Luke Moffett, Slugger O’Toole, 8 June 2020
There has much debate about the implementation of the pension for seriously injured victims over the past few days. The sites of contention have seemed to shift over the past two weeks from which department would be responsible for the scheme, who will fund it (given its UK reach), who will be eligible to what the guidance on conviction states. Despite much sympathy and sweet words for years by politicians around the pension issue, there has been little push within the Executive Office to implement it.
In the Irish News on Saturday I wrote about the timing pressure to implement the already legislated scheme for seriously injured victims. The Wave Injured Group has been advocating for the pension for years. Many seriously injured victims are in their old age and want to have some financial security, independence and control over their own destiny in their final years. The passing of the Victims Payment Regulations on the 31st January this year, brought a relief to many victims that they could apply for a much needed pension at the end of May.
However the NI Executive Office, as required by the law, failed to designate a department on the 24th February to be responsible for the establishment of the Victims Payment Board. Victims who have campaigned for years on this issue are now going to take a judicial review to force the Executive Office to comply with the law. The resounding word used over the past few days to describe the situation has been ‘shameful’. I want in this post to provide some context and detail to the issue around the guidance and compensation with past convictions.
The Scheme and the Guidance
Under the regulations the victim payment scheme is to be open to anyone who suffered a serious injury that resulted in permanent disablement as a result of a Troubles related incident between 1966-2010 in the UK or on more limited grounds if in the EU. I have explained it in more detail here.
The likely cost of the scheme is to be around £115 million for the first five years, reflecting the back payments and lump sums to victims who choose this, with subsequent years being around £5 million as the numbers of victims reduce. This is based on an estimate that eligible victims recorded by the VSS and other disability benefits, accounting for roughly 1500-2000 victims. There is no reason why the UK government could not fund the start up costs of the scheme (back-payment and lump sum), with the NI Executive picking up the annual £5 million estimate annual cost of the monthly pensions.
The law on the victim payments is clear: only those who are injured and convicted in a Troubles-related injury that caused this injury are excluded, (i.e. injured by their own hand). However, such individuals could later be eligible to apply if the Criminal Case Review Commission overturns their conviction.
Other individuals who have convictions over 2.5 years, are injured and meet the requirements of being permanently disabled are entitled to apply. They will be assessed by a different panel in the scheme, who will take into account a range of factors. The BBC has obtain a copy of this guidance, which according to them includes the consideration of mitigating factors of:
- Where the applicant demonstrates remorse and/or has sought restitution or to make positive contribution to society since the time of that conviction;
- If the offence was committed when the applicant was a juvenile;
- If a medical adviser appointed by the panel considers that psychological trauma caused by the Troubles may have contributed to subsequent offences;
- The vulnerability of the individual due to mental of physical incapacity or brain injury
Aggravating factors include having recent convictions, reflecting that the passage of time and the impact of the injury are more important to entitle a person to a payment. The factor of remorse/restitution or contribution to peacebuilding may not be appropriate when we are dealing with individuals who were left seriously injured and disabled. Moreover, many non-state paramilitary armed groups have made apologies as an organisational level, rather than as individuals. Also it could create difficult disclosure obligations for individuals to suggest they evidence how they have apologies or carried out restitution to a victim’s family, which may implicate them in further crimes. As such we may be raising the bar too high.
We also need to think whether or not this three person panel is the best place for contrition, rather than through other Stormont House Agreement proposed institutions and more broadly whether in-private, legal bodies are best place for such reconciliatory moments that are more bureaucratic processes than relational between those harm and those responsible.
Under the Victims Payment scheme the Judge acting as President of the Board can also rule that an award to an individual is inappropriate in exceptional circumstances, but these are limited to two grounds of continuing involvement in terrorism evidence by convictions or civil judgements.
The guidance has not been made public yet, as it still remains in draft, suggesting some room for negotiation between the Executive and the NIO. In our own submission to the NIO consultation we recommended similar considerations and that the members on the panel weighing up these factors should be selected based on their qualities and experience that are likely to command the respect and confidence of victims, public authorities and others, and are able and willing to exercise their functions in an independent, impartial and sensitive manner. Indeed the Regulations require three panel members including a legal practitioner, a medical practitioner and an ordinary member.
Compensation and Convictions
The discretion to withhold compensation based on spent or unspent convictions has for a long time used in Northern Ireland, and continues under the Criminal Injuries Compensation Scheme. There are similar powers to exclude an individual with a criminal conviction in the rest of Ireland and England and Wales.
A repeated issue against the victim payment scheme is the suggestion that it is discriminatory. The European Convention on Human Rights under Article 14 prohibits discrimination on the basis of status (sex, gender, religion etc.) for the enjoyment of other rights and freedoms with the Convention. That said, for social policy around issues such as compensation, a wide margin of appreciation is given to States when dealing with those with past serious convictions. This is in line with the 1983 European Convention on the Compensation of Victims of Violent Crimes, which allows compensation to be reduced or refused on account of the victim’s ‘involvement in organised crime or his membership of an organisation which engages in crimes of violence’ or would be ‘contrary to a sense of justice or to public policy.’ This is justified on the grounds that tax revenue should not be used to provide compensation to those who do not compensate their victims.
Recently the English and Wales Court of Appeal upheld two applicants’ refusal of compensation by the Criminal Injury Compensation Agency on the grounds they had unspent convictions. This was seen as human rights compliant and did not violate Article 14 on the grounds it was for a legitimate aim and proportionate in the means used to achieve that aim. Last month the Northern Irish High Court ruled on similar grounds upheld the withholding compensation miscarriages of justice on the Secretary of State’s discretion.
The Victims Payment scheme by having factors for the panel to consider it is a more transparent and restricted discretionary process than the Secretary of State’s decision to reject payments under the Criminal Injury Compensation Scheme.
In other countries we have worked in on these issues, ex-combatants have as an organisation or on an individual basis contributed to reparations to victims. In some cases this meant seizing family property, imposing debts on family homes and requiring monthly contributions to victim reparation funds. However this is not conducive to dealing with the past in Northern Ireland or in line with the nature of the Victims Payment Scheme, which its stated purpose is to acknowledge the harm suffered by injured victims and promote reconciliation.
The panel to determine those with convictions as appropriate is to ensure confidence in the system and will be guided by factors that take into account their hardship and harm. The panel is to avoid the situation that occurred around the proposals of the Consultative Group of the Past where everyone was included and the proposals got through out as a result.
Some have suggested that those eligible should be based on 2006 Victims and Survivors (NI) Order. However the Order only defines those victims as individuals ‘appearing to’ the Commission for Victims and Survivors, it does not give any further entitlement. In addition, most countries around the world do not use such a broad definition for victim payments, but instead concentrate resources on those most seriously affected by violence.
It is important to remember that very few individuals who have convictions will meet the criteria of having an injury that is caused by a Troubles-related incident and results in permanent disability. A number of individuals have never been prosecuted who may be injured by their own hands, though it would be difficult for them to evidence a Troubles-related incident to account for their loss. Also those who were members of paramilitary organisations and were never convicted, but were seriously injured, would not be assessed by the panel for applicants with convictions.
No one deserves to suffer such violence and should have access to an effective remedy through this pension to acknowledge and relieve some of the consequences of their harm. This is in a way about reconstructing values, in particular around the rule of law and human rights, that no matter the person they should not have suffered such violations of their bodily integrity and where they did they should have an effective remedy.
Finding common ground
While some have argued that as Westminster has passed the scheme and it is eligible to those in the UK it should be under the remit of the NIO, this overlooks the need for local ownership in dealing with the past. Some have suggested that the scheme origins in Westminster means it is the British government’s narrative, but the Victims and Survivors (NI) Order 2006 was passed in the same manner. It is understandable given the ‘logjam’ in the failure of politics to see beyond their own side, but we need to find common ground to move forward with solutions on the past that can meet each other half way. The Victims Payment scheme does that by only excluding those from claiming who have been injured in an incident they were convicted in. The few dozen other ex-prisoners who are seriously injured are entitled to apply.
There is need for reasonable accommodation between two polar opposites. It was only a few months ago that one party tried to redefine the Victims and Survivors (NI) Order to include only innocent victims. The Executive Office is required by law to designate a department to establish the Board for the victim payments. A written letter from the Executive Office to the Department of Justice is all that is needed to get things moving, the guidance can be refined in the coming weeks.
We need grown up politics to deal with the past that was promised in the New Decade, New Approach Agreement. This has been seen with the Executive coming together to tackle Covid-19. Seriously injured victims cannot wait any longer, forcing them to get the government to follow the law is a further source of secondary victimisation.