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Headnote |
Summary of decision
Secondary claims in the context of sexual abuse within the family are competent in principle and must be evaluated as a matter of fact with regard to the proximity test.
Facts
The petitioner’s (‘W’) husband was convicted of prolonged and protracted sexual abuse of their daughters. As a result of learning of the abuse, W was seriously psychologically traumatised. W’s application for compensation was refused by a single member of the Criminal Injuries Compensation Board (‘The Board’) on the grounds that, “Knowledge of the offender’s behaviour does not constitute personal injury directly attributable to a crime of violence and thus she is not eligibility (sic) under the Scheme”. At a hearing before a full Board, the original decision to disallow the application was confirmed on the basis that W’s injuries were directly attributable to the disclosure of the sexual abuse and not to the sexual abuse itself, accordingly she did not come within paragraph 4(a) of the Scheme. W sought judicial review of the Board’s decision
Held, allowing the application
(1) In the context of the Scheme, the phrase “directly attributable” should be given a simple, common sense meaning, namely is there a direct link both in time and space between the criminal conduct and the injuries to the claimant.
(2) The Board in this case approached the matter as a pure question of legal construction and were effectively saying that secondary claims were incompetent. It follows that the Board not only wrongly construed the relevant phrase as a matter of law, but failed to address their mind to the real question, which must be a question of fact.
(3) As a matter of law, secondary claims in the context of sexual abuse within the family are competent in principle and must be evaluated as a matter of fact with regard to the proximity test which requires evidence.
(4) In relation to the Board : “The substance of its decision must be supported by clear reasoning which enables the petitioner to know why he or she has won or lost. However, the corollary of that is that the petitioner is entitled to rely upon all the reasoning advanced in the written decision if seeking to attack it as flawed.” (Per Lord Johnston).
(5) The Board’s decision reduced and remitted for consideration by a differently constituted Board.
Parts of scheme and other legislation referred to in judgment
1990 Scheme, paragraph 4
Cases referred to in judgment
R v CICB ex parte Ince 1973 3 AER 808
R v CICB ex parte Hilary Kent (Unreported, 6 March 1998)
Representation
Mr Mitchell QC appeared for W
Mr Creally appeared for the Respondent
http://www.bailii.org/scot/cases/ScotCS/1999/82.html |