CICA V FIRST TIER TRIBUNAL AND JC [2011] UKUT 77
FACTS:-
The Applicant had made an application to the CICA under the 2001 Scheme in relation to an incident when her ex-husband forcibly penetrated her mouth with his penis. The CICA made an award of £3,300 (Level 7) for that part of her injury, because it fell under the category “indecent assault – severe – non penile penetrative and/or oral-genital act or acts” in the 2001 Scheme rather than rape. The Applicant appealed on the grounds that the Sexual Offences Act 2003 had extended the definition of rape to include oral penetration. However the tariff of awards in the CICA Scheme was not updated to reflect that change in the law until 2008. The First Tier Tribunal allowed her appeal, but the CICA applied for judicial review of that decision.
JUDGEMENT:-
Judge Turnbull quashed the decision of the Tribunal and substituted the decision of the CICA.
He considered the submission of the Applicant’s counsel, and the extensive consultation and review process by which the Sexual Offences Act 2003 was brought into being. It was felt that oral penetration was just as abhorrent and demeaning as vaginal and anal rape. The 2001 Scheme should be read in light of Section 11(3) of the Criminal Injuries Compensation Act 1995, which used the term “rape.” The meaning of the relevant categories under the 2001 Scheme were not entirely clear, so there was room for argument as to whether penile penetration fell within the words “non-penile penetrative and/or oral-genital act of acts.” There was also the issue of statutory interpretation. Judge Turnbull referred to Bennion on Statutory Interpretation, 5th Edition 2008 at page 262 and R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687 and R (Hampstead Heath Winter Swimming Club) v Corporation of London [2005] 1 WLR 2930.
The other argument was that women formed the majority of rape victims, and the exclusion of oral penetration from the definition of rape in the 2001 Scheme constituted discrimination under the Sex Discrimination Act 1975.
Judge Turnbull that the meaning of the 2001 Scheme was clear and that it did not include oral rape within the tariff for vaginal and anal intercourse. It would have been foreseeable in 2001 to provide that the tariff should include this kind of crime. However it would not have been sensible to try and draft the tariff in the 2001 in anticipation of any change in the law, and there was no reason why it should have been considered necessary or desirable to attempt to legislate in advance in this way. The fact that Section 11(3) of the 1995 Act referred to rape, did not indicate that the higher category was intended to change its meaning. Section 11 was a provision relating to the mechanics for alteration of the compensation scheme. Once one concluded that the 2001 Scheme did not display an intention that the meaning of the higher category should change with any amendment to the statutory definition of rape, that was in Judge Turnbull’s judgement, the end of the matter. The Sex Discrimination Act 1975 did not assist the Applicant as the wording of Section 1(1) of that Act could not possibly catch the way in which the tariff was drafted. In any event, the 2001 Scheme was subject an exception in the 1975 Act, which included action necessary for the purposes of complying with delegated legislation.
FACTS:-
The Applicant had made an application to the CICA under the 2001 Scheme in relation to an incident when her ex-husband forcibly penetrated her mouth with his penis. The CICA made an award of £3,300 (Level 7) for that part of her injury, because it fell under the category “indecent assault – severe – non penile penetrative and/or oral-genital act or acts” in the 2001 Scheme rather than rape. The Applicant appealed on the grounds that the Sexual Offences Act 2003 had extended the definition of rape to include oral penetration. However the tariff of awards in the CICA Scheme was not updated to reflect that change in the law until 2008. The First Tier Tribunal allowed her appeal, but the CICA applied for judicial review of that decision.
JUDGEMENT:-
Judge Turnbull quashed the decision of the Tribunal and substituted the decision of the CICA.
He considered the submission of the Applicant’s counsel, and the extensive consultation and review process by which the Sexual Offences Act 2003 was brought into being. It was felt that oral penetration was just as abhorrent and demeaning as vaginal and anal rape. The 2001 Scheme should be read in light of Section 11(3) of the Criminal Injuries Compensation Act 1995, which used the term “rape.” The meaning of the relevant categories under the 2001 Scheme were not entirely clear, so there was room for argument as to whether penile penetration fell within the words “non-penile penetrative and/or oral-genital act of acts.” There was also the issue of statutory interpretation. Judge Turnbull referred to Bennion on Statutory Interpretation, 5th Edition 2008 at page 262 and R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687 and R (Hampstead Heath Winter Swimming Club) v Corporation of London [2005] 1 WLR 2930.
The other argument was that women formed the majority of rape victims, and the exclusion of oral penetration from the definition of rape in the 2001 Scheme constituted discrimination under the Sex Discrimination Act 1975.
Judge Turnbull that the meaning of the 2001 Scheme was clear and that it did not include oral rape within the tariff for vaginal and anal intercourse. It would have been foreseeable in 2001 to provide that the tariff should include this kind of crime. However it would not have been sensible to try and draft the tariff in the 2001 in anticipation of any change in the law, and there was no reason why it should have been considered necessary or desirable to attempt to legislate in advance in this way. The fact that Section 11(3) of the 1995 Act referred to rape, did not indicate that the higher category was intended to change its meaning. Section 11 was a provision relating to the mechanics for alteration of the compensation scheme. Once one concluded that the 2001 Scheme did not display an intention that the meaning of the higher category should change with any amendment to the statutory definition of rape, that was in Judge Turnbull’s judgement, the end of the matter. The Sex Discrimination Act 1975 did not assist the Applicant as the wording of Section 1(1) of that Act could not possibly catch the way in which the tariff was drafted. In any event, the 2001 Scheme was subject an exception in the 1975 Act, which included action necessary for the purposes of complying with delegated legislation.