House of Commons - Northern Ireland Affairs

Select Committee on Northern Ireland Affairs Fourth Report

Compensation for the Victims of Violent Crime

8. In theory, any victim of a violent crime is entitled to seek compensation directly from the perpetrator:

"…but this theoretical recourse is seldom useful in practice. It may be difficult to identify specific assailants, equally difficult (or even, in the circumstances of Northern Ireland, hazardous) to prove their involvement, and at the end of the day criminals will seldom have the means to pay substantial damages. It is for this very reason that special arrangements have been made for the payment of criminal injuries compensation by the State."[5]

9. The Criminal Injuries (Compensation) (Northern Ireland) Order 1988 made provision for compensation which could include amounts for pain and suffering, loss of amenity and financial loss. Under the scheme around 12,000 claims per year were received with approximately 60% of applicants receiving compensation and 40% of claims refused as not meeting the eligibility criteria.[6]

The Tariff Scheme

10. In 1998 a Northern Ireland Victims Commission, chaired by Sir Kenneth Bloomfield, was established to look at ways to recognise the pain and suffering felt by the victims of the troubles. The Commission responded to criticisms of the criminal injuries compensation process by recommending "an objective, independent and wide-ranging review of the fitness for purpose of the compensation system as it is operated in Northern Ireland".[7]

11. Following that review of compensation arrangements, which reported in June 1999,[8] a revised scheme was introduced from 1 May 2002 by the Criminal Injuries Compensation (Northern Ireland) Order 2002. This scheme, known as the 'Tariff Scheme', differed from the earlier one in that it provided for set compensation award levels for each kind of personal injury and for death. The legislation also provided for the removal of paid legal assistance from the scheme to be replaced by support and help from Victim Support (NI), and for time-barred past victims of child sex abuse to make a fresh claim.

12. During a debate on the proposed draft Criminal Injuries Compensation (Northern Ireland) Order in 2001 the then Parliamentary Under-Secretary of State for Northern Ireland, Mr Des Browne MP, described the new scheme as "straightforward, transparent and simple for victims to understand. It gives victims a good idea from the start of how much money they are likely to get and pays out more quickly than the present scheme."[9]

13. In his evidence to us the Minister, Mr John Spellar MP, stated that the main Government aim in introducing the tariff-based scheme was "to reduce the cost both to government and indeed also to claimants".[10] Although early indications are that the number of claims under the new scheme have reduced by around 4,000 per year it is perhaps too early to judge whether this is a result of the introduction of the new scheme. It was suggested to us that the overall reduction in the level of crime might also be a factor.[11]

14. The reduction in costs to the claimant was to be achieved through the simplification of the scheme thereby removing the need for complex and expensive legal assistance. Support and help in making a claim for compensation can be provided through Victim Support Northern Ireland (VSNI), a voluntary organisation set up to help people come to terms with the experience of a crime. However, we found that more than half of claimants are still using solicitors to make their claims and these legal costs inevitably came out of any award. Just over 20% of claims submitted are supported by VSNI.[12] The Minister told us:

"… I am slightly concerned that something like 55 per cent of claimants are still using solicitors in order to put in claims. …I would hope that there would be a very clear message to claimants that they do not need to go that route."[13]

15. The Association of Personal Injury Lawyers (APIL) reiterated its strong opposition to the use of a fixed tariff scheme and expressed concern "that the Compensation Agency does not allow for the recovery of any legal costs by legal representatives aiding in either the completion of claim forms or indeed in any aspect of the claim". It suggested that "few victims are using the VSNI to help process their claims" and it questioned the capacity of VSNI "to adequately cope with additional work load produced by the scheme". [14]

16. VSNI accepts that the introduction of the Tariff Scheme has been challenging and has major resource implications for the organisation. It states:

"At present we are awaiting a review of the service by Business Consultancy Service (NIO) who will look at staffing and other resource requirements, to ensure we are in a position to meet the needs of victims who wish to apply to the scheme."[15]

VSNI also believes that further work is needed to promote its services and to raise public awareness of the Tariff Scheme.

17. We are concerned that, having withdrawn financial support for legal assistance in making a claim for criminal injuries compensation, steps were not taken to ensure that adequate alternative help and support is available for all potential applicants. We call on the Minister to undertake an urgent review of the capacity of Victim Support Northern Ireland to provide assistance to all applicants, and to take steps to ensure that applicants are fully aware of the options open to them.

Teething problems

18. A number of initial problems have made it somewhat difficult to assess the impact of the introduction of the Tariff Scheme on the performance of the Agency. The processing of claims is heavily reliant on IT systems intended to deliver faster decisions. Applications and supporting documentation are scanned onto a computer system removing the need to handle large heavy case files. Instant access is then available to electronic files enabling more efficient processing and administration of claims. We were assured that initial teething problems with the IT system have been largely overcome and we were also assured that adequate back-up procedures are in place to cope with any potential failure of the system.[16]

19. In processing a claim the Agency seeks a medical report from the appropriate accident and emergency department. When planning for the introduction of the Tariff Scheme the Agency had not anticipated any difficulties in obtaining these reports:

"However, when we reached a stage where we were starting to request medical reports and statements, it became clear to us that each of the hospitals and trusts was treating the requests differently, both in terms of how they responded to it and what they charged for it. When you take account of the fact that these variations extended across all of the hospitals and trusts in Northern Ireland, it became apparent that this was an extremely major problem and medical reports just stopped being received."[17]

20. We were pleased to learn that following visits to each hospital by Agency staff and meetings with the British Medical Association this problem has been resolved. We have been reassured that the Agency is "now at a stage where the number of decisions being made is starting to exceed the number of new claims coming in."[18]

21. VSNI supports the view that initial teething problems have generally been resolved:

"It was our experience, in approximately the first 18 months of the scheme, that the Compensation Agency were taking longer than originally anticipated to make decisions…These matters appear to be resolved, in the main."[19]

Key Performance Target

22. Under the old criminal injury compensation system the Agency had set and achieved a target of an average of 45 weeks to reach a decision on a claim. The initial target set by the Agency under the Tariff Scheme was to reach a decision on 45% of claims within twelve months and over the next few years to increase the target to 90% of claims decided within twelve months. We appreciate that there have been some initial problems associated with the introduction of the new Tariff Scheme. However, we recommend that the Agency reviews its targets for processing claims and sets more challenging, while still achievable, targets year on year.

23. As well as processing claims under the new Tariff Scheme the Agency has a considerable backlog of cases still outstanding under the old scheme (the 1988 Order). Unlike the Tariff Scheme, where the Agency will pursue the necessary medical and other documentation, claims under the 1988 Order were 'applicant led'. This means that it was the responsibility of the applicants or their legal representatives to provide the necessary accountancy, medical or other reports to support their claim, and lengthy delays have occurred particularly in complex cases. Indeed the oldest outstanding case dating back some twelve years remains open because the applicant's solicitors have lost contact with their client and the case cannot be closed without the applicant's consent.[20]

24. At 5 December 2003 there were 9,496 unresolved claims under the 1988 Order and a further 4,200 cases under appeal. Nearly 90% of these claims originated in the last four years with the remainder stretching back as far as 1991-92.[21] Although this is a very large number of claims still requiring a decision, we recognise that it was much higher and the Agency has achieved considerable success over the last few years. The Minister told us that the number of outstanding cases had been about 27,000 in 2001 and this increased further to 29,000 in 2002 before being reduced to the present level of 13,696.[22] The Agency also expressed optimism that the vast majority of the remaining cases would be cleared within a year.[23] We commend the success of the Agency staff in reducing the outstanding claims under the 1988 Order, and we urge them to continue their efforts to deal with the remaining cases as quickly as possible.

Recovery from Offenders

25. Where compensation is paid to the victim of a violent crime the legislation enables the Agency to recover all or some of that compensation from the person who has committed the offence. We noted from the Agency's Annual Report for 2002-03 that there were 1,129 claims settled during the year where an offender was identified but no recovery was sought from that offender.

26. The Agency explained that the policy is to restrict the use of the recovery powers to cases where offenders themselves become entitled to compensation from public funds at a later date. It had proved difficult to recover directly from the offender's earnings or assets.[24] A formal court order was required and reliable information on the offender's financial status in support of a court order was difficult to obtain. Enforcement was also frequently ineffective. The present policy, which dates back to 1991, has been revisited on a number of occasions. The Agency argues that:

"the original arguments still apply and indeed are strengthened by the intervening powers of the court to award compensation to a victim from the offender as part of the original criminal action".

Under the current policy the Agency has recovered almost £3 million from 1,150 offenders in the past five years.

27. We recommend that the Minister undertake a review of the current policy in relation to recovery of compensation, which restricts the use of recovery powers to cases where offenders themselves subsequently become entitled to compensation.

Child sexual abuse cases

28. The 2002 Order enabled past victims of child sexual abuse who were time-barred from receiving compensation to make a fresh claim in accordance with the statutory provisions that prevailed at the time of the incident. This was a very welcome provision and it "meant that claims could be made by anyone who had been abused in their childhood, regardless of the time which had since elapsed".[25] However, no changes were made to any other provisions of the earlier legislation and we believe this has resulted in a serious flaw in the legislation. In effect if a victim claims to have been abused before 1988, but lived in the same household as the perpetrator at the time of the abuse, he or she is barred from claiming compensation.[26]

29. We recognise that many victims of child sexual abuse only come to terms with that abuse years later. It is, therefore, important that when they do come to terms with it they are not debarred from claiming compensation. In one such case the legislation has been challenged recently through a judicial review on the grounds that it contravenes human rights legislation. However, we understand that the judicial review has rejected the case and upheld the view that the legislation debars a claim. The Minister indicated that he wished to examine the reasons for the decision in the judicial review before considering the issue further.[27]

30. We are very concerned that flaws in the law governing compensation have resulted in some child sexual abuse victims being unintentionally debarred from claiming compensation. We urge the Minister to take steps as a matter of urgency to remove this barrier.

Scar viewing

31. It is the practice of lawyers to view scars resulting from physical injuries as part of the process of settling the level of compensation payable in criminal injury compensation cases. In 2002 this practice attracted considerable media attention following complaints by two female applicants who had been injured in the Omagh bomb[28]. As a result of those complaints an independent review, set up by the then Parliamentary Under-Secretary of State, Des Browne MP, was carried out by Professor Desmond Greer, Faculty of Law, Queen's University Belfast.

32. Professor Greer's report, which was published on 21 January 2004, concluded that the viewing of scars in connection with claims under the 1988 Order should continue but he made a number of recommendations to refine the current practice. Commenting on the Report the Agency said that:

"one of the things which Professor Greer has identified is the fact that many applicants believe that it is in their interests to have their injuries viewed by the compensating organisation. Many want to go through that procedure."[29]

We recognise that the need for lawyers to view scars will be much reduced under the Tariff Scheme.[30]

33. We welcome the commitment by the Minister to give detailed consideration to the recommendations in the Greer Report on scar viewing, in consultation with the legal profession.

5 Report of the review of Criminal Injuries Compensation in Northern Ireland, Sir Kenneth Bloomfield KCB, June 1999. p27. Back

6 Ev 15 para 7.1.1 Back

7 "We will Remember Them", Report of the Northern Ireland Victims Commissioner, Sir Kenneth Bloomfield KCB, April 1998 Back

8 Report of the review of Criminal Injuries Compensation in Northern Ireland, Sir Kenneth Bloomfield KCB, June 1999. Back

9 Northern Ireland Grand Committee, Thursday 13 December 2001 Back

10 Q66 Back

11 QQ2-3 Back

12 Ev 31 Back

13 Q66 Back

14 Ev 29 Back

15 Ev 32 Back

16 Ev 15 para 7.1.2; QQ7-10 Back