June Kilpatrick Gray V. The Criminal Injuries Compensation Board
| Jurisdiction | Scotland |
| Judge | Lord Coulsfield |
| Date | 28 October 1998 |
| Court | Court of Session |
| Published date | 06 February 1999 |
OPINION OF THE COURT
delivered by LORD COULSFIELD
in
RECLAIMING MOTION
in the cause
JUNE KILPATRICK GRAY
Petitioner & Reclaimer;
against
THE CRIMINAL INJURIES COMPENSATION BOARD
Respondents:
_______
28 October 1998
On 21 November 1989, the reclaimer applied to the respondents for payment of an award of compensation. Her application was initially refused by a single member of the respondents and was later referred to a hearing before three members. By a written decision, dated 13 January 1992, the reclaimer's application was refused. She then made an application to the court for judicial review but that was refused by the Lord Ordinary on 13 May 1992. She thereafter enrolled a reclaiming motion, which came before us on 8 and 9 October 1998. Counsel who appeared for the reclaimer had only become involved in the case relatively recently and was unable to provide any explanation for the extraordinary delay which has occurred.
The facts out of which the application to the board arose are narrated in the board's written decision and in the opinion of the Lord Ordinary. In summary, the appellant became friendly with a man named Kenneth Watson in 1987. Watson
attempted to persuade her to have sexual intercourse with him but she initially declined. On a number of occasions during 1988, Watson asked the appellant to marry him but she declined that proposal also. Eventually, however, after the proposal had been renewed, she became engaged to him on 10 December 1988. She understood from what he had told her that he was divorced and had been for a number of years. The appellant and Watson had sexual relations on one occasion before their marriage which took place on 24 March 1989. Thereafter they resided together and had sexual intercourse on about six occasions. On 21 August 1989, Watson disappeared. The appellant reported his disappearance to the police who later found him living in Carlisle under the name of Kenneth Murray Dolman with a woman to whom he was married and with her children. The written decision continues:
"The applicant stated that the discovery that her marriage was bigamous had caused her great distress. She particularly stressed that following upon Watson's deception of her she had sexual intercourse with him. She confirmed that she had been divorced herself in 1972 because of her former husband's affair with her sister. Her former husband and her sister had two children. The applicant claimed that the realisation that she had married a bigamist had a devastating effect on her. She had required to attend her doctor for stress. She had indicated that if she had known that Watson had been married she would never have gone out with him, far less had a sexual relationship with him. No medical evidence was produced on behalf of the applicant".
As the Lord Ordinary points out, it is not quite clear whether the board accepted the applicant's evidence on all these matters but for the purpose of these proceedings it can be assumed that these facts were accepted. The ground of the refusal of the application by the board was that the appellant was not a victim of a "crime of violence" and therefore had no claim under the scheme and the Lord Ordinary agreed with that view.
It is convenient to begin by narrating the history of the scheme for compensation for victims of certain crimes. The scheme was first announced in Parliament on 24 June 1964 and came into operation on 1 August 1964. The scheme was headed "Compensation for victims of crimes of violence". Paragraph 5, which was headed "Scope of the scheme" provided inter alia:
"5.The board will entertain applications for ex gratia payment of compensation in those cases where:-
(a)the applicant, or, in the case of an application by a spouse or
dependent (see paragraph 11 below), the deceased, suffered personal injury directly attributable either to a criminal offence or to an arrest or attempted arrest of an offender...".
The board found some difficulty in defining the cases which fell within the scope of the scheme, as it initially stood. These difficulties are explained in the third report of the board for the year ended 31 March 1967. In particular, there was difficulty in deciding what sort of offence was covered by the scheme. In consequence, amendments were made to the scheme. The scheme which was in force at the time relevant to the present claim was the scheme of 1979. Paragraph 4 of that scheme provided inter alia:
"4.The board will entertain applications for ex gratia payments of compensation in any case where the applicant or, in the case of an application by a spouse or dependent (see paragraphs 15 and 16 below), the deceased sustained in Great Britain...personal injury directly attributable
(a)to a crime of violence (including arson or poisoning) or
(b)to the apprehension or attempted apprehension of an offender...".
It is relevant to part of the argument in this case to add that an attempt was made by the Criminal Justice Act 1988 to put the scheme on a statutory basis. Section 109 of that Act contained an attempt to define what was meant by "criminal injury". A number of specific offences were listed in subsection (3). Subsection (1)(a) provided that any personal injury caused by conduct constituting one of those offences should be a criminal injury for the purposes of the Act, and also that the term should include
"an offence which is not so specified but which requires proof of intent to cause death or personal injury or recklessness as to whether death or personal injury is caused".
That definition followed the lines of a suggested definition of a "crime of violence" put forward by Watkins L.J. R. v. C.I.C.B. ex parte Warner [1985] 2 Q.B. 1069. However, as will be seen later, Watkins L.J.'s suggestion was not followed in later authority. The relevant provisions of the Criminal Justice Act 1988 were never brought into force and when the scheme for compensation for criminal injuries was eventually put on a statutory footing by the Criminal Injuries Compensation Act 1995, no statutory definition was introduced. The result is that compensation continues to be payable for injuries directly caused by crimes of violence, but there is no definition of such crimes, either in legislation or in any scheme.
So far as case law is concerned, the question "What is a crime of violence?" arose in a series of cases concerned with the consequences of suicides. The first was R. v. C.I.C.B. ex parte Clowes [1977] 1 W.L.R. 1353, a case in which a person committed suicide by knocking the top off a gas pipe and a police sergeant suffered injuries in a subsequent explosion. In that case, a divisional court held by a majority that a crime of violence had been committed. The judges in the majority did not seek to provide an exhaustive definition of the term but Eveleigh J. said, at p.1359, that a personal injury directly attributable to a crime of violence meant, in his opinion, "personal injury directly attributable to that kind of deliberate criminal activity in which anyone would say that the probability of injury was obvious" and Wien J. said:
"I would rather say that a crime of violence means some crime which by definition as applied to the particular facts of a case involves the possibility of violence to another person".
The next case was R. v. C.I.C.B. ex parte Parsons 19 May 1981 and 19 November 1982, unreported, in which both Glidewell J. and the members of the Court of Appeal expressed some doubt about the approach which had previously won favour but, because of a concession made before the hearing before the board, did not feel able to take the question further. The issue then arose again in R. v. C.I.C.B. ex parte Warner. That was one of a group of cases in which engine drivers claimed compensation for the consequences to them of suicides committed by, for example, persons jumping in front of a train. Watkins L.J. questioned the approach taken in ex parte Clowes on the ground that it was too wide and would permit compensation to be recovered in cases of breach of regulatory requirements, such as those of the Factories Act. The court held that there had been no crime of violence and that, despite the previous practice of the board, the plain meaning of the words did not cover the sort of event that had occurred in that case. At the end of his judgment, however, Watkins L.J....
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