Criminal Injuries Compensation Board: Report and Accounts for 2015.

STATES OF JERSEY

CRIMINAL INJURIES COMPENSATION BOARD: REPORT AND ACCOUNTS FOR 2015

Presented to the States on 26th September 2016 by the Minister for Home Affairs

STATES GREFFE

2016  R.99

REPORT

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

Some facts and figures

During the 24 years which the Scheme has been in operation, the number of applications received has varied from year to year: 44 in 1992 (the first full year of operation); 39 in 2015; with applications peaking in 2001 at 106. Consequently, 2015 has seen the third-lowest number of applications received in a full year since the inception of the Scheme (2013 saw 5 fewer applications; and 2014 3 fewer applications). However, compensation paid to applicants each year has increased from £45,840 in 1992 to a high point' of £540,849 in 2013 (£145,512 was paid in 2015), with a total of just over £5 million now having been paid under the Scheme.  Currently,  overall,  16%  of  compensation  (representing  39%  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 37% of applications result in a nil award. The overall annual average award in 2015 was £4,283 – excluding awards of £10,000 or more, the average  award falls to £2,342. 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  128 applications  (approximately  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). 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 14th April 2015 – the States adopted the current, further revised Scheme. Article 10(a) of the 1990 Act, as amended, 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 that 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 14th April 2015.

Membership of the C.I.C.B.

4. At the start of 2015, the Criminal Injuries Compensation Board comprised Advocate  C.J. Dorey  (Chairman  until  March  2015),  Advocate  D.J. Benest (Chairman, appointed from April 2015 for a period of 5 years), Advocates R.J. Michel and L.M. Gould (until October 2015) – (both former Chairmen), Advocates  A.S. Regal  (until  October  2015),  M.E. Whittaker,  C. Hall  and 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 refers] –  and  lay'  members  Mr. M.A. Payne,  Mrs. C.L. Jeune  (until April 2015), 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. The terms of office of some of the remaining Board members are due to end at various times between 2016 and 2018, and those whose term of office was due to end on 30th April 2015 were re-appointed by the Minister for a further period of 6 months; and in the case of Mr. Payne, extended to 31st December 2015.

Consequently,  the  Chairman  (Advocate  Benest),  together  with  Advocates Michel, Whittaker, Hall and Richardson, and Dr. Llewellin and Mrs. Carlin, comprised the Board at the year-end 2015.

Vacancies  for  lay  members  are  advertised  in  accordance  with  the  Jersey Appointments Commission guidelines, and expressions of interest considered, leading to candidates being short-listed, interviewed and selected by a Panel comprising the Jersey C.I.C.B. Chairman and a representative from the States' Human Resources Department and the Jersey Appointments Commission. A further vacancy for a lay member will arise in 2016, and one in 2018. 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. One further vacancy for a legally-qualified member will arise in 2017, and 2 in 2018. The Minister for

Home Affairs is presently reviewing the number of members to be appointed to the Board with a view to achieving a reduction from the 12 currently provided for under the Scheme.

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 39 applications for the award of compensation under the 1990 Scheme during the period 1st January to 31st December 2015. 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 2015 are as follows –

1. The Applicant was assaulted at his place of employment, where his assailant grabbed him around the throat and pushed hard around his eyes. When he arrived at Police Headquarters, reddening to the side of his face was noted, but by the time his statement was taken there were no visible injuries to be seen. Whilst the Board accepted that the Applicant had been assaulted, the consequences of the attack did not merit an award of damages in the minimum amount permitted under the Scheme.
2. The Applicant was a victim of rape and, following a guilty plea by her assailant, the Board accepted that she was a victim of a crime of violence. Special Damages, including G.P.s' fees and loss of wages, amounted to almost £1,100 and the Board awarded £5,000 for General Damages.
3. The Applicant was assaulted after he had left the van he was driving, brought to the ground and kicked and punched. Poor sleep and constant pain in his neck and spine, and partial paralysis of his face, slight memory loss and slight deafness was claimed, although apart from physiotherapy to assist with the neck injury there was no supporting medical evidence of any other injury. The Board accepted that the

Applicant was the victim of a crime of violence, but in the absence of corroborating medical evidence, the level of injuries fell below the minimum award, and no award could be made.

4. The Applicant was out with friends and was assaulted on his way to another  nightclub.  His  assailant  was  subsequently  convicted  of  a common assault and sentenced, and the Board was satisfied that the Applicant was the victim of a crime of violence. The Applicant suffered a head injury which included loss of consciousness, and the Board awarded Special and General Damages, from which was deducted 10% to take account of the fact that he had been drinking continuously during the course of the day and that his judgement was clouded in responding to a comment made by his assailant.

7. The Board received 4 requests for hearings during 2015 (all of which related to claims where the applicant had appealed against the decision of the 2-member Panel's initial award). During 2015, the Board held 3 hearings: in one case, the nil amount initially awarded was upheld; another case saw the initial nil award uplifted  to  £4,150;  a  further  case  remained  unresolved  pending  the determination of a legal matter; and the remaining case was unable to proceed until the applicant had provided further information.
8. Of  the  1,514 applications  received  since  1st  May  1991 –  1,458  had  been resolved as at 31st December 2015. Of the 56 applications in the process of resolution at the end of 2015, 3 related to hearings which remained unresolved, 6 had received awards which included an element of interim payment, and 14 others had been determined which awaited acceptance by the applicant. A total of 33 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 39 applications received in 2015, at least 24 of those (that is 61%) 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 those 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 2015,  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 2015 (39); and Appendix 2(b) shows in tabular form month by month, the total number of applications received annually from 2005 to 2015.
12. Appendix 3 shows the range of awards made by the Board during the period 1st May 1991 to 31st December 2015.

13. Appendix 4 shows the accounts of the Board for the period 1st January to 31st December 2015 and for the years 2007 to 2014, for comparative purposes.
14. The Board was generally satisfied with the working of the 1990 Scheme, as amended. For 2015, 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.
15. 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.
16. The Minister has indicated that, as part of the ongoing review of the overall budget of the Home Affairs Department, the operation of the Criminal Injuries Compensation Scheme is to be closely examined, with a view to identifying opportunities for achieving financial savings.

17  In  relation  to  Article 43A  of  the  Scheme  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, no awards lapsed during 2015 under that provision.

APPENDIX 1 RATE OF APPLICATIONS 1ST JANUARY TO 31ST DECEMBER 2015

[£192,725 ÷ 45 = £4,283 – average award for 2015; and excluding awards of £10,000+: £98,372 ÷ 42 = £2,342]

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 2015 (and comparative figures for 2005 to 2014)

APPENDIX 3

RANGE OF AWARDS 1ST MAY 1991 TO 31ST DECEMBER 2015

Total number of applications received =1,514 Total number of applications determined = 1,458*

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 2015

(AND COMPARATIVE FIGURES FOR 2007 TO 2014)

Publications

Printing and stationery

Payment to members of the Board

Medical reports

Hearing costs

Compensation paid

Administration

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.