REGINA (AUGUST) VERSUS CRIMINAL INJURIES COMPENSATION APPEALS PANEL & REGINA (BROWN) VERSUS CRIMINAL INJURIES COMPENSATION APPEALS PANEL  QB 774
At the age of 13 the applicant in the first case, Mr August committed consensual buggery as the active partner with a 53 years old man who was subsequently convicted of sex offences. Mr August had met a man called Crow in some public lavatories at the age of 13 or 14. Crow was aged 53. Mr August had gone to the toilets expecting to be paid for having sex with men. Crow was eventually convicted of three offences, the first of which was an offence of buggery, which took the form of August penetrating Crow. The second was gross indecency, which took the form of Crow and August mutually committing fellatio on each other. The third was an offence of taking indecent photographs of August. Mr August made application to the CICB, but the panel concluded having heard evidence from both Crow and August, that the crimes of which Crow had been convicted had not been crimes of violence
The second applicant had been a pupil at an approved school from the age of 12 and later claimed compensation from the board on the basis that he had been forcibly buggered and subject to other sexual assaults. There were no prosecutions in respect of these assaults. The CICB took the view that such activity had been consensual and refused compensation.
Both applicants applied for judicial review of the CICB’s decision.
The Court of Appeal refused August’s appeal against dismissal of his judicial review application and allowed the CICB’s appeal in the second case. Buxton LJ summed up the facts of case.
The offences in question were set out in Section 12 and 13 of the Sexual Offences Act 1956. These offences were not created to protect children but to prevent “unnatural” behaviour.
The leading authority in this area was the case of R v. Criminal Injuries Compensation Board, Ex parte Webb  QB 74. Buxton LJ drew five propositions from this case:-
- The concept of “crime of violence” is not a term of art
- The issue for the panel as to whether a crime of violence has taken place is a jury question. It depends on a reasonable and literate man’s understanding.
- That question is technical or complicated
- The correct approach is not to classify particular offences as crimes of violence. The task of the panel is to decide whether the events that actually occurred were (i) a crime (ii) a crime of violence
- In performing that task the panel has to look at the nature, and not at the results of the unlawful conduct.
Buxton LJ quoted from the unreported case of R v. Criminal Injuries Compensation Board, ex parte Piercey 14th April 1997 in which McCullough J stated:-
“Consent given by a girl under the age of 16 to unlawful sexual intercourse or indecent touching is not recognised by the law. It does not, however, follow that to commit either offence against a girl of that age involved the use of violence. Each case must be decided on its own facts. Not every application of force is violent……The medical evidence did not negative her consent, and the Board clearly believed that she not established that she did not consent. Not every indecent touching of a girl under the age of 16 involves violence.”
Evidence had been given by Mr Crow about his relationship with Mr August, which suggested willingness on his part. However there was also expert evidence from Gerrilyn Smith, a psychologist about Mr August’s damaged background and the way in which any consent he might have given to these acts was vitiated by that background.
Buxton LJ said that the only live issue for the CICB panel was that of consent. The panel had taken the view that while such considerations were worthy of sympathy for Mr August’s willing participation in such acts, they did not mean that he did not consent in fact. The appeal would be dismissed.
In the case of Mr Brown, there had been an issue as to this applicant’s credibility. The Court of Appeal repeated the correct test that was to be applied, when the CICB panel made its decision. The correct approach to determining whether or not a “crime of violence” was committed for the purposes of the Scheme is, first, to identify the crime that was committed and then to consider whether in the circumstances of the particular case the crime can properly and naturally be described as a crime of violence. Pill LJ said at paragraph 104 of his judgment:-
“The basis of liability in tort is of course something different from the right to recover under the scheme but I would expect the reasonable literate man to take into account the applicant’s consent to events as an element in a consideration of whether those events amount to a crime of violence.”
In the court’s judgment, the panel in Brown’s case did not fall into error. On the facts they were entitled to approach the Claimant’s consent in the manner they did and to reach the conclusion they did.
Comments were made by the Court of Appeal as to the necessity for detailed written reasons to be given by the Panel when making decisions.
Note:- Mr August made an application to the European Court of Human Rights and his application was heard on the 21st January 2003. He argued:-
- Breach of Article 8 – right to private life
- Breach of Article 6 – right to a fair trial
- Breach of Article 14 – he had suffered discrimination as the CICA Scheme did not recognize that children were different from adults
- Breach of Article 13 – he was prevented from exercising his civil right to compensation.
His application was dismissed. The European Court held that his abuser had been convicted, so there was no breach of Article 6 - furthermore Article 8 does not include the right to receive compensation for criminal injuries. In any event, the court could see no unfairness in the CICA or civil proceedings. As for Article 14, there was no justification for treating children differently to adults when assessing compensation for criminal injuries. The claim under Article 13 failed because it had no application unless the Claimant could argue that his other human rights had been violated.
See also the case of R (on the application of JE) v. CICAP  EWCA Civ 237.