Criminal Injuries Compensation Scheme: revised Scheme

STATES OF JERSEY

CRIMINAL INJURIES COMPENSATION SCHEME: REVISED SCHEME

Lodged au Greffe on 5th February 2015 by the Minister for Home Affairs

STATES GREFFE

2015   Price code: B  P.13

PROPOSITION

THE STATES are asked to decide whether they are of opinion

to refer to their Act dated 2nd May 2012 in which they approved a revised Criminal  Injuries  Compensation  Scheme,  and  to  agree  the  following amendments to that Scheme –

1. in paragraph 25(a)  after  the  words  "For  this  purpose," insert  the words "subject to Article 28,"; and delete the words "in accordance with the other provisions of the Scheme";
2. in paragraph 25(a) after the words "immediately preceding the date of death" add the words "such compensation being payable to the extent and on the conditions set out in respect of damages under the Fatal Accidents (Jersey) Law 1962;";
3. in paragraph 28,  after  sub-paragraph (b)  insert  the  following  sub- paragraph: "(c) income support payable under the Income Support (Jersey)  Law  2007;";  and  renumber  the  remaining  sub-paragraph as "(d)".

MINISTER FOR HOME AFFAIRS

Note:  The  Scheme  as  revised  by  these  amendments  is  set  out  in  the  attached

Appendix for members' information.

REPORT

The Criminal Injuries Compensation Board has requested that 2 areas of the Criminal Injuries Compensation Scheme ("the CICS") should be amended. The 2 paragraphs requiring amendment are paragraphs 25 and 28.

Under paragraph 25 of the CICS, where the victim has died in consequence of the injury, no compensation other than funeral expenses may be payable for the benefit of his  estate.  However,  the  Criminal  Injuries  Compensation  Board  may  consider applications  from  the  deceased's  spouse  or  civil  partner  and  dependants  for compensation in accordance with the other provisions of the Scheme to any person entitled under the Fatal Accidents (Jersey) Law 1962. If so, under paragraph 25(i) compensation  will  be  payable  to  any  person  entitled  to  claim  under  the  Fatal Accidents (Jersey) Law 1962'.

This would, for example, cover a spouse/civil partner or dependant because each would be entitled to make a claim in an ordinary civil action under Article 2(2) of the Fatal Accidents (Jersey) Law 1962. However, paragraph 25 is silent as to the type of claim this applicant may make, as nowhere else in the Scheme is there reference to the Fatal  Accidents  (Jersey)  Law  1962.  The  insertion  of  the  wording  after paragraph 25(a)(ii) addresses this omission.

It should be noted that under Article 2(1) of the Fatal Accidents (Jersey) Law 1962, a claim may only be made for pecuniary loss, not for pain or suffering.

Article 4(3) of the Fatal Accidents (Jersey) Law 1962 states that in assessing damages in any action under that Law, no notice shall be taken of any insurance, benefit, pension or gratuity which has been or will be paid as a result of death. However, normally with claims under the CICS, certain insurance and most social security benefits have to be deducted pursuant to paragraph 28 of the Scheme. The amendment inserts an express provision into paragraph 25, to require paragraph 28 to be applied.

Article 28 of the CICS sets out that compensation will be reduced by the value of any payment that, as a result of the injury or death, the person to whom the award is made has received or is entitled to receive by way of the benefits listed thereunder.

The Criminal Injuries Compensation Board has come across cases where, as a result of an injury, the person is no longer able to work or is on reduced income and payment is made  to  them  under  the  Income  Support  (Jersey)  Law  2007.  Under  the  present Scheme any payments thereunder are not deducted from the award. However, if an individual is receiving Income Support as a consequence of the injury sustained, it is appropriate  for the  Income  Support to be  deducted  in  a  similar  manner  as other benefits paid under the Social Security (Jersey) Law 1974. The insertion of a new sub- paragraph 28(c) achieves this.

Financial and manpower implications

There are no financial or manpower implications for the States arising from this proposition.

APPENDIX

CRIMINAL INJURIES COMPENSATION SCHEME

Page SECTION A ......................................................................................................................  5 THE SCHEME .................................................................................................................  5 Administration .................................................................................................................  5

SECTION B ......................................................................................................................  6 Scope of the Scheme ........................................................................................................  6

SECTION C ......................................................................................................................  8 PROVISIONS AS TO COMPENSATION ......................................................................  8 Basis of compensation ......................................................................................................  8 Limits of compensation ....................................................................................................  9

SECTION D ......................................................................................................................  11 PROCEDURE AND IMPLEMENTATION ....................................................................  11 Procedure for determining applications ...........................................................................  11 Implementation of the Scheme .........................................................................................  12

CRIMINAL INJURIES COMPENSATION SCHEME SECTION A

THE SCHEME

Administration

1. The Criminal Injuries Compensation Scheme ("the Scheme") will be administered by the Criminal Injuries Compensation Board ("the Board"), assisted by such staff as the Minister  for  Home  Affairs  ("the  Minister")  shall,  with  the  consent  of  the  Chief Minister, appoint.
2. The members of the Board shall be appointed by the Minister and shall hold office for five years in the first instance, and their appointment shall be renewable for such periods as the Minister may think appropriate.
3. (a)  A person may at any time resign his office as Chairman or a member of the Board by giving the Minister notice in writing to that effect.

(b)  The Minister may at any time remove a person from office as a member of the Board if the Minister is satisfied as to any of the following matters in relation to the person –

1. he has been convicted of an offence punishable by imprisonment;
2. he has become bankrupt;
3. he is incapacitated by physical or mental illness; or
4. he is otherwise unfit to perform his duties.

4. (a)  The Board will consist of not more than twelve members, not less than three of whom shall be advocates or solicitors of the Royal Court of not less than five years' standing.

2. The Minister  shall  appoint  one  of the  members  who  is an  advocate  or solicitor of not less than five years' standing as Chairman of the Board.
3. Three members of the Board, including a member who is an advocate or solicitor of not less than five years' standing, shall form a quorum of the Board and the Chairman shall preside unless for any reason he is unable to attend, in which case the members present shall select oneof their number to preside.
4. The functions of the Board shall not be invalidated by reason of a vacancy in its membership.

5. A person who is a member of the States is not eligible for appointment as a member of the Board and a member of the Board will vacate his office on becoming a member of the States.
6. All payments made and expenses incurred in carrying out the Scheme will be paid out of the general revenues of the States.
7. The  members  of  the  Board  will  be  entitled  to  receive  such  remuneration  and allowances as the Minister may determine.

8. The Board is entirely responsible for deciding what compensation should be paid in individual cases and (subject to Article 22) its decisions will not be subject to appeal or administrative review.
9. The  Minister  shall  keep  the  working  of  the  Scheme  under  review  and,  after consultation with the Board, shall submit an annual report on the operation of the Scheme, together with a statement of accounts, to the States.

SECTION B

Scope of the Scheme

10. (a)  Subject  to  paragraph (b)  of  this  Article,  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, civil partner or dependent (see Articles 25 and 26 below), the deceased –

1. sustained, in the Island oron a Jersey ship, personal injury directly attributable to a crime of violence (including arsonor 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 281 of the  Merchant Shipping Act 1995of the United Kingdom, as extended to Jersey by Article 2 of the Merchant Shipping (Oil Pollution) (Jersey) Order 1997or such enactments as from time to time replace it, orby virtue of Articles 173 and 174of the Shipping (Jersey) Law2002;

2. Where the victim and any person responsible for the injuries (whether that person actually inflicted themor not) were living in the same household at the time ofinjury as members of the same family, compensation will be paid only where –

1. the person responsible has been prosecuted in connexion with the offence, except where the Board considers that there are practical, technical or other good reasons why a prosecution has not been brought; and
2. in the case of violence between adults in the family the Board is satisfied that the person responsible and the applicant stopped living in the same household before the application was made and seem unlikely to live together again; and
3. in the case ofan application for compensation byoronbehalfof a minor, the Board is satisfied that it would not be against the minor's interest to make a full or reduced award.

For the purposes of this paragraph a man and a woman living together as husband and wife but who are not married to each other, or two people of the same sex living together as civil partners but who have not formed a civil partnership with each other, shall be treated as members of the same family.

3. For the purposes ofthis Scheme "personal injury" includes any disease, any harm to a person's physical or mental condition and pregnancy and any reference to "injury" shall be construed as a reference to personal injury.
4. For the purposes of this Scheme "Jersey ship" has the same meaning asin Article 2 of the Shipping (Jersey) Law 2002.

11. Subject to Article 12, applications for compensation shall be made, in the form issued by the Board, within three years of the incident giving rise to the injury.
12. The Chairman may, if he is satisfied that there are good reasons so to do, waive the time limit for making an application, but a decision by the Chairman not to waive the time limit will be final.
13. In considering for the purposes of the Scheme whether any act is a criminal act, any immunity at law of an offender attributable to his youth or insanity or other reason, will be left out of account.
14. Compensation will not be payable unless the Board is satisfied that the injury was one for which the total amount of compensation payable after deduction of social security benefits, but before any other deductions under the Scheme, would be not less than £1,500. The application of the minimum level shall not, however, affect the payment of funeral expenses under Article 25.
15. The Board may withhold or reduce compensation if it considers that –

1. the applicant has not taken, without unreasonable delay, all reasonable steps to inform the police, or any other authority considered by the Board to be appropriate for the purpose, of the circumstances of the injury and to co- operate with the police or other authority in bringing the offender to justice; or
2. the applicant has failed to give all reasonable assistance to the Boardor other authority in connexion with the application; or
3. having regard to the conduct of the applicant before, during or after the events giving rise to the claimor to his character and way of life – and in applications under Articles 25 and 26, to the character, conduct and way of life of the deceased and of the applicant – it is inappropriate that a full award, or any award at all, be granted, and

furthermore, compensation will not be payable –

4. in the case of an application under Article 10(a)(i), if –

1. the personal injury is directly attributable to the apprehension or attempted apprehension ofan offender or a suspected offender or the prevention or attempted prevention of an offence or the giving of help to a police officer who is engaged in any such activity, and
2. the injury was sustained accidentally,

unless the Board is satisfied that the applicant was at the time taking an exceptional risk that was justified in all the circumstances.

16. In  order  to  determine  whether  there  was  any  responsibility,  either  because  of provocation or otherwise, on the part of the victim, the Board will scrutinise with particular care all applications in respect of sexual offences or other offences arising

out of a sexual relationship or where the relationship between the victim and the offender is such that the offender might benefit from any award of compensation made to the applicant and in any such case the Board shall especially have regard to any delay that has occurred in submitting the application and compensation will not be payable unless the Board is satisfied that the offender will not benefit from an award.

17. If in the opinion of the Board it is in the interests of the applicant so to do, whether or not he is a minor or a person under any other incapacity, the Board may pay the amount of any award to any trustee or trustees to hold on such trusts for the benefit of all or any of the following persons, that is to say, the applicant, any spouse, widow, widower,  civil  partner,  surviving  civil  partner,  relatives  and  dependants  of  the applicant, and with such provision for their respective maintenance, education and benefit and with such powers and provisions for the investment and management of the fund and for the remuneration of the trustee or trustees, as the Board shall think fit. Subject to the provisions of this Article, the Board will have a general discretion in any case in which it has awarded compensation to make special arrangements for its administration. In this Article, "relatives" means all persons claiming descent from the applicant's grandparents and "dependants" means all persons who in the opinion of the Board are dependent on him wholly or partially for the provision of the ordinary necessities of life.
18. The Board will consider applications for compensation arising out of acts of rape and other sexual offences in respect of pain, suffering and shock and in respect of loss of earnings  due  to  consequent  pregnancy,  and,  where  the  victim  is  ineligible  for  a maternity grant under the Jersey social security scheme or any similar scheme in operation elsewhere, in respect of the expenses of childbirth. Compensation will not be payable for the maintenance of any child born as a result of a sexual offence, except that where a woman is awarded compensation for rape the Board may award an additional sum, not exceeding £25,000, in respect of each child born alive having been conceived as a result of the rape whom the applicant intends to keep.
19. No payment under this Scheme shall be made in respect of personal injury attributable to a motoring offence except where such injury is due to a deliberate attempt to run the victim down.

SECTION C PROVISIONS AS TO COMPENSATION

Basis of compensation

20. Subject to the other provisions of this Scheme, compensation shall be assessed on the basis of common law damages and shall be paid as a lump sum payment, although the Board may make alternative arrangements in accordance with Article 17.
21. (a)  More than one payment may be made where an applicant's eligibility for compensation has been established but a final award cannot be calculated in the  first  instance  by  reason  of  the  fact  that  only  a  provisional  medical assessment can be given.

(b)  In such a case as is referred to in paragraph (a) above, the Board may decide to make a reduced award, increase any reduction already made or refuse to make  any  further  payment  at  any  stage  before  receiving  notification  of acceptance of the final award.

22. Notwithstanding Article 8, the Board may reconsider a case after a final award of compensation has been accepted where there has been such a serious change in the applicant's medical condition that injustice would occur if the original assessment of

compensation were allowed to stand, or where the victim has since died as a result of his injuries.

23. A case will not be reconsidered more than three years after the date of the final award unless  the  Board  is  satisfied  that,  on  the  basis  of  evidence  presented  with  the application for reconsidering the case, the renewed application can be considered without a need for extensive enquiries. A decision by the Board that a case may not be reconsidered will be final.

Limits of compensation

24. Compensation will be limited as follows –

1. the rate of net loss of earnings, or earning capacity, per week to be taken into account shall not exceed 1.5 times the mean earnings per week of full-time equivalent employees in Jersey across all sectors at the date of assessment (as published in the Jersey Index of Average Earnings);
2. there shall be no element of comparable or exemplary or punitive damages;
3. the total award shall not in any case exceed £100,000.

25. (a)  Where the victim has died in consequence of the injury, no compensation other than the funeral expenses will be payable for the benefit of his estate, but the Board may consider applications from his spouse or civil partner and dependants. For this purpose, subject to Article 28, compensation will be payable to –

1. any person entitled to claim under the Fatal Accidents (Jersey) Law 1962, and
2. a person either to whom the deceased was alleged to be married by habit or repute, or with whom the deceased was alleged to be living as that person's civil partner (whether or not they had formed a civil partnership with each other), and who was living with the deceased in the same household during the whole of the period of two years immediately preceding the date of the death,

such compensation being payable to the extent and on the conditions set out in respect of damages in the Fatal Accidents (Jersey) Law 1962;

(b)  Funeral expenses to an amount considered by the Board to be reasonable will be paid by the Board in appropriate cases even where the person bearing the cost  of  the  funeral  is  otherwise  ineligible  to  claim  under  this  Scheme. Applications may be made under this paragraph where the victim has died from his injuries even if an award has been made during his lifetime. Such cases will lie subject to the conditions set out in Article 22 for the re-opening of cases and compensation payable to the applicant will be reduced by the amount paid to the victim.

26. Where the victim has died otherwise than in consequence of the injury, the Board may make an award in respect of loss of wages, expenses and liabilities incurred before his death as a result of the injury whether or not application for compensation in respect of the injury has been made before his death.

27. Compensation will be payable for loss or damage to clothing and other personal adjuncts arising from the injury, but in respect of loss or damage to jewellery, watches or rings the amount awarded shall not exceed £150. Save as aforesaid, compensation will not be payable for loss of or damage to property.
28. Compensation will be reduced by the full value of any payment that, as a result of the injury or death, the person to whom the award is made has received or is or will be entitled to receive by way of –

1. benefits  payable  under  the  Social  Security  (Jersey)  Law  1974 (but  not maternity grant or maternity allowance);
2. social security benefits (but not maternity grant or maternity allowance), compensation awards or similar payments from the funds of other countries;
3. income support payable under the Income Support (Jersey) Law 2007;
4. payments under insurance arrangements, except arrangements as excluded in Article 29.

29. Insurance effected, paid for and maintained by the personal income of the injured person, or in the case of a  minor by  his parent, is excluded from the insurance arrangements referred to in Article 28.
30. In assessing the amount of an award, account will be taken of any income tax liability likely to reduce the value of such benefits and, in the case of an application under Article 25 in respect of a person who was married or in a civil partnership, the value of such benefits will not be reduced to take account of prospects of the person to whom the award is made re-marrying or forming a new civil partnership. If, in the opinion of the Board, an applicant may be eligible for such benefits as are mentioned in Article 28, the Board may refuse to make an award until the applicant has taken such steps as the Board considers reasonable to claim them.
31. Where the victim is alive, compensation  will be reduced to take account of any pension accruing as a result of the injury. Where the person has died in consequence of the injury, and any pension is payable for the benefit of the person to whom the award is made as a result of the death of the victim, the compensation will similarly be reduced to take into account the value of that pension. Where such pensions are taxable,  one  half  of  their  value  will  be  deducted;  where  they  are  not  taxable, e.g. where a lump sum payment not subject to income tax is made, they will be deducted in full. For the purposes of this Article, "pension" means any payment payable as a result of the injury or death, in pursuance of any pension or other rights whatsoever connected with the victim's employment, and includes any gratuity of that kind and similar benefits payable under insurance policies paid for by employers. Pension rights accruing solely as a result of payments by the victim or a dependent will be disregarded.
32. When a civil court has given judgment providing for payment of damages or a claim for damages has been settled on terms providing for payment of money, or when compensation has been ordered by a criminal court, in respect of personal injury, compensation by the Board in respect of the same injuries will be reduced by the amount of any payment received under such an order or settlement. When a civil court has assessed damages, as opposed to giving judgement for damages agreed by the parties, but the person entitled to such damages has not yet received the full sum awarded,  he  will  not  be  precluded  from  applying  to  the  Board,  but  the  Board's assessment  of  compensation  will  not  exceed  the  sum  assessed  by  the  court. Furthermore, a person who is compensated by the Board will be required to undertake to  repay  the  Board  from  any  damages,  settlement  or  compensation  he  may

subsequently  obtain  in  respect  of  his  injuries.  In  arriving  at  its  assessment  of compensation, the Board will not be bound by any finding of contributory negligence by any court, but will be entirely bound by the terms of this Scheme.

SECTION D PROCEDURE AND IMPLEMENTATION

Procedure for determining applications

33. Every application will be made to the Board as soon as possible after the event on a form obtainable from the offices of the Board which may, where necessary, seek further information as to the relevant circumstances.
34. Every application will be referred to two members of the Board, at least one of whom is  an  advocate  or  solicitor  of  not  less  than  five  years  standing,  selected  by  the Chairman.  They  will  consider  the  information  and  statements  which  have  been obtained, may request the applicant to attend upon them for the purpose of viewing his injuries and will make an initial decision on the amount of any compensation to be awarded, unless, either because they are unable to agree or for any other reason, they decide that the application should be referred to the Board for a decision.

34A.  The  applicant  will  be  informed  as  soon  as  practicable  whether  or  not  an  initial

decision has been reached and if it has and an award is made he will be given a breakdown  of  the  assessment  of  compensation,  unless  the  Board  considers  this inappropriate, and if the decision is to refuse or reduce an award the reasons for this decision will be given.

34B.  If an application is referred to the Board under Article 34, the Board, but not the

members to whom the application was first referred, will consider the application at a hearing as if the hearing was at the request of the applicant.

35. If the applicant is dissatisfied with the initial decision, he will be entitled to a hearing before the Board at which the members who made the initial decision will not be present.
36. An application for a hearing must be made within three months of notification of the initial decision; however the Chairman may waive this time limit where an extension is requested with good reason within the three month period, or where it is otherwise in the interests of justice to do so.
37. A decision of the Chairman not to waive the time limit will be final.
38. It will be for the applicant to make out his case at the hearing, and where appropriate this will extend to satisfying the Board that compensation should not be withheld or reduced under the terms of Articles 15 or 16. The applicant may be assisted by a person of his own choice but the Board shall not be liable, and will not pay, the costs of legal representation. However, the Board will have a discretion to pay the expenses of the applicant and witnesses at a hearing. The Board may be assisted by a person of its choice.
39. The applicant, the Board and any person assisting either of them will be able to call and examine and cross examine witnesses and to introduce documentary evidence.
40. The  Board  will  be  able  to  take  into  account  any  relevant  matter,  including  any information and statements considered by the two members of the Board to whom the

application was initially referred under Article 34, and may receive oral and written evidence at the hearing.

41. The Board will reach its decision solely in the light of the relevant matters taken into account and evidence brought out at the hearing, and all the information, statements and evidence made available to the Board members will be made available to the applicant at, if not before, the hearing.
42. Procedure  at  the  hearing  will  be  as  informal  as  is  consistent  with  the  proper determination of the application, and hearings will in general be public. The Board may sit in private when it is satisfied that it is desirable to do so in order to protect the anonymity of the applicant and any other parties. The Board will have power to publish information about its decisions in individual cases, limited only by the need to preserve the anonymity of the applicant and other parties.
43. For the purposes of determining an application, the Board may require the injured person to undergo a medical examination at the cost of the Board and, in any case where the injured person refuses to undergo such an examination, no payment shall be made to him.

43A.  (1)  If, within the 6 months after an applicant is informed of an award in his

favour, the applicant does not accept the award, the award shall lapse and no longer be payable.

2. However, the Chairman may extend the time for the acceptance of the award if –

1. the  extension  is  requested  within  the  6 months  referred  to  in paragraph (1) and the Chairman considers that the request is made with good reason; or
2. the Chairman considers that it is otherwise in the interests of justice to do so.

3. If an application has been the subject of an initial decision under Article 34 and an award has been made on that basis, nothing in paragraph (1) shall prevent the making of an application in accordance with Article 36 for a hearing in the same matter or affect the Board's power to hear and decide such an application.

Implementation of the Scheme

44. This Scheme will come into force on the first day of May 1991. Applications in respect of injuries suffered on or after 1st May 1991 will be dealt with under the terms of this Scheme. Applications in respect of injuries suffered before that date will be dealt with under the terms of the Scheme which came into force on the 1st June 1970. Where an initial decision of the Board in respect of an injury suffered before 1st May 1991 –

1. is notified after that date, the time limit of three months under Article 36 will apply to any application for a hearing;
2. was notified, but not accepted, before that date, an application for a hearing will not be entertained after 31st July 1991 unless the Board considers there is a good reason to extend this time limit.

45. Cases in respect of injuries suffered before 1st May 1991 may be re-opened, subject to the conditions set out in Articles 22 and 25, for review under the terms of the Scheme which came into force on 1st June 1970. A decision by the Board not to waive or extend the time limits referred to in this paragraph will be final.