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Headnote |
Summary of decision
Despite the fact that the Criminal Injuries Compensation Board failed to appreciate that there was a dispute as to the conclusions reached by the Board’s advocate they were nonetheless entitled to refuse A’s application for an oral hearing on the basis of the material before them at the time. In the context of this case even if A’s version was correct, the only sensible and proper result must have been to withhold compensation.
Facts
The Applicant (‘A’) was the victim of a street mugging on 13th September 1991. He was knocked unconscious and sustained a broken jaw, and lacerations requiring stitches to his head and neck. He was attacked from behind and was unable to recall any details of his attackers. He did not report the matter to the police. In October 1991 he made an application to the Criminal Injuries Compensation Board (‘The Board’) for compensation. On 8 January 1992 the Board’s advocate concluded that A was not eligible for an award on the basis that he had failed to report the alleged assault to police (under paragraph 6(a) of the Criminal Injuries Compensation Scheme 1990 (‘The Scheme’). A then made an application for an oral hearing which was refused by two members of the Board. A applied for judicial review of each decision. He challenged the decision of the advocate on the basis that, in effect, a blanket policy objection to the grant of compensation had been applied without properly applying her mind to the fact that there may be a discretion to exercise. He also sought to challenge the decision of the Board in refusing him an oral hearing on the basis that the Board had failed to appreciate that there was a dispute as to the conclusion reached by the Board’s advocate that there could be no effective police enquiry because he had not reported the matter to the police. It was his case that even if he had reported the matter to the police there would not have been an effective enquiry because he was unable to identify his attackers. On this basis he had sought an oral hearing in accordance with paragraph 24(c) of the Scheme.
Held, refusing the application
(1) The fact that the Board’s advocate was well aware that she had a discretion to exercise could be seen from her decision letter where she asserted that compensation was not ‘usually’ paid where the Applicant failed to report to the police. It follows that she was well aware of the fact that there were circumstances which could justify a departure from the normal practice.
(2) There was nothing in the material before the Board’s advocate which could justify the exercise of discretion other than in the way that she did. There was no requirement for her to set out her decision adopting the three stage process which Sedley J referred to in The Queen v Criminal Injuries Compensation Board, ex parte Andrew Gambles; (i) does the Applicant’s conduct make a full award inappropriate? (ii) if so to what extent does the Applicant’s conduct impact on the appropriateness of an award? (iii) what award, if any. Should the Applicant consequently receive?
(3) The Guide to the Scheme, is not to be treated as a policy document although it is a ‘helpful piece of background information against which …Applicants are able to gauge the general approach of the Board.’ ex parte Andrew Gambles considered).
(4) Whilst there was no dispute as to a material fact, there was undoubtedly a dispute as to the conclusion reached by the Board’s advocate. The Board therefore did come to a wrong conclusion in that they failed to appreciate that there was a dispute as to the conclusions reached by the Board’s advocate.
(5) The Board ought then to have gone on to consider the extent to which that dispute would nonetheless have resulted in an identical result in that even the Board had accepted A’s version of events, ‘the only sensible and proper result would have been to withhold compensation’. (Latham LJ). This is how paragraph 24(c) of the Scheme operates.
(6) New material which was not previously before the Board which showed that the Applicant was disabled in some respects and that the circumstances of his assault were obscure made no difference. The conclusion that was reached by the Board was one which was inevitable if they had considered the matter in the right way and was inevitable had they considered the matter in light of all the facts that were now known.
Parts of scheme and other legislation referred to in judgment
1990 Criminal Injuries Compensation Scheme, paragraphs 4, 6(a), 23 and 24(c)
Cases referred to in judgment
R v. Criminal Injuries Compensation Board, ex parte Andrew Gambles 3 December 1993.
Representation
T Price instructed by Kennards for the Applicant.
M Kent instructed by the Treasury Solicitor for the respondent.
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