CICA JR 1043 2010
| Jurisdiction | UK Non-devolved |
| Judge | Judge C. Turnbull |
| Judgment Date | 18 February 2011 |
| Neutral Citation | 2011 UKUT 77 AAC |
| Subject Matter | Criminal Injuries Compensation |
| Respondent | First Tier Tribunal & JC |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | JR 1043 2010 |
| Appellant | CICA |
IN THE UPPER TRIBUNAL Case No. JR/1043/2010
ADMINISTRATIVE APPEALS CHAMBER
1. This is a claim by the Criminal Injuries Compensation Authority (CICA), brought with my permission, for judicial review of a decision made by a First-tier Tribunal on 4 February 2010. For the reasons set out below that decision was in my judgment wrong in law and I quash it and substitute the decision which the First-tier Tribunal ought to have made, namely to dismiss JC’s appeal against CICA’s decision of 14 April 2009.
Introduction
2. CICA’s decision of 14 April 2009 was one refusing to alter on review its earlier decision of 18 December 2008, whereby it made an award of criminal injuries compensation of £4350 in favour of JC. The compensation was in respect of injuries sustained by JC in an incident on 10 February 2005 when her ex-husband forcibly penetrated her mouth with his penis. Of that sum of £4350, £3300 (level 7) was in respect of an injury considered by the decision maker to fall under the category “indecent assault – severe - non-penile penetrative and/or oral-genital act or acts” in the 2001 Compensation Scheme Tariff. (I shall refer to that category of injury in the 2001 Scheme as “the lower category”).
3. JC appealed against that decision, contending that the appropriate category should have been “non-consensual vaginal and/or anal intercourse – by one attacker”, which involved an award of a standard amount of £11,000 (level 13), to which would have been added the additional £1050. (I shall refer to that category of injury in the 2001 Scheme as “the higher category”). That contention was based on the fact that with effect from 1 May 2004 the Sexual Offences Act 2003 had extended the definition of rape so that it included non-consensual penile penetration of not only the vagina and anus, but also the mouth. However, the wording of the higher category was not brought into line with this until the Criminal Injuries Compensation Scheme 2008 was enacted. The 2008 Scheme applies to applications received by CICA on or after 3 November 2008, and so did not govern this case. (JC’s application had been made on 12 November 2006).
4. The First-tier Tribunal accepted JC’s contention and allowed the appeal. Its reasons included the following:
“6. It was submitted to us that any right thinking minister, member of Parliament or member of the public would consider it manifestly unjust that after the enactment of the Sexual Offences Act 2003 a victim of oral rape should be treated so differently as to be awarded compensation of less than a third of that awarded to victims of vaginal or anal rape. We agreed.
7. It was submitted to us that secondary legislation cannot always keep up with the clear intention of Parliament as demonstrated by its primary legislation and that we could and should give effect to that clear intention by giving a purposive interpretation to existing secondary legislation. We agreed and accordingly we interpreted the 2001 Scheme as allowing a level 13 award for non-consensual penile penetration of the mouth. We therefore awarded the sum of £11,000 for this injury.”
5. I held on oral hearing of CICA’s claim for judicial review of the First-tier Tribunal’s decision. At that hearing CICA was represented by Mr Jeremy Johnson of counsel, instructed by the Treasury Solicitor, and JC was represented (as she had been before the First-tier Tribunal) by Miss Helen Law of counsel, instructed by Fisher Meredith LLP.
Relevant legislation
6. As far as I am aware this is the only case to which my decision can be material. I do not therefore propose actually to set out the terms of even the immediately relevant legislation. However, the following statutory provisions should be treated as incorporated in this decision.
The Criminal Injuries Compensation Act, 1995 (“the 1995 Act”) sections 1, 2 and 11.
The Criminal Injuries Compensation Scheme, 2001 (“the 2001 Scheme”), paras. 1, 6, 23, 26, 27, 28 and 29.
The Sexual Offences Act 2003 (“the 2003 Act”), sections 1, 2 and 5.
The Sex Discrimination Act 1975 (“the 1975 Act”), sections 1, 21A, and 51A.
Submissions on behalf of JC
7. Although CICA is the applicant for judicial review, it is convenient to start by summarising the submissions put forward by Miss Law on behalf of JC as to why the First-tier Tribunal’s decision should be upheld. I do not propose separately to summarise Mr Johnson’s submissions because for the most part I accept them, and they are therefore to a large extent incorporated in my analysis and conclusions below. I summarise Miss Law’s submissions (I hope accurately) under A to G below.
A(1) The essence of CICA’s function is to compensate victims of crime for the criminal injury they have suffered: see especially sections 1 and 2(2)(a) of the 1995 Act. It is inherent in that function that there be a correlation between seriousness of the injury as categorised by the criminal law and the compensation paid by CICA. The 2001 Scheme was created with the purpose of giving effect to the intention of the 1995 Act.
(2) The extension of the definition of “rape” by s.1 of the 2003 Act was reached following extensive consultation and review conducted in 2000 by the Home Office, as a result of which it was concluded that:
“The present crime of rape is limited to the penile penetration of the anus and vagina. Forced oral sex is treated as an indecent assault. We thought that inappropriate. Forced oral sex is as horrible, demeaning and as traumatising as other forms of forced penile penetration, and we saw no reason why rape should not be defined as penile penetration of the anus, vagina or mouth without consent.” Setting the Boundaries: Reforming the law on sex offences, July 2000, Home Office, para. 2.8.5.
(3) The Home Affairs Committee took a similar view when it came to consider the Sexual Offences Bill in July 2003, and noted that it was logical to group all forms of non-consensual penile penetration within the same offence. The Government Reply to the Home Affairs Committee’s report said:
“The Government welcomes the Committee’s support for this provision. Our decision to include forced oral penetration within the scope of the rape offences is based on the weight of very persuasive evidence submitted to the Sexual Offences Review by victims and victim support groups.
From the perspective of victims, forced penile penetration of the mouth can be just as abhorrent, demeaning and traumatising as other forms of forced penile penetration and is equally, if not more, psychologically harmful than vaginal and anal rape.
Broadening the scope of the rape offence in this way ensures that legislation properly reflects the seriousness of the offence of forced oral penetration and its effects on the victim.” Cm 5986, pp. 1-2.
(4) The amendments made in this respect by the 2008 Scheme were made in order to maintain consistency with the criminal law. The explanation for the change given by the Parliamentary Under-Secretary of State for Justice when laying the 2008 Scheme before Parliament was:
“We have changed some of the descriptions of awards for sexual offences to bring them into line with terminology from the Sexual Offences Act 2003 and ensure consistency with current law. We have inserted some new categories and made other changes to rectify inconsistency.” House of Commons Delegated Legislation Committee, 14 July 1998, Col 5.
B. The meaning of the relevant categories in the 2001 Scheme, even read as at 2001, was not clear. In particular, there was room for argument whether penile penetration of the mouth fell within the words “non-penile penetrative and/or oral-genital act or acts.” That there was that inclarity in the 2001 Scheme is demonstrated by the fact that, under the 2008 Scheme, those words are not intended to include penile penetration of the mouth.
C. The definition “non-consensual vaginal and/or anal intercourse” in the 2001 Scheme was to the same effect as the then definition of rape in s.1 of the Sexual Offences Act 1956. The intention was to align that category of injury with the statutory definition of rape. The 2001 Scheme should be interpreted in the same manner as if this category had been expressed simply as “rape”. Had that been done, the meaning would have changed with the change in the statutory definition of rape.
D. The 2001 Scheme must be read in the light of section 11(3) of the 1995 Act, which uses the term “rape”, indicating that the statutory definition of rape should apply for the purposes of the 201 Scheme. That became even clearer after the insertion, by the 2003 Act, of s.11(9) of the 1995 Act, which refers specifically to the definition of rape in sections 1 and 5 of the 2003 Act.
E. Reliance is placed on the following principles of statutory construction:
(a) That a purposive construction will, if possible, be applied. In this connection the points under A above are particularly relied upon.
(b) “The intention of the legislature, as indicated in the outline (that is the...
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