|
Headnote |
Summary of decision:
There was a breach of the rules of natural justice where a crucial police doctor's report, inconsistent with the oral evidence given by a police officer at the appeal hearing in relation to the Applicant’s allegations of physical and sexual assault, was not before the Criminal Injuries Compensation Board. There was no onus generally on the Board to go and look for evidence or to adjourn for such evidence to be placed before it, if no application is made by the Applicant. Where leave had been granted ex parte to apply for judicial review out of time, the judge on the substantive hearing had no power to reopen the question of delay.
Facts:
On 20 November 1991, two men came to the Applicant’s (‘A’s) house. When she opened the door, one of them said “C.I.D. love” and walked in. They assaulted her and damaged property in the house. When they left, they took money and other property. Twenty minutes later A called the police. She told the officer that she had been beaten up, particularly around the head and face, and that property had been stolen. A was taken to hospital, where a doctor found bruising. A few days later, A contacted victim support and was advised to go to the police again. A then gave details of an alleged rape and buggery at the same time as the other assaults and was examined by a police doctor on 30 May 1991. A applied for compensation to the Board. The evidence before the Board did not include the police doctor's report and a police witness said that "the Doctor could only see trauma to the back passage - the applicant had haemorrhoids". The Board rejected A’s claim. They did not find her a convincing witness and where her evidence differed from that of the police, they preferred the police evidence. The report of the police doctor, Dr West, not seen by the Board, reported that “the anal findings are consistent with the allegation of buggery. The vaginal findings neither confirm nor exclude vaginal intercourse”.
Some ten months later (7 months out of time) A, applied for leave to bring proceedings for judicial review of the Board’s decision. On February 14, 1995 Carnwath J granted leave, but did not in terms rule that there was “good reason for extending the period within which the application shall be made”. He indicted that “I think I couldn’t shut this out on delay because that is a point that can be taken in proceedings if leave is granted”.
Popplewell J, at the substantive hearing, rejected a contention that there was any hardship, prejudice or detriment to good administration. Leave could not therefore be refused under section 31(6) of the Supreme Court Act 1981. He ruled, however, that he was entitled to reconsider the question of delay on the basis that no good reason had been shown for extending it within the meaning of R.S.C., Ord. 53, r. 4(1). He treated it in effect as a “conditional leave” subject to fuller argument and he refused to extend the time. Further, he rejected A’s contention that the Board should have obtained the notes of 25 May 1991 and that the Board had not taken account of ther effect on her of rape when considering her evidence. He was clear, however, that if the Board had Dr. West’s report “it would be very difficult for them to come to the conclusion that her credibility was nil” and concluded that “in fairness, the Board, alerted to the fact that there had been this report, should, of their own volition, have sorted it out, or at least invited the applicant’s view as to whether there should be an adjournment to obtain it”.
The Court of Appeal held that Popplewell J had erred in refusing to extend time on the basis that once leave had been granted by Carnworth J that leave would stand unless a successful application were made to set it aside. He did not have jurisdiction to reconsider the question of extension of time. The Court of Appeal dismissed A's appeal on the merits, rejecting the submission that the Board had a duty to obtain evidence. On appeal by A:
Held , allowing the appeal in part
(1) Popplewell J did not have jurisdiction to reconsider the question of an extension of time and whether good grounds had been shown under Order 53, r. 4(1) and to hold that they had not. Reg. v. Tavistock General Commissioners, Ex parte Worth [1985] S.T.C. 564 overruled. Once leave had been granted that leave would stand unless a successful application were made to set it aside.
(2) There is no onus on the Board to go out to look for evidence, nor does the Board have a duty to adjourn the case for further enquiries if the applicant does not ask for one. (Reg. v. Criminal Injuries Compensation Board, ex parte Parsons (unreported) [17 January 1990] approved.)
(3) The police and the Board knew that A had been seen by a police doctor. It was not sufficient for the police officer simply to give her oral statement without further enquiry when it was obvious that the doctor was likely to have made notes and probably written a report. This was even more necessary in light of the wording of later medical reports. It would not have been possible for the Board to say, as they did, “we considered the medical evidence but concluded that it gave no assistance in determining whether she had been raped and buggered, as alleged.” For this reason, and due to other inconsistencies in the police evidence that might undermine the Board’s view that A lacked credibility, there was unfairness and a breach of natural justice. It was unnecessary to find that anyone was at fault to reach this conclusion.
(4) Despite the difficulties in reopening the matter after such a lapse of time, the Board's decision should be quashed and the matter remitted for reconsideration in the light of Dr West’s report.
Parts of the scheme and other legislation referred to in the judgment
Criminal Injuries Compensation Scheme 1990, paragraphs 4, 5, 6, 25
Supreme Court Act 1981 section 31
R.S.C., Ord. 53, r. 4(1).
Cases referred to in the judgment
Patterson v. Greenwich London Borough Council (1993) 26 H.L.R. 159, C.A.
Reg. v. Bolton Justices, Ex parte Scally [1991] 1 Q.B. 537; [1991] 2 W.L.R. 239; [1991] 2 All E.R. 619, D.C.
Reg. v. Chief Constable of Cheshire, Ex parte Berry (unreported), 30 July 1985, Nolan J.
Reg. v. Criminal Injuries Compensation Board, Ex parte Lain[1967] 2 Q.B. 864; [1967] 3 W.L.R. 348; [1967] 2 All E.R. 770, D.C.
Reg. v. Criminal Injuries Compensation Board, Ex parte Milton [1997] P.I.Q.R. P74
Reg. v. Criminal Injuries Compensation Board, Ex parte Parsons (unreported), 17 January 1990, Hutchison J.
Reg. v. Dairy Produce Quota Tribunal for England and Wales, Ex parte Caswell [1990] 2 A.C. 738; [1990] 2 W.L.R. 1320; [1990] 2 All E.R. 434, H.L.(E.)
Reg. v. Leyland Justices, Ex parte Hawthorn[1979] Q.B. 283; [1979] 2 W.L.R. 28; [1979] 1 All E.R. 209, D.C.
Reg. v. Tavistock General Commissioners, Ex parte Worth [1985] S.T.C. 564
Representation
Mr Nicholas Blake, QC and Miss Elizabeth Woodcraft, instructed by Miller Parris, Worthing, for A;
Mr Michael Kent, QC, instructed by the Treasury Solicitor, for the Board.
|