Killian Flood BL

The judgment, delivered by Ms Justice Úna Ní Raifeartaigh, rejected arguments that legal aid should be provided to people availing of the scheme. The court also ruled that the Tribunal could take an applicant’s criminal history in account when determining the level of compensation that should be awarded in a case.

The court further said that “complete absence” of information about how the Tribunal would decide the appellants cases was a clear breach of constitutional fair procedures and a failure to reflect the EU right to compensation for the victims of crime.

Background

The appellants were both injured in unrelated criminal cases. The first appellant, Mr Paul Doyle, had suffered serious brain injuries in April 2014 after being assaulted with an axe after a row with another man. The second appellant, Mr Gary Kelly, had presented to gardaí in 2016 after being assaulted and required a hospital visit. In both cases, the appellants had significant criminal histories spanning several decades.

The Scheme of Compensation of Personal Injuries Criminally Inflicted provided that the Tribunal was entitled to take into account the “conduct, character or way of life” of the victim when making a compensation award and the appellants anticipated that any compensation they could receive would be reduced based on their criminal records. The appellants were also faced with funding their own costs for the Tribunal proceedings because legal costs were not recoverable under the Scheme, even for successful applicants. The appellants claimed that the lack of legal aid precluded them from making an application. The appellants subsequently brought judicial review proceedings challenging the Scheme but were unsuccessful in the High Court.

Court of Appeal

The appeals mainly concerned submissions that the Scheme was contrary to EU law, specifically to Council Directive 2004/80 relating to compensation to crime victims. The Grand Chamber of the CJEU had ruled in the recently decided Italian Presidency of the Council of Ministers v. B.V. (Case 129/19) case that there was a right to compensation for crime victims under the Directive, which was an important clarification in the appeals. In light of the B.V. case, the court shifted its focus onto the extent of the right to compensation in Ireland and whether it impacted the Tribunal’s procedures.

The court quoted extensively from the B.V. case and identified a number of points regarding the nature and scope of EU law and criminal compensation in Ireland. These points included that Member States had a discretion on the appropriate compensation, that it was not necessary for the compensation to be “the complete reparation of material and non-material loss,” and that a relevant consideration was the financial viability of the scheme.

In considering whether the appellants were entitled to legal aid for the Tribunal hearing, Ms Justice Ní Raifeartaigh noted that an application to the Tribunal was not a court proceeding and was not adversarial in nature. Moreover, the Tribunal procedure was deliberately designed to be as simple as possible, which would in theory negate the need for an applicant to be represented by lawyers. The aims of the Tribunal procedure were ease of access and being low-cost to ensure the financial viability of the scheme. In these circumstances, the court held that it was proportionate that legal aid was not available for the scheme.

The court also rejected the appellants’ arguments that it was unfair for the Tribunal to take their previous convictions into account under the “conduct, character or way of life” consideration. Ms Justice Ní Raifeartaigh said that she was “absolutely persuaded” that the Tribunal was entitled to consider a person’s previous criminal history and lifestyle when considering a compensation claim. The court stated that it could not make any decision as to whether it was fair to reduce the appellants’ compensation awards due to their criminal records because the Tribunal had not yet ruled on the compensation award in the case.

Despite these findings, Ms Justice Ní Raifeartaigh was critical of the lack of information which was provided to the appellants about how the “conduct, character or way of life” consideration would affect their claims. The court noted that the Tribunal was not bound by precedent, but that it should still strive for consistency of outcome in similar cases. The problem was that the appellants had no access to information about previous cases, so there was no way for them to know if the Tribunal was being consistent and fair when considering their applications. In this way, the appellants’ right to fair procedures was breached. However, the judge was not satisfied that the vindication of the appellants’ rights went as far as requiring the Tribunal to trawl through 40 years of records and make any relevant decisions available to them. The court requested further submissions on this issue.

Conclusion

The court dismissed the appeals relating to legal aid and to the entitlement of the Tribunal to consider a person’s previous criminal convictions when making a decision. The court allowed the appeal that the appellants were provided with insufficient information as to how the Tribunal would decide their cases.