R v Criminal Injuries Compensation Board, ex parte P
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEILL,LORD JUSTICE EVANS,LORD JUSTICE PETER GIBSON |
| Judgment Date | 04 May 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0504-3 |
| Docket Number | QBCOF 93/0716/D |
| Court | Court of Appeal (Civil Division) |
| Date | 04 May 1994 |
[1994] EWCA Civ J0504-3
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(Mr. Justice McCullough)
Before: Lord Justice Neill Lord Justice Evans Lord Justice Peter Gibson
QBCOF 93/0716/D
QBCOF 93/0717/D
In the matter of two applications for Judicial Review
LORD LESTER QC and MS E WOODCRAFT (Instructed by Evans Butler Wade, London SE10 8JA, London Agents for Newcastle Community Law Centre) appeared on behalf of the Appellants
MR G SANKEY QC and MR M KENT [MR J BELL 4-5-94] (Instructed by the Treasury Solicitors) appeared on behalf of the Respondent
( )
Wednesday, 4 May 1994
I shall call the appellants in these appeals P and G respectively. P was born in 1962. G was born in 1964. Both women were victims of sexual abuse when they were children. P claims that she suffered injury as the victim of offences involving sexual abuse committed against her by her step-father between 1967 and 1976. G claims that she suffered injury as the victim of offences involving sexual abuse committed against her by her step-father between 1971 and 1982. P made a claim for compensation to the Criminal Injuries Compensation Board (the Board) on 2 July 1990. This claim was rejected on the ground inter alia that the incidents complained of occurred prior to 1 October 1979. G submitted a claim to the Board in April 1990. The Board made her an award of ?000 in respect of the abuse which had occurred after 1 October 1979 but rejected her claim for compensation in respect of any incidents occurring before that date. In both cases it was said that the claim in respect of incidents before 1 October 1979 had to be refused by reason of the provisions of paragraph 7 of the Criminal Injuries Compensation Scheme 1969 (the 1969 Scheme).
Both appellants seek judicial review of the determinations made by the Director of the Board rejecting their applications for compensation in respect of incidents which occurred before 1 October 1979. The appeals are brought following the dismissal by the Divisional Court of the Queen's Bench Division of their applications for judicial review by orders dated 28 April 1993.
The Criminal Injuries Compensation Scheme.
It is necessary to start by giving some account of the history of the Criminal Injuries Compensation Scheme (the Scheme) and the changes which have been made in the Scheme in the last 30 years.
The Scheme was introduced in 1964 to provide for the payment of compensation from public funds to the victims of violent crime and to those injured in attempting to prevent crime and apprehend criminals. The original scheme was based on proposals contained in the 1964 White Paper "Compensation for Victims of Crimes of Violence" (Cmnd 2323). The Scheme was amended in 1969 and, following a review by an Interdepartmental Working Party which reported in 1978, a revised Scheme came into operation on 1 October 1979. In 1990 there was a further revision of the Scheme. The 1990 Scheme applied, subject to certain exceptions set out in paragraph 28 of the 1990 Scheme, to all applications for compensation received by the board on or after 1 February 1990. It will be seen therefore that the 1990 Scheme applies to the applications made by each of the appellants.
Since the outset of the Scheme it has been administered by a body known as the Criminal Injuries Compensation Board. The Board is composed in the main of practising lawyers. The Board is provided with money through a Grant-in-Aid out of which payments for compensation are awarded in accordance with the principles set out in the Scheme. Hitherto compensation had been assessed on the basis of common law damages and has normally taken the form of a lump sum payment.
The scope of the 1964 Scheme was set out in paragraph 5 of that Scheme. As, however, the general scope of the Schemes has remained broadly constant it is unnecessary to refer further to this paragraph. It is sufficient to set out the scope of the 1990 Scheme.
The scope of the 1990 Scheme is set out in paragraph 4 in the following terms:
"The Board will entertain applications for ex gratia payments of compensation in any case where the applicant [or in specified cases, the deceased] sustained in Great Britain [or in other places specified] 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 or a suspected offender or to the prevention or attempted prevention of an offence or to the giving of help to any constable who is engaged in any such activity; or
(c) to an offence of trespass on a railway.
Applications for compensation will be entertained only if made within three years of the incident giving rise to the injury, except that the Board may in exceptional cases waive this requirement. A decision by the Chairman not to waive the time limit will be final. ?"
It is to be noted that under each version of the Scheme applications for compensation were expressed to be for "ex gratia" payments.
In the 1964 Scheme two classes of offences were excluded. It is sufficient to set out the terms of paragraphs 7 and 8 of the 1964 Scheme:
"7.Offences committed against a member of the offender's family living with him at the time will be excluded altogether.
8. Motoring offences will also be excluded from the scheme, except where the motor vehicle has been used as a weapon —i.e. in a deliberate attempt to run the victim down."
The exclusion of compensation for injuries attributable to traffic offences has continued to be a feature of all four versions of the Scheme. The present exclusion in respect of injuries attributable to traffic offences is contained in paragraph 11 of the 1990 Scheme. The exclusion in respect of offences committed against persons in the same household as the offender, however, has been very substantially modified with the passage of time. It is with this aspect of the Scheme that the present appeals are concerned.
Paragraph 7 of the 1969 Scheme, which came into operation on 21 May 1969 and took the place of paragraph 7 of the 1964 Scheme, contained the following exclusion:
"Where the victim who suffered injuries and the offender who inflicted them were living together at the time as members of the same family no compensation will be payable. For the purposes of this paragraph where a man and a woman were living together as man and wife they will be treated as if they were married to one another."
In 1973 an Interdepartmental Working Party was appointed to review the working of the Scheme since 1964. The Working Party made its report in 1978. One of the matters which was considered by the Working Party was whether paragraph 7 of the 1969 Scheme should be retained. In chapter 7 of their report the Working Party set out both the case for change and the difficulties to which cases of family violence gave rise. It was noted that in a family case there were problems of establishing the facts and of assessing the precise part that each party played in the circumstances leading up to the infliction of the injury. It was also noted that there was an additional problem caused by the possibility that the assailant might benefit from any money which was paid to the victim. The danger of such a benefit was particularly acute if awards were paid to children criminally injured within the family. Notwithstanding these possible difficulties, however, the Working Party recommended that the specific exclusion of applicants who were injured by members of the same family should not be retained. In paragraph 7.23 of the report the Working Party added this qualification:
"?We are sure that some move should be made to extend the Scheme to cover at least the very seriously injured victims of such violence (in particular those who have been maimed or suffered serious injury of a permanent nature) but in view of the lack of information about the size of the problem, or the extent of the financial staff resources which would be necessary to deal with it, we recommend that any extension of the Scheme in this direction should, in the first place, be for a limited period and experimental."
As I have already noted, there was a further revision of the Scheme in 1979. The 1979 Scheme, which came into operation on 1 October 1979, removed the complete exclusion of claims in respect of family violence where the injuries were incurred on or after 1 October 1979. I should refer to paragraphs 8 and 25 of the 1979 Scheme. Paragraph 8 provided:
"Where the victim and any person responsible for the injuries which are the subject of the application (whether that person actually inflicted them or not) were living in the same household at the time of the injuries as members of the same family, compensation will be paid only where -
(a) the person responsible has been prosecuted in connection with the offence, except where the Board consider that there are practical, technical or other good reasons why a prosecution has not been brought;
(b) the injury was one for which compensation —as assessed under paragraph 5 above —of not less than ?00 would be awarded;
(c) in the case of violence between adults in the family, the Board are satisfied that the person responsible and the applicant stopped living in the same household before the application was made and seem unlikely to live together again; and
(d) in the case of an application under this paragraph by or on behalf of a minor, i.e. a person under 18 years of age, the...
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