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Headnote |
Summary of decision
The decision of the Panel in refusing to make an award of compensation as a consequence of the applicant’s character “as shown by her criminal convictions and other evidence” was not open to challenge. The hearing before the Panel was a complete re-hearing and as such they were entitled to take a different view to the earlier Panel and to conclude that the level of the applicant’s criminality could not properly be attributed to her childhood abuse. Public policy considerations could be taken into account when the beneficiary of any award under the Scheme was a persistent drug user and was likely to spend the proceeds of an award on drugs. It was not appropriate for the Court to give guidance to Panels as to how to deal with medical evidence and on the matters to take into account under paragraph 13(e) of the 1996 Scheme.
Facts
The applicant (‘M’) was the victim of sexual abuse as a child, between the ages of 5 and 11, by her stepfather who was a police officer. As a consequence of the abuse M had a very disturbed childhood and went on to acquire a substantial criminal record by the date of proceedings.
M claimed compensation in respect of the abuse and in March 2000 the matter came before the Criminal Injuries Compensation Appeals Panel (‘the Panel’). The Panel, on the basis of the psychiatric evidence that was before it, made an award that was reduced as a consequence of M’s criminal record.
M subsequently applied for judicial review of the decision of the Panel and in August 2001, Hooper J allowed her application and remitted the case to the Panel for re-hearing. The re-hearing before the Panel took place in November 2003. By that date, M had turned 18 and had been convicted of a number of further offences of dishonesty and violence. In its decision the Panel found that it was likely that there was “some causal connection between the abuse which the Applicant suffered and her subsequent behaviour, particularly in terms of criminal offending”. Nonetheless they concluded that the Applicant’s character, as shown by her criminal convictions and other evidence made it inappropriate to make any award at all. The Panel, in reaching that conclusion, applied the wording of paragraph 13(e) of the 1996 Criminal Injuries Compensation Scheme (‘the 1996 Scheme’).
In May 2004 Bennett J refused M permission to apply for judicial review in respect of the decision of the November 2003 Panel. M then applied to the Court of Appeal for permission to appeal that refusal. M argued that as no fresh psychiatric evidence was adduced at the hearing in 2003, there was no justification for the second Panel to apply a cut-off point and thereby render M entirely responsible for her actions after the age of 18, whereas when she was only six months under the age of 18 in 2000 the first Panel had given her at least a partial award. She also argued that there was a compelling reason to allow permission under CPR 52.3.6(b), namely that the case represented an appropriate opportunity for the Court of Appeal to provide guidance to the Panel as to how to exercise its discretion under paragraph 13(e) in respect of “undeserving applicants”.
Held, dismissing the application for permission to appeal,
(1) It was plain that the 2003 Panel felt unable to accept that M’s persistent misconduct and serious criminality, particularly after the age of 18, was as a result of the sexual abuse which she had suffered. This was no doubt due to the fact that the criminality had escalated. Both on M’s own evidence and on a common sense basis, it appeared to be largely related to her drug abuse. The best that could be said for M was that her offending was a product of her generally disturbed behaviour.
(2) The burden was on M to prove her case and to call or adduce appropriate medical evidence in support of her case and M and her advisors must have been on notice about this issue given the reduction of the award on the same grounds by the previous Panel.
(3) The 2003 Panel was not bound to follow the same pattern or process of reasoning as the earlier Panel. It was a complete re-hearing. Thus, it appeared that, whilst the Panel was satisfied that there was a degree of causal connection in the subsequent disturbed behaviour, it was not satisfied that, either medically or on all the evidence it had heard or seen (in particular from M) her criminality which was current at that time could properly be attributed to the abuse.
(4) Contrary to the submissions made on M’s behalf, the Panel’s reasons did not indicate that they had applied a rule of thumb or some broad view of the case to the effect that, as from the age of 18 an applicant in this situation must be held entirely responsible for his or her own conduct. There might, however, be a variety of considerations (including public policy considerations) to be taken into account when the beneficiary of any award under the Scheme is a persistent drug user and would be likely to spend the proceeds of an award on drugs.
(5) There would be no reasonable prospect of persuading a court properly directing itself to upset or review the decision of the Panel in this case.
(6) This case was not to be an appropriate vehicle for the purpose of providing guidance to Panels as to how to deal with medical evidence and on the matters to take into account under paragraph 13(e) of the 1996 Scheme. The discretion to be exercised was a broad one and the Panel had a great deal of familiarity in dealing with the issues, accordingly the Court would be hesitant to interfere by providing guidance.
Parts of scheme and other legislation referred to in judgment
Civil Procedure Rules 52.3.6(b),
Criminal Injuries Compensation Scheme, 1996, paragraph 13
Cases referred to in judgment
Eagil Trust Co Ltd v. Pigott- Brown [1085] 3 All ER 119;
English v. Emery Reimbold & Strick Ltd [2002] EWCA Civ 605;
R v. CICA ex parte M [2001] EWHC Admin 720
Representation
Mr P Buckley (instructed by Timms, Derbyshire) appeared on behalf of M
Mr J Johnson (instructed by the Treasury Solicitor) appeared on behalf of the respondent
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