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Boys lose appeal against convictions

Malcolm — Fri, 30 Jul 2010 08:57:46 +0000

The BBC reports that two boys who were found guilty of the attempted rape of an eight-year-old girl in west London have lost their appeals against their convictions. Three Court of Appeal judges in London dismissed the appeals brought by the pair, who are both now 11.

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Couple’s appeal against sentence fails

Malcolm — Thu, 29 Jul 2010 09:54:03 +0000

The BBC reports that the mother and stepfather of an eight-year-old girl found hanged in her bedroom have failed in appeals against their sentences.

The girl, who had severe learning difficulties, was found hanged from a cord tied to a window at her home in Moor Street on 12 September last year. Nottingham Crown Court was told her bedroom had faeces smeared all over the walls and floor, and that she had been forced to use her chest of drawers as a toilet.

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Former master at London school accused of abuse

Malcolm — Wed, 28 Jul 2010 08:17:57 +0000

The BBC reports that a former master at a London school has appeared at the Old Bailey accused of sexually assaulting pupils. The man has pleaded not guilty to the offences. The charges date back to the 1980s when he was working at St Paul’s Cathedral Choir School in the City of London.

In the case of Lister v Hesley Hall 2001 former residents of a children’s home were assaulted by the warden. The House of Lords decided that his employers could be vicariously liable for those assaults. This case has been followed by another more recent case, MAGA v Archdiocese of Birmingham 2010 where the Court of Appeal decided that a boy abused by a Catholic priest could sue his employers, even though he himself was not a Catholic.

See our article on the issue of vicarious liability for foster carers, published in the Solicitors Journal.

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R v Criminal Injuries Compensation Board ex parte Cobb 1995

Stelios — Tue, 27 Jul 2010 09:34:23 +0000

FACTS:-

The Applicant made a claim to the CICB for compensation for injuries, which he claimed had been caused by an unknown assailant, and which caused him loss of consciousness. He told the CICB that he could not recall seeing any police officer at the scne. He also said that at hospital he recalled being told by the police tha the CID would be coming see him, but that he was disorientated and did not recall being asked whether he wished to make a complaint. Several days later, when no-one from he went ot the police and reported the matter. The police said that they had seen the Applicant at hospital and that he had declined to make a complaint because he had no useful information to give. It was also noted by the police that the Applicant had made the complaint to the police because he had been told that he was eligible for criminal injuries compensation.

At the hearing before the CICB, the police officer who had seen the Applicant in hospital did not attend, but he was replaced by another officer. The CICB refused the application for an adjournment, but gave no reasons for doing so. The Applicant’s claim was rejected on the grounds that there had been unreasonable delay on his part in reporting the matter to the police. The Applicant applied for judicial review of the CICB’s decision.

JUDGEMENT:-

Dyson J considered the sequence of events and the evidence. made the following points.

1) It was clear that the CICB and now the CICA considered that in matters of procedure it was master in its own house and answerable hardly at all to the requirements of public law. It now had its own procedure but this seemed to be rooted firmly in the past. It was also apparent that in some important respects, those who were called upon to operate the present Scheme had a lack of understanding of the consequences of some of its provisions.

2) Any applicant wishing to review a decision of the CICA would be in difficulties in providing reasons if he did not know the basis of the decision which he was seeking to have reviewed.

3) The Scheme made no positive requirement on the Claims Officer to give reasons for his decision although the Guide stated different. Turner J said that the adjudication of a claim was not merely a matter of administration, since the making of a decision was capable of affecting the rights of a person who was seeking to benefit from the provisions of the Scheme.

4) Any reasons on which the claims officer justified his decision should conform to the requirement of “sufficiency” at the least.

5) There was express requirement that the more senior claims officer would give reasons for his decision. Such reasons would have to be proper, sufficient and intelligible. There was also a need for an evidential basis to be demonstrated, so that the Applicant could submit a reasoned appeal.

6) In accordance with Paragraph 73 of the Scheme, the Applicant (on appeal) would only have made available to him the material available to the Authority at the hearing of his appeal, if not before.

7) The principals reasons advanced by the CICA for withholding the witness statements made to the police, namely the existence of the agreement or undertaking given to the police, had not been made good. The factual and legal basis for such an undertaking or agreement had ceased to exist, since there was no longer any blanket immunity. This was made plain in R v Secretary of State for the Home Department, ex parte Hickey (No. 2) [1995] 1 WLR 734. It was also puzzling that the CICA chose to make disclosure of such statements at the hearing. The public interest in disclosure meant that such should take place unless there were circumstances which could justify the withholding of documents.

8) The practice of withholding crucial material until the day of the hearing was bound to put one party at a significant disadvantage. Adjournment would not necessarily cure the problem, since it might not be granted.

9) One side effect of the Authority’s refusal to provide reasons for its decisions was that the Applicant would pursue his case as far as possible in order to discover the basis on which his claim had been rejected.

10) Paragraph 13 of the Scheme put the claims officer under a duty to take decision in relation to eligibility to receive compensation. Since the result of the application depended on the conduct of the applicants, the decisions which had to be made were inherently judicial in character.

11) The Authority had put forward a number of reasons for not disclosing the criminal witness statements. These were:-

(a) If witnesses knew that statements were going to be disclosed, it was likely that many would decline to cooperate in case of reprisals.

(b) There was difficulty in circulating statement. They might get into the wrong hands

(c) Claimants might seek to influence the makers of the statements

(d) Statements frequently contained information about police informants

(e) The requirement for disclosure would imposed an intolerable and unjustified burden on the Authority

(f) Early disclosure would encourage legalism and lead to more unnecessary representations

(g) Claimants might be tempted to tailor their own evidence

12) All the reasons put forward were general in character and did not bear on the individual circumstances of the individual cases. However Turner J commented on each point above as follows:-

a)            This was now of doubtful validity

b)            All the applicants in these cases now had secure addresses

c)            There was no reason to suppose that any of the Applicants in these cases would attempt to influence witnesses

d)            Police informers fell into an exceptional category and could be dealt with on their own individual facts

e)            The burden on the Authority – it was illogical to say that the burden was unjustified if that was what the law required. Little evidence was shown as to the burden.

f)             The imagined threat of “legalism” had its origins in the textbooks

13) The fear of excessive legalism was unfounded. The risk that the Authority would be overburdened with an exercise in generating huge quantities of paper was one that might encourage it to provide a gist rather than all the available witness statements.

14) Turner J quoted from a textbook “de Smith, Woolf and Jowell’s Principles of Judicial Review (London: Sweet and Maxwell, 1999) where it was said that the courts would now invariably infer a requirement of fairness in the decision-making process, in the absence of clear contrary intent.

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X v Criminal Injuries Compensation Board 1999

Stelios — Tue, 27 Jul 2010 09:29:47 +0000

FACTS:-

The Petitioner was born in October 1966. She alleged sexual abuse by one M over a period of years from about the time she was 8 years old. M was the uncle of a friend of the Petitioner who also suffered sexual abuse at his hands. The Petitioner first disclosed the abuse to a psychologist in 1993 and then to the police in 1994. However proceedings were not taken due to a lack of corroborative evidence. She sought judicial review of a decision of the CICB refusing to waive in her case the three year time limit under the 1990 Scheme.

HELD:-

Lord Penrose considered the history of the case. In his opinion there could be no absolute duty on the CICB to give reasons for the refusal of the time limit in every case, whatever the appropriate classification of the Board’s function as administrative or quasi-judicial. However the CICB could not properly be characterised as a fully judicial body, it was in the judgment of Lord Penrose, quasi judicial. The decision as to whether to waive the time limit fell within that quasi judicial function. In the absence of an absolute duty to state reasons, the question became one of circumstances. There were a number of factors which might have influenced the decision in this case:-

The length of the delay

The medical evidence was less than positive in attributing the Petitioner’s mental condition to the alleged abuse

There should have been a statement in outline of the Board’s reasons for refusing waiver. Only then could one form a view on the legality of the decision. A bald statement to the effect that the circumstances were not exceptional was necessarily defective. It did not follow that the actual decision was unreasonable. Therefore the Board should issue a fresh decision on the application with a statement of reasons.

The lack of corroborating witness evidence

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S v Advocate General 2004

Stelios — Tue, 27 Jul 2010 09:26:47 +0000

FACTS:-

The Petitioner had been sexually abused by her father when she was 4 years of age. This went on for three years. Many years later it was reported and her father was convicted. The Applicant made an application to the Criminal Injuries Compensation Authority, but it was turned down on the grounds that the event affecting had occurred before October 1979, and the abuse had come from a family member living under the same roof. The Petitioner sought a declarator that the relevant paragraph of the Criminal Injuries Compensation Scheme 1996 was incompatible with human rights. She based her complaint on Article 6 and Article 1 of Protocol No. 1 both taken with Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Article 6 provided:-

“……(1) In the determination of his civil rights and obligations…..everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law….”

Article 1 of Protocol No. 1 provided:-

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprive of his possessions except in the public interest….The preceding provision shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

Article 14 provided:-

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as [sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth] or other status…”

HELD:-

Lord McEwan considered the history of the various CICB Schemes. The exclusion in respect of offences committed against persons in the same household as the offender, had been very substantially modified with the passage of time.

Paragraph 7 of the 1969 Scheme provided:-

“Where the victims who suffered injuries and the offender who inflicted them were living together at the time as members of the same family, no compensation will be payable. For the purposes of this paragraph where a man and a woman were living together as man and wife they will be treated as if they were married to one another.”

In 1979 a new Scheme was implemented, which took effect from the 1^st October 1979. This removed the complete exclusion of claims in respect of family violence where the injuries were incurred on or after the 1^st October 1979. However the amendment was not retrospective. This case was governed by Paragraph 8 of the 1990 Scheme, which applied to all applications for compensation received by the Board on or after 1^st February 1990. Paragraph 8 of that Scheme amended the rule in relation to abusers living with the victim as a member of the family. However once again, Paragraph 28 of the 1990 Scheme specifically excluded same family member injuries before the 1^st October 1979 and said that Paragraph 7 of the 1969 Scheme would continue to apply.

Lord McEwan said that it was clear that the decision to remove the same roof rule, but not to make it retrospective, had been made after careful analysis. He then considered the arguments and caselaw from both sides. The Human Rights Act 1998 (which came into force on the 2^nd October 2000) was not retrospective. Consequently the 1996 CICA Scheme was not open to attack, as it was valid when it was introduced.

In relation to the Articles on which the complaint was based, Article 6 was a procedural article designed to secure fairness. It could not of itself create any particular right. Article 14 by contrast, had to be looked at as something which had no independent existence and it could only operate where it could be linked to another rights conferring article. Because of the continuation of the “same roof” rule, the Petitioner could have no civil right under Article 6. She had access to a tribunal, and there was no procedural unfairness. Thus Article 6 was not engaged and Article 14 could be linked to it.

Article 1 of Protocol No. 1 only protected property rights and the Petitioner had no such rights. Nor did she have any legitimate expectation.

Provided the relevant article was engaged, it was not necessary to demonstrate an actual breach in order to link in to Article 14. It could not be disputed that this Petitioner has had different treatment meted out to her than one who had been abused after October 1979. Whether the difference in treatment amounted to discrimination brought in a number of wider convention issues. Lord McEwan had to consider questions of executive policy, whether there was a legitimate aim in view and also whether the refusal to alter the scheme for pre 1979 cases was a proportionate response. The reasons related to problems of evidence, witnesses and costs. That was a proper reason and jurisprudence showed that such was a legitimate and proportionate justification.

Therefore the petition could not succeed.

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RP and TG V Home Office and CICB 1994

Stelios — Tue, 27 Jul 2010 09:22:09 +0000

FACTS:-

RP was born in 1962 and TG was born in 1964. Both were victims of sexual abuse at the hands of their stepfather when they were children. TG suffered the abuse between 1971 and 1982, and RP between 1967 and 1976. They made applications to the Criminal Injuries Compensation Board in 1990, but their claims were rejected on the grounds that the abuse had occurred prior to the 1^st October 1979, and that abuse had been perpetrated by a member of their own family. TG was awarded £5,000 for the period after 1979.

Both sought judicial review of the CICB’s decision. The matter came before the Court of Appeal.

HELD:-

Lord Justice Neill considered the history of the various CICB Schemes. The exclusion in respect of offences committed against persons in the same household as the offender, had been very substantially modified with the passage of time.

Paragraph 7 of the 1969 Scheme provided:-

“Where the victims who suffered injuries and the offender who inflicted them were living together at the time as members of the same family, no compensation will be payable. For the purposes of this paragraph where a man and a woman were living together as man and wife they will be treated as if they were married to one another.”

1)    Did the court have jurisdiction to examine the legality of the scheme?

2)    Was the issue of the government acting lawfully in excluding these claims, justiciable?

3)    Had the Applicants any right or legitimate expectation to receive compensation in respect of any offence committed before October 1979?

4)    Was the decision of the government to exclude claims in respect of offences committed before October 1979 irrational?

Neill LJ said that in general the court did have jurisdiction to entertain the question of legality. In relation to justiciability, the decision as to the scope and terms of the various CICB schemes were taken under prerogative or analogous powers, rather than statute. The complaint here was that the decision to maintain the old exclusion rule in force in respect of offences committed before 1^st October 1979 was arbitrary and irrational. The decisions made here involved a balance of competing claims on the public purse and the allocation of economic resources which the court was ill equipped to deal with. Consequently they were not justiciable.

In relation to “legitimate expectation”, there was no need to consider this point in view of the decision on justiciability above. In relation to irrationality, again it was not necessary to deal with this point, although Neill LJ said that in his view the cases would fail on this ground also.

Therefore these appeals would be dismissed.

Lord Justice Evans said that he was particularly influenced by the fact that the original 1964 scheme was limited to claims made in respect of injuries caused after the relevant date. It was impossible to say that this is or was an irrational feature either of the original or the revised schemes. He agreed that the courts did have jurisdiction over this matter. However he did not agree with Neill LJ on the issue of justiciability. A scheme that was administered by an independent body of persons on a judicial or quasi-judicial basis seemed to be almost the epitome of an executive or administrative decision that was amenable to review by the courts.

In relation to legitimate expectation, it was unnecessary to express any conclusion on this issue.

Nonetheless the complaint of irrationality was not made out.

Lord Justice Gibson agreed. He accepted that the court had jurisdiction to consider the legality of the CICB scheme and any revision to it. He found it impossible to say that the measure to change the terms of the Scheme in 1979 was irrational. To have allowed the Scheme to be retrospective would inevitably have had some effect on resources.

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R v Criminal Injuries Compensation Board ex parte Wilson 1991

Stelios — Tue, 27 Jul 2010 09:13:04 +0000

FACTS:-

The Applicant was born in 1964. As a child she was sexually abused by her step father between 1974 and 1980. She reported the matter to the police in 1988 and the stepfather was convicted. In May 1990 she made an application to the Criminal Injuries Compensation Board, but her application was refused on the grounds that it had been made more than three years after the incidents pursuant to paragraph 4 of the Scheme, and the Applicant had reached the age of her majority in 1985. The Applicant applied for judicial review of the decision.

HELD:-

Mr Justice Popplewell said that whilst the CICB could be generous in its view as to what was an exceptional case, it did not seem that the fact that the Board was generous in some cases was a good reason for saying that in the instant case it had behaved unreasonably. There was material before the chairman of the Board on which he could come to a decision. The Applicant’s application would be refused.

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Child abuse linked to heart diseases

Malcolm — Tue, 27 Jul 2010 08:29:48 +0000

CNN Health reports that adults who were physically abused during childhood are more likely later to develop heart disease. The statistics come from from the journal “Child Abuse and Neglect”.

The long term effects of child abuse are many and varied. Survivors report a range of problems from eating disorders and addictions, to symptoms of post traumatic stress disorder and other forms of mental illness. Not all victims however report serious adverse effects.

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R v Criminal Injuries Compensation Board ex parte Staten 1972

Stelios — Mon, 26 Jul 2010 15:57:10 +0000

FACTS:-

The Applicant and her husband lived with their children in two council flats knocked into one. He was sent to prison for assaulting her, but moved back into the matrimonial home although he slept on the sofa. He then assaulted her again and she made a claim to the CICB. The CICB refused the claim on the grounds that it was caught by paragraph 7 of the Scheme. This stated:-

Paragraph 7 of the 1969 Scheme provided:-

“Where the victims who suffered injuries and the offender who inflicted them were living together at the time as members of the same family, no compensation will be payable. For the purposes of this paragraph where a man and a woman were living together as man and wife they will be treated as if they were married to one another.”

The Applicant applied for permission to judicially review this decision.

HELD:-

Lord Widgery CJ said that the Scheme was intended to be set out in simple language and a phrase such as “living together as members of the same family” ought to be given it ordinary straightforward meaning. This was a pure question of fact. There was no justification for saying that the CICB had erred in law.

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