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Headnote |
Summary of decision
Where an applicant, after sustaining criminal injury, joined others in a revenge attack on his assailant the Board had not acted unreasonably in withholding any award of compensation under paragraph 6(c) of the Criminal Injuries Compensation Scheme 1990.
Facts
The petitioner (‘J’) applied for compensation for an injury suffered by him in an incident on 16th April 1994. His claim was refused by a single member of the Criminal Injuries Compensation Board (‘the Board’). A hearing subsequently took place on 18th June 1997 at the conclusion of which the Board found that after he was assaulted J made no attempt to contact the police but instead went and found his assailant, who had in the meantime been assaulted by others and who was found lying on the floor, having suffered serious injuries and kicked him twice. The Board thereafter refused to make any award for compensation on the ground of J’s conduct under paragraph 6(c) of the 1990 Scheme. J pursued a single argument on judicial review, namely that the decision of the Board was flawed in that it had failed to have regard to the fact that J, although convicted of assault upon his assailant, was absolutely discharged in respect of the matter.
Held, dismissing the application
(1) The Board had heard evidence from a number of witnesses about the assault on J and the subsequent attack on J’s assailant by J and others. They received evidence from the police and medical evidence as well as being advised as to the outcome of criminal proceedings against J for his part in the attack on his assailant. It was held that the facts to be derived from the evidence were a matter for the board to determine upon a consideration of the credibility and reliability of the evidence before them.
(2) The Board had a discretion in terms of paragraph 6(c) of the Scheme to withhold compensation if they considered that it was inappropriate to grant any award having regard to the conduct “before, during or after the events giving rise to the claim”. The claim arose out of the assault upon J, but the Board were entitled to look at the conduct of J after the assault.
(3) The Board had taken into account mitigating features which may have led to J being given a absolute discharge by the criminal courts for his part in the revenge attack. However the Board was not determining sentence for a criminal offence, they were concerned with the appropriateness of making an award for compensation and relevant to that decision was the conduct of J.
(4) The Board’s refusal to make any award on the ground of J’s conduct under paragraph 6(c) could not be attacked as unreasonable in the sense in which that word is used in Wordie v. Secretary of State for Scotland.
Parts of scheme and other legislation referred to in judgment
1990 Criminal Injuries Compensation Scheme, paragraph 6(c)
Cases referred to in judgment
Wordie v. Secretary of State for Scotland.
Representation
Smith instructed by Drummond Miller, W.S. for the Petitioner
Bevan instructed by the Scottish Executive for the respondent.
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