UKSC 19
On appeal from:  EWCA Civ 400
Jones (by Caldwell) (Respondent) v First Tier Tribunal (Respondent) and Criminal Injuries Compensation Authority (Appellant)
Lord Hope, Deputy President
JUDGMENT GIVEN ON
17 April 2013
Heard on 28 February 2013
James Eadie QC
(Instructed by Treasury Solicitor)
Robert Glancy QC
(Instructed by Pattinson Brewer)
"For the purposes of this Scheme, 'criminal injury' means one or more personal injuries as described in the following paragraph, being an injury sustained in Great Britain and directly attributable to:
(a) a crime of violence (including arson, fire-raising or an act of poisoning); or
(b) an offence of trespass on a railway; or
(c) the apprehension or attempted apprehension of an offender or a suspected offender, the prevention or attempted prevention of an offence, or the giving of help to any constable who is engaged in any such activity."
The expression "personal injury" is stated in paragraph 9 to include physical injury, mental injury and disease.
Section 20 of the 1861 Act
"Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanour, and being convicted thereof shall be liable … to be kept in penal servitude."
"It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result."
His description of the principle was approved and applied by the House of Lords in R v Savage; DPP v Parmenter  1 AC 699: see Lord Ackner at p 752. Mustill LJ said in the Court of Appeal in that case at p 706 that the judgment in R v Mowatt laid down two propositions, one positive and one negative:
"The positive proposition was that to found a conviction under section 20 it must be proved that the defendant actually foresaw that physical harm to some other person would be the consequence of his act. This is subject to the negative qualification, that the defendant need not actually have foreseen that the harm would be as grave as that which in the event occurred."
It was pointed out that the words "should have foreseen" in Mowatt were intended to bear the same meaning as "did foresee" or simply "foresaw".
"Crime of violence"
"A crime of violence is, he submits, one where the definition of the crime itself involves either direct infliction of force on the victim, or at least a hostile act directed towards the victim or class of victims. We think that this comes near enough to the ordinary meaning of the words as generally understood."
That was a case where the board had rejected applications by four train drivers who suffered from anxiety and depression after their trains struck and killed four people, three of whom had deliberately committed suicide. Their applications were rejected because the board had concluded that their injuries did not result from a crime of violence within the meaning of the scheme. The Divisional Court held that the board had been right to refuse the applications.
"It is for the board to decide whether unlawful conduct, because of its nature, not its consequence, amounts to a crime of violence."
He added this further guidance as to the approach that should be adopted:
"Most crimes of violence will involve the infliction or threat of force, but some may not. I do not think it prudent to attempt a definition of words of ordinary usage in English which the board, as a fact finding body, have to apply to the case before them. They will recognise a crime of violence when they hear about it, even though as a matter of semantics it may be difficult to produce a definition which is not too narrow or so wide as to produce absurd consequences…"
Subsequent to that decision provision was made in the 1995 Scheme for compensation to be paid in respect of injuries directly attributable to an offence of trespass on the railway.
"The question whether a criminal act constitutes a crime of violence is to be answered primarily by looking at what was done rather than at the consequences of what was done. As Lawton LJ pointed out in Webb, 'Most crimes of violence will involve the infliction or threat of force but some may not.' It may be that there are cases in which examination of the actual or probable consequences of the criminal act will cast light on its nature. But it is for the light that they cast on the nature of the criminal act rather than for their own sake that the consequences may be relevant."
In R (August) v Criminal Injuries Compensation Appeals Panel  QB 774 the Court of Appeal (Pill and Buxton LJJ and Sir Anthony Evans) also followed what Lawton LJ said in Webb. Buxton LJ said in para 19 that it was the leading authority on the construction of "crime of violence", and that the court had not been shown any material derogating from the guidance given in that case. Nor have we, and I too would endorse the way Lawton LJ described the approach that should be taken.
The decision of the FTT
"The tribunal accepted the evidence of PC Sexton that probably Mr Hughes' primary aim was to be certain of causing his own death and that in his experience it was very unusual for a suicide in this manner to cause such extensive personal injuries and damage to vehicles. Mr Hughes may have been careless of the injuries that may have been caused to third parties by his actions. However the tribunal were not satisfied that the facts of the case demonstrated that Mr Hughes intended to cause harm or was reckless as to whether harm of whatever degree might be caused when he ran out into the dual carriageway, such as to bring his case within section 20 of the 1861 Act."
The reasoning in this paragraph is rather compressed. But it is reasonably clear from the last sentence that the FTT were not satisfied that Mr Hughes actually foresaw that his behaviour might cause physical harm to others. So it was not persuaded that he had the necessary mens rea of recklessness to bring his actions within a section 20 offence. The Upper Tribunal made it clear in its judgment that the FTT's reasoning should be read in this way. It concluded that the FTT's finding that Mr Jones had not established that Mr Hughes was reckless was one to which a rational tribunal could have come and that it was not its function as an appellate body to substitute its own opinion of the facts even if it had been different from that of the tribunal: para 39. Fairly read, therefore, the reason why Mr Jones' appeal to the FTT failed was that it was not proved that an offence of the kind described by section 20 had been committed by Mr Hughes.
The judgment of the Court of Appeal
"They are required to weigh up the evidence and decide whether it supports a finding that a relevant criminal offence has been committed. As part of this process, they have to decide what primary facts are established and what inferences it is permissible to draw from those facts. But in this case I do not accept that the determination as to whether a section 20 offence is a crime of violence within the Scheme rules is anything but a question of law which can only admit of one answer."
"any decision of the First-tier Tribunal on an appeal made in the exercise of a the right conferred by the Criminal Injuries Compensation Scheme…"
"1. The alleged offender jumped in front of the lorry when it was travelling on the A130 at 50 mph at 8 pm with other traffic on the road. We find that the alleged offender should have foreseen that some physical harm to some person, albeit of a minor character, might result, within the meaning of Lord Ackner in R v Savage  1 AC 699, 752. He was reckless whether or not anyone else was hurt in the process of his committing suicide…"
The summary ended by observing that this was "an important case on the construction of the scheme which is contentious", and that, although the panel had reached a unanimous decision, "we would not discourage an appeal to the Upper Tribunal for more authoritative guidance on how the scheme should be interpreted in these circumstances." This invitation was not taken up on that particular occasion.
"I am satisfied that the decision in Mowatt was correct and that it is quite unnecessary that the accused should either have intended or have foreseen that his unlawful act might cause physical harm of the gravity described in section 20, ie a wound or serious physical injury. It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result." (p752 f-g, emphasis added).
Taken out of context, the last sentence might seem to support the tribunal's view in Fuller. However, it is clear from the preceding passage that it was not intended to have this effect. The question to which this passage provided an answer was set out at p751E:
"In order to establish an offence under section 20, is it sufficient to prove that the defendant intended or foresaw the risk of some physical harm or must he intend or foresee either wounding or grievous bodily harm?" (emphasis added)
Thus the need for actual foresight of risk was taken as given, the issue being whether it needed to be risk merely of "some physical harm" or of something more than that.
"for some jurisdictions this may in practice be interpreted widely, for instance to allow for guidance on valuation principles in rating cases. The general principle is that an appeal hearing is not an opportunity to litigate again the factual issues that were decided at the first tier. The role is to correct errors and to impose consistency of approach." (White Paper, para 7.19).
"26. It may seem rather odd to say that something is a question of fact when there is no dispute whatever over the facts and the question is whether they fall within some legal category. In his classic work on Trial by Jury (1956) Lord Devlin said, (at p 61):
'The questions of law which are for the judge fall into two categories: first, there are questions which cannot be correctly answered except by someone who is skilled in the law; secondly, there are questions of fact which lawyers have decided that judges can answer better than juries.'
27. Likewise it may be said that there are two kinds of questions of fact: there are questions of fact; and there are questions of law as to which lawyers have decided that it would be inexpedient for an appellate tribunal to have to form an independent judgment. But the usage is well established and causes no difficulty as long as it is understood that the degree to which an appellate court will be willing to substitute its own judgment for that of the tribunal will vary with the nature of the question: see In re Grayan Building Services Ltd  Ch 241, 254-255."
"Like many such decisions, it does not involve any finding of primary facts (none of which appear to have been in dispute) but an evaluation of those facts to decide a question posed by the interpretation which I have suggested should be given to section 94(1), namely that it applies to peripatetic employees who are based in Great Britain. Whether one characterizes this as a question of fact depends, as I pointed out in Moyna v Secretary of State for Work and Pensions  UKHL 44;  1 WLR 1929, upon whether as a matter of policy one thinks that it is a decision which an appellate body with jurisdiction limited to errors of law should be able to review. I would be reluctant, at least at this stage in the development of a post-section 196 jurisprudence, altogether to exclude a right of appeal. In my opinion therefore, the question of whether, on given facts, a case falls within the territorial scope of section 94(1) should be treated as a question of law. On the other hand, it is a question of degree on which the decision of the primary fact-finder is entitled to considerable respect. In the present case I think not only that the Tribunal was entitled to reach the conclusion which it did but also that it was right….""
"The idea that the division between law and fact should come down to a matter of expediency might seem almost revolutionary. However, the passage did not attract any note of dissent or caution from the other members of the House. That it was intended to signal a new approach was confirmed in another recent case relating to a decision of an employment tribunal, Lawson v Serco."
Of Lord Hoffmann's words in Serco itself, I said:
"Two important points emerge from this passage. First, it seems now to be authoritatively established that the division between law and fact in such classification cases is not purely objective, but must take account of factors of 'expediency' or 'policy'. Those factors include the utility of an appeal, having regard to the development of the law in the particular field, and the relative competencies in that field of the tribunal of fact on the one hand, and the appellate court on the other. Secondly, even if such a question is classed as one of law, the view of the tribunal of fact must still be given weight.
This clarifies the position as between an appellate court on the one hand and a first instance tribunal. But what if there is an intermediate appeal on law only to a specialist appellate tribunal? Logically, if expediency and the competency of the tribunal are relevant, the dividing line between law and fact may vary at each stage. Reverting to Hale LJ's comments in [Cooke v Secretary of State for Social Security  3 All ER 279 paras 5-17], an expert appellate tribunal, such as the Social Security Commissioners, is peculiarly fitted to determine, or provide guidance, on categorisation issues within the social security scheme. Accordingly, such a tribunal, even though its jurisdiction is limited to 'errors of law', should be permitted to venture more freely into the 'grey area' separating fact from law, than an ordinary court. Arguably, 'issues of law' in this context should be interpreted as extending to any issues of general principle affecting the specialist jurisdiction. In other words, expediency requires that, where Parliament has established such a specialist appellate tribunal in a particular field, its expertise should be used to best effect, to shape and direct the development of law and practice in that field."
LORD WALKER, LADY HALE AND LORD SUMPTION