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Headnote |
Summary of decision
The Divisional Court held that the decision of the Criminal Compensation Appeals Panel was defective in that it failed to address the aspect of B’s claim founded upon alleged physical abuse and furthermore the Panel rejected B’s claim of sexual abuse, in the face of professional evidence, without making reference to that evidence or explaining why they had taken a different view.
Facts
Between the ages of 12 and 19 the applicant (‘B’) lived at the Bryn Alyn Community having been placed there by the Local Authority. B alleged that during this time he was subjected to sexual and physical abuse. For 6 months prior to this placement B had been placed at another children’s home; Ternhall Road. In March 1997 B had made a successful application for compensation from the Criminal Injuries Compensation Authority (‘the Authority’) for neglect and abuse suffered at Ternhall Road. In his application reliance had been placed on a report prepared by Ms Cohen, a consultant clinical psychologist. She had asked B about his experiences at Bryn Allen (which was subsequently the subject of a major inquiry in relation to child sex abuse in children’s homes in North Wales). B had informed her of physical abuse there but had not made any allegations to her in relation to sexual abuse at Bryn Alyn. In November 1998 B applied for compensation in respect of the abuse allegedly suffered at Bryn Alyn. He relied in support upon the report prepared by Ms Cohen for the Ternhall road claim. The Authority refused B’s application and a review of that decision did not find in B’s favour. B then appealed to the Criminal Injuries Compensation Appeals Panel (‘the Panel’). In his appeal B placed reliance on another medical report, this time from Dr Friedman, a consultant psychiatrist, specifically in relation to the allegations concerning Bryn Alyn. Dr Friedman estimated that 60-70% of B’s psychological damages was attributable to his time at Bryn Alyn. The Panel heard evidence from B together with submissions. They were referred to the two medical reports of Ms Cohen and Dr Friedman. The Panel concluded that they were not satisfied that B had been sexually abused at Bryn Alyn as he claimed and stated that they “did not give credence to the account of sexual abuse the applicant has belatedly given”. Accordingly they dismissed B’s appeal. B applied for judicial review of the Panel’s decision. On his behalf it was argued that there were two fatal flaws which called into question the lawfulness of the Panel’s decision:-
(1) There had been an apparent failure of the Panel to address B’s case on the alleged physical abuse suffered by him; and
(2) The Panel had paid insufficient weight to the views of the two experts who had examined B.
Held, allowing the application and remitting the matter to the Panel
(1) The Panel’s decision would be quashed on the ground of its failure to address the significant and discrete part of B’s claim founded upon alleged physical abuse.
(2) Where a Court, Tribunal or quasi-judicial body, such as the Panel, declines to uphold a claim in full it is axiomatic that it should look to see whether there be any other reason to uphold part of it. In particular where, as here, the forensic exercise was not fully adversarial but semi-inquisitorial there was a duty on the Panel to do just that.
(3) As to whether sufficient weight was given to the views of the experts Wilson J noted that the experts, in particular Dr Friedman believed B’s allegations of abuse. The responsibility for determining whether those allegations were true was a matter wholly for the Panel rather than for Dr Friedman however. In the circumstances it would have been wise for the Panel to refer in its decision to Dr Friedman’s report, and to note that (if not briefly to explain) why its considered view on credibility differed from this.
(4) It was improper and insufficient for the Panel to reject B’s claim of sexual abuse without at least referring to the specific professional evidence which purported to rebut the point upon which the rejection was cast.
Parts of scheme and other legislation referred to in judgment
1996 Criminal Injuries Compensation Scheme, paragraphs 8, 13,
Cases referred to in judgment
Re M and R (Child Abuse: Evidence) [1996] 2FLR 195;
R on the application of M v. Criminal Injuries Compensation Appeals Panel (unreported 31 August 2001);
Representation
Miss Carolyn Hamilton (Mr P Last for judgment) (instructed by Jackson & Canter) for B;
Mr Jeremy Johnson (instructed by CICAP) for the Respondent
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