Criminal Injuries Compensation

Compensation

There exists the possibility of recovery for criminal damage against a wrongdoer in civil proceedings.  In addition, the Criminal Justice Act 1993 allows for an award of compensation in the criminal proceeding itself upon conviction.

Sometimes courts take account of payment of compensation as a factor in mitigating punishment or in applying the Probation Act in lieu of punishment.

The Criminal Injuries Compensation Tribunal administers a non-statutory scheme of compensation for criminal injury.  The scheme is funded by the Department of Justice.  The scheme covers personal injury and death.

The scheme covers compensation for expenses suffered as a direct result of violent crime or while assisting or trying to assist in preventing crime or saving human life.  The injured person or in the event of death, his or her next of kin may claim compensation.  Dependents of victims who thereby incur expense may also claim.

The Tribunal also administers a Scheme of Compensation for Personal Injuries criminality inflicted on Prison Officers.

Tribunal Procedure

The Tribunal draws up and publishes its own procedures. Generally speaking, it attempts to proceed as informally as possible.

Generally, the application is dealt with on the basis of an application form.  The Tribunal may summons an applicant. The Tribunal require a Garda report of the crime.

A claim of less than €317 may be dealt with by the Secretariat of the Tribunal. The decision by the Secretariat may be appealed to a single member of a Tribunal.

Proceedings are by way of the presentation of a case by the applicant. The applicant is entitled to call, and cross-examine witnesses. The applicant must establish the case. The Tribunal staff may make submissions and is also entitled to call and cross-examine witnesses. All information available to the Tribunal is to be made available to the applicant.

A Tribunal may pay the necessary and reasonable cost of witnesses but will not pay for legal representation. Hearings are in private. The standard of proof is on the grounds of probability.

The time limit for making the claim is three months.  This may be extended by the Tribunal.  In the case of death, there is no formal time limit.

Procedures before the Tribunal are informal.  Lawyers are not usually retained.  Legal fees are not paid.

Compensation

Compensation is not paid

• in respect of injuries below €63.50
• where the assailant and applicant live together in the same household,
• where the injury is a result of road traffic offence unless a deliberate attempt to cause injury was involved,
• if the applicant does not provide reasonable assistance.

The scheme covers out of pocket expenses and bills only.  It does not cover pain and suffering.  The Tribunal will take account of any payments, salaries and wages received.  It will also take account of any other compensation paid.

The Tribunal may reduce the amount of compensation paid or refuse compensation if the applicant was wholly or partly at fault.  It may reduce the compensation due to the behaviour, character or way of life of the applicant including a criminal record.

The award may be made as a single payment or may be postponed.  Where a person to whom compensation is to be paid is under 18, it may be invested until the person reaches the age of majority.

The cap for mental distress is €25,394.

Appeal

A decision by a single member may be appealed to a formal hearing by three members.  An applicant may have legal representation before that Tribunal, but this will not be covered in an award of costs.

There is no appeal from a decision of a three-member Tribunal. Although there is no right of appeal against decisions of the Tribunal, it is likely to be subject to judicial review for excess of jurisdiction or acting contrary to the principles of constitutional justice.

Types of Case

There are a number of types of cases.

Personal injury with short-term effect.  In this case, loss due to loss of earnings, medical expenses, travelling expenses, medication etc. may be paid.

Personal injury with long-term effect.  In this case, the above with future loss of earnings, future and existing medical expenses and other future financial expenses including care and future loss of earning potential may be the subject of compensation.

In the case of death due to criminal injury, actual pre-death expenses and future loss of support and maintenance for dependents, funeral and burial expenses may be paid.  In this case,  a payment on account of mental distress may be paid to immediate family members subject to a limitation.

Where a victim of crime dies for reasons unrelated to the crime, the Tribunal may make payments if it would at its discretion, if it would cause hardship not to do so.

The only property damage covered are medically necessary items arising from personal injury.

Preventing Crime

The Tribunal in effect pays ex-gratia compensation for personal injury directly attributable to a claim of violence or incurred in assisting or attempting to assist in the prevention of crime or saving of human life. The injury must be sustained in the State or aboard an Irish ship or aircraft.

Arson and poisoning come within “crime of violence”. Injury under the scheme includes fatal injury.

The Tribunal will also consider claims in respect of injury received coming to the assistance of a member of Garda Síochána

• because of an unlawful attack on him because the member was attempting to prevent a crime or take a person into custody.
• in the course of a riot, disturbance or threat and disturbance of the peace.
• in the attempt, or the course of an attempt to rescue a person in custody.
• because a member was engaged in saving a human life.

The Tribunal also considers claims which would not normally fall within its scope. It applies to injuries sustained

• in the course of or attempting to prevent a crime in a public place.
• in the course of attempting to prevent in a public place the escape of a person who had committed or the rescue of a person in custody.
• because of anything done in the course of attempting to save a human life.

Other Compensation

If the injury is inflicted in the circumstances set out in the scheme and the person would be entitled to compensation under another scheme, he will not be prohibited from claiming compensation under the scheme. The Tribunal may decide a claim on the basis that no payment under the scheme should be made if there is duplication. It may make awards or reduce awards or awards on conditions of repayment if other compensation is subsequently received.

Subject to the restrictions in the scheme, compensation awarded is on the same basis as damage awarded under the Civil Liabilities Act. Compensation is not awarded for

• exemplary, vindictive, or aggravated damages.
• in respect of the maintenance of a child born to any victim of a sexual offence.
• in respect of loss or diminution of life.
• where the victim has died for the benefit of the victim’s estate.
•  in respect of pain and suffering.

Compensation is by way of a lump sum. The Tribunal may make an interim award. It may make a final award after a final medical assessment of the injury is made.

The Tribunal will deduct from any award made under the scheme any sums paid for the benefit of the victim or his dependents by way of compensation or damages from the offender or any person on the offender’s behalf following injury.

Compensation Denied

No compensation is payable:

• where the offender and victim live together as members of the same household at the relevant time.
• the applicant has not given the Tribunal all reasonable assistance in relation to a medical report.
• compensation in relation to road traffic injuries.
• provocation giving rise to injury (amounts may be reduced).
• due to the conduct of the victim, his character and his way of life it is inappropriate that he be granted an award. (Award may be reduced.)

EU Directive

There is an EU Directive on compensation for the victims of crime. It provides for cooperation between EU states. Victims may obtain compensation for crimes committed in another state.

The Tribunal assists persons resident in Ireland in sending claims to other EU states. It assists them in processing the claims.

It has been suggested that the Irish scheme may not conform with the requirements of the Directive for victims of crime. Under the Directive, each state must pay for an appropriate scheme of compensation for the victims of crime. It is arguable that the State’s requirements under the directive have not been fulfilled. Compensation for pain and suffering is awarded in other EU jurisdictions including in the United Kingdom, where up to £300,000 pounds may be so awarded.

Garda Scheme

There is a special scheme for compensation to members from Garda Síochána under the Garda Síochána Compensation Acts 1941 to 1945. The Garda Síochána legislation applies to members of an Garda Síochána maliciously killed or injured in the performance of their duty whether on duty or off duty because of something he did as a member or having been a member of Garda Síochána.

The award of compensation is made to the person injured. There is also a provision for compensation on the death of a deceased member to certain close relatives.

In the case of minor injuries, the question of liability and amount may be determined by the Department of Justice. In the case of death or injury, which is not minor, the Minister must authorise the applicant to apply to the High Court for compensation. The Minister determines if the injury is minor.

Generally, the application for consent to proceed must be made to the Minister of Justice within three months.

A summons is issued against the Minister for Finance. It is supported by affidavits. Generally, there will be a hearing. It must be established that the death or injury comes within the above criteria. The legislation provides that the decision of the High Court is final and not subject to appeal.  A case may be stated to the Supreme Court on a point of law.

In determining whether the applicant has suffered loss account is taken of

• other allowances and gratuities from public funds.
• financial loss sustained without regard to the property which may have come into the applicant by reason of the death.
• funeral and medical expenses.
• financial benefits that might reasonably have been obtained in the future.
• loss other than financial loss.

There are also a number of other statutory schemes which are relevant only to particular sectors.  There is a scheme for injuries to prison officers. There are special schemes for injuries for members of the Defence Forces under the Army Pensions and Defence Act.