England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(MR JUSTICE SILBER)

		Royal Courts of Justice Strand London, WC2 Monday, 21 October 2002

Monday, 21st October 2002

1. LORD JUSTICE AULD: This is a renewed application on behalf of JE for permission to appeal an order of Silber J upholding the refusal of the Criminal Injuries Compensation Appeal Panel, in turn upholding the refusal of officers of the Criminal Injuries Compensation Authority, to award him compensation for indecent assaults. These included a number of acts of mutual indecency with an older and more experienced fellow prisoner over a two-week period when he was on remand in prison, including acts of buggery on each other.
2. The claimant was sufficiently mentally defective to be deemed incapable in law of consenting to such acts. He made no complaint to the prison authorities at the time, despite having had the opportunity to do so. However, he later alleged that he had suffered physical injury in the form of a minor and temporary anal fissure and mental injury in the form of extreme depression at the time of the abuse, with flashbacks afterwards, and claimed compensation under the Criminal Injuries Compensation Scheme 1996.
3. The central issue before the judge was whether the Panel was entitled to find, as it did, that the claimant, notwithstanding his deemed inability in law to consent to the indecent assaults, did not qualify for compensation under paragraphs 8 and/or 9C of the scheme, because he consented in fact to the indecency and thus was not a victim of a crime of violence.
4. There are two starting points having regard to the decision of this court, in R v Criminal Injuries Compensation Panel ex p August [2001] 2 WLR 1452. The first is that a person who is deemed incapable in law of consenting to acts of indecency may nevertheless, depending on the circumstances, be found to have consented in fact. The second is that if JE did so consent, any physical injury that may have resulted would not qualify for compensation since the assaults would not have constituted crimes of violence within paragraph 8(a), and any resultant mental injury on its own would also not qualify by reason of an express exclusion in paragraph 19(c).
5. The claimant's case, as put on his behalf before the Panel, was first, that he did not consent to the acts of indecency and there was no evidence from which the Panel could find that he had done so. Second and alternatively, it was argued that he could not have consented because he was mentally handicapped, a submission since invalidated by the decision in August. Third and in the further alternative, it was said that the facts in his case - his youth, his vulnerability and the nature of his relationship with his much older and more experienced fellow prisoner - indicated that even if the acts were "voluntary" they were not, in fact, consensual.
6. The Panel's ruling, according to the claimant's counsel's note at the hearing, as supplemented now by an affidavit from Sir Richard Gaskell, the Chairman of the Panel, was that his IQ was sufficiently low to indicate that he could not consent in law to the acts of buggery on him, but that the Panel was entitled to determine whether, despite that low IQ, he had consented in fact. It found, consistently with his earlier written statements and contrary to his evidence, that he had also buggered the fellow prisoner and that he had not at any time during the acts of indecency sought help from prison officers. On the critical issue of factual consent the Panel continued, according to counsel's note:

"We find that the Applicant's IQ is sufficiently low to indicate to us that he could not consent at law to the acts of buggery on him. It is for us to decide whether he consented in fact despite his low IQ. ... As to whether he consented in fact, we take account of his failure to alert prison authorities and consider his own buggery of [his fellow prisoner]. The applicant said that he was afraid of what that man's friends might do and that was the reason he buggered him, but he did not say that [his fellow prisoner] had done or threatened anything to him if he did not do or suffer those acts on him. We are not unmindful of the physical difficulties that might be expected in buggering another when afraid of the consequences, especially on one occasion when the act according to the applicant lasted some 20 minutes. In all the circumstances, having considered all the evidence, we find that, although the Applicant could not consent in law, he did consent in fact to the acts upon him."

7. Before Silber J, and again before us, counsel for the claimant advanced essentially the same argument as to factual consent, but supported it with a more focused analysis correctly drawn from: Ex parte August; from a statement of Lord Donaldson, MR, in Re T (An adult: Consent to Medical Treatment [1992] 2 FLR 458 at 479; and the judgment of the court given by Butler-Sloss LJ in Re MB (Caesarean Section) [1996] 2 FLR 426 at 437.
8. Counsel submitted, in short, that the Panel did not, but should have, expressly considered the matter from the following standpoint, namely, that the question of factual consent turns on a person's capacity or ability to understand and apply information material to his or her decision; the more serious the decision the greater the capacity required. Such an approach, counsel submitted, required the Panel to consider all the circumstances of the claimant, including his age, background, history and personality, in particular his youth and lack of sexual experience relative to the other man, and his low intellect and suggestibility. And, counsel added, not only had the Panel to approach the issue of capacity in that way, but it should have given a sufficient account of its exercise in the reasons that it gave for its decision in doing so.
9. Silber J's approach was that the Panel's treatment of the claimant and the formulation of its reasons had to be judged in the light of the issues and submissions on them put before it. He referred to R v Criminal Injuries Compensation Board ex parte Cook [1996] 1 WLR 1037, in particular to a passage from the judgment of Hobhouse LJ at 1053, with which Beldam LJ agreed. He also referred to De Smith, Woolf and Jowell, Judicial Review of Administrative Action (1995) 5th edition, at paragraph 9-049.
10. Whilst Silber J appears to have regarded the arguments advanced before him as "very different" from those put to the Panel, the difference seems to me to be one of particularity of example, rather than substance. The Panel was required to look at and evaluate all relevant circumstances going to the reality or otherwise of the claimant's consent to the conduct in question.
11. It might be said that it is plain from the Panel's treatment of the matter that it has dealt with the entirety of the claimant's claim and must have had in mind the question of actual capacity to consent when considering what is apparently the law, that a person may be deemed unable to give consent to certain acts and yet, in fact, is able to give that consent.
12. In my view, whilst the Panel's treatment and examination of the claimant's actual capacity to consent may have included the various relevant considerations (most of them quite obvious), it is not plain from its reasoning that it did so. And, though such reasons as it has given hint at the possibility that it did consider all relevant considerations, it is arguable that they are insufficiently expressed or identified to leave the matter there.
13. For those reasons I would grant permission to appeal.
14. LORD JUSTICE CLARKE: I agree.
15. LORD JUSTICE JONATHAN PARKER: I also agree.
(Applications granted; no order for costs).