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Headnote |
Summary of decision
The Court held that the Board’s duty to present fairly and impartially the evidence through its representative did not extend to evidence gathering and that the absence of the prosecution summary and police interview would not have made any difference to the Board’s decision. It was not necessary therefore to determine whether the absence of the missing evidence through no fault of the Applicant or the Board rendered the decision amenable to an order for certiorari.
Facts
(1) The applicant (‘P) claimed she was raped and assaulted by a male client at a hotel in the course of her work as an escort. Her application for compensation was dismissed by a single member of the Criminal Injuries Compensation Board (The Board’) under paragraphs 4(a) and 6 of the Criminal Injuries Compensation Scheme 1979 (‘The Scheme’) on the grounds that she was a highly paid prostitute, her allegations were uncorroborated and she had not been frank with either the Board or her psychotherapist. At a hearing before a full Board, a police officer attended but failed to bring with him the prosecution summary and police interview with the alleged perpetrator which suggested that there had been a struggle but no sexual intercourse. P’s claim was rejected on the basis that P was an untruthful witness, that it was impossible to say precisely what did happen and accordingly P had failed to satisfy the Board that she had been raped. P sought judicial review of the Board’s decision on the basis that there was important evidence which should have been, but was not before the Board and which, had it been before the Board, could have led to their reaching a conclusion favourable to P. It was submitted on behalf of P that the Board’s investigatory function extended to gathering relevant evidence, that they should have appreciated that there was probably an interview and that the failure to obtain that evidence was a material irregularity that vitiated the proceedings. The Board relied on paragraph 23 of the Scheme which states clearly that it is for the applicant to prove her case. Further that, whilst the Board has a duty to present fairly and impartially the evidence through its representative, that duty does not extend to evidence gathering. P further contended that where for whatever reason, (unconnected with the Board or the Applicant) relevant information was not placed before the Board, the court could grant certiorari.
Held, rejecting the application
(1) It was for the Applicant to prove her case as per paragraph 23 of the Scheme.
(2) Per Mr Justic Nolan in R v. The Chief Constable of Cheshire and Another, ex parte John Berry (unreported 30 July 1985) ‘It is however, the duty of the member of the Board’s staff referred to in paragraph 23..generally known as the Board’s advocate…to bring out all relevant evidence in the Board’s possession, whether it is for or against the applicant. The proceedings are inquisitorial in nature.’
(3) The prosecution summary was of no import. Since it was only the objective view of counsel in respect of the evidence, it was not direct evidence which would have influenced the Board. The interview, however, was material which a Board would wish to see in the ordinary way.
(4) Provided reasonable steps were taken to obtain material and place it before the Board, and provided the material that has been obtained is fairly deployed and there is no concealment of unfair advantage taken, then the Board has fulfilled its proper function.
(5) There was nothing in the new material which would have undermined the jaundiced view the Board had taken of the Applicant’s credibility. Indeed the interview provided cogent support for the contention that there had not been sexual intercourse. In these circumstances the new material would not realistically have led to a different outcome.
(6) It was not therefore necessary to determine whether the court could grant certiorari absent any fault on the part of the Board.
Parts of scheme and other legislation referred to in judgment
1979 Scheme, paragraphs 4(a), 6 & 23
Cases referred to in judgment
R v Chief Constable of Cheshire and Another ex parte John Berry (Unreported, 30 July 1985)
East Hampshire DC v Secretary of State for the Environment (1978) Vol 248 Estate Gazette Law Reports
Prest v Secretary of State for Wales 81 LGR 193
R v Leyland Justices ex parte Hawthorn (1979) QB 283
R v Blundeston Prison Board of Visitors ex parte Fox-Taylor (1982) 1 All ER 646
Al-Mehdawi v Secretary of State for the Home Department (1989) 3 WLR 1294
Representation
Miss Beverley Lang instructed by Messrs Bindman & Partners for the Applicant
Miss Alison Foster instructed by the Treasury Solicitor for the Respondent
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