Bowes v The Criminal Injuires Compensation Tribunal ; Brophy v The Criminal Injuries Compensation Tribunal

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice David Holland
• Judgment Date: 20 December 2022
• Neutral Citation: [2022] IEHC 703
• Docket Number: RECORD NO. 2021/903/JR

Between

Philip Bowes

Applicant

and

The Criminal Injuires Compensation Tribunal, The Minister for Justice, Ireland and The Attorney General

Respondents

Between

Jason Brophy

Applicant

and

The Criminal Injuries Compensation Tribunal, The Minister for Justice, Ireland and The Attorney General

Respondents

2022 IEHC 703

RECORD NO. 2021/903/JR

RECORD NO. 2022/2/JR

THE HIGH COURT

JUDICIAL REVIEW

Judgment of Mr Justice David Holland delivered the 20 ^th of December 2022

Contents

INTRODUCTION & THE FACTS	3
Chronology – The Schemes, The Compensation Directive, BV, Doyle & Kelly & The Facts & Comment thereon	4
The 1986 Scheme	5
The Compensation Directive	7
CJEU judgment in Case C-129/19 (“BV”)	9
Doyle & Kelly v CICT	12
The 2021 Scheme	13
The Assaults & Injuries	22
THE RELIEFS SOUGHT	25
EFFECT OF THE 2021 SCHEME ON THE 1986 SCHEME	26
BOWES – AMENDMENT OF GROUNDS — FETTERING DISCRETION	26
AWARENESS OF THE SCHEME & AFFIDAVIT of Niall Cullen Sworn 9 November 2011	28
LEGAL STATUS OF THE CRIMINAL INJURIES COMPENSATION SCHEMES & TRIBUNAL	30
PRELIMINARY ISSUES	32
Justiciability	32
Judicial Review or Plenary Proceedings?	33
Standing	34
Standing generally	34
Must the Applicants show an arguable case to make to the CICT that their circumstances are exceptional?	35
1986 Scheme — Exceptional Circumstances	36
CICT Practice as to Extension of Time under the 1986 Scheme – is it Relevant?	43
Application of the foregoing to the Applicants	44
THE SUBSTANTIVE ISSUES	46
Interpretation of The 2021 Scheme – Retroactivity & Retrospectivity — Limitations	46
Retrospective/Retroactive	47
Vested Rights	54
Literal Meaning of §20 of the 2021 Scheme	60
Equivalence & Effectiveness	62
Effectiveness	64
Equivalence	74
Equivalence — Present case — Comparator	88
Purposive Interpretation	94
Conclusion – Interpretation & Effectiveness	94
Disapplication	94
Constitutionality	96
Remedy	96

INTRODUCTION & THE FACTS

1 The essential question is the same in both these cases: does the two-year “backstop” 1 time-limit from the date of the violent criminal event causing injury, within which compensation claims may be made to the First Respondent (“the CICT”) pursuant to the Criminal Injuries Compensation Scheme 2021 2 (“the 2021 Scheme”), shut out the claims of Mr Bowes and Mr Brophy, whose injuries predate the adoption of the 2021 Scheme by the Government and who had not made claims under the predecessor Criminal Injuries Compensation Scheme 1986 (“the 1986 Scheme”). If the backstop applies, and given the chronology in each case, both claims were shut out immediately on the adoption of the 2021 Scheme.

2 Though nothing relevant to my decision turns on the fact, I am told that these two are test cases for other similar cases.

3 The proceedings take the form of judicial reviews seeking to quash the respective decisions of the CICT to reject the Applicants' compensation claims in limine as made outside the two-year backstop time limit set by §20 of the 2021 Scheme, and various other declaratory reliefs. The Respondents (collectively “the State”) raise a number of preliminary issues – as to justiciability, standing and the form of the proceedings.

4 On the substantive issues, the Applicants argue that

The Applicants also argue that the 2021 Scheme is unconstitutional by reason of the retrospective application of the backstop time limit.

• • the right to compensation is an EU law right derived from Directive 2004/80/EC (“the Compensation Directive”) and

• • its implementation by the 2021 Scheme, in exercise of the State's procedural autonomy at EU law, in particular by §20 of the 2021 Scheme which stipulates the two-year “backstop” time-limit, breaches the principles of Equivalence and Effectiveness – both general principles of EU law — such that the CICT is obliged to disapply the §20 time-limit imposed by the 2021 Scheme.

5 The Applicants do not in these proceedings challenge the absence in the 2021 Scheme of provision for the award of compensation equivalent, in form and/or in quantum, to general damages for pain and suffering. They cite Doyle & Kelly 3, Chakari 4 and Keogh 5 – I think correctly – to the effect that it would be premature to do so until a compensation award has been made refusing them such compensation. They intend to mount such a challenge if they succeed in getting their present applications before the CICT and fail in seeking such compensation from the CICT.

Chronology – The Schemes, The Compensation Directive, BV, Doyle & Kelly & The Facts & Comment thereon.

6 As the facts are relatively simple and not in dispute in both cases and as their chronological sequence is relevant, I will combine the facts of the Bowes and Brophy cases and the evolution of the Schemes 6 and the legal framework in which they sit, in a single chronology. The entries will require elaboration in due course but will serve as a general introduction.

Date	Event
1974	The 1974 Scheme The first iteration of the Scheme is adopted 7. It was an administrative (i.e. non-statutory) scheme offering ex gratia compensation to victims personally injured in Ireland as a direct result of violent crime. Compensation included general damages/damages for pain and suffering. 8
Comment	• I have not seen a copy of the 1974 Scheme. • What is meant by ex gratia compensation is that there was no legally enforceable right to this compensation 9. • The Law Reform Commission (“LRC”) says 10 that awards under the 1974 Scheme were intended to mirror those in civil tort claims.
1986	The 1986 Scheme The second iteration 11 of the Scheme is adopted 12. It provided, inter alia, as follows: • §6. Compensation is payable on the basis of damages awarded under the Civil Liabilities Acts 13 – subject to listed exceptions, including ○ (a) exemplary, vindictive, or aggravated damages ○ (e) for pain and suffering from injuries sustained on or after 1 st April 1986 • §16. The Tribunal will deduct from the amount of an award under this Scheme any sums paid to .. the victim … by way of compensation or damages from the offender or any person on the offender's behalf following the injury. • §21. Applications should be made as soon as possible but, except in circumstances determined by the Tribunal to justify exceptional treatment, not later than three months after the event giving rise to the injury. In the case of an injury arising out of an event which took place before the commencement of the Scheme, the application must be made not later than three months from the date of the commencement (subject, also, to the foregoing exception). • §24. The Tribunal's staff will process applications in the first instance …
Comment	The Scheme remained administrative (i.e. non-statutory) and compensation remained ex gratia. Though, save in the case of fatal injury, no damages are, strictly, “ awarded under the Civil Liabilities Acts” 14, it is generally considered that the phrase encompasses tortious liability for personal injury. The major practical change wrought by the 1986 Scheme was its exclusion, by way of exception to the general principle of compensation on the basis of damages awarded under the Civil Liability Acts, of compensation for general damages/damages for pain and suffering. 15 It will be noted that in §21: • The possibility of extension in exceptional circumstances of the three-month time limit was not subject to any backstop time-limit. • Transitional provision was made for the application of the time-limit as to claims arising out of events which preceded the commencement of the Scheme. The Tribunal's staff are Department of Justice officials assigned to the task 16. The LRC record 17 criticism of the 1986 Scheme – inter alia: • on the basis that lack of awareness of the Scheme hindered its accessibility • for its removal of compensation for “pain and suffering”.
To 2004	The adoption of the Compensation Directive was preceded by developments on the European stage over several decades as described in Doyle & Kelly 18 and which I need not repeat here.
2004	The Compensation Directive was adopted. • Recital (1) says that measures to facilitate compensation to victims of crimes should form part of the realisation of the protection from harm of persons exercising their EU Law right of freedom of movement. • Recital (3) describes its purpose as to set minimum standards for crime victims' access to justice and rights to compensation. • Recital (6) states that crime victims should be entitled to fair and appropriate compensation for their injuries. • Recital (7) states that all Member States should have a compensation mechanism. • Recital (10) notes that crime victims will often not be able to obtain compensation from the offender, since the offender may lack the means to satisfy a judgment or may not be identified or prosecuted. • Recital (13) states that the system should provide for allowing the victim to find the information needed to make the application. • Article 12(1) provides that “ The rules on access to compensation in cross-border situations drawn up by this Directive shall operate on the basis of Member States' schemes on compensation to victims of violent intentional crime committed in their respective territories.” • Article 12(2) provides that “ All Member States shall ensure that their national rules provide for the existence of a scheme on compensation to victims of violent intentional crimes committed in their respective territories, which guarantees fair and appropriate compensation to victims.” • Article 18 requires implementation of the Directive by 1 January 2006. • Article 4 requires that “ Member States ensure that potential applicants for...