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Headnote |
Summary of decision
In each case the Panel had been justified in thinking that the applicant’s consent was relevant to the construction and application of the concept of “crime of violence”; although it was not necessarily the determinative factor in all cases. The question of whether a crime was a “crime of violence” was a jury question. In answering that question it was necessary to look at the nature and not the consequences of the unlawful conduct.
Facts
August
The applicant (‘A’) had a troubled history having been placed into care aged about 9 and having been the victim of sexual abuse. It was against that history that A came to meet a man: Mr Crow (‘C’) in a public lavatory in the summer of 1990, when A was aged 13 or 14. A had gone to the lavatories to look for someone to take part in homosexual acts for money. On a number of occasions C met with A. C was, in 1993 convicted of buggery, gross indecency and taking indecent photographs of A. On A’s application for criminal injuries compensation to the Criminal Injuries Compensation Authority (‘The Authority’) in 1997 his claim was rejected on the ground, inter alia, that the offences committed were not crimes of violence for the purposes of paragraph 8(a) of the Criminal Injuries Compensation Scheme 1996 (‘the Scheme’). Upon review, the Authority upheld that decision on the same grounds. A appealed to the Criminal Injuries Compensation Appeals Panel (‘the Panel’). At the hearing, it was accepted on A’s behalf that he had participated voluntarily, but it was submitted that any consent was vitiated by his age, history in care and earlier history of sexual abuse. The Panel dismissed the appeal finding that there had not been a crime of violence. On A’s application for judicial review of the Panel’s decision, Owen J held that it did not follow that because there could not be consent valid in law, that there was a crime of violence. It was for the final analysis of the Panel to consider on the evidence, having assessed the witnesses and the facts before it, whether there had been a crime of violence. There was no reason to say that the Panel had erred in law, or that the decision was unreasonable. It was not appropriate to quash its decision. A appealed that decision.
Brown
In the late 1960s the applicant (‘B’) had been a pupil at an approved school where, he alleged, he had been subjected to non-consensual buggery by other boys. There was a degree of sexual activity between inmates and there was no doubt that sexual abuse had occurred at the school during the 1960s. The Ayuthority had found in addition that there was likely to have been consensual sexual relationships and experimentation between boys of similar ages. B claimed that he had not consented to the various acts and indeed that the extent of the activities in which he had been involved was less than those which the Authority found. The Authority found that his activities were more widespread and consensual than he had admitted because he had acted as a “rent boy”. In those circumstances it was clear to the Authority that B had consented. The Panel rejected B’s appeal because it was not satisfied that any sexual activity between B and any of the three boys he named was non-consensual and amounted to a crime of violence. B applied for judicial review of the Panel’s refusal to compensate him on the basis that his consent to acts of buggery between the age of 12 to 13 meant that he was not a victim of a crime of violence. Collins J, in the Divisional Court, held, allowing B’s application, that the approach of the Panel was wrong. In this case B was buggered, he suffered direct physical injury. It was inevitable that he would be injured. Consent apart, this would undoubtedly have been regarded as a crime of violence. Consent should not make all the difference when the act itself is violence towards a child. Parliament, in sexual offences, had indicated that as a matter of public policy the consent of someone of the age of 12 or 13 should not be a defence to an offence of buggery, therefore the Panel’s decision that such an act did not amount to a crime of violence was wrong in law. The Panel appealed that decision.
Held, dismissing the applicant’s appeal in the case of August and allowing the Panel’s appeal in the case of Brown
(1) In each case the Panel had been justified in thinking that the applicant’s consent was relevant to the construction and application of the concept of ‘crime of violence’.
(2) The offence of buggery in sections 12 and 13 of the Sexual Offences Act 1956 was established to prevent unnatural behaviour and not to protect children or any other person involved.
(3) An act of buggery need not entail an assault, as the Sexual Offences Act 1967 specifically recognised in section 7(2)(c) and
(4) Since the consent of either party to an act of buggery was irrelevant to guilt, the age of the parties was irrelevant, save where the special provisions of section 1 of the Act applied to exempt from prosecution an act of buggery between consenting adults in private;
(5) As a matter of criminal law, an act of buggery did not depend on a lack of consent and therefore need not entail an assault. Similarly it may not amount to a crime of violence under the Scheme. In each case it was for the Panel to decide, as a jury question taking into account all the circumstances of the case, whether the crime, as actually committed had been a crime of violence.
(6) The Court of Appeal approved five propositions drawn from the case of R v. Criminal Injuries Compensation Board, ex parte Webb [1987] 1 QB 74 in relation to the meaning of a ‘crime of violence :
(i) The concept of a crime of violence is not a term of art;
(ii) The issue of whether a crime of violence has taken place is a jury question for the Authority or the Panel to decide. It depends on “a reasonable and literate man’s understanding of the circumstances in which he could under the Scheme be paid compensation for personal injury caused by a crime of violence”;
(iii) That 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 may be difficult to produce a definition which is not too narrow or too wide as to produce absurd consequences”;
(iv) 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) crime; and (b) a crime of violence
(v) In performing that task the Panel had to look at the nature and not the consequences of unlawful conduct;
(7) Close consideration should be given to whether there was consent in fact (rather than in law) and whether the consent was freely and voluntarily given. In both cases the Court of Appeal held that on the particular facts before the Panel they had been free to conclude that the acts were consensual and did not amount to crimes of violence.
(8) Obiter, the Court of Appeal suggested that there were some cases where the need for written reasons ought to be contemplated and a reasoned statement prepared at the time or shortly after the hearing. as to the need for the Board to give reasons for their decisions, the nature and extent depending on the circumstances of the case. The Court deprecated the fact that only terse short reasons were given in Brown at the time of the hearing (notwithstanding the fact that it had been a four man Panel) and no reasoned judgment given until eight months thereafter.
Parts of scheme and other legislation referred to in judgment
1996 Criminal Injuries Compensation Scheme paragraphs 6, 8, 9, 13,
Criminal Injuries Compensation Act 1995
Cases referred to in judgment
R v. Criminal Injuries Compensation Board, ex parte Webb [1987] 1 QB 74;
Gray v. Criminal Injuries Compensation Board [1999] SLT 425;
R v. CICB, ex parte Piercy (unreported, 14 April 1997);
R v. CICB ex parte Clowes [1977] 1 WLR 1353;
Lane v. Holloway [1968] 1 QB 379;
Representation
Allan Levy QC and Caroline Hamilton (instructed by Roach Pittis) appeared for A;
Jonathan Crow and Dinah Rose (instructed by the Treasury Solicitor) appeared for the respondent Appeals Panel;
James Guthrie QC and William McCarthy (instructed by Hardwicks) appeared for B;
Jonathan Crow and Hugo Keith (instructed by the Treasury Solicitor) appeared for the appellant Appeals Panel
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