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Headnote |
Summary of decision
The Board did have an inquisitorial role and could make its own enquiries, if so minded. However, it is for the applicant to take the initiative in terms of evidence gathering. The burden of proof lay on the Applicant to make out his case pursuant to paragraph 25 of the Criminal Injuries Compensation Scheme 1990. It was not the duty of the Board to go out and look for evidence but rather a duty, if it had material in its possession, to make sure that the applicant was appraised of it before the Board relied on it.
Facts
The applicant (‘M’) claimed that she had been the victim of physical and sexual abuse at the hands of her stepfather between 1950 and about 1970, when she was between the ages of 7 and 27. From 1956 to 1985 she had spent most of her time as a patient in psychiatric hospitals however she claimed that during that period she had been subject to abuse by her stepfather and also her mother, on visits to the hospital and when home temporarily on leave. Her mother and stepfather died in the early 1980s and she began therapeutic counselling in 1986. Her case was that the traumatic events had been blocked out of her consciousness and that they only came to her active attention when she received counselling. She applied to the Criminal Injuries Compensation Board (‘The Board’) for compensation in 1992. A single member of The Board waived the time limit but rejected the application as being ineligible pursuant to paragraph 6(a) of the Criminal Injuries Compensation Scheme 1990 (‘The Scheme’) because the allegations were never reported to the police. M applied for an oral hearing, at which the Board rejected her application having heard evidence from her together with her treating psychotherapists. The Board in their statement of written reasons set out that the burden of proof was on the applicant and that, having heard all the evidence, they were not satisfied that M was the victim of a crime of violence. M applied for judicial review of the Board’s decision arguing, amongst other things, that as the Board is an inquisitorial body they have a duty to obtain evidence in appropriate cases. In particular, it was argued that the Board ought to have taken steps to obtain medical notes from various hospitals at which M was treated in the 1960s and 1970s.
Held, dismissing M’s application
(1) There is no doubt that the Board has power, if it is so minded, to make its own enquiries. Nonetheless, it has to be remembered that the Board’s Scheme provides that it is for the applicant to make out his or her own case at the hearing. “..it is for the applicant…to take the initiative.”
(2) It is not a duty of the Board to go out and look for evidence but rather a duty, if it had material in its possession, to make sure that the applicant was appraised of it before the Board relied on it.
(3) It is not the duty of the Board, of its own motion, if it considers that a case has not been made out on the evidence put before it, then to consider whether the applicant’s case might be better put than she had put it herself and therefore to go out and seek evidence to support that case.
(4) In any event, the additional medical records subsequently obtained by M’s legal advisers did not take her case any further.
(5) It was clearly open to the Board to disbelieve M, having heard her evidence and that of her witnesses without there being specific evidence in contradiction of her.
Parts of scheme and other legislation referred to in judgment
1990 Criminal Injuries Compensation Scheme, paragraphs 4(a), 25
Cases referred to in judgment
Council of Civil Service Unions v. Minister of the Civil Service [1985] AC 374;
R v. Criminal Injuries Compensation Board, ex parte Parsons (unreported 7 January 1990);
R v. National Insurance Commissioner Chancellor, ex parte Viscusi [1974] 1 WLR 646
R v. The Chief Constable of Cheshire and Another, ex parte John Berry (unreported 30th July 1985);
Representation
Miss S Young (instructed by Messrs Goodall Barnett James) for M
Mr M Kent (instructed by the Treasury Solicitor) for the respondent
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