​R V CRIMINAL INJURIES COMPENSATION APPEAL PANEL ON THE APPLICATION OF CD AND JM [2004] EWHC 1674 (Admin)
 
FACTS:-
 
Both CD and JM had applied to the CICA, but their claims had been rejected ultimately by the Criminal Injuries Compensation Appeals Panel on the grounds that they were not victims of a crime of violence.

CD had been born on the 27th August 1983 claimed that she had been subjected to unlawful sexual intercourse by RW who was 21. On the 17th August 1996, according to her account she had gone with friends and RW to some woods. She was given alcohol and then went away from her friends with RW.  She had initially refused RW’s requests for sex running away from him before eventually giving in. She informed her mother of what had happened some seven days later. RW was convicted of unlawful sexual intercourse with a girl under 13 years.
 
The Panel said in CD’s case that they did not find her a credible witness. She had apparently lied to her mother both before and after the incident. Her account of having drunk cider was not believed. She had previously had intercourse with a boy older than herself, and she had gone voluntarily with RW away from her friends. RW had not used any violence, there was no evidence that he had used or manipulated her in any way. Finally CD had emerged happily from the woods and she stated in her diary that she had enjoyed intercourse.
 
In relation to JM, she was born on the 29th December 1967 and was sexually assaulted on a number of occasions by ST between the years 1979 to 1981 when she was living in the home of her foster mother, JT, who was ST’s mother. She reported the allegations to the police, but no further action was taken as ST was living in Australia.
 
The CICAP said that they did not believe her testimony that the sexual familiarities in which she engaged with ST were unwanted such that they could be considered to amount to a crime of violence. It was suggested that there was a boyfriend/girlfriend relationship between them.
 
JUDGEMENT:- 
Mr Justice Silber considered the Criminal Injuries Compensation Act 1995 and paragraph 8 of the CICA scheme, which defined a criminal injury. He also considered the following cases:-
 
  • R v Criminal Injuries Compensation Board, ex parte Webb [1987] 1 QB 74
  • R (August) v The Criminal Injuries Compensation Appeal Panel [2001] QB 774
  • R (on the application of JE) v the Criminal Injuries Compensation Appeals Panel [2003] EWCA Civ 237
 
In August, there had been a number of principles set out by the court.
 
The Claimant’s counsel had submitted that the court should taken into account any change in statutory law that occurred after the offences in question were committed. Silber J did not agree. Woolf CF had said in JE that the court would not necessarily be confined to the legal position as it was when the panel came to their decision, but he was talking about subsequent court decisions, not statutory changes.
 
There was also an issue about the use of more detailed reasons given by the panel members on the CICAP, following their original decision, which were now being used in court. Silber J said that a court could accept this kind of material, but had to exercise caution. 
 
Silber J said that CD’s case was very different from that of JE where the victim had learning difficulties and had been exploited by a sexually experienced man. He would not quash the decision of the CICAP.
 
However in relation to JM, Silber J would quash this decision. Five matters did not appear to have been properly considered:-
 
  • The relative degrees of responsibility of JM and ST for what happened. The existence of a boyfriend/girlfriend relationship did not automatically or even probably show consent by a girl of twelve or thirteen years of age.
  • The panel did not appear to take into account the vulnerability of JM.
  • JM was in a weak position since she was being exploited by her foster brother.
  • The panel did not consider whether JM could have complained when the abuse occurred.
  • There was also the matter of JM previous sexual abuse, which rendered her vulnerable to further abuse.
 
So JM’s case would succeed but CD’s case would be dismissed. 

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