In Petition Of L.c. V. For Judicial Review Of Decisions Of The Criminal Injuries Compensation Board
| Jurisdiction | Scotland |
| Judge | Lord Macfadyen |
| Date | 14 May 1999 |
| Court | Court of Session |
| Published date | 14 May 1999 |
OUTER HOUSE, COURT OF SESSION
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| OPINION OF LORD MACFADYEN in Petition of L.C., Petitioner; for JUDICIAL REVIEW OF DECISIONS OF THE CRIMINAL INJURIES COMPENSATION BOARD ________________
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Petitioner: Sutherland; Drummond Miller, W.S.
Respondent: Dunlop; Solicitor, Secretary of State for Scotland
14 May 1999
Introduction
The petitioner's daughter, who was born on 10 February 1983, was the victim of three separate incidents of indecent exposure, which occurred on 5 November 1991 ("the first incident"), 17 December 1991 ("the second incident") and 31 October 1994 ("the third incident"). On 3 April 1992 the petitioner made an application ("the first application") on her daughter's behalf to the Criminal Injuries Compensation Board ("the Board") for awards of compensation under the Criminal Injuries Compensation Scheme 1990 ("the 1990 Scheme") in respect of the first and second incidents. The first application was refused by a single member of the Board on 28 April 1993. On 3 February 1995 the petitioner made an further application ("the second application", which was made initially under the non-statutory Criminal Injuries Compensation Tariff Scheme, but subsequently, following the withdrawal of that Scheme, was treated as an application under the 1990 Scheme) on her daughter's behalf for an award of compensation in respect of the third incident. At the same time, she applied for an oral hearing in respect of the first application. The two applications were put out for hearing together on 21 September 1995. After the hearing on that date, when evidence was led in relation to all three incidents, both applications were refused. The formal notification of the Board's decision was contained in a letter dated 24 November 1995 (No. 6/13 of process). In this petition the petitioner seeks judicial review of that decision.
The Scheme
Paragraph 4 of the 1990 Scheme provided as follows:
"The Board will entertain applications for ex gratia payments of compensation in any case where the applicant ... sustained ... personal injury directly attributable -
(a) to a crime of violence ...".
The Board's Decision
The issue with which the hearing before the Board on 21 September 1995 was concerned was whether, in each of the three incidents, the petitioner's daughter had sustained personal injury directly attributable to a crime of violence. In the event, the Board did not reach the stage of considering whether the petitioner's daughter had sustained personal injury directly attributable to each incident. The basis of its decision was that the incidents did not constitute crimes of violence.
The Board's decision dealt first with the second incident in the following terms:
"The applicant's evidence of what happened in the incident of 17 December 1991 was at variance with her contemporaneous account. We preferred the latter and concluded that what occurred did not constitute a crime of violence in terms of the Scheme. We could accordingly make no award (Paragraph 4(a))."
The Board then dealt with the first incident in the following terms:
"So far as the incident of 5 November 1991 is concerned, she described this as 'he exposed himself ... that's all that happened'. Once again we are not satisfied that the incident described constituted a crime of violence in terms of the Scheme and could accordingly make no award. Paragraph 4(a)."
In relation to the third incident the Board's decision was expressed in the following terms:
"The applicant described how she and her friend saw a man 'touching himself' in his car. He smiled at them as they passed and they ran away. The Board was not satisfied that the incident as described constituted a crime of violence in terms of the Scheme (Paragraph 4(a)). We accordingly make no award."
The Grounds of Challenge
The petitioner seeks reduction of each of the three elements of the decision. She does so on two grounds, the first of which was advanced in two alternative forms. The first ground was that the Board had misdirected itself as to what constituted a crime of violence. The primary basis for that submission was that the decision showed that the Board had proceeded on the erroneous view that indecent exposure could never constitute a crime of violence. Alternatively, if the Board was to be regarded as having proceeded on the basis that indecent exposure might in some circumstances constitute a crime of violence, it had misdirected itself in holding that, in the circumstances of each of the three incidents in question, the indecent exposure committed did not constitute a crime of violence. The second ground on which the validity of the Board's decision was challenged was that the Board had failed to state proper reasons for its conclusion that each incident did not constitute a crime of violence.
The Meaning of "Crime of Violence"
The 1990 Scheme contains no definition of the expression "crime of violence". The expression has, however, been the subject of discussion in a number of cases both in Scotland and in England. Mr Sutherland, who appeared for the petitioner, began his exposition of the authorities by referring to R v Criminal Injuries Compensation Board, ex parte Clowes [1977] 1 WLR 1353, in which the issue was whether a man who, in order to commit suicide, broke off the end of a gas stand pipe, had committed a crime of violence against a police officer who was injured by an explosion which occurred as a result while he was investigating the incident. The decision of the majority of the court was that he had, having in particular contravened section 1(2)(b) of the Criminal Damage Act 1971 (recklessly endangering life by the destruction of property). In the course of his judgment, Eveleigh J said (at 1359A):
"... 'personal injury directly attributable to a crime of violence' means in my opinion 'personal injury directly attributable to that kind of deliberate criminal activity in which anyone would say that the probability of injury was obvious'. That is not meant to be an exhaustive definition. It is rather an indication of an approach."
(See also Wien J at 1362G.) In that case, Lord Widgery CJ dissented from the result reached by the majority of the court, and in doing so said (at 1364):
"What the meaning of 'crime of violence' is in my opinion is very much a jury point".
It was Lord Widgery CJ's approach that was endorsed and elaborated upon in the next case which Mr Sutherland cited, namely R v Criminal Injuries Compensation Board, ex parte Webb [1987] 1 QB 74. The court had before it four separate cases in each of which the applicant was a railway engine driver who had suffered from mental illness as a result of his train running over and killing a person on the line. In three of the four cases the deaths were suicide. The persons who died had been guilty of contravening section 34 of the Offences against the Person Act 1861 (endangering the safety of persons in or upon a railway by any unlawful act). The court held that there had been no crime of violence. Lawton LJ said (at 77H-78B):
"The words 'crime of violence' are not a term of art. The scheme is not a statutory one. The government has made funds available for the payment of compensation without being under a statutory duty to do so. It follows, in my judgment, that the court should not construe the scheme as if it were a statute but as a public announcement of what the government is willing to do. This entails the court deciding what would be 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."
Later (at 79D-E) his Lordship recorded certain submissions made on behalf of the Board in the following terms:
"[The words 'of violence'] indicate the nature of the crime to which the scheme applies. The nature of a crime is different from its consequences. Injury to a person may be the probable consequence of failure to fence a dangerous part of a machine, contrary to section 14 of the Factories Act 1961 (which is an offence), but no one would say that such a failure amounted to a crime of violence. If consideration of probable consequences is what makes a crime one of violence, a motorist who leaves his vehicle in a dangerous position contrary to section 24 of the Road Traffic Act 1972 commits a crime of violence."
His Lordship concluded (at 79H - 80A):
"In my judgment [the submission of counsel for the Board] that what matters is the nature of the crime, not its likely consequences, is well founded. It is for the Board to decide whether unlawful conduct because of its nature, not its consequences, amounts to a crime of violence. Lord Widgery CJ pointed out in [Clowes] ... that the meaning of 'crime of violence' is 'very much a jury point'. Most crimes of violence will involve the infliction or threat of force but some may not. I do not think it prudent to attempt a definition of words in ordinary usage in English which the Board, as a fact finding body, have to apply to the case before them. They 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 so wide as to produce absurd consequences ...".
As Mr Sutherland pointed out, Lawton LJ's approach has been followed in Scotland. In Craig v Criminal Injuries Compensation Board (10 December 1992, unreported, 1993 GWD 5-303), which also concerned claims by train drivers, each of whom had suffered psychological injury as a result of his train running over a suicide, Lord Cameron of Lochbroom upheld the Board's adoption of the test formulated in Webb, and said (at page 14 of his opinion):
"I consider that the flaw in the main submission for the petitioners lies in the assertion that because a suicide deliberately chooses a method of killing himself, the consequences of which are to involve a risk of injury to others, that must be...
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