51030F (12 July 2023)

The Criminal Injuries Compensation Tribunal

In the matter of an application under the Scheme of Compensation for Personal Injuries Criminally Inflicted

Decision of an Appeals Panel

Name of applicant: [ ]

Name of deceased: [ ]

Date of death: [ ]

Application number: 51030F

Date of incident: [ ]

Date of application: [ ]

Date of appeal hearing: [ ]

Appeals panel: Tricia Sheehy Skeffington BL, Majella Twomey BL, Marc Murphy BL

Decision outcome: The application is declined under paragraph 13 of the Scheme.

1. [ ] (‘the applicant’) has made a claim for compensation under the Scheme of Compensation for Personal Injuries Criminally Inflicted (‘the Scheme’). Her application form was completed on [ ] and it was received by the Tribunal Secretariat on [ ].

2. The applicant is the mother of [ ] (hereafter ‘the deceased’) who died on [ ]. The deceased died from gunshot wounds [ ]. The applicant’s claim, which she makes on her and other family members’ behalf, is grounded on the deceased’s clearly violent and criminally inflicted death. Such applications are made under paragraph 3(c) of the Scheme, which allows dependents of a person who has died as a result of injuries criminally inflicted to claim compensation.

3. As stated, the claim is made on behalf of the deceased’s dependents, who are his [ ]. The Tribunal must first express its condolences to the family of the deceased. It is cognisant that the death of any family member brings great pain, and in particular where the death is of a young person and as a result of violence.

4. The Tribunal is bound by the terms of the Scheme. This means that regardless of where its sympathies lie the Tribunal must apply the Scheme properly and fairly. The following assessment is made in accordance with terms of the Scheme. It took into account a 94-page file which comprised the application form, a garda report, birth and death certificates and correspondence.

5. The deceased died on [ ], and this application was made on [ ] Paragraph 20 (for-merly para 21) of the Scheme states (with emphasis added, and in its relevant part):

“Applications should be made as soon as possible but, except in circumstances determined by the Tribunal to justify exceptional treatment, not later than three months after the event giving rise to the injury”.

6. In order to assess whether a late application can be admitted for assessment under the Scheme, the Tribunal must determine whether there are circumstances which on its consideration justify exceptional treatment.

7. In this case, the Scheme’s three-month timeframe for this application would have expired on [ ]. However the circumstances of this case are traumatic, being the death of a son who was violently murdered. Without any doubt the Tribunal’s view is that this is a circumstance which justifies exceptional treatment of extending the deadline for the application.

8. It is clear that the incident is one which falls under the general terms Scheme, being a death caused by a crime of violence.

9. However in this case the Tribunal must consider whether Paragraph 13 (formerly Paragraph 14) applies. This paragraph reads:

“No compensation will be payable where the Tribunal is satisfied that the conduct of the victim, his character or way of life make it inappropriate that he should be granted an award and the Tribunal may reduce the amount of an award where, in its opinion, it is appropriate to do having regard to the conduct, character or way of life of the victim.”

10. The Scheme envisages that the Tribunal should withhold or refuse compensation having regard to a victim’s criminal record, character or way of life. The victim’s family’s way of life or good standing are irrelevant; it is the victim’s life that is the focus of an assessment under Paragraph 13. However, where a question is raised over a deceased’s conduct it is of course the family who are asked hard questions over their loved one’s conduct. Nonetheless the Tribunal must ask these questions to do its job properly.

11. In this case the deceased died by gunshot wounds [ ]. He was in a public place at the time. The deceased’s death has the hallmarks of a targeted hit by a criminal gang.

12. The Garda Report furnished to the Tribunal indicates that the deceased, who was [ ] years’ old when he died, had [ ] convictions. [ ].

13. On [ ] the Tribunal Secretariat wrote to the applicant’s solicitor attaching the Garda Report and highlighting Paragraph 14 of the Scheme. The letter noted that the Tribunal is obliged to consider Paragraph 14 (now Paragraph 13) as part of the deliberative process, and that the applicant should be given an opportunity to comment on paragraph 6 of the Garda Report which set out the deceased’s criminal record.

14. The Single Member’s decision on this file noted the deceased’s criminal record, identified Paragraph 14 of the Scheme and noted that the applicant had been afforded an opportunity to comment on this criminal record by letter of [ ] but that no response to that appeared to have been received to that letter. The Single Member was of the view that the deceased’s significant criminal record brought it into the purview of Paragraph 14 of the Scheme, and thus found it inappropriate to make and award in this case.

15. In a letter to the Tribunal dated [ ], the applicant wrote to the Tribunal setting out communication issues that she had had with her former solicitors. She stated that she had been told by them that “there was no case to answer as my son had previous convictions”. It also stated that to her knowledge her son had convictions for motoring offences and cannabis.

16. On the morning of the appeal hearing the applicant through [ ] communicated that she wished for the Tribunal to decide the case on the papers. The ordeal of appearing on the Zoom platform for the hearing would be too upsetting for the applicant and [ ].

17. It is very understandable on a human level that the applicant and [ ] did not want to attend the Tribunal. The Tribunal however is in a difficult position as it is left with a file that records 38 convictions, including for [ ], in respect of a person who appears to have been subject of a criminal gang’s organised hit. It is reported from the applicant that her solicitor thought that the criminal convictions would negate the claim, but that the ones that she knew of were relatively minor.

18. The Tribunal regretfully is of the view that the balance of probabilities tips towards assessing the conduct, behaviour or character of the deceased as being such that it is inappropriate to make an award of compensation in this case. This is because the deceased’s criminal convictions, accumulated over a short lifetime, are numerous and several are for serious offences. While it has little by way of detail to calibrate exactly how serious the offences were, it notes that the applicant’s solicitor viewed them as serious enough to close off the claim for compensation. The Tribunal is also cognisant of the fact that that the nature of the deceased’s death is consistent with a person who was known to or involved with criminal gangs. There was nothing on file, nor in any correspondence from the applicant to suggest that the attack was random or a case of mistaken identity. There was no suggestion that the convictions were for a period in the deceased’s past. Rather, there letter of [ ] gives the impression that the applicant was not fully aware of the quantity or range of convictions against the deceased.

19. The Tribunal is very aware that a grieving family will receive this decision, and that it is not the decision that they had hoped for. The Tribunal regrets this, and again expresses it sympathies to the applicant and her family.

Tricia Sheehy Skeffington BL, Majella Twomey BL, Marc Murphy BL

Criminal Injuries Compensation Tribunal

12 July 2023