Paul Doyle v The Criminal Injuries Tribunal, The Minister for Justice and Equality, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Ms. Justice Ní Raifeartaigh
• Judgment Date: 29 April 2021
• Neutral Citation: [2021] IECA 131
• Date: 29 April 2021
• Court: Court of Appeal (Ireland)
• Docket Number: IECA 342 [2019/283]

Between

Paul Doyle

Appellant

and

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

Respondents

Gary Kelly

Appellant

and

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

Respondents

[2021] IECA 131

Donnelly J.

Ní Raifeartaigh J.

Power J.

IECA 342 [2019/283]

[2019/282]

THE COURT OF APPEAL

Judicial review – Criminal injuries – Compensation – Appellants seeking judicial review – Whether the inability of the appellants to access any information as to how paragraph 14 the Scheme of Compensation of Personal Injuries Criminally Inflicted has been applied in the past by the Criminal Injuries Compensation Tribunal was in breach of their constitutional right to fair procedures

Facts: The appellants, Mr Doyle and Mr Kelly, appealed to the Court of 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 arose in connection with the appellants’ (separate and unconnected) compensation claims to the Criminal Injuries Compensation Tribunal under the Scheme of Compensation of Personal Injuries Criminally Inflicted. The main grounds of complaint related 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. While some arguments based upon the Constitution were advanced, the bulk of the appellants’ case involved 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. Ní Raifeartaigh J delivered judgment on the substantive issues in this case on the 4 December 2020. She held that the inability of the appellants to access any information as to how paragraph 14 has been applied in the past by the Tribunal was in breach of their constitutional right to fair procedures (applying the decision in P.P.A. v Refugee Appeals Tribunal [2007] 4 IR 94) and/or failed to meet the requirements of effective protection of their EU law right. This judgment dealt with the question of final orders and costs.

Held by Ní Raifeartaigh J that she would make an order directing the Tribunal to make available to the appellants, whether by publishing on its website or by sending the material to them, the 25 cases in which paragraph 14 of the Scheme was considered. She held that redactions should be made so that no material is disclosed which would be likely to identify parties. She held that, insofar as all other issues raised in the appeal are concerned, they are dismissed.

Ní Raifeartaigh J held that the following costs orders should be made: (a) an order that the appellants are entitled to the full costs relating to the motion to convert; (b) an order that the first appellant is entitled to recover 33% of his costs in the appeal and in the High Court; (c) an order that the second appellant is entitled to recover 33% of his costs in the appeal and in the High Court with the exception of the brief fee, fees for attending court, instructions fee, and fees for legal submissions; (d) an order providing that the respondents are entitled to recover from the first applicant 67% of their costs in the appeal and in the High Court; (e) an order providing that the respondents are entitled to recover from the second applicant 67% of their costs in the appeal and in the High Court with the exception of the brief fee, fees for attending court, instructions fee, and fees for legal submissions; and (f) costs to be adjudicated upon in default of agreement.

Appeal allowed in part.

UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of Ms. Justice Ní Raifeartaigh delivered on the 29 ^th day of April 2021

1 . I delivered judgment on the substantive issues in this case on the 4 December 2020. This judgment deals with the question of final orders and costs.

Recapitulation of how the case was argued, the issues arising, and the outcome of the appeal

2 . When the case was argued, much of the time was spent by the parties dealing with the question of whether or not there was an EU law right to compensation (deriving from Directive 2004/80/EC) in respect of injuries criminally inflicted in circumstances where the perpetrator committed the offence in Ireland in respect of an Irish victim i.e. in a case without any cross-border dimension. After the hearing but before the judgment was delivered, the decision of the Grand Chamber in the B.V. case 1 made it clear that there was such a right.

3 . In my judgment of 4 December 2020, I divided the appellants' claims into four parts. The first was whether the respondents were entitled to legal aid. The Court held that neither Article 47 of the Charter, Article 19 of the TEU, nor the principle of effectiveness in EU law (alone or in combination), as informed by the jurisprudence of the European Court of Human Rights on Article 6 of the European Convention on Human Rights, required that legal aid must be provided to the appellants in order to vindicate their rights under the Directive to receive fair and appropriate compensation by bringing a claim before the Tribunal; nor did they require that the Tribunal must make an award of costs in the event of a successful claim. The appeal in respect of this limb of the appellants' claim was dismissed.

4 . The second issue related to the exclusion of pain and suffering from the Scheme. The Court held that this claim was premature in the absence of any Tribunal decision on the appellants' cases. The appeal in respect of this limb of the appellant's claim was dismissed.

5 . The third issue related to paragraph 14 of the Scheme, which permits the Tribunal to consider “conduct, character and way of life”. I sub-divided this into two further issues: (i) whether the presence of paragraph 14 in the Scheme was itself contrary to EU law, and (ii) the application of paragraph 14 to the applicants' cases. The Court held that insofar as the appellants' claim constituted a challenge to the inclusion of paragraph 14 in the Scheme, it should be rejected; and insofar as the appellants' claim was that it would be unfair to apply paragraph 14 to their cases, their claims were premature as the Tribunal had not yet ruled on their claims. The appeal was therefore dismissed on this claim; part (i) on its merits, and part (ii) because it was premature.

6 . The fourth issue was the inability of the appellants to access any information as to how paragraph 14 has been applied in the past by the Tribunal. Here the appellants achieved success; the Court held that their inability to access any information about previous decisions was in breach of their constitutional right to fair procedures (applying the decision in P.P.A 2) and/or failed to meet the conditions for effective protection of their EU law right. The appeal in respect of this limb of the appellants' claim was allowed and submissions were invited as to the precise relief to be granted.

7 . At paragraphs 163 and 164 of the judgment, having found in favour of the appellants on the fourth issue as described above, I went on to say:

“ Nonetheless, issues of cost and practicality must be taken into account. Some of the Declarations sought by the appellants are very broad in their terms. Insofar as they seek relief in respect of all previous decisions of the Tribunal, this would in effect require the Tribunal (i) to have someone read through the entirety of whatever records it holds in respect of more than forty years of compensation decisions; (ii) identify decisions in which paragraph 14 was considered and either applied or disapplied; (iii) redact the records in such a way as to anonymize information that would identify the claimants in those past cases; and (iv) make those selected and redacted decisions available in some collated format for the appellants. I do not think that the vindication of the appellants' rights under either constitutional law or EU law would require the Tribunal to go that far. Nor do I consider that it would be appropriate to order the Tribunal to hold some form of preliminary hearing in relation to the paragraph 14 issue for the appellants or more generally. It should be master of its own procedures in this regard.

I would like to hear from the parties as to what final orders might be made in respect of this issue. It seems to me that, for example, a more restricted declaration than any of those sought by the appellants may be adequate to vindicate the appellants' rights. For example, it might be that receiving (suitably redacted) copies of decisions relating to a much more restricted time-period (such as, for example, the last two years), or listed numerically (such as for example the last ten Tribunal decisions in which paragraph 14 was considered), would be sufficient to give the appellants a general sense of how paragraph 14 has been applied, and would adequately vindicate their rights.”

8 . Since then, the Court has received written submissions and heard oral argument in respect of the precise relief to be granted and I will turn now to that issue.

The parties' submissions on the relief to be granted in respect of previous decisions of the Tribunal

The Appellant's submissions

9 . The appellants submit that the Court “accepts that proceedings...