Criminal Injuries Compensation Board: Report and Accounts for 2014.

STATES OF JERSEY

CRIMINAL INJURIES COMPENSATION BOARD: REPORT AND ACCOUNTS FOR 2014

Presented to the States on 10th March 2015 by the Minister for Home Affairs

STATES GREFFE

2015   Price code: C  R.23

REPORT

The  Jersey  Criminal  Injuries  Compensation  Scheme  came  into  force  on  1st May 1991.

Some facts and figures

During the 23 years which the Scheme has been in operation, the number of applications received has varied from year to year, from 44 in 1992 (the first full year of operation) and 36 in 2014, with applications peaking in 2001 at 106. Consequently, 2014 has seen the second lowest number of applications received in

a full year since the inception of the Scheme (2013 saw 2 fewer application). However, compensation paid to applicants each year increased from £45,840 in 1992 to a high point' of £540,849 in 2013 (£241,700 was in 2014), with a total of just  over  £5 million  now  having  been  paid  Currently,  overall,  16%  of compensation (representing 40% of applications received) is paid in amounts of up to £3,000; compensation of just over 53% of the total amount has been paid to 6% of applications which have resulted in awards of £10,000 or more; whilst a further 36% of applications result in a nil award. The overall annual average award in 2014 was £3,002 (excluding awards of £10,000 or more, the average award falls to £1,490). Just over 6% of the applications received to date were from Police Officers, the majority of whom were on duty,' To date, a total of 123 applications (approx. 8.3% 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). On 10th September 2009, the States adopted a revised Scheme  (P.113/2009)  which  consolidated  all  previous  amendments  and incorporated a number of further changes recommended by the Board; and most recently – on 2nd May 2012 - the States adopted the current, further revised  Scheme.  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 in the form of the Revised Scheme which was adopted by the States on 2nd May 2012.

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,  D.J. Benest,  Advocate  M.E. Whittaker, Advocate C. Hall and Advocate L.K.A. Richardson – 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 Mrs. J. Carlin. The Minister wishes to record her appreciation to all members of the Board for the work they have undertaken. Current Board members were reappointed by the then Minister for further periods ranging from 2 to 5 years from 1st May 2012; and from one to 4 years from 1st May 2014. Following a review of the method of appointing to the  Board,  vacancies  for  lay  members  are  advertised  in  accordance  with Appointments Commission guidelines and expressions of interest considered, leading to candidates being shortlisted, interviewed and selected by a panel comprising the Jersey C.I.C.B. Chairman and a representative from each of States  Human  Resources  and  the  Appointments  Commission.  Two  lay members were re-appointed during 2014 as their staggered' terms of office had  expired.  Any vacancy which  arises for a legally-qualified  member is circulated to the Law Society of Jersey for dissemination throughout those in the  legal  profession  with  the  requisite  experience,  and  thereafter  the candidates  are  interviewed  and  selected  in  a  similar  manner  to  the  lay members. Three vacancies for legally-qualified members will arise in 2015.

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, it is 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 2014

6. The Board received 36 applications for the award of compensation under the 1990 Scheme during the period 1st January to 31st December 2014. 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 2014 are as follows –

1. The applicant, A, was sexually assaulted, repeatedly, as a child. These historic assaults had a major psychological impact on the life of A. Her schooling was affected, as was her integration within the family unit, her employment, her previous and current relationships and her ability to trust. Her self-esteem suffered. The Board awarded £17,000 for the psychiatric damage.
2. The applicant, B, was punched in the face, stabbed in the leg and otherwise beaten: he sustained 13 distinct injuries. It subsequently transpired that the right knee cap was broken. B sustained various out of pocket expenses, including loss of earnings. The Board awarded £4,500  by  way  of  general  damages  and  £413  special  damages. However  B  (who  had  left  Jersey  after  the  assault)  had  received supplementary welfare allowance of £2,300 from the country where he was then residing and this had to be deducted from the gross award, giving a net figure of £2,613.
3. The applicant, C, stated that he was attacked from behind with such force that he fell to the ground, with his knee cap hitting a step. He stated that he was thereafter punched and kicked and ended up bruised all down the right hand side of his body. The Police investigated and made door-to-door inquiries but no assailant was identified. Even if no one is prosecuted an applicant can be successful in seeking an award if he can produce evidence (on the balance of probabilities) that he was a victim of a crime of violence. In this case there was no independent  evidence  of  any  assault,  and  certain  of  the  medical evidence  did  not  substantiate  the  alleged  assault  in  the  manner described by C. The applicant was intoxicated at the time and the injuries could have occurred by him falling over. Accordingly C failed to establish that he was a victim of a crime of violence.

4. The applicant, D, was kicked in the head by an unknown individual. There were witnesses to confirm the assault. He needed 5 stitches to a cut, and suffered bruising around the eye. He recovered within a few days. The Board found that he was the victim of a crime of violence, but  that  the  injuries  were  such  that  they  would  fall  below  the minimum level allowed under the scheme of £1,500 and accordingly there was a nil award.
5. The applicant, E, was punched and kicked repeatedly. He sustained bruising and damage to his nose which required operative treatment. The injuries were such that the Board would have awarded £3,750 for general  damages.  E  also  claimed  loss  of  earnings:  he  was  self- employed and claimed that his earnings loss was ongoing. The Board repeatedly requested details of earnings but received no replies to such requests.  Eventually  E  was  informed  that  unless  the  required information was provided within 28 days his application would be dismissed  under  Article 15(b)  for  failure  to  provide  reasonable assistance to the Board. The information was still not provided, and accordingly the application was dismissed.

7. The Board received 3 requests for hearings during 2014, (all of which related to claims where the applicant had appealed against the decision of the 2- member Panel's initial award). During 2014, the Board held 2 hearings and in one  case,  the  nil  amount  initially  awarded  was  upheld,  with  the  other remaining  unresolved  and  further  information  being  sought  to  enable  the application to be determined at a later date.
8. Of the 1,475 applications received since 1st May 1991 – 1,411 had been resolved as at 31st December 2014. Of the 64 applications in the process of resolution  at  the  end  of  2014,  2  related  to  hearings  which  remained unresolved, 11 had received awards which included an element of interim payment and 16 others had been determined which awaited acceptance by the applicant.  A  total  of  35  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 36 applications received in 2014, 15 of those (that is 42%) 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 2014, 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 2014 (36); and Appendix 2(b) shows in tabular form month by month, the total number of applications received annually from 2004 to 2014.
12. Appendix 3 shows the range of awards made by the Board during the period 1st May 1991 to 31st December 2014.
13. Appendix 4 shows the accounts of the Board for the period 1st January to 31st  December  2014  and  for  the  years  2006  to  2013,  for  comparative purposes.
14. The Board was generally satisfied with the working of the 1990 Scheme, as amended. For 2014, funding of the Scheme was provided from the budget of the Home Affairs Department, although Article 6 of the Scheme does state that all payments made and expenses incurred will be paid out of the general revenue of the States. The Board notes that in relation to its recommendation made in 2002 that there should be an increase in the maximum award (which has remained at £100,000 since 1998) to £250,000 in order to bring it closer in line with similar awards made in respect of common law damages, the then 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." There has been no further progress on the recommended increase. 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, 3 awards (totalling £11,024) lapsed during 2014 under that provision.

APPENDIX 1 RATE OF APPLICATIONS 1ST JANUARY TO 31ST DECEMBER 2014

[£228,279 ÷ 49 = £4,659 – average award for 2015]

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 2014 (and comparative figures for 2004 to 2013)

APPENDIX 3

RANGE OF AWARDS 1ST MAY 1991 TO 31ST DECEMBER 2014 Total number of applications received =1475

Total number of applications determined = 1441*

N.B. The lowest award to date (other than nil) was £120, 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 the percentage, by amount, of the total awards made;  and  the  square  bracketed  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 2014

(AND COMPARATIVE FIGURES FOR 2006 TO 2013)

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 2001 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 payments relate to awards made in a preceding year and/or some awards are not paid until the following 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, 2010, 2012 and 2013 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.