AW (R) v FIRST-TIER TRIBUNAL [2013] UKUT 350
Child abuse website – CICA – Reporting to police and Recording a Tribunal Decision
FACTS:-
In September 2005, the Claimant was living with his partner of some 20 years and their two children, a son aged 19 and a daughter aged 16. The son was troubled and prone to violent outbursts. He had had learning difficulties and had been the subject of a statement of special educational needs from the age of about 8. The son assaulted his father and was arrested. He alleged that he had pushed, or at least touched, his father while trying to get past him and that his father falling had been an accident. He was nonetheless charged under section 18 of the Offences against the Person Act 1861 with causing grievous bodily harm with intent and eventually pleaded guilty, on the basis that he had been reckless. The Claimant now lived alone apart from his family, and claimed that he was left deaf in one ear and had only partial hearing in the other. He had also lost the senses of taste and smell. incident does appear to have contributed to the break-up of the family.
The Criminal Injuries Compensation Authority initially rejected the claim because it was late, but then relented on review. It then decided that any award would be withheld on the ground that the Claimant had “failed to co-operate with the police or other authority in attempting to bring the assailant to justice” (see paragraph 13(b) of the Criminal Injuries Compensation Scheme 2008). It also took into account the Claimant’s “character as shown by his … criminal convictions” (see paragraph 13(e) of the Scheme), although he only had one conviction for driving with excess alcohol that would, under the Authority’s standard scheme, have resulted by itself in only a 10% reduction in an award.
The Claimant had made a witness statement saying that he did not remember what had happened. However, an investigation record recorded that the Claimant’s partner said the Claimant blamed his daughter for his son being in custody because she had made a statement and that he wanted to know who called the police. Then there were three telephone calls from the Claimant himself saying that his memory was returning and that he had fallen and not been pushed. He then confirmed that in a subsequent witness statement.
The First-tier Tribunal dismissed the appeal, broadly accepting the Authority’s case but adding that even if it would otherwise have been minded to make an award it would not have done so because it could not be satisfied “that there is no likelihood that an assailant would benefit if an award were made” (see paragraph 16(a) of the Scheme) in view of the Claimant’s continued contact with his son.
The Claimant now applied for permission to apply for judicial review.
JUDGEMENT:-
Rowland J said that the important question in this case was whether the Claimant put pressure on his daughter not to attend court, because clearly doing so would amount to a failure to co-operate with the police or the Crown Prosecution Service. It was not disputed that the Claimant did not want his son prosecuted and made that known to his partner and daughter but that was not necessarily the same as seeking to persuade his daughter not to give evidence, which is what the First-tier Tribunal found him to have done.
The Claimant had also argued that his mental health was relevant to the issues being considered in relation to eligibility because they partly explained those of his actions that were being said to amount to a failure to co-operate with the police or prosecuting authority. Rowland J said that the difficulty the Claimant faced with this argument was that, although his mental health might be some mitigation for what he did, it was not such that he could disclaim responsibility for his actions and, most importantly, for his making of a contradictory witness statement, which he admitted was deliberately false. He had still deliberately set out to sabotage the prosecution of his son. That was an exceedingly serious matter.
Rowland J was satisfied that, even if it were decided that the First-tier Tribunal had erred in law in some aspects of its decision, judicial review would be refused as a matter of discretion.
The other issues raised in the matter, simply did not arise if an award was withheld on other grounds. He would therefore refuse permission to apply for judicial review.
There was also an issue as to whether a records or notes of the Tribunal hearing should be provided. Rowland J said that at an early stage in these proceedings, he directed the First-tier Tribunal to provide a transcript of the proceedings before it or else the notes made by the presiding judge and other members of the panel. It transpired that the proceedings had not been recorded. Rowland J said that proceedings before the Tribunal should be recorded in some way. A failure to comply with a duty to make or keep a record of proceedings would not by itself lead to a decision being quashed unless it resulted in a real possibility of unfairness or injustice.
Child abuse website – CICA – Reporting to police and Recording a Tribunal Decision
FACTS:-
In September 2005, the Claimant was living with his partner of some 20 years and their two children, a son aged 19 and a daughter aged 16. The son was troubled and prone to violent outbursts. He had had learning difficulties and had been the subject of a statement of special educational needs from the age of about 8. The son assaulted his father and was arrested. He alleged that he had pushed, or at least touched, his father while trying to get past him and that his father falling had been an accident. He was nonetheless charged under section 18 of the Offences against the Person Act 1861 with causing grievous bodily harm with intent and eventually pleaded guilty, on the basis that he had been reckless. The Claimant now lived alone apart from his family, and claimed that he was left deaf in one ear and had only partial hearing in the other. He had also lost the senses of taste and smell. incident does appear to have contributed to the break-up of the family.
The Criminal Injuries Compensation Authority initially rejected the claim because it was late, but then relented on review. It then decided that any award would be withheld on the ground that the Claimant had “failed to co-operate with the police or other authority in attempting to bring the assailant to justice” (see paragraph 13(b) of the Criminal Injuries Compensation Scheme 2008). It also took into account the Claimant’s “character as shown by his … criminal convictions” (see paragraph 13(e) of the Scheme), although he only had one conviction for driving with excess alcohol that would, under the Authority’s standard scheme, have resulted by itself in only a 10% reduction in an award.
The Claimant had made a witness statement saying that he did not remember what had happened. However, an investigation record recorded that the Claimant’s partner said the Claimant blamed his daughter for his son being in custody because she had made a statement and that he wanted to know who called the police. Then there were three telephone calls from the Claimant himself saying that his memory was returning and that he had fallen and not been pushed. He then confirmed that in a subsequent witness statement.
The First-tier Tribunal dismissed the appeal, broadly accepting the Authority’s case but adding that even if it would otherwise have been minded to make an award it would not have done so because it could not be satisfied “that there is no likelihood that an assailant would benefit if an award were made” (see paragraph 16(a) of the Scheme) in view of the Claimant’s continued contact with his son.
The Claimant now applied for permission to apply for judicial review.
JUDGEMENT:-
Rowland J said that the important question in this case was whether the Claimant put pressure on his daughter not to attend court, because clearly doing so would amount to a failure to co-operate with the police or the Crown Prosecution Service. It was not disputed that the Claimant did not want his son prosecuted and made that known to his partner and daughter but that was not necessarily the same as seeking to persuade his daughter not to give evidence, which is what the First-tier Tribunal found him to have done.
The Claimant had also argued that his mental health was relevant to the issues being considered in relation to eligibility because they partly explained those of his actions that were being said to amount to a failure to co-operate with the police or prosecuting authority. Rowland J said that the difficulty the Claimant faced with this argument was that, although his mental health might be some mitigation for what he did, it was not such that he could disclaim responsibility for his actions and, most importantly, for his making of a contradictory witness statement, which he admitted was deliberately false. He had still deliberately set out to sabotage the prosecution of his son. That was an exceedingly serious matter.
Rowland J was satisfied that, even if it were decided that the First-tier Tribunal had erred in law in some aspects of its decision, judicial review would be refused as a matter of discretion.
The other issues raised in the matter, simply did not arise if an award was withheld on other grounds. He would therefore refuse permission to apply for judicial review.
There was also an issue as to whether a records or notes of the Tribunal hearing should be provided. Rowland J said that at an early stage in these proceedings, he directed the First-tier Tribunal to provide a transcript of the proceedings before it or else the notes made by the presiding judge and other members of the panel. It transpired that the proceedings had not been recorded. Rowland J said that proceedings before the Tribunal should be recorded in some way. A failure to comply with a duty to make or keep a record of proceedings would not by itself lead to a decision being quashed unless it resulted in a real possibility of unfairness or injustice.