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Summary
A trespass on a railway is an offence under section 34 Offences Against The Person Act 1861. However, it does not amount to a crime of violence for the purpose of the Criminal Injuries Compensation Scheme 1969. Train drivers who sustained psychiatric injury in consequence of running over and killing individuals who had trespassed on railway lines were not therefore eligible for compensation under the Scheme as then drafted.* The fact that an offender was not prosecuted because of age or insanity or any other condition did not preclude the making of an award. There did not have to be a conviction before compensation would become payable.
Facts:
Each of the four applicants was a railway engine driver who suffered from mental illness after his train had run over and killed a person on the line. Three of the deaths were suicides but the fourth (C’s case) involved a senile man of 84 who might not have known what he was doing. Each applicant sought compensation on the basis that his injury was caused by the victim's trespass and, therefore, was attributable to an offence under section 34 of the Offences against the Person Act 1861, and that the offence was a "crime of violence" within the Criminal Injuries Compensation Scheme 1969 (‘the Scheme’). The Board refused the applications and the Divisional Court refused judicial review of their decision. In respect of C’s case, the question arose as to whether the words in the Scheme “immunity at law of an offender, attributable to his youth or insanity or other condition” referred to immunity from prosecution or immunity from conviction. The four applicants appealed: -
Held, dismissing the appeals:
(1) The words ‘crime of violence’ were not a term of art.
(2) Since the scheme was not a statutory scheme it was for the Board, as a fact-finding body, to decide whether unlawful conduct, because of its nature and not its consequences, amounted to a crime of violence within the scheme;
(3) The board had to apply a reasonable and literate man's understanding of the circumstances in which compensation could be paid; and that, on the facts, the applications had been rightly refused. Reg. v. Criminal Injuries Compensation Board, ex parte Clowes [1977] 1 W.L.R. 1353, D.C. considered.
(4) The question is not technical or complicated. The Panel ‘will recognise a crime of violence when they hear about it, even though as a matter of semantics it might be difficult to produce a definition which is not too narrow or so wide as to produce absurd consequences.’
(5) The correct approach was not to classify particular offences as crimes of violence but to decide in each case whether the events that occurred were ; (a) a crime and (b) a crime of violence, looking to the nature and not the consequence of the unlawful conduct.
(6) The words ‘immunity at law’ in paragraph 5 of the scheme, as amended in 1969, meant immunity from conviction, and not immunity from prosecution and the words ‘youth or insanity or other condition’ in that paragraph were apt to include a lack of mental capacity due to old age. The intention of the scheme, read as a whole, was to pay compensation to persons injured by acts of criminal violence. There did not have to be a conviction before compensation became payable. It would be a most defective scheme if anyone injured by a mentally unbalanced person could not be paid compensation.
Parts of the scheme and other legislation referred to in judgment
Criminal Injuries Compensation Scheme 1969, paragraph 5
Offences against the Person Act 1861, sections 32-35
Factories Act 1961
Criminal Damage Act 1971, section 1
Food and Drugs Act 1955
Road Traffic Act 1972, section 24
The following cases were referred to in the judgments:
Cozens v Brutus [1973] A.C. 854; [1972] 3 W.L.R. 521; [1972] 2 All E.R. 1297, H.L.(E.)
R v Criminal Injuries Compensation Board, ex parte Clowes [1977] 1 W.L.R. 1353, DC
R v Martin (1881) 8 Q.B.D. 54
R v Pittwood (1902) 19 T.L.R. 37
Representation:
Mr Leslie Joseph Q.C. and Mr Guy Sankey, instructed by Messrs Robin Thompson & Partners, for the applicants.
Mr JM Wright and Mr JGM Laws, instructed by the Treasury Solicitor, for the Board.
*The Criminal Injuries Compensation Scheme 1990 was specifically amended to permit such claims.
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