested in The Matter of an Application by Ann Marie McCallion, Lorraine McColgan and Anne McNeill for Judicial Review but no opinion was expressed by Kerr J. as to the possible impact of the Convention.

Paragraph 14(d) and (e) of the Draft Scheme could be challenged as incompatible with the European Convention on Human Rights under section 6 and 7 of the Human Right Act. A court would then have to determine whether the less favourable treatment is proportionate to the aim of the Scheme to protect victims and whether it is objectively justifiable.

The Commission is of the view that, although Article 14 is not a general "equal treatment guarantee", the Draft Scheme violates Article 26 of the UN's International Covenant on Civil and Political Rights, which provides:

Section 75(1) of the Northern Ireland Act 1998 imposes a statutory duty on all public authorities to have due regard to the need to promote equality of opportunity between classes of persons.

The Commission has highlighted within the course of this critique certain people who are treated less favourably under the Scheme. They include:

• those who have a criminal record;
• families and dependants of those who have a criminal record;
• victims of crime as opposed to victims of violence;
• those who hold certain political or atypical views;
• families and dependants of those who hold political or atypical views;
• same-sex partners and co-habitees who are treated less favourably than spouses;
• men and women generally in the rigidity of the tariff scheme;
• all victim applicants in not having public funding to assist them in bringing applications.

The Northern Ireland Human Rights Commission considers that the Draft Criminal Injuries Compensation (Northern Ireland) Order 2001 and the Draft Criminal Injuries Compensation Scheme 2002 may be the subject of challenges under section 6 and 7 of the Human Rights Act on the basis that the Scheme is in some respects incompatible with the European Convention on Human Right. The Scheme may also be in breach of other internationally accepted standards on human rights, including those on compensating victims of crime.

Sir Kenneth Bloomfield recommended that, if the tariff exercise revealed common patterns of multiple injuries then they should be included in the staff, otherwise the principle adopted in Great Britain should be followed, and that the percentage allowed for the second and third injuries should be determined empirically; with a view to determining what formula most nearly corresponds to the practice currently adopted in assessing the pain and suffering element of an award.

The recommendation was accepted but modified to adopt the revised GB percentages which were brought into effect earlier this year. It was found to be impracticable to determine Northern Ireland percentages empirically; to adopt the GB percentages achieved consistency and parity between the two schemes.

The only change to current arrangements will be that private health insurance awards towards medical expenses or health care arrangements will be deducted from any pecuniary loss/cost of care awards. In other words the scheme will not pay for something twice - if medical/health care requirements, outside what is provided for through the NHS, are funded by private health insurance, then the scheme will take that into account and deduct the relevant amount from the total award.

As with the current scheme, all personally funded insurance or pension arrangements will be ignored. Employer funded payments are taken into account, as they are currently.

Paragraph 59 of the Scheme provides for the review of any decision made by the Agency. An application must be supported by reasons together with any relevant additional information. Paragraph 61 of the Scheme provides that an applicant may appeal against a decision of the Agency. Such notice of appeal (to the independent appeals panel) "must be supported by reasons for the appeal together with any relevant additional material which the appellant wishes to submit ..". This provides the applicant with an opportunity to submit further medical evidence to support their case, both at review and appeal stage.

Perhaps I could clarify the situation regarding loss of earnings or earning capacity under the new tariff scheme. This was raised by Mr McHugh when he said that a victim of rape would only receive £7,500 under the new system whereas under the current arrangements she would be compensated for loss of earnings, up to £1 million or more, if she was unable to continue her career.

The new scheme will permit payment on exactly the same basis. If a victim is unable to continue working as a result of their injury, pecuniary loss will be payable, except for the first 28 weeks. Only if an injured party is fit to return to employment within 28 weeks is an award confined to the tariff payment. In addition, there is no upper limit on the amount of compensation payable. In GB the upper limit is £500k.

Victim Support Northern Ireland (VSNI) is an independent voluntary organisation which helps people come to terms with the experience of being a victim of crime. Victim Support's trained volunteers and staff give free and confidential support to victims across the community, in their homes, in courts, in outreach centres, and in local VSNI offices. This support includes information on court procedures, home security, compensation and insurance, and referrals to other services as needed. In April 2002, Victim Support will expand its current services to offer direct support to victims making claims under the new Criminal Injuries Compensation Scheme, pending parliamentary approval. This expansion fits naturally into the continuum of Victim Support's services of emotional and practical support.

This addition to our services is pre-empted by our prior involvement in Criminal Injuries Compensation. In 1993, Victim Support convened an independent working party to "consider the arrangements for the payment of compensation for victims of crime." The working party determined that the key purpose of state compensation is "to recognise on behalf of society the experience which victims of crime have suffered; and to help the victim to recover from it and to live as normal a life as is possible in the circumstances.. insofar as is possible. to place the victim in the position which he would have occupied if he had not suffered the wrong." The working party emphasised that financial compensation is only one aspect of a recovery process that should also include emotional and practical support.

VSNI's role developed further in 1999 when Sir Kenneth Bloomfield recommended in his review of Criminal Injuries Compensation that VSNI be funded to assist victims in a new tariff based scheme. Sir Kenneth Bloomfield stated, "Although it is impossible to compensate for some of the losses suffered. victims of criminal violence should in the future get the best service we can provide. within an efficient, humane and sensitive legal and administrative framework."

As VSNI develops its Criminal Injuries Compensation Scheme services, it has the support and expertise of its colleagues in Great Britain. These colleagues currently support applicants at the time of application, initial decision, reviews, and appeals. They provide emotional support, practical help with the application(s), and clear information about the application process. Our colleagues correspond with CICA and CICAP for applicants as needed and help applicants as they formulate arguments for reviews and appeals. They inform the applicants of potential issues that may arise at an appeal hearing and what kind of information the applicant should have prepared for an appeal hearing.

VSNI is positive about the implementation of the new tariff based scheme. VSNI believes that the new scheme is simpler and more empowering, inclusive, transparent, and equitable than the current common law scheme in Northern Ireland. VSNI looks forward to developing an excellent standard of service for applicants as part of this positive social change.

• The straightforwardness and simplicity of the tariff make it a user-friendly scheme and empowers applicants to have responsibility for their application at each stage of the process.
• Tariff bandings generally promote equity among applicants.
• The value of tariff bandings will reflect the current median awards for injuries under the Northern Ireland common law system.
• The administrative nature of the tariff based scheme should reduce the amount of time needed for decisions and assist in bringing emotional closure to victims sooner.
• Decisions will be transparent to applicants.
• The language "bereavement payment" is more sensitive than "bereavement award."
• The proposed scheme is more inclusive:

• it gives greater recognition to the causes of psychological injuries;
• it provided a wider circle of bereavement payments,
• and it provides compensation for people with spent convictions.
• The appeals process is positive and non-threatening for applicants.
• The appeals panel can use discretion when considering factors affecting an applicant's claim.

• A high proportion of sexual violence cases will be turned down at the initial decision and review stages because they cannot be decided on papers. Cases which cannot be decided on papers should be granted a hearing at the initial stage of the application process.
• The tariff bands are not index-linked.
• The fixed formula for calculating multiple injuries will leave some of the most seriously injured victims under compensated.
• Compensation should not be reduced by social security and state benefits, insurance payments, and pensions.
• The 28 week qualifying periods for compensation for loss of earnings and compensation for special expenses may cause hardship to victims.
• The consideration of unspent convictions in reducing or denying an award leads to double jeopardy for applicants.
• The proposed scheme takes into account the deceased's character and conduct when providing compensation to bereaved persons.

VSNI has been following with interest all aspects of the current tariff based system operational in England, Scotland, and Wales through ongoing contact with VSNI colleagues there. More recently, VSNI has observed the entire process firsthand through visiting the Criminal Injuries Compensation Authority (CICA), the Criminal Injuries Compensation Appeals Panel (CICAP), and several Victim Support schemes in England and Scotland who provide support to victims at all stages of the Criminal Injuries Compensation process. Victim Support believes it has now gained an invaluable insight into the practice of the tariff based scheme.

Therefore, as an organisation that will provide direct support to people seeking compensation under this scheme, if approved, VSNI has a keen interest in the effects of the scheme's policies on victims of violent crime. To this end, we identify and comment on key components of the new scheme:

It is expected that the tariff will simplify the scheme and make it more straightforward for victims. This clarity should enable victims to better understand and have ownership of their application.

3C1. Equity

The set tariffs generally result in claimants being treated more equitably.

3C2. Value

The establishment of tariff bandings equivalent to the current median value of individual injuries under the Northern Ireland common law system is an important step for two reasons:

• First, it means that in the future, the tariff bands will be comparable with the judicial decisions made under the common law scheme.
• Secondly, the tariff bands in Great Britain have been widely criticised from organisations including Victim Support for offering compensation payments that in many cases were seen as derisory.

The fixed formula (paragraph 27) used for calculating awards for multiple injuries leaves some of the most seriously injured victims under-compensated. Where the injuries are very serious, the amount 'lost out on' can be substantial. For example, if a victim lost one arm (above the elbow) and one leg (above the knee), the amounts £75,000 + £100,000 = £175,000. However, the victim would only receive £122,500 with the multiple minor injuries formula, which provides 100%, 30% and 15% compensation respectively for multiple injuries.

Victim Support welcomes the intention of the government to keep under review, over time, the tariff bands; however, VSNI would much prefer that the tariff bands were index-linked in order to ensure the value of payments in real terms does not fall over time.

The proposed scheme (paragraph 30) has a 28 week qualifying period for compensation for loss of earnings. Severe hardship can be experienced when a victim is unable to work for periods of less than 28 weeks, particularly when s/he is the family's main breadwinner and is ineligible for statutory sick pay. In particular, this affects those in part-time, low-paid or temporary work and the self-employed.

The proposed scheme (paragraph 35) has a 28 week qualifying period for compensation for special expenses. This provision causes hardship where, for example, the victim's spectacles have been damaged or s/he requires extensive dental treatment, but the victim in not incapacitated for the injuries for 28 weeks. These items can be very expensive.

VSNI strongly disagrees with reduction of compensation awards by social security and state benefits, insurance payments, and pensions (received for the injury or upon death). Compensation should stand alone as recognition by society of suffering. Benefits, insurance payments, and pensions are practical sources of income that are financial necessities, especially in time of hardship, for their recipients. It is insensitive and inhumane to punish the most financially vulnerable people in this manner.

3G1. Quicker decisions

The administrative nature of the tariff should reduce the amount of time involved in the application process, therefore bringing closure to the incidents sooner for victims. This is a crucial issue in helping people to move on from traumatic experiences and resuming as normal a life as possible in their circumstances.

3G2. Transparency

In the judicial review R v CICA, Ex Parte Leatherland, July 2000, the court ordered CICA to cite specific evidence in their decisions in order to inform the applicant of the exact reason for a reduced or denied award. This process also ensures the accountability of caseworkers. Therefore, the evidence used in the decision making process must be clear and objective. One important implication of this ruling is that police reports do not include opinions or hearsay about an applicant's lifestyle and activities; instead, they focus on information that can be supported with direct evidence.

3G3. Cases which cannot be decided on papers

VSNI notes that a high proportion of sexual violence cases in England and Wales are turned down at the initial decision and review stages because they cannot be decided on papers. Examples include cases in which there has been a successful defence of consent leading to acquittal and there is consequently a conflict of evidence between the applicant and the offender which can only be settled at a hearing. Under the terms of the proposed scheme, the Compensation Agency will only be able to decide applications on the basis of the papers. The only way in which such claims can at present be fairly decided is if the applicant appeals. We consider that this problem might be solved if the terms of the scheme were amended to enable the Compensation Agency to hold a hearing at either the initial or review decision-making stage for cases which could not be decided on paper.

VSNI appreciates the sensitivity of the term "bereavement payment" used in paragraphs 38 and 39. The term used in the common law scheme - "bereavement award" - sometimes caused guilt and confusion to applicants who had difficultly with the perception of receiving an "award" for a death of a loved one.

3I1. Psychological injuries

VSNI is pleased to see that the proposed scheme acknowledges the psychological injuries suffered by people who have a "close and loving relationship" with a victim of a physical or mental injury (paragraph 10). Recognition that such injuries to close family members can develop in the aftermath of a violent crime to a loved one is a welcome inclusion here and will address a crucial failing in the common law scheme, whereby victims are denied compensation unless they witnessed the crime. Sir Ken Bloomfield gave the following example of this denial in his review of Criminal Injuries Compensation:

"A police car was ambushed by terrorists close to the foot of the 20 yard lane leading to Mrs C's house. At the time of the attack Mrs C was watching television. She heard a bang like a car crash, but did not hear any shooting. When told by one of her sons that there had been a lot of shooting which had now stopped, Mrs C and her husband immediately went out to see what happened. She could hear screaming. She phoned for an ambulance, and then went to help two police officers who had been very badly injured. She nursed and comforted them for half an hour until an ambulance arrived (one of them died in her arms). The experience caused her to suffer a serious and disabling mental disorder. But compensation was refused; the court held that she had not been 'present' when the crime was committed."

3I2. Bereavement payments

The common law scheme only provided compensation to married partners of the deceased or to legitimate parents of a minor who was never married. No compensation was available to unmarried or same sex partners, to children of murder victims, or to parents of children over 18. The tariff (paragraphs 38, 39) scheme is much more inclusive and includes compensation for parents (or persons accepted as parents) spouses, co-habitants, same sex partners, and children of any age (or persons accepted as children).

Paragraphs 14d and 14e allow awards to be reduced or denied due to an applicant's conduct or character. In cases of murder, when the qualifying claimant(s) seeks compensation, VSNI strongly believes that the conduct or character of the deceased should not affect compensation for the qualifying claimant(s). As it would be wholly wrong for the NHS to distinguish between providing psychiatric services to bereaved family members, for example, where the deceased provoked his own death or where the deceased had a criminal background, and services to bereaved family members where the deceased was deemed to be free of convictions or criminal behaviour, it would be wholly wrong for the Compensation Agency to distinguish between "deserving" bereaved persons and "non-deserving" bereaved persons.

3I3. Spent convictions (paragraph 14e)

VSNI believes that eliminating spent convictions from the assessment process is a positive step, and Victim Support acknowledges that the penalty points system is a fairer and clearer method of assessing non-spent convictions. In his review of Criminal Injuries Compensation, Sir Kenneth Bloomfield described a case under the common law scheme, which penalised applicants for any convictions:

"A man was convicted in 1975 for a serious explosives offence for which he was sentenced to 15 years imprisonment. He had served his sentence and been released from prison, and was a 'model' citizen, when he was shot and seriously injured in 1989. He argued that his conviction occurred before the 'terrorism' provision was first introduced in 1977, and that it would therefore be wrong to take it into account. The court disagreed; the words of the Order are clear and unambiguous, and refer to a conviction "at any time whatsoever". Compensation was refused."

However, VSNI believes that the consideration of unspent convictions is double jeopardy, as people with convictions have already been penalised by society and have "paid" a social debt.

3J1. Observations

From our contact with CICAP, we found the Appeals Panel to be sensitive, considerate, and sympathetic to applicants who attend without any legal or academic background. More specifically:

• The Chair of the panel clearly explained that the panel was an independent body whose task it was to review each case afresh, independently of the Compensation Authority.
• The Chair carefully explained the hearings procedures in a manner that showed respect and consideration for the applicants. The Chair ensured throughout the hearings that the applicants understood all questions and always had the last opportunity to speak. The Chair was humane in his approach to applicants' potentially sensitive personal and medical issues.
• The Chair showed sympathy to applicants, particularly when he understood their difficulties but could not give an award due to the guidelines of the scheme.

The hearings operated according to tribunal rules. This informal format enabled appellants to competently present their own cases. However, appellants had the option of obtaining representation via a solicitor or a Victim Support representative. VSNI anticipates providing practical support prior to the hearings and emotional support at the hearings unless an appellant is unable or uncomfortable with self-representation, in which case VSNI will represent the appellant.

Overall, VSNI found the hearings to be a positive and non-threatening experience for victims. VSNI observed that even when awards were reduced or denied, the applicants expressed their appreciation for the opportunity they had been afforded to be heard in person.

3J2. Discretion

The panel was not bound by the same strict guidelines in the scheme and could use discretion to consider all factors affecting an applicant's claim. Victim Support observed one case in which a young man with a conviction appealed a 25% reduced award. The young man explained that he was young at the time of the incident and he had "gone off the rails" because his mother had been diagnosed with a terminal illness. The young man showed remorse and explained the positive changes he had made since the incident. The panel minimised the reduction to 10% of the award.

In the proposed scheme, the payment of legal aid to assist applicants in making claims will no longer be available. In our view, the administrative nature of the tariff based scheme supported by a user-friendly application and appeals process should result in little disadvantage to the majority of claimants. However, VSNI notes that Sir Kenneth Bloomfield recommended in his report on Criminal Injuries Compensation that serious injuries (above level 10) should be assessed under the common law system and that the Compensation Agency should pay reasonable costs and expenses to applicants who seek legal advice in complex cases. VSNI recognises the complexity of certain cases, in particular fatal injury cases. In our opinion, it will be advisable to encourage applicants to seek legal advice to determine the appropriate calculations required for the application. However, VSNI will continue to provide other practical and emotional assistance as possible in these situations.

VSNI supports the positive changes in the proposed tariff based scheme and welcomes its implementation. VSNI looks forward to complementing these changes with a comprehensive Criminal Injuries Compensation Service of practical and emotional support. VSNI would be amenable to speak with committee members and provide any further information that may be required.

Annex

Supplementary Memorandum of Evidence

Victim Support would like to thank the committee for its time on Tuesday, 23 October. During this hearing, Mr Maginness asked Victim Support to respond in writing to his query about whether the organisation thought the minor multiple injuries formula was "fair." We have included our response below, and we would appreciate it if you would kindly forward it to the committee members.

Victim Support has since reviewed the minor multiple injuries formula. We are concerned about the stringent requirements of the formula, e.g., the requirement for 3 separate injuries, 2 visits with a GP, and at least 1 injury with residual effects 6 weeks after the incident. It is our belief that it would be fairer to consider a GP's professional opinion about the effect of the injury on the victim, without any of the above numerical requirements.

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