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Headnote |
Summary of decision
Refusal of leave to allow the Criminal Injuries Compensation Board to adduce evidence or advance arguments in the Court of Appeal which were not before the Divisional Court because they did not relate to pure questions of law but related also to questions of evidence. The Board had given reasons for its decision and had had an opportunity to explain those reasons before the Divisional court, it could not be permitted to go on seeking to explain what was meant.
Facts
Compensation was sought by the applicant (‘B-M’) in 1992 in respect of harm suffered by her as a result of being subjected to serious sexual abuse by members of her family while she was a child, including her mother. The child’s mother had in 1991 been convicted of various sexual offences against two of her male children but never in respect of any abuse of BM. In March 1993 the single member of the Board awarded £9,000 in compensation. BM rejected this and applied for an oral hearing. In February 1995 the Applicant left her foster home and went to live briefly with her mother. By the time of the hearing in May 1996 she was no longer living with her mother. The hearing was adjourned for further evidence in respect of the question of the mother benefiting from any award which might be made. At the adjourned hearing, after hearing evidence from the Applicant, a social worker and police officer, the Board rejected B-M’s application on the basis of paragraph 7 of the Criminal Injuries Compensation Scheme 1990 (‘The Scheme). This provided that compensation would not be payable where there was a possibility that a person responsible for causing the injury would benefit from the award. They found that B-M’s mother was involved in the abuse of the applicant.
B-M applied for judicial review. Sedley J in the Divisional Court granted the application holding that criminal responsibility was required under paragraph 7 of the Scheme. The Board’s case had been put before him on the basis that paragraph 7 was not confined to criminal responsibility. The decision of the Board was quashed and her application fell to be re-determined.
The Board appealed that decision to the Court of Appeal. They argued that due to an error in communication the Board’s case had been argued on an erroneous basis before Sedley J. In an affidavit filed on behalf of the Chairman of the Board, the reasons for the Board’s conclusions were re-explained and it was asserted, amongst other things, that the Board had never considered that responsibility meant other than criminal responsibility and that they had found that, notwithstanding the absence of a specific conviction of B-M’s mother of an offence against her daughter, the mother had been guilty of criminal conduct against her. The Board sought leave from the Court of Appeal to allow them to rely on the further affidavit of Mr MacDonald and to advance arguments not before Sedley J.
Held, dismissing the Board’s appeal
(1) The issues upon which the Board wished to take a different stance from that taken before the Divisional Court could not properly be characterised as pure questions of law as they also raised related questions as to the evidence.
(2) As regards the fresh evidence that the Board sought to adduce that there had to come a stage when a decision-maker having given reasons and having had an opportunity to explain those reasons cannot be permitted to go on seeking to explain what was meant. There were two obvious difficulties in allowing a decision maker to do this. Firstly, they may mislead themselves as to the reasoning behind their original decision given the passage of time and, secondly the public perception of whether justice appears to be being done may start to be called into question if repeated attempts to explain a decision are allowed.
(3) This was not a case in which in the interests of justice it would be right to admit the fresh evidence or allow arguments of such a different kind to be advanced.
(4) Consideration should be given to the possibility of any award being held in trust for BM pursuant to paragraph 9 of the Scheme, although it was recognised that this might not be practicable.
Parts of scheme and other legislation referred to in judgment
1990 Criminal Injuries Compensation Scheme, paragraphs 7 and 9.
Trustee Act 1925, section 33
Cases referred to in judgment
Pitalis v. Grant [1989] 1 QB 605;
Ladd v. Marshall [1954] 1 WLR 1489;
R v. Secretary of State for Home Department, ex parte Momin Ali [1984] 1 WLR 663;
Saunders v. Vautier (1941) CR & PH 240;
Representation
Mr Burnett QC (instructed by the Treasury Solicitor ) for the Appellant
Mr Craven (instructed by Director of Legal and Administrative Services, Carmarthenshire County Council) for the Respondent
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