The King on the application of RN v First tier Tribunal (Social Entitlement Chamber) and Another
| Jurisdiction | England & Wales |
| Judge | Lady Justice Nicola Davies,Lord Justice Phillips,Lady Justice Carr |
| Judgment Date | 28 July 2023 |
| Neutral Citation | [2023] EWCA Civ 882 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-001545 |
and
[2023] EWCA Civ 882
Lady Justice Nicola Davies
Lord Justice Phillips
and
Lady Justice Carr
Case No: CA-2022-001545
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)
UPPER TRIBUNAL JUDGE GRAY
UA-2019-001594 & UA-2020-000600-CIC
Royal Courts of Justice
Strand, London, WC2A 2LL
Chris Buttler KC, James Robottom and Joshua Yetman (instructed by Irwin Mitchell) for the Appellant
Ben Collins KC (instructed by Criminal Injuries Compensation Authority) for the Interested Party
Maya Sikand KC, Shu Shin Luh and Camila Zapata Besso (instructed by Freshfields Bruckhaus Deringer LLP) for the Intervener (ATLEU) ( written submissions only)
Hearing dates: 13 and 14 June 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on Friday 28 July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The issue in this appeal is whether the appellant, the victim of sexual offences committed in 2014 when he was aged 12, is the victim of a “crime of violence” as defined by paragraph 2(1) of Annex B to the 2012 Criminal Injuries Compensation Scheme (“the Scheme”) and therefore entitled to compensation.
The appeal is in respect of a decision of the Upper Tribunal (“UT”) dismissing the appellant's claim for judicial review of a decision of the First Tier Tribunal (Social Entitlement Chamber) (“FTT”) dated 5 February 2020 with written reasons given on 23 March 2020. The FTT found that the appellant was not the victim of a crime of violence for the purposes of the Scheme. Permission to appeal the decision of the UT was granted by UT Judge Jacobs upon the basis that the issue is “sufficiently important to merit the attention of the Court of Appeal”.
Factual and procedural background
The appellant made a witness statement dated 30 January 2020 in connection with his appeal to the FTT arising from the dismissal of his claim for compensation by the Criminal Injuries Compensation Authority (“CICA”). The statement details the criminal offending which led to the claim. When the appellant was 10 or 11 he began attending a club in order to play Yu-Gi-Oh!. The appellant met his abuser at the club, he described him as a “large imposing person in his early 20s”. As a judge at the club, the abuser had access to records such that he knew where the appellant lived. The appellant added the abuser as a friend on Facebook and messaging took place. The appellant became aware that the abuser knew where he lived and knew of his school. The statement continued:
“10. I should say at this point that Jake [the abuser] was not posing as himself on Facebook but as a girl called Daphne who he explained was his 14 year old cousin. This was a sophisticated way of ‘grooming’ me. He said she was 14. Using Daphne, he was getting me to agree with things that I would not normally do.
11. As a way of meeting up, Jake suggested that Daphne could be hiding in a bush near my house. I suddenly realised that Daphne was actually Jake. I was extremely scared at this point. I did not want to say anything to my parents as I felt threatened. I was only 12 at the time and was being directly contacted by an adult male who had been ‘grooming’ me for a considerable period of time. I tried to get rid of him by telling him I did not want to talk anymore and that I was not gay as I thought he was approaching me in a sexual way for a relationship.
12. There were occasions when he told me not to tell anyone about the messaging. There was an underlying threat about what would happen if he did. Nothing was ever directly mentioned but as a 12 year old boy being told not to say anything about messaging and knowing that he knew where I lived, I did feel threatened. I thought that if I did tell someone he would get to me in some way, harm me or my family. There had been suggestions that we meet either outside the club or afterwards. Once he had suggested taking me out, so I was aware that he could get to me if he wanted to.
13. There was one occasion when he said that if I was wearing grey socks it meant that I wanted oral sex. He put that across as a joke and, as a 12 year old boy not wanting to admit what was happening, I accepted it as a joke. People were there at the time. I do not think I was thinking about what implications that kind of approach actually had on me but it was all contributing to the underlying threat.
14. The build up of ‘grooming’ was prolonged and sophisticated with gradual introductions of suggestions to meet, knowing where I lived, mentions of sexual acts which I might be exposed to and all this built up to a threat to me that if I told someone some harm would come to me. There was also a point where he was suggesting that I could win games with sexual favours. As I was desperate to win games and I was so young and vulnerable, I probably did not realise this was a direct threat.
15. I realise now that I was afraid when I was getting the messages. As a 12 year old, I had been ‘groomed’ to the extent that I knew there was a threat but I was not sure what it was but I knew that something bad was going to happen if I said something.
16. My mum then found the messages.
17. I was terrified and I did not go back to the tournament. On occasion, Jake broke his bail conditions and had tried to contact me. This terrified me and brought back some bad memories. He got arrested after that.
18. These events have had a massive impact on my childhood.”
The abuser was convicted of the following criminal offences in respect of the appellant:
(i) Attempting to cause or incite a child to engage in sexual activity (section 10 of the Sexual Offences Act 2003 (“the 2003 Act”));
(ii) Attempting to meet a boy under 16 following sexual grooming (section 15 of the 2003 Act).
He was sentenced to 2 years and 4 months imprisonment, a 10-year Sexual Harm Prevention Order was imposed.
Following the criminal convictions, the appellant sought compensation under the Scheme, paragraph 4 of which states:
“A person may be eligible for an award under the Scheme if they sustain a criminal injury which is directly attributable to their being a direct victim of a crime of violence committed in a relevant place. The meaning of ‘crime of violence’ is explained in Annex B.”
Annex B to the Scheme states:
“1. This Annex applies in deciding whether a crime of violence has been committed for the purposes of this Scheme. Where a claims officer is satisfied that a crime has been committed it is still necessary for that crime to constitute a crime of violence in accordance with this Annex.
2(1) ….a ‘crime of violence’ is a crime which involves:
(a) a physical attack;
(b) any other act or omission of a violent nature which causes physical injury to a person;
(c) a threat against a person, causing fear of immediate violence in circumstances which would cause a person of reasonable firmness to be put in such fear;
(d) a sexual assault to which a person did not in fact consent; or
(e) arson or fire-raising.”
In his application to the CICA the appellant stated that he had received over 6,000 messages from the assailant who was pretending to be a 12-year-old girl. It was stated that the assailant groomed and attempted to incite the appellant into illicit sexual acts. The offending was reported to the police on 14 July 2014. The injuries sustained were stated to be “mental injuries, panic attacks”. At the time of the application the current symptoms were identified as anxiety, depression, stress, withdrawn, panic attacks. The appellant was stated to be receiving treatment in the form of therapy and had been enrolled on a number of mental health programmes through his school. It was stated that he also “suffers from panic attacks worsening his asthma”.
On 28 November 2017 the CICA refused the appellant's claim for compensation acknowledging that:
“In this case, although [the appellant] was undoubtedly the victim of a crime, the information provided by the Police does not indicate that the offender physically injured him or that he was in fear of immediate harm.
In these circumstances, the incidents were not violent crimes in terms of this Scheme. I am therefore regrettably unable to make an award of compensation, and I am sorry to send what I know will be disappointing news. …”
On 8 January 2018 the appellant requested a review of that decision contending that his case fell within limbs paragraph 2(1)(b) and (c) of Annex B to the Scheme. By a review decision dated 3 July 2019 the CICA maintained its refusal of compensation. It acknowledged that the appellant was “a victim of crime within the terms of the law” but stated that the information provided by the police showed that:
“…the sexual content [the appellant] was subject to was via social media. Unfortunately, this is not considered a crime of violence within the terms of the Scheme.
I note the review application mentions [the appellant] was subject to grooming and threats made to him which put him in immediate fear. For the purposes of the Scheme, the threat must be made directly without any intervening physical space or lapse of time. The police have reported that they have no record of any direct threats made by the offender towards or at [the appellant].”
It was stated that the evidence “provided by the police does not show that [the appellant] was a victim of a crime of violence within the terms of the Scheme”. Accordingly, the CICA was unable to make an award of compensation.
The appellant appealed to the FTT, his grounds being that he was a victim of a crime of violence, the crime falling within either...
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