Criminal justice was traditionally seen as a matter primarily between the State and the offender, and the victim’s main function was as a witness to an offence. However, from the 1950s onwards, there was a growing awareness in discussions of criminal law and policy of the marginalisation of victims and the harm caused by the system’s offender-centric focus. A shift began to occur towards a rights-based understanding of victimisation. Over time, victims of crime came to be regarded as people with fundamental rights within the criminal justice system.

Many countries have systems in place for compensating victims of crime. The widespread adoption of state-funded victim compensation schemes was influenced by the victims’ rights movement which highlighted the significant impact of violent crime on victims. Ireland introduced a victims’ compensation scheme in 1974 which was applied retrospectively to the victims of the Dublin and Monaghan bombings. At more than 50 years old, it is high time to reform it. In particular, it is time to enshrine the right to compensation in statute. Statutory rights ensure clarity, certainty and permanency – features which are currently lacking.

Consultation with victims of crime highlighted a number of issues with the existing scheme, including difficult-to-navigate procedures, insufficient funding and long delays in obtaining compensation, which is exacerbated when there is also a criminal case being pursued. Those affected also demonstrated a lack of clarity regarding the application of the terms of the scheme, including who was actually considered a victim under the scheme.

The Law Reform Commission has recommended the creation of a new victim-centred statutory scheme which will take a rights-based approach to compensating victims. It will be administered by an independent statutory body which is staffed by those trained in trauma awareness. Information should be accessible, and if required, the staff of the new body should assist applicants to complete their applications and provide trauma-informed support throughout the compensation process. These reforms should ensure that victims are not re-traumatised by a process that is meant to assist them.

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Under the new scheme, compensation should be paid without delay, and without waiting for the outcome of any criminal or civil proceedings, unless dealing with a claim might interfere with court proceedings. Timely payments should improve the situation of victims – as should the longer application deadline. A conviction is not currently a prerequisite for compensation and the commission recommends that this remains the case.

This statutory body will assess applications and compensate victims for the harm suffered. This should include full reimbursement for financial loss, as is currently the situation. However, unlike the current scheme, the new scheme should include payments for pain and suffering. Victims of violent crime have a right under EU law to “fair and appropriate compensation” in the member state where their injury occurred. The amounts paid for pain and suffering will be based on new scales that are fixed by statutory instrument. This will ensure that the scheme complies with a recent decision of the European Court of Justice which held that national compensation schemes should compensate for pain and suffering.

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While the scheme addresses only the right to compensation for victims of “crimes of violence”, the proposals adopt a sufficiently broad definition of this so that the harms associated with both physical and non-physical violence are captured. Apart from offences which are obviously violent like murder and assault, other offences such as harassment and stalking, intimate image abuse offences and domestic violence offences should be expressly included in the scheme. Recognising that crimes of violence give rise to different levels and types of harm, the definition of harm for the purposes of the new scheme should clearly encompass non-physical impacts arising from particular offences such as sexual offences and domestic violence.

It is intended that the proposed scheme should be accessible to all victims of crimes of violence without discrimination. In general, the crime must be reported to gardaí (or Fiosrú) and applicants must co-operate with the investigating and prosecuting authorities, and with the statutory body itself. This will assist the administration of justice and the work of the new body. There are detailed provisions for exclusions from the scheme, including cases of fraud, collusion or contributory misconduct. The proposals would also allow for the State to recoup double payments (where, for example, damages are recovered in civil proceedings) or payments which are subsequently found to have been based on fraud.

The courts can already order convicted persons to pay compensation to victims. The provision is not frequently used for a variety of reasons and obviously, not every accused person will be in a position to pay compensation. Nonetheless, where a convicted person in an appropriate case has means, it is only right that they should pay compensation to their victims. The commission’s recommendations should result in the increased use of the existing provisions.

The new statutory body should be funded from predictable and sufficient Government funds. Evidence suggests that the limited funds available to the current scheme have delayed payments to victims in the past. Decisions about compensation should be consistent, transparent and subject to an inbuilt internal appeal, to help minimise the delay and costs of appeals. Further recommended safeguards in the new system include the publication of appropriately-redacted decisions and appeals to the High Court on a point of law.

Because of the assistive function which is built into the proposed statutory body, the vast majority of applicants should not require a lawyer’s assistance. However, precertification for a contribution towards legal costs would be permitted in limited cases where an application cannot effectively be made without a guaranteed payment to a lawyer.

This new scheme, if implemented, will ensure that victims’ rights are respected throughout the compensation process. It will provide timely, fair and appropriate compensation to victims, which should help them access the assistance they need and aid their recovery from the impact of violent crime.

Justice Frank Clarke is president of the Law Reform Commission

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