Compensation for Criminal Injuries in Ireland – a CJEU Update

In a previous article, which was published on this website and in the legal journal “The Parchment” (Spring 2025 edition pp. 10ff), I examined potential deficiencies in the Irish scheme for the compensation of victims of criminal injuries. Recent decisions have led to important guidance for practitioners.

In Blanco v Criminal Injuries Compensation Tribunal & Ors [2024] IEHC 171, the Plaintiff was dissatisfied with the award he received from the Criminal Injuries Compensation Scheme and issued proceedings in the High Court seeking a declaration that the Scheme was incompatible with the State’s obligations under Council Directive 2004/80/EC, relating to the compensation for victims of crime. The crux of his complaint was that the State had failed to provide a “fair and appropriate” level of compensation since the Scheme arbitrarily excluded any compensation for pain and suffering. The Court noted that there were (at that time) seventeen similar cases before the Irish Courts.

Analysis at First Instance

Ms Justice Egan examined related cases both in the Irish and EU courts, including a particularly important ruling in Presidenza del Consiglio del Ministri v BV (Case C129/19). In that case, the EU Court of Justice had held that the Italian scheme of compensation which mandated a fixed sum of €4,800 to be paid in respect of pain and suffering did not constitute “fair and appropriate compensation” as required under Article 12(2) of the Directive. While the CJEU had recognised, applying the principle of subsidiarity, that an individual member state had a discretion to formulate a scheme appropriate for its jurisdiction, it held that a fixed sum could not be appropriate in all cases and so the Italian scheme of compensation was not adequate in meeting the requirements of the Directive.

Faced with the continued uncertainty, as a matter of EU Law, in applying the BV principles to the Irish scheme, Ms Justice Egan made a formal referral to the Court of Justice framing five relevant questions which can be summarised as follows:

(1) Does the obligation imposed on Member States by Article 12(2) of Directive 2004/80/EC to provide fair and appropriate compensation require that a victim should be compensated for both material and non-material loss?

(2) What form of loss falls within the scope of “non-material loss”?

(3) Does pain and suffering fall within this scope?

(4) What relationship should “fair and appropriate” compensation bear to the damages in tort that would be awarded against a tort-feasor?

(5) Can the compensation under the established Irish scheme be regarded as “fair and appropriate” if a victim is awarded €646.65 as compensation for a serious eye injury?

Response of the EU Court of Justice (CJEU)

In responding to the Irish referral (C-284/24) the CJEU enunciated several important principles relating to the requirements of the Directive including:

1. Compensation under Article 12 is not necessarily required to ensure the complete reparation of material and non-material loss suffered by the victim of crime. The national court must determine what sum is “fair and appropriate” having regard to the seriousness of the damage suffered by the victims.
2. Following the ruling of the Court in Burdene (C-126/23) a victim refers to a natural person who has suffered harm, including physical, mental, or emotional harm or economic loss, which was directly caused by a criminal offence. This definition is clearly intended to include pain and suffering endured by the victims.
3. It follows that compensation provided for in Article 12(2) of Directive 2004/80 “must be capable, where appropriate, of contributing to the reparation of any non-material harm, including harm relating to pain and suffering”.
4. The Court of Justice noted that “a violent criminal assault such as that suffered by LD (sic. The CJEU refers to the Irish Plaintiff throughout its response as LD but in fact his name is Allejandro Blanco) may give rise to serious consequences, in respect of both material harm and non-material harm, inter alia by reason of pain and suffering, which must be reflected in the amount awarded.”
5. “Thus, in the present case, compensation for the harm suffered by LD (sic) cannot, subject to verification by the referring court, constitute fair and appropriate compensation.”
6. The Court ruled that Article 12(2) of Council Directive 2004/80/EC must be interpreted as precluding a national scheme on compensation to victims of violent intentional crimes which, as a matter of principle, excludes, as regards non-material harm, any compensation for pain and suffering endured by such victims.

Consequences of the CJEU Ruling

Armed with the ruling, in due course Ms Justice Egan will formulate her judgment in respect of the Blanco case. Given the terms of the ruling, however, the Government will likely be required to reformulate the CICT Scheme in accordance with the CJEU ruling.

It will also need to reconsider the funding model of the CICT which is currently funded by a retrospective levy of annual cash grants. The Law Reform Commission Consultation Paper on Compensating Victims of Crime (LRC CP67-2022) recommended that it should be moved to a full statutory basis of funding.

The CJEU judgement is of great interest to personal injury lawyers in several respects. In claims where victims of crime may not traditionally have had recourse to awards for compensation it is now important that clients be notified of their rights under the CICT Scheme to make a claim for both material and non-material loss, subject to the strict 3-month time limits under the Scheme. Failure on the part of a solicitor to properly notify the client may have serious repercussions and give rise to a claim in negligence.

The CICT Scheme does not allow for payment of legal fees. However, it may now be necessary for lawyers to consider the Victims Compensation Directive in tandem with the Charter and the case law of the courts in determining what is fair and appropriate compensation for non-material loss. Given the exclusion of recovery of legal fees, clients should be warned that the legal fees for representation will give rise to additional fees and allow that client the option of running such claims as a litigant in person.

The CICT Scheme in its present format allows deductions in order to factor in any sums recovered in a civil action. However oftentimes a litigant may not make a full recovery for a multitude of reasons such as lack of insurance or under insurance of the perpetrator or contributory negligence arguments. In those circumstances, there may be further scope to seek recovery of such shortfalls under the CICT Scheme.

By way of analogy, the compensation that might be awarded in a situation such as the Blanco case (i.e. loss of sight of an eye) is identified under the Personal Injury Guidelines (the Guidelines) as ranging from minor but permanent impairment of vision (compensatable in the range €15,000- €45,000) up to total blindness (compensatable by an award of €400,000- €500,000).

In addition, the CJEU have also recognised that non-material damage will also include elements of psychiatric injury. Again, by way of analogy, the quantum identified in the Guidelines ranges from minor psychiatric injuries (between €5,000 – €15,000) and severe psychiatric injuries (between €80,000- €170,000).

Whilst recognising that the any future CICT Scheme need not provide compensation commensurate with the sum that might be available in tort for the victims, the CJEU emphasised that awards must be fair and appropriate.

The most recent annual report for the Criminal Injuries Compensation Tribunal in 2024 noted that the Scheme paid out awards of €14.148 million and had operational costs of €974,133. It paid fees to Tribunal members of €227,168. It is likely that its annual budget will need to be significantly increased.

Reaction of the Department of Justice

The Department of Justice has issued a press release referring to the CJEU judgment, noting that “the Department of Justice, Home Affairs and Migration are giving careful consideration to the judgment … It is intended that existing and new applicants to the Scheme will be contacted by the CICT Secretariat with an update on this matter as soon as possible.”

In the light of the CJEU judgment, the CICT scheme will require an overhaul. Given that parties before the CICT may argue that the existing Scheme should be given a ‘conforming interpretation’ by the CICT itself (that is, should be automatically interpreted by the CICT as incorporating the terms of the CJEU judgement) the Department of Justice would do well to start drafting immediately.