CR V FIRST TIER TRIBUNAL AND CICA [2010] UKUT 388 (AAC) (25 October 2010)
Reporting to police
FACTS:-
The Applicant was subjected to an assault in 2003. In response to a call from the Applicant on the morning following the incident, a police officer went to the house and took a statement from her which he recorded in his notebook. The Applicant identified H as one of her attackers and, after describing the assault, she said that she did not want to make an official complaint against H or her friend (another of the attackers). However she did want an officer to speak to them and instruct them that there would be a complaint of harassment made against them both if they harassed her again. The police officer later interviewed H, who alleged that the Applicant had started the fight and that she had acted in self-defence. The officer concluded his report by requesting that the case be classified as “undetected”, as there were no independent witnesses and both women were blaming each other, but the case was eventually in fact classified as “detected”.
The Applicant made an application to the Authority in 2005, but they rejected the claim under paragraph 13(b) of the Scheme, and on 14 March 2006 the Applicant applied for that decision to be reviewed, which resulted in a fresh refusal. At the hearing of the appeal, on 9 February 2009, the Applicant and the officer gave evidence. The Tribunal made a number of findings of fact deciding each of the issues in dispute between the Applicant and the officer but dismissed the appeal. The Applicant applied for judicial review to the Upper Tribunal.
JUDGMENT:-
Judge Bano said that the issue in these proceedings was whether the Tribunal erred in law in upholding the Authority’s decision to withhold an award of compensation under paragraph 13(b) of the Criminal Injuries Compensation Scheme 2001, which provideds that:-
“a claims officer may withhold or reduce an award where the claims officer considers that:
the applicant failed to co-operate with the police...in attempting to bring the assailant to justice.”
Judge Bano referred to the following cases:-
In deciding whether there had been a failure to co-operate with the police for the purposes of paragraph 13(b), it would be relevant to compare what the Applicant actually did to co-operate with the police with the co-operation reasonably to be expected of a person making a claim under the Scheme. In Judge Bano’s judgment, the obligation to co-operate with the police which underlay paragraph 13(b) was very wide. Information given to the police in the immediate aftermath of a crime was often of crucial importance in securing the apprehension and successful prosecution of an offender, and Judge Bano did not accept that a person making a claim for compensation did not come under any obligation to co-operate with the police until such time as the police had made a specific request to the victim to act in a particular way, or had identified a preferred course of action for dealing with the alleged offence. A properly informed decision on how to deal with an offence could indeed often only be made if the victim of a crime had already given his or her full co-operation to the police or prosecuting authorities prior to the point at which that decision was made. A person who made it clear at the outset of an investigation that he or she would not make a statement, or give evidence in the event that the police wished to prosecute the offender, could not be said to have co-operated with the police in attempting to bring the assailant to justice.
On the other hand, the fact that a full criminal investigation and trial had not taken place did not necessarily mean that an Applicant had failed to co-operate in “attempting to bring the assailant to justice”. In Re Stevens [2001] CLY 37, the victim of an assault by a 17 year old pupil in a special school told the police that he did not want the pupil prosecuted because it was unlikely that the pupil would understand the trial process. In allowing an appeal against a refusal of an award under paragraph 13(b), the Panel accepted the Applicant’s submission that the words “attempting to bring the assailant to justice” were wider than “attempting to bring the assailant to trial”. What paragraph 13(b) requireds is that the Applicant should co-operate with the normal processes for investigating crime and dealing with offenders, irrespective of what course of action was ultimately chosen by the authorities as appropriate in the circumstances of the particular case.
In her grounds of appeal to the tribunal the Applicant stated that the police officer who took a statement from her on 6 September 2003 had given her “...a choice of options, each of which was presented as a valid option....There was no indication that this choice (presented as a valid option) would mean the long term consequences would be any loss of my right to justice”. Although the police officer disputed much else of what the Applicant said, he agreed before the tribunal that he had explained the options open to the appellant concerning her alleged assault, and the tribunal made a finding to that effect. Having made that finding, the requirement for the tribunal to give adequate reasons for their decision placed them under an obligation to explain why they rejected the Applicant’s case that, in choosing one of the options which had been presented to her by the police officer as valid choices, she had done what was required of her to co-operate with the police in attempting to bring her assailants to justice.
In Re M (a child) [2005] CLY 27 the mother of a 14 year old child who had been assaulted by an adult reported the matter to the police promptly and was given the choice of pursuing a formal prosecution against the assailant or requesting that he be given a caution and an explanation that his behaviour had been unacceptable. The child’s claim was rejected under paragraph 13(b) because his mother had chosen the latter option, but the Panel nevertheless allowed the child’s appeal on the basis that the choice made by his mother had been one of the two options given to her by the police officer.
The tribunal’s conclusion that the police investigation and prosecution were discontinued as a result of the claimant’s unwillingness to make an official complaint was not supported by the evidence. There could have been a number of reasons why the police decided to take no further action after interviewing H. The police computer records indicated that the reason why no further action was in fact taken against H and J was that the Applicant and H were both blaming each other and because there were no independent witnesses to the incident.
Judge Bano said that he would make an order quashing the decision of the First-tier Tribunal and remit the Applicant’s appeal to the First-tier Tribunal to reconsider the matter and to reach a decision in accordance with his findings.
Reporting to police
FACTS:-
The Applicant was subjected to an assault in 2003. In response to a call from the Applicant on the morning following the incident, a police officer went to the house and took a statement from her which he recorded in his notebook. The Applicant identified H as one of her attackers and, after describing the assault, she said that she did not want to make an official complaint against H or her friend (another of the attackers). However she did want an officer to speak to them and instruct them that there would be a complaint of harassment made against them both if they harassed her again. The police officer later interviewed H, who alleged that the Applicant had started the fight and that she had acted in self-defence. The officer concluded his report by requesting that the case be classified as “undetected”, as there were no independent witnesses and both women were blaming each other, but the case was eventually in fact classified as “detected”.
The Applicant made an application to the Authority in 2005, but they rejected the claim under paragraph 13(b) of the Scheme, and on 14 March 2006 the Applicant applied for that decision to be reviewed, which resulted in a fresh refusal. At the hearing of the appeal, on 9 February 2009, the Applicant and the officer gave evidence. The Tribunal made a number of findings of fact deciding each of the issues in dispute between the Applicant and the officer but dismissed the appeal. The Applicant applied for judicial review to the Upper Tribunal.
JUDGMENT:-
Judge Bano said that the issue in these proceedings was whether the Tribunal erred in law in upholding the Authority’s decision to withhold an award of compensation under paragraph 13(b) of the Criminal Injuries Compensation Scheme 2001, which provideds that:-
“a claims officer may withhold or reduce an award where the claims officer considers that:
the applicant failed to co-operate with the police...in attempting to bring the assailant to justice.”
Judge Bano referred to the following cases:-
- B v Secretary of State for Work and Pensions [2005] EWCA Civ 929
- R v CICB ex parte Thompstone and Crowe [1984] 1 WLR 1234.
In deciding whether there had been a failure to co-operate with the police for the purposes of paragraph 13(b), it would be relevant to compare what the Applicant actually did to co-operate with the police with the co-operation reasonably to be expected of a person making a claim under the Scheme. In Judge Bano’s judgment, the obligation to co-operate with the police which underlay paragraph 13(b) was very wide. Information given to the police in the immediate aftermath of a crime was often of crucial importance in securing the apprehension and successful prosecution of an offender, and Judge Bano did not accept that a person making a claim for compensation did not come under any obligation to co-operate with the police until such time as the police had made a specific request to the victim to act in a particular way, or had identified a preferred course of action for dealing with the alleged offence. A properly informed decision on how to deal with an offence could indeed often only be made if the victim of a crime had already given his or her full co-operation to the police or prosecuting authorities prior to the point at which that decision was made. A person who made it clear at the outset of an investigation that he or she would not make a statement, or give evidence in the event that the police wished to prosecute the offender, could not be said to have co-operated with the police in attempting to bring the assailant to justice.
On the other hand, the fact that a full criminal investigation and trial had not taken place did not necessarily mean that an Applicant had failed to co-operate in “attempting to bring the assailant to justice”. In Re Stevens [2001] CLY 37, the victim of an assault by a 17 year old pupil in a special school told the police that he did not want the pupil prosecuted because it was unlikely that the pupil would understand the trial process. In allowing an appeal against a refusal of an award under paragraph 13(b), the Panel accepted the Applicant’s submission that the words “attempting to bring the assailant to justice” were wider than “attempting to bring the assailant to trial”. What paragraph 13(b) requireds is that the Applicant should co-operate with the normal processes for investigating crime and dealing with offenders, irrespective of what course of action was ultimately chosen by the authorities as appropriate in the circumstances of the particular case.
In her grounds of appeal to the tribunal the Applicant stated that the police officer who took a statement from her on 6 September 2003 had given her “...a choice of options, each of which was presented as a valid option....There was no indication that this choice (presented as a valid option) would mean the long term consequences would be any loss of my right to justice”. Although the police officer disputed much else of what the Applicant said, he agreed before the tribunal that he had explained the options open to the appellant concerning her alleged assault, and the tribunal made a finding to that effect. Having made that finding, the requirement for the tribunal to give adequate reasons for their decision placed them under an obligation to explain why they rejected the Applicant’s case that, in choosing one of the options which had been presented to her by the police officer as valid choices, she had done what was required of her to co-operate with the police in attempting to bring her assailants to justice.
In Re M (a child) [2005] CLY 27 the mother of a 14 year old child who had been assaulted by an adult reported the matter to the police promptly and was given the choice of pursuing a formal prosecution against the assailant or requesting that he be given a caution and an explanation that his behaviour had been unacceptable. The child’s claim was rejected under paragraph 13(b) because his mother had chosen the latter option, but the Panel nevertheless allowed the child’s appeal on the basis that the choice made by his mother had been one of the two options given to her by the police officer.
The tribunal’s conclusion that the police investigation and prosecution were discontinued as a result of the claimant’s unwillingness to make an official complaint was not supported by the evidence. There could have been a number of reasons why the police decided to take no further action after interviewing H. The police computer records indicated that the reason why no further action was in fact taken against H and J was that the Applicant and H were both blaming each other and because there were no independent witnesses to the incident.
Judge Bano said that he would make an order quashing the decision of the First-tier Tribunal and remit the Applicant’s appeal to the First-tier Tribunal to reconsider the matter and to reach a decision in accordance with his findings.