R(GI) V FIRST TIER TRIBUNAL (CIC) [2011] UKUT 83
FACTS:-
The Applicant was a child (G), whose father submitted a claim on her behalf to the ICA in January 2008. His application came under the CICA Scheme 2001. The incident arose when her friend’s sister (N) poured boiling hot water over her in a paddling pool. G was nine and N was ten. The CICA rejected the application on the grounds that this was an accident not a crime of violence. G’s father appealed to the First Tier Tribunal who confirmed the CICA’s decision. He then applied for judicial review.
JUDGMENT:-
Judge Wikeley said that there had been two errors of public law that required the Tribunal’s decision to be quashed. First of all G’s father knew that the Tribunal had decided the incident was an accident but he did not know how or why the Tribunal had reached that conclusion. The Applicant’s counsel had argued that the Tribunal had asked itself the wrong question, namely was it an accident, when the Tribunal should have focussed on the concept of a crime of violence. The Tribunal appeared to have given no consideration to the possibility that the act was reckless in the sense shown in R v Cunningham [1957] 2QB 396 and R v G [2003] UKHL 50.
The other submission made by the Applicant’s counsel was that no reasonable Tribunal could have accepted that the incident was an accident. It was inconceivable that N had been unaware of G’s presence in paddling pool when she poured in the hot water or unaware of the risk of pouring boiling water into the pool. Judge Wikeley did not accept this submission.
Section 50 of the Children and Young Persons Act 1933 conclusively presumed that a child could not be convicted of a criminal offence. However paragraph 10 of the 2001 CICA Scheme did not require the presence of a conviction for an award to be made, and there could be an award where the person committing the crime of violence was a child, insane or had diplomatic immunity. Judge Wikeley said that there was no suggestion that the Tribunal made such an obvious error as assuming that any such prosecution or conviction was required.
The decision of the First Tier Tribunal would be quashed and remitted to the Tribunal for a re-hearing.
FACTS:-
The Applicant was a child (G), whose father submitted a claim on her behalf to the ICA in January 2008. His application came under the CICA Scheme 2001. The incident arose when her friend’s sister (N) poured boiling hot water over her in a paddling pool. G was nine and N was ten. The CICA rejected the application on the grounds that this was an accident not a crime of violence. G’s father appealed to the First Tier Tribunal who confirmed the CICA’s decision. He then applied for judicial review.
JUDGMENT:-
Judge Wikeley said that there had been two errors of public law that required the Tribunal’s decision to be quashed. First of all G’s father knew that the Tribunal had decided the incident was an accident but he did not know how or why the Tribunal had reached that conclusion. The Applicant’s counsel had argued that the Tribunal had asked itself the wrong question, namely was it an accident, when the Tribunal should have focussed on the concept of a crime of violence. The Tribunal appeared to have given no consideration to the possibility that the act was reckless in the sense shown in R v Cunningham [1957] 2QB 396 and R v G [2003] UKHL 50.
The other submission made by the Applicant’s counsel was that no reasonable Tribunal could have accepted that the incident was an accident. It was inconceivable that N had been unaware of G’s presence in paddling pool when she poured in the hot water or unaware of the risk of pouring boiling water into the pool. Judge Wikeley did not accept this submission.
Section 50 of the Children and Young Persons Act 1933 conclusively presumed that a child could not be convicted of a criminal offence. However paragraph 10 of the 2001 CICA Scheme did not require the presence of a conviction for an award to be made, and there could be an award where the person committing the crime of violence was a child, insane or had diplomatic immunity. Judge Wikeley said that there was no suggestion that the Tribunal made such an obvious error as assuming that any such prosecution or conviction was required.
The decision of the First Tier Tribunal would be quashed and remitted to the Tribunal for a re-hearing.