Case Summary


Citation 1998  EWHC  Admin  406
Decision Date 21/07/2000
Scheme Pre-tariff Schemes
Paragraph Number 4,6,7,8,25,21,50,58,60,61,63,64,69,70,72,73,75
Keywords Criminal Injuries Compensation Scheme 1990 – Paragraphs 4, 6, 7, 8, 25 - Criminal Injuries Compensation Scheme 1995 – Paragraphs 12, 21, 50, 58, 60, 61, 63, 64, 69, 70, 72, 73, 75 - Procedure – Reasons – Evidence - Grounds for refusal of claims – Failure to give adequate reasons –– Disclosure of evidence – Disclosure of police evidence to Applicant
Headnote Summary of decision: The Criminal Injuries Compensation Authority, Board and Appeals Panel must give sufficient reasons for their refusal of applications for compensation and could not merely cite the ground of refusal provided by the relevant Criminal Injuries Compensation Scheme. They must also disclose at least the gist of the evidence relied on in reaching their decision. A practice of withholding such material until the day of any appeal hearing was bad administration and unfair. There was no evidence of, and no basis for, any agreement with the police to withhold statements Facts: Three applications for judicial review were heard together. Each arose out of the refusal of the Criminal Injuries Compensation Authority (‘the Authority’), the Criminal Injuries Compensation Board (‘the Board’) or the Criminal Injuries Compensation Appeals Panel (‘the Panel) to give reasons and/or disclose evidence. The applicant L sustained a serious head injury during an assault alleged to have taken place outside a public house in Nottingham in April 1998. As a result of those injuries, L had no recollection of the circumstances in which they were caused. His application was initially refused by the Authority under paragraph 13(d) on the grounds that “it is considered that your own conduct caused or contributed to the incident. In these circumstances it is inappropriate that you receive a full award or any award from public funds”. L sought a review and disclosure of the evidence on which the Authority had based its decision. This was refused on the basis that there was an agreement between the Authority and the police whereby the Authority would not release evidence which it had itself obtained from the police in connection with its enquiries into the relevant incident. After the launch of the judicial review proceedings, L was informed that “you, having drunk a considerable amount of alcohol, engaged in a voluntary fight with two men outside a night club in the course of which you received your injuries”. The Authority continued to resist disclosure of the police evidence upon judicial review and relied, inter alia, on evidence of Lord Carlisle of Bucklow Q.C., as Chairman of the Board, setting out a number of policy reasons why statements obtained by the police from witnesses of an incident giving rise to a claim were routinely not sent to claimants. The practice was said to be based upon an agreement and/or undertaking on the part of the Board with the police, subsequently adopted by the Authority, which the respondents justified on the basis of policy considerations which were said to militate against the disclosure of such statements. The applicant B alleged that she had been the subject of serious sexual and physical abuse between 1985 and 1993 at the hands of one of her brothers. B made an application for compensation under the 1990 scheme in 1996. It was refused on the basis that the Single Member was “not satisfied on all the evidence that she had suffered injury directly attributable to a crime of violence”. The matter proceeded to an oral hearing on appeal, however the Board refused to disclose the witness statements or a summary before the day of the appeal hearing. The applicant K’s application arose from an incident in a public house on 15 June 1998. K was rendered tetraplegic as a result. K claimed that he was challenged by another man in a threatening manner and that in response he head-butted the man and tried to get away. He failed and some three or four men set upon him. It was inherent from his version of events that K was acting in self-defence. There had been no prosecution due to lack of evidence of the identity of the assailants. K’s application was rejected on the grounds that he had voluntarily participated in the incident. He sought a review and requested disclosure of the evidence which led to the decision, but this was refused on the basis that documents from the police had been disclosed in confidence. Disclosure was then sought from the police, who disclosed only notes of K’s own interview. On review, the application was refused because “the applicant’s own conduct provoked the incident (and that he had) voluntarily participated in the incident”. A further application for disclosure was also refused. It was suggested that if the claim was pursued to the Panel then disclosure of the statements would have been made on the morning of the hearing. L, B and K sought judicial review on the basis that there had been a contravention of the principles of natural justice, irrationality and procedural unfairness. The common elements of complaint in the applications were: (1) a lack of reasons for refusing their claims as originally made, or upon review coupled with "reasons" which were no more than a statement of the scheme grounds for refusal; (2) the refusal to disclose the factual or evidential basis for the decisions; (3) the refusal to allow the applicants to see the evidence upon which the decisions were based which amounted to an unlawful fetter on the exercise of their discretion; (4) there would be increased and irrecoverable costs where an applicant was legally aided; (5) the absence of proper reasons provided encouragement for applicants to proceed to the stages of review and appeal when that might be wholly unnecessary. The respondents argued that it was sufficient for an applicant if he could understand the basis of the refusal or reduction of an award so that the case could be effectively prepared for any appeal and that, at the initial and review stages, the applicant was not entitled to receive any of the documents sought. Further, it was sufficient that witness statements were disclosed at the oral hearing of an appeal and that provided all the protection required. Held, allowing the application (1) It was clear that the Board, and now the Authority, considered that it was master in its own house and answerable hardly at all to the requirements of public law. The several cases in which attempts had been made to persuade the Board to modify its procedures all failed. It might have been hoped that the intervention of Parliament through the Criminal Injuries Compensation Act 1995 would have encouraged the Board and Authority to be more open in their procedures, but such hope was in vain. It might just have been acceptable for a body which was concerned to dispense private charity to operate in such a closed and defensive mode. It could not be justified in relation to a public body charged by statute with the duty of paying compensation to those who have sustained injury or death at the hands of criminals. (2) There was no evidence of the agreement with the police on which the Board and the Authority relied, and the legal or factual basis for any such understanding had long since ceased to exist. No policy consideration militated against disclosure in the present cases, in particular, given that there would be disclosure on the morning of the appeal hearing. (3) Upon initial determination by a claims officer: If applicants wished to challenge the decision of the claims officer they must, according to paragraph 59 of the 1996 Scheme, do so in writing “supported by reasons together with any relevant additional information”. The making of a review decision was not merely an administrative step because the decision was capable of affecting the rights of the applicant. It followed that the decision of the claims officer had to be justified, conforming to the requirement of “sufficiency”. In order that the reasons would satisfy this requirement, it would probably be necessary that the gist of the evidence considered by the claims officer would need to be identified. Simple recital of the Scheme grounds for refusal was unlikely to satisfy the requirement of sufficiency in most cases. (4) Upon a review decision by a more senior claims officer: reasons that were “proper, sufficient and intelligible” should be given and the evidential basis for the decision would need to be demonstrated. The gist of the evidence found to provide the justification for the decision would probably suffice. The decision itself must condescend to sufficient detail to enable a reasoned notice of appeal to be given. Provided sufficient reasons were given for the decision and the gist of the evidence was also made available, there was nothing inherently unjust about the fact that the Authority has not made the information available to the claimant in identical form to that which it itself had on review. (5) Upon appeal to the Appeals Panel: Any practice which led to the withholding of material until the day of a judicial or quasi-judicial hearing, was calculated to be to the significant disadvantage of the party from whom they have been withheld. The promise of an adjournment added nothing to the point. It was a requirement of fairness, or in accordance with the principle of natural justice, that the claimant appealing to the Panel should be provided with access to the evidential material on which the Authority would rely, through its presenting officers, at the hearing of the appeal in advance of the day of the hearing. Parts of the scheme and other legislation referred to in judgment: Criminal Injuries Compensation Scheme 1990, paragraphs 4, 6, 7, 8, 25 Criminal Injuries Compensation Act 1995, sections, 1, 4, 5 Criminal Injuries Compensation Scheme 1996, paragraphs 12, 21, 50, 58, 60, 61, 63, 64, 69, 70, 72, 73, 75 Guide to the Criminal Injuries Compensation Scheme 1996, parts 4, 5, 6, 8, 9 Police and Criminal Evidence Act 1984 European Convention of Human Rights, Article 6 Cases referred to in judgment: R v Criminal Injuries Compensation Board, ex p. Brady, 4 December 1986 R v Chief Constable of Cheshire, ex p. Berry, 30 July 1985 Nielson v Laugharne [1981] 1 QB 736 Hadmor Productions v Hamilton [1983] 1 AC 191 R v Secretary of State for the Home Department, ex p. Doody and others [1994] 1 AC 531 Kanda v Government of Malaya [1962] AC 322 R v Thames Magistrates Court, ex p. Polemis [1974] 1 WLR 1371 R v Secretary of State for the Home Department ex p Hickey and others (No.2) [1995] 1 WLR 734 R v Chance ex p. Coopers and Lybrand and others 7 ALR 821 R v Chief Constable of the West Midlands, ex p Wiley [1995] 1 AC 274 Mahon v Air New Zealand [1984] 1 AC 808 R v Criminal Injuries Board, ex p Cook [1996] 1 WLR 1037 In re Poyser and Mills Arbitration [1964] 2 QB 467 Taylor v Serious Fraud Office [1998] 3 WLR 1040 R v Chief Constable of the North Wales Police and others [1998] QB 396 Woolgar v Chief Constable of Sussex Police [2000] 1 WLR 25 R v Secretary of State for the Home Department ,ex p. McAvoy [1998] 1 WLR 790 R v Secretary of State for the Home Department, ex p. Allen (transcript QBCOF 1999/1267/C) Representation: David Wolfe, instructed by Barratts (Nottingham), for the L. Richard Clayton, instructed by Howells (Sheffield), for B. Helen Mountfield, instructed by Irwin Mitchell, for K. Jonathan Crow and Steven Kovats, instructed by the Treasury Solicitor, for the first respondent.
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