Criminal Injuries Compensation Authority v First Tier Tribunal (Social Entitlement Chamber) (Criminal Injuries Compensation) Y (by his Mother and Litigation Friend) (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P,Lord Justice McFarlane,Lord Justice Henderson |
| Judgment Date | 14 March 2017 |
| Neutral Citation | [2017] EWCA Civ 139 |
| Docket Number | Case No: C3/2016/2474 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 March 2017 |
[2017] EWCA Civ 139
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
JR/2930/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Lord Justice McFarlane
and
Lord Justice Henderson
Case No: C3/2016/2474
and
Ben Collins Q.C. (instructed by Criminal Injuries Compensation Authority, Legal Services, Glasgow) for the Appellant
Malcolm Johnson (of BL Claims, London) for the Interested Party
The Respondent did not appear and was not represented.
Hearing date: 15 February 2017
How broad is the definition of those who can properly describe themselves as victims who have sustained personal injuries in and directly attributable to a crime of violence? The question is determinative for qualification to claim compensation pursuant to the terms of the Criminal Injuries Compensation Scheme now established by the Criminal Injuries Compensation Act 1995 ("the 1995 Act"). In the usual case, the answer is straightforward and rarely gives rise to challenge. In this case, however, it raises a question of law as to the proper meaning of the Scheme.
The facts can be summarised very shortly. From the age of 9 years, M was sexually abused by her father KM which, after two years, progressed to full sexual intercourse. Ten years later, on 14 October 1987, Y was born following incestuous sexual intercourse (agreed to have constituted rape) between M and KM and just over two years later, M gave birth to another child, also by KM. Thereafter, this course of conduct came to light and KM subsequently pleaded guilty to incest and was sentenced to a term of three years' imprisonment. M brought a successful claim under the Criminal Injuries Compensation Scheme 1990 ("the 1990 Scheme") on the basis of the crimes of violence (including that which led to the conception of Y) of which she was a victim.
Tragically, Y was born with a serious genetic disorder which it is accepted was probably caused by the incestuous intercourse. This conclusion has been reached on the basis that there is a 50% chance of such problems appearing in those born of an incestuous relationship as compared with a chance of 2–3% in the general population. In that regard, it is noteworthy that Y's sibling did not have the genetic disorder. I add that the compensation which M received did not encompass any payment in relation to the condition, care or upbringing of Y.
In February 2012, a claim was made on behalf of Y under the Criminal Injuries Compensation Scheme 2008 ("the 2008 Scheme") which, on 25 June 2012, was refused on the grounds that Y was not a victim of a crime of violence and that his congenital condition was a result of the relationship between his parents and not of the assault itself. The decision was maintained after review. On appeal, the decision being dated 20 March 2014, the First-tier Tribunal ("FTT") followed the reasoning of Lord Osborne in the Scottish case of Millar (Curator Bonis to AP) v Criminal Injuries Compensation Board 197 SLT 1180, 13 November 1996. It concluded that Y "did not have and could never have had an uninjured state" and had not suffered an injury within the terms of the 2008 Scheme. Thus, the appeal was dismissed.
Acting with his mother as his litigation friend, Y then sought judicial review of the FTT by application to the Administrative Appeals Chamber of the Upper Tribunal ("UT") which stayed the hearing pending an appeal in CP v First-tier Tribunal and Criminal Injuries Compensation Authority. That case concerned foetal injury caused by maternal self-induced alcohol poisoning: see [2014] EWCA Civ 1554. As a result, it was only on 25 April 2016 that Judge H. Levenson sitting in the UT determined the appeal, reversing the decision and concluding that Y was eligible for an award of compensation. On 19 May 2016, the judge granted permission to the Criminal Injuries Compensation Authority ("CICA"), interested parties to the application, to appeal to this court.
The 2008 Scheme
The 2008 Scheme is governed by s. 1 of the 1995 Act which requires the Secretary of State to make arrangements for the payment of compensation to, or in respect of, persons who have sustained criminal injuries, the phrase 'criminal injury' being defined in the Scheme itself. It applies to any application for compensation received on or after that date and provides (at para. 6) that compensation may be paid to "an applicant who has sustained a criminal injury on or after 1 August 1964" (i.e. after the date when a compensation scheme was first started).
The phrase 'criminal injury' is defined by para. 8 in terms as meaning one or more personal injuries being an injury or injuries sustained in and directly attributable to an act occurring in Great Britain as described in para. 9 which is in these terms:
"For the purposes of this Scheme, personal injury includes physical injury (including fatal injury), mental injury (that is temporary mental anxiety … or a disabling mental illness…) and disease (that is a medically recognised illness or condition). Mental injury or disease may either result directly from the physical injury or from a sexual offence or may occur without any physical injury. Compensation will not be payable for mental injury or disease without physical injury, or in respect of a sexual offence, unless the applicant:
(a) was put in reasonable fear of immediate physical harm to his or her own person; or
(b) had a close relationship of love and affection with another person at the time when that person sustained physical and/or mental injury … and
(i) that relationship still subsists (unless the victim has since died) and
(ii) the applicant either witnessed and was present on the occasion when the other person sustained the injury or was closely involved in its aftermath; or
(c) in a claim arising out of a sexual offence, was the non-consenting victim of that offence (which does not include a victim who consented in fact but was deemed in law not to have consented)."
Putting these provisions together generates two questions which, on analysis, can be linked. The first is whether the applicant for compensation, Y, is a victim who sustained an injury (including a medically recognised condition) directly attributable to the act of incestuous rape. This involves a consideration of the necessity for a pre-existing state which is altered by the relevant act (i.e. the rape). The second is whether compensation is being claimed in respect of a sexual offence which is caught by para. 9 and whether that provision itself presupposes the existence of Y at the time of the offence (rather than being conceived as a consequence of it). The link is the fundamental issue of whether it is sufficient that Y's condition is a consequence of the act of sexual violence which occurred prior to Y's existence.
The Approach of the Tribunals
The facts which form the background to this case are identical to those considered in Millar(supra), decided under the 1969 Scheme. The Board then argued that the applicant had not suffered injury as her condition and disabilities were congenital and 'inherent' to her. Having reviewed UK and US authorities, Lord Osborne agreed with the first submission. He said (at 1199):
"It appears to me that the concept of injury, in the context of a situation in which compensation for it must be assessed, presupposes a pre-injury state which is capable of assessment and comparison with the post-injury state. It is obvious from the circumstances of this case that the child concerned never had, nor could have, any existence save in a defective state. Accordingly, in my opinion, it is inevitable that her plight, grievous though it may be, cannot be seen as 'personal injury', within the meaning of para. 5 of the revised 1969 Scheme."
At the FTT, it was argued that reliance should not be placed on Millar because it was decided under a scheme founded on common law principles of damages that had no place under the 2008 Scheme. The Tribunal concluded however that the issue – could the applicant show that he had suffered personal injury which was directly attributable to a crime of violence? – remained at the heart of the 2008 Scheme and was in almost identical terms to the relevant language of the 1969 Scheme. Further, Y's 'uninjured' state could only be never to have been conceived. The fact that 50% of children conceived by his parents could have avoided the disorder did not assist because the question had to be articulated whether, prior to the assault, there was a person or entity 'Y' upon whom the impact of the crime of violence could be measured. The answer was that there was not.
The Tribunal set out the reasons for refusing to treat Y's conception and birth as being an injury for the purposes of the 2008 Scheme in the following terms:
"(a) That argument would require a submission that [Y] has a claim for 'wrongful life'. The fact of his being born at all would be his actionable injury.
(b) The common law does not recognise a claim for 'wrongful life' by a child whether injured or uninjured: [ McKay v Essex Health Authority [1982] QB 1166] has been unchallenged authority for that proposition for over 30 years.
(c) Although the Scheme is a free-standing scheme the terms of which are to be applied to the evidence presented, it is not to be interpreted in a vacuum; regard can and should be had to the relevant common law where appropriate ([ Rust-Andrews v. FTT (Social Entitlement Chamber and another) [2012] PIQR P7; [2011] EWCA Civ 1548 at para. 34]). …
(d) At...
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Evie Toombes (a protected party who sues by her mother and litigation friend, Caroline Toombes) v Dr Philip Mitchell (sued in his own right and as a partner in, and on behalf of all the partners in the Hawthorn Medical Practice)
...Mr Johnston relies upon the case of Criminal Injuries Compensation Authority v First-tier Tribunal (Social Entitlement Chamber) [2017] EWCA Civ 139 (“ CICA v FTT”). The claim was brought by a disabled child (“Y”) who was the product of an incestuous rape of his mother (“M”) by his maternal......