Cunningham Cummins and Another v The Criminal Injuries Compensation Tribunal and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Mary Rose Gearty
• Judgment Date: 23 February 2024
• Neutral Citation: [2024] IEHC 143
• Docket Number: [2022 No. 891 JR]

Between

Eddie Cunningham Cummins and Erica Cunningham Cummins (Suing by Her Mother and Next Friend Michelle Cunningham)

Applicants

and

The Criminal Injuries Compensation Tribunal and The Minister for Justice

Respondents

[2024] IEHC 143

[2022 No. 891 JR]

THE HIGH COURT

Judgment of Ms. Justice Mary Rose Gearty delivered on the 23 ^rd of February 2024

1. Introduction

1.1 The Applicants are the children of a man who was shot dead at his doorstep. The issue is whether a decision to exclude them from a compensation scheme due to their father's criminal conduct was one which this Court should quash.

1.2 The Applicants claim compensation from the Criminal Injuries Compensation Tribunal (“the Tribunal”) which was set up to pay compensation to those who suffer personal injuries as a result of crimes of violence. The Compensation Scheme (“the Scheme”) extends to the dependents of those who are victims of a fatal attack.

1.3 The Tribunal refused to pay any compensation to the Applicants on the grounds that the conduct or character of their father made it inappropriate to do so. The Applicants contend that the Scheme was misinterpreted, that the decision was ultra vires the powers of the Tribunal and that the decision was unreasonable.

1.4 The language of the provision, the context of the Scheme and the public policy aim of preventing criminals from obtaining compensation for injuries inflicted as a result of their criminal activities, all align to persuade me that I should not quash the Respondent's decision. The decision was taken within the limits of the Tribunal's powers, it was reasonable and proportionate, and its rationale was clear.

2. Procedural and Evidential History

2.1 Eddie Cummins died on the 13 ^th of August 2005. One of his children was under 2 years old and the other not yet born. They are clearly blameless victims of this cowardly act. The victim was shot four times at close range by a gunman who ran to a waiting getaway car. He was never apprehended. The vehicle was found, burnt out, over a mile from the scene. The victim had 27 previous convictions. The Respondent ruled that his dependants are not entitled to claim compensation due to a provision in the Scheme that prevents or reduces an award in circumstances where the victim's conduct, character or way of life, makes this inappropriate.

2.2 On the 7 ^th of March 2011, these Applicants, through their mother, made their application. No point is taken in respect of delay given the age of the children at the relevant time, mirroring a similar approach in civil liability cases generally.

3. The Criminal Injuries Compensation Scheme and the Onus of Proof

3.1 The provision of the Scheme on which the Respondent Tribunal relies to deny the Applicants' right to compensation is paragraph 13, which provides that:

“ No compensation will be payable where the Tribunal is satisfied that the conduct of the victim, his character or his way of life make it inappropriate that he should be granted an award and the Tribunal may reduce the amount of an award where, in its opinion, it is appropriate to do so having regard to the conduct, character or way of life of the victim.”

3.2 A similar provision has been the subject of a judgment by Ní Raifeartaigh J. in the separate cases of Doyle and Kelly v. Criminal Injuries Compensation Tribunal, decided together at [2020] IECA 342. There, it had been argued that the same Scheme (in an earlier version), was contrary to European Union Law as contained in the relevant Directive and insofar as it constituted unlawful discrimination against those applicants. The exclusion there, at paragraph 14 of that Scheme, was in practically identical terms. Both Doyle and Kelly had criminal convictions and anticipated that paragraph 14, with the same references to conduct, character and way of life, would be used to deny them any award. Each took a case to prevent this outcome.

3.3 One of the arguments put forward in Doyle was that paragraph 14 constituted discrimination against persons who were “unfortunate enough to have criminal records.” I do not think, and neither did the Court of Appeal, that this is misfortune but a matter of choice. Were it otherwise, our criminal justice system would not be fit for purpose. Our system rests on the principles that those who commit offences are responsible and that imprisonment deters and punishes. These principles make no sense if committing crime is a matter of bad luck rather than a matter of choice.

3.4 The Court of Appeal in Doyle relied on the judgment of the European Court of Justice in Presidenza del Consiglio dei Ministri v. B.V., C-129/19; ECLI:EU:C 220:566, noting that the Scheme must be interpreted as implementing Council Directive 2004/80. Doyle confirms that Irish citizens have a right to compensation if they are the victims of violent crime; whether that crime occurs in Ireland or has a cross-border element is immaterial. However, Ní Raifeartaigh J. held that it was a legitimate policy decision to deny an award to a claimant on the grounds set out in paragraph 14, as long as the decision to do so was not arbitrary or inconsistent.

3.5 At paragraph 57, Ní Raifeartaigh J. refers to the European Convention on the Compensation of Victims of Violent Crimes. Her description is instructive:

The Convention envisaged that compensation would be payable to victims from public funds for offences which were intentional, violent and the direct cause of serious bodily injury or damage to health… Article 8 provides that compensation may be reduced or refused on account of the victim's or the applicant's conduct before, during or after the crime, or in relation to the injury or death; compensation may also be reduced or refused on account of the victim's or the applicant's involvement in organised crime or his membership of an organisation which engages in crimes of violence; and compensation may also be reduced or refused if an award or a full award would be contrary to a sense of justice or to public policy (ordre public).

3.6 The Doyle judgment sets out the history and context of the Scheme in detail and, at paragraph 65, notes that virtually all Member States who had adopted a similar scheme by 2008 had provided for a reduction or refusal of an award where the victim contributed to his injuries and that the majority of schemes did not preclude an award (in whole or in part) on the grounds of previous convictions alone. The case is silent on the issue of dependents, a question that did not arise.

3.7 While the applicants failed in their main argument in Doyle and Kelly, that the Scheme discriminated against them, they succeeded insofar as the Court of Appeal agreed that the Tribunal was required to be consistent and transparent. Since then, the Respondent Tribunal has established a system whereby cases are summarised and the rulings and relevant reasoning in sample cases are made publicly available.

3.8 In McDonagh v. the Legal Aid Board [2018] IEHC 559, Burns J. held that the Board had clearly misinterpreted a provision under the relevant legal aid scheme but confirmed that the courts will only interfere with the decision of a body administering such a scheme in exceptional circumstances. The onus is on these Applicants to prove that the Respondent has clearly misinterpreted the relevant provision or has acted so unreasonably that its decision must be quashed.

3.9 The Applicants argue that they are unfortunate enough to have been dependent on a man who had criminal convictions and that they, being entirely innocent of any criminal activity, ought not be excluded from this scheme. They argue that paragraph 13 limits the refusal of an award to applications by the victim only, where his conduct requires it, but not to other applicants, such as his dependents.

3.10 There are three reasons to apply the limitation in paragraph 13 to the Applicants' right to compensation here: the wording of the provision itself, consistency within the Scheme and within its legislative context, and, compellingly, as a logical extension of legitimate public policy reasons.

4. Interpretation and Context

4.1 On the plain wording of paragraph 13, there will be no award in the case of a victim whose lifestyle makes it inappropriate to award anything to him. There is no express term restricting this denial of compensation to victim applicants only. The Applicants argue the opposite, effectively, saying that if the award is to be denied, the provision should be read narrowly and applied only to the victim who is himself the applicant. It appears to be grammatically correct to read the provision either way. The paragraph describes only the lifestyle of the victim, not his dependents. It is silent as to the merits of the applicant, who may be the victim himself, one who is responsible for the maintenance of the victim, or one of his dependents. Arguably, all these are categories of claimant who may apply but who may not receive an award if the victim himself would not have received an award.

4.2 There are other paragraphs in the Scheme which refer to claimants and dependents, although this one does not, it refers only to the victim. I was urged to read the provision narrowly, as a result. But it seems to me more important to read it in its context. The phrase does not mean, in my view, that this paragraph is confined to the victim-applicant and nobody else. The opening words of the provision are unambiguous: “No compensation will be payable…”. It might have been clearer if it had added in any case or to any claimant, but only one interpretation confines the limitation to the victim applicant alone, and this is not the obvious interpretation. It is equally possible, just looking at the language and without considering its context for the moment, that this provision bars compensation in all cases, involving any kind of applicant, where...