Compensation for Victims of Crime under the Criminal Injuries Compensation Scheme in Ireland

In a recent Irish High Court case, the issue of the fairness and adequacy of the State compensation awards were considered. The question was ultimately referred to the European Court of Justice.

Background

In the recent Irish High Court case of Blanco v. Criminal Injuries Compensation Tribunal & Others¹, Ms Justice Emily Egan examined the workings of the Criminal Injuries Compensation Tribunal (CICT), which administers the Criminal Injuries Compensation Scheme (the Scheme), the state-operated compensation scheme for victims of crime. Alejandro Blanco, the Plaintiff, was a qualified software engineer born in Spain but resident in Ireland. He was seriously injured in a criminal assault outside his home in July 2015. He suffered eye injuries in the assault involving pain and partial loss of vision in his left eye and double vision in both eyes, a fractured jawbone, partial immobilisation of his left arm, a chipped tooth, stress and anxiety. He lost his employment as a result of the injuries. He applied to the CICT for compensation within the required timetable. After a considerable delay, in February 2019 he was awarded the sum of €645.65 by the tribunal. This amount equated precisely with his out-of-pocket expenses, principally the cost of replacing glasses broken in the assault and the A&E admission fee, but it made no award for pain and suffering or for any loss of earnings.

Mr Blanco was dissatisfied with this outcome and issued proceedings against the CICT, the Minister for Justice and Equality, Ireland and the Attorney General seeking a declaration that the scheme of compensation operated by the CICT was incompatible with the State’s obligations under Council Directive 2004/80/EC. In his proceedings he argued the Defendants 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 are seventeen similar cases currently before the Irish Courts seeking enhanced compensation.

The Scheme

The Scheme was originally set up by the Irish Government in 1974 in the aftermath of the Dublin and Monaghan terrorist bombings. It has always operated on a non-statutory basis being dependent for annual Dáil votes for its continued funding. This arrangement limits the amounts of compensation paid by the Tribunal since it must at all times operate within its allocated budget. Prior to 1986, the Scheme did pay compensation for non-material losses, including pain and suffering, but this entitlement was removed due to the severe financial difficulties of the State at that time. Since 2004 the State has been required to implement the EU Compensation Directive and it has deemed that the pre-existing scheme would be the vehicle to meet this requirement. The Scheme has been amended twice since that time, most recently in 2021, but these amendments did not result in changes to the original terms.

Alongside the Scheme, the Victim’s Charter (the ‘Charter’), originally published in 1999, was updated in 2021 to meet the broader obligations of the criminal justice system in providing access to information for victims, pursuant to Articles 4 and 6 of the Directive. ² The Charter represents a non-legally binding guide that provides information and support services to victims of crime, outlining their rights within the criminal justice system.³ The services featured in the Charter are funded and operated independently of the State.⁴

Review of related cases

The Court in Blanco v. Criminal Injuries Compensation Tribunal examined the recent related cases both in the Irish and in the EU courts. The Court of Justice of the European Union (CJEU) was recently asked to adjudicate on the adequacy of the compensation award in an Italian case, known as the BV case.⁵ In that case, under the Italian state scheme, a fixed sum of €4,800 compensation for pain and suffering had been paid to a victim of sexual violence. The Court was asked to consider whether this amount constituted “fair and appropriate compensation” as required under Article 12(2) of the Compensation Directive.

The CJEU held that this sum was not fair and appropriate and did not represent an appropriate contribution to the reparation for the material and non-material harm suffered. In short, it concluded that a fixed sum could not be appropriate in all cases. At the same time, it recognised that discretion of a member state to set the amounts of compensation and the need for any scheme to be financially viable. It held that the member state would exceed its discretion if the compensation awarded was “manifestly insufficient having regard to the seriousness of the damage for the victims”.

The BV ruling was considered in by the Irish Court of Appeal in the paired cases of Doyle and Kelly v. Criminal Injuries Compensation Tribunal & Others.⁶ The appellants in Doyle and Kelly had argued the CJEU ruling that some account is taken of the seriousness of the harm suffered by the victims effectively required the Irish Scheme to permit some award to be made for damages for pain and suffering. The Court of Appeal held that arguments had been presented in the BV case that supported the positions of both the appellants and the respondents. Furthermore, crucially, the CJEU had stopped short of definitively signalling that a member state must provide compensation for pain and suffering. Presumably, the Court meant by this that the CJEU had not concluded that such an award must be made by a member state in all cases, merely that the Italian award of €4,800 to the victim in the BV case was insufficient to satisfy the Directive’s requirements.

The Court of Appeal in Doyle and Kelly also considered the recent Irish Supreme Court case of Director of Public Prosecutions v Steven Duffy, which involved a criminal appeal.⁷ The Court reiterated all of the principles enunciated in the BV case and concluded that fair and appropriate compensation by the Scheme did not need to be the same amount as an offender might be ordered to pay in full reparation but that awards must have regard to the seriousness of the consequences of the crime for the victim. This ruling effectively puts an upper limit on a pain and suffering award under the Scheme but again does not definitively conclude that a victim has an entitlement to a pain and suffering award under the Scheme. The Charter also highlights the restriction on receiving compensation for pain and suffering, reinforcing this limitation. ⁸

Referral to CJEU by Ms. Justice Egan

Faced with the continuing uncertainty of the administration of the Scheme and with the fact that there were seventeen outstanding similar cases, Ms. Justice Egan concluded that the matter necessitated a formal referral to the Court of Justice to resolve the issues. She therefore framed five questions to be addressed by the EUCJ:

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?

Conclusions

Currently a reference to the CJEU is taking around sixteen months for a reply. The earliest likely response will be in the latter half of 2025. If the CJEU decides that changes to the Irish scheme are required, it will be for the Irish Government to decide how it will deploy its discretion in future cases by a modification to the existing scheme. If it is agreed that appropriate compensation for pain and suffering must be paid, this will need to be framed in a form that can be implemented by the Tribunal and overseen by the Courts. One option for the Government would be to identify a percentage of the Personal Injury Guidelines as identifying the appropriate level of compensation.

At present the Scheme is funded by annual cash grants. This should be changed to a full statutory basis, as was recommended by the Law Reform Commission in 2019. In 2021, the Government indicated a willingness to make this change but there has been no evident progress to date.

It is to be hoped that the Scheme can receive a significant modernisation and overhaul. Future victims should be appropriately granted their rights as enunciated in the Charter, as well as the fair and appropriate compensation that they deserve.

While the decision of the CJEU in the Alejandro Blanco reference is awaited, it is to be expected that further plaintiffs who are dissatisfied with the exclusion of any ability to claim damages for pain and suffering, will bring proceedings against the CICT, the Minister for Justice, Ireland and the Attorney General and that the number of such challenges will increase.