Case Summary


Citation 2003  ScotCS  CSOH  305
Decision Date 09/12/2003
Scheme 2001 Scheme
Paragraph Number 13d 8a
Keywords Criminal Injuries Compensation Scheme 1990 – Paragraphs 13(d) and 8 – Eligibility – Conduct – Provocation - Crime of Violence – Excessive force – Weight of decision to not prosecute – Evidence
Headnote Summary of decision B, whilst drunk, had impeded the progress of a taxi and the occupants had alighted to remonstrate with him. B was pushed to the ground by Mr L, believing that B was grabbing hold of Mrs L. B suffered serious injuries due to his head striking the ground. The Court held that the decision of the Criminal Injury Compensation Appeals Panel to refuse compensation on the basis that there was no crime of violence was both lawful and reasonable. There was a sufficient basis in the evidence for the conclusions reached on the facts. Facts The Applicant; ‘B’ sustained injuries in an incident in May 1999. He was drunk and anxious to obtain a taxi. A taxi containing a Mr and Mrs Lafferty (‘Mr and Mrs L’) arrived in the street in which B was standing. B stood in the road and then sat on the bonnet. The driver (M) and Mrs L got out to remonstrate with B. B was then pushed by Mr L, who thought that B had grabbed hold of his wife. B fell to the ground striking his head, sustaining a serious injury. Although Mr L was initially charged with assault and attempted murder, the matter was reported to the procurator fiscal and no criminal proceedings followed. B applied for compensation under the Criminal Injuries Compensation Scheme 1996 (‘the 1996 Scheme’), which was refused by the Criminal Injuries Compensation Authority (‘the Authority’) on first application and upon a review by the Authority under paragraph 13(d); on the grounds that his own conduct had provoked the attack. The Applicant appealed the review decision to the Criminal Injuries Compensation Appeal Panel (‘the Panel’), which refused B’s appeal, under paragraph 8 of the Scheme, on the basis that B had not sustained criminal injury as a crime of violence had not occurred. The Panel concluded that Mr L’s actions were understandable and not criminal. They had heard live evidence from the taxi driver (‘M’) and a police officer and read statements from them and from Mr and Mrs L. B could not give evidence due to neurological injuries. B applied for judicial review, and argued that the Panel’s conclusion was unreasonable and an error of law. First, that the findings of fact were unreasonable and not supported by the evidence. Second, the Panel’s conclusions concerning the reasoning of the procurator fiscal in not prosecuting Mr L was not based on any evidence; it being contended that the real reason for the lack of criminal proceedings related to delay in the legal system rather than the evidence in the case. Third, the Panel had failed to answer the question that they asked themselves: whether a crime of violence had been committed. They did not consider whether excessive force had been used. Held, dismissing the application (1) There was no unreasonableness or unlawfulness apparent from the Panel’s decision. The Panel reached a conclusion on the facts which was open to them on the evidence. The Panel analysed this evidence and, in large measure, felt able to reconcile the versions given by the protagonists. For the purposes of the application before them, the Panel did not need to determine matters with any greater precision than they did. (2) It was correct that there was no material before the Panel that explained expressly why no action was taken by the procurator fiscal. The fact that no criminal proceedings ensued may have been a factor that the Panel could have weighed in the balance in deciding whether a crime of violence had been committed. It was clear, however, that the Panel reached their own decision quite independently of any taken by the procurator fiscal. Where authorities take no action, the reasonable assumption is that they do so advisedly and have not acted in a careless or negligent fashion. (3) In concluding that Mr L’s actions were understandable and not criminal, it was apparent that the Panel held as a matter of fact, that the force was not excessive. Given that all that was involved was a push, even if it was a forceful one, such a conclusion could not be regarded as unreasonable and was one readily open to the Panel weighing the evidence before them. Of the Panel’s decision in this regard Lord Carloway said : “…care has to be taken not to weigh such a matter on too fine a scale.” Parts of the scheme and other legislation referred to in judgment 1990 Scheme, paragraphs 8, 13 Cases referred to in the judgment: Gray v Criminal Injuries Compensation Board 1999 SLT 425 Representation Sutherland, instructed by Anderson Strathern WS for Naftalin Duncan & Co, Glasgow, for B. Lindsay, instructed by H.F. Macdiarmid, Solicitor to the Advocate General for Scotland, for the Panel.
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