ON APPEAL FROM THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
Nicol J, HHJ Sycamore and UTJ Mesher
 UKUT 199 (AAC)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIX
LORD JUSTICE PATTEN
| GARETH OWEN JONES
(APPOINTEE MRS MAUREEN CALDWELL)
|- and -
|FIRST TIER TRIBUNAL
(SOCIAL ENTITLEMENT CHAMBER)
|- and -
|CRIMINAL INJURIES COMPENSATION AUTHORITY
Ben Collins (instructed by Treasury Solicitor) for the Interested Party
The Respondent did not appear and was not represented
Hearing date : 4th March 2011
Crown Copyright ©
Lord Justice Patten :
"(1) The Secretary of State shall make arrangements for the payment of compensation to, or in respect of, persons who have sustained one or more criminal injuries.
(2) Any such arrangements shall include the making of a scheme providing, in particular, for—
(a) the circumstances in which awards may be made; and
(b) the categories of person to whom awards may be made.
(3) The scheme shall be known as the Criminal Injuries Compensation Scheme.
(4) In this Act—
"criminal injury", "loss of earnings" and "special expenses" have such meaning as may be specified;
"specified" means specified by the Scheme."
"Compensation may be paid in accordance with this Scheme:
(a) to an applicant who has sustained a criminal injury on or after 1 August 1964;"
"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 and directly attributable to an act occurring 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."
"… physical injury (including fatal injury), mental injury (that is temporary mental anxiety, medically verified, or a disabling mental illness confirmed by psychiatric diagnosis) and disease (that is a medically recognised illness or condition). Mental injury or disease may either result directly from the physical injury or from a sexual offence or may occur without any physical injury. Compensation will not be payable for mental injury or disease without physical injury, or in respect of a sexual offence, unless the applicant:
(a) was put in reasonable fear of immediate physical harm to his or her own person; or…"
"Under paragraphs 6 and 8 of the Scheme we may pay compensation only if your client was the victim of a criminal injury. In most cases this means an injury directly attributable to a crime of violence. This type of crime might involve a physical attack on the victim or, in some cases, the threat of an attack. Or it might involve reckless behaviour that causes injury. To assess whether your client qualifies for an award under the Scheme we obtain relevant details about the incident and injuries from the police and the doctors who provided treatment. In this case there is reference to a "reckless act" in the application form, but to be eligible for an award under the Scheme the applicant must have been a victim of a crime of violence. We have looked at the facts in this case and cannot pinpoint a crime of violence which would enable an award to be made."
"34. Mr Jones was injured because the vehicle he was driving collided with an articulated lorry driven by Mr Nash when it veered into the lane of the A282 in which he was proceeding. Mr Nash changed direction because of the actions of Mr Hughes in running out and standing in front of his vehicle with the intention of killing himself. Although there is some evidence that Mr Nash had exceeded the speed limit and there is uncertainty as to the speed at which Mr Jones was travelling, there is no evidence to suggest that Mr Jones's injuries could have been avoided if either vehicle were travelling within the speed limit.
35. There is inevitably no evidence available as to the state of mind of Mr Hughes, whose actions caused Mr Jones' injuries through the mechanism of a highway road traffic accident. The Tribunal found on the balance of probability that he ran into the road intending to commit suicide. There was no evidence that he deliberately intended to harm the users of the road."
"37. The Tribunal were not satisfied that a crime of violence had been committed by Mr Hughes. Suicide is not a crime per se. There are actions which may be unlawful and may result in personal injury to another which are not crimes of violence. It is the nature not the consequences of an act which makes it a crime of violence. In the view of the Tribunal Mr Hughes' act in throwing himself in front of the articulated lorry was not a hostile act directed towards a person who suffered injury as a result.
38. 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 OAPA 1861".
"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…".
"In the offence under section 20 … for … which no specific intent is required, the word 'maliciously' does import … an awareness that his act may have the consequence of causing some physical harm to some other person. That is what is meant by 'the particular kind of harm' in the citation from Professor Kenny. It is quite unnecessary that the accused should have foreseen that his unlawful act might cause physical harm of the gravity described in the section, i.e., 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. (Emphasis added)."
"In my judgment, Mr. Wright's submission that what matters is the nature of the crime, not its likely consequences, is well founded. It is for the board to decide whether unlawful conduct, because of its nature, not its consequence, amounts to a crime of violence. As Lord Widgery C.J. pointed out in Clowes's case, at p. 1364, following what Lord Reid had said in Cozens v. Brutus  AC 854, the meaning of "crime of violence" is "very much a jury point." 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, as in the case of the Road Traffic Act 1972 offence to which I have referred."
"39. We do not accept this submission. The FTT properly directed itself as to the question which it had to consider. Having had their attention drawn to the case of Savage and Parmenter they would have been aware of the feature of recklessness (actual foresight of some harm) which distinguishes it from carelessness or negligence (where foresight is immaterial). There can be no doubt that Mr Hughes' actions were careless as to the safety of other road users in the sense that a reasonable man would have foreseen the risk of harm to them, but a conclusion of recklessness depended on the FTT finding that he actually foresaw that his behaviour might cause physical harm to others. Making such findings in relation to a person who is dead is a challenging task. However, as Mr Collins reminded us, the burden of proof (albeit to the civil standard of the balance of probabilities) lay on Mr Jones. There were the features of the case which Mr Cooksley emphasised, but it was open to the FTT to consider that Mr Hughes was so focussed on his impending suicide that he was blind to all other circumstances and consequences of his action. A similar view was articulated by the representative of the CICA before the FTT who had submitted, 'Suicide was not per se a reckless act. An unstable mind should not be considered capable of foreseeing the consequences of what they have done.' In other words, it could not be reliably inferred from the facts which Mr Cooksley identified that Mr Hughes had had actual foresight of any harm to others on the road. We conclude 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. It is not our function to act as an appellate body and substitute our own opinion of the facts even if that would have been different to the Tribunal's."
"Under paragraphs 6 and 8 of the Scheme we may pay compensation only if your client was the victim of a criminal injury. In most cases this means an injury directly attributable to a crime of violence. As you note, this type of crime might involve a physical attack on the victim or, in some cases, the threat of an attack. Or it might involve reckless behaviour that causes injury. I have looked again at the circumstances of the incident. Unfortunately the evidence does not show on balance that your client was injured in a crime of violence. I cannot accept that the actions of the individual who committed suicide can be seen as reckless, given that in committing suicide they showed themselves to be of unsound mind, and therefore unable to be aware of the consequences to others of their actions."
Lord Justice Rix :
Lord Justice Mummery :