Kelly & Doyle v Criminal Injuries Tribunal

• Jurisdiction: Ireland
• Judge: Ms. Justice Ní Raifeartaigh
• Judgment Date: 04 December 2020
• Neutral Citation: [2020] IECA 342
• Date: 04 December 2020
• Court: Court of Appeal (Ireland)
• Docket Number: [2019/283]

BETWEEN

PAUL DOYLE

APPELLANT

AND

THE CRIMINAL INJURIES TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

BETWEEN

GARY KELLY

APPELLANT

AND

THE CRIMINAL INJURIES TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2020] IECA 342

Donnelly J.

Ní Raifeartaigh J.

Power J.

[2019/283]

[2019/282]

THE COURT OF APPEAL

JUDGMENT of Ms. Justice Ní Raifeartaigh delivered on the 4th day of December, 2020

Nature of the Appeal

1 This is an appeal from a decision of the High Court (Murphy J.) refusing the reliefs sought by the appellants in judicial review proceedings. The issues in the proceedings arise in connection with the appellants’ (separate and unconnected) compensation claims to the Criminal Injuries Compensation Tribunal (hereinafter “the Tribunal) under the Scheme of Compensation of Personal Injuries Criminally Inflicted (hereinafter “the Scheme”). The main grounds of complaint relate to:

(1) the absence of any provision for legal aid and/or costs for applicants who apply for compensation under the Scheme;

(2) the presence of a provision in the Scheme which confers discretion on the Tribunal to disentitle an applicant from an award or to reduce an award on the basis of conduct, character or way of life (paragraph 14 of the Scheme);

(3) the absence of any method by which an applicant can access previous decisions of the Tribunal on the application or non-application of paragraph 14; and

(4) the exclusion of compensation for pain and suffering from the Scheme with respect to injuries suffered after 1 April 1986.

2 While some arguments based upon the Constitution were advanced, the bulk of the appellants’ case involves claims that the Scheme, insofar as it has the above features, is contrary to EU law and in particular Council Directive 2004/80 of 29 April 2004 relating to compensation to crime victims (hereinafter “the Directive”).

3 The Grand Chamber of the CJEU delivered an important judgment on the scope of the Directive in July 2020 in a case to which I will refer as “the B.V. case”. 1 This was not only after the judgment of the High Court in these proceedings but also after the hearing of the appeal. Following this significant decision, supplemental submissions were sought from the parties in light of the judgment, which contained among other things a clear statement that the Directive confers a right to compensation in respect of violent injuries intentionally inflicted on an individual even where there is no cross-border dimension to the incident. Thus, an Irish resident has a right to fair and appropriate compensation under the Directive where he or she has been the subject of such a crime within the State. The identification of such a right may have significant ramifications for a scheme which was until now conceived of as an ex gratia scheme falling squarely within the range of executive discretion. This judgment addresses some of those ramifications by addressing the four specific issues raised by the appellants, although, as will be seen, there are significant hurdles of prematurity to be addressed by reason of the fact that neither of the appellants’ compensation claims has yet been the subject of any Tribunal decision, or indeed proceeded past a very preliminary stage.

TABLE OF CONTENTS

By reason of the length of this judgment, I propose to set out a table of contents to assist the reader:

PART 1: BACKGROUND AND LEGAL FRAMEWORK - 6 -

Background - 6 -

Events and pleadings as they relate to Mr. Doyle - 6 -

The reliefs and grounds in Mr. Doyle's case - 9 -

Events and pleadings as they relate to Mr. Kelly - 10 -

The reliefs and grounds in Mr. Kelly's case - 12 -

The statements of opposition - 13 -

The High Court Judgment - 15 -

Relevant Legal Framework - 19 -

The Scheme of Compensation for Personal Injuries Criminally Inflicted - 19 -

European Developments preceding the introduction of Directive 2004/80/EC - 21 -

Council Directive 2004/80 relating to Compensation for Crime Victims - 23 -

Report on the application of the Directive - 25 -

PART II: THE DECISION IN THE B.V. CASE AND THE LEGAL ISSUES IN THESE PROCEEDINGS - 26 -

The legal source and scope of a right to compensation for injuries which have been criminally inflicted - 26 -

The argument as to an EU right stemming from Directive 2004/80/EC - 27 -

The Decision in the B.V. case - 28 -

The First Issue: Legal Aid and/or the costs of making an application under the Scheme - 39 -

The pleadings and the evidence on this issue - 39 -

Prematurity and evidential foundation - 42 -

Submissions of the parties on the merits - 44 -

Decision of the Court on the issue of legal aid and/or costs - 46 -

The Second Issue: The exclusion of pain and suffering (paragraph 6(e) of the Scheme) - 58 -

Submissions - 58 -

Decision - 60 -

The Third Issue: Conduct, character and way of life (paragraph 14 of the Scheme) - 62 -

Submissions - 62 -

Decision - 64 -

The Fourth Issue: Is there a right of access to previous decisions of the Tribunal? - 67 -

Submissions - 68 -

Decision - 69 -

CONCLUSIONS - 79 -

PART 1: BACKGROUND AND LEGAL FRAMEWORK

Background

4 The pleadings and the evidence presented on affidavit on behalf of each of the appellants is slightly different although there are also many similarities. I will deal with each of the appellants in turn.

Events and pleadings as they relate to Mr. Doyle

5 On 6 April 2014, the applicant Mr. Doyle was the victim of a serious assault and sustained serious brain injury.

6 On 4 July 2014, an application for compensation was submitted to the Scheme on behalf of Mr. Doyle by his solicitors, instructed by his father. This was accompanied by a medical report of Dr. Margaret Gallagher dated the 16 May 2014 which says that Mr. Doyle sustained an acquired brain injury which has had “profound” effects on his ability to walk, stand, and speak, among other abilities.

7 On 28 July 2014, the Tribunal wrote to Mr. Doyle's solicitors acknowledging receipt of the application and saying that the Tribunal would request a Garda report on the incident. The letter requested certain documentation from Mr. Doyle in relation to medical expenses and loss of earnings and pointed out that the Scheme prohibits the payment of damages for pain and suffering in relation to all incidents that occurred on or after the 1 April 1986.

8 The Tribunal, as is usual practice, obtained information from An Garda Síochána. The Garda report sent to the Tribunal and exhibited in the proceedings indicated that the assault took place at Mr. Doyle's residence in Dublin and that the injuries consist of blunt force injuries to the head suspected of being inflicted by an axe. It says that a row had taken place on the night in question between the suspect and Mr. Doyle, during which a number of punches were thrown between the parties. The row culminated in the suspect lifting up a hatchet and hitting Mr. Doyle on the head several times.

9 The report also contained a list of Mr. Doyle's previous convictions. The list indicates that Mr. Doyle was sentenced on approximately 34 occasions in respect of a large number of criminal incidents. Many of the convictions include matters such as threatening or abusive behaviour in a public place, theft, handling stolen property, common assault, possession of knife/other article, failing to appear in court on remand dates, and road traffic offences, and many of his sentences involve fines or relatively short periods of imprisonment. Between 1997 and 2000, however, he received some significant sentences ranging from 7 years to 10 years for robbery and use of a syringe to threaten. Convictions are recorded from when he was approximately 14 years of age, in 1989. His date of birth is the 22 July 1975. His most recent conviction prior to his sustaining the injuries described above was in January 2014.

10 On the 24 March 2015, Mr. Doyle's solicitors wrote to the Tribunal enquiring as to whether the Garda report into the incident had been obtained and requesting a time frame within which the application would be processed. They did not furnish any documentation in relation to the request from the Tribunal described above.

11 By letter dated the 15 July 2015, the Tribunal responded enclosing a copy of the Garda report and referring to his previous convictions. The letter continued:

“ In relation to the contents of the garda report, I bring your attention to the limitations and restrictions of compensation. It is possible that due to the fact that the applicant has numerous criminal convictions and served several terms of imprisonment the Tribunal member deciding this application will consider Article 14 of the Scheme when making a decision on compensation. For this purpose it would be important to give your client an opportunity to comment further regarding this aspect of his Application”. [The letter then set out the terms of Article 14 of the Scheme].

12 By letter dated the 18 December, 2015, solicitors for Mr. Doyle sent a letter of reply to the Tribunal. The letter said:

“ As you will be aware our client's injuries are very serious and in order for us to be properly equipped to prepare a comprehensive claim on his behalf we would need to be assured that funding would be available for this purpose. We note that the Scheme provides that legal costs will not be recoverable.

In those circumstances there is little reality in our client being in a position at this juncture to raise funds to pay for the preparation of his claim. This is especially so, when, as appears to be the case here, it may well be that, regardless of the extent of our client's claim and the cost of preparation of same, he appears to be exposed to a serious risk that under the terms of the scheme, he may receive no compensation at all because of his ‘conduct’, character’ or ‘way of life’.

In the...