HW (AP) V CRIMINAL INJURIES COMPENSATION APPEAL PANEL [2002] ScotCS 138
FACTS:-
The petitioner had suffered crimes of violence at the hands of her husband from 1985 to 1987, whom she divorced in 1992. She suffered a fractured skull and brain damage. Her application was refused by the Criminal Injuries Compensation Board on the grounds that the matter had not been reported to the police and in any event, the alleged offender had not been prosecuted. However one of the petitioner’s daughters had made sexual abuse allegations against her father, for which he had been convicted and compensation was awarded by the Board. The petitioner applied for judicial review of the Board’s decision.
JUDGEMENT:-
Lord MacFadyen referred to paragraph 6 of the 1990 Scheme which stated:-
“The [Criminal Injuries Compensation] Board may withhold or reduce compensation if they consider that-.
Paragraph 8 provided:-
“Where the victim and any person responsible for the injuries which are the subject of the application.....were living in the same household at the time of the injuries as members of the same family, compensation will be paid only where –
Lord MacFadyen went over the detailed reasons for refusal given by the Board.
Reporting the matter to social services as an “appropriate authority.”
One of the arguments raised by the petitioner was that she had told a social worker at the relevant time of her husband’s violence towards her. That was corroborated in the social services notes.
Lord MacFadyen said that the Board had not addressed their minds to the fact that the petitioner had reported the matter to social services, who were an “other authority.”
However for the petitioner to make a case that a report to someone other than the police ought to be regarded as the giving of information to an appropriate authority, more was needed than the mere fact that the other person had been told of the crimes of violence. When the petitioner’s application went before the Board, no case was put forward to the effect that the Board ought to regard her reporting her husband to a social work as the giving of information to an appropriate authority. Therefore there was no misdirection on the part of the Board.
The discretion to make a reduced award
The petitioner had argued that the Board had failed to give any consideration as to whether it would be appropriate to make a reduced award if they were not satisfied that the matters had been reported to the police. Lord Macfadyen said that it would have amounted to a misdirection on the part of the Board if they had withheld an award, but not then gone on to consider whether the award should be reduced. However he did not feel that the Board had made that error.
The reasonableness of the finding that the police were not informed
Whilst Lord Madfadyen did not find the Board’s analysis of the petitioner’s evidence altogether satisfactory, there was a clear discrepancy between the petitioner’s evidence that she could not remember if she told the police about her husband’s violence and that she had told the police about everything that had happened to her.
The effect of abuse on the petitioner’s memory
The petitioner had argued that the Board had failed to take proper account of the fact that the petitioner’s memory had been affected by her abusive experiences. Lord Madfadyen said that this argument was not well founded. He could not conclude that the Board had not taken into account any submissions made to them.
Paragraph 8(a) of the Scheme
On this point, Lord Madfadyen said that the Board had misdirected itself. Paragraph 8(a) could only be satisfied if there were “practical, technical or other good reasons” for no prosecution to be brought. The Board appears to have addressed a hypothetical situation by saying that even if the applicant had made a report to the police there was no evidence which would have allowed the Board to conclude that there were practical, technical or other good reasons why a prosecution had not been brought. The question which would have required to be answered was whether the petitioner’s failure to report the assaults to the police, or the fact that the social work department did not pass on the petitioner’s complaints to the police, could constitute a practical, technical or other good reasons for non prosecution. Therefore there was a misdirection on this issue.
However the application for judicial review still failed under paragraph 6(a) and consequently there was no good ground for setting aside the Board’s decision under that paragraph. The petition would be refused.
FACTS:-
The petitioner had suffered crimes of violence at the hands of her husband from 1985 to 1987, whom she divorced in 1992. She suffered a fractured skull and brain damage. Her application was refused by the Criminal Injuries Compensation Board on the grounds that the matter had not been reported to the police and in any event, the alleged offender had not been prosecuted. However one of the petitioner’s daughters had made sexual abuse allegations against her father, for which he had been convicted and compensation was awarded by the Board. The petitioner applied for judicial review of the Board’s decision.
JUDGEMENT:-
Lord MacFadyen referred to paragraph 6 of the 1990 Scheme which stated:-
“The [Criminal Injuries Compensation] Board may withhold or reduce compensation if they consider that-.
- The applicant has not taken, without delay, all reasonable steps to inform the police, or any other authority considered by the Board to be appropriate for the purpose, of the circumstances of the injury and to co-operate with the police or other authority in bringing the offender to justice.”
Paragraph 8 provided:-
“Where the victim and any person responsible for the injuries which are the subject of the application.....were living in the same household at the time of the injuries as members of the same family, compensation will be paid only where –
- The person responsible has been prosecuted in connection with the offence, except where the Board consider that there are practical, technical or other good reasons why the prosecution has not been brought.”
Lord MacFadyen went over the detailed reasons for refusal given by the Board.
Reporting the matter to social services as an “appropriate authority.”
One of the arguments raised by the petitioner was that she had told a social worker at the relevant time of her husband’s violence towards her. That was corroborated in the social services notes.
Lord MacFadyen said that the Board had not addressed their minds to the fact that the petitioner had reported the matter to social services, who were an “other authority.”
However for the petitioner to make a case that a report to someone other than the police ought to be regarded as the giving of information to an appropriate authority, more was needed than the mere fact that the other person had been told of the crimes of violence. When the petitioner’s application went before the Board, no case was put forward to the effect that the Board ought to regard her reporting her husband to a social work as the giving of information to an appropriate authority. Therefore there was no misdirection on the part of the Board.
The discretion to make a reduced award
The petitioner had argued that the Board had failed to give any consideration as to whether it would be appropriate to make a reduced award if they were not satisfied that the matters had been reported to the police. Lord Macfadyen said that it would have amounted to a misdirection on the part of the Board if they had withheld an award, but not then gone on to consider whether the award should be reduced. However he did not feel that the Board had made that error.
The reasonableness of the finding that the police were not informed
Whilst Lord Madfadyen did not find the Board’s analysis of the petitioner’s evidence altogether satisfactory, there was a clear discrepancy between the petitioner’s evidence that she could not remember if she told the police about her husband’s violence and that she had told the police about everything that had happened to her.
The effect of abuse on the petitioner’s memory
The petitioner had argued that the Board had failed to take proper account of the fact that the petitioner’s memory had been affected by her abusive experiences. Lord Madfadyen said that this argument was not well founded. He could not conclude that the Board had not taken into account any submissions made to them.
Paragraph 8(a) of the Scheme
On this point, Lord Madfadyen said that the Board had misdirected itself. Paragraph 8(a) could only be satisfied if there were “practical, technical or other good reasons” for no prosecution to be brought. The Board appears to have addressed a hypothetical situation by saying that even if the applicant had made a report to the police there was no evidence which would have allowed the Board to conclude that there were practical, technical or other good reasons why a prosecution had not been brought. The question which would have required to be answered was whether the petitioner’s failure to report the assaults to the police, or the fact that the social work department did not pass on the petitioner’s complaints to the police, could constitute a practical, technical or other good reasons for non prosecution. Therefore there was a misdirection on this issue.
However the application for judicial review still failed under paragraph 6(a) and consequently there was no good ground for setting aside the Board’s decision under that paragraph. The petition would be refused.