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High Court of Justice in Northern Ireland Queen's Bench Division Decisions
You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> Creighton, Re Application for Judicial Review [2001] NIQB 15 (23 April 2001)
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Cite as: [2001] NIQB 15
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Neutral Citation no. [2001] NIQB 15
Ref:
KERF3405
Judgment: approved by the Court for handing down
Delivered:
23.04.2001
(subject to editorial corrections)
IN THE MATTER OF AN APPLICATION BY RALPH CREIGHTON FOR JUDICIAL REVIEW
KERR J
Introduction
By virtue of Article 5 (9) of the Criminal Injuries (Compensation) (Northern Ireland) Order 1988 compensation is not payable in respect of a criminal injury to any person who has been engaged in the commission, preparation or instigation of acts of terrorism.
Article 10 (2) of the 1988 Order empowers the Secretary of State for Northern Ireland, (if he considers it in the public interest to do so), to pay to a person ineligible by reason of Article 5 (9) such sum as would not exceed the compensation that he might otherwise have received.
The applicant, Ralph Creighton, sustained very serious injuries when he was shot by an unknown gunman on 20 February 1993. He applied for compensation under the 1998 Order but this was refused because he had been convicted on 10 March 1977 of a number of offences involving an attack on a dwelling house with a petrol bomb. His appeal against the refusal of compensation was dismissed by His Honour Judge Brady QC on 22 September 1999. On 9 December 1999 Mr Creighton's solicitors made a submission on his behalf to the Secretary of State that he should exercise his power under Article 10 (2) to make a payment to Mr Creighton in respect of the injuries that he had sustained on 20 February 1993. The applicant was informed by letter of 7 April 2000 that the Secretary of State had decided not to make a payment. By this application, Mr Creighton challenges that decision.
The statutory framework
The 1988 Order (and its predecessors) provided for a scheme of compensation to be paid to those who were the victims of a criminal injury. A 'criminal injury' is defined in Article 2 (2) as meaning: -
" an injury (including an injury which results in death) directly attributable to-
(a) a violent offence"
A violent offence includes "any offence which was intended to cause death [or] personal injury" and "any offence committed by causing the death or injury to any person, where the state of mind of the person committing the offence consisted of recklessness as whether he caused death [or] personal injury". The attack on the applicant was clearly a violent offence and it is accepted, therefore, that he was the victim of a criminal injury in February 1993.
Article 3 (1) of the Order provides: -
"Subject to and in accordance with the provisions of this Order, where a person sustains a criminal injury in Northern Ireland after the coming into operation of this Order the Secretary of State shall, on application made to him, pay compensation."
It is clear from this provision that entitlement to compensation is not unqualified. A victim of a criminal injury must apply before compensation will be paid and the payment of that compensation is conditional upon the applicant satisfying the other conditions that arise under the Order such as making the application in the manner prescribed (Article 4(1)), undergoing a medical examination if required to do so by the Secretary of State (Article 5 (3) (a)), making full disclosure to a constable within forty-eight hours (Article 5 (4) (a)).
Under Article 6 (1) (a) the Secretary of State must have regard to any provocative or negligent behaviour on the part of the applicant for compensation in assessing the amount of compensation to be paid and whether it should be paid at all. He must also have regard to any criminal convictions of the applicant for the same purposes (Article 6 (1) (b)). Clearly, therefore, entitlement to compensation is not automatic on sustaining a criminal injury and there is a variety of circumstances where it will either not be paid at all or will be reduced.
One instance where compensation is not payable at all is to be found in Article 5 (9) of the Order. It provides: -
" no compensation shall be paid to, or in respect of a criminal injury to, any person-
(a) who has been a member of an unlawful association at any time whatsoever, or is such a member; or
(b) who has been engaged in the commission, preparation or instigation of acts of terrorism at any time whatsoever, or is so engaged."
Terrorism is defined in Article 2 (2) as "the use of violence for political ends and includes any use of violence for the purpose of putting the public or any section of the public in fear". Judge Brady found that the applicant had been engaged in terrorism by reason of his involvement in the petrol bomb attack in 1977. That finding is not challenged in these proceedings.
The blanket prohibition on the payment of compensation provided for in Article 5 (9) is mitigated by the discretionary payment scheme of Article 10 (2) which provides: -
"Where, but for Article 5 (9), compensation would be payable to any person, the Secretary of State may, if he considers it to be in the public interest to do so, pay to him such sum as does not exceed the amount of that compensation."
It is to be noted that the Secretary of State may only make such a payment when he considers it in the public interest to do so. Even then he is not obliged to make the payment, although it is difficult to envisage circumstances in which, having decided that it was in the public interest that payment should be made, the Secretary of State would withhold that payment.
The submission to the Secretary of State
Dealing with the offences of which he was convicted in 1977, the applicant's solicitors, in the submission to the Secretary of State, pointed out that these had been committed when he was 18 years old. The offences had been carried out on 9 August 1976, a day of high sectarian tension. It was claimed that the applicant had not physically participated in the bombing of the house that had been the target of the attack but was part of the joint enterprise.
The applicant was sentenced to five years imprisonment and was released in 1979. From that time onwards he had not been involved in paramilitary activity, according to the submission made to the Secretary of State. He had involved himself in the local community, setting up a local football club and became its chairman. He had also been in regular employment. He is married and the father of two daughters.
The Secretary of State's decision
The decision to refuse payment was taken by a Minister of State on behalf of the Secretary of State. Denis Stanley, the Chief Executive of the Compensation Agency, in an affidavit filed on behalf of the respondent, stated that certain material had been obtained in order to advise the Minister about the applicant's submission that a payment should be made under Article 10 (2). This included information from the police about the applicant's background and behaviour since his release from prison. That information contained nothing unfavourable to the applicant, according to Mr Stanley. It was also ascertained that compensation of £4702.49 had been paid to victims of the applicant. Advice was sought about the likely value of the applicant's claim. Mr Stanley received and considered the representations from the applicant's solicitors and these were included in the submission to the Minister. Certificates of conviction in respect of the offences of which the applicant was convicted in 1977 were also obtained.
Mr Stanley stated that the criteria used by the Secretary of State in dealing with this type of application were those quoted in Sir Kenneth Bloomfield's report on Criminal Injury compensation. These appear at paragraph 3.38 of the report as follows: -
" we were advised that the factors generally taken into account by the Secretary of State when deciding whether or not to exercise [Article 10 (2)] discretion include the following: -
· the seriousness of the terrorist conviction(s) and the extent of involvement, if any, with an unlawful association;
· the offender's age at the time the offence(s) were committed and the length of time which has elapsed since the offence(s) were committed;
· his subsequent pattern of behaviour as suggested by his criminal record and information supplied by the police;
· his subsequent pattern of behaviour as indicated by any positive contribution to the welfare of the community;
· whether criminal injuries or criminal damage compensation was paid in respect of any offence committed by the offender and, if so, its amount;
· whether there was any connection between the offender's criminal behaviour and the injuries or damage subsequently sustained;
· the circumstances which gave rise to the applicant's claim for compensation; and
· in those cases where payment is to be made, the amount should be appropriate to the particular circumstances of the case."
Mr Stanley made a submission to the Secretary of State, rehearsing all the information obtained and recommended that, in view of the seriousness of the offences committed by the applicant, no award should be made. The Secretary of State accepted that recommendation.
The judicial review application
Mr McNulty QC submitted on behalf of the applicant that the Secretary of State had not advised him of any matter that might weigh against him in the decision as to whether a payment should be made. It was suggested, therefore, that the applicant had been treated unfairly. Reasons that he should not receive payment under Article 10 ought to have been notified to him in advance of the submission to the Secretary of State so that he could make informed submissions on these. He should also have been informed of the reasons for the Secretary of State's decision not to exercise his discretion under Article 10 (2).
Mr McNulty further submitted that all of the factors outlined in the Bloomfield report were in the applicant's favour. The decision by the Secretary of State not to order a payment under Article 10 was therefore irrational. This was particularly so, Mr McNulty suggested, because the primary obligation on the Secretary of State in this context was to pay compensation when a criminal injury had been suffered. The right to receive compensation was not extinguished by Article 5 (9), Mr McNulty argued; it was merely suspended in certain instances. The Minister ought to have approached his task under Article 10 (2) on the basis that the applicant was prima facie entitled to compensation. Furthermore, Mr McNulty said, the only factor cited against the applicant was the seriousness of the offence that he had committed. When one balanced this against the catastrophic nature of the injuries suffered by the applicant and all the other favourable factors that obtained in his case, the only possible outcome was that the discretion available to the Secretary of State should have been exercised in the applicant's favour.
Mr McNulty also claimed that the manner in which the decision was taken was in violation of the applicant's rights under Article 6 of the European Convention on Human Rights. He suggested that, since the applicant had a right to compensation under the Order, his civil rights were engaged and that the failure to afford him the opportunity to make representations before an impartial tribunal was in breach of Article 6.
For the respondent Mr Maguire submitted that the offence of which the applicant had been convicted was one which had traditionally been regarded as one of extreme seriousness. Article 10(2) invested the Secretary of State with a very wide discretion and it was to be remembered, said Mr Maguire, that the minister was accountable to Parliament. Moreover, the Secretary of State was deciding what was in the public interest and that type of decision ought generally to be immune from judicial superintendence.
In relation to the applicant's argument that he was unaware of the factors that would influence the Secretary of State's decision, Mr Maguire pointed out that the Bloomfield report was a published document; in any event, the submission made by the applicant's solicitors had covered all the factors outlined in that document.
It was submitted that the Secretary of State was not under an obligation to give reasons for his decision. This was an administrative rather than a judicial decision; it was not so aberrant that the giving of reasons was required. Even if it could be said that reasons required to be given, these had now been supplied by the affidavits filed on behalf of the respondent.
Mr Maguire argued that Article 6 of the Convention was not engaged since no civil right or obligation was in dispute. The applicant sought payment of compensation by the exercise of a discretion. He did not have a right to compensation. He was entitled only to expect that the Secretary of State would give consideration to his case. This was not sufficient to activate Article 6 rights. Alternatively, if Article 6 was engaged, the applicant's rights deriving from that Article had been satisfied by the previous court proceedings and the application for judicial review.
The giving of reasons
This subject has two aspects in the present case. First whether the applicant was entitled to be told in advance of the decision by the Secretary of State about those matters that were likely to weigh against him. Secondly, should the Secretary of State have informed the applicant of the reasons that he had decided not to exercise his discretion in the applicant's favour?
Whether someone is entitled to know of the factors which are likely to influence the decision maker, before a decision is taken which will affect him, will depend on what fairness, in the particular circumstances, demands R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531, 560.
In the present case the applicant well knew that he had been refused compensation because of his earlier conviction. He and his legal advisers were clearly alive to the importance of this as a factor in the Secretary of State's deliberations because they dealt with it comprehensively in the submission seeking the exercise of the discretion under Article 10 (2). In the event, therefore, the applicant was aware of the factor that weighed with the Secretary of State in refusing compensation. It was not suggested that he would have canvassed any other matter, had he been told in advance that this was the matter that was likely to influence the Secretary of State to an adverse decision. In these circumstances, I do not consider that fairness demanded that the applicant be told in advance of the considerations that would be unfavourable to him.
I am also of the opinion that the Secretary of State was not obliged to give reasons for his decision. There is no statutory requirement to give reasons and the decision of the minister as to what is in the public interest is very much a value judgment. This is the type of administrative decision that does not normally call for the giving of reasons see Re Adams [2001] unreported, at pages 24 to 27. In any event, the affidavit of Mr Stanley, filed on behalf of the respondent in these proceedings, fully explains the reasons that lay behind the Secretary of State's decision and, if I considered that reasons required to be given, I would have held that this requirement had been satisfied by the averments in that affidavit see Re Anglin [1995] unreported, at pages 13/14.
The rationality argument
Central to the applicant's case that the decision of the Secretary of State was irrational was the proposition that all of the factors outlined in the Bloomfield report were in the applicant's favour, apart from his involvement in the petrol-bombing incident. It was suggested that, by reason of this, the Secretary of State had no alternative but to accede to the application under Article 10 (2).
I cannot accept that proposition. The courts in this jurisdiction have made it clear repeatedly that petrol bombing of the type on which the applicant embarked is a crime of the utmost gravity see for instance R v Shaw and Houston [1989] 8 NIJB 60. The passage of time from the incident and the fortuitous escape from significant injury by the occupants of the house attacked may cast a somewhat less serious complexion on the crime but this remains a very grave incident in which the lives of a number of people were put at substantial risk. Even though the applicant's involvement in the petrol bombing may have been the only adverse factor, I could not conclude that the Secretary of State's decision was irrational.
In this context, it is relevant that the Secretary of State was taking a decision "in the public interest". Such a decision draws on a wide variety of factors and depends to a large extent on political judgment. As has been held in Re Williamson [2000] 281, 303 the court in such circumstances should be "somewhat more ready than in some other cases to assume a higher degree of knowledge and expertise on the part of the decider". Where a decision is taken by a minister who is answerable to Parliament on what lies in the public interest, the court should be less ready to intervene.
Mr McNulty's argument that the decision of the Secretary of State ought to have been taken against the background of the applicant's prima facie entitlement to compensation can be dealt with shortly. As I have already pointed out, the right to receive compensation is not unqualified. A person who has suffered a criminal injury must fulfil a number of requirements before compensation becomes payable. Moreover, the effect of Article 5 (9) of the Order is to forbid the payment of compensation to those such as the applicant who are deemed to have been engaged in the commission, preparation or instigation of acts of terrorism. There is no question, therefore, of the applicant being prima facie entitled to compensation.
Article 6
On behalf of the respondent, Mr Maguire submitted that, since the decision of the Secretary of State had been taken before the coming into force of the Human Rights Act 1998, the applicant could not rely upon Article 6 of the Convention. An interesting argument arises as to whether, as the decision is of enduring effect, the denial of compensation may be said to be in breach of his Convention rights at present and that the applicant can require the court as a public authority to ensure that those rights are protected. I do not have to reach a decision on this question, however, because I am satisfied that a breach of Article 6 does not arise in this case.
Article 6 (1) provides: -
"In the determination of his civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law "
In Masson and Van Zon v Netherlands [1996] 22 EHRR 491, the European Court of Human Rights held that a claim for travel expenses and subsistence costs made by two defendants acquitted of criminal charges did not involve a civil right since there was no provision in Dutch domestic law which entitled the applicants to claim them. Article 6 was not engaged, therefore. Similarly, in Machatova v Slovak Republic 24 EHRR CD24 it was held that the applicant's claim for education allowance to which she had no formal entitlement did not engage Article 6. Whether the applicant should receive such allowance lay within the discretionary power of the administrative authorities. No civil right was vested in the applicant and the claim that the denial of the education allowance was in breach of Article 6 failed.
Likewise, in the present case, the applicant is not entitled under domestic law to claim compensation. In fact he is debarred from recovering compensation by virtue of Article 5 (9). The opportunity available to the Secretary of State to pay compensation, notwithstanding the effect of Article 5 (9), does not give the applicant entitlement to that compensation. I am satisfied that Article 6 does not apply to the applicant's claim that the Secretary of State should have exercised his powers under Article 10 (2), therefore.
Conclusions
I have concluded that the requirements of fairness did not entail the giving of reasons to the applicant for the Secretary of State's decision, either in advance of that decision or after it had been taken. I am satisfied that the claim that the decision was irrational has not been made out and that Article 6 of the Convention was not engaged. The applicant's claim must be dismissed, therefore.
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
IN THE MATTER OF AN APPLICATION BY RALPH CREIGHTON FOR JUDICIAL REVIEW