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Headnote |
Summary of decision
The Criminal Injuries Compensation Appeals Panel was wrong to refuse compensation in respect of alleged sexual assaults on the ground that the applicant, a remand prisoner with low IQ, had consented to sexual acts committed by his much older cellmate because it failed to consider whether the consent was "real" consent. The case would be remitted to a differently constituted Panel for reconsideration.
Facts
The Applicant (‘E’) applied for compensation under the Criminal Injuries Compensation Scheme 1996 (‘the Scheme’) in relation to a number of alleged indecent assaults to which he was subjected by his cellmate, F, while on remand at HMP Winchester. E was 22 and had no previous sexual experience. F was 45, looked much older, and was on remand for sexual offences against young boys. The unchallenged psychological evidence before the Criminal Injuries Compensation Appeals Panel (‘The Panel’) was that E was vulnerable to the influence of others, highly suggestible, and would have been very receptive to F’s grooming. The Panel found that E's IQ was sufficiently low that he could not have consented at law to the indecent assaults on him for the purposes of the Sexual Offences Act 1956 section 15 and, therefore, was the subject of a criminal offence. However, the Panel found on the evidence that E did consent in fact with the result that he was not the victim of a “crime of violence” within paragraph 8 of the Scheme and not entitled to compensation. E’s application for judicial review was refused by Silber J. E appealed. The appeal was delayed by the fact that other potentially relevant appeals were being heard.
Held, allowing the appeal and remitting the application to be heard by a new Panel
(1) The court was entitled to take into account decision of the court that had clarified the law since the Panel’s decision, viz R v Criminal Injuries Compensation Appeals Panel, ex parte August: R v Criminal Injuries Compensation Appeals Panel, ex parte Brown (2001) 2 WLR 1452, [2001] QB 774.
(2) A crime could be a "crime of violence" for the purposes of the Scheme as long as there was not "real consent". Consent that was not real would not exclude a crime from eligibility under the Scheme; nor would submission, which was not the same thing as consent. The Panel had to approach each case and, specifically, the issue of whether consent was real, on its particular facts and circumstances.
(3) The Panel was wrong in failing to consider the relationship between F and E, and their relative degrees of responsibility. The Panel failed to take into account the fact that if initially E was not a consenting party, he would have been the victim of a "crime of violence", even though, having been corrupted by F, he subsequently played an active part.
(4) The degree of E’s mental impairment was an important part to be weighed in all the circumstances by the Panel. The Panel did not have to go so far as adopting as a starting point the presumption that E could not consent unless the contrary was shown.
Parts of the scheme and other legislation referred to in judgment
Criminal Injuries Compensation Scheme 1996, Paragraphs 6, 8, 9, 13, 18, 64
Criminal Injuries Compensation Act 1995
Sexual Offences Act 1956, sections 14, 15, 45
Cases referred to in the judgment
R (August) v Criminal Injuries Compensation Appeals Panel: R (Brown) v Criminal Injuries Compensation Appeals Panel [2001] 2 WLR 1452, [2001] QB 774
R v Criminal Injuries Compensation Board, ex parte Webb [1987] 1 QB 74
R v Brown [1994] 1 AC 212
Re MB [1997] 2 FLR 426
Re T (Adult Refusal of Treatment) [1993] Fam 95
Other Sources referred to in the judgment
Law Commission Report on Mental Incapacity (1995 Law Com, 231)
Representation
Paul Bowen and Henrietta Hill, instructed by Leonard & Swain (Southampton), for C. Robin Tam, instructed by the Treasury Solicitor, for the Panel.
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