Criminal Injuries Compensation Board: Report and Accounts for 2011

STATES OF JERSEY

CRIMINAL INJURIES COMPENSATION BOARD: REPORT AND ACCOUNTS FOR 2011

Presented to the States on 12th June 2012 by the Minister for Home Affairs

STATES GREFFE

2012   Price code: C  R.73

REPORT

The current Jersey Criminal Injuries Compensation Scheme came into force on 1st May 1991. Consequently, 2011 saw its 20th anniversary.

Some facts and figures

During that 20 year period, the number of applications received has grown in varying degrees from 44 in 1992 (the first full year of operation) to 53 in 2011, with applications peaking in 2001 at 106 [see Appendix 2(b)]. Compensation paid to applicants increased from £45,840 in 1992 to a high point' of £375,282 in 2010, with a total of just over £4 million now having been paid Currently, overall, 38% of all compensation is paid in amounts of up to £3,000; 6% of applications result in an award of £10,000 or more; whilst a further 38% of applications result in a nil award. Just under 6% of the applications received to date were from Police Officers,  the  majority  of  whom  were  on duty,'  To  date,  a  total  of 116 applications (8.5% of all applications submitted) have been received for a hearing  (appeal').  The  current  minimum  award  of  compensation  (before deductions) is £1,500 (set in 2009); and the maximum (set in 1998) remains at £100,000.

Background

1. The States, on 4th December 1990, approved a draft Act (R&O 8143, as subsequently  amended  by  R&Os 8239,  8497,  8769,  9234  and  51/2002) 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.

Membership of the C.I.C.B.

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. de C. Mourant, D.J. Benest and (with effect  from  1st  August  2010)  Advocate  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 Mr. M.A. Payne,  Mrs. C.L. Jeune ,  Dr. G. Llewellin  and  (appointed  in  June 2011 under new procedures*) Mrs. J. Carlin. Mrs. B.M. Chiang, a lay member since 1997, indicated her intention of retiring during the year. The Minister wishes to record his appreciation to all members of the Board for the work they have undertaken. The existing Board members were re-appointed by the Minister for a further period of one year from 1st May 2011, but following a review of the method of appointing to the Board*, subsequent vacancies for lay members are advertised in accordance with Appointments Commission guidelines and expressions of interest considered, leading to candidates being short-listed,  interviewed  and  selected  by  a  Panel  comprising  the  C.I.C.B. Chairman and a representative from each of States Human Resources and the Appointments Commission. Any vacancy which arises for a legally-qualified member will be circulated to the Law Society of Jersey for dissemination throughout those in the legal profession with the requisite experience.

Withholding or reducing compensation

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.

Operation of the Scheme in 2011

6. The Board received 53 applications for the award of compensation under the 1990 Scheme during the period 1st January to 31st December 2011. Because of  the  length  of  time  it sometimes  takes  to finalize  an  award,  not  all applications are concluded in the calendar year they are received. Examples of the nature of applications and awards made in 2011 are as follows –

1. The applicant, who worked with the assailant, had been out drinking with  him.  A  considerable  amount  of alcohol  had been  consumed. They  commenced  to play-fight  and  the  applicant  held  down  his assailant with an arm lock. The assailant managed to release himself, went  into  the  kitchen  and  returned  with  a  couple  of  knives  and repeatedly  stabbed  the  applicant.  The assailant  was  charged  with grave and criminal assault. Luckily, the stab-wounds were not deep and the applicant made a reasonable recovery therefrom. However, 2 years later the applicant was confronted by his assailant who made a number of threats against the applicant's life. This caused significant psychological symptoms. The gross award (to include a significant figure for loss of earnings plus general damages) was in excess of £88,000. However, there was a 75% reduction to take into account the fact that the applicant was not of good character (he had substantial previous convictions) and alcohol was a serious contributory factor. The net award was £21,793.
2. The applicant was viciously attacked by 3 individuals as a result of which he was knocked unconscious and lost the sight of one eye. The assailants were convicted of grave and criminal assault. In addition to the  physical  injury,  the  applicant  suffered  post-traumatic  stress. Although it was clear that the applicant was the victim of a crime of violence, there was a nil award since the applicant had a long string of previous  convictions  and,  under  the  Scheme,  the  Board  could withhold or reduce compensation ifit considered that, having regard to the conduct of the applicant before, during or after the events, or to his character or way of life, it was inappropriate that a full award or any award be granted.
3. The applicant was in a night-club in town when he was head-butted by the assailant. It was clear that the applicant was the innocent victim of a crime of violence. He suffered a black eye and bruising, but no further injury. The total of damages was below the minimum figure which  the  Board  was  authorised  to award  (i.e. £1,500)  and accordingly no award was made.
4. The applicant was a police constable. Whilst on patrol in town he chased after a suspected criminal. As he attempted to arrest him, he was shrugged off and the police constable fell to the ground; he fell on his right hand which caused the little finger to break. One of the

grounds of eligibility under the Scheme is where injury is sustained in apprehending or attempting to apprehend an offender, and accordingly the applicant fell within the Scheme. Surgery was required to the finger. In addition there was a shoulder sprain. The applicant was awarded £3,125.

5. The applicant was in a night-club when he was assaulted (but without injury) by 2 males. When he left the night-club, one of the males invited him across the road and then hit him over the head with a bottle. The assailant was convicted of grave and criminal assault and the Board accepted that the applicant was the victim of a crime of violence. The Scheme, however, requires the applicant to co-operate with the Board and to give it all reasonable assistance. The applicant failed to do  so  despite  a  number  of  requests for  information  and documentation. In light of that failure to provide any assistance and after due warning, a nil award was made.

7. The Board received 7 requests for hearings during 2011, 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 5 applications; and that Nil Awards should be maintained in 2 cases. Other hearings will be held at a later date.
8. Of  the  1,359 applications  received  since  1st  May  1991 –  1,265  had  been resolved as at 31st December 2011. Of the 94 applications in the process of resolution  at  the  end  of  2011,  10  related  to hearings  which  remained unresolved, 19 had received awards which included an element of interim payment and 17 others had been determined which awaited acceptance by the applicant.  A  total  of  48 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 53 applications received in 2011, 36 of those (that is 68%) 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.

Statistical information

10. Appendix 1 sets out statistics on activities during the period 1st January to 31st December 2011, 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 2011 (53); and Appendix 2(b) shows in tabular form month by month, the total number of applications received annually from 2001 to 2011.
12. Appendix 3 shows the range of awards made by the Board during the period 1st May 1991 to 31st December 2011.
13. Appendix 4 shows the accounts of the Board for the period 1st January to 31st  December  2011  and  for  the  years  2003  to 2010,  for  comparative purposes.
14. The Board was generally satisfied with the working of the 1990 Scheme, as amended. For 2011, funding of the Scheme was provided from the budget of the  Home  Affairs  Department.  The  Board  notes  that  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, the Minister for Home Affairs – answering an oral question asked of him in the States on 5th April 2011 – indicated that: "In the present circumstances in which this Assembly has agreed to find cuts in existing public expenditure of the  order  of  £65 million  over  3 years  and  where  there  are  significant pressures to increase public expenditure in a variety of areas, I am not able to recommend to the States an increase in the maximum award of £100,000." 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.  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 remains concerned  that  some  very  deserving  applicants  are  suffering  considerable hardship as a result of this failure to increase the maximum award. In relation to Article 43A of the Scheme whereby (w.e.f. 10th September 2009) awards are required to be accepted within 6 months of their notification to applicants, after which time they will lapse, no awards lapsed during 2011 under that provision.

APPENDIX 1 RATE OF APPLICATIONS 1ST JANUARY TO 31ST DECEMBER 2011

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 2011 (and comparative figures for 2001 to 2010)

APPENDIX 3

RANGE OF AWARDS 1ST MAY 1991 TO 31ST DECEMBER 2011 Total number of applications received = 1,359

Total number of applications determined = *1,265

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

(Numbers in brackets represent numbers of applications. *The 2 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 2011 (AND COMPARATIVE FIGURES FOR 2003 TO 2010)

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 1998 to date 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.