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Headnote |
Summary of decision
Upon judicial review, in a sexual and physical abuse claim the Court held that the Panel was entitled to hold that where a report could have been made to the police, no other authority was appropriate. The Panel was not bound to consider whether reporting to a social worker constituted reporting to an appropriate authority when HW’s case had not been put on this basis. The court also set out the correct approach to use in determining issues under paragraph 8(a).
Facts
On 7 August 1995 HW made an application for compensation under the Criminal Injuries Compensation Scheme 1990 (‘the Scheme’) in respect of crimes of violence committed against her by her former husband between 1985 and 1987 in which she said that she suffered a fractured skull and brain damage known as “punch drunk syndrome”. That diagnosis was not made until some considerable time after HW left her husband. She said that at the time that she fled her husband the focus of attention was on sexual abuse by the husband on one of their daughters, which resulted in a conviction of the husband for sexual abuse and compensation under the Scheme for the daughter. HW’s application was disallowed by the Criminal Injuries Compensation Authority (‘The Authority’) on 18 March 1997. An appeal to the Criminal Injuries Compensation Panel (‘The Panel’) was heard on 12 December 2000. HW variously said that she could not recall if she told the police about violence by her husband against her and that she had told them. Police and social work evidence before the Panel indicated that HW had not reported the matter to the police. There was unchallenged evidence that HW had reported the violence to the social worker. The Panel’s decision was given by letter dated 20 April 2001, saying “Disallowed- not satisfied ever reported to police and in any event alleged offender not prosecuted (paragraphs 6(a) and 8(a)).” Full written reasons were given on 12 July 2001. HW sought judicial review on the ground that the Panel had erred in law and acted unreasonably in making the decision. HW argued that (1) for the purposes of paragraph 6(a), reporting the violence to the social services department was sufficient. Paragraph 24 of the Guide to the Criminal Injuries Compensation Scheme (‘the Guide’) was referred to, which stated that reports to those other than the police would not “generally” be sufficient rather than precluding such reporting entirely; (2) the Panel failed to give any consideration as to whether it would be appropriate to make a reduced award, rather than no award, if they were not satisfied that the matters had been reported to the police; (3) the Panel’s finding that the police were not informed of the assaults was unreasonable; (4) the Panel failed to take proper account of the fact that HW’s memory had been affected by her abusive experiences; and (5) in respect of paragraph 8(a) it was unreasonable of the Panel to fail to consider that in all the circumstances there was good reason, on the balance of probabilities, why the police had not brought a prosecution against the husband.
Held
(1) The fact that there was unchallenged evidence before the Panel that HW had told the social worker about the violence was not per se sufficient to have required the Panel to address the question of who the appropriate authority was. Based on the matters presented before the Panel, it was entitled to hold that where a report could be made to the police, no other authority was appropriate. At the time that HW’s application was before the Panel, no case was put forward to the effect that the Panel ought to regard her reporting to the social worker as the giving of information to the appropriate authority. In these circumstances here was no misdirection on the proper scope of paragraph 6(a) by not addressing whether the social worker was an appropriate authority.
(2) The reasons of the Panel disclosed acknowledgment that a failure to report to the police did not necessarily result in the withholding of an award. They took the view that the circumstances did not justify their exercising their discretion in any way other than by withholding an award. There was no misdirection.
(3) Whilst the Panel’s reasoning in respect of HW’s evidence was not altogether satisfactory, the finding that HW did not report her husband’s assaults was not one that no reasonable tribunal could have reached on the evidence before it.
(4) The fact that there was good medical reason for her not to be able to remember, at the time of the hearing in 2000, what she told police in 1988, did not help to establish that she did tell them about the assaults committed on her. The Board had looked elsewhere for confirmatory evidence that she had told the police but did not find it.
(5) In respect of paragraph 8(a), the proper approach would have been to proceed on the basis of the finding of fact that the Panel had made, namely that no complaint had been made to the police rather than the hypothetical situation of assuming that there had been a complaint. On that basis, the answer to why the husband was not prosecuted was obvious and the question then to be asked would be whether the failure to report or the fact that social services did not pass on HW’s complaints could constitute a “practical, technical or other good reason” for non-prosecution. The Panel did not address this and therefore misdirected themselves as to the issue to be considered under paragraph 8(a). However, the Panel’s decision would stand as the Panel’s determination under 6(a) was sufficient to result in the disallowance of the award.
Parts of the scheme and other legislation referred to in judgment
Criminal Injuries Compensation Scheme 1990, paragraphs 4, 6, 8
Guide to the Criminal Injuries Compensation Scheme 1990, paragraph 24
Cases referred to in the judgment:
N/A
Representation:
Sutherland, instructed by Drummond Miller, for HW.
D B Ross, instructed by the Office of the Solicitor to the Advocate General, for the Panel.
http://www.bailli.org/scot/cases/ScotCS/2002/138.html
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