R (ON THE APPLICATION OF JE) v CRIMINAL INJURIES COMPENSATION APPEALS PANEL [2003] EWCA Civ 234
FACTS:-
The Applicant was refused compensation because the Criminal Injuries Appeals Panel decided that he had consent to the sexual activities on which his application was based. It was common ground that he was a “defective” who could not give consent under the Sexual Offences Act 1956. A “defective” under the 1956 Act was described as “a person suffering from a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning.”
The Applicant was a serving prisoner on whom a number of sexual assaults were perpetrated by his cellmate. He was a 22 year old and had had no previous sexual experience beforehand. His assailant was a 45 year old man and was in prison for sexual offences against boys. There was evidence from a clinical psychologist that the Applicant was vulnerable to the influence of others. The assailant had managed to “groom” the Applicant by getting him put into his cell.
JUDGEMENT:-
The Court of Appeal referred to the case of R v Brown [1994] 1 AC 212 where the House of Lords decided that the Defendants (a group of men who indulged in sado masochistic behaviour) were guilty of committing criminal offences under Sections 20 and 47 of the Offences against the Person Act 1861 and that the victim’s consent afforded no defence to those charges. However such consent did preclude any claim for compensation under the CICA scheme.
The Court of Appeal then referred to two recent decisions, R v Criminal Injuries Compensation Appeals Panel – ex parte August and Brown [2001] QB 774. In that case Buxton LJ had said that the presence of consent was not conclusive of whether or not an applicant had been the victim of a “crime of violence.” It would be wrong to adopt a narrow, black and white approach to the question of consent.
Therefore real consent might exclude a crime from eligibility under the Scheme, but consent that was not real would not do so, nor would submission.
The Panel’s failure to refer specifically to the Applicant’s capacity did not amount to an error in law, the fact that he was defective for the purposes of Section 15(3) of the 1956 Act was an important feature of the case.
In this case the Applicant was at a significant disadvantage, and it was necessary to ask as to whether his consent was real so as to prevent his being a victim. If it were not for his vulnerability, this inquiry would not be necessary. The fact that the Applicant had actually taken part in the buggery of his assailant did not mean that he consented in fact. The Panel had not considered the relative degrees of responsibility of the Applicant and the assailant for what happened.
The decision would be quashed and remitted to a different Panel.
FACTS:-
The Applicant was refused compensation because the Criminal Injuries Appeals Panel decided that he had consent to the sexual activities on which his application was based. It was common ground that he was a “defective” who could not give consent under the Sexual Offences Act 1956. A “defective” under the 1956 Act was described as “a person suffering from a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning.”
The Applicant was a serving prisoner on whom a number of sexual assaults were perpetrated by his cellmate. He was a 22 year old and had had no previous sexual experience beforehand. His assailant was a 45 year old man and was in prison for sexual offences against boys. There was evidence from a clinical psychologist that the Applicant was vulnerable to the influence of others. The assailant had managed to “groom” the Applicant by getting him put into his cell.
JUDGEMENT:-
The Court of Appeal referred to the case of R v Brown [1994] 1 AC 212 where the House of Lords decided that the Defendants (a group of men who indulged in sado masochistic behaviour) were guilty of committing criminal offences under Sections 20 and 47 of the Offences against the Person Act 1861 and that the victim’s consent afforded no defence to those charges. However such consent did preclude any claim for compensation under the CICA scheme.
The Court of Appeal then referred to two recent decisions, R v Criminal Injuries Compensation Appeals Panel – ex parte August and Brown [2001] QB 774. In that case Buxton LJ had said that the presence of consent was not conclusive of whether or not an applicant had been the victim of a “crime of violence.” It would be wrong to adopt a narrow, black and white approach to the question of consent.
Therefore real consent might exclude a crime from eligibility under the Scheme, but consent that was not real would not do so, nor would submission.
The Panel’s failure to refer specifically to the Applicant’s capacity did not amount to an error in law, the fact that he was defective for the purposes of Section 15(3) of the 1956 Act was an important feature of the case.
In this case the Applicant was at a significant disadvantage, and it was necessary to ask as to whether his consent was real so as to prevent his being a victim. If it were not for his vulnerability, this inquiry would not be necessary. The fact that the Applicant had actually taken part in the buggery of his assailant did not mean that he consented in fact. The Panel had not considered the relative degrees of responsibility of the Applicant and the assailant for what happened.
The decision would be quashed and remitted to a different Panel.