Mr. Conor Dignam:

There is another particular feature. A section 3A claim for compensation for unlawful detention, which is directed into the Circuit Court by the ECHR Act, can only be made where there has already been a finding by a court that there was unlawful detention. In such a case the substantive issue has already been decided and, in effect, what is being decided by the Circuit Court in this instance is the level of compensation. Under the system being established in the Bill the first things that have to be decided is whether there was a delay, whether there was a culpable delay, in other words whether the State is guilty or responsible for that delay, and how much compensation should be paid. Under the proposed system the first two elements, which are really the substantive findings that have to be made, are being passed to an assessor to determine on the basis of the papers. To draw an analogy, it would be like having an assessor deciding based on papers whether a person has been unlawfully detained. This would not allow the person to make full submissions or representations and would not allow the person alleged to have unlawfully detained the person to make submissions or representations on whether the detention was unlawful. It seems anomalous to put a more complex issue, which is the compensation for delay, into an assessor system with the more straightforward issue of compensation for a detention that has already been found to be unlawful going to the Circuit Court. That seems to give rise to an anomaly.