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Headnote |
Summary of decision
The applicant was sexually abused by her brother-in-law between 1976 and 1988. He was convicted of the abuse in 1992. In 1993, she made an application for compensation. The Board declined to waive the 3 year limitation period. Although the Board’s decision was based in part on an erroneous assumption that the applicant had been living with her brother-in-law in the early period of abuse, they were entitled to find that there were difficulties in establishing lack of consent in all cases. The Board did not consider the case exceptional. The Board had the widest discretion in considering these matters. The court would not interfere with the decision.
Facts
The applicant (‘D’) was subjected to various sexual offences by her brother-in-law (‘B’) between 1976 and 1988. B was subsequently in 1992 convicted of 4 offences: (i) unlawful sexual intercourse in 1976; (ii) unlawful sexual intercourse in 1977; (iii) buggery between 1978 and 1980; (iv) buggery in 1980. In 1993 she applied to the Board for compensation. The Board decided not to waive the 3-year limitation period and refused to consider the application. D sought judicial review of the Board’s decision, contending that it was irrational to give difficulties of proof arising from delay as a reason for refusing to waive limitation since B had been convicted. D further contended that the decision was unfair in that the finding that she was living with B at the time of the first conviction was wrong and was based on a misconception of material before the Chairman, which she had not had the opportunity of addressing. (Claims in relation to sexual abuse occurring before 1 October 1979 would be disallowed under the ‘same roof rule’ if the abuser and victim lived together). Further it was argued, the decision was unfair in that the Chairman found that D had willingly engaged in a sexual relationship with B without giving her a chance to comment. D placed before the court psychiatric evidence which sought to explain the reasons for the delay in reporting the abuse.
Held, dismissing the application
(1) It was not irrational to cite difficulties of proof arising from delay as a reason for rejecting the application. Unlawful sexual intercourse and buggery were not invariably crimes of violence. Some of the evidence before the Board supported the contention that the Applicant had consented to intercourse and buggery.
(2) Although the Board erred in supposing that the events leading to the first conviction had taken place at a time when D was living with B, those events took place more than 20 years ago and the problems of establishing lack of consent were at their strongest there.
(3) It was for the Applicant to place all material on which she intended to rely before the Board. Later psychiatric evidence which sought to explain her delay in reporting which had not been before the Board at the time the decision was made was inadmissible.
(4) In any event, this material did not meet the difficulty which the Board faced in being persuaded that the relevant acts were involuntary.
(5) The Board’s decision was based on the evidence put forward by the Applicant, it was not suggested that the decision was perverse given that material. The Board had the widest discretion; the decision would stand.
Parts of scheme and other legislation referred to in judgment
Criminal Injuries Compensation Scheme 1990, Paragraph 4
Representation
Mr R Clayton instructed by Milne & Lyall for the Applicant
Mr H Kent instructed by the Treasury Solicitor for the Respondent
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