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Headnote |
Summary of decision
The Criminal Injuries Compensation Board was entitled to refuse to make an award of compensation to an applicant who was injured by a falling gate on the basis that it could not be satisfied that a crime of violence had occurred as it could not determine who had left the gate there and, further, whether the alleged offender had the necessary intent. The Board had applied the correct test in law and their decision was not unlawful.
Facts
The applicant, SDL, was badly crushed when one of the gates at a primary school fell on him when he was 5 years old. An unidentified person had removed the gate from its hinges and left it in its normal position but resting against the gate post and the kerb rather than on its hinges. When he was playing near the gate it fell on him due to its precarious positioning. He made an unsuccessful claim for damages against the school.
The Criminal Injuries Compensation Board (‘the Board’) rejected SDL’s claim for compensation under the Criminal Injuries Compensation Scheme 1990 (‘the 1990 Scheme’) as they were not satisfied that a crime of assault had been established. They found, on the contrary, that the event had been caused by nothing more than negligence by someone leaving the gate in that position. They concluded that on the evidence this negligence was not such as to establish that a crime of violence had occurred and so SDL’s claim was refused pursuant to paragraph 4 of the 1990 Scheme.
SDL applied for judicial review of the Board’s decision on the grounds that :
(a) given that the Board were not satisfied on the evidence by whom, when and why the gate was removed they erroneously failed to address the real question, namely the state of mind of the perpetrator; and
(b) the Board ought, in any event, to have found that it was some miscreant who took the gate off its hinges and left it, and that once they had found this, the necessary mens rea finding would inevitably have followed.
Held, refusing the application,
(1) The Board did correctly ask itself the appropriate question. As the Board was not satisfied on the evidence that it had been established, on the balance of probabilities, who left the gate in the position it was in, they were not able to infer anything other than negligence as to the state of mind of the perpetrator. It was plain that the Board had applied itself to the question of the state of mind of the perpetrator, whoever it may have been, even though they were unable to decide whether it was a school employee or a miscreant. The Board had therefore applied the correct test as regards the mens rea of the offender in order for a crime of violence to be established.
(2) The evidence as to who had taken the gate off left the situation open ended and the Board was entitled to say that the question could not be answered on the balance of probabilities from the whole of the material before it. The Board had applied the correct test in law and their conclusion as to the inferences that they could or, more particularly, could not draw were within the permissible spectrum. There was nothing unlawful about their decision.
Parts of scheme and other legislation referred to in judgment
Criminal Injuries Compensation Scheme 1990, paragraph 4(a)
Cases referred to in judgment
Cunningham [1957] 2 QB 396;
Representation
Mr J Rowley (instructed by Butterworths) for the applicant.
Miss E Grey (instructed by the Treasury Solicitor) for the respondent.
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