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Headnote |
Summary of decision:
In respect of CD, the Criminal Injuries Compensation Appeals Panel were right to refuse compensation for unlawful sexual intercourse, on the ground that she had not been a victim of a crime of violence as the evidence indicated that she had given "real" consent.
In respect of JM, the decision of the Criminal Injuries Compensation Appeals Panel would be quashed because its reasoning did not justify a decision to refuse her claim for compensation.
Facts
Applications for compensation by two female applicants (“CD” and “JM”) were refused by Criminal Injuries Compensation Appeals Panel (“the Panel”) on the basis that they had not been victims of a crime of violence under the Criminal Injuries Compensation Scheme 1996 (“the Scheme”) as they had consented to the sexual conduct complained of.
Re CD
CD, who was almost 13 years at the time of the incident in August 1996, claimed compensation in relation to an alleged act of unlawful sexual intercourse committed against her by RW, who was 21 at the time. CD claimed that: prior to the incident she had consumed a lot of alcohol including alcohol provided by RW and that she was drunk, could hardly walk and was slurring her words; RW had repeatedly asked her for sex but that she had refused his demands; she had attempted to run away, running up a hill and falling over; she eventually gave in to RW’s continuing pestering for sex, believing that RW would stop pestering her if she agreed; she did not disclose the sexual assault immediately, saying that she was told not to do so by RW, of whom she was frightened and that she did not want anyone to know what occurred. CD informed her mother seven days later. RW pleaded guilty to a charge of having unlawful sexual intercourse with a girl under the age of 13 and was sentenced to a year’s imprisonment. CD’s claim was rejected by the Panel on the ground that she had not been a victim of a crime of violence: she had consented to intercourse and there was no rape.
CD sought judicial review of decision of the Panel. CD contended that the Panel erred by (a) failing to give any adequate consideration to the degree of culpability of RW; (b) failing to undertake the exercise of considering the relationship between CD and RW and, in particular, that CD was significantly disadvantaged by reason of her age, her vulnerability and her consumption of alcohol; and (c) focusing on whether there had been a rape without then considering whether C had given "real" consent to the act of unlawful sexual intercourse.
Re JM
JM, born in 1967, contended that she had been sexually assaulted by ST, the son of her foster mother, on numerous occasions when she was around 12 or 13 years of age. The Panel found that the considerable lapse of time between the alleged incidents and the later reporting and application for compensation made any investigation difficult. However, having heard oral evidence from JM, the Panel reached the conclusion that because there had been a boyfriend/girlfriend type of relationship between JM and ST, it could not be satisfied that the matters that occurred between them were crimes of violence.
JM sought judicial review of decision of the Panel. JM contended first that the Panel failed to consider properly whether she gave "real consent" rather than submitting to ST and second that if she had submitted, the Panel could not have justified its decision to deprive her of her right to compensation as a victim of a "crime of violence". It was submitted that the Panel failed to consider properly (i) the difference in age between JM and ST, (ii) her vulnerability due to her age, (iii) that she was at a substantial disadvantage with no family network to support her, (iv) her vulnerability as being in the care system and (v) the difference in status between ST, the son of JM’s foster mother, and JM, who was a child in care.
In both cases the Panel’s representative contended that the Panel did consider properly whether CD and JM gave “real” consent and that it was a jury question in respect of which the Panel had reached a decision to which it was entitled to come.
Held, dismissing CD’s application and allowing JM’s application:
(1) The court could take account of decisions of the court subsequent to the Panel decisions in determining the applications for judicial review. The court could not, however, take account of changes in statutory law. The court was guided by R (August) v The Criminal Injuries Compensation Appeals Panel [2001] QB 774 and R (on the application of JE) v The Criminal Injuries Compensation Appeals Panel [2003] EWCA Civ 237 which were decided after each Panel had heard their respective appeal. These showed that the task for the Panel was “to ask itself whether the proper conclusion on the facts was that the applicant was, in relation to what happened, a victim of a crime of violence. This will be the situation if there was no real consent”. Further, where there was an assertion of vulnerability the Panel should consider whether the applicant should be regarded as so vulnerable as not to be able to give real consent.
(2) In respect of CD: CD was not to be regarded as “vulnerable” in the sense used by Lord Woolf in the case of JE, not merely because of the factual findings made by the Panel which showed that she knew from her previous experience what sexual intercourse entailed and she was not manipulated in any way, but also because she had made clear her willingness to consent to intercourse by the reference to shag bands in her conversation with RW and the contemporaneous evidence, both in her diary and her demeanour showed that she enjoyed the intercourse. In reaching that conclusion, the court had in mind the fact that at 21, RW was much older than CD, who was only 12 years of age at the time when they had intercourse.
(3) Even if CD was vulnerable, the Panel did consider matters relevant to the issue of whether CD gave “real” consent and relevant to the parties’ respective degrees of culpability for what happened. The Panel found that CD had gone voluntarily into the woods, that she had had intercourse with RW without the use of violence, threats of violence or manipulation by RW, and that she had emerged happily, stating that she had enjoyed intercourse. The Panel also rejected CD’s claim about how much she had drunk. It was not easy to imagine any more evidence which might indicate real consent, especially as the Panel stated at the end of the hearing that it did not find CD to be a reliable witness.
(4) In the circumstances, there were no public law grounds for quashing the Panel’s decision in respect of CD’s application.
(5) In respect of JM: The issue of vulnerability was of substantial significance and yet the Panel did not refer to JM’s vulnerability as being a child in a very subservient position and without any form of support in either the reasons given at the end of the hearing or its later decision letter. Five matters in particular did not appear to have been properly considered:
(a) The Panel did not appear to have considered the relative degrees of responsibility of JM and ST for what happened. The Panel attached great, if not crucial, importance to the fact that there had been a boyfriend/girlfriend relationship between JM and ST but the existence of such a relationship did not automatically show consent by a girl of 12 or 13 years of age to what ST was doing.
(b) The Panel did not appear to take account of the vulnerability of JM because her mother was unable to support her at the time of the abuse. Although the Panel attached importance to the fact that JM’s older sister was in the same household and had been fancied by ST, there was no discussion or consideration of whether JM’s elder sister had been sexually abused by ST or whether she was at that time able to give any protection to JM.
(c) The vulnerability of JM in that she was in a weak position when exploited by the son of her foster mother should have been considered in order to determine the reality of her consent.
(d) The Panel did not consider if JM could in fact have complained when the abuse occurred but did not complain.
(e) The Panel did not consider JM’s possible vulnerability to abuse due to previous sexual abuse she had suffered.
(6) The decision of the Panel should be quashed because its decision to refuse JM’s claim could not be justified by its reasoning,
Parts of scheme and other legislation referred to in judgment:
Criminal Injuries Compensation Act 1995
Criminal Injuries Compensation Scheme 1996, paragraphs 6, 8, 9, 18, 64
Sexual Offences Act 1956
Cases referred to in judgment:
R v Criminal Injuries Compensation Board, ex parte Webb [1987] 1 QB 74
R (August) v The Criminal Injuries Compensation Appeals Panel [2001] QB 774
R (on the application of JE) v The Criminal Injuries Compensation Appeals Panel [2003] EWCA Civ 237
R v The Parole Board and another, ex parte Oyston, unreported 1 March 2000, CA
S v Special Educational Needs Tribunal [1995] 1 WLR 1627
R v Westminster City Council ex p Ermakov [1996] 2 All ER 302
R (on the application of Nash) v Chelsea College of Design [2001] EWHC Admin 538
Representation:
Carolyn Hamilton for CD and JM, instructed by Joan Vis Solicitors in respect of CD and Jackson and Canter in respect of JM.
Jason Coppel, instructed by the Treasury Solicitor, for the Panel.
Editors’note
Guidance given in the case of R (on the application of JE) v CICAP [2003] EWCA Civ 237on the procedure under the Criminal Injuries Compensation Scheme, including the role of the Presenting Officer, at a hearing appears as an appendix to this judgment.
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