R v Criminal Injuries Compensation Board, ex parte A
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,LORD JUSTICE PETER GIBSON,SIR IAIN GLIDEWELL |
| Judgment Date | 16 May 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J0516-21 |
| Docket Number | QBCOF 96/0605/D |
| Court | Court of Appeal (Civil Division) |
| Date | 16 May 1997 |
[1997] EWCA Civ J0516-21
Lord Justice Simon Brown
Lord Justice Peter Gibson
Sir Iain Glidewell
QBCOF 96/0605/D
1IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
CROWN OFFICE AND DIVISIONAL COURT
(MR JUSTICE POPPLEWELL)
Royal Courts of Justice
Strand
London WC2
MR NICHOLAS BLAKE QC and MISS ELIZABETH WOODCRAFT (instructed by Messrs Miller Parris, Worthing BN14 8JB) appeared on behalf of the Appellant/Applicant.
MR KENT QC and MR J EVANS-TOVEY (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent/Respondent.
On 25th May 1991 the applicant was alone at home in Edmonton when she let in two men pretending to be CID officers. They assaulted her, stole her money and valuables, and before leaving vandalised the premises. She dialled 999 and, when DC Saunders responded to her call, told him of the assault and burglary and showed him the damage. He took her by ambulance to the North Middlesex Hospital where on examination she was found to be bruised. Three days later, on 28th May, she contacted the police again and told them that in the course of the burglary she had not only been assaulted but also raped and buggered.
On 20th November 1991 the applicant applied for compensation to the respondent Board (the Board). This was not her first such claim; she had been raped in 1986 and had received for it some £7,000 compensation.
On 31st August 1993, following an oral hearing before three Board members, the applicant's application was refused. Put shortly, the Board were not satisfied that the applicant had in fact been raped and buggered as she alleged.
On 17th October 1994 the applicant applied for leave to challenge that decision. On 14th February 1995 Carnwath J granted leave to move for Judicial Review. On 15th December 1995 Popplewell J dismissed the substantive application. He did so, as will appear, solely on the ground of delay; but for that he would have allowed the challenge. Before us now is the applicant's appeal against that decision, leave to appeal having been granted by this court on 1st May 1996.
The issues raised on the appeal are many, various and difficult. Before, however, they can even be identified, it is necessary first to set out rather more of the factual background. This I shall do as briefly as may be.
When, on 28th May 1991, the applicant made her complaint of rape and buggery, WPC Richmond became involved in the police investigation and over the course of the next few days took from the applicant a very detailed statement about the whole incident. Towards the end of this statement the applicant explained why she had not at first reported the sexual assaults.
This was, she said, because of the earlier rape which had caused her great distress and upset. Doris Wright, a Victim Support Scheme volunteer, had comforted her then. Immediately after this further incident the applicant contacted Ms Wright again, and it was on her advice that she decided to tell the police the whole story.
On 30th May 1991, once the applicant's statement had been completed, WPC Richmond took her to be medically examined by Dr Susan West, a GP used by the police in such cases. The applicant gave Dr West an account of the incident consistent with what she had just told the police, recounted a history of haemorrhoids during pregnancies, and said that she had passed blood with every motion since the attack five days earlier. Anal examination revealed two skin tags. Full examination, however, was prevented by the internal sphincter being in spasm. Dr West's eventual (undated) report, faithfully reflecting her contemporary notes, concluded thus:
"The anal findings are consistent with the allegation of buggery. The vaginal findings neither confirm nor exclude vaginal intercourse."
As will appear, it is central to the applicant's challenge that Dr West's conclusion was not made available to the Board.
On 3rd June 1991 the applicant went to her own GP complaining of depression. On 13th November 1991 she was seen at the North Middlesex Hospital for rectal bleeding which she said had continued ever since the incident. A report from that Hospital to the Board dated 19th January 1992 expressed the view that:
"It is likely that the bleeding is associated with an injury to the anal sphincter at the time of rectal rape."
Later reports from that Hospital show that the applicant was treated unsuccessfully for her haemorrhoids in March 1992 and that she underwent further operations in February 1993. A prognosis of 13th April 1993 reads:
"I think she is chronically constipated and this difficulty with haemorrhoids and rectal mucosal prolapse is likely to recur."
Meantime, on 20th November 1991, the applicant had with Ms Wright's assistance made her application to the Board. It was, indeed, by reference to the information she provided in the section of the claim form headed 'Details of Injuries and Medical Treatment' that the Board requested the various medical reports to which I have referred. Understandably the applicant had not mentioned her examination by Dr West: regarding the incident itself she simply stated "Please see police statement for details", by which she presumably meant her own full account given on 30th May 1991.
On 25th September 1992 the applicant was notified that her claim had been referred by the single Board member for oral hearing by a full panel of three members. A year later, on 26th July 1993 she was sent a summary of the case with a schedule of documents to be used and was told that the hearing was to take place on 31st August. The summary identified as the issues:
"1. Whether the applicant sustained injury directly attributable to a crime of violence [i.e. whether she really had been raped and buggered].
2. Whether the applicant informed the police of the circumstances of the injury without delay (paragraph 6(a) of the scheme)"
Paragraph 6(a) entitles the Board to withhold or reduce compensation if they consider that:
"(a) The applicant has not taken without delay all reasonable steps to inform the police … of the circumstances of the injury and to cooperate with the police … in bringing the offender to justice."
The summary also notified the applicant that the Board would be inviting a police officer as a witness and continued:
"The applicant should invite any other witnesses whose evidence she wishes the Board to hear. If there is a person to whom the applicant made an immediate complaint of rape or there is a witness to the applicant's immediate distress or who inspected the damage to property and belongings which the applicant states took place, these witnesses may assist the applicant's case. It is for the applicant to make out her case at the hearing."
She was told not to ask for "copies of police statements" which could only be produced at the hearing. "Police statements" I take to include statements made to, as well as by, the police and thus to include Dr West's medical report (assuming, although this is by no means clear, the police ever had a copy of that report). The schedule of documents consisted simply of the summary itself, the applicant's application form, and the various medical reports which the Board had gathered in.
At the hearing on 31st August 1993 the applicant was accompanied by Ms Wright. The applicant gave oral evidence as did the two police officers, DC Saunders and WPC Richmond. A full account both of the hearing and of the basis of decision appears from the (10 page) 'Written Reasons' eventually prepared by the three-member Board (Barry Chedlow QC, Donald Robertson QC and Diana Cotton QC) in May 1995 in response to the challenge; routinely, because of the pressure of work, the Board only provide full reasons once leave to move has been obtained.
I shall not attempt here any summary of the evidence; clearly there were a number of points to be made both for and against the claim on the central issue. What, however, it is essential to note for present purposes is the evidence given with regard to Dr West's examination of the applicant on 30th May 1991. As to that the Board's Reasons record that:
"[WPC Richmond] took the applicant for an examination for medical evidence. The Doctor could only see trauma to the back passage—the applicant had haemorrhoids."
(That, I should note, matches what the applicant herself had deposed as to WPC Richmond's affidavit in her evidence in support of the challenge: "WPC Richmond told the panel that she had taken me to her police doctor but said that the bleeding I was suffering anally was due to haemorrhoids.")
"[DC Saunders] confirmed that the police would start with support for the complainant and an open mind and that there would be a full investigation, as there was in this case, with photofits, house-to-house enquiries, medical enquiries, but from all this nothing at all was discovered in support of the applicant's account." (my emphasis)
The essence of the Board's reasoning for rejecting this claim is to be found in the final two paragraphs of their Reasons:
"36. We considered the Applicant's explanation for her initial denial of any sexual interference and delay in reporting the rape and buggery and weighed that against the other evidence available to us. The Board was mindful of the distress which would be felt by a woman suffering the experiences described by the Applicant and the reluctance in some cases to make immediate disclosure. We considered the medical evidence but concluded that it gave no assistance in determining...
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