Criminal Injuries Compensation Board: Report and Accounts for 2010.

STATES OF JERSEY

CRIMINAL INJURIES COMPENSATION BOARD: REPORT AND ACCOUNTS FOR 2010

Presented to the States on 22nd March 2011 by the Minister for Home Affairs

STATES GREFFE

2011   Price code: B  R.34

REPORT

1. The States, on 4th December 1990, approved a draft Act (R&O 8143, as subsequently  amended  by  R&Os 8239,  8497,  8769,  9234,  51/2002  and P.113/2009) establishing a Scheme to provide compensation for victims of crimes of violence to replace the Scheme set out in the Act of the States dated 12th May 1970 (R&O 5350). Most recently, the States – on 10th September 2009 –  adopted  a  revised  Scheme  (P.113/2009)  which  consolidated  all previous  amendments  and  incorporated  a  number  of  further  changes recommended by the Board. Article 10(a) of the 1990 Act sets out the scope of the Scheme, the essence of which is as follows –

the Board may make ex gratia payments of compensation in any case where the applicant or, in the case of an application by a spouse or dependant, the deceased –

1. sustained, in the Island or on a Jersey ship, personal injury directly attributable to a crime of violence (including arson or poisoning) or the apprehension or attempted apprehension of an offender or a suspected offender or to the prevention or attempted prevention of an offence or to the giving of help to a police officer who is engaged in any such activity, or
2. sustained personal injury directly attributable to a crime of violence (including arson or poisoning) in respect of which a court in the Island has jurisdiction by virtue of section 686 or 687 of the Merchant Shipping Act 1894 or such enactments as from time to time replace them.

2. In 1992, the then Defence Committee, conscious of the limitations of the 1970 Scheme (which provided for compensation only in cases where members of the public came voluntarily to the aid of another member of the public or the police and were injured in so doing), widened the scope of the Scheme to include crimes of violence generally. The 1990 Scheme came into force on 1st May 1991 in respect of injuries suffered on or after that date. Applications in respect of injuries suffered before 1st May 1991 are dealt with under the terms of the 1970 Scheme.
3. The current  version  of  the  Scheme,  as  well  as  the  guide  to the  Scheme (entitled "Victims of Crimes of Violence"), incorporates all the amendments to the Scheme since its inception.
4. The Criminal Injuries Compensation Board comprises Advocate C.J. Dorey (Chairman, from June 2006), Advocates R.J. Michel and L.M. Gould (former Chairmen),  Advocates  A.S. Regal,  P.deC. Mourant,  D.J. Benest  and  (with effect from 1st August 2010) Mrs. M.E. Whittaker – these are the members who are "advocates or solicitors of the Royal Court of not less than 5 years' standing"  [Article 4(a)  of  the  Scheme] –  and  lay'  members Mrs. B.M. Chiang,  Mr. M.A. Payne,  Mrs. C.L. Jeune  and  Dr. G. Llewellin. The Minister wishes to record his appreciation to all members of the Board for the work they have undertaken.

5. Under  Article 15  of  the  Scheme,  the  Board  may  withhold  or  reduce compensation if it considers that –

1. the applicant has not taken all reasonable steps to inform the police;
2. the applicant has failed to give all reasonable assistance to the Board;
3. having regard to the conduct of the applicant before, during or after the events giving rise to the claim or to his character and way of life, itis inappropriate that a full award, or any award at all, be granted; and

furthermore, compensation will not be payable –

4. if the injury was sustained accidentally, unless the Board is satisfied that the applicant was at the time taking an exceptional risk which was justified in all the circumstances.

6. The Board received 59 applications for the award of compensation under the 1990 Scheme during the period 1st January to 31st December 2010. Because of  the  length  of  time  it sometimes  takes  to finalize  an  award,  not  all applications are concluded in the calendar year in which they are received. Examples  of  the  nature  of  applications  and  awards  made  in 2010  are  as follows –

1. Whilst at work B had a liquid substance thrown into his face. This constituted a minor assault. That assault had results far beyond what could have been expected by the attacker, since it transpired that B had been suffering from work-related stress. The medical evidence was that this assault resulted inB suffering from post-traumatic stress disorder, the consequences of which have continued and resulted in him being unable to return to any form of work. The Board applied the  maxim  of  the  "eggshell  skull"  rule;  that  an  individual  is responsible for the consequences of his wrongful actions if these lead to injuries to another person, even if the victim suffers an unusual injury as a result of pre-existing vulnerability or medical condition. The gross award for the post-traumatic stress was £37,000. The loss of earnings would have exceeded £500,000. Accordingly, the upper limit of compensation of £100,000 was awarded.
2. W had been at a nightclub with friends. They left in the early hours of the morning. A group of males started to shout abuse at them, but they walked away. They were followed, there was an altercation, and W was knocked to the ground and kicked in the face and the body. Although nobody was charged with assault, one person was charged with affray, and there was sufficient evidence to establish that W was the victim of a crime of violence. W sustained a serious fracture to both sides of the jaw, which required operative treatment. He also suffered damage to his teeth. The Board awarded £8,350 with regard to general damages for the injuries and £836 with regard to dental invoices and clothing.

3. C was at a nightclub in St. Helier . The person standing next to him was struck on the head with a bottle; glass from the broken bottle then hit C on the chin. This has left C with a visible scar which will remain visible for some years. The gross award of £7,500 was reduced by 50% by reason of the fact that, prior to the assault, C had pushed the assailant and been verbally provocative towards him.
4. F had been at public house and thereafter a nightclub in St. Helier during the course of which he had consumed approximately 9 pints of strong lager. Upon leaving the nightclub he saw a scuffle between a friend of his and others and went over to speak to the group. At some stage  he  was  knocked  to the  ground  and  kicked  in the  head.  He suffered  fractures  to his  right  orbit  and  cheekbone.  The  police attended, various people were interviewed, but nobody admitted to seeing the incident. CCTV imaging did not assist. F was therefore unable to prove, on the balance of probabilities, that he was the victim of a crime of violence and there was a nil award.
5. S had been at various public houses in St. Helier and had consumed approximately 5 pints of lager and 3 shorts'. There was an altercation with a female, as a result of which she kicked Sin the groin, poured water over his head and threw a glass at him, resulting in a cut to the left side of the forehead. The Board accepted that S was the victim of a crime of violence. However, S was given a written caution for being disorderly on licensed premises, and thus the Board concluded that any award would have to be reduced by 50%. Further, it was clear from the injuries sustained that any compensation would be below the minimum amount of £750 and thus no award was made.

7. The Board received 7 requests for hearings during 2010, all of which related to claims  where  the  applicant  had  appealed  against  the  decision  of  the 2 member Panel's initial award. The Hearing Board determined that there was justification  for  making  an  award,  or  a  revised  award,  in respect  of 4 applications. The other hearings will be held at a later date.
8. Of  the  1,307 applications  received  since  1st  May  1991,  1,219  had  been resolved as at 31st December 2010. Of the 88 applications in the process of resolution  at  the  end  of  2010,  9  related  to hearings  which  remained unresolved, 18 had received awards which included an element of interim payment, and 11 others had been determined which awaited acceptance by the applicant.  A  total  of  50 applications  awaited  reports  and/or  further information.
9. Alcohol-related incidents. The Board receives many applications in which drink  has  been  a  substantial  cause  of  the  victim's  misfortune.  From information available on the 59 applications received in 2010, 39 of those (that is 66%) involved the consumption of alcohol by either the assailant or the victim. Many of these incidents occurred in places and situations which the victims might have avoided had they been sober or not willing to run some kind of risk. In such circumstances the Board may make an award, but only after looking very carefully at the circumstances to ensure that the applicant's

conduct "before, during or after the events giving rise to the claim" was not such that it would be inappropriate to make a payment from public funds.

10. Appendix 1 sets out statistics on activities during the period 1st January to 31st December 2010, relating to claims made under the Criminal Injuries Compensation Scheme.
11. Appendix 2(a) shows, in the form of a bar graph, the rate of applications received during 2010 (59); and Appendix 2(b) shows, in tabular form, month by month, the total number of applications received annually from 2001 to 2010.
12. Appendix 3 shows the range of awards made by the Board during the period 1st May 1991 to 31st December 2010.
13. Appendix 4 shows the accounts of the Board for the period 1st January to 31st  December  2010  and  for  the  years  2002  to 2009,  for  comparative purposes.
14. The Board was generally satisfied with the working of the 1990 Scheme, as amended. For 2010, the budget for the Scheme was provided by means of the adoption by the States on 6th July 2010 of a proposition (P.74/2010) under Article 11(8)  of  the  Public  Finances  (Jersey)  Law  2005  to amend  the expenditure approval for 2010, which had been previously approved by the States on 5th October 2009, in respect of a number of departments (e.g. the Home Affairs Department in the case of the funding for the Criminal Injuries Compensation  Scheme)  to permit  increased  withdrawals  from  the Consolidated Fund to fund Court and Case Costs. The Board notes that there continues to be little progress in relation to its recommendation made in 2002 that there should be an increase in the maximum award (which is currently £100,000) to £250,000 in order to bring it closer in line with similar awards made in respect of common law damages. However, in 2009, the Minister for Home Affairs agreed to review the level of the maximum award, although that review has not yet been concluded. It is worthy of note that, in recent years, a number of substantial awards have been made – some in the maximum sum of £100,000. This also occurred in 2010, with 2 maximum awards being made. Had the Board's recommendation that the maximum award payable under the Scheme be increased been implemented, and the necessary budget provided, it is likely that the award payable to some applicants who are presently limited to receiving £100,000 would have been significantly higher. The Board is concerned  that  some  very  deserving  applicants  are  suffering  considerable hardship as a result of this failure to increase the maximum award. The year 2010 was the first full year of operation of Article 43A, whereby (with effect from  10th  September  2009)  awards  are  required  to be  accepted  within 6 months of their notification to applicants, after which time they will lapse. This did not apply to any awards during 2010.

APPENDIX 1 RATE OF APPLICATIONS 1ST JANUARY TO 31ST DECEMBER 2010

NOTE: The figure for the total "Amount awarded" in this Appendix does not match

the figure for the total "Compensation paid" in Appendix 4 because some awards are not paid until the following year and/or some payments relate to awards made in a preceding year.

APPENDIX 2(a)

APPENDIX 2(b)

CRIMINAL INJURIES COMPENSATION BOARD

Applications received for the period 1st January to 31st December 2010 (and comparative figures for 2001 to 2009)

APPENDIX 3

RANGE OF AWARDS 1ST MAY 1991 TO 31ST DECEMBER 2010 Total number of applications received = 1,307

Total number of applications determined = *1,219

N.B. The lowest award (other than nil) was £149, and the highest £100,000.

(Numbers in brackets represent numbers of applications. *The two figures for the  total  number  of  applications  determined  do  not  match  because  some applications receive elements of an award in different calendar years.)

[Numbers in square brackets represent, by category, the percentage of awards made of the total number of awards made.]

APPENDIX 4 ACCOUNTS FOR THE PERIOD 1ST JANUARY TO 31ST DECEMBER 2010

(AND COMPARATIVE FIGURES FOR 2002 TO 2009)

Notes:

1. From 1995, payment to members of the Board in respect of their time spent on applications has been made at a rate of £50 an hour. Comparative figures from 1997 are as follows –

2. The figure for the total "Compensation paid" in this Appendix does not match the total "Amount awarded" in Appendix 1 because some awards are not paid until the following year and/or some payments relate to awards made in a preceding year.
3. The heading "Administration" was introduced in 2004, as a consequence of the decisions made during the 2004 Fundamental Spending Review process, in order to reflect the payment by the Home Affairs Department to the States Greffe  of  a  sum  representing  the  cost  incurred  by  the  States  Greffe  in servicing the Board's administrative needs. In 2006 and 2008, in view of the pressure upon the Home Affairs budget at the time, this cost was not passed on for those years.
4. The years 2006, 2009 and 2010 saw a number of awards being made at or near the maximum permitted under the Scheme (£100,000). This led to higher than usual calls on the Scheme and necessitated a significantly increased allocation of funding to meet the awards made in those years.