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Headnote |
Summary of decision
Where an incident involved indecent exposure, the Criminal Injuries Compensation Board was entitled to refuse compensation on the basis that the incident did not constitute a ‘crime of violence’. The term ‘crime of violence’ under paragraph 4(a) of the Criminal Injuries Compensation Scheme 1990 was not a term of art and should be given its ordinary meaning.
Facts
The applicant (‘A’), whilst a child, was the victim of 3 separate incidents of indecent exposure. Following the second incident, an application for compensation was made to the Criminal Injuries Compensation Board (‘the Board’) in relation to the first 2 incidents, which was refused. Following the third incident, a further application for compensation was made in relation to that incident and an application for an oral hearing was made in relation to the first 2 incidents. Both applications were dealt with at the same hearing, at which the Board disallowed compensation under paragraph 4(a) of the Criminal Injuries Compensation Scheme1990 in respect of all 3 incidents on the basis that they did not constitute crimes of violence. A’s mother, on her behalf, challenged the Board’s decision on the grounds that the Board (i) misdirected itself as to what constituted a crime of violence; and (ii) had failed to give proper reasons for its conclusions that each incident did not constitute a crime of violence. She contended that in determining whether there had been a crime of violence the Board had to consider whether A might reasonably have been put in a state of fear for her own safety by the actions of the men in question.
Held, refusing the application
(1) The proper approach to deciding whether a crime of violence has been committed was set out in Gray v Criminal Injuries Compensation Board 1999 SLT 425. The starting point was that the words “crime of violence” did not constitute terms of art. They had to be given their ordinary meaning. What the Board had to do was first ascertain what happened in respect of each incident and then ask itself whether what happened was, according to the ordinary use of the language, a crime of violence.
(2) There was a valid distinction between the criminal act and its consequences. The question of whether a criminal act constituted a crime of violence was to be answered primarily by looking at what was done, rather than the consequences of what was done (R v Criminal Injuries Compensation Board ex part Webb [1987] 1 QB 74 considered). The attempt to define a crime of violence as any deliberate or reckless criminal act which was reasonably foreseeably likely to cause fear or injury was unduly wide, as it placed too much emphasis on the consequences for their own sake and insufficient emphasis on the nature of the criminal act.
(3) Having regard to the Board’s decision, it was clear that the basis for that decision was not a belief that no indecent exposure could be a crime of violence, but rather a conclusion that the events were not properly to be described as crimes of violence. The terms of the Board’s decision, viewed in the context of the evidence, made it plain that the decision turned on the circumstances of each incident as evaluated by the Board in light of the evidence it heard. The Board did not therefore err in law.
(4) The argument on behalf of A that no reasonable tribunal could have failed to hold that the second and third incidents were crimes of violence failed as it was based on an erroneous view of the test to be applied by the Board in deciding whether the incidents constituted crimes of violence. The Board properly adopted the approach approved in Webb and Gray, and therefore committed no error of law.
(5) The law did not lay a duty to give reasons on every body that made decisions which were susceptible to judicial review. One factor which was of great importance was whether the decision was administrative or judicial (Cunningham considered). The Board’s function, whilst administrative in the sense that it was concerned with the making of ex gratia payments under an administrative scheme, contained a substantial judicial component. The issue did not need to be decided in order to decide this case. Even if the Board was obliged to give reasons, the attack on the sufficiency of those reasons failed in this case. The Board’s decision gave an adequate indication of the basis on which it was reached to enable it to be understood by the informed reader.
Parts of scheme and other legislation referred to in judgment
Criminal Injuries Compensation Scheme 1990, paragraph 4(a)
Criminal Procedure (Scotland) Act 1995, section 5(3)(b)
Criminal Damage Act 1971, section 1(2)(b)
Cases referred to in judgment
Gray v Criminal Injuries Compensation Board 1993 SLT 28 (Outer House) and 1999 SLT 425 (Inner House)
R v Criminal Injuries Compensation Board ex parte Webb [1987] 1 QB 74
Lawrie v Commission for Local Authority Accounts in Scotland 1994 SLT 1185
R v Criminal Injuries Compensation Board ex parte Clowes [1977] 1 WLR 1353
Craig v Criminal Injuries Compensation Board (unreported, 10 December 1992)
Atkinson v HM Advocate 1987 SCCR 534
R v Ireland [1998] AC 147
Re Clarke [1998] 2 CL 141
Sproul v McGlennan 1999 SCCR 63
R v Civil Service Appeal Board ex parte Cunningham [1991] 4 All ER 310
Elmbridge Borough Council v Secretary of State for the Environment (1980) 39 P & CR 543
Wordie Property Company Limited v Secretary of State for Scotland 1984 SLT 345
Safeway Stores plc v National Appeal Panel 1996 SC 37
R v Criminal Injuries Compensation Board ex parte Cook [1996] 1 WLR 1037
R v Secretary of State for the Home Department ex parte Doody [1994] AC 531
Representation
Mr Sutherland instructed by Drummond Miller for the Petitioner
Miss Dunlop instructed by the Solicitor, Secretary of State for Scotland for the Respondent
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