Men win challenges to exclusion from compensation scheme for victims of crime
Posted on 21st December 2022 at 22:59
Actions taken by two men who were both severely injured in separate attacks in Dublin
Two Dublin men have won their High Court challenges against their exclusion from a State scheme that compensates victims of violent crime.
In a judgment, Mr Justice David Holland said a provision should have been made when the terms of the scheme were altered that would have allowed applications to be made on the two men’s behalf for compensation to be considered by the body that considers such applications for compensation.
Mr Justice Holland made his findings in judicial review actions taken by Philip Bowes, who was seriously injured when he was attacked and stabbed in the flats complex where he lives in Dublin in December 2018, and Jason Dunphy who was assaulted in Temple Bar in Dublin in April 2019
Both men were severely injured as a result of the attacks, which were both committed by individuals that were previously unknown to them.
The cases were both test or, lead actions.
A dozen other similar actions brought on behalf of others whose applications were also turned down by the tribunal on similar grounds remain pending before the court.
In their actions against the Criminal Injuries Compensation Tribunal, the Minister for Justice, Ireland and the Attorney General, they sought orders from the High Court quashing the refusal to consider his application to be included in the scheme. The actions were opposed.
The two men, represented in their separate actions by Michael Conlan SC, Paul O’Shea BL, Ian Whelan BL, instructed by Brian Burns BKC solicitors, applied for compensation under the ‘Scheme of Compensation for Personal Injuries Criminally Inflicted.
However, their applications were refused by the Criminal Injuries Compensation Tribunal, the body that administers the scheme, because it was made outside the allowed time limit.
In their High Court judicial review proceedings, the two men claimed the decisions were unlawful and in breach of fair procedures and fair and natural justice. They argued that in April 2021 the tribunal unilaterally changed the terms of the scheme.
Before the change, the scheme allowed victims to make an application within a period of three months from the date of their injury, but this period could be infinitely extended if the tribunal found an application posited exceptional circumstances, it was claimed. Exceptional circumstances exist in both men’s cases, the court was told.
However, in April 2021 the terms of the scheme were changed with the introduction of an absolute limit of two years from the time of the injury for the making of an application.
It was claimed that the changes amounted to a retrospective unlawful interference with their rights to be compensated for their injuries.
In his judgment, Mr Justice Holland said there had been a breach of the legal principle of effectiveness due to a failure to make a transitional provision in the 2021 scheme that allowed for a period to allow potential applicants like the two men to seek to avail of an extension of time due to exceptional circumstances to apply for compensation.
The judge added that the applicants had not demonstrated that the 2021 scheme transgressed the principle of equivalence. The court also did not find that the State may not impose time limits, even relatively short ones on the scheme.
In light of his findings on EU law grounds, the judge said, the court did not need to make a ruling on the constitutionality of the scheme.
The judge added that as the two men had succeeded in their actions they were entitled to their legal costs.
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