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Headnote |
Summary of decision
Sexual intercourse procured by the fraud of a bigamist (in purporting to lawfully marry the Applicant when he was already wed to another) was not a crime of violence in terms of the Criminal Injuries Compensation Scheme 1979.
Facts
In 1987 the Applicant (‘G’) had become friendly with a man (‘W’). In December 1988 she had become engaged to him. G had understood from W that he was divorced. After their engagement and before their marriage they had had sexual relations on one occasion. After the marriage in March 1989 they had had sexual intercourse on approximately six occasions. In August 1989 W had disappeared. G had reported that to the police, who then found him living in England, married and living with his wife and children under his real name. As a result of that discovery the petitioner attended her doctor for stress. If she had known that W had been married she would never have had a sexual relationship with him. G applied for compensation to the Criminal Injuries Compensation Board (‘the Board’). The single member and full Board both found that no crime of violence had been committed. G argued that section 2(b) of the Sexual Offences (Scotland) Act 1976, which made it an offence to procure by false pretence or false representation any woman to have unlawful sexual intercourse, that the crime had been perpetrated on each occasion when the parties had had intercourse after the marriage ceremony, the false pretence being that W was free to marry. Moreover, G submitted that W’s conduct had been analogous to an indecent assault such as where a man had sexual relations with a sleeping woman. G applied to the Court of Session, Outer House for judicial review. Refusing G’s application, in his opinion dated 13 May 1992, Lord Weir held: (1) The meaning of crime of violence was very much a jury point: R v Criminal Injuries Compensation Board, Ex parte Webb [1987] 1 QB 74, 79 (2) The proper approach was to look at the nature of the crime and ask, were the acts of sexual intercourse crimes of violence? In his Lordship's opinion, the answer had to be in the negative. The root cause of the injury suffered by the petitioner had been the commission of the crime of bigamy and the discovery by her of that. It was to that act that her injury was attributable. Neither that in itself nor the deception involved had contained any element of violence. (3) It might be said that an offence under section 2(b) of the 1976 Act had been committed but the offence had not been one attended with violence. Moreover, his Lordship was not prepared to affirm in the absence of authority that acts of intercourse in the context of a bigamous marriage constituted a crime at common law. After some delay G appealed, arguing that the Lord Ordinary had erred and that G was a victim of a crime of violence, being rape, indecent assault and/or contravention of section 2 of the1976 Act. G further argued that, in an absence of any fundamental principal to distinguish between what is and what is not a crime of violence, the court would be entitled to take the view that what mattered was whether the crime would shake the faith of people in society and that this was satisfied in this case.
Held, dismissing the application
(1) The proper approach was that described by Lawton LJ in ex parte Webb when he said that the board “will recognise a crime of violence when they hear about it, even though as a matter of semantics it may be difficult to produce a definition which is not too narrow or so wide as to produce absurd consquences…” The Board had to consider the nature of the crime which has been committed and decide whether it is, in all the circumstances, a crime of violence, treating those words in their ordinary sense in the English language.
(2) HMA v Fraser (1847) Ark 280 excluded both rape and indecent assault as possible crimes in a case where consent to sexual conduct was obtained by fraud. The crime committed was simply one of fraud. The Board were quite entitled to consider the particular circumstances of the case and conclude that no crime of violence was committed.
Parts of the scheme and other legislation referred to in the judgment
Criminal Injuries Compensation Scheme 1979, Paragraph 4
Criminal Justice Act 1988, section 109
Criminal Injuries Compensation Act 1995
Sexual Offences (Scotland) Act 1976, section 2(b)
Cases referred to in the judgment
R v Criminal Injuries Compensation Board, ex parte Warner [1985] 2 QB 1069
R v Criminal Injuries Compensation Board, ex parte Clowes [1977] 1 WLR 1353
R v Criminal Injuries CompensationBoard, ex parte Parsons 19 May 1981 (HC) and 19 November 1982 (CA), unreported.
R v Criminal Injuries Compensation Board, ex parte Webb [1987] 1 QB 74
Cozens v Brutus [1973] AC 854
Craig, Petitioner 10 December 1992, unreported
HMA v Fraser (1847) Ark 280
HMA v Sweeny (1858) 3 Irv 109
Hussain v Houston 1995 SLT 1060
HMA v Logan 1936 JC 100
Stallard v HM Advocate 1989 SCCR 248
Young v McGlennan 1991 SCCR 738
Smart v Advocate 1975 JC 30
R v Criminal Injuries Compensation Board, ex parte Piercey, 14 April 1997 unreported.
Representation
Not known
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