Sunday 28 August 2016

Lyons verdict a wake-up call to address compensation laws

Ivana Bacik

Published 04/08/2014 | 02:30

Anthony Lyons
Anthony Lyons

CAN a serious offender reduce his prison term by paying compensation to the victim?

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This question has finally been addressed by the Court of Criminal Appeal (CCA) in its important judgment this week in the high-profile Anthony Lyons case.

The CCA imposed a longer prison term, requiring that the offender serve two years, rather than six months, of the original six-year sentence.

He has now been returned to prison as a result.

Mr Lyons was convicted of sexual assault in 2012, having attacked a woman two years earlier while she was walking home at night along Griffith Avenue in Dublin.

The attack was particularly vicious, ending only with the fortuitous intervention of a passer-by.

The assault had a severe and extensive emotional and psychological impact upon the victim and her family.

Controversially, in imposing an effective six-month prison term, the Circuit Court trial judge also made a compensation order for €75,000 under section 6 of the Criminal Justice Act 1993.

This allows a court to require that the victim be paid compensation by the offender 'instead of or in addition to dealing with him in any other way'.

Under the law, a court must have regard to the offender's means in making this order. In practice, however, compensation is rarely ordered in serious criminal cases - a fact noted by Mr Justice John Murray, in giving the CCA judgment. This is because the vast majority of serious offenders are of limited means.

By contrast, Mr Lyons had run a successful business and was able to pay a substantial sum.

However, the making of the order in his case, coupled with the suspension of most of his prison term, created the misapprehension that Mr. Lyons had been able to pay his way out of serving a longer prison term.

The CCA noted that this was in fact an erroneous view; the trial judge had made no error in imposing a compensation order, or in the weight he attached to it in sentencing as one of a range of mitigating factors.

The trial judge's error, the appeal court found, was giving undue weight to the totality of mitigating factors.

Judge Murray was strongly critical of the wording in section 6 of the now 21-year-old law.

He said that it was unsatisfactory to give the guilty party the option of requiring compensation 'instead of' some other sentence, because this 'risks giving rise to the misconception that in such serious cases an accused could escape the appropriate sentence simply by the payment of compensation.'

This criticism is a wake-up call to legislators.

We must amend section 6, to address this risk of misconception, and ensure that a compensation order should only be made 'in addition to' the appropriate sentence for a serious offence.

The CCA also addressed the question of civil compensation. It had emerged during the appeal hearing that Mr Lyons had paid €199,000 to the victim in separate civil proceedings.

However, the court held that this was not a mitigating factor. Judge Murray commented that in every case where a person inflicts criminal injury, they may be liable to pay compensation to the victim in civil proceedings - which are distinct from the criminal process. Such proceedings are relatively uncommon, and not usually resolved until after conviction - so the civil compensation has 
no bearing on the criminal sentence.

For these reasons, Judge Murray ruled that civil compensation is not a mitigating factor, unless there is evidence that a particular payment causes 'special hardship' to the accused, where it could be of marginal mitigation - this was not the case here.

The judgment also deals with a number of other important practical sentencing issues.

Judge Murray noted the long delay in concluding the appeal (due to illness of one original appeal judge), which meant that Mr Lyons had been released from prison some 18 months previously - this could be considered a mitigating factor.

The court also considered whether the impact of the extensive media interest in the case on the accused and his family could be taken into account, but said that it could only be seen as a factor in the 'totality of hardship' experienced by the accused.

Judge Murray emphasised that the media interest had been generated essentially by his own wrongdoing.

This judgment is very useful in giving guidance to practitioners on a number of complex sentencing issues.

Most importantly, it directs us as legislators to address the flaw in the 1993 compensation law.

We must amend section 6 so that in future there can be no doubt that serious offenders, whatever their means, may not escape the appropriate prison sentence.

Ivana Bacik is a member of the Seanad

Irish Independent

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