Case Summary


Citation 1985  QBD  Unreported 
Decision Date 30/07/1985
Scheme Pre-tariff Schemes
Paragraph Number 6(c), 22, 23
Keywords Criminal Injuries Compensation Scheme 1979 – Paragraphs 6(c), 22 & 23 – Procedure - Police evidence - Witness statements produced at hearing – No advance disclosure – Agreement between Board and Police
Headnote Summary of decision The refusal of the police to provide witness statements and previous convictions of witnesses in advance of his hearing oral before the Board was not a breach of natural justice. An applicant could apply for an adjournment, if necessary, to consider the contents of witness statements served on him on the day of the hearing. Facts The applicant (‘B’) applied to the Criminal Injuries Compensation Board (‘the Board’) for compensation following an incident in which he was injured by a number of youths in his garden after he refused to return their ball. Statements describing the incident were made to police by B, his wife, a neighbour and four of the youths. B had initially intended to pursue a civil claim as a consequence of the incident and so solicitors acting on his behalf asked the police for copies of the statements made by the various witnesses. In response they were provided with copies of B’s statement and that of his wife. The Chief Constable refused to release copies of the statements of civilian witnesses unless they had consented in writing to his doing so and refused outright to disclose the statements made by the police officers, although he would permit facilities for them to be interviewed. In January 1983 B applied for criminal injuries compensation rather than pursuing his civil claim. The claim was considered by a single member of the Board who rejected it, pursuant to paragraph 6(c) of the 1979 Scheme, on the basis that she was not satisfied that B did not provoke the attack upon himself. B then applied for an oral hearing and his solicitors wrote again to the Chief Constable asking for the witness statements and details of any previous convictions of the witnesses to be called by the Board. The police having refused to disclose the requested documents in advance of the hearing B applied for judicial review of that decision and sought an order of mandamus compelling disclosure in advance of the hearing. In an affidavit prepared by Mr Michael Ogden, Chairman of the Board, it was explained that the usual practice was to allow parties further time, and an adjournment, if necessary to consider witness statements provided to them on the morning of the hearing. Further it was said on behalf of the Board that there was an express undertaking by the Board to the police that the documents would not be disclosed prior to the actual hearing. Held, refusing the application (1) Nolan J held that B was entitled to call into question, by way of judicial review, the decisions of the respondent Chief Constable as he was within the class of persons defined by Lord Diplock in O’Reilly v. Mackman 1983 2 Appeal Cases 237. (2) There was no record of any express undertaking by the Board to the effect contended for. However, there was clearly an obligation on the Board to protect the statements from improper use and it was to discharge this obligation that the Board retained custody and control of the statements and disclosed them to applicants on the morning of the hearing and recovered them from the Applicants before they left. (3) It had to be considered whether the manner in which the Chief Constable had exercised his discretion in relation to the witness statements and lists of previous convictions in his possession, was perverse; namely by limiting disclosure of the witness statements to the Board and denying them to B, knowing that the Board will only show them to B on the morning of the hearing. (4) The question to be asked is whether the disadvantage expected to be suffered by B at the hearing before the Board amounts to a denial of natural justice and a breach of his common law rights which in the mind of any Chief Constable should outweigh the public interest in withholding witness statements from members of the public such as B. (5) Nolan J concluded that the only possible answer to that question was no, the disadvantage suffered by an applicant because of the Board’s procedure did not prejudice those with valid claims. The Chief Constable was fully entitled to accept this and rely on it. (6) It was impossible for B to establish at this stage that he would, in fact, suffer a denial of natural justice when his hearing takes place. If he were to do so then he would have a remedy, but it would be against the Board and not against the police. Parts of scheme and other legislation referred to in judgment 1979 Criminal Injuries Compensation Scheme, paragraphs 6(c), 22, 23 Cases referred to in judgment O’Reilly v. Mackman 1983 2 Appeal Cases 237, p. 279; Mahon v. Air New Zealand Limited (1984) 1 WLR 1358; Neilson v. Laugharne 1981 1 QB 736; Representation Mr J Bowyer (instructed by Messrs Lovell Son & Pitfield, agents for Messrs Walker Smith and Way) for B Mr P Hamlin (instructed for Messrs Sharpe Pritchard and Company, agents for Mr J.T Kellett, Chester) for the 1st Respondent Mr P Vallance (instructed by the Treasury Solicitor) for the 2nd Respondent
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